Full Text of SB1945 95th General Assembly
SB1945sam001 95TH GENERAL ASSEMBLY
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Sen. John M. Sullivan
Filed: 3/14/2008
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| AMENDMENT TO SENATE BILL 1945
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| AMENDMENT NO. ______. Amend Senate Bill 1945 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Grain Code is amended by adding Sections | 5 |
| 1-10, 1-25, 10-15, 10-25, and 25-5 as follows:
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| (240 ILCS 40/1-10)
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| Sec. 1-10. Definitions. As used in this Act:
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| "Board" means the governing body of the Illinois Grain | 9 |
| Insurance
Corporation.
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| "Certificate" means a document, other than the license, | 11 |
| issued by
the Department that certifies that a grain dealer's | 12 |
| license has
been issued and is in effect.
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| "Claimant" means:
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| (a) a person, including, without limitation, a lender:
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| (1) who possesses warehouse receipts issued from an | 16 |
| Illinois location
covering grain
owned or stored by a |
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| failed warehouseman; or
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| (2) who has other written evidence of a storage
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| obligation of a failed warehouseman issued from an Illinois | 4 |
| location in favor
of the holder,
including, but not limited | 5 |
| to, scale tickets,
settlement sheets, and ledger cards; or
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| (3) who has loaned
money to a warehouseman and was to | 7 |
| receive a warehouse receipt
issued from an Illinois | 8 |
| location as security for that loan, who
surrendered | 9 |
| warehouse receipts as part of a grain sale at an Illinois | 10 |
| location,
or who
delivered grain out of storage with the | 11 |
| warehouseman as part of a grain sale at
an Illinois | 12 |
| location;
and
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| (i) the grain dealer or warehouseman failed within | 14 |
| 21 days after the
loan
of money, the surrender of | 15 |
| warehouse receipts, or the delivery of grain, as the
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| case may be, and no
warehouse receipt was issued or | 17 |
| payment in full was not made on the grain sale,
as the | 18 |
| case may be; or
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| (ii) written notice was given by the person to the | 20 |
| Department within 21
days after the loan of money, the | 21 |
| surrender of warehouse receipts, or the
delivery of | 22 |
| grain, as the case may be, stating that no warehouse | 23 |
| receipt was
issued or payment in full made on the grain | 24 |
| sale, as the case may be; or
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| (b) a producer not included in item (a)(3) in the | 26 |
| definition of "Claimant"
who possesses evidence of the sale at |
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| an Illinois location of grain delivered
to a failed grain | 2 |
| dealer, or its designee in Illinois and who was not paid
in | 3 |
| full.
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| "Class I warehouseman" means a warehouseman who is | 5 |
| authorized to
issue negotiable and non-negotiable warehouse | 6 |
| receipts.
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| "Class II warehouseman" means a warehouseman who is | 8 |
| authorized to
issue only non-negotiable warehouse receipts.
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| "Code" means this Grain Code.
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| "Collateral" means:
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| (a) irrevocable letters of credit;
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| (b) certificates of deposit;
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| (c) cash or a cash equivalent; or
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| (d) any other property acceptable to the Department to the
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| extent there exists equity in that property. For the purposes | 16 |
| of
this item (d), "equity" is the amount by which the fair
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| market value of the property exceeds the amount owed to a | 18 |
| creditor who
has a valid, prior, perfected security interest in | 19 |
| or other valid, prior,
perfected lien on
the property.
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| "Corporation" means the Illinois Grain Insurance | 21 |
| Corporation.
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| "Daily position record" means a grain inventory | 23 |
| accountability
record maintained on a daily basis that includes | 24 |
| an accurate
reflection of changes in grain inventory, storage | 25 |
| obligations,
company-owned inventory by commodity, and other | 26 |
| information
that is required by the Department.
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| "Daily grain transaction report" means a record of the | 2 |
| daily
transactions of a grain dealer showing the amount of all | 3 |
| grain
received and shipped during each day and the amount on | 4 |
| hand at the
end of each day.
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| "Date of delivery of grain" means:
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| (a) the date grain is delivered to a grain dealer, or its | 7 |
| designee in
Illinois, for
the
purpose of sale;
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| (b) the date grain is delivered to a warehouseman, or its | 9 |
| designee in
Illinois, for
the
purpose of storage; or
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| (c) in reference to grain in storage with a warehouseman,
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| the date a warehouse receipt representing stored grain is | 12 |
| delivered
to the issuer of the warehouse receipt for the | 13 |
| purpose of selling the stored
grain
or, if no warehouse receipt | 14 |
| was issued:
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| (1) the date the purchase price for stored grain is
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| established; or
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| (2) if sold by price later contract, the date of the
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| price later contract.
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| "Department" means the Illinois Department of Agriculture.
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| "Depositor" means a person who has evidence of a storage
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| obligation from a warehouseman.
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| "Director", unless otherwise provided, means the Illinois | 23 |
| Director of
Agriculture, or the Director's designee.
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| "Electronic document" means a document that is generated, | 25 |
| sent, received,
or stored by electrical, digital, magnetic, | 26 |
| optical electromagnetic, or any
other similar means, |
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| including, but not limited to, electronic data
interchange, | 2 |
| electronic mail,
telegram, telex, or telecopy.
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| "Electronic warehouse receipt" means a warehouse receipt | 4 |
| that is issued or
transmitted in the form of an electronic | 5 |
| document.
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| "Emergency storage" means space measured in bushels and | 7 |
| used for a
period of time not to exceed 3 months for storage of | 8 |
| grain
as a consequence of an emergency situation.
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| "Equity assets" means:
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| (a) The equity in any property of the
licensee or failed
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| licensee, other than grain assets. For purposes of this item | 12 |
| (a):
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| (1) "equity" is the amount by which the fair market
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| value of the property exceeds the amount owed to a creditor | 15 |
| who
has a valid security interest in or other valid lien on | 16 |
| the property
that was perfected before the date of failure | 17 |
| of the
licensee;
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| (2) a creditor is not deemed to have a valid
security | 19 |
| interest or other valid lien
on property if (i) the | 20 |
| property can be directly traced as being from the sale
of | 21 |
| grain by the licensee or failed licensee; (ii) the security | 22 |
| interest was
taken as additional collateral on account of | 23 |
| an antecedent debt owed to the
creditor; and (iii) the | 24 |
| security interest or other lien was perfected (A) on or
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| within 90 days before the date of failure of the licensee | 26 |
| or (B) when the
creditor is a related person, within one |
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| year of the date of failure of the
licensee.
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| "Failure" means, in reference to a licensee:
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| (a) a formal declaration of insolvency;
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| (b) a revocation of a license;
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| (c) a failure to apply for license renewal, leaving
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| indebtedness to claimants;
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| (d) a denial of license renewal, leaving indebtedness to
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| claimants; or
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| (e) a voluntary surrender of a license, leaving
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| indebtedness to claimants.
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| "Federal warehouseman" means a warehouseman licensed
by | 12 |
| the United States government under the United
States Warehouse | 13 |
| Act (7 U.S.C. 241 et seq.).
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| "Fund" means the Illinois Grain Insurance Fund.
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| "Grain" means corn, soybeans, wheat, oats, rye, barley, | 16 |
| grain
sorghum, canola, buckwheat, flaxseed, edible soybeans, | 17 |
| and
other like agricultural commodities that may be
designated | 18 |
| by rule.
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| "Grain assets" means:
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| (a) all grain owned and all grain stored by a licensee or
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| failed licensee, wherever located, including redeposited grain | 22 |
| of a licensee
or failed licensee;
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| (b) (blank);
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| (c) identifiable proceeds, including, but not limited to, | 25 |
| insurance
proceeds,
received by or due to a licensee or failed | 26 |
| licensee resulting
from the sale, exchange,
destruction, loss, |
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| or theft of grain, or other disposition of grain by the
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| licensee or failed licensee; or
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| (d) assets in hedging or speculative margin accounts held | 4 |
| by
commodity or security exchanges on behalf of a licensee or | 5 |
| failed
licensee and any moneys due or to become due to a | 6 |
| licensee or
failed licensee, less any secured financing | 7 |
| directly associated with those
assets or moneys, from any | 8 |
| transactions on those exchanges.
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| For purposes of this Act, storage charges, drying charges, | 10 |
| price later
contract service charges, and other grain service | 11 |
| charges received by or due to
a licensee or failed licensee | 12 |
| shall not be deemed to be grain assets, nor shall
such charges | 13 |
| be deemed to be proceeds from the sale or other disposition of
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| grain by a licensee or a failed licensee, or to have been | 15 |
| directly or
indirectly traceable from, to have resulted from, | 16 |
| or to have been derived in
whole
or in part from, or otherwise | 17 |
| related to, the sale or other disposition of
grain by the | 18 |
| licensee or failed licensee.
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| "Grain dealer" means a person who is licensed by the | 20 |
| Department to
engage in the business of buying grain from | 21 |
| producers.
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| "Grain Indemnity Trust Account" means a trust account | 23 |
| established by
the Director under Section 205-410 of the | 24 |
| Department of
Agriculture Law (20 ILCS 205/205-410) that is | 25 |
| used for the receipt and
disbursement of
moneys paid from the | 26 |
| Fund and proceeds from the liquidation of and
collection upon |
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| grain assets, equity assets, collateral, and
guarantees of or | 2 |
| relating to failed licensees. The Grain Indemnity
Trust Account | 3 |
| shall be used to pay valid claims, authorized refunds
from the | 4 |
| Fund, and expenses incurred in preserving, liquidating, and
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| collecting upon grain assets, equity assets, collateral, and
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| guarantees relating to failed licensees.
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| "Guarantor" means a person who assumes all or part of the
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| obligations of a licensee to claimants.
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| "Guarantee" means a document executed by a guarantor by | 10 |
| which the
guarantor assumes all or part of the obligations of a | 11 |
| licensee
to claimants.
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| "Incidental grain dealer" means a grain dealer who | 13 |
| purchases
grain
only in connection with a feed milling | 14 |
| operation and whose total
purchases of grain from producers | 15 |
| during the grain dealer's fiscal
year do not exceed $100,000.
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| "Licensed storage capacity" means the maximum grain | 17 |
| storage capacity
measured in bushels approved by the applicable | 18 |
| licensing agency for
use by a warehouseman.
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| "Licensee" means a grain dealer or warehouseman who is | 20 |
| licensed by
the Department and a federal warehouseman that is a | 21 |
| participant
in the Fund, under subsection (c) of Section 30-10.
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| "Official grain standards" means the official grade | 23 |
| designations as
adopted by the United States Department of | 24 |
| Agriculture under
the United States Grain Standards Act and | 25 |
| regulations adopted under that Act (7
U.S.C. 71 et seq. and 7 | 26 |
| CFR 810.201 et seq.).
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| "Permanent storage capacity" means the capacity of | 2 |
| permanent structures
available for storage of grain on a | 3 |
| regular and continuous basis,
measured in bushels.
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| "Person" means any individual or entity, including, but not
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| limited to, a sole proprietorship, a partnership, a | 6 |
| corporation,
a cooperative, an association, a limited | 7 |
| liability company, an estate,
a trust, or a governmental | 8 |
| agency.
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| "Price later contract" means a written contract , in written | 10 |
| or electronic form, for the sale of
grain whereby any part of | 11 |
| the purchase price may be established by
the seller after | 12 |
| delivery of the grain to a grain dealer
according to a pricing | 13 |
| formula contained in the contract. Title to
the grain passes to | 14 |
| the grain dealer at the time of delivery. The
precise form
and | 15 |
| the general terms and conditions
of the contract
shall be | 16 |
| established by rule.
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| "Producer" means the owner, tenant, or operator of land who | 18 |
| has an
interest in and receives all or part of the proceeds | 19 |
| from the
sale of the grain produced on the land.
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| "Producer protection holding corporation" means a holding
| 21 |
| corporation to receive, hold title to, and liquidate assets of | 22 |
| or
relating to a failed licensee, including assets in reference | 23 |
| to
collateral or guarantees relating to a failed licensee.
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| "Regulatory Fund" means the fund created under Article 35.
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| "Related persons" means affiliates of a licensee, key | 26 |
| persons
of a licensee, owners of a licensee, and persons who |
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| have
control over a licensee. For the purposes of this | 2 |
| definition:
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| (a) "Affiliate" means a person who has direct or | 4 |
| indirect control
of a licensee, is controlled by a | 5 |
| licensee, or is under common
control with a licensee.
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| (b) "Key person" means an officer, a director, a | 7 |
| trustee, a partner,
a proprietor, a manager, a managing | 8 |
| agent, or the spouse of a licensee. An
officer or a | 9 |
| director of an entity organized or operating as a | 10 |
| cooperative,
however, shall not be considered to be a "key | 11 |
| person".
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| (c) "Owner" means the holder of: over 10% of the total
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| combined voting power of a corporation or over 10% of
the | 14 |
| total value of shares of all classes of stock of a | 15 |
| corporation;
over a 10% interest in a partnership; over
10% | 16 |
| of the value of a trust computed actuarially; or over
10% | 17 |
| of the legal or beneficial interest in any other
business, | 18 |
| association, endeavor, or entity that is a licensee. For
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| purposes of computing these percentages, a holder is
deemed | 20 |
| to own stock or other interests in a business entity
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| whether the ownership is direct or indirect.
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| (d) "Control" means the power to exercise authority | 23 |
| over or direct
the management or policies of a business | 24 |
| entity.
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| (e) "Indirect" means an interest in a business held by | 26 |
| the holder
not through the holder's actual holdings in the |
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| business, but
through the holder's holdings in another | 2 |
| business or other businesses.
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| (f) Notwithstanding any other provision of this Act, | 4 |
| the term "related
person" does not include a lender, | 5 |
| secured party, or other lien holder solely
by reason of the | 6 |
| existence of the loan, security interest, or lien, or | 7 |
| solely
by reason of the lender, secured party, or other | 8 |
| lien holder having or
exercising any right or remedy | 9 |
| provided by law or by agreement with a licensee
or a failed | 10 |
| licensee.
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| "Reserve Fund" means a separate and discrete fund of up to | 12 |
| $2,000,000 held
by the Corporation as set forth in Section | 13 |
| 30-25.
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| "Successor agreement" means an agreement by which a | 15 |
| licensee succeeds to
the grain obligations of a former | 16 |
| licensee.
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| "Temporary storage space" means space measured in bushels | 18 |
| and used
for 6 months or less for storage of grain
on a | 19 |
| temporary basis due to a need for additional storage in excess
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| of permanent storage capacity.
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| "Trust account" means the Grain Indemnity Trust Account.
| 22 |
| "Valid claim" means a request for payment under the | 23 |
| provisions of this
Code, submitted by a claimant, the amount
| 24 |
| and category of which have been determined by the Department, | 25 |
| to the extent
that determination is not subject to further | 26 |
| administrative review
or appeal.
Each grain sale transaction |
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| and each storage obligation shall be considered a
separate and | 2 |
| discrete request for payment even though one or more requests | 3 |
| are
contained on one claim form or are filed with the | 4 |
| Department in one document.
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| "Warehouse" means a building, structure, or enclosure in | 6 |
| which grain
is stored for the public for compensation, whether | 7 |
| grain of
different owners is commingled or whether identity of
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| different lots of grain is preserved.
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| "Warehouse receipt" means a receipt for the storage of | 10 |
| grain issued
by a warehouseman.
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| "Warehouseman" means a person who is licensed:
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| (a) by the Department to engage in the
business of | 13 |
| storing grain for compensation; or
| 14 |
| (b) under the United States Warehouse Act but | 15 |
| participates in
the Fund
under
subsection (c) of Section | 16 |
| 30-10.
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| (Source: P.A. 92-16, eff.
6-28-01; 93-225, eff. 7-21-03.)
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| (240 ILCS 40/1-25)
| 19 |
| Sec. 1-25. Rules. The Department may
promulgate rules that | 20 |
| are necessary
for the implementation and administration of this | 21 |
| Code.
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| (a) The Department shall adopt rules governing electronic | 23 |
| systems under which
electronic warehouse receipts are may be | 24 |
| issued and transferred. Licensees shall
not be required, | 25 |
| however, to issue or use electronic warehouse receipts. These
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| rules shall be adopted after the United States Department of | 2 |
| Agriculture adopts
regulations concerning an electronic | 3 |
| receipt transfer system pursuant to 7
U.S.C. 242, 250. | 4 |
| (b) The Department shall adopt rules governing electronic | 5 |
| price later contracts. Licensees and producers shall not be | 6 |
| required, however, to issue or use electronic price later | 7 |
| contracts.
| 8 |
| (Source: P.A. 93-225, eff. 7-21-03.)
| 9 |
| (240 ILCS 40/10-15)
| 10 |
| Sec. 10-15. Price later contracts.
| 11 |
| (a) Price later contracts shall contain provisions be | 12 |
| written on forms
prescribed or authorized by the Department and | 13 |
| shall be in either written or electronic form. If in written | 14 |
| form, price . Price later contract forms
shall be
printed by a | 15 |
| person authorized to print those contracts by the
Department | 16 |
| after that person has agreed to comply with each of the | 17 |
| following:
| 18 |
| (1) That all price later contracts shall be printed as
| 19 |
| prescribed by the Department and shall be printed only for | 20 |
| a
licensed grain dealer.
| 21 |
| (2) That all price later contracts shall be numbered
| 22 |
| consecutively and a complete record of these contracts | 23 |
| shall
be retained showing for whom printed and the | 24 |
| consecutive
numbers printed on the contracts.
| 25 |
| (3) That a duplicate copy of all invoices rendered for
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| printing price later contracts that will show the | 2 |
| consecutive
numbers printed on the contracts, and the | 3 |
| number of contracts printed,
shall be promptly forwarded to | 4 |
| the Department.
| 5 |
| (4) that the person shall register with the Department | 6 |
| and pay an annual
registration fee of $100 to print price | 7 |
| later contracts. | 8 |
| Price later contracts that are in electronic form shall be | 9 |
| numbered consecutively.
| 10 |
| (b) A grain dealer purchasing grain by price later contract
| 11 |
| shall at all times own grain, rights in grain, proceeds from | 12 |
| the
sale of grain, and other assets acceptable to the | 13 |
| Department as set
forth in this Code totaling 90% of the unpaid | 14 |
| balance of
the grain dealer's obligations for grain purchased | 15 |
| by price later
contract. That amount shall at all times remain | 16 |
| unencumbered and
shall be represented by the aggregate of the | 17 |
| following:
| 18 |
| (1) Grain owned by the grain dealer
valued by means of | 19 |
| the hedging procedures method that
includes marking open | 20 |
| contracts to market.
| 21 |
| (2) Cash on hand.
| 22 |
| (3) Cash held on account in federally or State licensed
| 23 |
| financial institutions.
| 24 |
| (4) Investments held in time accounts with federally or
| 25 |
| State licensed financial institutions.
| 26 |
| (5) Direct obligations of the U.S. government.
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| (6) Funds on deposit in grain margin accounts.
| 2 |
| (7) Balances due or to become due to the licensee on
| 3 |
| price later contracts.
| 4 |
| (8) Marketable securities, including mutual funds.
| 5 |
| (9) Irrevocable letters of credit in favor of the
| 6 |
| Department and acceptable to the Department.
| 7 |
| (10) Price later contract service charges due or to
| 8 |
| become due to the licensee.
| 9 |
| (11) Other evidence of proceeds from or of grain that | 10 |
| is
acceptable to the Department.
| 11 |
| (c) For the purpose of computing the dollar value of grain
| 12 |
| and the balance due on price later contract obligations, the | 13 |
| value
of grain shall be figured at the current market price.
| 14 |
| (d) Title to grain sold by price later contract shall
| 15 |
| transfer to a grain dealer at the time of delivery of the
| 16 |
| grain.
Therefore, no storage charges shall be made with respect | 17 |
| to grain
purchased by price later contract. A service charge | 18 |
| for
handling the contract, however, may be made.
| 19 |
| (e) Subject to subsection (f) of this Section,
if a price | 20 |
| later contract is not signed by all parties
within 30 days of | 21 |
| the last date of delivery of grain
intended to be sold by price | 22 |
| later contract, then
the grain intended to be sold by price | 23 |
| later contract shall
be priced on the next business day after | 24 |
| 30 days from
the last date of delivery of grain intended to be | 25 |
| sold
by price later contract at the market price of the grain
| 26 |
| at the close of the next business day after the 29th day.
When |
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| the grain is priced under this subsection, the grain dealer | 2 |
| shall send
notice to the seller of the grain within 10 days. | 3 |
| The notice shall contain the
number of bushels sold, the price | 4 |
| per bushel, all applicable discounts, the net
proceeds, and a | 5 |
| notice that states that the Grain Insurance Fund shall provide
| 6 |
| protection for a period of only 160 days from the date of | 7 |
| pricing of the grain.
| 8 |
| In the event of a failure, if a price later contract is not | 9 |
| signed by all
the parties to the transaction, the Department | 10 |
| may consider the grain to be
sold by price later contract if a | 11 |
| preponderance of the evidence indicates the
grain was to be | 12 |
| sold by price later contract.
| 13 |
| (f) If grain is in storage with a
warehouseman and is | 14 |
| intended to be sold by price later contract, that grain
shall | 15 |
| be considered as remaining in storage and not be deemed sold by | 16 |
| price
later contract until the date the price later contract is | 17 |
| signed by all
parties.
| 18 |
| (g) Scale tickets or other approved documents with
respect | 19 |
| to grain purchased by a grain dealer by price later
contract | 20 |
| shall contain the following: "Sold Grain; Price Later".
| 21 |
| (h) Price later contracts shall be issued consecutively and | 22 |
| recorded by
the grain
dealer as established by rule.
| 23 |
| (i) A licensee shall not issue a collateral warehouse
| 24 |
| receipt on grain purchased by a price later contract to the | 25 |
| extent
the purchase price has not been paid by the licensee.
| 26 |
| (j) Failure to comply with the requirements of this Section
|
|
|
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09500SB1945sam001 |
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LRB095 16380 RLJ 48332 a |
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| 1 |
| may result in suspension
of the privilege to purchase grain by | 2 |
| price later contract for up
to one year.
| 3 |
| (k) When a producer with a price later contract selects a | 4 |
| price for all or
any part of the grain represented by that | 5 |
| contract, then within 5 business days
after that price | 6 |
| selection, the licensee shall mail to that producer a
| 7 |
| confirmation of the price selection, clearly and succinctly | 8 |
| indicating the
price selected. If the price later contract is | 9 |
| in electronic form, the licensee shall, within 5 business days | 10 |
| after that price selection, e-mail to that producer a | 11 |
| confirmation of the price selection, clearly and succinctly | 12 |
| indicating the price selected, in full satisfaction of the | 13 |
| mailing requirement in the previous sentence. | 14 |
| (l) The issuance and use of price later contracts in | 15 |
| electronic form pursuant to the rules promulgated by the | 16 |
| Department are specifically authorized by this Code, and any | 17 |
| such price later contracts shall have the same validity and | 18 |
| enforceability, for all purposes, as those in non-electronic | 19 |
| form. For purposes of this Code, the word "written", and | 20 |
| derivatives thereof, when used in relation to price later | 21 |
| contracts, shall include price later contracts created or | 22 |
| displayed electronically.
| 23 |
| (Source: P.A. 93-225, eff. 7-21-03.)
| 24 |
| (240 ILCS 40/10-25)
| 25 |
| Sec. 10-25. Warehouse receipts and storage of grain.
|
|
|
|
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LRB095 16380 RLJ 48332 a |
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| 1 |
| (a) When grain is delivered to a warehouseman at a location
| 2 |
| where grain is also purchased, the licensee shall give written
| 3 |
| evidence of delivery of grain and that written evidence shall | 4 |
| be
marked to indicate whether the grain is delivered for | 5 |
| storage or
for sale. In the absence of adequate evidence of | 6 |
| sale, the grain
shall be construed to be in storage.
| 7 |
| (b) Upon demand by a depositor, a warehouseman shall
issue | 8 |
| warehouse receipts for grain delivered into storage.
| 9 |
| (c) There shall be no charge for the first warehouse
| 10 |
| receipt issued to a depositor for a given lot of grain.
Charges | 11 |
| for any additional warehouse receipts for grain
previously | 12 |
| covered by a warehouse receipt must be commensurate
with the | 13 |
| cost of issuance of the additional warehouse receipt.
| 14 |
| (d) A warehouseman shall issue warehouse receipts only in
| 15 |
| accordance with the following requirements:
| 16 |
| (1) Warehouse receipts shall be consecutively numbered | 17 |
| in a form
prescribed
by the Department and issued | 18 |
| consecutively by the warehouseman.
| 19 |
| (2) In the case of a lost or destroyed warehouse
| 20 |
| receipt, the new warehouse receipt shall bear the same date | 21 |
| as
the original and shall be plainly marked on its face
| 22 |
| "duplicate in lieu of lost or destroyed warehouse receipt
| 23 |
| number .......", and the warehouseman shall duly fill in
| 24 |
| the blank with the appropriate warehouse receipt number.
| 25 |
| (3) Warehouse receipts shall be printed by a person | 26 |
| authorized by the Department.
The person shall register |
|
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| with the Department and pay an annual registration
fee of | 2 |
| $100 to print warehouse receipts.
| 3 |
| (4) Negotiable warehouse receipts shall be issued only
| 4 |
| for grain actually in storage with the warehouseman from | 5 |
| which
it is issued or redeposited by that warehouseman as | 6 |
| provided in subsection (e)
of Section 10-20.
| 7 |
| (5) A warehouseman shall not insert in any negotiable
| 8 |
| warehouse receipt issued by it any language that in any way
| 9 |
| limits or modifies its liability or responsibility.
| 10 |
| (e) Upon delivery of grain covered by a negotiable | 11 |
| warehouse
receipt, the holder of the negotiable warehouse | 12 |
| receipt must
surrender the warehouse receipt for cancellation, | 13 |
| and a warehouseman must
cancel
and issue a new negotiable | 14 |
| warehouse receipt for the balance of
grain in storage.
| 15 |
| (f) When all grain, the storage of which is evidenced by a
| 16 |
| warehouse receipt, is delivered from storage, the warehouse | 17 |
| receipt
shall be plainly marked across its face with the word | 18 |
| "cancelled"
and shall have written on it the date of | 19 |
| cancellation, the name
of the person canceling the warehouse | 20 |
| receipt, and such other information as
required by rule, and is | 21 |
| thereafter void.
| 22 |
| (g) When a warehouseman delivers grain out of storage but
| 23 |
| fails to collect and cancel the negotiable warehouse receipt, | 24 |
| the warehouseman
shall be liable to any purchaser of the | 25 |
| negotiable warehouse receipt for value
in good
faith
for | 26 |
| failure to deliver the grain to the
purchaser, whether the |
|
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| purchaser acquired the negotiable warehouse receipt
before or | 2 |
| after the delivery of the grain by the warehouseman.
If, | 3 |
| however, grain has been lawfully sold by a warehouseman to
| 4 |
| satisfy its warehouseman's lien, the warehouseman shall not be
| 5 |
| liable for failure to deliver the grain pursuant to the demands | 6 |
| of
a holder of a negotiable warehouse receipt to the extent of | 7 |
| the amount of
grain sold.
| 8 |
| (h) Except as otherwise provided by this Code or other
| 9 |
| applicable law, a warehouseman shall deliver the grain upon | 10 |
| demand
made by the holder of a warehouse receipt pertaining to | 11 |
| that grain if the
demand is
accompanied by:
| 12 |
| (1) satisfaction of the warehouseman's lien;
| 13 |
| (2) in the case of a negotiable warehouse receipt, a
| 14 |
| properly endorsed negotiable warehouse receipt; or
| 15 |
| (3) in the case of a non-negotiable warehouse receipt,
| 16 |
| written evidence that the grain was delivered to the
| 17 |
| warehouseman and that the depositor is entitled to it.
| 18 |
| (i) If no warehouse receipt is issued to a
depositor, a | 19 |
| warehouseman shall deliver grain upon the demand of a
depositor | 20 |
| if the demand is accompanied by satisfaction of the
| 21 |
| warehouseman's lien and written evidence that the grain was
| 22 |
| delivered to the warehouseman and the depositor is entitled to
| 23 |
| it.
| 24 |
| (j) If a warehouseman refuses or fails to deliver grain in
| 25 |
| compliance with a demand by a holder of a warehouse receipt or | 26 |
| a
depositor, the burden is on the warehouseman to establish
the |
|
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| 1 |
| existence of a lawful excuse for the refusal.
| 2 |
| (k) If a warehouse receipt has been lost or destroyed, a
| 3 |
| warehouseman may issue a substitute warehouse receipt, as | 4 |
| provided
for in this Section, upon delivery to the warehouseman | 5 |
| of an
affidavit under oath stating that the applicant for the | 6 |
| substitute
warehouse receipt is entitled to the original | 7 |
| warehouse receipt and
setting forth the circumstances that | 8 |
| resulted in the loss or
destruction of the original warehouse | 9 |
| receipt. The warehouseman
may request from the depositor a bond | 10 |
| in double the value of the
grain represented by the original | 11 |
| warehouse receipt at the time of
issuance of the substitute | 12 |
| warehouse receipt so as to protect the
warehouseman from any | 13 |
| liability or expense that it, or any person
injured by the | 14 |
| delivery, may incur by reason of the original
warehouse receipt | 15 |
| remaining outstanding.
| 16 |
| (l) A warehouse receipt that is to be used for collateral
| 17 |
| purposes by a warehouseman must be first issued by the | 18 |
| warehouseman
to itself.
| 19 |
| (m) The Department shall approve temporary storage space in
| 20 |
| an amount to be determined by the Department if all the | 21 |
| following conditions
are met:
| 22 |
| (1) The warehouseman pays all fees and assessments
| 23 |
| associated with the temporary storage space.
| 24 |
| (2) The warehouseman demonstrates that there is a need
| 25 |
| for additional storage on a temporary basis due to a bumper
| 26 |
| crop or otherwise.
|
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| 1 |
| (3) The structure for the storage of grain meets all of
| 2 |
| the following requirements:
| 3 |
| (A) The grain storage area has a permanent base
| 4 |
| made of concrete, asphalt, or a material having similar
| 5 |
| structural qualities.
| 6 |
| (B) Hot spot detectors, aeration fans, and ducts
| 7 |
| are provided to assure that the quality of grain in
| 8 |
| storage is maintained.
| 9 |
| (C) The grain storage structure has rigid
| 10 |
| sidewalls made of concrete, wood, metal, or a material
| 11 |
| having similar structural qualities.
| 12 |
| (D) The grain storage structure is equipped with
a | 13 |
| waterproof covering of sufficient strength to support
| 14 |
| a person's weight and with inlets to allow airflow.
| 15 |
| (E) Access to the grain is provided for the
purpose | 16 |
| of sampling and making examinations.
| 17 |
| (4) Temporary storage space shall be considered an | 18 |
| increase
in the licensed storage capacity of the licensee | 19 |
| and shall be
subject to Section 5-30.
| 20 |
| (5) The authorization to use temporary storage space | 21 |
| for the
storage of grain shall expire at the end of 6 | 22 |
| months after the
date of approval by the Department or May | 23 |
| 15th, whichever comes
first.
| 24 |
| (n) The Department may approve emergency storage space at | 25 |
| the request of the
licensee according to rule. | 26 |
| (o) The issuance and transfer of the warehouse receipts in |
|
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09500SB1945sam001 |
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LRB095 16380 RLJ 48332 a |
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| 1 |
| electronic form pursuant to rules promulgated by the Department | 2 |
| are specifically authorized by this Code, and any such | 3 |
| warehouse receipts shall have the same validity and | 4 |
| enforceability, for all purposes, as those in non-electronic | 5 |
| non- electrical form. For purposes of this Code, the words | 6 |
| "written" and "printed", and derivatives thereof, when used in | 7 |
| relation to warehouse receipts, shall include warehouse | 8 |
| receipts created or displayed electronically.
| 9 |
| (Source: P.A. 94-211, eff. 7-14-05.)
| 10 |
| (240 ILCS 40/25-5)
| 11 |
| Sec. 25-5. Adjudication of claims. When a licensee has
| 12 |
| experienced a failure, the Department shall process the claims | 13 |
| in
the following manner:
| 14 |
| (a) The Department shall publish once each week for 3
| 15 |
| successive weeks in at least 3 newspapers of general | 16 |
| circulation within the
county of
the licensee, and shall mail | 17 |
| or deliver to each claimant whose
name and post office address | 18 |
| are known or are reasonably
ascertainable by the Department, a | 19 |
| notice stating:
| 20 |
| (1) That the licensee has experienced a failure and the
| 21 |
| date of that failure.
| 22 |
| (2) The place and post office address where claims may
| 23 |
| be filed.
| 24 |
| (3) The procedure for filing claims, as determined by
| 25 |
| rule.
|
|
|
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LRB095 16380 RLJ 48332 a |
|
| 1 |
| (4) That a claimant's claims shall be barred if not
| 2 |
| filed with the Department on or before the later of:
| 3 |
| (A) the claim date, which shall be 90
days after | 4 |
| the date of failure of the licensee; or
| 5 |
| (B) 7 days from the date notice was mailed
to a | 6 |
| claimant if the date notice was mailed to
that claimant | 7 |
| is on or before the claim date.
| 8 |
| (b) Time of notice.
| 9 |
| (1) The first date of publication of the notice as
| 10 |
| provided for in subsection (a) of this Section shall be | 11 |
| within 30
days after the date of failure.
| 12 |
| (2) The published notice as provided for in subsection | 13 |
| (a) of this Section
shall be published in at least 3 | 14 |
| newspapers of
general circulation in the area formerly | 15 |
| served by the failed
licensee.
| 16 |
| (3) The notice as provided for in subsection (a) of | 17 |
| this Section shall
be mailed by certified mail, return | 18 |
| receipt requested, within
60 days after the date of failure | 19 |
| to each claimant whose
name and post office address are | 20 |
| known by the Department
within 60 days after the date of | 21 |
| failure.
| 22 |
| (c) Every claim filed must be in writing, verified, and | 23 |
| signed
by a person who has the legal authority to file a claim | 24 |
| on
behalf of the claimant
and must state information sufficient | 25 |
| to notify the Department of the
nature of the claim and the | 26 |
| amount sought.
|
|
|
|
09500SB1945sam001 |
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LRB095 16380 RLJ 48332 a |
|
| 1 |
| (d) A claim shall be barred and disallowed in
its entirety | 2 |
| if:
| 3 |
| (1) notice is published and given to the claimant as | 4 |
| provided for in
subsections (a) and (b) of this Section and | 5 |
| the claimant does not file a
claim with the Department on | 6 |
| or before the claim date; or
| 7 |
| (2) the claimant's name or post office address is not
| 8 |
| known by the Department or cannot, within 60 days after
the | 9 |
| date of failure, be reasonably ascertained by the
| 10 |
| Department and the claimant does not file a claim with the
| 11 |
| Department on or before the later of the claim date or
7 | 12 |
| days after the date notice was mailed to that claimant if
| 13 |
| the date notice was mailed to that claimant is on or before
| 14 |
| the claim date.
| 15 |
| (e) Subsequent notice.
| 16 |
| (1) If, more than 60 days after the date of failure but
| 17 |
| before the claim date, the Department learns of the name | 18 |
| and
post office address of a claimant who was previously | 19 |
| not
notified by the Department by mail, the Department | 20 |
| shall mail
by certified mail, return receipt requested, the | 21 |
| notice to the
claimant as provided for in subsection (a) of | 22 |
| this Section.
| 23 |
| (2) The notice mailed as provided for in item (e)(1) of | 24 |
| this Section
shall not extend the period of time in which a
| 25 |
| claimant may file its claim beyond the claim date.
A | 26 |
| claimant to whom notice is mailed under
item (e)(1) of this |
|
|
|
09500SB1945sam001 |
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|
| 1 |
| Section, however, shall have the later of the claim date or
| 2 |
| 7 days after the date notice was mailed to file
a claim | 3 |
| with the Department.
| 4 |
| (f) The Department shall determine the validity, category,
| 5 |
| and amount of each claim within 120 days after the date of | 6 |
| failure of
the licensee and shall give written notice within | 7 |
| that time period
to each
claimant and to the failed licensee
of | 8 |
| the Department's determination as to the validity, category, | 9 |
| and
amount of each claim.
| 10 |
| (g) A claimant or the
failed licensee may request a hearing | 11 |
| on the Department's
determination within 30 days after receipt | 12 |
| of the written
notice and the hearing shall be held
in the | 13 |
| county of the location of the principal office or place of | 14 |
| business, in Illinois, residence of the failed licensee | 15 |
| claimant and
in accordance with rules.
Under no circumstances | 16 |
| shall payment to claimants who have not requested a
hearing be
| 17 |
| delayed by reason of the request for a hearing by any unrelated | 18 |
| claimant.
| 19 |
| (h) Within 30 days after a failure of a licensee, the | 20 |
| Director shall
appoint an Administrative Law Judge for the | 21 |
| hearings. The Director shall
appoint a person licensed to | 22 |
| practice law in this State; who is believed to be
knowledgeable | 23 |
| with regard to agriculture and the grain industry in Illinois;
| 24 |
| who has no conflict of interest; and who at the time of his or | 25 |
| her appointment
is not working for or employed by the | 26 |
| Department in any capacity whatsoever.
|
|
|
|
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|
| 1 |
| (i) For the purposes of this Article, the "reasonably
| 2 |
| ascertainable" standard shall be satisfied when the Department
| 3 |
| conducts a review of the failed licensee's books and records | 4 |
| and an
interview of office and clerical personnel of the failed | 5 |
| licensee.
| 6 |
| (j) It is the intent of this Act that the time periods and | 7 |
| deadlines in
this Section 25-5 are absolute, and
are not to be | 8 |
| tolled, or their operation halted or delayed.
In the event of a | 9 |
| bankruptcy by a licensee,
the Director shall seek to have | 10 |
| commenced any
proceedings that are necessary and
appropriate to | 11 |
| lift the automatic stay or make it otherwise inapplicable to | 12 |
| the
actions
of the Department with regard to the claims | 13 |
| determination process. In all other
cases, the Department shall | 14 |
| seek to have commenced the proceedings necessary to
| 15 |
| expeditiously remove or lift any order of any court
or | 16 |
| administrative agency that might attempt to delay the time | 17 |
| periods and
deadlines contained in this Section 25-5.
| 18 |
| (Source: P.A. 93-225, eff. 7-21-03.)
| 19 |
| Section 99. Effective date. This Act takes effect upon | 20 |
| becoming law.".
|
|