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LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 264
Introduced by Agriculture Committee: Halloran, 33, Chairperson; Brewer,
43; Holdcroft, 36; Hughes, 24; Ibach, 44; Riepe, 12.
Read first time January 10, 2023
Committee: Agriculture
1 A BILL FOR AN ACT relating to agriculture; to amend sections 75-902,
2 75-903, 75-903.02, 88-526, 88-527, and 88-528.01, Reissue Revised
3 Statutes of Nebraska, and sections 75-156 and 88-530, Revised
4 Statutes Cumulative Supplement, 2022; to change provisions under the
5 Grain Dealer Act and the Grain Warehouse Act; to redefine terms; to
6 change a fee; to change filed security provisions; to change
7 criminal history record check requirements; to change references to
8 warehouseman; to eliminate obsolete provisions; and to repeal the
9 original sections.
10 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 75-156, Revised Statutes Cumulative Supplement,
2 2022, is amended to read:
3 75-156 (1) In addition to other penalties and relief provided by
4 law, the Public Service Commission may, upon a finding that the violation
5 is proven by clear and convincing evidence, assess a civil penalty of up
6 to ten thousand dollars per day against any person, motor carrier,
7 regulated motor carrier, common carrier, contract carrier, licensee,
8 grain dealer, or grain warehouse operator warehouseman for each violation
9 of (a) any provision of the laws of this state within the jurisdiction of
10 the commission as enumerated in section 75-109.01, (b) any term,
11 condition, or limitation of any certificate, permit, license, or
12 authority issued by the commission pursuant to the laws of this state
13 within the jurisdiction of the commission as enumerated in section
14 75-109.01, or (c) any rule, regulation, or order of the commission issued
15 under authority delegated to the commission pursuant to the laws of this
16 state within the jurisdiction of the commission as enumerated in section
17 75-109.01.
18 (2) In addition to other penalties and relief provided by law, the
19 Public Service Commission may, upon a finding that the violation is
20 proven by clear and convincing evidence, assess a civil penalty not less
21 than one hundred dollars and not more than one thousand dollars against
22 any jurisdictional utility for each violation of (a) any provision of the
23 State Natural Gas Regulation Act, (b) any rule, regulation, order, or
24 lawful requirement issued by the commission pursuant to the act, (c) any
25 final judgment or decree made by any court upon appeal from any order of
26 the commission, or (d) any term, condition, or limitation of any
27 certificate issued by the commission issued under authority delegated to
28 the commission pursuant to the act. The amount of the civil penalty
29 assessed in each case shall be based on the severity of the violation
30 charged. The commission may compromise or mitigate any penalty prior to
31 hearing if all parties agree. In determining the amount of the penalty,
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1 the commission shall consider the appropriateness of the penalty in light
2 of the gravity of the violation and the good faith of the violator in
3 attempting to achieve compliance after notification of the violation is
4 given.
5 (3) In addition to other penalties and relief provided by law, the
6 Public Service Commission may, upon a finding that the violation is
7 proven by clear and convincing evidence, assess a civil penalty of up to
8 ten thousand dollars per day against any wireless carrier for each
9 violation of the Enhanced Wireless 911 Services Act or any rule,
10 regulation, or order of the commission issued under authority delegated
11 to the commission pursuant to the act.
12 (4) In addition to other penalties and relief provided by law, the
13 Public Service Commission may, upon a finding that the violation is
14 proven by clear and convincing evidence, assess a civil penalty of up to
15 one thousand dollars against any person for each violation of the
16 Nebraska Uniform Standards for Modular Housing Units Act or the Uniform
17 Standard Code for Manufactured Homes and Recreational Vehicles or any
18 rule, regulation, or order of the commission issued under the authority
19 delegated to the commission pursuant to either act. Each such violation
20 shall constitute a separate violation with respect to each modular
21 housing unit, manufactured home, or recreational vehicle, except that the
22 maximum penalty shall not exceed one million dollars for any related
23 series of violations occurring within one year from the date of the first
24 violation.
25 (5) The civil penalty assessed under this section shall not exceed
26 two million dollars per year for each violation except as provided in
27 subsection (4) of this section. The amount of the civil penalty assessed
28 in each case shall be based on the severity of the violation charged. The
29 commission may compromise or mitigate any penalty prior to hearing if all
30 parties agree. In determining the amount of the penalty, the commission
31 shall consider the appropriateness of the penalty in light of the gravity
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1 of the violation and the good faith of the violator in attempting to
2 achieve compliance after notification of the violation is given.
3 (6) Upon notice and hearing in accordance with this section and
4 section 75-157, the commission may enter an order assessing a civil
5 penalty of up to one hundred dollars against any person, firm,
6 partnership, limited liability company, corporation, cooperative, or
7 association for failure to file an annual report or pay the fee as
8 required by section 75-116 and as prescribed by commission rules and
9 regulations or for failure to register as required by section 86-125 and
10 as prescribed by commission rules and regulations. Each day during which
11 the violation continues after the commission has issued an order finding
12 that a violation has occurred constitutes a separate offense. Any party
13 aggrieved by an order of the commission under this section may appeal.
14 The appeal shall be in accordance with section 75-136.
15 (7) When any person or party is accused of any violation listed in
16 this section, the commission shall notify such person or party in writing
17 (a) setting forth the date, facts, and nature of each act or omission
18 upon which each charge of a violation is based, (b) specifically
19 identifying the particular statute, certificate, permit, rule,
20 regulation, or order purportedly violated, (c) that a hearing will be
21 held and the time, date, and place of the hearing, (d) that in addition
22 to the civil penalty, the commission may enforce additional penalties and
23 relief as provided by law, and (e) that upon failure to pay any civil
24 penalty determined by the commission, the penalty may be collected by
25 civil action in the district court of Lancaster County.
26 Sec. 2. Section 75-902, Reissue Revised Statutes of Nebraska, is
27 amended to read:
28 75-902 For purposes of the Grain Dealer Act, unless the context
29 otherwise requires:
30 (1) Commission means the Public Service Commission;
31 (2) Direct delivery grain has the same meaning as in section 88-526;
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1 (3) Direct delivery obligation has the same meaning as in section
2 88-526;
3 (4)(a) (4) Grain means includes, but is not limited to, all
4 unprocessed beans, whole corn, milo and other sorghum, wheat, rye,
5 barley, oats, millet, safflower seed and processed plant pellets, alfalfa
6 pellets, and any other bulk pelleted agricultural storable commodity,
7 except grain which has been processed or packaged for distribution as
8 seed. ;
9 (b) Grain includes all commodities described in subdivision (4)(a)
10 of this section whether grown and marketed as fungible commodities or
11 within segregated marketing channels, including, but not limited to,
12 certified organic commodities;
13 (5)(a) Grain dealer means any person, partnership, limited liability
14 company, corporation, or association that (i) buys grain from the
15 producer of the grain within this state for purposes of selling such
16 grain or (ii) acts as an employee or agent of a buyer or seller for
17 purposes of collective bargaining in the marketing of grain.
18 (b) Grain dealer does not include (i) a feeder or custom feeder of
19 livestock or poultry or (ii) a warehouse licensee under the Grain
20 Warehouse Act or a warehouse licensee under the United States Warehouse
21 Act of a warehouse located in Nebraska if the warehouse licensee does not
22 buy, sell, or transport grain other than grain that is received at its
23 licensed warehouse facilities;
24 (6) In-store transfer has the same meaning as in section 88-526;
25 (7) Post-direct delivery storage position has the same meaning as in
26 section 88-526; and
27 (8) Producer means the owner, tenant, or operator of land in this
28 state who has an interest in and receives all or part of the proceeds
29 from the sale of grain produced on that land.
30 Sec. 3. Section 75-903, Reissue Revised Statutes of Nebraska, is
31 amended to read:
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1 75-903 All grain dealers doing business in this state shall be
2 licensed by the commission. If the applicant is an individual, the
3 application shall include the applicant's social security number. To
4 procure and maintain a license, each grain dealer shall:
5 (1) Pay an annual fee of one hundred dollars which shall be due on
6 or before the date established by the commission for each license. Such
7 fees shall be paid to the State Treasurer and credited to the General
8 Fund;
9 (2) File security which may be a bond issued by a corporate surety
10 company and payable to the commission, an irrevocable letter of credit,
11 or a certificate of deposit, subject to the approval of the commission,
12 for the benefit of any producer who files a valid claim arising from a
13 sale to a grain dealer. The security shall be in an amount set by the
14 commission of not less than thirty-five thousand dollars and not more
15 than one million dollars the amount of thirty-five thousand dollars or
16 seven percent of grain purchases or exchanges by the grain dealer in the
17 grain dealer's preceding fiscal year, whichever is greater, not to exceed
18 three hundred thousand dollars. Amounts used in the calculation of the
19 security shall include all direct delivery grain purchases and exchanges
20 valued on the date delivery is made. Amounts used in the calculation of
21 the security shall not include any transactions in which direct delivery
22 grain is exchanged for a post-direct delivery storage position and the
23 post-direct delivery storage position is created by an in-store transfer
24 on the same date as the delivery of the direct delivery grain. Such
25 security shall be furnished on the condition that the licensee will pay
26 for any grain purchased upon demand, not later than fifteen days after
27 the date of the last shipment of any contract. The liability of the
28 surety shall cover purchases made by the grain dealer during the time the
29 bond is in force. A grain dealer's bond filed with the commission shall
30 be in continuous force and effect until canceled by the surety. The
31 liability of the surety on any bond required by this section shall not
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1 accumulate for each successive license period during which the bond is in
2 force; and
3 (3) File a reviewed or audited fiscal year-end financial statement
4 prepared by an independent certified public accounting firm. If licensing
5 as an individual, the financial statement shall be prepared in accordance
6 with Other Comprehensive Basis of Accountancy, as filed with the board,
7 for a personal financial statement, using historical cost and accrual
8 basis of accounting. If licensing as a partnership, corporation, or
9 limited liability company, the financial statement shall be prepared in
10 accordance with accounting principles generally accepted. The financial
11 statement shall include: (a) A statement of income showing profit or
12 loss; (b) a balance sheet; (c) a statement of cash flow; (d) a statement
13 of proprietor's capital or retained earnings; (e) the volume and dollar
14 value of the grain purchases the licensee made in Nebraska during the
15 fiscal year; (f) the volume and dollar value of transactions in which
16 direct delivery grain is exchanged for a post-direct delivery storage
17 position and the post-direct delivery storage position is not created by
18 an in-store transfer on the same date as the delivery of the direct
19 delivery grain; and (g) the accounting firm's certification, assurances,
20 opinions, and comments and the notes with respect to the financial
21 statement. If the volume and dollar value of the grain purchases is not
22 reported, the grain dealer shall file the maximum grain dealer security
23 as required by the Grain Dealer Act.
24 (4) If an applicant for a grain dealer license is a wholly owned
25 subsidiary of a parent company and such a financial statement is not
26 prepared for the subsidiary, the parent company shall submit its reviewed
27 or audited fiscal year-end financial statement and shall execute an
28 unconditional guarantee agreement as prescribed by the commission.
29 Sec. 4. Section 75-903.02, Reissue Revised Statutes of Nebraska, is
30 amended to read:
31 75-903.02 For each application filed under section 75-903 after
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1 January 1, 2004, one of the following primary parties shall be subject to
2 fingerprinting and a check of his or her criminal history record
3 information maintained by the Federal Bureau of Investigation through the
4 Nebraska State Patrol: (1) If the applicant is not an individual, the
5 chief executive officer, president, or general manager; or (2) if the
6 applicant is an individual, the individual. If the primary party has been
7 subject to a check of his or her criminal history record information
8 pursuant to this section on a prior application, he or she is not subject
9 to another such check upon a subsequent application. If a primary party
10 has been subject to a check of his or her criminal history record
11 information pursuant to another law, the commission may waive such
12 requirement under this section. A primary party shall furnish to the
13 Nebraska State Patrol a full set of fingerprints to enable a criminal
14 background investigation to be conducted. The primary party shall request
15 that the Nebraska State Patrol submit the fingerprints to the Federal
16 Bureau of Investigation for a national criminal history record check. The
17 primary party shall pay the actual cost, if any, of the fingerprinting
18