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CHAPTER 40-31

AMERICAN DAIRY ASSOCIATION OF SOUTH DAKOTA

40-31-1      Definition of terms.
40-31-2      Association created--Producer and processor members--Nonvoting members.
40-31-2.1      Direction and supervision by department of agriculture--Independent functions retained by Association.
40-31-2.2      Cooperative agreements to fund or conduct dairy promotion efforts.
40-31-3      Nomination, appointment and terms of producer members.
40-31-4      Nomination, appointment and terms of processor members.
40-31-5      Repealed.
40-31-6      Officers of association--Orders and rules--Bonds required.
40-31-7      Employment and compensation of other personnel.
40-31-8      Offices of Association--Expenses--Contracts and agreements.
40-31-9      Assessment on milk produced in state--Application.
40-31-10      Repealed.
40-31-11      Assessment collected by first dealer--Producers responsible for payment.
40-31-12      Record of milk handled by dealers and producers--Form--Report--Preservation--Inspection.
40-31-13      Monthly return of dairy products handled by dealer or producer.
40-31-14      Computation of assessment by association when monthly return not filed.
40-31-15      Payment of assessment computed by Association--Penalty and interest.
40-31-16      Recovery of tax, penalty, and interest--Tax collection remedies available.
40-31-17      Producer's application for refund of assessment--Approval by association.
40-31-18      Assessments paid into dairy association fund--Purposes for which used--Warrants.
40-31-19      Voluntary contributions to association.
40-31-20      Disbursement of association funds.
40-31-21      Expenses paid from and limited by dairy association fund.
40-31-22      Power to sue and be sued--Contract power.
40-31-23      Research activities of department.
40-31-24      Promotional and advertising activities of department.
40-31-25      Administration and enforcement of chapter--Necessary powers.
40-31-26      Record and account maintained by association.
40-31-27      Copies of records as prima facie evidence.
40-31-28      Repealed.
40-31-29      Annual report to Governor.
40-31-30      Repealed.
40-31-31      Report of violations to attorney general.
40-31-32      Severability of provisions.


     40-31-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Association," the American Dairy Association of South Dakota;
             (2)      "Dealer," any person who buys, sells, manufactures, processes, or ships dairy products or who acts as sales or purchasing agent, broker, or factor of dairy products;
             (3)      "Person," individuals, corporations, limited liability companies, partnerships, trusts, associations, cooperatives, and any and all other business units;
             (4)      "Processor," one who converts milk or cream into a manufactured dairy product;
             (5)      "Producer," every person who produces milk or cream from cows or goats and thereafter sells the same as milk, cream, or other dairy products.

Source: SL 1951, ch 5, § 1; SL 1955, ch 4, § 1; SDC Supp 1960, § 4.2201; SL 1994, ch 351, § 98.


     40-31-2.   Association created--Producer and processor members--Nonvoting members. There is hereby created an American Dairy Association of South Dakota. This association shall be composed of three dairy producers and two dairy processors who are residents of this state, with the secretary of agriculture or the secretary's representative, the head of the dairy department of the South Dakota State University, and the state executive member of the American Dairy Association acting as nonvoting members.

Source: SL 1951, ch 5, § 2; SL 1955, ch 4, § 2; SDC Supp 1960, § 4.2202; SL 2004, ch 260, § 2.


     40-31-2.1.   Direction and supervision by department of agriculture--Independent functions retained by Association. The American Dairy Association of South Dakota shall be administered under the direction and supervision of the Department of Agriculture and the secretary thereof, but shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions (as defined in § 1-32-1) otherwise vested in it and shall exercise those functions independently of the secretary of agriculture. The staff director of the association shall be nominated by the association and appointed by the secretary of agriculture to serve at the pleasure of the secretary of agriculture.

Source: SL 1973, ch 2, § 135.


     40-31-2.2.   Cooperative agreements to fund or conduct dairy promotion efforts. The secretary of agriculture may enter agreements to fund or conduct dairy promotion efforts in cooperation with regional and national dairy promotion programs, on behalf of the American Dairy Association of South Dakota.

Source: SL 2004, ch 260, § 1.


     40-31-3.   Nomination, appointment and terms of producer members. The Governor shall appoint the producer members of the American Dairy Association from among a list of nominees supplied by any statewide nonprofit dairy organization incorporated under state law, for a period of three years, beginning on October thirty-first with one producer member to be appointed each year as the terms of previous appointees expire. The appointee's term shall expire on October thirtieth in the third year of appointment. The list of nominees shall comprise at least twice the number of appointments to be made.

Source: SL 1951, ch 5, § 2; SL 1955, ch 4, § 2; SDC Supp 1960, § 4.2202; SL 2004, ch 260, § 3; SL 2012, ch 16, § 20.


     40-31-4.   Nomination, appointment and terms of processor members. The processor members of the American Dairy Association shall be appointed by the Governor from among a list of nominees supplied by the South Dakota Dairy Association. The list shall be at least twice the number of appointments to be made. Each term is for a period of two years beginning on October thirty-first with one processor member to be appointed each year as the term of a previous appointee expires.

Source: SL 1951, ch 5, § 2; SL 1955, ch 4, § 2; SDC Supp 1960, § 4.2202; SL 2013, ch 176, § 13.


     40-31-5.   Repealed by SL 1971, ch 23, § 2


     40-31-6.   Officers of association--Orders and rules--Bonds required. The American Dairy Association shall have the power and duty to elect a chairman, vice-chairman, secretary, and treasurer who shall be members of the association and such other officers as it may deem advisable, and may adopt orders for the exercise of its powers and the performance of its duties. The association shall cause its officers to be adequately bonded for the faithful performance of their duties and the strict accounting for all funds of the association. The association may promulgate rules pursuant to chapter 1-26 concerning:
             (1)      Declaratory rulings;
             (2)      Reporting requirements;
             (3)      Assessments and collection procedures; and
             (4)      Refunds and refund procedures.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SL 1957, ch 5, § 3; SDC Supp 1960, §§ 4.2203(1), 4.2208; SL 1986, ch 326, § 90.


     40-31-7.   Employment and compensation of other personnel. The Department of Agriculture shall have the power and duty to employ for the American Dairy Association and discharge at its pleasure such attorneys, advertising counsel, clerks, and employees as it deems necessary and to prescribe their duties and fix their compensation.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (3).


     40-31-8.   Offices of Association--Expenses--Contracts and agreements. The Department of Agriculture shall have the power and duty to establish offices for the American Dairy Association and incur any and all expense and to enter into any and all contracts and agreements for the proper administration and enforcement of this chapter.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (4).


     40-31-9.   Assessment on milk produced in state--Application. There is hereby levied an assessment of ten cents per hundred weight on all milk produced in the state. However, the provisions of this section do not apply to milk produced outside of the state or to milk consumed upon the farm where produced.

Source: SL 1951, ch 5, § 5; SL 1955, ch 4, § 5; SL 1957, ch 5, § 1; SDC Supp 1960, § 4.2205 (1); SL 1971, ch 227, § 1; SL 2004, ch 260, § 4.


     40-31-10.   Repealed by SL 1971, ch 227, § 3


     40-31-11.   Assessment collected by first dealer--Producers responsible for payment. All assessments levied and imposed under this chapter shall be deducted from the price paid to the producer and shall be collected by the first dealer, provided, however, that:
             (1)      Where the producer sells directly to the consumer, the taxes aforesaid shall be collected from such producer;
             (2)      Where the producer sells outside the State of South Dakota, the assessments aforesaid shall be due and payable by such producer except that agreements may be made with dealers outside of the state for the purpose of collecting the assessments aforesaid from such dealers.

Source: SL 1951, ch 5, § 5; SL 1955, ch 4, § 5; SL 1957, ch 5, § 1; SDC Supp 1960, § 4.2205 (2); SL 1964, ch 4, § 2.


     40-31-12.   Record of milk handled by dealers and producers--Form--Report--Preservation--Inspection. All dealers and producers charged under this chapter with the obligation of collecting and remitting the assessment imposed by this chapter shall keep a complete and accurate record of all milk subject to assessments by this chapter which may be handled. The record shall be in such form and contain such information and be reported to the South Dakota Department of Agriculture at such times as the American Dairy Association may prescribe. The record shall be preserved by the person charged with keeping the record for a period of two years. The record is subject to inspection by the South Dakota Department of Agriculture.

Source: SL 1951, ch 5, § 6; SL 1955, ch 4, § 6; SL 1957, ch 5, § 2; SDC Supp 1960, § 4.2206; SL 1971, ch 227, § 2; SL 2004, ch 260, § 5.


     40-31-13.   Monthly return of dairy products handled by dealer or producer. Every dealer or producer charged by this chapter or by agreement with the keeping of records provided in this chapter shall, as the American Dairy Association by its regulations may require, file with the association a return on or before the fifteenth day of each month, on forms to be prescribed and furnished by the association stating the quantity of dairy products subject to assessment during the preceding month and such other information as the association may reasonably require. A copy of such return shall be retained by all dealers for inspection by the producers selling to them.

Source: SL 1951, ch 5, § 7; SL 1955, ch 4, § 7; SDC Supp 1960, § 4.2207; SL 1976, ch 253.


     40-31-14.   Computation of assessment by association when monthly return not filed. In case any person charged under this chapter with the obligation of filing a return or collecting and remitting the assessment imposed by this chapter fails to make a return when due, or fails to collect or remit such assessment as herein provided, an officer of the American Dairy Association designated by it for such purpose after ten days' notice to such person shall have a hearing thereon and determine the amount of such tax according to his best judgment and information, which amount so fixed by the association officer shall be prima facie correct.

Source: SL 1951, ch 5, § 10; SL 1957, ch 5, § 4; SDC Supp 1960, § 4.2210; SL 1964, ch 4, § 3.


     40-31-15.   Payment of assessment computed by Association--Penalty and interest. Any person charged under this chapter with the obligation of filing a return who fails to do so shall, within ten days after notice of the amount of tax fixed and computed by the officer pursuant to § 40-31-14 is mailed to that person, pay the tax, together with a penalty of ten percent on the amount of the tax. In addition to the penalty, if payment is not made within ten days, interest at the Category D rate of interest as established in § 54-3-16 calculated from the date of mailing the notice shall be added to the amount of tax.

Source: SL 1951, ch 5, § 10; SL 1957, ch 5, § 4; SDC Supp 1960, § 4.2210; SL 1964, ch 4, § 3; SL 1983, ch 28, § 52; SL 1984, ch 319, § 26.


     40-31-16.   Recovery of tax, penalty, and interest--Tax collection remedies available. In the case of failure to pay the tax or any portion of the tax, or any penalty or interest provided for in this chapter, when due, the Department of Agriculture may recover the amount of the tax, penalty, and interest. The provisions of §§ 10-59-11 to 10-59-15, inclusive, which provide for the creation, notice, recording, and enforcement of liens, collection by distress warrant, and injunction, apply to and are available for collection of the tax imposed by this chapter. The secretary of agriculture shall perform the duties specified for the secretary of revenue in chapter 10-59. However, any lien or suit filed shall be in the name of the Department of Agriculture.

Source: SL 1951, ch 5, § 10; SL 1957, ch 5, § 4; SDC Supp 1960, § 4.2210; SL 1964, ch 4, § 3; SL 2017, ch 66, § 6.


     40-31-17.   Producer's application for refund of assessment--Approval by association. Any producer desiring a refund of an assessment paid under this chapter must himself make written application to the secretary of the American Dairy Association of South Dakota therefor. Such application may only be made on an annual basis and may only be made within thirty days after July first, of each year on forms provided by the association. Upon receipt of such completed refund application upon such forms, the secretary of the association shall, within thirty days approve the voucher for payment of the net refund due such producer and transmit such voucher to the state auditor.

Source: SL 1951, ch 5, § 5; SL 1955, ch 4, § 5; SL 1957, ch 5, § 1; SDC Supp 1960, § 4.2205 (3); SL 1964, ch 4, § 2; SL 1977, ch 323; SL 1978, ch 287.


     40-31-18.   Assessments paid into dairy association fund--Purposes for which used--Warrants. All moneys received by the Department of Agriculture from the assessments levied under the provisions of this chapter shall be paid to the state treasurer and placed in a fund designated as the "American Dairy Association of South Dakota fund." Said fund and the accumulations therein are appropriated for the uses and purposes of the association as prescribed by the laws relating to the American Dairy Association of South Dakota. The state auditor shall issue warrants upon such fund approved by the American Dairy Association of South Dakota.

Source: SL 1951, ch 5, § 5; SL 1955, ch 4, § 5; SL 1957, ch 5, § 1; SDC Supp 1960, § 4.2205 (2); SL 1964, ch 4, § 2.


     40-31-19.   Voluntary contributions to association. The American Dairy Association shall have the power and duty to accept and disburse voluntary contributions for the use and purposes of the association.

Source: SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (10).


     40-31-20.   Disbursement of association funds. The American Dairy Association shall have the power and duty to authorize the disbursement of moneys as may be available to it in support of itself and its purposes but only to the extent that such money is available.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (9).


     40-31-21.   Expenses paid from and limited by dairy association fund. No part of the expense incurred by the association shall be paid from any other than the American Dairy Association of South Dakota fund and the expenses incurred by the association shall at no time exceed the amount available in the fund.

Source: SL 1951, ch 5, § 8; SL 1955, ch 4, § 8; SL 1957, ch 5, § 3; SDC Supp 1960, § 4.2208.


     40-31-22.   Power to sue and be sued--Contract power. The Department of Agriculture, on behalf of the American Dairy Association, shall have the power to sue and be sued and to contract and be contracted with.

Source: SL 1951, ch 5, § 2; SL 1955, ch 4, § 2; SDC Supp 1960, § 4.2202.


     40-31-23.   Research activities of department. The Department of Agriculture shall have the power and duty to conduct scientific research for the purpose of developing and discovering health, food, therapeutic, dietetic, and industrial uses for dairy products.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (6).


     40-31-24.   Promotional and advertising activities of department. The Department of Agriculture shall plan and conduct campaigns for dairy commodity advertising, publicity, and sales promotion, research and educational campaigns, to increase the consumption of dairy products, and may contract for any advertising, publicity, and sales promotion, research and educational service. The department shall have the power and duty to make in the name of the American Dairy Association such advertising contracts and other agreements as it deems desirable, and to promote the sale and consumption of dairy products on either a state or national basis.

Source: SL 1951, ch 5, §§ 3, 4; SL 1955, ch 4, §§ 3, 4; SDC Supp 1960, §§ 4.2203 (7), 4.2204.


     40-31-25.   Administration and enforcement of chapter--Necessary powers. The Department of Agriculture shall have the power and duty to administer and enforce this chapter and to do and perform all acts and exercise all powers reasonably necessary to effectuate the purposes of this chapter.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (2).


     40-31-26.   Record and account maintained by association. The American Dairy Association shall have the power and duty to keep an accurate record and account of its dealings which shall be a public record.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (8).


     40-31-27.   Copies of records as prima facie evidence. Copies of the proceedings, records, and accounts of the association, when certified by its secretary, shall be admissible in evidence and shall be prima facie evidence of the truth of all statements therein contained.

Source: SL 1951, ch 5, § 2; SL 1955, ch 4, § 2; SDC Supp 1960, § 4.2202.


     40-31-28.   Repealed by SL 1975, ch 62, § 3


     40-31-29.   Annual report to Governor. The American Dairy Association shall on or before the first day of September of each year make a full and complete report to the Governor of its activities for the twelve months previous.

Source: SL 1951, ch 5, § 9; SL 1955, ch 4, § 9; SDC Supp 1960, § 4.2209.


     40-31-30.   Repealed by SL 1991, ch 186, § 24


     40-31-31.   Report of violations to attorney general. The American Dairy Association shall have the power and duty to report violations of this chapter to the attorney general of the State of South Dakota.

Source: SL 1951, ch 5, § 3; SL 1955, ch 4, § 3; SDC Supp 1960, § 4.2203 (5).


     40-31-32.   Severability of provisions. If any provisions of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

Source: SL 1951, ch 5, § 11; SDC Supp 1960, § 4.2211.


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