1110 1997 Session Laws of Kansas Ch. 160
An Act abolishing the Kansas state grain inspection department;
relating to the transfer of
duties and powers thereof; amending K.S.A. 34-101, 34-101c, 34-102,
34-111, 34-223,
34-227b, 34-229, 34-230, 34-230a, 34-230b, 34-231, 34-233, 34-235,
34-236, 34-238, 34-
241a, 34-246, 34-249a, 34-251, 34-257a, 34-273, 34-295a, 34-295b,
34-298, 34-299, 34-
2,104 and 34-2,110 and K.S.A. 1996 Supp. 34-101b, 34-125, 34-228,
74-4911f, 75-3170a
and 77-415 and repealing the existing sections; also repealing
K.S.A. 34-101a, 34-101d,
34-102a, 34-104, 34-105, 34-106, 34-107, 34-110, 34-112a, 34-113,
34-121, 34-122, 34-
123, 34-124, 34-127, 34-224, 34-227 34-227a, 34-2,100, 75-1701,
75-1702, 75-1703, 75-
1704, 75-1706, 75-1709 and 75-1711 and K.S.A. 1996 Supp. 34-102b,
34-103a and
34-2,108.
Be it enacted by the Legislature of the State of
Kansas:
New Section 1. On and after September 1, 1997:
(a) The Kansas state grain inspection department established
by
K.S.A. 34-101 is hereby abolished.
(b) Except as otherwise provided by this act, all of the powers,
duties
and functions of the Kansas state grain inspection department and
the
director of the Kansas state grain inspection department concerning
pub-
lic warehouses are hereby transferred to and conferred and imposed
upon
the department of agriculture and the secretary of
agriculture.
(c) Except as otherwise provided by this act, all of the powers,
duties
and functions of the Kansas state grain inspection department and
the
director of the Kansas state grain inspection department concerning
grain
inspection are hereby governed by the grain inspection, packers,
stock-
yards administration of the United States department of
agriculture.
New Sec. 2. On and after September 1, 1997:
(a) Except as otherwise provided by this act, the department of
ag-
riculture and the secretary of agriculture shall be the successor
in every
way to the powers, duties and functions of the Kansas state grain
inspec-
tion department and the director of the Kansas state grain
inspection
department concerning public warehouses in which the same were
vested
prior to the effective date of this section. Every act performed in
the
exercise of such powers, duties and functions by or under the
authority
of the department of agriculture and the secretary of agriculture
shall be
deemed to have the same force and effect as if performed by the
Kansas
state grain inspection department and the director of the Kansas
state
grain inspection department, respectively, in which such powers,
duties
and functions were vested prior to the effective date of this
section.
(b) Except as otherwise provided by this act, whenever the
Kansas
state grain inspection department, or words of like effect
concerning pub-
lic warehouses, is referred to or designated by a statute, contract
or other
document, such reference or designation shall be deemed to apply to
the
department of agriculture.
Ch. 160 1997 Session Laws of Kansas 1111
(c) Except as otherwise provided by this act, whenever the
director
of the Kansas state grain inspection department, or words of like
effect
concerning public warehouses, is referred to or designated by a
statute,
contract or other document, such reference or designation shall
be
deemed to apply to the secretary of agriculture.
(d) All rules and regulations of the Kansas state grain
inspection de-
partment and the director of the Kansas state grain inspection
department
concerning public warehouses in existence on the effective date of
this
section shall continue to be effective and shall be deemed to be
duly
adopted rules and regulations of the secretary of agriculture until
revised,
amended, revoked or nullified pursuant to law.
(e) All orders and directives of the Kansas state grain
inspection de-
partment and the director of the Kansas state grain inspection
department
concerning public warehouses in existence on the effective date of
this
section shall continue to be effective and shall be deemed to be
orders
and directives of the department of agriculture until revised,
amended or
nullified pursuant to law.
(f) On the effective date of this act, the department of
agriculture
shall succeed to whatever right, title or interest the Kansas state
grain
inspection department has acquired in any real property in this
state con-
cerning public warehouses, and the department shall hold the same
for
and in the name of the state of Kansas. On and after the effective
date
of this act, whenever any statute, contract, deed or other document
con-
cerns the power or authority of the Kansas state grain inspection
depart-
ment and the director of the Kansas state grain inspection
department
concerning public warehouses to acquire, hold or dispose of real
property
or any interest therein, the department of agriculture shall
succeed to
such power or authority.
(g) The department of agriculture and the secretary of
agriculture
shall be continuations of the Kansas state grain inspection
department
and the director of the Kansas state grain inspection department
con-
cerning public warehouses.
New Sec. 3. Except as otherwise provided in this act, on
September
1, 1997, officers and employees who, immediately prior to such
date, were
in positions engaged in the performance of powers, duties or
functions
of the Kansas state grain inspection department concerning public
ware-
houses which are transferred by this act, or who become a part of
the
department of agriculture, or the powers, duties and functions of
which
are transferred to the department of agriculture, and if, in the
opinion of
the secretary of agriculture, those positions are necessary to
perform the
powers, duties and functions of the department of agriculture
concerning
public warehouses, shall be transferred to, and shall become
officers and
employees of the department of agriculture. Any such officer or
employee
shall retain all retirement benefits and all rights of civil
service which had
1112 1997 Session Laws of Kansas Ch. 160
accrued to or vested in such officer or employee prior to the
effective
date of this section. The service of each such officer and employee
so
transferred shall be deemed to have been continuous. All transfers
of
personnel positions in the classified service under the Kansas
civil service
act shall be in accordance with civil service laws and any rules
and reg-
ulations adopted thereunder.
New Sec. 4. (a) Those positions in the grain inspection
department
which, in the opinion of the secretary of agriculture, are not
necessary to
perform the powers, duties and functions of the department of
agriculture
concerning public warehouses shall be abolished upon September
1,
1997. Thirty-day notice prior to September 1, 1997, shall be given
by the
secretary to employees in those positions determined to be
unnecessary
by the secretary. No bumping rights shall attach to the positions
deemed
unnecessary by the secretary of agriculture. No further action
shall be
required in order to abolish these positions.
(b) The provisions of this section shall take effect on and
after August
1, 1997.
New Sec. 5. On and after September 1, 1997:
(a) When any conflict arises as to the disposition of any power,
func-
tion or duty or the unexpended balance of any appropriation as a
result
of any abolition, transfer, attachment or change made by or under
au-
thority of this act, such conflict shall be resolved by the
governor, whose
decision shall be final.
(b) The department of agriculture shall succeed to all property
and
records concerning public warehouses which were used for or pertain
to
the performance of the powers, duties and functions transferred to
the
department of agriculture. Any conflict as to the proper
disposition of
property or records arising under this section, and resulting from
the
transfer or attachment of any state agency, or all or part of the
powers,
duties and functions thereof, shall be determined by the governor,
whose
decision shall be final.
New Sec. 6. On and after September 1, 1997:
(a) The department of agriculture shall have the legal custody
of all
records, memoranda, writings, entries, prints, representations or
combi-
nations thereof of any act, transaction, occurrence or event of the
Kansas
state grain inspection department concerning public warehouses and
any
agency or office transferred thereto under this act.
(b) No suit, action or other proceeding, judicial or
administrative,
lawfully commenced, or which could have been commenced, by or
against
any state agency mentioned in this act, or by or against any
officer of the
state in such officer's official capacity or in relation to the
discharge of
such officer's official duties, shall abate by reason of the
governmental
reorganization effected under the provisions of this act. The court
may
Ch. 160 1997 Session Laws of Kansas 1113
allow any such suit, action or other proceeding to be maintained
by or
against the successor of any such state agency or any officer
affected.
(c) No criminal action commenced or which could have been
com-
menced by the state shall abate by the taking effect of this
act.
New Sec. 7. On and after September 1, 1997:
(a) The balance of all funds appropriated and reappropriated to
the
Kansas state grain inspection department concerning public
warehouses
is hereby transferred to the department of agriculture and shall be
used
only for the purpose for which the appropriation was originally
made.
(b) The liability for all accrued compensation or salaries of
officers
and employees who, immediately prior to such date, were engaged in
the
performance of powers, duties or functions of the Kansas state
grain in-
spection department concerning public warehouses, or who become
a
part of the department of agriculture, or the powers, duties and
functions
of which are transferred to the department of agriculture, shall be
as-
sumed and paid by the department of agriculture.
New Sec. 8. (a) On and after September 1, 1997, the department
of
agriculture shall succeed to whatever right, title or interest the
Kansas
state grain inspection department has acquired in any property in
this
state concerning grain inspection, including equipment and supplies
from
the protein laboratories and inspection laboratories. The director
of Kan-
sas correctional industries, or the director's designee, pursuant
to the
director's duties as operator of the state surplus property
program, shall
place a fair market value on such property. Upon receipt of such
fair
market value, the secretary shall offer for sale, at the fair
market value,
all property acquired in such transfer in a single lot to the
entity that has
been designated by the grain inspection, packers and stockyards
admin-
istration as the official agency pursuant to the United States
grain stan-
dards act. If such designated agency declines to purchase such
property,
the secretary shall offer for sale such property to the general
public. All
revenue received pursuant to such sale shall be deposited in the
state
treasury and credited to the grain inspection fee fund.
(b) On September 1, 1997, the grain inspection fee fund and
all
records of the grain inspection fee fund are hereby transferred to
the
secretary of agriculture for the purposes of this section.
(c) On and after September 1, 1997, all expenditures from the
grain
inspection fee fund shall be made in accordance with appropriation
acts
upon warrants of the director of accounts and reports issued
pursuant to
vouchers approved by the secretary of agriculture or the
secretary's des-
ignee. On and after September 1, 1997, the secretary of agriculture
shall
pay all outstanding liabilities of the grain inspection fee fund as
evidenced
by encumbrances of moneys credited to the grain inspection fee
fund.
After such payment of all outstanding liabilities of the grain
inspection
fee fund, the secretary of agriculture shall transfer the amount of
money
1114 1997 Session Laws of Kansas Ch. 160
equal to the amount of money credited to the grain inspection
fee fund
on December 1, 1993, from the grain inspection fee fund to the
ware-
house fee fund, created in K.S.A. 34-101, and amendments thereto.
The
remaining moneys credited to the grain inspection fee fund shall be
main-
tained in such fund. Such moneys shall be expended only if
necessary to
reestablish or designate a state agency pursuant to statute to
perform the
duties and functions of grain inspection. On or before the 10th of
each
month, the director of accounts and reports shall transfer from the
state
general fund to the warehouse fee fund interest earnings based
on:
(1) The average daily balance of moneys in the grain inspection
fee
fund for the preceding month; and
(2) the net earnings rate of the pooled money investment
portfolio
for the preceding month.
(d) The secretary may maintain the leases of the grain
inspection
department until October 1, 1997.
New Sec. 9. On and after July 1, 1997, the secretary of
agriculture
may adopt rules and regulations necessary for the administration
and
enforcement of the provisions of this act, and amendments
thereto.
Sec. 10. On and after July 1, 1997, K.S.A. 34-101 is hereby
amended
to read as follows: 34-101. (a) A state department of
record to be desig-
nated as the Kansas state grain inspection department is hereby
estab-
lished. Such department shall have exclusive control of the
official sam-
pling, inspection, grading, weighing and protein analysis and
the
certification of grades, weights, and protein content of all grain
at all
places where inspection stations are now or may hereafter be
established.
The certificates issued by the department shall be conclusive
evidence to
all parties interested and shall form the basis of all settlements
between
the buyer and seller, unless an appeal is taken therefrom, in the
manner
provided by law, and all freight charges shall be based on the
official state
weights.
(b) The department of agriculture shall
have supervision and regu-
lation of all warehouses operated under the Kansas public warehouse
laws
relating to storage of grain. Such department is authorized
and empow-
ered by and with the consent of the governor to establish, maintain
and
operate inspection stations covering all or any part of its service
at great
railway terminals and points where organized grain markets are
regularly
maintained, and at other points where operating costs are
guaranteed by
special arrangements with the industries served, or the managing
officers
in charge. Where great railroad terminals lie partly within the
state of
Kansas and partly in an adjoining state and a larger part of the
depart-
ment's service at such terminal is for the account of firms having
offices
in such adjoining state, it shall be lawful for the department to
maintain
and operate an inspection station covering part or all of its
services in
such adjoining state. No sampling or weighing of grain shall be
done by
Ch. 160 1997 Session Laws of Kansas 1115
the department outside of the state of Kansas, except as
provided in
K.S.A. 34-101d, and amendments thereto. Such stations shall be
located
as conveniently to the interest served as practicable. The owner
may di-
rect that such owner's grain may not be inspected by writing or
stamping
upon the bill of lading thereof, ``no inspection desired'' or words
to that
effect.
(c) (b) The department of
agriculture shall have the authority to co-
operate with any private entity or organization or local,
state or national
organization or agency, whether voluntary or created by the law of
any
state, or by national law, engaged in work or activities similar to
the work
and activities of the department, and to enter into contracts and
agree-
ments with such entities, organizations or agencies for
carrying on a joint
campaign of development, education and publicity.
(d) (c) No provision of this section
shall be construed to prohibit or
prevent either the secretary of the state
board of agriculture or the state or any authorized
representatives from
sealer or any of their respective
inspecting any weighing or measuring device or otherwise performing
any
of their the secretary's duties pursuant to
any provision of chapter 83 of
Kansas Statutes Annotated, and amendments thereto.
(d) (1) There is hereby created the warehouse fee fund in the
state
treasury. The secretary shall remit all moneys received by or for
the sec-
retary from fees, charges or penalties to the state treasurer at
least
monthly. Upon receipt of any such remittance the state treasurer
shall
deposit the entire amount thereof in the state treasury and
credited to the
warehouse fee fund. All expenditures from such fund shall be made
in
accordance with appropriation acts upon warrants of the director of
ac-
counts and reports issued pursuant to vouchers approved by the
secretary
or by a person or persons designated by the secretary.
(2) On or before the 10th of each month, the director of
accounts and
reports shall transfer from the state general fund to the warehouse
fee
fund interest earnings based on:
(A) The average daily balance of moneys in the warehouse fee
fund
for the preceding month; and
(B) the net earnings rate of the pooled money investment
portfolio for
the preceding month.
Sec. 11. On and after September 1, 1997, K.S.A. 1996 Supp.
34-101b
is hereby amended to read as follows: 34-101b. (a) The
director of the secretary
of agriculture is
Kansas state grain inspection department, with the approval of the
state
grain advisory commission and the governor,
authorized and empowered to enter into contracts and agreements
nec-
essary to cooperate with the commodity credit corporation, a public
cor-
poration organized under the laws of the United States or other
federal
agencies to make uniform the procedures followed in examining
state
licensed public grain warehouses and to make available to the
commodity
1116 1997 Session Laws of Kansas Ch. 160
credit corporation or other federal agencies the information
acquired un-
der such examining procedures by state warehouse examiners.
(b) The director of the Kansas state grain inspection
department sec-
retary of agriculture is authorized and empowered to enter into
contracts
and agreements necessary to cooperate with governmental agencies
of
this state, other states, agencies of the federal government and
private
associations in order to carry out the purpose and provisions of
this chap-
ter and the United States warehouse act, 7 U.S.C.A., section 241,
et seq.
Notwithstanding any other provisions of this chapter, such
agreements
may relate to a joint program for licensing,
and bonding and inspecting. Such a program may be designed to avoid
duplication of effort
stations
on the part of the licensing authority and requirements for
operation, and
promote more efficient enforcement of the provisions of this
chapter and
comparable provisions of the laws of the states of Nebraska,
Colorado,
Missouri and Oklahoma.
Sec. 12. On and after September 1, 1997, K.S.A. 34-101c is
hereby
amended to read as follows: 34-101c. Such
Any contracts entered into
pursuant to K.S.A. 34-101b, and amendments thereto, may provide
for
reimbursement to the state grain inspection
department of agriculture by
the commodity credit corporation for such services so performed
and
furnished, and any money received pursuant to the terms of such
con-
tracts shall be deposited in the grain inspection
fee warehouse fee fund.
Sec. 13. On and after September 1, 1997, K.S.A. 34-102 is
hereby
amended to read as follows: 34-102. (a) The
director secretary shall:
(1) Generally supervise the inspection, sampling,
sampling for in-
spection and weighing of grain, as required by
law;
(2) supervise the handling, inspection, sampling,
sampling for in-
spection, weighing, protein analysis and storage of
grain;
(3) Adopt any rules and regulations necessary
to enforce the laws of
this state relating to inspection, sampling, sampling for
inspection, weigh- storage of grain and management
of public ware-
ing, protein analysis and
houses;
(4) keep proper records of all the inspection, sampling,
sampling for
inspection, protein analysis and weighing done in and out of
warehouses
licensed by law to do business in this state, for which purpose the
director
shall provide books, blanks and other material needed in order to
keep
perfect and proper records;
(5) (2) investigate all complaints of,
and to the extent possible correct
occurrences of, fraud or oppression in the grain trade; and
(6) (3) investigate and, at the
director's secretary's discretion,
monitor
a grain handling facility when the director
secretary believes it is operating
as a public grain warehouse without a valid federal or state
warehouse
license.
Ch. 160 1997 Session Laws of Kansas 1117
(b) No person or entity shall have charge of weighing or
issue official
certificates of weight on grain at any point within the state
except:
(1) Private industries for the purpose of making
settlement with their
own customers; and
(2) officials or employees of the Kansas state grain
inspection de-
partment, on the regular form of weight certificates adopted and
ap-
proved by the director.
(c) All scales over which official state weights of
carlots of grain are
taken shall be equipped with type-registering beams or electronic
print-
out tape, in order that an original punched scale ticket may be
taken of
each draft weighed. The original punched scale ticket shall become
the
property of the Kansas state grain inspection department, and shall
be
filed as a record of the weight.
(d) No person or entity shall install or continue to
maintain at any
elevator, mill or warehouse where official state weights are given
any
blower, suction fan, cleaner or other device for the purpose of
removing
dirt, seeds, sticks, chaff or similar substances from grain
unloaded into
the elevator, mill or warehouse before the grain has been
officially
weighed.
(e) No person shall in any manner change or alter an
official state
inspection or weight certificate after it has been
issued.
(f) If an official state weight certificate has been
issued on any lot of
grain, the purchaser must make settlement on the basis of the
amount of
grain shown on that weight certificate.
(g) Violation of any provision of this section
is a class B misdemeanor.
(h) (c) No provision of this section
shall be construed to prohibit or
prevent either the secretary of the state board of
agriculture or the state the secretary's
authorized representatives
sealer or any of their respective
from inspecting any weighing or measuring device or otherwise
perform-
ing any of their the secretary's duties
pursuant to any provision of chapter
83 of Kansas Statutes Annotated, and amendments thereto.
Sec. 14. On and after September 1, 1997, K.S.A. 34-111 is
hereby
amended to read as follows: 34-111. (a) The attorney
general of the state
of Kansas shall be attorney ex officio for the director and shall
give the
director such counsel and advice as the director requires. The
attorney
general shall institute and prosecute all suits which the director
deems
expedient and proper to institute and shall render to the director
all coun-
sel, advice and assistance necessary to carry out the provisions of
this act.
(b) The director
secretary shall have the duty to report in writing to
the attorney general and to the county or district attorney of the
county
where the grain warehouse is located:
(1) Any finding by an examiner of the department that there is
a
substantial shortage in the amount of grain in a grain warehouse
and that
the shortage is not adequately accounted for; and
1118 1997 Session Laws of Kansas Ch. 160
(2) any complaint which is referred to the
director secretary pursuant
to K.S.A. 34-124 34-121 and amendments
thereto and which the directorsecretary
reasonably believes is a basis for prosecution.
(c) (b) In any criminal prosecution
against a warehouseman for a vi-
olation of any provision of this act, it shall be the duty of the
attorney
general to prosecute the suit to a final determination. Upon
request by
the attorney general, the county or district attorney of the county
or dis-
trict where the suit is being prosecuted shall assist the attorney
general
in the prosecution.
Sec. 15. On and after September 1, 1997, K.S.A. 1996 Supp.
34-125
is hereby amended to read as follows: 34-125. (a) The
commission sec-
retary, prior to June 1 each year, shall determine a schedule
of maximum
and minimum charges to be made by public grain warehouses,
licensed
under the laws of the state of Kansas, for the storage of grain and
for such
other and extraordinary services performed or to be performed by
such
licensed public grain warehousemen during the ensuing license
year.
Such charges made by such warehouse shall be filed with the
Kansas grain department of agriculture and such
warehouse shall not be
inspection
required to refile such charges unless such warehouse is changing
such
charges that are posted or until such time that the charges are
changed
by the commission and the director. Upon determining such
schedule of secretary.
maximum and minimum charges, the commission shall recommend to
the director the adoption of such maximum and minimum charges,
but
the director may increase or decrease any or all of such charges as
the
director shall deem necessary in the public interest. Any or all of
such
maximum or minimum charges, as may be increased or decreased by
the
director, may be restored to the original maximum and minimum
charges
as recommended by the commission, if such restoration is approved
by a
vote of at least four members of such commission at a regular
meeting
or a special meeting called as provided in K.S.A. 34-123, and
amendments
thereto
(b) If any of such charges be changed from those previously in
effect
the director secretary shall notify all
currently licensed public warehouse-
men of such schedule of maximum and minimum charges, except
that in.
case the commission overrides increases or decreases in such
schedule by
the director and restores the original maximum and minimum charges
as
determined by the commission, then the director shall notify all
currently
licensed public warehousemen of such restored schedule of
maximum
and minimum charges within five days after the action of the
commission
restoring the original schedule
Sec. 16. On and after September 1, 1997, K.S.A. 34-223 is
hereby
amended to read as follows: 34-223. In this act, unless the
context or
subject matter otherwise requires, the following words and phrases
have
Ch. 160 1997 Session Laws of Kansas 1119
the meanings ascribed thereto in this section.
As used in chapter 34 of
Kansas Statutes Annotated, and amendments thereto:
(a) ``Action'' includes counterclaim, setoff and suit in
equity.
(b) ``Delivery'' means voluntary transfer of possessions from
one per-
son to another.
(c) ``Fungible grain'' means grain of which any unit is, from
its nature
or by mercantile custom, treated as the equivalent of any other
unit.
(d) ``Grain'' means wheat, corn, oats, barley, rye, soybeans,
grain sor-
ghums and any grains upon which federal grain standards are
established,
also seeds generally stored by warehouses, if special permission is
granted
by the director secretary.
(e) ``Holder of a receipt'' means a person who has both actual
pos-
session of such receipt and a right of property therein.
(f) ``Order'' means an order by endorsement of the
receipt.
(g) ``Owner'' does not include mortgagee or pledgee.
(h) ``Person'' includes individuals, corporations, partnerships
and all
associations of two or more persons having a joint or common
interest.
(i) ``To purchase'' includes to take as mortgagee or
pledgee.
(j) ``Receipt'' means a warehouse receipt or receipts.
(k) ``Value'' means any consideration sufficient to support a
simple
contract and includes an antecedent or preexisting obligation,
whether
for money or not, where a receipt is taken either in satisfaction
thereof
or as security therefor.
(l) ``Public warehouseman'' means a person lawfully engaged in
the
business of storing grain for the public.
(m) ``Public warehouse'' or ``public grain warehouse'' means
every
elevator or other building in which grain is received for storage
or transfer
for the public.
(n) ``Secretary'' means the secretary of
agriculture.
(o) ``Department'' means the department of
agriculture.
(p) ``Grain bank grain'' means any grain that has been
received into
any public warehouse to be held for the account of the depositor
and
returned to the depositor at a later date either as whole or
processed grain.
(q) ``Storage grain'' or ``stored grain'' means grain that
has been re-
ceived in any public warehouse located in this state, and such
grain is not
purchased by the lessee, owner or manager of such
warehouse.
Sec. 17. On and after September 1, 1997, K.S.A. 34-227b is
hereby
amended to read as follows: 34-227b. Grain bank grain shall be
consid-
ered as storage grain as defined in K.S.A. 34-227
and shall be subject to
the laws and rules and regulations pertaining thereto until
such time as
said such grain is either processed or
removed from the warehouse. The
director secretary is authorized to adopt
and enforce reasonable rules and
regulations necessary in the conduct of grain bank operations in
public
warehouses.
1120 1997 Session Laws of Kansas Ch. 160
Sec. 18. On and after September 1, 1997, K.S.A. 1996 Supp.
34-228
is hereby amended to read as follows: 34-228. (a) Any person
desiring to
engage in business as a public warehouseman in this state shall,
before
the transaction of any such business, make written application to
the di-
secretary for a
rector of the Kansas state grain inspection department
license for each separate warehouse (or, if the applicant owns more
than
one warehouse at one point, all of such warehouses may be
incorporated
in one application) at which the person desires to engage in such
business.
The application for a license shall be on a form designated by the
directorsecretary and shall contain the
individual name and address of each per-
son interested as principal in the business (and, if the business
is operated
or to be operated by a corporation, setting forth the names of the
presi-
dent and secretary) and such further information as the
director secretary
may require.
(b) (1) Every application for a public warehouse license shall
be ac-
companied by a current financial statement. The statement shall
include
such information as required by the director
secretary to administer and
enforce the public warehouse laws of this state, including but not
limited
to a current balance sheet, statement of income (profit and loss),
state-
ment of retained earnings and statement of changes in financial
position.
The applicant shall certify under oath that the statement as
prepared
accurately reflects the financial condition of the applicant as of
the date
specified and presents fairly the results of operations of the
applicant's
public warehouse business for the period specified. The financial
state-
ment shall be prepared in accordance with generally accepted
accounting
principles and shall be accompanied by: (A) A report of audit or
review
conducted by an independent certified public accountant or an
inde-
pendent public accountant in accordance with standards established
by
the American institute of certified public accountants and the
account-
ant's certifications, assurances, opinions, comments and notes with
re-
spect to the statement; or (B) a compilation report of the
financial state-
ment, prepared by a grain commission firm or management firm
which
is authorized pursuant to rules and regulations of the federal
commodity
credit corporation to provide compilation reports of financial
statements
of warehousemen.
(2) The director secretary, upon request
of an applicant, may grant
a waiver of the requirements of this subsection for a period of not
more
than 30 days if the applicant furnishes evidence of good and
substantial
reasons for the waiver.
(c) (1) Every applicant for a license to operate one or more
public
warehouses and every person licensed to operate one or more
warehouses
shall at all times maintain total net worth liable for the payment
of any
indebtedness arising from the conduct of the warehouse or
warehouses
equal to at least $.25 per bushel of the storage capacity of the
warehouse
or warehouses except: (A) No person shall be granted a license or
shall
Ch. 160 1997 Session Laws of Kansas 1121
continue to be licensed unless the person has a net worth of at
least
$25,000 and (B) any deficiency in net worth required above the
$25,000
minimum may be supplied by an increase in the amount of the
applicant's
or licensee's bond as provided by K.S.A. 34-229 and amendments
thereto.
(2) In determining total net worth: (A) Credit may be given for
in-
surable property such as buildings, machinery, equipment and
merchan-
dise inventory only to the extent that the property is protected by
insur-
ance against loss or damage by fire and (B) capital stock, as such,
shall
not be considered a liability.
(d) No license shall be issued to a person or entity not
previously
licensed in this state and making application for an original
license who,
in this state or any other jurisdiction, within the 10 years
immediately
prior to the date of the application of the person or entity for a
license,
has been convicted of or has pleaded guilty or nolo
contendere to any
crime which would constitute:
(1) Embezzlement;
(2) any felony defined in any statute contained in article 37 of
chapter
21 of the Kansas Statutes Annotated and amendments thereto;
(3) unauthorized delivery of stored goods;
(4) any felony defined in any statute contained in chapter 34 of
the
Kansas Statutes Annotated and amendments thereto; or
(5) a violation of the United States warehouse act (7 U.S.C. 241
et
seq.).
(e) The director secretary may
investigate any applicant making ap-
plication for an original license for the purpose of determining if
such
person would be qualified to receive such license under the
provisions of
this section.
(f) (1) Every application for a public warehouse license shall
be ac-
companied by a license fee which shall be determined and fixed by
the
director secretary by rules and
regulations. Prior to determining and fix- The license fee
shall not be more
ing the license fees, the director shall consider recommendations
thereon
by the state grain advisory commission.
than the applicable amount shown in the following fee schedule plus
not
more than $500 for each functional unit:
Capacity in Bushels ANNUAL FEE
Not more
than
1 to 100,000........................................................... $500
100,001 to 150,000..................................................... 525
150,001 to 250,000..................................................... 550
250,001 to 300,000..................................................... 600
300,001 to 350,000..................................................... 625
350,001 to 400,000..................................................... 650
400,001 to 450,000..................................................... 700
450,001 to 500,000..................................................... 725
500,001 to 600,000..................................................... 775
1122 1997 Session Laws of Kansas Ch. 160
600,001 to 700,000..................................................... 800 700,001 to 800,000..................................................... 850 800,001 to 900,000..................................................... 875 900,001 to 1,000,000................................................... 900 1,000,001 to 1,750,000................................................. 1,225 1,750,001 to 2,500,000................................................. 1,400 2,500,001 to 5,000,000................................................. 1,750 5,000,001 to 7,500,000................................................. 2,100 7,500,001 to 10,000,000................................................ 2,375 10,000,001 to 12,500,000............................................... 2,600 12,500,001 to 15,000,000............................................... 2,800 15,000,001 to 17,500,000............................................... 3,000 17,500,001 to 20,000,000............................................... 3,225 For each 2,500,000 bushels or fraction over 20,000,000 bushels......... 350
(2) Whenever a licensed warehouseman purchases or acquires
addi-
tional facilities, the warehouseman, if otherwise qualified, may
acquire a
license for the remainder of an unexpired license period by paying
to the
director secretary a license fee computed
as follows: If the unexpired
license period is nine months or more, the annual fee; if the
unexpired
license period is more than six months and less than nine months,
75%
of the annual fee; if the unexpired license period is more than
three
months and not more than six months, 50% of the annual fee; and if
the
unexpired license period is three months or less than three months,
25%
of the annual fee.
(3) In addition to any other applicable fee, the
director secretary shall
charge and collect a fee each time a public warehouse license is
amended
in an amount of not more than $300 which shall be determined and
fixed
by the director secretary by rules and
regulations.
(4) Nothing in this subsection shall be construed to authorize a
refund
for any unused portion of an issued license.
(g) The director secretary shall examine
each warehouse operated by
a licensed public warehouseman at least once in each 12-month
period.
The licensed public warehouseman may request additional
examinations
of any warehouse operated by the warehouseman. The cost of
additional
examinations when requested by the warehouseman shall be charged
to
the warehouseman requesting the examination. The cost of each
addi-
tional examination requested by a warehouseman shall be an
amount
determined therefor in accordance with an hourly rate fixed by the
di- secretary of not more than $50 per hour,
subject to a minimum
rector
charge of four hours for the examination, plus amounts for
subsistence
expense at the rate fixed under K.S.A. 75-3207a and amendments
thereto
and for mileage expense in accordance with the schedule of charges
es-
tablished under K.S.A. 75-4607 and amendments thereto. The
directorsecretary, at the
director's secretary's discretion, may make
additional
examinations of a warehouse and if a discrepancy is found on that
ex-
amination, or if one was found on the last previous examination,
the cost
of the examination shall be paid by the warehouseman.
Ch. 160 1997 Session Laws of Kansas 1123
(h) When the director secretary
authorizes a grain handling facility
to be physically monitored, pursuant to paragraph
(6) of subsection (a)
(3) of K.S.A. 34-102, and amendments thereto, the cost and
expenses of
the monitoring shall be paid by the owner of the facility at the
same rates
fixed in subsection (g).
(i) As used in this section, ``functional unit'' means a public
warehouse
which has the capacity to store, weigh in and weigh out grain. Any
outlying
storage facility which is not a functional unit shall have its
storage capacity
included as part of the combined capacity of the warehouseman's
nearest
functional unit.
Sec. 19. On and after September 1, 1997, K.S.A. 34-229 is
hereby
amended to read as follows: 34-229. (a) Every applicant for a
public ware-
house license shall promptly, upon notification by the
director secretary
of the amount of bond required, file with the
director secretary a bond
with good corporate surety qualified under the laws of the state of
Kansas.
The amount of the bond to be furnished for each warehouse shall be
$.20
per bushel for the first 1,000,000 bushels of licensed capacity;
$.15 per
bushel for the next 1,000,000 of licensed capacity; and $.10 per
bushel
for all licensed capacity over 2,000,000 bushels. Except as
provided fur-
ther, in no event shall the bond be for an amount less than $10,000
nor
more than $500,000.
(b) If an applicant for a license or a licensee at any time does
not
have the total net worth required by K.S.A. 34-228 and
amendments
thereto, an amount equal to the deficiency shall be added to the
amount
of the bond required by subsection (a).
(c) The bond shall be in favor of the state of Kansas for the
benefit
of all persons interested, their legal representatives, attorneys
or assigns
and shall be conditioned on the faithful performance of all the
licensee's
duties as a public warehouseman and such additional obligations as
as-
sumed by the warehouseman under contracts with a federal agency
re-
lating to storage of grain in each warehouse. Any person injured by
the
breach of any obligation of the warehouseman may commence suit
on
the bond in any court of competent jurisdiction to recover damages
that
the person has sustained, but any suit commenced shall either be a
class
action or shall join as parties plaintiff or parties defendant or
other persons
who may be affected by such suit on the bond. No bond shall be
canceled
by the surety on less than 60 days' notice by mail to the
director secretary
and the principal except that no such notice shall be required for
can-
cellation of any bond by reason of nonpayment of the premium
thereon.
The liability of the surety on the bond may continue for each
successive
license period the bond covers. The total liability of the surety
shall be
limited to the amount stated on the current bond or on an
appropriate
rider or endorsement to the current bond. It is the intent of this
statute
1124 1997 Session Laws of Kansas Ch. 160
that the bonds be nonaccumulative, that stacking of bonds not
occur in
excess of the face value of the current bond.
(d) If a person applies for licenses for two or more separate
public
warehouses in this state, the person may give a single bond
covering all
the applications, and the amount of the bond shall be the total
amounts
which would be required for the applications if separate bonds
were
given. In computing the amount of the single bond the
warehouseman
may add together the capacity of all warehouses to be covered by
the
bond and use the aggregate capacity for the purpose of computing
the
bond. If a warehouseman elects to provide a single bond for a
number
of warehouses, the total assets of all the warehouses shall be
subject to
liabilities of each individual warehouse.
(e) Whenever the director determines that any bond given by
any
warehouseman is inadequate and insufficient security against any
loss that
might arise under the terms of the bond, the
director secretary shall
require any additional bond that the director
secretary considers neces-
sary to provide adequate security. If the director
secretary considers the
financial condition of the surety upon any warehouseman and the
ware-
houseman's bond to be impaired, the director
secretary shall require any
substituted or additional bond that the director
secretary considers nec-
essary.
(f) In all actions hereafter commenced in which judgment is
rendered
against any surety company on any surety bond furnished under the
pro-
visions of this section, if it appears from the evidence that the
surety
company has refused without just cause to pay the loss upon
demand,
the court shall allow the plaintiff a reasonable sum as attorney
fees to be
recovered and collected as a part of the costs. When a tender is
made by
the surety company before the commencement of the action in
which
judgment is rendered and the amount recovered is not in excess of
the
tender, no such costs shall be allowed.
(g) Each licensed public warehouseman shall obtain a certificate
set-
ting forth the amount and terms of the bond filed with the
director sec-
retary pursuant to this section, the name of the corporate
surety therefor
and such other information as the director
secretary may prescribe by
rules and regulations. The certificate of bond information shall be
posted
in a conspicuous place in the office room of the licensed
warehouse,
adjacent to the license posted as required by K.S.A. 34-230 and
amend-
ments thereto, at all times during the operation of the
warehouse.
(h) Transaction of any public warehouse business at any public
ware-
house without having the certificate of bond information displayed
in the
office room of the public warehouse as required by this section is
a class
C nonperson misdemeanor.
Sec. 20. On and after September 1, 1997, K.S.A. 34-230 is
hereby
amended to read as follows: 34-230. (a) Upon receiving the
application
Ch. 160 1997 Session Laws of Kansas 1125
and financial statement required by this act, the
director of the state grain secretary shall make an
investigation and inspec-
inspection department
tion of the warehouse or warehouses covered by the application.
The
director secretary may issue a license to
the applicant if:
(1) The applicant furnishes the bond required by this
act;
(2) the warehouse or warehouses are found suitable for the
proper
storage of grain for which a license is applied for; and
(3) the applicant complies with all requirements for licensure
pre-
scribed by this act and rules and regulations adopted under this
act.
(b) Every license shall be dated and shall designate the name of
the
licensee and the location of the licensed warehouse or
warehouses.
(c) Each license shall expire one year from the date of its
issuance
except that, for the purpose of equitably distributing application
dates of
warehouse licenses throughout each calendar year, the
director secretary
may issue licenses for periods longer than one year but not longer
than
two years. Licenses for periods longer than one year shall be
charged the
annual license fee, plus a monthly fee in proportion to the annual
license
fee for the number of months the license is issued beyond one
year.
(d) Any licensee making application for renewal of a license
shall
submit the application, together with the licensee's financial
statement
and any additional information required, at least 30 days prior to
the date
of expiration of the licensee's current license. For each day that
the li-
censee is late in submitting the application and required
information, the
licensee shall be penalized an additional fee of $5.
(e) The license shall be posted in a conspicuous place in the
office
room of the licensed warehouse at all times during the operation of
the
warehouse.
(f) If a licensee is convicted of any violation of the
provisions of this
act or if the director secretary determines
that a licensee does not comply
with any requirement for licensure or has violated any provision of
this
act or of the rules and regulations adopted under this act, the
directorsecretary may at the
director's secretary's discretion suspend
or revoke
the license of the licensee. All proceedings for the suspension or
revo-
cation of licenses shall be conducted in accordance with the
provisions of
the Kansas administrative procedure act.
(g) The licensee, if dissatisfied with the order of the
director secre-
tary, may appeal in the manner provided by law.
Sec. 21. On and after September 1, 1997, K.S.A. 34-230a is
hereby
amended to read as follows: 34-230a. The director
secretary shall have
power in the conduct of any hearing authorized to be held by
him or herthe secretary to examine, or
cause to be examined, under oath, any per-
son, and to examine or cause to be examined, books and records of
any
licensee; to hear testimony and take proof material for his
or her the
secretary's information in the discharge of such duties under
this act; to
1126 1997 Session Laws of Kansas Ch. 160
administer or cause to be administered oaths; and for any such
purposes
to issue subpoenas, to require the attendance of witnesses and the
pro-
duction of books which shall be effective in any part of this
state; and.
Any district court, or any judge thereof, either in term time or in
vacation,
may by order duly entered, require the attendance of witnesses and
the
production of relevant books and records subpoenaed by the
director, secretary. The court or judge may compel
obedience to
andits or his or the court's or judge's order by proceedings for
contempt.
her
Sec. 22. On and after September 1, 1997, K.S.A. 34-230b is
hereby
amended to read as follows: 34-230b. The director
secretary may enjoin
a warehouseman from violating or continuing to violate the
provisions of
chapter 34 of the Kansas Statutes Annotated, and acts
amendatory thereof amendments thereto, and the rules
and regulations
or supplemental
adopted by the director secretary pursuant
to said such laws by filing
injunction proceedings in the district court
and. In any such proceedings
the district court, if it deems it proper, may order such
warehouseman to
not receive any more grain into such warehouse or to deliver any
grain
therefrom except as the court by its order shall direct. Such
injunction
proceeding shall be prosecuted by the attorney general or the
county
attorney of the proper county upon request of the
director secretary.
Sec. 23. On and after September 1, 1997, K.S.A. 34-231 is
hereby
amended to read as follows: 34-231. (a) Transaction of any public
ware-
house business at any public warehouse without a currently valid
public
warehouse license for that warehouse or without having the license
dis-
played in the office room of the warehouse is a class C
misdemeanor.
(b) The director secretary may refuse to
renew any license or grant
a new one to any person whose license has been revoked within one
year
from the time of the revocation.
Sec. 24. On and after September 1, 1997, K.S.A. 34-233 is
hereby
amended to read as follows: 34-233. (a) Every public warehouseman
shall
receive for storage or shipment, so far as the available capacity
of the
warehouse shall permit, all grain in a suitable condition for
storage ten-
dered to the warehouseman in the usual course of business, without
dis-
crimination of any kind. A representative sample of grain offered
for stor-
age shall be taken and agreed upon both by the owner and the
warehouseman as being a true and representative sample of the lot
of
grain offered for storage.
(b) If the owner of the grain and the warehouseman agree as to
the
grade, the grain may be stored and warehouse receipt issued on
the
agreed grade, but either party shall have an official inspection if
such
party so elects at the time of storing the grain by submitting an
agreed
sample to an inspector designated by the director
secretary. The fees for
the inspection of such sample shall be paid by the warehouseman
and
added to the storage charges of the grain.
Ch. 160 1997 Session Laws of Kansas 1127
(c) All grain taken into a public warehouse shall be carefully
weighed
by the warehouseman or one of the warehouseman's employees and
a
certificate of weight in the form approved by the
director secretary shall
be issued and the weight so shown by the certificate shall be
stated on
the warehouse receipt. When grain is delivered out of storage at a
public
warehouse and if either of the parties to the transaction requests
or if any
dispute or disagreement arises between the party receiving and the
party
delivering the grain, the same method of determining the grade
shall be
used as prescribed for taking grain into storage. Any warehouseman
de-
siring to issue warehouse receipts against the warehouseman's own
grain
in store may do so by complying with the regulations governing the
meth-
ods of taking samples of grain tendered for storage and the
director sec-
retary may designate the manner in which a sample shall be
taken if grain
is delivered on warehouse receipts at the public
warehouses.
Sec. 25. On and after September 1, 1997, K.S.A. 34-235 is
hereby
amended to read as follows: 34-235. The owner, operator or manager
of
any public warehouse before being licensed under the laws of this
state
to conduct a grain warehouse shall file with the
director secretary a sched-
ule of charges to be made by such owner, operator or manager for
storage
of grain if licensed. The director
secretary shall have authority to deter-
mine whether such schedule of charges is reasonable and proper, but
in
no case shall such schedule of charges filed by a local public
warehouse
be less than the schedule of minimum charges or exceed the schedule
of
maximum charges as established by the commission and the
director sec-
retary pursuant to the provisions of K.S.A. 34-125, and
amendments
thereto.
The amount to be charged for storage of grain as listed on the
ware-
houseman's schedule of charges filed with the
director secretary as her-
einabove provided shall include the cost of receiving, unloading,
loading,
insuring, handling (except extraordinary handling), storage and
delivery
of grain and no additional or special charge shall be made for any
such
services. Any licensee may change such licensee's schedule of
charges by
sending the proposed new schedule to the director
secretary in writing
and shall state the reasons therefor. It shall be unlawful for any
public
warehouseman to assess any charge other than those charges listed
in
such warehouseman's schedule of charges as filed with the
director sec-
retary. Every public warehouseman shall keep posted and exposed
at a
conspicuous place on the premises of such public warehouse, which
place
shall be accessible to the public, a copy of such warehouseman's
current
approved schedule of charges.
Sec. 26. On and after September 1, 1997, K.S.A. 34-236 is
hereby
amended to read as follows: 34-236. (a) Every public
warehouseman shall
at all times keep the grain stored in such warehouseman's
warehouse
insured in some reliable insurance company authorized to do
business in
1128 1997 Session Laws of Kansas Ch. 160
the state of Kansas. Such grain is to be insured for its full
market value,
less the deductible amount provided herein, against loss by fire,
internal
explosion, lightning, and tornado and failure to do so shall make
the public
warehouseman liable for the same on such warehouseman's bond for
the
benefit of the owner or owners and the owners of warehouse receipts
and
storage receipts issued by any public warehouse shall have a first
lien, to
the extent of the value of the grain at the time of destruction at
the place
where stored, on all such insurance for any loss or injury
sustained by
them on account of the destruction or injury of such grain by fire,
internal
explosion, lightning or tornado or any other cause covered by such
insur-
ance policy.
(b) Fraud or criminal act of the warehouseman to which
the holder
of a warehouse receipt or other interested person is not a party
shall not
deprive the holder of a warehouse receipt or storage receipt or
other
interested person of such person's right of recovery under such
policy of
insurance. Nothing in this act shall be construed to require the
insurer
to pay any loss or damage in excess of the amount of insurance
effective
under its policy or to pay for any loss or damage not insured
against by
its policy. In case of a fire, lightning or tornado, which shall
destroy all or
part of the grain stored in any public warehouse, the public
warehouse-
man shall, upon demand by the owner of the grain, or holder of
any
warehouse receipt, or receipts, for such grain, and upon being
presented
with the warehouse receipt, or receipts, make settlement for the
value of
the grain covered by the warehouse receipt, or receipts, after
deducting
the warehouse charges, at the market value of same, basing said
value at
the average price paid for grain of the same grade at the station
where
the public warehouse is located on the date of the destruction.
Without
in any way limiting the warehouseman's liability under this
section, the
warehouseman may carry a standard form of insurance policy
approved
for grain warehousemen with a total deductible provision on the
contents
not to exceed $10,000, except that the director
secretary upon a finding
that it is necessary to protect the public may order that a
warehouseman's
total deductible provision be an amount less than $10,000 as
specified by
the director secretary.
Sec. 27. On and after September 1, 1997, K.S.A. 34-238 is
hereby
amended to read as follows: 34-238. (a) Warehouse receipts may be
issued
by any licensed public warehouseman and must be issued in the
manner
and form prescribed by this act.
(b) The form of all receipts shall be approved by the
director of the secretary. All of
the expense incurred
state grain inspection department
shall be paid by the state grain inspection
department. The director sec-
retary shall distribute the warehouse receipts to licensed
public ware-
houses at cost.
Ch. 160 1997 Session Laws of Kansas 1129
(c) All warehouse receipts shall be written upon warehouse
receipt
forms furnished by the state grain inspection
department.
Sec. 28. On and after September 1, 1997, K.S.A. 34-241a is
hereby
amended to read as follows: 34-241a. (a) ``Identity
preserved grain'' means
grain which is segregated from all other grain by mutual consent of
the
warehouseman and the depositor. The form of receipt to cover
identity
preserved grain taken for storage by public warehouses and to be
trans-
ported to, and stored in, another licensed public warehouse shall
be on
a form approved by the director secretary
and shall embody within its
written or printed terms: (a) (1) The date
of the issuance of the receipts;
(b) (2) the name of the elevator issuing
the same and its location; (c) (3)
the rate of storage or the basis for such charges;
(d) (4) the net weight
and percentage of dockage, together with the grade;
(e) (5) the words
``trust receipt'' and ``not negotiable'' clearly and conspicuously
printed or
stamped thereon; (f) (6) the signature of
the warehouseman which may
be made by his authorized agent; (g) (7) a
statement of the amount of
the advances made, or the liabilities incurred, for which the
warehouse
claims a lien. If the precise amount of advances made or
liabilities in-
curred is, at the time of the issuance of the receipt, unknown to
the
warehouseman or to his the warehouseman's
agent who issues it, a state-
ment of the fact that the advances have been made, or liabilities
incurred,
and the purpose thereof, is sufficient.
(b) The warehouseman, at his the
warehouseman's option, may ship
carlots or trucklots of identity preserved grain to another
licensed public
warehouse. The owner of the grain may designate the receiving
licensed
public warehouse if a written contract to that effect has been
entered
into and agreed upon between the owner of the grain and the
warehouse-
man prior to the deposit of the grain. The charges for handling and
stor-
age shall not exceed the current posted public warehouse charges.
In
addition to the public warehouse charges, the warehouseman may
make
an additional charge of one and one-half cents (11/2 cent) per
bushel for risk
and shrinkage in transit and shall also assess the transportation
and all
legal charges against the owner of the grain.
Sec. 29. On and after September 1, 1997, K.S.A. 34-246 is
hereby
amended to read as follows: 34-246. (a) No warehouse receipt shall
be
issued except upon actual delivery of grain into store in the
warehouse
from which it purports to be issued. No receipt or receipts may be
issued
for a greater quantity of grain than was contained in the lot or
parcel so
received for storage and not more than one receipt may be issued
for the
same lot of grain, except in cases where a receipt for a part of a
lot is
desired and then the aggregate receipts for a particular lot shall
cover
that lot and no more.
(b) In cases where a part of the grain represented by a receipt
or
receipts is delivered out of store and a remainder is left, a new
receipt or
1130 1997 Session Laws of Kansas Ch. 160
receipts shall be issued in the form and manner as prescribed by
the
director secretary. It shall be stated on
the face of the new receipt or
receipts that such new receipt or receipts represent the balance of
the
original receipt or receipts. The new receipt or receipts shall
bear thereon
the number or numbers of the original receipt or receipts and the
original
receipt or receipts, upon which a part of the grain has been
delivered,
shall be canceled in the manner as if all of the grain has been
delivered.
In case it is desirable to divide one receipt into two or more, or
in case
it is desirable to consolidate two or more receipts into one and
the
warehouseman consents thereto, the original receipt or receipts
shall be
canceled in the same manner as if the grain had been delivered
from
store. The new receipt or receipts shall express on the face
thereof that
such new receipt or receipts represent a part of another receipt or
the
consolidation of other receipts, as the case may be, and the number
and
date of the original receipt or receipts shall also appear on the
new receipt
or receipts issued in lieu thereof. No consolidation of receipts
differing
more than 30 days in date shall be permitted.
(c) All new receipts issued for old ones canceled as provided in
this
section shall bear the notation of the date of the receipt or
receipts as
originally issued. All receipts issued on grain in special bins
shall bear the
number of the bin and the notation ``special bin.'' All divisions
or con-
solidations shall bear the bin number of the original receipt and
the no-
tation ``special bin.'' Upon delivery of grain from store upon any
receipt
issued by a public warehouse, such receipt shall be plainly marked
across
its face ``canceled'' with the date and the name of the person
canceling
the same and thereafter shall be void and shall not again be put in
cir-
culation. No grain shall be delivered twice upon the same
receipt.
Sec. 30. On and after September 1, 1997, K.S.A. 34-249a is
hereby
amended to read as follows: 34-249a. (a) Every public
warehouseman
conducting a public warehouse, upon demand of the director
of the Kan- secretary,
shall furnish such
sas state grain inspection departmentdirectorsecretary,
in such form as may be required, information regarding re-
ceipts issued or canceled, amounts of grain liabilities, amounts of
unen-
cumbered grain and total amounts of grain in the public
warehouse.
(b) The director secretary shall require
from each public warehouse-
man a monthly statement of stocks of grain as of the last day of
the
preceding month for each licensed warehouse location. The
statement
shall contain such information and be in such form as may be
prescribed
by the director secretary and shall include
a statement setting forth the
penalty for making false public warehouse reports as provided in
K.S.A.
21-3754 and amendments thereto. Each such statement shall be
signed
by the licensed public warehouseman.
Sec. 31. On and after September 1, 1997, K.S.A. 34-251 is
hereby
amended to read as follows: 34-251. (a) All persons owning
property, or
Ch. 160 1997 Session Laws of Kansas 1131
who may be interested in the same, in any public warehouse and
all duly
authorized examiners of such property shall be at full liberty to
inspect
and to examine any and all property stored in any public warehouse
in
the state at all times during regular business hours. All proper
facilities
shall be extended to such persons by the public warehouseman and
the
warehouseman's agents and employees for such examinations and
in-
spection. The director secretary shall
inspect, or cause to be inspected
by a duly authorized examiner, every warehouse, the business
thereof and
the mode of conducting the same at such times as the
director secretary
deems necessary. The property, books, records, accounts, papers and
pro-
ceedings kept at such warehouses, so far as they relate to the
operation
or management of public storage, which have reference only to the
quan-
tity, quality and insurance on grain in storage, shall be subject
to exami-
nation and inspection of the director
secretary or the director's
secretary's
duly authorized examiner at all times during regular business
hours. All
scales or weighing or measuring devices used for weighing or
measuring
of property in public warehouses shall be subject to tests by any
duly
authorized inspector or weighmaster or by the secretary of
the state board or the secretary's authorized
representative at any time
of agriculture
when required by any such officer, or by any person or agent
whose
property has been or is to be weighed on such scales.
(b) Any public warehouseman who uses scales for grain weighing
that
have been found on inspection to be inaccurate and that have not
been
pronounced correct and properly sealed shall be liable to be
proceeded
against as hereinafter provided.
(c) No inspector or employee of the state grain
inspection depart-
ment shall disclose any information obtained by such inspector or
em-
ployee in the course of employment which is relative to the affairs
or
transactions of any warehouseman, other than as permitted by this
act,
without first having obtained the express permission in writing of
such
warehouseman or of the director secretary,
except when ordered to do
so by a court of competent jurisdiction. Upon application of any
person,
the director secretary may disclose or
direct any inspector or employee
of the Kansas state grain inspection department to
disclose any infor-
mation which, in the opinion of the director
secretary, the person making
the application is entitled to receive. If any inspector or
employee dis-
closes any such information except as permitted by this act, the
inspector
or employee shall be guilty of a misdemeanor.
Sec. 32. On and after September 1, 1997, K.S.A. 34-257a is
hereby
amended to read as follows: 34-257a. Where a negotiable warehouse
re-
ceipt has been lost or destroyed, the warehouseman shall issue a
new
receipt upon the same terms, subject to the same conditions, and
bearing
on its face the number and the date of the receipt in lieu of which
it is
issued, and a plain and conspicuous statement that it is a
duplicate receipt
1132 1997 Session Laws of Kansas Ch. 160
issued in lieu of a lost or destroyed receipt, upon compliance
by the
claimant with the following conditions: (a) Before
issuing a duplicate re-
ceipt, the warehouseman shall require the claimant therefor to make
and
file with him the warehouseman (1) an
affidavit stating that the applicant
is lawfully entitled to the possession of the original receipt;
that he the
applicant has not negotiated or assigned it; how the original
receipt was
lost or destroyed; and if lost, that diligent effort has been made
to find
the receipt without success, and (2) a bond in the amount double
the
value, at the time the bond is given, of the grain represented by
the lost
or destroyed receipt. Such bond shall be in the form approved by
the
director secretary and shall be conditioned
to indemnify the warehouse-
man or any holder or other person entitled to the grain against all
loss,
liability or expense which he may sustain by reason of the issuance
of such
duplicate receipt. Such bond shall have as surety thereon a
corporate
surety company which is authorized to do business under the laws of
the
state of Kansas and is subject to service of process in this state
in a suit
on the bond.
Sec. 33. On and after September 1, 1997, K.S.A. 34-273 is
hereby
amended to read as follows: 34-273. (a) In case any public
warehouseman
discovers that any grain stored in such warehouseman's warehouse,
other
than in special bins, is out of condition or is becoming so and
that it is
not in such warehouseman's power to preserve the grain, such
ware-
houseman shall immediately give such notice of that fact as is
reasonable
and possible under the circumstances to the owner of such grain or
to
the person in whose name the grain is stored and shall also give
notice
of that fact to the director
secretary.
(b) The director secretary, unless
otherwise requested by the owner
of such grain or the person in whose name the grain is stored,
shall cause
an inspection to be made of the grain. If it is found on such
inspection
that the grain is out of condition, or is becoming so, and the
owner of the
grain fails to promptly remove it, the warehouseman may sell the
grain
upon giving the same public notice of sale as is required by this
act for
the sale of grain to satisfy the lien of a warehouseman, except
that the
grain may be sold at either public or private sale without
advertising if,
in the opinion of the director secretary,
such grain should be sold without
delay and written authority to make sale without advertisement is
given
by the director secretary to the
warehouseman. For the purpose of this
section, the owner of such grain shall be deemed to be the holder
of
warehouse receipts of the oldest dates then in circulation or
uncanceled
and the grain represented by which has not previously been declared
out
of condition.
(c) Nothing herein contained shall be held to relieve any
warehouse-
man from exercising due care and vigilance in preserving any such
grain
after discovery that the same is out of condition, or is becoming
so, but
Ch. 160 1997 Session Laws of Kansas 1133
such grain shall be kept separate and apart from all direct
contact with
other grain and shall not be mixed with other grain while in store
in such
warehouse. Any public warehouseman guilty of any act of neglect
which
has the effect of depreciating property stored in a public
warehouse under
the warehouseman's control, shall be liable on the warehouseman's
bond
therefor to the person damaged thereby. After grain has been sold
as
authorized by this section, the warehouseman shall not be liable
there-
after for the delivery of such grain even though the receipt
therefor is
negotiable, but shall be liable as a trustee for the amount of the
proceeds
of such sale in excess of the amount of any lawful charges for
which the
warehouseman had a lien at the time of such sale.
Sec. 34. On and after September 1, 1997, K.S.A. 34-295a is
hereby
amended to read as follows: 34-295a. (a) Every public
warehouseman
conducting a warehouse under the statutes contained in article 2 of
chap-
ter 34 of the Kansas Statutes Annotated and amendments thereto
shall
keep in a place of safety complete and correct records and accounts
per-
taining to the licensed warehouse including, but not limited
to:
(1) Records and accounts of all commodities received therein
and
withdrawn therefrom;
(2) all unissued receipts and tickets in the public
warehouseman's
possession;
(3) all receipts and tickets issued by the public warehouseman;
and
(4) the receipts and tickets returned and cancelled by the
public
warehouseman.
(b) Such accounts and records shall be sufficient to provide all
infor-
mation required to prepare a current financial statement and other
re-
ports required under subsection (b) of K.S.A. 34-228 and
amendments
thereto and to determine the total net worth of the public
warehouseman
under subsection (c) of that statute K.S.A.
34-228, and amendments
thereto. Such accounts and records may be kept and maintained
on paper
or on computer disks, tapes or other electronically accessed media,
or
any combination thereof, and shall be available for inspection and
review
by the director, assistant director or any other officer of
the Kansas state secretary or an authorized
representative of
grain inspection department
the secretary at all times during business hours. The
capability to provide
a computer printout or other printed version of any such accounts
and
records that are kept and maintained on computer disks, tapes or
other
electronically accessed media shall be maintained to make copies of
such
accounts and records for examination by the director,
assistant director sec-
or any other officer of the Kansas state grain inspection
department
retary or an authorized representative of the
secretary.
(c) Such records and accounts shall be retained by the public
ware-
houseman for such period as may be prescribed by the
director secretary.
Copies of receipts or other documents evidencing ownership of any
com-
1134 1997 Session Laws of Kansas Ch. 160
modity or liability as a warehouseman shall be retained so long
as such
documents are outstanding and any such document which has been
can-
celled shall be retained for a period of not less than six years
from the
date of cancellation.
Sec. 35. On and after September 1, 1997, K.S.A. 34-295b is
hereby
amended to read as follows: 34-295b. All such records and accounts
shall
be kept separate and distinct from the records and accounts of any
other
business, and shall be subject to the inspection by the
director or his duly secretary or an authorized
representative of the
authorized representative
secretary at all reasonable times.
Sec. 36. On and after September 1, 1997, K.S.A. 34-298 is
hereby
amended to read as follows: 34-298. (a) Unless otherwise provided
in this
act, any person or entity that violates any provision of this act
is guilty of
a class A nonperson misdemeanor.
(b) If, after a hearing conducted in accordance with the
provisions of
the Kansas administrative procedure act, the director of
the state grain secretary finds that the
provisions of this act have
inspection department
been violated by any person holding a license to conduct a public
ware-
house in this state, the director secretary
shall revoke the person's license.
No new license shall be granted to the person whose license is
revoked
or to anyone engaged, either directly or indirectly, in the public
ware-
house business with that person for a period of one year.
Sec. 37. On and after September 1, 1997, K.S.A. 34-299 is
hereby
amended to read as follows: 34-299. (a) It shall be the duty
of any person
operating a public warehouse in Kansas under this act, who desires
to
discontinue the operation of a public warehouse at least 30 days
prior to
the expiration of his such warehouse
license, to notify: (1) all holders of
warehouse receipts and all parties storing grain in
said such warehouse,
if known; (2) if not known, by public notice, by advertising
in a newspaper
of general circulation in the city in which such warehouse is
situated, also; and (3) the
the director of the state grain inspection department, at least
thirty (30)
days prior to the date of the expiration of his license,
his
secretary, of such person's intention to discontinue the public
warehouse
business. And
(b) It shall be the duty of the owners of such grain to
remove, or
cause to be removed, their grain from said
the warehouse, before the
expiration of the license. If for any cause said
the grain is not removed
from the warehouse, it shall be the duty of the warehouseman to
sell for
the account of the depositor said the grain
at the best market price ob-
tainable and remit said the funds to the
director of the state grain in- secretary. The
spection departmentdirector secretary shall deposit
saidthe funds with the state treasurer
to be held for the account of the de-
positor. If and when said the depositor, or
holder of claim, shall appear
and present a valid claim to the director
secretary for the funds so de-
Ch. 160 1997 Session Laws of Kansas 1135
posited, the director secretary shall
issue a voucher to the state treasurer
withdrawing said funds to the order of the claimant.
Sec. 38. On and after September 1, 1997, K.S.A. 34-2,104 is
hereby
amended to read as follows: 34-2,104. (a) Whenever it appears to
the
satisfaction of the director of the state grain inspection
department sec-
retary that a licensed warehouseman does not have possession of
suffi-
cient commodities to cover the outstanding receipts and scale
tickets is-
sued or assumed by the warehouseman or when a licensed
warehouseman
refuses to submit records or property to a lawful examination, the
directorsecretary may give notice to
the warehouseman to comply with all or any
of the following requirements:
(1) Cover any existing shortage;
(2) give additional bond as requested by the
director secretary;
(3) submit to any examination that the director
secretary considers
necessary.
If the warehouseman fails to comply with the terms of the notice
within
24 hours from the date of its issuance or within such further time
as the
director secretary allows, the
director secretary may petition the
district
court of any county in which is located one of the principal places
of
business of the licensed warehouseman for an order authorizing the
state department to take possession of and
maintain all or a
grain inspection
portion of any and all commodities located in the licensed
warehouse or
warehouses of the warehouseman and all pertinent records and
property.
Upon receipt of the director's
secretary's verified petition setting forth
the circumstances of the warehouseman's failure to comply and
further
stating reasons why immediate possession and maintenance by the
grain department is necessary for the protection of
depositors, ware-
inspection
house receipt holders or sureties, the court shall forthwith issue
an order
authorizing the department to take immediate possession of and
maintain
the commodities, records and property for the purposes stated in
this
section. A copy of the petition and order shall be sent to the
warehouse-
man.
(b) At any time within 10 days after the grain
inspection department
takes possession, the warehouseman may file with the court a
response
to the petition of the director secretary
stating reasons why the depart-
ment should not be allowed to retain possession. The court shall
set the
matter for hearing on a date not less than five nor more than 15
days
from the date of the filing of the warehouseman's response. The
order
placing the department in possession shall not be stayed nor set
aside
until the court after hearing determines that possession should be
re-
stored to the warehouseman.
(c) Upon taking possession, the director
secretary shall give written
notice of its action to the surety on the bond of the warehouseman
and
may notify the holders of record, as shown by the
warehouseman's
1136 1997 Session Laws of Kansas Ch. 160
records, of all receipts and scale tickets issued for
commodities, to present
their receipts or scale tickets for inspection or to account for
them. The
director secretary then may cause an audit
and other investigation to be
made of the affairs of the warehouse, especially with respect to
the com-
modities in which there is an apparent shortage, to determine the
amount
of the shortage and compute the shortage as to each depositor as
shown
in the warehouseman's records, if practicable. The
director secretary shall
notify the warehouseman and the surety on the warehouseman's bond
of
the approximate amount of the shortage and notify each depositor
af-
fected by the shortage by sending notice to the depositor's last
known
address as shown by the records of the warehouse.
The grain inspection department shall retain
possession and continue
maintenance of commodities, records and property under this
section
until the warehouseman or the surety on the warehouseman's bond
has
satisfied the claims of all depositors or until the grain
inspection depart-
ment is ordered by the court to surrender possession.
(d) If during or after the audit or other investigation provided
for in
this section, or at any other time, the director
secretary has evidence that
the warehouseman is insolvent or is unable to satisfy the claims of
all
depositors, or the grain handling facility is operating without a
valid fed-
eral or state license, the director
secretary shall forthwith petition the
district court for an order appointing a receiver, under article 13
of chap-
ter 60 of the Kansas Statutes Annotated, and amendments thereto,
to
operate or liquidate the business of the warehouseman or
unlicensed
facility in accordance with the law. The petition may be
accompanied by
a verified application requesting that the court appoint the
director sec-
retary to act as temporary receiver until a receiver is
appointed. The court
may appoint the director secretary as
temporary receiver in an ex parte
proceeding.
(e) While acting as temporary receiver, the
director secretary shall
have all the powers of a receiver and may appoint a special deputy
director
to take charge of the affairs of the warehouse until a receiver is
appointed.
The special deputy shall qualify, give bond and receive reasonable
com-
pensation as determined by the director
secretary, subject to the approval
of the district court. The compensation shall be paid by the
insolvent
warehouse or unlicensed facility or, upon appointment of a
receiver, may
be allowed by the court as costs in the case.
(f) All necessary expenses incurred by the grain
inspection depart-
ment or any receiver appointed under this section in carrying out
the
provisions of this section may be recovered from the
warehouseman,
owner or operator of the unlicensed grain handling facility in a
separate
civil action brought by the director
secretary in the district court or may
be recovered at the same time and as a part of the seizure or
receivership
action filed under this section. As a part of the expenses so
incurred, there
is authorized to be included the cost of adequate liability
insurance nec-
Ch. 160 1997 Session Laws of Kansas 1137
essary to protect the grain inspection
department, the receiver, and others
engaged in carrying out the provisions of this section.
(g) A receiver shall have five months from the date of the
receiver's
appointment for the settlement and completion of the receivership.
For
cause shown, this period may be extended by the court, not
exceeding
three months at a time.
Sec. 39. On and after September 1, 1997, K.S.A. 34-2,110 is
hereby
amended to read as follows: 34-2,110. Every public warehouseman
shall
make available to the director secretary a
verified composite statement
of depositors of open storage grain or grain bank grain. The
composite
statement shall contain the same information as in K.S.A.
34-2,109, and
amendments thereto.
Sec. 40. On and after September 1, 1997, K.S.A. 1996 Supp.
74-
4911f is hereby amended to read as follows: 74-4911f. (a) Subject
to
procedures or limitations prescribed by the governor, any state
officer
may elect to not become a member of the system.
(b) (1) Any such state officer described in subsection (a) who
is a
member of the Kansas public employees retirement system, on or
after
the effective date of this act, may elect to not be a member by
filing an
election with the office of the retirement system. Each state
officer filing
such election may withdraw the state officer's accumulated
contributions
then on deposit with the system in the same manner as prescribed
in
K.S.A. 74-4917 and amendments thereto for employees upon
termina-
tion.
(2) Any state officer who has filed an election and received a
refund
of contributions shall be entitled to again become a member of the
system
upon the filing of proper notice in such form as prescribed by the
system
and upon the making of a single lump-sum payment in an amount
equal
to all withdrawn contributions, plus interest at a rate specified
by the
system.
(c) Subject to limitations prescribed by the secretary of
administra-
tion, the state agency employing any employee who has filed an
election
as provided under subsection (a) or (b) and who has entered into
an
employee participation agreement, as provided in K.S.A. 75-5524
and
amendments thereto for deferred compensation pursuant to the
Kansas
public employees deferred compensation plan shall contribute to
such
plan on such employee's behalf an amount equal to 8% of the
employee's
salary, as such salary has been approved pursuant to K.S.A.
75-2935b and
amendments thereto or as otherwise prescribed by law.
(d) As used in this section and K.S.A. 74-4927k and
amendments
thereto, ``state officer'' means the secretary of administration,
secretary
on aging, secretary of commerce and housing, secretary of
corrections,
secretary of health and environment, secretary of human resources,
sec-
retary of revenue, secretary of social and rehabilitation services,
secretary
1138 1997 Session Laws of Kansas Ch. 160
of transportation, secretary of wildlife and parks,
superintendent of the
Kansas highway patrol, secretary of agriculture, state
grain inspector, ex-
ecutive director of the Kansas lottery, executive director of the
Kansas
racing commission, president of the Kansas development finance
author-
ity, state fire marshal, state librarian, securities commissioner,
adjutant
general, members of the state board of tax appeals, members of the
Kan-
sas parole board, members of the state corporation commission, any
un-
classified employee on the staff of officers of both houses of the
legisla-
ture, any unclassified employee appointed to the governor's or
lieutenant
governor's staff and any person employed by the legislative branch
of the
state of Kansas, other than any such person receiving service
credited
under the Kansas public employees retirement system or any other
re-
tirement system of the state of Kansas therefor, who elected to be
covered
by the provisions of this section as provided in subsection (e) of
K.S.A.
46-1302 and amendments thereto or who is first employed on or
after
July 1, 1996, by the legislative branch of the state of
Kansas.
(e) The provisions of this section shall not apply to any state
officer
who has elected to remain eligible for assistance by the state
board of
regents as provided in subsection (a) of K.S.A. 74-4925 and
amendments
thereto.
Sec. 41. On and after September 1, 1997, K.S.A. 1996 Supp.
75-
3170a is hereby amended to read as follows: 75-3170a. (a) The 20%
credit
to the state general fund required by K.S.A. 1-204, 2-2609, 2-3008,
2-
3013, 9-1703, 16-609, 16a-2-302, 17-1271, 17-2236, 17-5609,
17-5610,
17-5612, 17-5701, 20-1a02, 20-1a03, 31-133a,
33-134, 31-134,
34-102b,
44-324, 44-926, 47-820, 49-420, 55-155, 55-176, 55-609, 55-711,
55-901,
58-2011, 58-3074, 58-4107, 65-6b10, 65-1718, 65-1817a, 65-2011,
65-
2855, 65-2911, 65-4610, 65-5413, 65-5513, 66-1,155, 66-1503,
74-715,
74-1108, 74-1405, 74-1503, 74-1609, 74-2704, 74-3903, 74-5805,
74-
7009, 74-7506, 75-1119b, 75-1308 and 75-1514 and K.S.A. 1996
Supp.
2-3506, 84-9-411 and 84-9-413, and amendments thereto, is to
reimburse
the state general fund for accounting, auditing, budgeting, legal,
payroll,
personnel and purchasing services, and any and all other state
govern-
mental services, which are performed on behalf of the state agency
in-
volved by other state agencies which receive appropriations from
the state
general fund to provide such services.
(b) Nothing in this act or in the sections amended by this act
or
referred to in subsection (a), shall be deemed to authorize
remittances to
be made less frequently than is authorized under K.S.A. 75-4215
and
amendments thereto.
(c) Notwithstanding any provision of any statute referred to in
or
amended by this act or referred to in subsection (a), whenever in
any
fiscal year such 20% credit to the state general fund in relation
to any
particular fee fund is $200,000, in that fiscal year the 20% credit
no longer
Ch. 160 1997 Session Laws of Kansas 1139
shall apply to moneys received from sources applicable to such
fee fund
and for the remainder of such year the full 100% so received shall
be
credited to such fee fund, except as otherwise provided in
subsection (d)
and except that during the fiscal year ending June 30, 1993, with
respect
to the fire marshal fee fund, when the 20% credit to the state
general
fund prescribed by K.S.A. 31-133a, 31-134 and 75-1514 and
amendments
thereto, in the aggregate, is $400,000, then in that fiscal year
such 20%
credit no longer shall apply to moneys received from sources
applicable
to the fire marshal fee fund and for the remainder of such fiscal
year the
full 100% so received shall be credited to the fire marshal fee
fund.
(d) Notwithstanding any provision of K.S.A. 2-2609 and 2-3008
and
amendments thereto or any provision of any statute referred to in
sub-
section (a), the 20% credit to the state general fund no longer
shall apply
to moneys received from sources applicable to the grain research
and
market development agencies funds, as specified for each such fund
by
this subsection, and for the remainder of a fiscal year the full
100% of
the moneys so received shall be credited to the appropriate fund of
such
funds, whenever in any fiscal year:
(1) With respect to the Kansas wheat commission fund, such
20%
credit to the state general fund in relation to such fund in that
fiscal year
is equal to that portion of $100,000 that bears the same proportion
to
$100,000 as the amount credited to the Kansas wheat commission
fund
during the preceding fiscal year bears to the total of the amounts
credited
to the Kansas wheat commission fund, the Kansas corn commission
fund,
the Kansas grain sorghum commission fund and the Kansas soybean
com-
mission fund during the preceding fiscal year;
(2) with respect to the Kansas corn commission fund, such 20%
credit
to the state general fund in relation to such fund in that fiscal
year is
equal to that portion of $100,000 that bears the same proportion
to
$100,000 as the amount credited to the Kansas corn commission
fund
during the preceding fiscal year bears to the total of the amounts
credited
to the Kansas wheat commission fund, the Kansas corn commission
fund,
the Kansas grain sorghum commission fund and the Kansas soybean
com-
mission fund during the preceding year;
(3) with respect to the Kansas grain sorghum commission fund,
such
20% credit to the state general fund in relation to such fund in
that fiscal
year is equal to that portion of $100,000 that bears the same
proportion
to $100,000 as the amount credited to the Kansas grain sorghum
com-
mission fund during the preceding fiscal year bears to the total of
the
amounts credited to the Kansas wheat commission fund, the Kansas
corn
commission fund, the Kansas grain sorghum commission fund and
the
Kansas soybean commission fund during the preceding fiscal year;
and
(4) with respect to the Kansas soybean commission fund, such
20%
credit to the state general fund in relation to such fund in that
fiscal year
is equal to that portion of $100,000 that bears the same proportion
to
1140 1997 Session Laws of Kansas Ch. 160
$100,000 as the amount credited to the Kansas soybean commission
fund
during the preceding fiscal year bears to the total of the amounts
credited
to the Kansas wheat commission fund, the Kansas corn commission
fund,
the Kansas grain sorghum commission fund and the Kansas soybean
com-
mission fund during the preceding fiscal year.
(e) As used in this section, ``grain research and market
development
agencies'' means the Kansas wheat commission, the Kansas corn
com-
mission, the Kansas grain sorghum commission and the Kansas
soybean
commission. Such agencies have been created to fund appropriate
re-
search projects; to conduct campaigns of development, education
and
publicity; and to find new markets or maintain existing markets for
com-
modities and products made from those commodities, among their
other
duties. Such grain research and market development agencies shall
be
funded by an assessment collected from the grower at the time of
the
sale of such commodity by the first purchaser. The assessment shall
be
sent to the proper grain research and market development
agency.
Sec. 42. On and after September 1, 1997, K.S.A. 1996 Supp.
77-415
is hereby amended to read as follows: 77-415. As used in K.S.A.
77-415
through 77-437, and amendments thereto, unless the context clearly
re-
quires otherwise:
(1) ``State agency'' means any officer, department, bureau,
division,
board, authority, agency, commission or institution of this state,
except
the judicial and legislative branches, which is authorized by law
to prom-
ulgate rules and regulations concerning the administration,
enforcement
or interpretation of any law of this state.
(2) ``Person'' means firm, association, organization,
partnership, busi-
ness trust, corporation or company.
(3) ``Board'' means the state rules and regulations board
established
under the provisions of K.S.A. 77-423 and amendments
thereto.
(4) ``Rule and regulation,'' ``rule,'' ``regulation'' and words
of like ef-
fect mean a standard, statement of policy or general order,
including
amendments or revocations thereof, of general application and
having the
effect of law, issued or adopted by a state agency to implement or
inter-
pret legislation enforced or administered by such state agency or
to gov-
ern the organization or procedure of such state agency. Every rule
and
regulation adopted by a state agency to govern its enforcement or
ad-
ministration of legislation shall be adopted by the state agency
and filed
as a rule and regulation as provided in this act. The fact that a
statement
of policy or an interpretation of a statute is made in the decision
of a case
or in a state agency decision upon or disposition of a particular
matter as
applied to a specific set of facts does not render the same a rule
and
regulation within the meaning of the foregoing definition, nor
shall it
constitute specific adoption thereof by the state agency so as to
be re-
quired to be filed. A rule and regulation as herein defined shall
not in-
Ch. 160 1997 Session Laws of Kansas 1141
clude any rule and regulation which: (a) Relates to the internal
manage-
ment or organization of the agency and does not affect private
rights or
interest; (b) is an order directed to specifically named persons or
to a
group which does not constitute a general class and the order is
served
on the person or persons to whom it is directed by appropriate
means.
The fact that the named person serves a group of unnamed persons
who
will be affected does not make such an order a rule and regulation;
(c)
relates to the use of highways and is made known to the public by
means
of signs or signals; (d) relates to the construction and
maintenance of
highways or bridges or the laying out or relocation of a highway
other
than bidding procedures or the management and regulation of rest
areas;
(e) relates to the curriculum of public educational institutions or
to the
administration, conduct, discipline, or graduation of students from
such
institutions or relates to parking and traffic regulations of state
educa-
tional institutions under the control and supervision of the state
board of
regents; (f) relates to the emergency or security procedures of a
correc-
tional institution, as defined in subsection (d) of K.S.A. 75-5202
and
amendments thereto; (g) relates to the use of facilities by public
libraries;
(h) relates to military or naval affairs other than the use of
armories; (i)
relates to the form and content of reports, records or accounts of
state,
county or municipal officers, institutions, or agencies; (j)
relates to ex-
penditures by state agencies for the purchase of materials,
equipment, or
supplies by or for state agencies, or for the printing or
duplicating of
materials for state agencies; (k) establishes personnel standards,
job clas-
sifications, or job ranges for state employees who are in the
classified civil
service; (l) fixes or approves rates, prices, or charges, or rates,
joint rates,
fares, tolls, charges, rules, regulations, classifications or
schedules of com-
mon carriers or public utilities subject to the jurisdiction of the
state
corporation commission, except when a statute specifically requires
the
same to be fixed by rule and regulation; (m) determines the
valuation of
securities held by insurance companies; (n) is a statistical plan
relating to
the administration of rate regulation laws applicable to casualty
insurance
or to fire and allied lines insurance; (o) is a form, the content
or substan-
tive requirements of which are prescribed by rule and regulation or
stat-
ute; (p) is a pamphlet or other explanatory material not intended
or de-
signed as interpretation of legislation enforced or adopted by a
state
agency but is merely informational in nature; (q) establishes
seasons and
fixes bag, creel, possession, size or length limits for the taking
or posses-
sion of wildlife, if such seasons and limits are made known to the
public
by other means; or (r) establishes records retention and
disposition sched-
ules for any or all state agencies; or (s) fixes or
approves fees for services.
rendered by the Kansas state grain inspection department pursuant
to
K.S.A. 34-103a, and amendments thereto
(5) ``Environmental rule and regulation'' means:
(A) A rule and regulation adopted by the state board of
agriculture,
1142 1997 Session Laws of Kansas Ch. 160
the secretary of the state board of
agriculture, the secretary of health and
environment or the state corporation commission, which has as a
primary
purpose the protection of the environment; or
(B) a rule and regulation adopted by the secretary of wildlife
and
parks concerning threatened or endangered species of wildlife as
defined
in K.S.A. 32-958 and amendments thereto.
Sec. 43. On and after September 1, 1997, K.S.A. 34-101,
34-101a,
34-101c, 34-101d, 34-102, 34-102a, 34-104, 34-105, 34-106, 34-107,
34-
110, 34-111, 34-112a, 34-113, 34-121, 34-122, 34-123, 34-124,
34-127,
34-223, 34-224, 34-227, 34-227a, 34-227b, 34-229, 34-230,
34-230a,
34-230b, 34-231, 34-233, 34-235, 34-236, 34-238, 34-241a, 34-246,
34-
249a, 34-251, 34-257a, 34-273, 34-295a, 34-295b, 34-298, 34-299,
34-
2,100, 34-2,104, 34-2,110, 75-1701, 75-1702, 75-1703, 75-1704,
75-1706,
75-1709 and 75-1711 and K.S.A. 1996 Supp. 34-101b, 34-102b,
34-103a,
34-125, 34-228, 34-2,108, 74-4911f, 75-3170a and 77-415 are hereby
re-
pealed.
Sec. 44. This act shall take effect and be in force from and
after
August 1, 1997, its publication in the statute book and the
issuance by
the grain inspection, packers and stockyards administration,
pursuant to
the United States grain standards act, of the official agency
designation
of an entity that is not the state of Kansas grain inspection
department.
Approved May 13, 1997.