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Public Act 096-0464 |
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AN ACT concerning warehouses.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Grain Code is amended by changing Sections | ||||
1-10, 1-25, 10-15, 10-25, and 25-5 as follows:
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(240 ILCS 40/1-10)
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Sec. 1-10. Definitions. As used in this Act:
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"Board" means the governing body of the Illinois Grain | ||||
Insurance
Corporation.
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"Certificate" means a document, other than the license, | ||||
issued by
the Department that certifies that a grain dealer's | ||||
license has
been issued and is in effect.
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"Claimant" means:
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(a) a person, including, without limitation, a lender:
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(1) who possesses warehouse receipts issued from an | ||||
Illinois location
covering grain
owned or stored by a | ||||
failed warehouseman; or
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(2) who has other written evidence of a storage
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obligation of a failed warehouseman issued from an Illinois | ||||
location in favor
of the holder,
including, but not limited | ||||
to, scale tickets,
settlement sheets, and ledger cards; or
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(3) who has loaned
money to a warehouseman and was to | ||||
receive a warehouse receipt
issued from an Illinois |
location as security for that loan, who
surrendered | ||
warehouse receipts as part of a grain sale at an Illinois | ||
location,
or who
delivered grain out of storage with the | ||
warehouseman as part of a grain sale at
an Illinois | ||
location;
and
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(i) the grain dealer or warehouseman failed within | ||
21 days after the
loan
of money, the surrender of | ||
warehouse receipts, or the delivery of grain, as the
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case may be, and no
warehouse receipt was issued or | ||
payment in full was not made on the grain sale,
as the | ||
case may be; or
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(ii) written notice was given by the person to the | ||
Department within 21
days after the loan of money, the | ||
surrender of warehouse receipts, or the
delivery of | ||
grain, as the case may be, stating that no warehouse | ||
receipt was
issued or payment in full made on the grain | ||
sale, as the case may be; or
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(b) a producer not included in item (a)(3) in the | ||
definition of "Claimant"
who possesses evidence of the sale at | ||
an Illinois location of grain delivered
to a failed grain | ||
dealer, or its designee in Illinois and who was not paid
in | ||
full.
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"Class I warehouseman" means a warehouseman who is | ||
authorized to
issue negotiable and non-negotiable warehouse | ||
receipts.
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"Class II warehouseman" means a warehouseman who is |
authorized to
issue only non-negotiable warehouse receipts.
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"Code" means this Grain Code.
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"Collateral" means:
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(a) irrevocable letters of credit;
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(b) certificates of deposit;
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(c) cash or a cash equivalent; or
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(d) any other property acceptable to the Department to the
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extent there exists equity in that property. For the purposes | ||
of
this item (d), "equity" is the amount by which the fair
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market value of the property exceeds the amount owed to a | ||
creditor who
has a valid, prior, perfected security interest in | ||
or other valid, prior,
perfected lien on
the property.
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"Corporation" means the Illinois Grain Insurance | ||
Corporation.
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"Daily position record" means a grain inventory | ||
accountability
record maintained on a daily basis that includes | ||
an accurate
reflection of changes in grain inventory, storage | ||
obligations,
company-owned inventory by commodity, and other | ||
information
that is required by the Department.
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"Daily grain transaction report" means a record of the | ||
daily
transactions of a grain dealer showing the amount of all | ||
grain
received and shipped during each day and the amount on | ||
hand at the
end of each day.
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"Date of delivery of grain" means:
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(a) the date grain is delivered to a grain dealer, or its | ||
designee in
Illinois, for
the
purpose of sale;
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(b) the date grain is delivered to a warehouseman, or its | ||
designee in
Illinois, for
the
purpose of storage; or
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(c) in reference to grain in storage with a warehouseman,
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the date a warehouse receipt representing stored grain is | ||
delivered
to the issuer of the warehouse receipt for the | ||
purpose of selling the stored
grain
or, if no warehouse receipt | ||
was issued:
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(1) the date the purchase price for stored grain is
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established; or
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(2) if sold by price later contract, the date of the
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price later contract.
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"Department" means the Illinois Department of Agriculture.
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"Depositor" means a person who has evidence of a storage
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obligation from a warehouseman.
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"Director", unless otherwise provided, means the Illinois | ||
Director of
Agriculture, or the Director's designee.
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"Electronic document" means a document that is generated, | ||
sent, received,
or stored by electrical, digital, magnetic, | ||
optical electromagnetic, or any
other similar means, | ||
including, but not limited to, electronic data
interchange, | ||
electronic mail,
telegram, telex, or telecopy.
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"Electronic warehouse receipt" means a warehouse receipt | ||
that is issued or
transmitted in the form of an electronic | ||
document.
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"Emergency storage" means space measured in bushels and | ||
used for a
period of time not to exceed 3 months for storage of |
grain
as a consequence of an emergency situation.
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"Equity assets" means:
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(a) The equity in any property of the
licensee or failed
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licensee, other than grain assets. For purposes of this item | ||
(a):
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(1) "equity" is the amount by which the fair market
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value of the property exceeds the amount owed to a creditor | ||
who
has a valid security interest in or other valid lien on | ||
the property
that was perfected before the date of failure | ||
of the
licensee;
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(2) a creditor is not deemed to have a valid
security | ||
interest or other valid lien
on property if (i) the | ||
property can be directly traced as being from the sale
of | ||
grain by the licensee or failed licensee; (ii) the security | ||
interest was
taken as additional collateral on account of | ||
an antecedent debt owed to the
creditor; and (iii) the | ||
security interest or other lien was perfected (A) on or
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within 90 days before the date of failure of the licensee | ||
or (B) when the
creditor is a related person, within one | ||
year of the date of failure of the
licensee.
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"Failure" means, in reference to a licensee:
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(a) a formal declaration of insolvency;
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(b) a revocation of a license;
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(c) a failure to apply for license renewal, leaving
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indebtedness to claimants;
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(d) a denial of license renewal, leaving indebtedness to
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claimants; or
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(e) a voluntary surrender of a license, leaving
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indebtedness to claimants.
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"Federal warehouseman" means a warehouseman licensed
by | ||
the United States government under the United
States Warehouse | ||
Act (7 U.S.C. 241 et seq.).
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"Fund" means the Illinois Grain Insurance Fund.
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"Grain" means corn, soybeans, wheat, oats, rye, barley, | ||
grain
sorghum, canola, buckwheat, flaxseed, edible soybeans, | ||
and
other like agricultural commodities that may be
designated | ||
by rule.
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"Grain assets" means:
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(a) all grain owned and all grain stored by a licensee or
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failed licensee, wherever located, including redeposited grain | ||
of a licensee
or failed licensee;
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(b) (blank);
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(c) identifiable proceeds, including, but not limited to, | ||
insurance
proceeds,
received by or due to a licensee or failed | ||
licensee resulting
from the sale, exchange,
destruction, loss, | ||
or theft of grain, or other disposition of grain by the
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licensee or failed licensee; or
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(d) assets in hedging or speculative margin accounts held | ||
by
commodity or security exchanges on behalf of a licensee or | ||
failed
licensee and any moneys due or to become due to a | ||
licensee or
failed licensee, less any secured financing | ||
directly associated with those
assets or moneys, from any |
transactions on those exchanges.
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For purposes of this Act, storage charges, drying charges, | ||
price later
contract service charges, and other grain service | ||
charges received by or due to
a licensee or failed licensee | ||
shall not be deemed to be grain assets, nor shall
such charges | ||
be deemed to be proceeds from the sale or other disposition of
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grain by a licensee or a failed licensee, or to have been | ||
directly or
indirectly traceable from, to have resulted from, | ||
or to have been derived in
whole
or in part from, or otherwise | ||
related to, the sale or other disposition of
grain by the | ||
licensee or failed licensee.
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"Grain dealer" means a person who is licensed by the | ||
Department to
engage in the business of buying grain from | ||
producers.
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"Grain Indemnity Trust Account" means a trust account | ||
established by
the Director under Section 205-410 of the | ||
Department of
Agriculture Law (20 ILCS 205/205-410) that is | ||
used for the receipt and
disbursement of
moneys paid from the | ||
Fund and proceeds from the liquidation of and
collection upon | ||
grain assets, equity assets, collateral, and
guarantees of or | ||
relating to failed licensees. The Grain Indemnity
Trust Account | ||
shall be used to pay valid claims, authorized refunds
from the | ||
Fund, and expenses incurred in preserving, liquidating, and
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collecting upon grain assets, equity assets, collateral, and
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guarantees relating to failed licensees.
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"Guarantor" means a person who assumes all or part of the
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obligations of a licensee to claimants.
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"Guarantee" means a document executed by a guarantor by | ||
which the
guarantor assumes all or part of the obligations of a | ||
licensee
to claimants.
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"Incidental grain dealer" means a grain dealer who | ||
purchases
grain
only in connection with a feed milling | ||
operation and whose total
purchases of grain from producers | ||
during the grain dealer's fiscal
year do not exceed $100,000.
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"Licensed storage capacity" means the maximum grain | ||
storage capacity
measured in bushels approved by the applicable | ||
licensing agency for
use by a warehouseman.
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"Licensee" means a grain dealer or warehouseman who is | ||
licensed by
the Department and a federal warehouseman that is a | ||
participant
in the Fund, under subsection (c) of Section 30-10.
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"Official grain standards" means the official grade | ||
designations as
adopted by the United States Department of | ||
Agriculture under
the United States Grain Standards Act and | ||
regulations adopted under that Act (7
U.S.C. 71 et seq. and 7 | ||
CFR 810.201 et seq.).
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"Permanent storage capacity" means the capacity of | ||
permanent structures
available for storage of grain on a | ||
regular and continuous basis,
measured in bushels.
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"Person" means any individual or entity, including, but not
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limited to, a sole proprietorship, a partnership, a | ||
corporation,
a cooperative, an association, a limited | ||
liability company, an estate,
a trust, or a governmental |
agency.
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"Price later contract" means a written contract , in written | ||
or electronic form, for the sale of
grain whereby any part of | ||
the purchase price may be established by
the seller after | ||
delivery of the grain to a grain dealer
according to a pricing | ||
formula contained in the contract. Title to
the grain passes to | ||
the grain dealer at the time of delivery. The
precise form
and | ||
the general terms and conditions
of the contract
shall be | ||
established by rule.
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"Producer" means the owner, tenant, or operator of land who | ||
has an
interest in and receives all or part of the proceeds | ||
from the
sale of the grain produced on the land.
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"Producer protection holding corporation" means a holding
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corporation to receive, hold title to, and liquidate assets of | ||
or
relating to a failed licensee, including assets in reference | ||
to
collateral or guarantees relating to a failed licensee.
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"Regulatory Fund" means the fund created under Article 35.
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"Related persons" means affiliates of a licensee, key | ||
persons
of a licensee, owners of a licensee, and persons who | ||
have
control over a licensee. For the purposes of this | ||
definition:
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(a) "Affiliate" means a person who has direct or | ||
indirect control
of a licensee, is controlled by a | ||
licensee, or is under common
control with a licensee.
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(b) "Key person" means an officer, a director, a | ||
trustee, a partner,
a proprietor, a manager, a managing |
agent, or the spouse of a licensee. An
officer or a | ||
director of an entity organized or operating as a | ||
cooperative,
however, shall not be considered to be a "key | ||
person".
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(c) "Owner" means the holder of: over 10% of the total
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combined voting power of a corporation or over 10% of
the | ||
total value of shares of all classes of stock of a | ||
corporation;
over a 10% interest in a partnership; over
10% | ||
of the value of a trust computed actuarially; or over
10% | ||
of the legal or beneficial interest in any other
business, | ||
association, endeavor, or entity that is a licensee. For
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purposes of computing these percentages, a holder is
deemed | ||
to own stock or other interests in a business entity
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whether the ownership is direct or indirect.
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(d) "Control" means the power to exercise authority | ||
over or direct
the management or policies of a business | ||
entity.
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(e) "Indirect" means an interest in a business held by | ||
the holder
not through the holder's actual holdings in the | ||
business, but
through the holder's holdings in another | ||
business or other businesses.
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(f) Notwithstanding any other provision of this Act, | ||
the term "related
person" does not include a lender, | ||
secured party, or other lien holder solely
by reason of the | ||
existence of the loan, security interest, or lien, or | ||
solely
by reason of the lender, secured party, or other |
lien holder having or
exercising any right or remedy | ||
provided by law or by agreement with a licensee
or a failed | ||
licensee.
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"Reserve Fund" means a separate and discrete fund of up to | ||
$2,000,000 held
by the Corporation as set forth in Section | ||
30-25.
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"Successor agreement" means an agreement by which a | ||
licensee succeeds to
the grain obligations of a former | ||
licensee.
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"Temporary storage space" means space measured in bushels | ||
and used
for 6 months or less for storage of grain
on a | ||
temporary basis due to a need for additional storage in excess
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of permanent storage capacity.
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"Trust account" means the Grain Indemnity Trust Account.
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"Valid claim" means a request for payment under the | ||
provisions of this
Code, submitted by a claimant, the amount
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and category of which have been determined by the Department, | ||
to the extent
that determination is not subject to further | ||
administrative review
or appeal.
Each grain sale transaction | ||
and each storage obligation shall be considered a
separate and | ||
discrete request for payment even though one or more requests | ||
are
contained on one claim form or are filed with the | ||
Department in one document.
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"Warehouse" means a building, structure, or enclosure in | ||
which grain
is stored for the public for compensation, whether | ||
grain of
different owners is commingled or whether identity of
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different lots of grain is preserved.
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"Warehouse receipt" means a receipt for the storage of | ||
grain issued
by a warehouseman.
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"Warehouseman" means a person who is licensed:
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(a) by the Department to engage in the
business of | ||
storing grain for compensation; or
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(b) under the United States Warehouse Act but | ||
participates in
the Fund
under
subsection (c) of Section | ||
30-10.
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(Source: P.A. 92-16, eff.
6-28-01; 93-225, eff. 7-21-03.)
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(240 ILCS 40/1-25)
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Sec. 1-25. Rules. The Department may
promulgate rules that | ||
are necessary
for the implementation and administration of this | ||
Code.
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(a) The Department shall adopt rules governing electronic | ||
systems under which
electronic warehouse receipts are may be | ||
issued and transferred. Licensees shall
not be required, | ||
however, to issue or use electronic warehouse receipts. These
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rules shall be adopted after the United States Department of | ||
Agriculture adopts
regulations concerning an electronic | ||
receipt transfer system pursuant to 7
U.S.C. 242, 250. | ||
(b) The Department shall adopt rules governing electronic | ||
price later contracts. Licensees and producers shall not be | ||
required, however, to issue or use electronic price later | ||
contracts.
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(Source: P.A. 93-225, eff. 7-21-03.)
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(240 ILCS 40/10-15)
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Sec. 10-15. Price later contracts.
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(a) Price later contracts shall contain provisions be | ||
written on forms
prescribed or authorized by the Department and | ||
shall be in either written or electronic form. If in written | ||
form, price . Price later contract forms
shall be
printed by a | ||
person authorized to print those contracts by the
Department | ||
after that person has agreed to comply with each of the | ||
following:
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(1) That all price later contracts shall be printed as
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prescribed by the Department and shall be printed only for | ||
a
licensed grain dealer.
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(2) That all price later contracts shall be numbered
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consecutively and a complete record of these contracts | ||
shall
be retained showing for whom printed and the | ||
consecutive
numbers printed on the contracts.
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(3) That a duplicate copy of all invoices rendered for
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printing price later contracts that will show the | ||
consecutive
numbers printed on the contracts, and the | ||
number of contracts printed,
shall be promptly forwarded to | ||
the Department.
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(4) that the person shall register with the Department | ||
and pay an annual
registration fee of $100 to print price | ||
later contracts. |
Price later contracts that are in electronic form shall be | ||
numbered consecutively.
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(b) A grain dealer purchasing grain by price later contract
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shall at all times own grain, rights in grain, proceeds from | ||
the
sale of grain, and other assets acceptable to the | ||
Department as set
forth in this Code totaling 90% of the unpaid | ||
balance of
the grain dealer's obligations for grain purchased | ||
by price later
contract. That amount shall at all times remain | ||
unencumbered and
shall be represented by the aggregate of the | ||
following:
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(1) Grain owned by the grain dealer
valued by means of | ||
the hedging procedures method that
includes marking open | ||
contracts to market.
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(2) Cash on hand.
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(3) Cash held on account in federally or State licensed
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financial institutions.
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(4) Investments held in time accounts with federally or
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State licensed financial institutions.
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(5) Direct obligations of the U.S. government.
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(6) Funds on deposit in grain margin accounts.
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(7) Balances due or to become due to the licensee on
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price later contracts.
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(8) Marketable securities, including mutual funds.
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(9) Irrevocable letters of credit in favor of the
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Department and acceptable to the Department.
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(10) Price later contract service charges due or to
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become due to the licensee.
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(11) Other evidence of proceeds from or of grain that | ||
is
acceptable to the Department.
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(c) For the purpose of computing the dollar value of grain
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and the balance due on price later contract obligations, the | ||
value
of grain shall be figured at the current market price.
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(d) Title to grain sold by price later contract shall
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transfer to a grain dealer at the time of delivery of the
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grain.
Therefore, no storage charges shall be made with respect | ||
to grain
purchased by price later contract. A service charge | ||
for
handling the contract, however, may be made.
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(e) Subject to subsection (f) of this Section,
if a price | ||
later contract is not signed by all parties
within 30 days of | ||
the last date of delivery of grain
intended to be sold by price | ||
later contract, then
the grain intended to be sold by price | ||
later contract shall
be priced on the next business day after | ||
30 days from
the last date of delivery of grain intended to be | ||
sold
by price later contract at the market price of the grain
| ||
at the close of the next business day after the 29th day.
When | ||
the grain is priced under this subsection, the grain dealer | ||
shall send
notice to the seller of the grain within 10 days. | ||
The notice shall contain the
number of bushels sold, the price | ||
per bushel, all applicable discounts, the net
proceeds, and a | ||
notice that states that the Grain Insurance Fund shall provide
| ||
protection for a period of only 160 days from the date of | ||
pricing of the grain.
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In the event of a failure, if a price later contract is not | ||
signed by all
the parties to the transaction, the Department | ||
may consider the grain to be
sold by price later contract if a | ||
preponderance of the evidence indicates the
grain was to be | ||
sold by price later contract.
| ||
(f) If grain is in storage with a
warehouseman and is | ||
intended to be sold by price later contract, that grain
shall | ||
be considered as remaining in storage and not be deemed sold by | ||
price
later contract until the date the price later contract is | ||
signed by all
parties.
| ||
(g) Scale tickets or other approved documents with
respect | ||
to grain purchased by a grain dealer by price later
contract | ||
shall contain the following: "Sold Grain; Price Later".
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(h) Price later contracts shall be issued consecutively and | ||
recorded by
the grain
dealer as established by rule.
| ||
(i) A licensee shall not issue a collateral warehouse
| ||
receipt on grain purchased by a price later contract to the | ||
extent
the purchase price has not been paid by the licensee.
| ||
(j) Failure to comply with the requirements of this Section
| ||
may result in suspension
of the privilege to purchase grain by | ||
price later contract for up
to one year.
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(k) When a producer with a price later contract selects a | ||
price for all or
any part of the grain represented by that | ||
contract, then within 5 business days
after that price | ||
selection, the licensee shall mail to that producer a
| ||
confirmation of the price selection, clearly and succinctly |
indicating the
price selected. If the price later contract is | ||
in electronic form, the licensee shall, within 5 business days | ||
after that price selection, e-mail to that producer a | ||
confirmation of the price selection, clearly and succinctly | ||
indicating the price selected, in full satisfaction of the | ||
mailing requirement in the previous sentence. | ||
(l) The issuance and use of price later contracts in | ||
electronic form pursuant to the rules promulgated by the | ||
Department are specifically authorized by this Code, and any | ||
such price later contracts shall have the same validity and | ||
enforceability, for all purposes, as those in non-electronic | ||
form. For purposes of this Code, the word "written", and | ||
derivatives thereof, when used in relation to price later | ||
contracts, shall include price later contracts created or | ||
displayed electronically.
| ||
(Source: P.A. 93-225, eff. 7-21-03.)
| ||
(240 ILCS 40/10-25)
| ||
Sec. 10-25. Warehouse receipts and storage of grain.
| ||
(a) When grain is delivered to a warehouseman at a location
| ||
where grain is also purchased, the licensee shall give written
| ||
evidence of delivery of grain and that written evidence shall | ||
be
marked to indicate whether the grain is delivered for | ||
storage or
for sale. In the absence of adequate evidence of | ||
sale, the grain
shall be construed to be in storage.
| ||
(b) Upon demand by a depositor, a warehouseman shall
issue |
warehouse receipts for grain delivered into storage.
| ||
(c) There shall be no charge for the first warehouse
| ||
receipt issued to a depositor for a given lot of grain.
Charges | ||
for any additional warehouse receipts for grain
previously | ||
covered by a warehouse receipt must be commensurate
with the | ||
cost of issuance of the additional warehouse receipt.
| ||
(d) A warehouseman shall issue warehouse receipts only in
| ||
accordance with the following requirements:
| ||
(1) Warehouse receipts shall be consecutively numbered | ||
in a form
prescribed
by the Department and issued | ||
consecutively by the warehouseman.
| ||
(2) In the case of a lost or destroyed warehouse
| ||
receipt, the new warehouse receipt shall bear the same date | ||
as
the original and shall be plainly marked on its face
| ||
"duplicate in lieu of lost or destroyed warehouse receipt
| ||
number .......", and the warehouseman shall duly fill in
| ||
the blank with the appropriate warehouse receipt number.
| ||
(3) Warehouse receipts shall be printed by a person | ||
authorized by the Department.
The person shall register | ||
with the Department and pay an annual registration
fee of | ||
$100 to print warehouse receipts.
| ||
(4) Negotiable warehouse receipts shall be issued only
| ||
for grain actually in storage with the warehouseman from | ||
which
it is issued or redeposited by that warehouseman as | ||
provided in subsection (e)
of Section 10-20.
| ||
(5) A warehouseman shall not insert in any negotiable
|
warehouse receipt issued by it any language that in any way
| ||
limits or modifies its liability or responsibility.
| ||
(e) Upon delivery of grain covered by a negotiable | ||
warehouse
receipt, the holder of the negotiable warehouse | ||
receipt must
surrender the warehouse receipt for cancellation, | ||
and a warehouseman must
cancel
and issue a new negotiable | ||
warehouse receipt for the balance of
grain in storage.
| ||
(f) When all grain, the storage of which is evidenced by a
| ||
warehouse receipt, is delivered from storage, the warehouse | ||
receipt
shall be plainly marked across its face with the word | ||
"cancelled"
and shall have written on it the date of | ||
cancellation, the name
of the person canceling the warehouse | ||
receipt, and such other information as
required by rule, and is | ||
thereafter void.
| ||
(g) When a warehouseman delivers grain out of storage but
| ||
fails to collect and cancel the negotiable warehouse receipt, | ||
the warehouseman
shall be liable to any purchaser of the | ||
negotiable warehouse receipt for value
in good
faith
for | ||
failure to deliver the grain to the
purchaser, whether the | ||
purchaser acquired the negotiable warehouse receipt
before or | ||
after the delivery of the grain by the warehouseman.
If, | ||
however, grain has been lawfully sold by a warehouseman to
| ||
satisfy its warehouseman's lien, the warehouseman shall not be
| ||
liable for failure to deliver the grain pursuant to the demands | ||
of
a holder of a negotiable warehouse receipt to the extent of | ||
the amount of
grain sold.
|
(h) Except as otherwise provided by this Code or other
| ||
applicable law, a warehouseman shall deliver the grain upon | ||
demand
made by the holder of a warehouse receipt pertaining to | ||
that grain if the
demand is
accompanied by:
| ||
(1) satisfaction of the warehouseman's lien;
| ||
(2) in the case of a negotiable warehouse receipt, a
| ||
properly endorsed negotiable warehouse receipt; or
| ||
(3) in the case of a non-negotiable warehouse receipt,
| ||
written evidence that the grain was delivered to the
| ||
warehouseman and that the depositor is entitled to it.
| ||
(i) If no warehouse receipt is issued to a
depositor, a | ||
warehouseman shall deliver grain upon the demand of a
depositor | ||
if the demand is accompanied by satisfaction of the
| ||
warehouseman's lien and written evidence that the grain was
| ||
delivered to the warehouseman and the depositor is entitled to
| ||
it.
| ||
(j) If a warehouseman refuses or fails to deliver grain in
| ||
compliance with a demand by a holder of a warehouse receipt or | ||
a
depositor, the burden is on the warehouseman to establish
the | ||
existence of a lawful excuse for the refusal.
| ||
(k) If a warehouse receipt has been lost or destroyed, a
| ||
warehouseman may issue a substitute warehouse receipt, as | ||
provided
for in this Section, upon delivery to the warehouseman | ||
of an
affidavit under oath stating that the applicant for the | ||
substitute
warehouse receipt is entitled to the original | ||
warehouse receipt and
setting forth the circumstances that |
resulted in the loss or
destruction of the original warehouse | ||
receipt. The warehouseman
may request from the depositor a bond | ||
in double the value of the
grain represented by the original | ||
warehouse receipt at the time of
issuance of the substitute | ||
warehouse receipt so as to protect the
warehouseman from any | ||
liability or expense that it, or any person
injured by the | ||
delivery, may incur by reason of the original
warehouse receipt | ||
remaining outstanding.
| ||
(l) A warehouse receipt that is to be used for collateral
| ||
purposes by a warehouseman must be first issued by the | ||
warehouseman
to itself.
| ||
(m) The Department shall approve temporary storage space in
| ||
an amount to be determined by the Department if all the | ||
following conditions
are met:
| ||
(1) The warehouseman pays all fees and assessments
| ||
associated with the temporary storage space.
| ||
(2) The warehouseman demonstrates that there is a need
| ||
for additional storage on a temporary basis due to a bumper
| ||
crop or otherwise.
| ||
(3) The structure for the storage of grain meets all of
| ||
the following requirements:
| ||
(A) The grain storage area has a permanent base
| ||
made of concrete, asphalt, or a material having similar
| ||
structural qualities.
| ||
(B) Hot spot detectors, aeration fans, and ducts
| ||
are provided to assure that the quality of grain in
|
storage is maintained.
| ||
(C) The grain storage structure has rigid
| ||
sidewalls made of concrete, wood, metal, or a material
| ||
having similar structural qualities.
| ||
(D) The grain storage structure is equipped with
a | ||
waterproof covering of sufficient strength to support
| ||
a person's weight and with inlets to allow airflow.
| ||
(E) Access to the grain is provided for the
purpose | ||
of sampling and making examinations.
| ||
(4) Temporary storage space shall be considered an | ||
increase
in the licensed storage capacity of the licensee | ||
and shall be
subject to Section 5-30.
| ||
(5) The authorization to use temporary storage space | ||
for the
storage of grain shall expire at the end of 6 | ||
months after the
date of approval by the Department or May | ||
15th, whichever comes
first.
| ||
(n) The Department may approve emergency storage space at | ||
the request of the
licensee according to rule. | ||
(o) The issuance and transfer of the warehouse receipts in | ||
electronic form pursuant to rules promulgated by the Department | ||
are specifically authorized by this Code, and any such | ||
warehouse receipts shall have the same validity and | ||
enforceability, for all purposes, as those in non-electronic | ||
non- electrical form. For purposes of this Code, the words | ||
"written" and "printed", and derivatives thereof, when used in | ||
relation to warehouse receipts, shall include warehouse |
receipts created or displayed electronically.
| ||
(Source: P.A. 94-211, eff. 7-14-05.)
| ||
(240 ILCS 40/25-5)
| ||
Sec. 25-5. Adjudication of claims. When a licensee has
| ||
experienced a failure, the Department shall process the claims | ||
in
the following manner:
| ||
(a) The Department shall publish once each week for 3
| ||
successive weeks in at least 3 newspapers of general | ||
circulation within the
county of
the licensee, and shall mail | ||
or deliver to each claimant whose
name and post office address | ||
are known or are reasonably
ascertainable by the Department, a | ||
notice stating:
| ||
(1) That the licensee has experienced a failure and the
| ||
date of that failure.
| ||
(2) The place and post office address where claims may
| ||
be filed.
| ||
(3) The procedure for filing claims, as determined by
| ||
rule.
| ||
(4) That a claimant's claims shall be barred if not
| ||
filed with the Department on or before the later of:
| ||
(A) the claim date, which shall be 90
days after | ||
the date of failure of the licensee; or
| ||
(B) 7 days from the date notice was mailed
to a | ||
claimant if the date notice was mailed to
that claimant | ||
is on or before the claim date.
|
(b) Time of notice.
| ||
(1) The first date of publication of the notice as
| ||
provided for in subsection (a) of this Section shall be | ||
within 30
days after the date of failure.
| ||
(2) The published notice as provided for in subsection | ||
(a) of this Section
shall be published in at least 3 | ||
newspapers of
general circulation in the area formerly | ||
served by the failed
licensee.
| ||
(3) The notice as provided for in subsection (a) of | ||
this Section shall
be mailed by certified mail, return | ||
receipt requested, within
60 days after the date of failure | ||
to each claimant whose
name and post office address are | ||
known by the Department
within 60 days after the date of | ||
failure.
| ||
(c) Every claim filed must be in writing, verified, and | ||
signed
by a person who has the legal authority to file a claim | ||
on
behalf of the claimant
and must state information sufficient | ||
to notify the Department of the
nature of the claim and the | ||
amount sought.
| ||
(d) A claim shall be barred and disallowed in
its entirety | ||
if:
| ||
(1) notice is published and given to the claimant as | ||
provided for in
subsections (a) and (b) of this Section and | ||
the claimant does not file a
claim with the Department on | ||
or before the claim date; or
| ||
(2) the claimant's name or post office address is not
|
known by the Department or cannot, within 60 days after
the | ||
date of failure, be reasonably ascertained by the
| ||
Department and the claimant does not file a claim with the
| ||
Department on or before the later of the claim date or
7 | ||
days after the date notice was mailed to that claimant if
| ||
the date notice was mailed to that claimant is on or before
| ||
the claim date.
| ||
(e) Subsequent notice.
| ||
(1) If, more than 60 days after the date of failure but
| ||
before the claim date, the Department learns of the name | ||
and
post office address of a claimant who was previously | ||
not
notified by the Department by mail, the Department | ||
shall mail
by certified mail, return receipt requested, the | ||
notice to the
claimant as provided for in subsection (a) of | ||
this Section.
| ||
(2) The notice mailed as provided for in item (e)(1) of | ||
this Section
shall not extend the period of time in which a
| ||
claimant may file its claim beyond the claim date.
A | ||
claimant to whom notice is mailed under
item (e)(1) of this | ||
Section, however, shall have the later of the claim date or
| ||
7 days after the date notice was mailed to file
a claim | ||
with the Department.
| ||
(f) The Department shall determine the validity, category,
| ||
and amount of each claim within 120 days after the date of | ||
failure of
the licensee and shall give written notice within | ||
that time period
to each
claimant and to the failed licensee
of |
the Department's determination as to the validity, category, | ||
and
amount of each claim.
| ||
(g) A claimant or the
failed licensee may request a hearing | ||
on the Department's
determination within 30 days after receipt | ||
of the written
notice and the hearing shall be held
in the | ||
county of the location of the principal office or place of | ||
business, in Illinois, residence of the failed licensee | ||
claimant and
in accordance with rules.
Under no circumstances | ||
shall payment to claimants who have not requested a
hearing be
| ||
delayed by reason of the request for a hearing by any unrelated | ||
claimant.
| ||
(h) Within 30 days after a failure of a licensee, the | ||
Director shall
appoint an Administrative Law Judge for the | ||
hearings. The Director shall
appoint a person licensed to | ||
practice law in this State; who is believed to be
knowledgeable | ||
with regard to agriculture and the grain industry in Illinois;
| ||
who has no conflict of interest; and who at the time of his or | ||
her appointment
is not working for or employed by the | ||
Department in any capacity whatsoever.
| ||
(i) For the purposes of this Article, the "reasonably
| ||
ascertainable" standard shall be satisfied when the Department
| ||
conducts a review of the failed licensee's books and records | ||
and an
interview of office and clerical personnel of the failed | ||
licensee.
| ||
(j) It is the intent of this Act that the time periods and | ||
deadlines in
this Section 25-5 are absolute, and
are not to be |
tolled, or their operation halted or delayed.
In the event of a | ||
bankruptcy by a licensee,
the Director shall seek to have | ||
commenced any
proceedings that are necessary and
appropriate to | ||
lift the automatic stay or make it otherwise inapplicable to | ||
the
actions
of the Department with regard to the claims | ||
determination process. In all other
cases, the Department shall | ||
seek to have commenced the proceedings necessary to
| ||
expeditiously remove or lift any order of any court
or | ||
administrative agency that might attempt to delay the time | ||
periods and
deadlines contained in this Section 25-5.
| ||
(Source: P.A. 93-225, eff. 7-21-03.)
| ||
Section 99. Effective date. This Act takes effect upon | ||
becoming law.
|