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CHAPTER 20:10:12

GRAIN BUYERS

Section

20:10:12:01 to 20:10:12:04  Repealed.

20:10:12:05                           Form of grain buyer's bond.

20:10:12:05.01                      Form of grain buyer's additional bond.

20:10:12:05.02                      Release of bonds.

20:10:12:06                           Repealed.

20:10:12:07                           Form of acknowledgement.

20:10:12:08                           Corporate surety required.

20:10:12:09                           Posting of license required.

20:10:12:10 to 20:10:12:12  Repealed.

20:10:12:13                           Notice required to credit seller of grain.

20:10:12:14                           Financial statement requirements.

20:10:12:15                           Financial criteria for licensing.

20:10:12:16                           Notice of license and regulation by the commission.

20:10:12:17                           Request for waiver of rule.

20:10:12:18                           Notice to public of license suspension or revocation.

20:10:12:19                           Notice requirements for transfer of ownership.


Rule 20:10:12:01 Repealed.

          20:10:12:01.  Application of grain dealers' law.Repealed.

          Source: SL 1975, ch 16, § 1; repealed, 12 SDR 85, effective November 24, 1985.


Rule 20:10:12:02 Repealed.

          20:10:12:02.  Bond required.Repealed.

          Source: SL 1975, ch 16, § 1; repealed, 12 SDR 85, effective November 24, 1985.


Rule 20:10:12:03 Repealed.

          20:10:12:03.  Unauthorized purchase of grain defined.Repealed.

          Source: SL 1975, ch 16, § 1; repealed, 12 SDR 85, effective November 24, 1985.


Rule 20:10:12:04 Repealed.

          20:10:12:04.  Identifying decals provided.Repealed.

          Source: SL 1975, ch 16, §  1; repealed, 12 SDR 85, effective November 24, 1985.


Rule 20:10:12:05 Form of grain buyer's bond.

          20:10:12:05.  Form of grain buyer's bond. The Public Utilities Commission shall furnish the grain buyer's bond form required by SDCL 49-45-9 and the bond form shall contain the following:

 

          (1)  Name and address of the principal;

          (2)  Name and address of the surety;

          (3)  Purpose of the bond;

          (4)  Each location of the buyer;

          (5)  Starting and ending date of the license for which the bond is given;

          (6)  Amount of the bond;

          (7)  Bond obligation;

          (8)  Signatures of the principal and the surety;

          (9)  Acknowledgements;

          (10)  Statutory authority for the bond; and

          (11)  If the bond is for both a grain warehouseman's and a grain buyer's license, a recitation that the bond amounts are separate and not in the aggregate for both bonds.

 

          Source: 12 SDR 85, retroactively effective July 1, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 190, effective July 15, 1998; 35 SDR 48, effective September 9, 2008; 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(1).

          Law Implemented: SDCL 49-45-9.

 


Rule 20:10:12:05.01 Form of grain buyer's additional bond.

          20:10:12:05.01.  Form of grain buyer's additional bond. If a licensed grain buyer furnishes an additional bond to add locations or to bring the bond amount into compliance with the requirements of SDCL 49-45-9, or both, the additional bond may be a rider executed by the corporate surety who issued the original bond filed with the commission or an additional bond executed by a second corporate surety.

 

          A rider or additional bond shall be in substantially the same form as required by § 20:10:12:05 for original bonds. The rider or additional bond shall state the name and locations of the grain buyer licensee's facilities covered by the bond.

 

          Source: 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(1).

          Law Implemented: SDCL 49-45-9.

 


Rule 20:10:12:05.02 Release of bond.

          20:10:12:05.02.  Release of bonds. An original bond filed with the commission for the license year may not be released unless a new bond is executed to replace the original bond for the entire license year.

 

          Source: 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(1).

          Law Implemented: SDCL 49-45-9.

 


Rule 20:10:12:06 Repealed.

          20:10:12:06.  Alternative bond form permissible.Repealed.

          Source: 12 SDR 85, retroactively effective July 1, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; repealed, 24 SDR 190, effective July 15, 1998.


Rule 20:10:12:07 Form of acknowledgement.

          20:10:12:07.  Form of acknowledgement. The surety bonds set forth in § 20:10:12:05 shall be acknowledged by the principal and the corporate surety before a notary public. The surety shall attach a valid power of attorney.

          Source: 12 SDR 85, retroactively effective July 1, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 190, effective July 15, 1998.

          General Authority:SDCL 49-45-6(1).

          Law Implemented:SDCL 49-45-6(1).


Rule 20:10:12:08 Corporate surety required.

          20:10:12:08.  Corporate surety required. The grain buyer's bond filed with the commission shall be provided by a corporate surety company authorized to do business in the state of South Dakota.

 

          Source: 12 SDR 85, retroactively effective July 1, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 35 SDR 48, effective September 9, 2008.

          General Authority: SDCL 49-45-6(1).

          Law Implemented: SDCL 49-45-9.

 


Rule 20:10:12:09 Posting of license required.

          20:10:12:09.  Posting of license required. Grain buyers which operate a grain warehouse building shall post the grain buyer's license issued by the commission in a conspicuous location in the warehouse building.

 

          Source: 12 SDR 85, effective November 24, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 35 SDR 48, effective September 9, 2008.

          General Authority: SDCL 49-45-6(2).

          Law Implemented: SDCL 49-45-1, 49-45-6(2).

 


Rule 20:10:12:10 Repealed.

          20:10:12:10.  Placement of grain buyer decals. Repealed.

 

          Source: 12 SDR 85, effective November 24, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 35 SDR 48, effective September 9, 2008; repealed, 40 SDR 39, effective September 9, 2013.

 


Rule 20:10:12:11 Repealed.

          20:10:12:11.  Replacement decals. Repealed.

 

          Source: 12 SDR 85, effective November 24, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 35 SDR 48, effective September 9, 2008; repealed, 40 SDR 39, effective September 9, 2013.

 


Rule 20:10:12:12 Repealed.

          20:10:12:12.  Return of decals required after license revocation. Repealed.

 

          Source: 12 SDR 85, effective November 24, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 35 SDR 48, effective September 9, 2008; repealed, 40 SDR 39, effective September 9, 2013.

 


Rule 20:10:12:13 Notice required to credit seller of grain.

          20:10:12:13.  Notice required to credit seller of grain. The terms of a voluntary credit sale of grain shall contain the following statement: "This contract is not protected by South Dakota statutory bond coverages." This statement shall be printed in red or bold type immediately above the seller's signature line.

 

          In addition to this statement, each voluntary credit sale contract shall include the following:

 

          (1)  Name of the grain buyer;

          (2)  Name of the seller;

          (3)  Amount and type of grain;

          (4)  Grade of the grain;

          (5)  Method of pricing;

          (6)  Service charges or other fees;

          (7)  Advances against the contract;

          (8)  A statement that title to the grain passes to buyer upon delivery; and

          (9)  Signature and date of signature for both the seller and buyer immediately preceded by statement required in this section. However, if the voluntary credit sale contract is signed by only one of the parties to the contract, the requirements of this subsection are considered met if, within a reasonable time, a writing in confirmation of the contract and sufficient against the sender is received and the party receiving the writing in confirmation has reason to know its contents, unless written notice of objection to its contents is given within two days after the writing in confirmation is received.

 

          Source: 12 SDR 85, effective November 24, 1985; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 190, effective July 15, 1998; 35 SDR 48, effective September 9, 2008; 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(4), 49-45-11.

          Law Implemented: SDCL 49-45-11.

 


Rule 20:10:12:14 Financial statement requirements.

          20:10:12:14.  Financial statement requirements. Each applicant for a public grain buyer's license shall submit financial statements for the most recently completed year of operation. The financial statements may not be prepared by the applicant or an employee of the applicant, and if the applicant is a partnership or corporation, by an officer, shareholder, partner, or an employee of the partnership or corporation.

 

          An applicant for a class A grain buyer license shall submit financial statements prepared by a certified or independent public accountant at the review, or audit level, or detailed financial statements prepared by an approved grain commission or management firm in accordance with generally accepted accounting principles or international financial reporting standards.

 

          An applicant for a class B grain buyer license shall submit financial statements prepared by a certified or independent public accountant, a grain commission or management firm, or other individual skilled in the preparation of financial statements.

 

          If the commission determines that the first financial statements submitted are incomplete or otherwise unsatisfactory, the commission may require the applicant to submit a second set of financial statements prepared by a certified or independent public accountant in accordance with general accepted accounting principles or international financial reporting standards at the compilation, review, or audit level.

 

          The financial statements must include a balance sheet and statement of profit and loss. If a statement of retained earnings, a statement of cash flows, a statement of changes in financial position, or notes and disclosures to the financial statements have been prepared, those items must also be submitted.

 

          If the valuation of any assets are listed at fair market value, those valuations shall be established or confirmed by a person experienced in making assessments of the fair market value of fixed assets. The valuations must be accompanied by a statement signed by the person who establishes or confirms the values stating that such person:

 

          (1)  Has no interest in the property;

          (2)  Is not an employee of the applicant; and

          (3)  Has no personal bias with respect to the parties involved.

 

          Source: 24 SDR 190, effective July 15, 1998; 35 SDR 48, effective September 9, 2008; 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(5).

          Law Implemented: SDCL 49-45-7, 49-45-7.1.

 


Rule 20:10:12:15 Financial criteria for licensing.

          20:10:12:15.  Financial criteria for licensing. At a minimum, for a class A license the applicant's balance sheet must show a positive net worth of $100,000. At a minimum, for a class B license the applicant's balance sheet must show a positive net worth. In determining net worth for a class A or class B applicant, the commission may disallow the following assets if the assets are withdrawals of equity or are uncollectible:

 

          (1)  Accounts and notes receivable from or advances to stockholders, owners, partners, employees, or affiliates;

          (2)  Accounts receivable over 180 days old;

          (3)  Investments or equities in cooperatives; or

          (4)  Goodwill.

 

          At a minimum, the balance sheet for a class A or class B applicant must show current assets greater than current liabilities. In determining working capital, the commission may disallow the following assets if the assets are withdrawals of equity or are uncollectible:

 

          (1)  Accounts and notes receivable from or advances to stockholders, owners, partners, employees, or affiliates;

          (2)  Accounts receivable over 180 days old;

          (3)  Investments or equities in cooperatives; or

          (4)  Goodwill.

 

          Source: 24 SDR 190, effective July 15, 1998; 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(5).

          Law Implemented: SDCL 49-45-7.

 


Rule 20:10:12:16 Notice of license and regulation by the commission.

          20:10:12:16.  Notice of license and regulation by the commission. A grain buyer shall keep posted at all times in a conspicuous place in its facility, a printed notice that it is a bonded grain buyer licensed and regulated by the South Dakota Public Utilities Commission. This notice shall also include the address, phone number, and web site address of the Public Utilities Commission.

 

          Source: 35 SDR 48, effective September 9, 2008.

          General Authority: SDCL 49-45-6(6).

          Law Implemented: SDCL 49-45-6(6).

 


Rule 20:10:12:17 Request for waiver of rule.

          20:10:12:17.  Request for waiver of rule. A licensed grain buyer may request a waiver of any rule in this chapter. The commission may grant a waiver if it finds that the waiver would not be detrimental to grain sellers and is in the public interest.

 

          Source: 35 SDR 48, effective September 9, 2008.

          General Authority: SDCL 49-45-6(1) to (6), inclusive.

          Law Implemented: SDCL 49-45-1, 49-45-7.

 


Rule 20:10:12:18 Notice to public of license suspension or revocation.

          20:10:12:18.  Notice to public of license suspension or revocation. Following the suspension or revocation of a grain buyer's license, notice thereof shall be posted by an agent or employee of the commission in a conspicuous place on the premises of all locations where grain is received. If necessary to protect the public, the notice shall also be published by the commission in at least one newspaper of general circulation in the area served by the grain buyer.

 

          Source: 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(8).

          Law Implemented: SDCL 49-45-6(8), 49-45-16, 49-45-19.

 


Rule 20:10:12:19 Notice requirements for transfer of ownership.

          20:10:12:19.  Notice requirements for transfer of ownership. At least 30 days before the transfer of ownership of a grain buyer's grain receiving facility licensed by the commission, the grain buyer shall notify, in writing, each producer who is due payment for grain delivered to the grain buyer, has an open voluntary credit sale contract, an open delivery contract, or any other open contract or written agreement pending with the licensee. The surety named in the grain buyer's bond shall also be notified of the pending transfer of ownership at least 30 days before the transfer. A licensed grain buyer who transfers ownership of a grain receiving facility licensed by the commission shall notify the commission of the pending transfer seven days before notifying open contract holders and the surety named in the grain buyer's bond.

 

          Source: 40 SDR 39, effective September 9, 2013.

          General Authority: SDCL 49-45-6(8).

          Law Implemented: SDCL 49-45-6(8).

 


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