February 25, 2005



HOUSE BILL No. 1780

_____


DIGEST OF HB 1780 (Updated February 23, 2005 2:59 pm - DI 14)



Citations Affected: IC 15-4; IC 15-5; noncode.

Synopsis: Deer operations and marketing. Adds cervidae to the commodity market development program. Establishes a registration program for cervidae livestock operations within the department of agriculture. Exempts accredited zoos and certain federally regulated operations. Provides that privately owned cervidae are the property of the owner. Allows cervidae meat and products to be sold. Establishes operational standards for cervidae livestock operations. Establishes fees for registration of an operation. Establishes penalties for violations.

Effective: Upon passage; July 1, 2005.



Friend, Gutwein, Hoffman


    January 19, 2005, read first time and referred to Committee on Agriculture and Rural Development.
    February 24, 2005, amended, reported _ Do Pass.



February 25, 2005

First Regular Session 114th General Assembly (2005)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2004 Regular Session of the General Assembly.

HOUSE BILL No. 1780


    A BILL FOR AN ACT to amend the Indiana Code concerning agriculture and animals.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 15-4-3.5-1; (05)HB1780.1.1. -->     SECTION 1. IC 15-4-3.5-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. As used in this chapter:
    (a) "Agricultural commodity" means poultry, poultry products, cattle, dairy products, sheep, wool, mint, or soybeans, or cervidae.
    (b) "Commercial quantity" means a quantity produced and marketed through commercial channels of trade.
    (c) "Dean" means the dean of agriculture of Purdue University or his designee.
    (d) "Commodity market development council" means a group representative of the commodity, referred to as the "council" in this chapter.
    (e) "Handler" means any person who engages in the selling, marketing, or distribution of any agricultural commodity, which he has purchased for resale or which he is marketing on behalf of a producer, and shall include a producer who distributes any agricultural commodity which he has produced.
    (f) "Processor" means any person engaged in the receiving, grading, packing, canning, freezing, drying, or other methods of preparation for market of agricultural commodities produced in Indiana for sale.
    (g) "Producer" means any individual, firm, limited liability company, corporation, partnership, or unincorporated association engaged within this state in the business of producing for market or receiving income from any agricultural commodity in commercial quantities.
SOURCE: IC 15-4-3.5-5; (05)HB1780.1.2. -->     SECTION 2. IC 15-4-3.5-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 5. (a) If the director approves the petition, in whole or as revised, he shall call a referendum among producers of commercial quantities of the commodity to vote upon establishment of the proposed commodity market development program.
    (b) Prior to the issuance of a notice of referendum on any proposed commodity market development program, the director shall establish the number of producers qualified of that particular agricultural commodity. The producers must register with the director and he shall maintain a list of those producers. A minimum of twenty percent (20%) of the producers must register before a referendum may be held. Any registration period for establishing, continuing, changing, or terminating a marketing program shall be established by the director after the director calls for a referendum. Postdating of a registration is unlawful and void. Such producer or handler lists shall be final and conclusive in making determinations relative to the assent of producers upon the issuance, amendment, or termination of a commodity market development program.
    (c) The director shall publish a notice of referendum to the attention of producers in such newspapers or trade journals within the affected area as the director prescribes, and in addition, he may mail notice to all producers or handlers on his current list of producers.
    (d) If the majority of those who actually vote is in favor of the adoption of the proposal in the petition, the director shall declare the proposal to be adopted.
    (e) A proposal to change the amount of the fee to be collected or to make other major changes may be made by a two-thirds (2/3) vote of the council or by petition of twenty-five percent (25%) of the commodity producers. The proposal shall then be submitted to referendum under which the same percentages by number and production shall be required for approval as were required for establishment of the original market development program.
    (f) A proposal to terminate a commodity market development

program may be made by a majority of the council or by petition of two percent (2%) of the commodity producers. The proposed termination shall be submitted to referendum under which a simple majority of those voting shall be required for termination.
    (g) No referendum to set up a market development council in a particular commodity or to change the amount of fee or to make other major changes or to terminate a commodity market development council may be held within twelve (12) months of a referendum conducted for a similar purpose for the same commodity.
    (h) A referendum on the continuation of the council shall be conducted at least once every three (3) years by the director.
    (i) Registration for a referendum on the continuation or repeal of a program shall be open to all eligible producers and not limited to those registered for the initial referendum.
     (j) This section does not apply to the fee or participation of a commodity market program for cervidae.

SOURCE: IC 15-4-3.5-6.5; (05)HB1780.1.3. -->     SECTION 3. IC 15-4-3.5-6.5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 6.5. (a) The fee shall be paid at the time the final producer places the agricultural commodity in a commercial channel of trade. "Commercial channel of trade" means that series of transactions leading directly from the final producer of the agricultural commodity to the purchase of the agricultural commodity by a processor.
     (b) The fee for cervidae shall be paid from cervidae livestock facility fees and hunting preserve transportation tags fees.
SOURCE: IC 15-4-3.5-7; (05)HB1780.1.4. -->     SECTION 4. IC 15-4-3.5-7 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 7. (a) Any fee imposed under the commodity market development program shall be collected by the director from the producers or from the handlers or processors, except:
         (1) ninety-seven percent (97%) of the fee imposed under the commodity market development program for cattle, dairy products, or soybeans shall be collected by the director from the producers or from the handlers or processors who may retain the remaining three percent (3%) as compensation for collecting the fee; and
        (2) the fee for cervidae shall be collected by the commissioner of agriculture.
    (b) If any market development fee is unpaid on the date on which the fee was due and payable, a penalty of one percent (1%) per month shall apply from and after that date until payment plus the penalty is received by the director. If, after due notice, any person defaults in any

payment of the fee or penalties thereon, the amount due shall be collected by civil action in the name of the state of Indiana at the request of the director, and the person adjudged in default shall pay the costs of the action. The attorney general, at the request of the director, and, if requested by the attorney general, the prosecuting attorney of any county, in which a cause of action arose under the provisions for the collection of fees due and unpaid, shall institute proper action in the courts of this state for the collection of fees and penalties thereon due and unpaid.
    (c) All fees shall be paid to the director to be credited to the "individual commodity council market development fund" which is hereby created. All money credited to the commodity council market development fund less administration expenses shall be expended by the director for the use and benefit of the commodity councils.
    (d) At least annually, the director shall submit to the council a statement showing all receipts, administration expenses, refunds and the balance credited to the commodity council market development fund.
    (e) Notwithstanding anything contained in this chapter to the contrary, there shall be collected no more than one (1) fee per commodity, under this chapter and under a federal program for promotion or market development.

SOURCE: IC 15-5-19; (05)HB1780.1.5. -->     SECTION 5. IC 15-5-19 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]:
     Chapter 19. Privately Owned Cervidae Producers Marketing Act
    Sec. 1. This chapter may be cited as the "privately owned cervidae producers marketing act".
    Sec. 2. This chapter does not apply to the following:
        (1) A zoo accredited by the American Zoo and Aquarium Association or by another accrediting organization approved by the department.
        (2) A research facility or a circus that is licensed or registered by the United States Department of Agriculture under the federal Animal Welfare Act of 1970, as amended (7 U.S.C. 2131 et seq).
    Sec. 3. The following definitions apply throughout the chapter:
        (1) "Biosecurity" means measures, actions, or precautions taken to prevent the transmission of disease between free ranging and privately owned cervidae.
        (2) "Board" means the Indiana state board of animal health

established by IC 15-2.1-3-1.
        (3) "Business plan" means a written document that defines the methods, protocols, or procedures that the person intends on implementing.
        (4) "Cervidae livestock facility" means a privately owned cervidae livestock operation on private land capable of holding cervidae.
        (5) "Cervidae livestock operation" means a registered operation that contains at least one (1) privately owned cervidae and that involves the producing, growing, propagating, using, harvesting, transporting, exporting, importing, or marketing of cervidae or cervidae products.
        (6) "Cervidae products" means products, coproducts, or byproducts of cervidae, including antler, antler velvet, meat, or any part of the animal.
        (7) "Cervidae" means members of the cervidae family including deer, elk, moose, reindeer, and caribou.
        (8) "Department" refers to the Indiana office of the commissioner of agriculture.
        (9) "Commissioner" refers to the commissioner of the department or the commissioner's designee.
        (10) "Farm operation" means a farm operation (as defined in IC 8-23-17-5).
        (11) "Flush" means to move or chase wild cervidae from a cervidae livestock facility.
        (12) "Identify" means a documentable system or process that allows a person to recognize as separate or different an individual animal, as adopted by the board.
        (13) "Law enforcement officer" has the meaning set forth in IC 35-41-1-17.
        (14) "Owner" means the person who owns or is responsible for a cervidae livestock operation.
        (15) "Person" means an individual, a corporation, a limited liability corporation, a partnership, an association, a joint venture, or another legal entity.
        (16) "Release" means to cause an animal to become located outside the perimeter fence of a cervidae livestock facility and not under the direct control of the owner.
        (17) "Wild cervidae" means a cervidae that is not located on a cervidae livestock facility after all free ranging cervidae have been flushed from the facility.
    Sec. 4. (a) A cervidae livestock operation is a farm operation

and is considered to be part of the farming and agricultural industry of Indiana. The board shall assure that cervidae livestock operations are afforded all rights, privileges, opportunities, and responsibilities of other farm operations.
    (b) Cervidae livestock operations are a form of agriculture. Cervidae livestock facilities and their equipment are considered to be agricultural facilities and equipment. Uses related to the farming operation of cervidae are considered agricultural uses.
    (c) Cervidae and cervidae products legally produced, purchased, possessed, or acquired within Indiana or imported into Indiana are the exclusive and private property of the owner.
    (d) An owner harvesting privately owned cervidae from a registered cervidae livestock facility is exempt from possession limits and closed seasons involving cervidae imposed by the department of natural resources. This chapter does not give a cervidae livestock operation authority to take wild cervidae, unless a permit is issued by the department of natural resources.
    (e) Any movement, importing, or exporting of cervidae or cervidae products must comply with this chapter and rules adopted by the board.
    (f) Meat and products derived from privately owned cervidae may be sold to the general public, subect to IC 15-2.1-24.
    (g) Subject to this chapter, a cervidae livestock facility may produce, grow, propagate, use, harvest, transport, export, import, or market cervidae or cervidae products.
    (h) The sale of cervidae products must comply with public health laws.
    Sec. 5. (a) A person may not operate a cervidae livestock operation unless the person obtains from the department a cervidae livestock facility registration. A cervidae livestock facility that is regulated by another governmental agency is not exempt from requirements of this chapter.
    (b) An owner shall:
        (1) keep and maintain records of production, purchases, or imports in order to establish proof of ownership;
        (2) keep any other records required under standards under section 6 of this chapter; and
        (3) when transporting cervidae, produce the following documentation:
            (A) The origin of the shipment.
            (B) Copies of registration or permits.
            (C) The shipping destination.

            (D) Any other proof required by the board or a law enforcement officer.
    (c) Subject to subsection (d), a cervidae livestock facility in existence before May 15, 2005, is required to obtain a registration under this chapter not later than January 1, 2006, to continue engaging in a cervidae livestock operation.
    (d) A person licensed by the department of natural resources to maintain cervidae in captivity under a breeders license issued under IC 14-22-20 must be registered under this chapter when the person's breeder's license expires or by January 1, 2006, whichever is earlier.
    Sec. 6. (a) A completed initial application for registration must be submitted to the board not less than sixty days (60) before the construction of the cervidae livestock facility. The department shall adopt standards to evaluate the issuance, maintenance, modification, and renewal of a registration issued under this chapter. In addition, the board shall adopt standards with respect to facilities, records, recovery protocol for any animals that become released, oversight responsibilities, and reporting. These standards must be published in a document entitled "Operational Standards for Registered Privately Owned Cervidae Facilities", which the board shall make available electronically on the board's web site. The board, after consultation with the department of natural resources, may adopt rules to amend, update, or supplement the standards adopted in this subsection.
    (b) As part of the registration application, the applicant shall submit a business plan that complies with the standards under this section and includes the following:
        (1) The complete address of the proposed cervidae livestock facility and the size, the location, and a legal description of the lands on which the cervidae livestock operation will be conducted.
        (2) The estimated number of cervidae species included in the proposed facility.
        (3) Biosecurity measures to be used, including methods of fencing and appropriate animal identification, as required by the board.
        (4) The proposed method of flushing wild cervidae from the enclosure, if applicable.
        (5) The proposed record keeping system.
        (6) The method of verification that wild cervidae have been removed.
        (7) Any other information considered necessary by the department.
    (c) Upon receipt of an application, the board shall forward a copy to the department of natural resources.
    (d) The department may not issue an initial cervidae livestock facility registration or modification unless the application demonstrates all the following:
        (1) The cervidae livestock facility has been inspected by the board and the board has determined that the cervidae livestock facility:
            (A) meets the applicable standards and requirements;
            (B) complies with the business plan; and
            (C) determines that there are barriers in place to prevent the escape of cervidae and prevent the entry of wild cervidae.
        In the case of whitetail deer, elk, red deer, moose, and mule deer, a perimeter fence must be at least eight (8) feet high. In the case of sika deer, fallow deer, reindeer, and caribou, a perimeter fence must be at least six (6) feet high.
        (2) Individual animals are appropriately identified, as required by the board.
    (e) Upon receipt of a denial under this section, the applicant may submit a written request for an informal board review. The board shall provide the requested informal board review of the application. The review must include the applicant, the board, and the department of natural resources. After the informal board review, if the board determines that the proposed cervidae livestock facility or cervidae livestock operation:
        (1) complies with the requirements of this chapter, the board shall issue a registration within thirty (30) days after the applicant notifies the board of completion of the facility; or
        (2) does not comply with the requirements of this chapter, the board shall affirm the denial of the application in writing and specify the deficiencies needed to be addressed or corrected in order for a registration to be issued.
    (f) The applicant may waive the informal board review in the application.
    Sec. 7. (a) When the construction of the cervidae livestock facility is completed, the applicant shall notify the board in writing. Within thirty (30) days after notification of the completion of the cervidae livestock facility, the board shall inspect the cervidae livestock facility. The board shall issue a registration within thirty

(30) days after completion of the inspection to a cervidae livestock facility that conforms to standards under this chapter. The time periods described in this subsection may be extended by the board only if the board is unable to verify the removal of wild cervidae or for an act of nature.
    (b) The board shall deny the application for registration if the proposed cervidae livestock facility does not comply with the requirements of this chapter. The board shall notify in writing an applicant of the reasons for a registration denial within sixty (60) days after receipt of the completed application. The notice must specify in writing the deficiencies to be corrected in order for a registration to be issued.
    (c) Without filing a second application under this section, an applicant may request a second inspection after the specified deficiencies have been corrected. The board is not required to make more than two (2) preregistration inspections of the same proposed cervidae livestock facility per application.
    (d) Upon receipt of a second denial under this section, the applicant may submit a written request for an informal board review. The board shall provide the requested informal board review of the application. The review must include the applicant, the board, and the department of natural resources. After the informal board review, if the board determines that the proposed cervidae livestock facility or cervidae livestock operation:
        (1) complies with the requirements of this chapter, the board shall issue a registration within thirty (30) days after the applicant notifies the board of completion of the facility; or
        (2) does not comply with this chapter, the board shall affirm the denial of the application in writing and specify the deficiencies needed to be addressed or corrected in order for a registration to be issued.
The applicant may waive the informal board review of the application.
    (e) The applicant may request an administrative hearing under IC 4-21.5 concerning a denial of registration or upon any limitations placed on a registration.
    (f) Application fees under this chapter are not refundable.
    Sec. 8. (a) A registration issued by the board must contain the following information:
        (1) The registration number and expiration date.
        (2) The cervidae species involved in the cervidae livestock facility.

        (3) The complete name of the applicant, business name, business address, and telephone number of the cervidae livestock facility.
        (4) The complete address of the cervidae livestock facility location.
        (5) The complete name, address, and telephone number of the board contact person regarding cervidae livestock operations.
    (b) The board shall issue to a person meeting the requirements of this chapter a registration to operate a cervidae livestock facility.
    (c) The board shall, subject to rules, charge five hundred dollars ($500) for initial and renewal applications for the registration of cervidae facilities. The board may adopt rules to establish the application and renewal fees for a cervidae livestock facilities. However, the fees may not be increased by a rate of more than five percent (5%) per calendar year.
    (d) The proceeds from the application fees must be distributed in the following manner:
        (1) To the board, seventy-five percent (75%) to be used to promote cervidae and administer this chapter.
        (2) To the department of agriculture, twenty percent (20%) to be deposited in the livestock promotion fund to be used to promote cervidae and administer this chapter.
        (3) To the commissioner, five percent (5%) to be used by the Indiana Deer and Elk Farmers Association under IC 15-4-3.5 to promote and market cervidae.
    (e) The board shall send to a cervidae livestock facility owner a renewal application sixty (60) days before the expiration of the registration.
    (f) An application for registration renewal must be submitted not later than thirty (30) days before expiration of the current registration. Each registration issued is valid for three (3) years after the date of issuance.
    (g) A renewal submitted later than thirty (30) days before expiration of the current registration requires submission of an initial application. If the board fails to process a complete renewal application that was submitted on time, the current registration is valid until the board processes the renewal application.
    (h) A new owner of a cervidae livestock facility must notify the board in writing of the change in ownership. If a cervidae livestock facility's registration will expire within six (6) months from the date that the board is notified, the new owner must apply for a new

registration.
    Sec. 9. A registered cervidae livestock facility shall apply for a modification of the cervidae livestock facility registration before making any change to the facility that would lead to a change in the registration classification or a dramatic change in the business plan. The board shall provide the modification application to the applicant and make the application form available on the board's web site.
    Sec. 10. (a) The board shall enter into a memorandum of understanding with the department of natural resources for determining compliance by persons engaged in cervidae livestock operations, applicants, and registered cervidae livestock facilities with this chapter and investigation of violations of this chapter.
    (b) Subject to subsection (a), the board shall obtain written confirmation from the department of natural resources that:
        (1) the department of natural resources has approved the method used to flush any wild cervidae from the facility; and
        (2) all wild cervidae have actually been flushed before issuing any registration under this chapter.
    (c) The board is responsible for investigating violations of this chapter.
    Sec. 11. Any wild cervidae remaining in the cervidae livestock facility after a person has flushed wild cervidae under a method approved under subsection (b)(1) must be killed or tranquilized and removed by or under the authority of the department of natural resources. The facility owner shall pay the state two hundred fifty dollars ($250) per cervid that must be killed under the permit issued to meet the requirements of this section. The fees must be deposited in the fish and wildlife fund.
    Sec. 12. (a) The board or an agent of the board shall have access at all reasonable hours to any cervidae livestock facility to:
        (1) inspect and determine compliance with this chapter; and
        (2) secure samples or specimens of any cervidae.
An inspection shall be conducted in a manner that does not jeopardize the health of the cervidae.
    (b) The board may inspect a registered cervidae livestock facility to confirm that:
        (1) there are procedures or barriers designed to prevent the escape of cervidae;
        (2) all cervidae are accounted for; and
        (3) compliance is within the requirements in this chapter.
    (c) The board must notify the owner or operator of the facility

at least forty-eight (48) hours before an inspection.
    Sec. 13. A person may not:
        (1) knowingly provide the board with false information; or
        (2) resist, impede, or hinder the board's duties under this chapter.
    Sec. 14. (a) After an opportunity for an administrative hearing, the board may deny, suspend, revoke, or limit a registration if the applicant or registrant fails to comply with this chapter or orders issued by the board as a result of an administrative action or informal board review conducted under this chapter.
    (b) Except in the case of an informal board review, the board shall conduct an administrative proceeding under IC 4-21.5.
    Sec. 15. Except as provided in section 16 of this chapter, a person who knowingly or intentionally violates this chapter commits a Class B misdemeanor.
    Sec. 16. (a) This section does not prohibit the sale, breeding, marketing, exhibition, or other approved uses of cervidae in the manner allowed by law.
    (b) A person may not release or allow the release of any cervidae from a cervidae livestock facility. An animal that escapes from a facility is considered to be public property if the operator of a cervidae livestock facility does not notify the board as required by rules adopted under this chapter.
    (c) A person may not cause the ingress of wild cervidae into a cervidae livestock facility.
    (d) An owner may not abandon a registered cervidae livestock facility without first notifying the board in compliance with the standards established under this chapter.
    (e) Except as provided in subsection (f), a person who violates subsection (b), (c), or (d) commits:
        (1) a Class B infraction; or
        (2) a Class A infraction for each subsequent offense.
    (f) A person who knowingly or intentionally violates subsection (b), (c), or (d) commits a Class B misdemeanor.
    Sec. 17. (a) A court may allow the board to recover reasonable costs and attorney's fees incurred in a prosecution resulting in a judgment or conviction for a violation of section 15 or 16 of this chapter.
    (b) Upon finding that a person has violated this chapter, the board after an informal or administrative hearing or under a rule may issue an order to do either of the following:
        (1) Issue a warning.

        (2) Impose an administrative fine of not more than one thousand dollars ($1,000) plus the costs of investigation for each violation after notice and an opportunity for a hearing. A person aggrieved by an administrative fine issued under this section may request a hearing under IC 4-21.5.
    (c) The board shall notify the attorney general of the failure of any person to pay an administrative fine imposed under this section. The attorney general shall bring a civil action in a court to recover the fine. Civil penalties collected shall be paid to the general fund.
    (d) The board may bring an action to do either or both of the following:
        (1) Obtain a declaratory judgment that a method, an activity, or a practice violates this chapter.
        (2) Obtain an injunction against a person who engages in a method, an activity, or a practice that violates this chapter.
    (e) The remedies under this chapter are cumulative, and the use of one (1) remedy does not prohibit the use of another remedy.
    Sec. 18. The board may adopt rules under IC 4-22-2 necessary to implement and enforce this chapter.
     Sec. 19. (a) As used in this section, "commercial channel of trade" means any series of transactions leading directly from a final producer of an agricultural commodity to the purchase of the agricultural commodity by a processor.
    (b) A fifteen dollar ($15) fee shall be remitted to the board by the seller of every cervidae that is one (1) year of age or older. A five dollar ($5) fee shall be remitted to the board by the seller of every cervidae that is less than one (1) year of age.
    (c) The proceeds from the fees described in subsection (b) must be distributed in the following manner:
        (1) Seventy five percent (75%) distributed to the board to be used to administer this chapter.
        (2) Twenty percent (20%) distributed to the department for deposit in the livestock promotion fund to be used to promote cervidae and administer this chapter.
        (3) Five percent (5%) distributed to the commissioner to be used by Indiana Deer and Elk Farmers Association under IC 15-4-3.5 to promote and market cervidae.
     (d) A final producer shall pay the fees described in subsection (b) when the final producer places the agricultural commodity in a commercial channel of trade.
     Sec. 20. No provision of this chapter shall be construed to

restrict the board's authority under IC 15-2.1.

SOURCE: ; (05)HB1780.1.6. -->     SECTION 6. [EFFECTIVE UPON PASSAGE] The Indiana state board of animal health shall formulate proposed rules under IC 4-22-2 not later than September 1, 2005, with respect to the document described in IC 15-5-19-6, as added by this act, entitled "Operational Standards for Registered Privately Owned Cervidae Facilities".