Brand Board Proposed
Legislation for 2008 Session
The following are
the proposed legislation and the corresponding bill brief.
1. RAISING THE BRAND
INSPECTION FEE CAP
FOR AN ACT ENTITLED, An act to raise the cap on livestock
inspection fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH
DAKOTA:
Section 1. That §40-18-16 be amended to read as follows:
40-18-16. The board may promulgate rules pursuant to
chapter 1-26 to:
(1) Describe prohibited brand symbols for various
types of livestock and identify locations on animals where a brand is permitted;
(2) Provide for the registration, transfer and renewal
of livestock brands;
(3) Establish a brand registration fee not to exceed
twenty-five dollars;
(4) Establish a brand renewal fee not to exceed ten
dollars per year or a brand renewal fee not to exceed fifty dollars for each
five-year ownership period and a brand transfer fee not to exceed twenty-five
dollars;
(5) Establish an ownership inspection fee not to
exceed eighty cents one dollar for each head of livestock
cattle and ten dollars for each horse or mule;
(6) Establish recordable livestock brands;
(7) Establish law enforcement, ownership inspection
and transportation requirements within or without the ownership inspection area;
(8) Establish a duplicate certificate fee not to
exceed five dollars;
(9) Establish a mileage fee for inspectors not to
exceed the rate set by the state board of finance.
Bill Brief
This bill would amend SDCL 40-18-16 by increasing the
maximum allowable inspection fee that the Brand Board could adopt for the
ownership inspection of livestock. The Brand Board sets the inspection fee by
administrative rule after public hearing. Currently, the maximum inspection fee
the Board can adopt is 80 cents per head of livestock. The Board has by
administrative rule set the inspection fee at 80 cents, and lacks the statutory
authority to increase the fee further.
This amendment increase the maximum fee the Board could
adopt if circumstances warranted. The current fee could not be raised by the
Board, however, without adopting a new administrative rule. There are currently
no plans to do so, but with the market conditions fostered by the continuing
drought, cattle numbers could dwindle making it impossible to pay the expenses
of the current ownership inspection program under the existing inspection fee.
The amendment also proposes treating the ownership
inspection of horses and mules differently from cattle. Currently the
inspection program is loosing money on inspection of horses. It is simply not
economically feasible to drive into the country side to inspect one, or a small
number of horses. The result is that cattle producers are subsidizing the
inspection of horses. The Board seeks to find a level where horse owners are
carrying their own weight in terms of inspection costs.
This bill proposes raising the maximum inspection fee
allowable for cattle and buffalo from 80 cents per head to $1.00 per head. For
horses and mules, however, the maximum would be raised from a maximum of 80
cents per head to $10.00 per head. It is the Board’s intent to adopt a sliding
scale for the inspection of horses and mules by administrative rule. For
example, the inspection fee for inspecting up to 10 horses could be set at
$10.00 per head, at $5.00 per head for the next 5 horses, and at the regular
inspection rate for everything over 15 head inspected. Public hearings would be
held on the rules and would allow for industry input on the appropriate scale to
adopt.
2. CLARIFIES HOLD PROVISIONS
FOR AN ACT ENTITLED, An Act to revise certain provisions
related to holds on livestock sales.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH
DAKOTA:
Section 1. That §40-21-10 be amended to read as follows:
40-21-10. If any livestock, inspected under the provisions
of this chapter or chapter 40-20 bears an unrecorded brand, or a recorded brand
other than the brand of the seller person selling the livestock or
transporting the livestock out of the ownership inspection area, and does
not bear the recorded brand of such seller person, then the seller
person selling or transporting the livestock shall be required to
establish his ownership to such livestock, by presenting to the livestock
ownership inspector a witnessed bill of sale to such animal or by other
satisfactory evidence of ownership which may include an affidavit of ownership
signed by the seller person selling or transporting the livestock and
witnessed by the ownership inspector. If any livestock listed on the original
bill of sale or affidavit of ownership are not sold or transported out of the
ownership inspection area, the inspector shall pick up the ownership
documents and issue a receipt showing the number of livestock sold or
transported and the number remaining. If any livestock are unbranded, the
inspector may require the shipper or seller to establish his ownership by
presenting to the inspector an affidavit of ownership. Only an original bill of
sale or affidavit of ownership is valid for proof of ownership. Any bill of
sale or affidavit shall be notarized or signed by two witnesses.
Section 2. That §40-21-11 be amended to read as follows:
40-21-11. If any livestock inspected under the provisions
of this chapter or chapter 40-20 bears the recorded brand of the seller or
the person transporting the livestock out of the ownership inspection area,
and also bears a recorded brand other than the brand of the seller of
another person, then the seller or the person transporting the livestock
out of the ownership inspection area may be required, at the discretion of
the livestock ownership inspector, to establish ownership to such livestock by
presenting to the ownership inspector satisfactory evidence of ownership.
Section 3. That chapter 40-21 be amended by adding thereto
a new section to read as follows:
If the person transporting livestock out of the
ownership inspection area as described in § 40-21-10 or 40-21-11 fails to
establish ownership of any livestock, the livestock may be held by the board.
If a hold has been placed on the livestock, it is a Class 1 misdemeanor for the
person to remove the livestock from the ownership inspection area or sell the
livestock before the board has cleared the hold for release. All livestock
holds after sixty days shall be forwarded by the inspector to the board for
review and final disposition, which may include clarification, settlement, or
payment related to proper ownership.
Bill Brief
This bill amends SDCL 40-21-10 and SDCL 40-21-11 to clarify
that those statutes apply not only when livestock are being inspected for
purposes of sale, but also if the livestock are inspected because they are being
transported outside the livestock ownership inspection area for other purposes
like grazing or feeding.
The bill would also add a new section to chapter 40-21
which provides that if the person transporting livestock out of the inspection
area does not establish ownership in accordance with SDCL 40-21-10 and SDCL
40-21-11, then the brand inspector may hold the livestock in question, even if
the inspection takes place outside of a livestock market. The bill would make
it a class 1 misdemeanor for someone to remove the livestock from the ownership
inspection area or sell the livestock before the board has cleared the hold for
release.
SDCL 40-21-12 already covers what happens when a seller
fails to establish ownership in accordance with SDCL 40-21-10 and SDCL 40-21-11.
3. OPEN MARKET PROVISIONS
FOR AN ACT ENTITLED, An Act to revise provisions for
eligibility for open market status.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH
DAKOTA:
Section 1. That §40-21-5 be amended to read as follows:
40-21-5.
To facilitate the inspection of livestock and the
enforcement of chapters 40-18 to 40-22, inclusive, any livestock market,
slaughter facility or inspection point, whether within or without the State of
South Dakota, that meets the criteria established by the board may be designated
by the board as an open market. The board shall establish criteria for
designating an open market and for revoking open market status by rules
promulgated pursuant to chapter 1-26. Criteria may include distance from the
livestock ownership inspection area, the number of head inspected annually,
compliance by the market with ownership inspection laws, adequacy of the
facilities, and economic feasibility, and compliance with the open
market agreement. Any livestock market, slaughter facility or inspection point
designated as an open market by the board shall enter into an open market
agreement with the board on such terms and conditions as the board may
determine, including agreeing to abide by the brand inspection laws and
regulations of this state and of the state in which the livestock market,
slaughter facility or inspection point is located.
Bill Brief
Certain livestock auction markets and inspection points
located outside the livestock ownership inspection area have been designated by
the Brand Board as open markets. This allows livestock owners to leave the
ownership inspection area without an ownership inspection. The livestock are
inspected at the open market instead. These open markets are located both in
eastern South Dakota and in other states.
For markets in eastern South Dakota, brand inspectors are
provided by the nonprofit corporation that contracts with the Board to carry out
the inspection program, and the contractor enters into written agreements with
the markets. For markets in other states, the Brand Board enters into
reciprocal Agreements with the brand inspection agency in those states to
perform the ownership inspection and there is no agreement between the Board and
the livestock market.
This bill would amend SDCL 40-21-5 to provide for written
agreements between the Brand Board and those livestock markets it designates as
open markets whether the markets are located in eastern South Dakota or in
another state. Execution of and compliance with an open market agreement would
become a prerequisite to getting and retaining open market status. The
agreement would among other things require the market to abide by the inspection
laws of this state and the state where they are located. Likely terms would
also include compliance with the federal Packers and Stockyards Act.
Currently the Board may only revoke an open market
designation if the market does not inspect the threshold level of livestock
annually, does not have adequate facilities, does not comply with South Dakota
law, or if it is no longer economically feasible to have an open market at the
facilities in terms of inspection costs. The Board may not revoke an open
market for violating the laws of the state in which it is located, for failure
to cooperate with the brand inspectors from that state, or for failing to insure
its South Dakota consignors possess appropriate inspection paperwork. This has
created problems in terms of cooperation by out of state markets. It also
results in holding the in state markets to higher standards than out of state
markets. An open market agreement would create an even playing field for both
in state and out of state open markets, and would result in better compliance
with the state’s ownership inspection laws.
4. CIVIL PENALTIES
FOR AN ACT ENTITLED, An Act to add the imposition of civil
penalties by the State Brand Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH
DAKOTA:
Section 1. That chapter 40-21 be amended by adding thereto
a new section to read as follows:
Any person who violates any
provision of chapters 40-20, 40-21, 40-22 or 40-29 is subject to a civil penalty
to be imposed by the board, after notice and opportunity for hearing. The civil
penalty is in addition to any criminal penalty, and may not exceed 5,000 dollars
for each violation. In determining the amount of the penalty, or the amount of
a compromise settlement, upon finding a violation the board may consider the
appropriateness of the penalty to the number of head of livestock involved, the
gravity of the violation, prior offenses and compliance history, the good faith
of the person charged in attempting to achieve compliance, and such other
matters as justice may require. All penalties collected pursuant to this
chapter shall be deposited in the livestock ownership inspection and theft
prevention fund.
Bill Brief
This bill would allow the Brand Board to impose civil
penalties not to exceed $5,000 for violation of the brand laws. The civil
penalty could be imposed independently of any criminal charges for violating the
brand laws. A contested case hearing would be held before the Brand Board to
determine whether there had in fact been a violation. The Brand Board would
hear evidence from both sides and issue a decision. If after hearing the
evidence the Board decided there was a violation, the Board would determine the
amount of the civil penalty.
The Board believes that the adoption of this bill would
enhance compliance with state brand laws. The Board believes that in some cases
the threat of a misdemeanor conviction, with a fine of a couple of hundred
dollars, is not sufficient deterrent for some people. They are willing to risk
getting caught violating the laws because the practical consequences of getting
caught are small. It is the Board’s view that such violators would be less
willing to risk a civil fine of several thousand dollars.
In setting the amount of the penalty the Board could
consider factors like the number of head of livestock involved in the violation,
the circumstances surrounding the violation, whether the person committing the
violation had a history of violations, whether the person had in good faith
attempted to comply with the law, and such other factors as the Board determines
justice may require. All penalties collected would be deposited in the
livestock ownership inspection and theft prevention fund.
The person upon whom a civil penalty is imposed may appeal
the Board’s decision to circuit court in the same manner as other contested
cases. The penalty would be sought only for violation of the brand laws. It is
not intended to be utilized where there are questions concerning performance of
the inspection by a brand inspector unless the statutes specifically prohibit
the conduct at issue, i.e. inspecting your own livestock.
This bill was patterned after a similar provision
applicable to the Public Utilities Commission. SDCL 49-31-94.
5. REVISION OF
PENALTIES
FOR AN ACT ENTITLED, An Act to revise penalties for leaving
the brand inspection area without a brand inspection.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH
DAKOTA:
Chapter 40-20.
40-20-4.
Except as provided in this chapter, it is a Class 1
Class 2 misdemeanor for any person to remove or authorize the removal of
any livestock from any point within the livestock ownership inspection area to
any point within one mile of the border with a destination outside the ownership
inspection area unless the livestock have first been inspected for ownership and
unless the shipper possesses the local inspection certificate, market clearance,
shippers permit, or such other form of authorization as may be required by the
board. Except as provided in § 40-20-29, a local inspection certificate is
valid for transportation of livestock out of the inspection area only on the
date issued. If there is no valid local inspection certificate, the livestock
shall be inspected before leaving the inspection area. Livestock being removed
from the ownership inspection area without authorization from the board may be
impounded by any law enforcement officer until the livestock are inspected for
ownership by an authorized brand inspector. The venue of any offense under this
section is in the county where such livestock were loaded or in any county
through which the livestock were transported or trailed. Any livestock being
transported to a destination outside the ownership inspection area shall be
inspected for ownership if they cease to be in the custody of the carrier at any
time prior to leaving the ownership inspection area. Any livestock shipper
within the livestock ownership inspection area wanting livestock inspected as
provided in this section shall notify an inspector in advance of the inspection
and allow the inspector reasonable time to provide the inspection.
Bill Brief
SDCL 40-20-4 currently makes it a class one misdemeanor to
1) remove livestock from the livestock ownership
inspection area
or
2) authorize the removal of livestock from any point within the livestock
ownership inspection area to any point within one mile of the border with a
destination outside the ownership inspection area
unless the livestock have first been inspected for
ownership and unless the shipper possesses the local inspection certificate,
market clearance, shippers permit, or such other form of authorization as may be
required by the board. A class one misdemeanor is punishable by a county jail
term not to exceed 1 year, a fine not to exceed $2,000 or both.
This bill would make it a class 2 misdemeanor instead. A
class 2 misdemeanor is punishable by a county jail term not to exceed thirty
days, a fine not to exceed $500, or both. The reason for suggesting the change
to a lesser criminal sanction is practical in nature.
If a law enforcement officer decides to charge someone
with a class one misdemeanor, the person needs to be arrested, taken into
custody, and taken in for booking. This creates problems when our law
enforcement officers are running road checks and find someone leaving or about
to leave the ownership inspection area without proper authorization from the
Board. It effectively requires the law enforcement officer to take the suspect
to the nearest police stationed to be booked. That can take quite some time and
obviously creates problems in continuing with the road check.
A class 2 misdemeanor, on the other hand, allows the
officer to simply issue a citation without the need to take the suspect into
custody. Since most of the brand law violations found at a road check involve
someone lacking the proper Board authorization to leave the ownership inspection
area, it makes practical sense for our law enforcement officers to be able to
issue citations in those circumstances rather than take the suspect into
custody.
For Immediate Release: For More Information, Contact:
March 21, 2005 Julie Kongslien (605) 773-3324
Toll Free (877) 731-3600
SD Brand Renewals
Will End May 1, 2005
(Pierre, SD) - All
livestock brands registered in South Dakota are being renewed for a five year
period. The Brand Board office mailed out 25,801 renewal notices to brand
owners on January 1, 2005. 16,521 registered brands have been renewed with
the Brand Board office in Pierre as of March 18, 2005.
Brand Board Director
Julie Kongslien asks any brand owner who has not received a notice to contact
the office immediately. Kongslien reported that due to 911 address
changes and the people moving, there were several thousand renewal notices
returned to their office. "We want to make sure everyone who has a
registered brand receives their notice" stated Kongslien.
The brand renewal period
began January 1 and ends May 1, 2005. Any brands that are not renewed by
May 1st will be cancelled. When a brand cancels only the previous owner
can re-record that brand for a period of two years. To re-record a brand
the owners must apply for the brand and pay a $125.00 re-registration fee.
If the brand is found to be too similar to another brand which is registered,
the brand will not be re-registered.