(240 ILCS 40/1‑10)
Sec. 1‑10. Definitions. As used in this Act:
"Board" means the governing body of the Illinois Grain Insurance Corporation.
"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.
"Claimant" means:
(a) a person, including, without limitation, a lender:
(1) who possesses warehouse receipts issued from an
| Illinois location covering grain owned or stored by a failed warehouseman; or | |
(2) who has other written evidence of a storage |
| 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 | |
(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 | |
(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 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 | |
(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 | |
(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.
"Class I warehouseman" means a warehouseman who is authorized to issue negotiable and non‑negotiable warehouse receipts.
"Class II warehouseman" means a warehouseman who is authorized to issue only non‑negotiable warehouse receipts.
"Code" means this Grain Code.
"Collateral" means:
(a) irrevocable letters of credit;
(b) certificates of deposit;
(c) cash or a cash equivalent; or
(d) any other property acceptable to the Department to the extent there exists equity in that property. For the purposes of this item (d), "equity" is the amount by which the fair 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.
"Corporation" means the Illinois Grain Insurance Corporation.
"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.
"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.
"Date of delivery of grain" means:
(a) the date grain is delivered to a grain dealer, or its designee in Illinois, for the purpose of sale;
(b) the date grain is delivered to a warehouseman, or its designee in Illinois, for the purpose of storage; or
(c) in reference to grain in storage with a warehouseman, 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:
(1) the date the purchase price for stored grain is |
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(2) if sold by price later contract, the date of the |
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"Department" means the Illinois Department of Agriculture.
"Depositor" means a person who has evidence of a storage obligation from a warehouseman.
"Director", unless otherwise provided, means the Illinois Director of Agriculture, or the Director's designee.
"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.
"Electronic warehouse receipt" means a warehouse receipt that is issued or transmitted in the form of an electronic document.
"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.
"Equity assets" means:
(a) The equity in any property of the licensee or failed licensee, other than grain assets. For purposes of this item (a):
(1) "equity" is the amount by which the fair market |
| 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; | |
(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 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. | |
"Failure" means, in reference to a licensee:
(a) a formal declaration of insolvency;
(b) a revocation of a license;
(c) a failure to apply for license renewal, leaving indebtedness to claimants;
(d) a denial of license renewal, leaving indebtedness to claimants; or
(e) a voluntary surrender of a license, leaving indebtedness to claimants.
"Federal warehouseman" means a warehouseman licensed by the United States government under the United States Warehouse Act (7 U.S.C. 241 et seq.).
"Fund" means the Illinois Grain Insurance Fund.
"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.
"Grain assets" means:
(a) all grain owned and all grain stored by a licensee or failed licensee, wherever located, including redeposited grain of a licensee or failed licensee;
(b) (blank);
(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 licensee or failed licensee; or
(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.
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 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.
"Grain dealer" means a person who is licensed by the Department to engage in the business of buying grain from producers.
"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 collecting upon grain assets, equity assets, collateral, and guarantees relating to failed licensees.
"Guarantor" means a person who assumes all or part of the obligations of a licensee to claimants.
"Guarantee" means a document executed by a guarantor by which the guarantor assumes all or part of the obligations of a licensee to claimants.
"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.
"Licensed storage capacity" means the maximum grain storage capacity measured in bushels approved by the applicable licensing agency for use by a warehouseman.
"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.
"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.).
"Permanent storage capacity" means the capacity of permanent structures available for storage of grain on a regular and continuous basis, measured in bushels.
"Person" means any individual or entity, including, but not 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.
"Price later contract" means a 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.
"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.
"Producer protection holding corporation" means a holding 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.
"Regulatory Fund" means the fund created under Article 35.
"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:
(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. | |
(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". | |
(c) "Owner" means the holder of: over 10% of the |
| total 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 purposes of computing these percentages, a holder is deemed to own stock or other interests in a business entity whether the ownership is direct or indirect. | |
(d) "Control" means the power to exercise authority |
| over or direct the management or policies of a business entity. | |
(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. | |
(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. | |
"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.
"Successor agreement" means an agreement by which a licensee succeeds to the grain obligations of a former licensee.
"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 of permanent storage capacity.
"Trust account" means the Grain Indemnity Trust Account.
"Valid claim" means a request for payment under the provisions of this Code, submitted by a claimant, the amount 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.
"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 different lots of grain is preserved.
"Warehouse receipt" means a receipt for the storage of grain issued by a warehouseman.
"Warehouseman" means a person who is licensed:
(a) by the Department to engage in the business of |
| storing grain for compensation; or | |
(b) under the United States Warehouse Act but |
| participates in the Fund under subsection (c) of Section 30‑10. | |
(Source: P.A. 96‑464, eff. 8‑14‑09.) |
(240 ILCS 40/1‑15)
Sec. 1‑15. Powers and duties of Director. The Director has all powers necessary and proper to fully and effectively execute the provisions of this Code and has the general duty to implement this Code. The Director's powers and duties include, but are not limited to, the following:
(1) The Director may, upon application, issue or refuse to issue licenses under this Code, and the Director may extend, renew, reinstate, suspend, revoke, or accept voluntary surrender of licenses under this Code.
(2) The Director shall examine and inspect each licensee at least once each calendar year. The examination shall cover all aspects of the grain operations of the licensee, including but not necessarily limited to options trades and programs and farmer marketing programs.
The Department shall perform one of 3 types of examinations of licensees.
(A) Basic Examination. The basic examination shall |
| be performed when the licensee's merchandising and trade practices involve minimal market risk, which might include those situations in which the licensee uses cash back‑to‑back contracts, traditional hedges with the Chicago Board of Trade, and price later contracts. The specific components and guidelines of the basic examination are to be as provided by rule, but shall at a minimum include verification of grain quality and quantity, reconciliation of records with grain transactions, computation of current ratios, and checking of posting procedures for accuracy. | |
(B) Intermediate Examination. The intermediate |
| examination shall be performed when the licensee's merchandising and trade practices involve an increased amount of risk, which might include those situations in which the licensee uses guaranteed minimum price contracts, purchases options, or writes options. This examination shall include all those things performed as part of the basic examination. In addition, the specific components and guidelines of the intermediate examination are to be as provided by rule, but shall at a minimum include verification of grain quality and quantity, reconciliation of records with grain transactions, and checking of posting procedures for accuracy. | |
(C) Advanced Examination. The advanced examination |
| shall be performed when the licensee's merchandising and grain trading practices involve the most risk, which might include those situations in which the licensee has discretionary trading authority from producers, uses premium offer type contracts, or has contracts with producers that cover multiple crop years. This examination shall include all those things performed as part of the basic examination and the intermediate examination. In addition, the specific components and guidelines of the advanced examination are to be provided by rule, but shall at a minimum include grain market risk evaluation and appropriate levels thereof for the licensee and adequacy of internal controls. | |
Using these guidelines, the Department shall determine the level of examination to be applied to each licensee. In addition, the Department may, in its sole discretion, engage the services of accounting experts, grain risk management experts, or both as part of any intermediate or advanced examination. The Regulatory Fund may be used as a source of payment for the services of accounting experts, grain risk management experts, or both.
The Director may inspect the premises used by a licensee at any time. The books, accounts, records, and papers of a licensee are at all times during business hours subject to inspection by the Director. Each licensee may also be required to make reports of its activities, obligations, and transactions that are deemed necessary by the Director to determine whether the interests of producers and the holders of warehouse receipts are adequately protected and safeguarded. The Director may take action or issue orders that in the opinion of the Director are necessary to prevent fraud upon or discrimination against producers or depositors of grain by a licensee. The sole and exclusive means of halting the warehouse and grain dealer business activities of a licensee, however, are set forth in Section 15‑40 relating to suspension and revocation of licenses.
(3) The Director may, upon his or her initiative or upon the written verified complaint of any person setting forth facts that if proved would constitute grounds for a refusal to issue or renew a license or for a suspension or revocation of a license, investigate the actions of any person applying for, holding, or claiming to hold a license or any related party of that person.
(4) The Director (but not the Director's designee) may issue subpoenas and bring before the Department any person and take testimony either at an administrative hearing or by deposition with witness fees and mileage fees and in the same manner as prescribed in the Code of Civil Procedure. The Director or the Director's designee may administer oaths to witnesses at any proceeding that the Department is authorized by law to conduct. The Director (but not the Director's designee) may issue subpoenas duces tecum to command the production of records relating to a licensee, guarantor, related business, related person, or related party. Subpoenas are subject to the rules of the Department.
(5) Notwithstanding other judicial remedies, the Director may file a complaint and apply for a temporary restraining order or preliminary or permanent injunction restraining or enjoining any person from violating or continuing to violate this Code or its rules.
(6) The Director shall act as Trustee for the Trust Account, act as Trustee over all collateral, guarantees, grain assets, and equity assets held by the Department for the benefit of claimants, and exercise certain powers and perform related duties under Section 20‑5 of this Code and Section 205‑410 of the Department of Agriculture Law (20 ILCS 205/205‑410), except that the provisions of the Trust and Trustees Act do not apply to the Trust Account or any other trust created under this Code.
(7) The Director shall personally serve as president of the Corporation.
(8) The Director shall collect and deposit all monetary penalties, printer registration fees, funds, and assessments authorized under this Code into the Fund.
(9) The Director may initiate any action necessary to pay refunds from the Fund. The Director may initiate refunds for errors of assessments that do not exceed $2,000 per licensee, lender, or grain seller without authorization by the Board.
(10) The Director shall maintain a holding corporation to receive, hold title to, and liquidate assets of or relating to a failed licensee, including assets in reference to collateral or guarantees, and deposit the proceeds into the Fund.
(11) The Director may initiate, participate in, or withdraw from any proceedings to liquidate and collect upon grain assets, equity assets, collateral, and guarantees relating to a failed licensee, including, but not limited to, all powers needed to carry out the provisions of Section 20‑15.
(12) The Director, as Trustee or otherwise, may take any action that may be reasonable or appropriate to enforce this Code and its rules.
(Source: P.A. 92‑16, eff. 6‑28‑01; 93‑225, eff. 7‑21‑03.) |