Florida Senate - 2011 SB 1284
By Senator Bennett
21-00994-11 20111284__
1 A bill to be entitled
2 An act relating to biodiesel; amending s. 206.02,
3 F.S.; exempting certain biodiesel manufacturers from
4 bonding requirements; amending s. 206.874, F.S.;
5 exempting certain biodiesel manufacturers from
6 specific taxes on diesel fuel; amending s. 206.9925,
7 F.S.; redefining the term “pollutants” to exclude
8 certain biodiesel; amending s. 526.202, F.S.;
9 providing legislative findings regarding the sale of
10 diesel containing biodiesel; amending s. 526.203,
11 F.S.; defining the terms “biodiesel” and “diesel
12 fuel”; establishing standards for the amount of
13 biodiesel that must be contained in diesel fuel;
14 requiring dealers and wholesalers to provide certified
15 fuel analyses upon the department’s request; providing
16 an exemption from regulation; requiring reports to the
17 Department of Revenue; amending s. 526.205, F.S.;
18 providing for certain persons to apply for extensions
19 to comply with the requirements of the act; amending
20 s. 581.083, F.S.; exempting nonnative plants
21 cultivated for fuel production from specific
22 restrictions on such cultivation; providing an
23 effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Subsection (5) of section 206.02, Florida
28 Statutes, is amended to read:
29 206.02 Application for license; temporary license; terminal
30 suppliers, importers, exporters, blenders, biodiesel
31 manufacturers, and wholesalers.—
32 (5) Each biodiesel manufacturer that processes at least 50
33 percent of its annual B100 biodiesel production from renewable
34 feedstocks originating in this state must meet the reporting,
35 bonding, and licensing requirements prescribed for wholesalers
36 by this chapter. All other biodiesel manufacturers must comply
37 with the reporting, bonding, and licensing requirements for
38 wholesalers in this chapter.
39 Section 2. Subsection (7) of section 206.874, Florida
40 Statutes, is amended to read:
41 206.874 Exemptions.—
42 (7) Biodiesel fuel manufactured by a public or private
43 secondary school that produces less than 1,000 gallons annually
44 for the sole use at the school, by its employees, or its
45 students, or biodiesel fuel manufactured by a biodiesel
46 manufacturer that produces at least 50 percent of its annual
47 B100 biodiesel from renewable feedstocks originating in this
48 state, is exempt from the tax imposed by this part. A public or
49 private secondary school that produces less than 1,000 gallons a
50 year of biodiesel is exempt from the registration requirements
51 of this chapter.
52 Section 3. Subsection (5) of section 206.9925, Florida
53 Statutes, is amended to read:
54 206.9925 Definitions.—As used in this part:
55 (5) “Pollutants” includes any petroleum product as defined
56 in subsection (4) as well as pesticides, ammonia, and chlorine;
57 lead-acid batteries, including, but not limited to, batteries
58 that are a component part of other tangible personal property;
59 and solvents as defined in subsection (6), but the term excludes
60 liquefied petroleum gas, medicinal oils, and waxes. Products
61 intended for application to the human body or for use in human
62 personal hygiene or for human ingestion are not pollutants,
63 regardless of their contents. B100 or B99 biodiesel manufactured
64 in this state is not a pollutant if at least 50 percent of the
65 manufacturer’s annual production is from renewable feedstocks
66 originating in this state. For the purpose of the tax imposed
67 under s. 206.9935(1), “pollutants” also includes crude oil.
68 Section 4. Section 526.202, Florida Statutes, is amended to
69 read:
70 526.202 Legislative findings.—The Legislature finds it is
71 vital to the public interest and to the state’s economy to
72 establish a market and the necessary infrastructure for
73 renewable fuels in this state by requiring that all gasoline
74 offered for sale in this state include a percentage of
75 agriculturally derived, denatured ethanol and that all diesel
76 offered for sale in this state include a specified percentage of
77 biodiesel. The Legislature further finds that the use of
78 renewable fuel reduces greenhouse gas emissions and dependence
79 on imports of foreign oil, improves the health and quality of
80 life for Floridians, and stimulates economic development and the
81 creation of a sustainable industry that combines agricultural
82 production with state-of-the-art technology.
83 Section 5. Section 526.203, Florida Statutes, is amended to
84 read:
85 526.203 Renewable fuel standard.—
86 (1) DEFINITIONS.—As used in this act:
87 (a) “Biodiesel” has the same meaning as provided in s.
88 212.08(7)(ccc).
89 (b)(a) “Blender,” “importer,” “terminal supplier,” and
90 “wholesaler” are defined as provided in s. 206.01.
91 (c)(b) “Blended gasoline” means a mixture of 90 to 91
92 percent gasoline and 9 to 10 percent fuel ethanol, by volume,
93 that meets the specifications as adopted by the department. The
94 fuel ethanol portion may be derived from any agricultural
95 source.
96 (d) “Diesel fuel” has the same meaning as provided in s.
97 206.86.
98 (e)(c) “Fuel ethanol” means an anhydrous denatured alcohol
99 produced by the conversion of carbohydrates that meets the
100 specifications as adopted by the department.
101 (f)(d) “Unblended gasoline” means gasoline that has not
102 been blended with fuel ethanol and that meets the specifications
103 as adopted by the department.
104 (2) FUEL STANDARD.—Beginning December 31, 2010,
105 (a) All gasoline sold or offered for sale in Florida by a
106 terminal supplier, importer, blender, or wholesaler shall be
107 blended gasoline.
108 (b)1. Beginning December 31, 2011, all diesel fuel sold by
109 dealers or wholesalers in this state must contain at least 2
110 percent biodiesel.
111 2. However, when the annualized biodiesel production
112 capacity of production facilities in this state reaches 233
113 million gallons, which is approximately 8 percent of the annual
114 diesel consumption in the state, the Department of Agriculture
115 and Consumer Services shall notify all dealers and wholesalers
116 that the annual biodiesel capacity has reached a minimum level
117 and that they must begin selling diesel fuel that contains a
118 minimum of 5 percent biodiesel no later than 2 months after the
119 date of such notice.
120 (c) Dealers and wholesalers, upon the request of the
121 department, shall provide a certificate of analysis of any
122 biodiesel received.
123 (3) EXEMPTIONS.—The requirements of this act do not apply
124 to the following:
125 (a) Fuel used in aircraft.
126 (b) Fuel sold for use in gasoline-powered boats and similar
127 watercraft.
128 (c) Fuel sold to a blender.
129 (d) Fuel sold for use in collector vehicles or vehicles
130 eligible to be licensed as collector vehicles, off-road
131 vehicles, motorcycles, or small engines.
132 (e) Fuel unable to comply due to requirements of the United
133 States Environmental Protection Agency.
134 (f) Fuel transferred between terminals.
135 (g) Fuel exported from the state in accordance with s.
136 206.052.
137 (h) Fuel qualifying for any exemption in accordance with
138 chapter 206.
139 (i) Fuel for a railroad locomotive.
140 (j) Fuel for equipment, including vehicle or vessel,
141 covered by a warranty that would be voided, if explicitly stated
142 in writing by the vehicle or vessel manufacturer, if the
143 equipment were to be operated using fuel meeting the
144 requirements of subsection (2).
145
146 All records of sale of unblended gasoline shall include the
147 following statement: “Unblended gasoline may be sold only for
148 the purposes authorized under s. 526.203(3), F.S.”
149 (4) REPORT.—Pursuant to s. 206.43, each terminal supplier,
150 importer, blender, and wholesaler shall include in its report to
151 the Department of Revenue the number of gallons of blended and
152 unblended gasoline, diesel, and biodiesel sold. The Department
153 of Revenue shall provide a monthly summary report to the
154 department.
155 Section 6. Section 526.205, Florida Statutes, is amended to
156 read:
157 526.205 Enforcement; extensions.—
158 (1) Unless a waiver or suspension pursuant to s. 526.204
159 applies, or an extension has been granted pursuant to subsection
160 (3), it shall be unlawful for a terminal supplier, importer,
161 blender, or wholesaler to sell or distribute, or offer for sale
162 or distribution, any gasoline or diesel which fails to meet the
163 requirements of this act.
164 (2) Upon a determination by the department of a violation
165 of this act, the department shall enter an order imposing one or
166 more of the following penalties:
167 (a) Issuance of a warning letter.
168 (b) Imposition of an administrative fine of not more than
169 $1,000 per violation for a first-time offender. For a second
170 time or repeat offender, or any person who is shown to have
171 willfully and intentionally violated any provision of this act,
172 the administrative fine shall not exceed $5,000 per violation.
173 When imposing any fine under this section, the department shall
174 consider the monetary benefit to the violator as a result of
175 noncompliance, whether the violation was committed willfully,
176 and the compliance record of the violator. All funds recovered
177 by the department shall be deposited into the General Inspection
178 Trust Fund.
179 (3) Any terminal supplier, importer, blender, or wholesaler
180 may apply to the department by September 30, 2011 2010, for an
181 extension of time to comply with the requirements of this act
182 relating to biodiesel. The application for an extension must
183 demonstrate that the applicant has made a good faith effort to
184 comply with the requirements but has been unable to do so for
185 reasons beyond the applicant’s control, such as delays in
186 receiving governmental permits. The department shall review each
187 application and make a determination as to whether the failure
188 to comply was beyond the control of the applicant. If the
189 department determines that the applicant made a good faith
190 effort to comply, but was unable to do so for reasons beyond the
191 applicant’s control, the department shall grant an extension of
192 time determined necessary for the applicant to comply.
193 Section 7. Subsection (4) of section 581.083, Florida
194 Statutes, is amended to read:
195 581.083 Introduction or release of plant pests, noxious
196 weeds, or organisms affecting plant life; cultivation of
197 nonnative plants; special permit and security required.—
198 (4) A person may not cultivate a nonnative plant, including
199 a genetically engineered plant or a plant that has been
200 introduced, for purposes of fuel production or purposes other
201 than agriculture or fuel production in plantings greater in size
202 than 2 contiguous acres, except under a special permit issued by
203 the department through the division, which is the sole agency
204 responsible for issuing such special permits. Such a permit
205 shall not be required if the department determines, in
206 conjunction with the Institute of Food and Agricultural Sciences
207 at the University of Florida, that the plant is not invasive and
208 subsequently exempts the plant by rule.
209 (a)1. Each application for a special permit must be
210 accompanied by a fee as described in subsection (2) and proof
211 that the applicant has obtained a bond in the form approved by
212 the department and issued by a surety company admitted to do
213 business in this state or a certificate of deposit. The
214 application must include, on a form provided by the department,
215 the name of the applicant and the applicant’s address or the
216 address of the applicant’s principal place of business; a
217 statement completely identifying the nonnative plant to be
218 cultivated; and a statement of the estimated cost of removing
219 and destroying the plant that is the subject of the special
220 permit and the basis for calculating or determining that
221 estimate. If the applicant is a corporation, partnership, or
222 other business entity, the applicant must also provide in the
223 application the name and address of each officer, partner, or
224 managing agent. The applicant shall notify the department within
225 10 business days of any change of address or change in the
226 principal place of business. The department shall mail all
227 notices to the applicant’s last known address.
228 2. As used in this subsection, the term “certificate of
229 deposit” means a certificate of deposit at any recognized
230 financial institution doing business in the United States. The
231 department may not accept a certificate of deposit in connection
232 with the issuance of a special permit unless the issuing
233 institution is properly insured by the Federal Deposit Insurance
234 Corporation or the Federal Savings and Loan Insurance
235 Corporation.
236 (b) Upon obtaining a permit, the permitholder may annually
237 cultivate and maintain the nonnative plants as authorized by the
238 special permit. If the permitholder ceases to maintain or
239 cultivate the plants authorized by the special permit, if the
240 permit expires, or if the permitholder ceases to abide by the
241 conditions of the special permit, the permitholder shall
242 immediately remove and destroy the plants that are subject to
243 the permit, if any remain. The permitholder shall notify the
244 department of the removal and destruction of the plants within
245 10 days after such event.
246 (c) If the department:
247 1. Determines that the permitholder is no longer
248 maintaining or cultivating the plants subject to the special
249 permit and has not removed and destroyed the plants authorized
250 by the special permit;
251 2. Determines that the continued maintenance or cultivation
252 of the plants presents an imminent danger to public health,
253 safety, or welfare;
254 3. Determines that the permitholder has exceeded the
255 conditions of the authorized special permit; or
256 4. Receives a notice of cancellation of the surety bond,
257
258 the department may issue an immediate final order, which shall
259 be immediately appealable or enjoinable as provided by chapter
260 120, directing the permitholder to immediately remove and
261 destroy the plants authorized to be cultivated under the special
262 permit. A copy of the immediate final order shall be mailed to
263 the permitholder and to the surety company or financial
264 institution that has provided security for the special permit,
265 if applicable.
266 (d) If, upon issuance by the department of an immediate
267 final order to the permitholder, the permitholder fails to
268 remove and destroy the plants subject to the special permit
269 within 60 days after issuance of the order, or such shorter
270 period as is designated in the order as public health, safety,
271 or welfare requires, the department may enter the cultivated
272 acreage and remove and destroy the plants that are the subject
273 of the special permit. If the permitholder makes a written
274 request to the department for an extension of time to remove and
275 destroy the plants that demonstrates specific facts showing why
276 the plants could not reasonably be removed and destroyed in the
277 applicable timeframe, the department may extend the time for
278 removing and destroying plants subject to a special permit. The
279 reasonable costs and expenses incurred by the department for
280 removing and destroying plants subject to a special permit shall
281 be reimbursed to the department by the permitholder within 21
282 days after the date the permitholder and the surety company or
283 financial institution are served a copy of the department’s
284 invoice for the costs and expenses incurred by the department to
285 remove and destroy the cultivated plants, along with a notice of
286 administrative rights, unless the permitholder or the surety
287 company or financial institution object to the reasonableness of
288 the invoice. In the event of an objection, the permitholder or
289 surety company or financial institution is entitled to an
290 administrative proceeding as provided by chapter 120. Upon entry
291 of a final order determining the reasonableness of the incurred
292 costs and expenses, the permitholder shall have 15 days
293 following service of the final order to reimburse the
294 department. Failure of the permitholder to timely reimburse the
295 department for the incurred costs and expenses entitles the
296 department to reimbursement from the applicable bond or
297 certificate of deposit.
298 (e) Each permitholder shall maintain for each separate
299 growing location a bond or a certificate of deposit in an amount
300 determined by the department, but not less than 150 percent of
301 the estimated cost of removing and destroying the cultivated
302 plants. The bond or certificate of deposit may not exceed $5,000
303 per acre, unless a higher amount is determined by the department
304 to be necessary to protect the public health, safety, and
305 welfare or unless an exemption is granted by the department
306 based on conditions specified in the application which would
307 preclude the department from incurring the cost of removing and
308 destroying the cultivated plants and would prevent injury to the
309 public health, safety, and welfare. The aggregate liability of
310 the surety company or financial institution to all persons for
311 all breaches of the conditions of the bond or certificate of
312 deposit may not exceed the amount of the bond or certificate of
313 deposit. The original bond or certificate of deposit required by
314 this subsection shall be filed with the department. A surety
315 company shall give the department 30 days’ written notice of
316 cancellation, by certified mail, in order to cancel a bond.
317 Cancellation of a bond does not relieve a surety company of
318 liability for paying to the department all costs and expenses
319 incurred or to be incurred for removing and destroying the
320 permitted plants covered by an immediate final order authorized
321 under paragraph (c). A bond or certificate of deposit must be
322 provided or assigned in the exact name in which an applicant
323 applies for a special permit. The penal sum of the bond or
324 certificate of deposit to be furnished to the department by a
325 permitholder in the amount specified in this paragraph must
326 guarantee payment of the costs and expenses incurred or to be
327 incurred by the department for removing and destroying the
328 plants cultivated under the issued special permit. The bond or
329 certificate of deposit assignment or agreement must be upon a
330 form prescribed or approved by the department and must be
331 conditioned to secure the faithful accounting for and payment of
332 all costs and expenses incurred by the department for removing
333 and destroying all plants cultivated under the special permit.
334 The bond or certificate of deposit assignment or agreement must
335 include terms binding the instrument to the Commissioner of
336 Agriculture. Such certificate of deposit shall be presented with
337 an assignment of the permitholder’s rights in the certificate in
338 favor of the Commissioner of Agriculture on a form prescribed by
339 the department and with a letter from the issuing institution
340 acknowledging that the assignment has been properly recorded on
341 the books of the issuing institution and will be honored by the
342 issuing institution. Such assignment is irrevocable while a
343 special permit is in effect and for an additional period of 6
344 months after termination of the special permit if operations to
345 remove and destroy the permitted plants are not continuing and
346 if the department’s invoice remains unpaid by the permitholder
347 under the issued immediate final order. If operations to remove
348 and destroy the plants are pending, the assignment remains in
349 effect until all plants are removed and destroyed and the
350 department’s invoice has been paid. The bond or certificate of
351 deposit may be released by the assignee of the surety company or
352 financial institution to the permitholder, or to the
353 permitholder’s successors, assignee, or heirs, if operations to
354 remove and destroy the permitted plants are not pending and no
355 invoice remains unpaid at the conclusion of 6 months after the
356 last effective date of the special permit. The department may
357 not accept a certificate of deposit that contains any provision
358 that would give to any person any prior rights or claim on the
359 proceeds or principal of such certificate of deposit. The
360 department shall determine by rule whether an annual bond or
361 certificate of deposit will be required. The amount of such bond
362 or certificate of deposit shall be increased, upon order of the
363 department, at any time if the department finds such increase to
364 be warranted by the cultivating operations of the permitholder.
365 In the same manner, the amount of such bond or certificate of
366 deposit may be decreased when a decrease in the cultivating
367 operations warrants such decrease. This paragraph applies to any
368 bond or certificate of deposit, regardless of the anniversary
369 date of its issuance, expiration, or renewal.
370 (f) In order to carry out the purposes of this subsection,
371 the department or its agents may require from any permitholder
372 verified statements of the cultivated acreage subject to the
373 special permit and may review the permitholder’s business or
374 cultivation records at her or his place of business during
375 normal business hours in order to determine the acreage
376 cultivated. The failure of a permitholder to furnish such
377 statement, to make such records available, or to make and
378 deliver a new or additional bond or certificate of deposit is
379 cause for suspension of the special permit. If the department
380 finds such failure to be willful, the special permit may be
381 revoked.
382 Section 8. This act shall take effect July 1, 2011.