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.
   25  Be It Enacted by the Legislature of the State of Florida:
   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).
  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,
  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.