CHAPTER 368

AN ACT TO AMEND TITLE 29, DELAWARE CODE, BY CREATING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 81 RELATING TO THE ESTABLISHMENT OF A DEPARTMENT OF AGRICULTURE, DEFINING ITS ORGANIZATION, POWERS, DUTIES AND FUNCTIONS AND PROVIDING A SUPPLEMENTARY APPROPRIATION TO THE GOVERNOR TO IMPLEMENT THE PROVISIONS OF THIS ACT.

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

Section 1. Title 29, Delaware Code, is hereby amended by adding a new Chapter thereto to be designated as Chapter 81 to read as follows:

CHAPTER 81. DEPARTMENT OF AGRICULTURE

§ 8101. Establishment of Department of Agriculture

A Department of Agriculture is hereby established having the following powers, duties, and functions:

(a) The Department of Agriculture shall have the power to perform and shall be responsible for the performance of all of the powers, duties and functions heretofor vested in:

(1) The State Board of Agriculture pursuant to the provisions of Title 3, Delaware Code, Chapters 1, 3, 5, 11, 13, 15, 16, 17, 19, 21, 25, 31, 33, 35, 37, 39, 51, 53, 55, 61, 63, 65, 67, 71, 73, 75, 87 and 90; Title 16, Delaware Code, Chapter 41;

(2) The State Board of Agriculture and the State Division of Weights and Measures, pursuant to the provisions of Title 6, Delaware Code, Chapter 51;

(3) The State Forestry Department and Commission pursuant to Title 7, Delaware Code, Chapter 29, Sections 2909, 2910 and 2911 and the State Tree Nursery only.

(b) The administrative, ministerial, fiscal and clerical functions of the State Farmland Evaluation Advisory Committee set forth in Title 9, Delaware Code, Chapter 83, Section 8331D.

§ 8102. Secretary; Division Directors; Acting Secretary; Appointment

(a) The administrator and head of the Department shall be the Secretary of the Department of Agriculture, who shall be a person qualified by training and experience to perform the duties of his office. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. He shall be paid an annual salary not in excess of $25,000.

(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of division director as are vacant. Directors so appointed shall serve at the pleasure of the Governor and upon the position of Secretary being filled such directors may be removed by the Secretary with the written approval of the Governor.

() In the event of death, resignation, temporary, incapacity or removal of the Secretary and prior to the appointment of his successor, the Governor may appoint the director of any division of the Department to serve as Acting Secretary. The Secretary may, during his absence from the State, appoint the director of any division of the Department to serve as Acting Secretary during such absence. In either case the Acting Secretary shall have all the powers and shall perform all the duties and functions of the Secretary during his absence or incapacity or until his successor is duly qualified and appointed.

§ 8103. Powers, duties and functions of the Secretary

The Secretary shall have the following powers, duties and functions:

(a) To supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, functions and employees;

(b) To appoint, and fix the salary of, with the written approval of the Governor, the following division directors, who may be removed from office by the Secretary with the written approval of the Governor, and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary;

(1) A Director of the Division of Standards and Inspections, who shall be known as the Director of Standards and Inspections, and who shall be qualified by training and experience to perform the duties of his office.

(2) A Director of the Division of Production and Promotion, who shall be known as the Director of Production and Promotion, and who shall be qualified by training and experience to perform the duties of his office.

(c) To appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law;

(d) To establish, consolidate or abolish such divisions, subdivisions and offices within the Department or transfer or combine the powers, duties and functions of the divisions and offices within the Department as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained;

(e) To make and enter into any and all contracts, agreements or stipulation, and to retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Title 29, Delaware Code, Chapter 25;

(f) To delegate any of his powers, duties or functions to a director of a division except his power to remove employees of the Department or to fix their compensation;

(g) To establish and to promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by him and which are not inconsistent with the laws of this State;

(h) To maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;

() To adopt an official seal or seals for the Department.

§ 8104. Division of Standards and Inspections

(a) The Division of Standards and Inspections is hereby established having such powers, duties and functions as may be assigned to it by the Secretary consistent with the provisions of this Chapter.

§ 8105. Division of Production and Promotion

(a) The Division of Production and Promotion is hereby established having such powers, duties and functions as may be assigned to it by the Secretary consistent with the provisions of this Chapter;

(1) The Division of Production and Promotion shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in;

(i) The Delaware State Apple Commission, pursuant to the provisions of Title 3, Delaware Code, Chapters 51 and 53.

(ii) The Delaware State Poultry Commission pursuant to the provisions of Title 3, Delaware Code, Chapter 61.

(2) The Division of Production and Promotion shall also have such other powers, duties and functions as may be assigned to it by the Secretary consistent with the provisions of this Chapter.

§ 8106. Council on Apple Promotion

(a) There is hereby established the Council on Apple Promotion.

(b) The Council on Apple Promotion shall serve in an advisory capacity to the Director of Production and Promotion and shall consider matters relating to planning and conducting campaigns of education, advertising, publicity, sales promotion and research for the purpose of increasing the demand for and the consumption of Delaware apples and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of Production and Promotion. The Council may study, research, plan and advise the Director, the Secretary, and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

(c) The Council on Apple Promotion, upon the effective date of this Chapter, shall be composed of the members of the Delaware State Apple commission whose terms, as of the effective date of this Chapter, have not expired. Each member shall serve as a member of the Council on Apple Promotion for the period of his unexpired term, unless he vacates his position by resignation, death or incapacity. The Council shall be composed of three (3) members. When the number of the members has been reduced to less than three (3), by reason of expiration of terms, resignations, death or incapacity, the Governor shall appoint new members. The terms of the new members shall be staggered. The first appointee shall serve for a term of one (1) year, the next appointee shall serve for a term of two (2) years, and the third appointee shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years.

() When the number of members of the Council has been reduced to less than three (3), no more than two (2) of the newly appointed members shall be affiliated with the same political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(a) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(b) A chairman of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for reelection.

(c) Any appointment, pursuant to the provision hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.

§ 8107. Council on Poultry Promotion

(a) There is hereby established the Council on Poultry Promotion.

(b) The Council on Poultry Promotion shall serve in an advisory capacity to the Director of Production and. Promotion and shall consider matters relating to the promotion, study and activity of the poultry industry in the State of Delaware and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of Production and Promotion. The Council may study, research, plan and advise the Director, the Secretary and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

() The Council on Poultry Promotion, upon the effective date of this Chapter, shall be composed of the members of the Delaware State Poultry Commission whose terms, as of the effective date of this Chapter, have not expired. Each member shall serve as a member of the Council on Poultry Promotion for the period of his unexpired term unless he vacates his position by resignation, death or incapacity. When the number of the members has been reduced to less than seven (7), by reason of expiration of terms, resignations, death or incapacity, the Governor shall appoint new members. The terms of the new members shall be staggered. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years and the next three (3) appointees shall serve for a term of three (3) years. When the number of members has been reduced to less than seven (7), the Council shall thereafter be composed of not more than seven (7) members.

(a) When the number of members of the Council has been reduced to less than seven (7), no more than four (4) of the newly appointed members shall be affiliated with the same political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(b) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(c) A chairman of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for reelection.

(g) After the Council has been reduced to seven (7), any appointment, pursuant to the provisions hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.

§ 8108. Governor's Council on Agriculture

(a) There is hereby established the Governor's Council on Agriculture.

(b) The Governor's Council on Agriculture shall be composed of the members of the State Board of Agriculture whose terms, as of the effective date of this Chapter, have not expired. In addition thereto, the Governor shall appoint four (4) new members. Each member of the State Board of Agriculture shall serve for the period of his unexpired term unless he vacates his position by resignation, death, or incapacity. The terms of new members shall be staggered. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years, and the next three (3) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years. The Council shall be composed of not more than seven (7) members, one (1) of whom shall be designated by the Governor as Chairman of the Governor's Council on Agriculture and he shall serve as such at the pleasure of the Governor.

() The Governor's Council on Agriculture shall advise, recommend and refer to the Secretary of the Department matters which, in its opinion, are of departmental concern and shall consider such other matters as may be referred to it by the Governor or the Secretary of the Department. The Council may study, research, plan, and advise the Secretary and the Governor on matters it deems appropriate to enable the Department to function in the best possible manner.

(a) No more than four (4) members of the Council shall be affiliated with the same political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(c) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

§ 8109. Books; Records; Access; Annual Report

(a) The Governor's Council on Agriculture shall have access to all books, records, reports, and other documents relating to the Department of Agriculture unless otherwise prohibited by law.

(b) The various councils of the divisions of the Department of Agriculture shall have access to all books, records, reports, and other documents relating to their respective divisions unless otherwise prohibited by law.

(c) The Chairman of the Governor's Council on Agriculture and the chairmen of the councils of the divisions of the Department shall make an annual report of the activities of each of said councils to the Secretary of the Department, the Governor and the General Assembly and render such other reports as the Secretary, the Governor or the General Assembly may from time to time request or as may be required by law.

§ 8110. Exemptions

(a) The following positions set forth in this Act shall be exempt from the provisions of Title 29, Delaware Code, Chapter 59:

(1) Secretary of Agriculture;

(2) Director of Standards and Inspections;

(3) Director of Production and Promotion.

§ 8111. Functions prior to effective date of this chapter

The Department, through appropriate divisions, subdivisions, and offices, shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions vested by law in the State Board of Agriculture, the State Division of Weights and Measures, the Delaware State Apple Commission, the Delaware State Poultry Commission and all matters pertaining to privately owned forest and woodlands within the State immediately prior to the effective date of this chapter and which are not otherwise hereinabove specifically transferred to the Department by the provisions of this Chapter.

§ 8112. Appeals

Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions hereby transferred to the Department or to any division or subdivision thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the division, subdivision or office to which such function is hereby transferred, and each such appeal shall be perfected in the manner heretofore provided by law.

§ 8113. Transfers and continuity

(a) All books, records, papers, maps, charts, plans and other material including, but not limited to, any equipment in the possession of any agency of the State and used in connection with a function hereby transferred to the Department shall on the effective date of this Chapter be delivered into the custody of the Department.

All investigations, petitions, hearings, and legal proceedings pending before or instituted by any agency from which functions are hereby transferred and not concluded prior to the effective date of this Chapter shall continue unabated and remain in full force and effect, notwithstanding the passage of this Chapter and where necessary, may be completed before, by, or in the name of the Department. All orders, rules and regulations made by any agency from which functions are hereby transferred and governing such functions and which are in effect upon the effective date of this Chapter shall remain in full force and effect until revoked or modified in accordance with law by the Department. All contracts and obligations of any agency made or undertaken in the performance of a function hereby transferred to the Department and being in force on the effective date of this Chapter, shall, notwithstanding the provisions of this Chapter, remain in full force and effect and be performed by the Department.

(b) All employees of any commission, board, department, council or agency, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, shall continue and be deemed to be the employees of the Department on the effective date of this Chapter and, where applicable with all the benefits accrued as merit employees as of the effective date of this Chapter.

(c) All definitions and references to any commission, board, department, council or agency which appear in any other Act or law shall, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, be construed as referring and relating to the Department of Agriculture as created and established herein.

(d) All definitions and references to any director, commissioner, executive secretary, commission, board or council member or other similar person which appear in any other Act or law, shall, to the extent that same are consistent with this Chapter, and in connection with a function hereby transferred to the Department, be construed as referring or relating to such person or persons and their powers, duties and function as established and created herein.

§ 8114. Annual report

The Secretary of the Department shall make an annual report to the Governor and the General Assembly of the Department's operations, and render such other reports as the Governor or General Assembly may from time to time request or as may be required by law.

§ 8115. Misnomer of Department in donation

Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing, that the party making the same intended to pass and convey thereby to the Department or to any commission, board, department, authority, council or agency, to which, by the provisions of the Act, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.

§ 8116. Budgeting and financing

The Secretary, in cooperation with the division directors, shall prepare a proposed budget for the operation of the Department to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the Annual Appropriation and any other funds appropriated by the General Assembly.

Special funds may be used in accordance with approved programs, grants and appropriations.

§ 8117. Severability

If any provision of this Chapter, or of any rule, regulation or order thereunder of the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Chapter and the application of such provisions of this Chapter or of such rule, regulation or order to persons or circumstances other than those to which it is held invalid, shall not be affected hereby.

Section 2. The provisions of this Act shall become effective on the date the Governor signs an executive order stating that he has found it administratively feasible to implement this Act or on January 1, 1971, whichever first occurs.

Section 3. The sum of Ten Thousand Dollars ($10,000) is hereby appropriated to the Governor for the fiscal year ending June 30, 1970 for the purposes of implementing the provisions of this Act. This appropriation shall be considered as a supplementary appropriation and shall be paid out of funds not otherwise appropriated and any portion thereof which is unexpended or unencumbered as of June 30, 1970 shall revert to the General Fund.

Section 4. Any sums appropriated to any board, commission, department, council or agency affected by this Act and which, upon the effective date of this Act, are unencumbered or unexpended shall be and are hereby appropriated and transferred to the Department of Agriculture.

Approved April 15, 1970.