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An Act To Address Hunger, Support Maine Farms and Reduce Waste
Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas,  the Maine Food Recovery Commission established in the bill must submit a report to the Joint Standing Committee on Environment and Natural Resources with its findings and recommendations, including suggested legislation, by December 6, 2017 in order to provide information for the Second Regular Session of the 128th Legislature; and
Whereas,  the commission will need more time to perform its duties in order to meet the December 6, 2017 report date; and
Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
PART A
Sec. A-1. Maine Food Recovery Commission established. The Maine Food Recovery Commission, referred to in this Part as "the commission," is established.
Sec. A-2. Commission membership. The commission consists of 13 members that, notwithstanding Joint Rule 353, are appointed as follows:
1. Two members of the Senate appointed by the President of the Senate, including a member from each of the 2 parties holding the largest number of seats in the Legislature;
2. Three members of the House of Representatives appointed by the Speaker of the House, including a member from each of the 2 parties holding the largest number of seats in the Legislature;
3. Three members appointed by the President of the Senate as follows:
A. A city or town manager, councillor or municipal officer from a municipality in the State;
B. A representative of the State's grocery and food retail sector or restaurant industry; and
C. A representative of a residential or commercial food waste recycler;
4. Four members appointed by the Speaker of the House as follows:
A. A farmer or food producer from this State;
B. A representative from a statewide environmental organization;
C. A representative of a food recovery organization or statewide or regional nonprofit hunger relief organization; and
D. A representative of a primary or secondary school in the State; and
5. One member appointed by the Governor who is a staff person from the sustainability division within the Department of Environmental Protection.
Sec. A-3. Chairs. The first-named Senate member is the Senate chair and the first-named House of Representatives member is the House chair of the commission.
Sec. A-4. Appointments; convening commission. All appointments must be made no later than 30 days following the effective date of this Part. The appointing authorities shall notify the Executive Director of the Legislative Council once all appointments have been completed. After appointment of all members, the chairs shall call and convene the first meeting of the commission. If 30 days or more after the effective date of this Part a majority of but not all appointments have been made, the chairs may request authority and the Legislative Council may grant authority for the commission to meet and conduct its business.
Sec. A-5. Duties. The commission shall meet a minimum of 4 times to:
1. Review and evaluate the economic, environmental and human costs of food waste in Maine;
2. Assess current systems of food production, distribution and waste to determine where and how food is wasted in a manner inconsistent with Maine's food recovery hierarchy under the Maine Revised Statutes, Title 38, section 2101-B; and
3. Develop a comprehensive strategy to advance Maine's food recovery hierarchy by:
A. Developing strategies for keeping food waste out of the solid waste stream through collaborative initiatives with large generators to divert food products that are at or beyond the manufacturer's expiration date to hunger relief programs when possible and to livestock consumption when a hunger relief program is not available;
B. Developing ways to educate food waste generators about the economic, human and environmental costs of wasting food;
C. Developing guidance documents on the topics of food waste reduction methods and opportunities for large generators and providing these documents to the Department of Environmental Protection, the Department of Education and the Department of Agriculture, Conservation and Forestry for distribution to appropriate entities;
D. Increasing the composting of and energy recovery from food waste and other organic wastes;
E. Maximizing organic waste diversion by large generators through measures including, but not limited to, bans on the disposal of leaves, yard waste, food and food scraps;
F. Developing ways to encourage the creation or expansion of businesses and facilities to compost and convert compostable materials into energy resources in a manner that produces residuals suitable for use for agricultural purposes;
G. Developing ways to encourage the creation of food waste reduction programs at the residential and municipal levels; and
H. Examining any other ways of improving Maine's food recovery hierarchy.
In conducting the duties under this section, the commission shall seek public input and shall consult and collaborate with stakeholders and experts in the fields of food production and distribution, hunger relief, food recovery and recycling.
For purposes of this section, "large generator" means an entity that generates more than one ton of food waste per week, including, but not limited to, a hospital, college, university, primary or secondary school, restaurant, nursing home, retail food store or lodging or resort facility.
Sec. A-6. Staff assistance. The Legislative Council shall provide necessary staffing services to the commission. At the request of the commission, the Department of Environmental Protection, the Department of Agriculture, Conservation and Forestry, the Department of Education, the Department of Health and Human Services and other agencies of State Government shall provide additional assistance to the commission.
Sec. A-7. Report. No later than December 6, 2017, the commission shall submit a report that includes its findings and recommendations, including suggested legislation, for presentation to the Joint Standing Committee on Environment and Natural Resources.
PART B
Sec. B-1.  14 MRSA §166, sub-§1, ¶A-1  is enacted to read:
 
A-1.  "End consumer" means an individual who consumes donated food, an individual who prepares and serves donated food to the individual's family, a person who feeds donated food to the person's livestock or an individual who composts donated food.
Sec. B-2. 14 MRSA §166, sub-§3, as enacted by PL 1981, c. 300, is amended to read:
 
3. Immunity of distributor.   Notwithstanding any other provision of law, a bona fide charitable or not-for-profit organization and any employee or volunteer of that organization who in good faith receive and distribute food, whichthat is apparently fit for human consumption at the time it is distributed, without charge, or for a cost significantly less than the fair market value of the item as long as the cost covers only overhead, transportation and distribution costs of the charitable or not-for-profit organization, are immune from civil liability arising from an injury or death due to the condition of the food, unless the injury or death is a direct result of the gross negligence, recklessness or intentional misconduct of the organization.
Sec. B-3. 14 MRSA §166, sub-§5, as enacted by PL 1991, c. 739, §1 and amended by PL 2003, c. 689, Pt. B, §6, is further amended to read:
 
5. Immunity of facilities and establishments.   Notwithstanding any other provision of law, a hospital or other health care facility licensed by the Department of Health and Human Services, or an eating establishment licensed under Title 22, chapter 562 that, in good faith and in accordance with guidelines established by the recipient organization, donates food that is apparently fit for human consumption at the time it is donated either to an end consumer or to a bona fide charitable or nonprofit organization for free distribution is immune from civil liability arising from injury, illness or death due to the condition or content of the food, unless the injury, illness or death is a direct result of intentional misconduct of the donor. Nothing in this subsection prevents a licensed hospital, health care facility or eating establishment from receiving the immunity provided in subsection 2 if the donor qualifies for immunity under the terms of that subsection.
Sec. B-4.  14 MRSA §166, sub-§6  is enacted to read:
 
6.  Guidelines for liability protections.     The Department of Health and Human Services shall create and publish an easily understandable summary of the liability protections established under this section and make that summary as accessible as possible to food donors and distributors of donated food.
Sec. B-5.  36 MRSA §5219-OO  is enacted to read:
§ 5219-OO. Maine food producers donation tax credit
 
1.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Donation" means a contribution or gift within the meaning of Section 170(c) of the Code of food that is apparently fit for human consumption at the time it is donated to a nonprofit food assistance organization or to a public or private school as defined in Title 20-A, section 1.
 
B.  "Food insecurity" means the state of a person who is without reliable access to a sufficient quantity of affordable, nutritious food.
 
C.  "Food producer" means a resident individual of this State who produces food by farming or fishing, or who processes such food, or an association of such producers or processors in a cooperative or producer group.
 
D.  "Nonprofit food assistance organization" means an entity located in the State:
 
(1) That is exempt from federal taxation under the Code, Section 501(c)(3); and
 
(2) Whose principal charitable purpose is to reduce food insecurity of residents of this State directly or indirectly through a network of nonprofit food assistance organizations.
 
2.  Credit.     Beginning on or after January 1, 2017, a taxpayer who is a food producer that makes a donation may apply under this section for a credit against the taxes due pursuant to section 5111 or section 5200, not to exceed 15% of the tax otherwise due. The credit is equal to 50% of the fair market value of the donation and is available for the taxable year in which the food producer makes the donation.
 
3.  Determining fair market value.     The fair market value of a donation is the monetary value for which the food producer could have sold the donated product in the food producer's usual market. The fair market value of a donation that is not sold due to internal standards of the food producer or lack of market or because the food is produced exclusively for donation is the price at which the same or similar types and qualities of foods are sold by the food producer at the time of the donation. If the same or similar types and qualities of foods are not sold by the food producer at the time of the donation, the fair market value is the price at which the same or similar types and qualities of foods were sold by the food producer in the past 5 years. The fair market value may not exceed the fair market value used to claim the federal charitable deduction with respect to a particular donation. The fair market value for the purposes of the credit under subsection 2 is not subject to the reductions contained in Section 170(e) of the Code.
 
4.  Record keeping.     A food producer who seeks a credit under this section shall create and maintain a record of each donation for which the food producer seeks a credit under this section. The record must include:
 
A.  The name of the food producer;
 
B.  The name of the nonprofit food assistance organization or public or private school to which the donation was made;
 
C.  The type of food donated;
 
D.  The weight or quantity of the food donated. In the case of a donation of crops or seafood in quantity, the quantity recorded must be in accordance with 26 United States Code, Section 170(c);
 
E.  The fair market value of the donation determined in accordance with subsection 3; and
 
F.  The signature of a representative of the nonprofit food assistance organization or public or private school to which the donation was made. If the record made under this subsection is not signed by such a representative, the food producer must obtain and keep with the record a letter or receipt from that nonprofit food assistance organization or public or private school to which the donation was made indicating the type of food and quantity donated.
 
5.  Limitations.     Upon application from a food producer, the bureau may authorize tax credits under this section. The bureau may not issue more than $150,000 altogether in tax credits pursuant to this section in any fiscal year. If the amount of credits applied for in any fiscal year exceeds $150,000, the bureau shall allocate credits on a pro rata basis to all food producers who have applied for, and the bureau determines are eligible for, the tax credits.
 
6.  Rulemaking.     The bureau shall adopt rules implementing the provisions of this section. The rules must include procedures for food producers to apply for tax credits under this section and for the allocation of tax credits among food producers, including a procedure to allocate tax credits when applications exceed $150,000 in any fiscal year pursuant to subsection 5. Rules adopted under this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Emergency clause.  In view of the emergency cited in the preamble, this legislation takes effect when approved.
 
SUMMARY
This bill creates the Maine food producers donation tax credit. The tax credit program allows food producers to apply for a tax credit equal to 50% of the fair market value of the donated food when they donate such food to a nonprofit food assistance organization or school. The Department of Administrative and Financial Services, Bureau of Revenue Services may not authorize more than $150,000 in tax credits per fiscal year. The bill directs the bureau to adopt rules to implement the Maine food producers donation tax credit.
The bill also includes immunity from civil liability in regards to injury, illness or death due to the condition of the donated food for a charitable or nonprofit organization and its employees who distribute food without charge or at less than fair market value. The immunity also applies to a hospital or health care facility or eating establishment that donates food. The bill directs the Department of Health and Human Services to develop and publish a summary of liability protections for food donors and distributors of donated food.
The bill also creates the Maine Food Recovery Commission, consisting of 13 members, 5 of whom are Legislators. The commission must meet 4 times to review and evaluate the economic, environmental and human costs of food waste in Maine and assess current systems of food production, distribution and waste to determine where and how food is wasted in a manner inconsistent with Maine's food recovery hierarchy as well as to develop a strategy to address any inconsistencies with the food recover hierarchy. The commission is required to submit a report by December 6, 2017 to the Joint Standing Committee on Environment and Natural Resources with its findings and recommendations, including suggested legislation.