1997 Regular Session
By: Representative Holland (By Request)
House Bill 1162
(As Passed the House)
AN ACT TO AMEND SECTION 69-3-3, MISSISSIPPI CODE OF 1972, TO CHANGE THE DUE DATE AND RENEWAL DATE FOR SEEDMEN'S PERMITS; TO INCREASE THE PENALTY FOR DELINQUENT SEEDMEN'S PERMITS; TO REENACT SECTION 69-3-19, MISSISSIPPI CODE OF 1972, WHICH PRESCRIBES THE DUTIES OF THE COMMISSIONER OF AGRICULTURE IN ENFORCING THE SEED LAW, INCLUDING THE AUTHORITY TO APPOINT AN ARBITRATION COUNCIL; TO AMEND REENACTED SECTION 69-3-19, MISSISSIPPI CODE OF 1972, TO EXTEND THE REPEALER ON THE SAME TO JULY 1, 2002; TO AMEND SECTION 69-3-25, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTY PROVISIONS FOR VIOLATIONS OF THE ARTICLE; TO REPEAL SECTION 69-3-23, MISSISSIPPI CODE OF 1972, WHICH REQUIRES TRADERS IN SEED COTTON TO KEEP A REGISTER OF THE NAMES OF ALL PERSONS FROM WHOM THEY BUY OR PROCURE BY BARTER SUCH COTTON; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-3-3, Mississippi Code of 1972, is amended as follows:
69-3-3. (1) Every seedsman who sells, offers for sale, exposes for sale, distributes or solicits orders for the sale of any agricultural seed or mixtures thereof, vegetable seed, flower seed, or tree and shrub seed as defined in Section 69-3-1 to farmers, retail seed dealers, wholesale distributors, or to others who use or plant such seed in the State of Mississippi, shall, before selling or offering such seed for sale or distributing or soliciting orders for the sale of such seed and on or before the first day of July of each year, secure an annual permit from the commissioner to engage in such business. Seed dealers and other sellers of seed shall apply for an annual permit upon forms prescribed by the commissioner and such a permit shall be issued upon the payment of the following permit fees when the application is in proper form:
(a) Each seedsman selling packet seed, in closed containers of less than four (4) ounces, through commission merchants or agents, shall furnish each agent with permit at fee of Two Dollars and Fifty Cents ($2.50) per agent. A separate permit shall be required for each location or place of business with rack display.
(b) For each seedsman engaged in selling vegetable seed at retail from containers of four (4) ounces or more, not displayed on a rack, a permit fee of Five Dollars ($5.00) for each such place of business. This permit will qualify the seedsman to only sell vegetable seeds, as identified by the Federal Seed Act, directly to the consumer.
(c) For each seedsman engaged in selling seed at retail to the consumer, except vegetable seed dealers as defined above and packet seed agents, a permit fee of Twenty-five Dollars ($25.00) for each such place of business. This permit will qualify the seedsman to only sell seed to the consumer for sowing but not for resale.
(d) For each seedsman engaged in selling seed to wholesale distributors only, a permit fee of Five Dollars ($5.00) for each such place of business of the seller. This permit will qualify the seedsman to sell only to "wholesale distributors."
(e) For each seedsman engaged in selling seed as a wholesale distributor, a permit fee of One Hundred Dollars ($100.00) for each such place of business. This permit qualifies a seedsman to sell at levels for permits required by paragraphs (a), * * * (b), * * * (c), * * * (d) and * * * (e) of this section.
(2) Out of state seedsmen who sell or ship seed into this state shall obtain a permit in the same manner as described in paragraphs * * * (a), * * * (b), * * * (c), * * * (d) and * * * (e) of this section.
(3) For the purpose of enforcement of the permit provisions of this section, the type of permit held by the buyer shall determine the type of permit required of the seller.
(4) Permits shall be renewed annually, beginning July 1, and may be revoked for cause by the commissioner. Failure to renew such permit by September 1 of each year will incur a penalty of twenty-five percent (25%) to the cost of the permit. The initial registration will be at the prescribed fee. However, the fee for first time permit applicants received on or after April 1 will be prorated by the commissioner for all classifications except packet agent permits.
(5) The Mississippi Agricultural and Forestry Experiment Station shall be exempt from permit requirements for seed distributed for increase.
SECTION 2. Section 69-3-19, Mississippi Code of 1972, is reenacted and amended as follows:
69-3-19. It shall be the duty of the Commissioner of Agriculture and Commerce, acting either directly or through his duly authorized agents:
(1) To sample, inspect, make analyses of and test agricultural, vegetable, flower, and tree and shrub seeds transported, held in storage, sold, offered for sale or exposed for sale, or distributed within this state for seeding purposes, at such time and place, and to such extent as he may deem necessary to determine whether the seeds are in compliance with the provisions of this article, and to notify promptly the person who transported, distributed, had in his possession, sold, offered or exposed the seed for sale, of any violation. Such test results shall be sufficient to be used by the Mississippi State Highway Department to determine whether or not seed so tested meets the Highway Department's requirements as set out in its contract specifications. No further testing shall be required unless the Highway Department determines that more than nine (9) months has elapsed, exclusive of the calendar month in which the test was completed, between the germination test data and the time of planting, or if by visual inspection the Highway Department determines that the seed was improperly stored or handled prior to planting.
(2) To prescribe and adopt reasonable rules and regulations governing the methods of sampling, inspecting, making analysis tests and examinations of agricultural, vegetable, flower and tree and shrub seeds, including standards, and the tolerances to be followed in the administration of this article, and any other reasonable rules and regulations as may be necessary to secure efficient enforcement of this article.
(3) To appoint an arbitration council, receive complaints, conduct investigations and issue findings and recommendations prerequisite to legal action as follows:
(a) The commissioner shall appoint an arbitration council composed of six (6) members and six (6) alternate members, with one (1) member and one (1) alternate to be appointed upon the recommendation of each of the following: the Director of the Mississippi Agricultural and Forestry Experiment Station; the Director of the Mississippi Cooperative Extension Service; the President of the Mississippi Seedsmen's Association; the President of the Mississippi Farm Bureau Federation; the Alcorn State University Divisional Director of Agriculture and Applied Sciences. The original council shall be appointed as follows: One (1) member for a term of one (1) year, one (1) member for a term of two (2) years, one (1) member for a term of three (3) years, and one (1) member for a term of four (4) years. All subsequent terms shall be for five (5) years. Each year the respective recommending organizations shall submit member recommendations not less than thirty (30) days prior to the expiration day of an expiring term. Each alternate member shall serve only in the absence of the member for whom he is an alternate. The commissioner shall be a member of and serve as chairman of the council. The commissioner shall select his alternate member and he shall appoint a secretary from the council membership. He may appoint a member of the council to serve as chairman in his absence. It shall be the duty of the chairman to call the council into session to conduct all meetings and deliberations and to direct all other activities of the council. It shall be the duty of the secretary to keep accurate and correct records of all meetings and deliberations and perform such other duties for the council as directed by the chairman.
(b) The purpose of the arbitration council shall be to assist consumers and seedsmen in determining the validity of complaints made by consumers against seedsmen and recommend cost damages resulting from alleged failure of seed to produce as represented by the label on the seed package.
(c) (i) When the department refers to the arbitration council any complaint made by a consumer against a seedsman, the council shall make a full and complete investigation of the matters complained of, and at the conclusion of the investigation, report its findings and make its recommendations of cost damages and file them with the department. Council findings and recommendations may be admissible as evidence in a court of law.
(ii) In conducting its investigation the arbitration council or any member or members shall be authorized to examine the consumer on his farming operation of which he complains; to examine the seedsman on his packaging, labeling and selling operation of the seed alleged to be faulty; to conduct an appropriate test of a representative sample of the alleged faulty seed through the facilities of the state and under the supervision of the department when such action is deemed to be necessary; and to hold informal hearings at a time and place designated by the chairman upon reasonable notice to the consumer and the seedsman.
(iii) Any investigation made by less than the entire membership of the council shall be made by authority of a written directive by the chairman and such investigation shall be summarized in writing and considered by the council in its findings and in making its recommendations.
(iv) If the council determines that an informal hearing should be conducted to allow each party an opportunity to present their respective side of the dispute, attorneys may be present at the hearings to confer with their clients. However, no attorney may participate directly in the proceedings.
(d) The members of the council shall receive no compensation for the performance of their duties but shall be reimbursed for travel expenses in the manner and amount provided in Section 25-3-41, Mississippi Code of 1972.
(e) (i) As a prerequisite to filing a cause of action against a seedsman, a consumer who is damaged by the failure of agricultural, vegetable, flower or forest tree seed to produce or perform as represented by the label attached to such seed under the provisions of Section 69-3-5, Mississippi Code of 1972, shall make a sworn complaint against such seedsman alleging damages sustained. The complaint shall be filed with the department and the department shall send a copy of the complaint to the seedsman by certified mail, within such time as to permit inspection of the crops, plants or trees by the seed arbitration council or its representatives and by the seedsman from whom the seed was purchased.
(ii) Language setting forth the requirement for filing and serving such complaint shall be legibly typed or printed on the seed packages or the analysis label attached to the package containing such seed at the time of purchase by the consumer as follows:
"NOTICE: As a prerequisite to maintaining a legal action based upon the failure of seed to which this label is attached to produce as represented, a consumer shall file a sworn complaint with the Commissioner of Agriculture and Commerce within such time as to permit inspection of the crops, plants or trees."
If language setting forth the requirement is not so placed on the seed package or analysis label, the filing and serving of a complaint under this paragraph is not required.
(iii) A filing fee of Twenty-five Dollars ($25.00) shall be paid to the department with each complaint filed. The fee shall be recovered from the dealer upon the recommendation of the arbitration council.
(iv) Within fifteen (15) days after receipt of a copy of the complaint, the seedsman shall file with the department his answer to the complaint and serve a copy of the answer on the consumer by certified mail.
(v) The department shall refer the complaint and the answer thereto to the arbitration council, as provided herein for investigation, findings, and recommendations on the matters set out in the complaint. Upon receipt of the findings and recommendations of the arbitration council, the department shall transmit them to the consumer by certified mail.
(vi) The consumer and seedsman shall give written notice to the department of the acceptance or rejection of the arbitration council's recommended terms of settlement within thirty (30) calendar days from the date such recommended terms of settlement are issued by the arbitration council.
(4) Further, for the purpose of carrying out the provisions of this article, the commissioner individually or through his designated agents is authorized:
(a) To enter upon any public or private premises where agricultural, vegetable, flower, or tree and shrub seeds are sold, offered or exposed for sale or distribution, during regular business hours in order to have access to seeds or records subject to this article and the rules and regulations thereunder, and to take samples of seed or copies of records in conformity therewith; and
(b) To establish, maintain and support a state seed testing laboratory with such facilities and personnel as may be deemed necessary, such laboratory to be located at Mississippi State University of Agriculture and Applied Science. Such seed laboratory and equipment shall be in cooperation with Mississippi State University of Agriculture and Applied Science and under the supervision of an agronomist of said university, who shall be the state seed analyst; and
(c) To provide that any person, firm or corporation in this state shall have the privilege of submitting service seed samples for test to the state seed testing laboratory, subject to the charges as specified in the rules and regulations promulgated pursuant to the provisions of this article. Any person receiving a statement for seed analysis which is not paid in ninety (90) days will be in violation of this article. Any resident farmer may have one (1) sample of each kind tested free in any calendar year. A signed request by a farmer or individual must accompany the sample when same is sent in by a dealer; otherwise, the sample will be recorded and charges for analysis will be made to the dealer. Official seed samples drawn by inspectors in the enforcement of the provisions of this article shall have first priority for testing in the state seed testing laboratory. The state seed analyst shall not be obligated to analyze uncleaned, unprocessed, and other time-consuming samples which obviously do not meet seed law requirements, except as time and facilities will permit; and
(d) To publish, in his discretion, the results of analyses, tests, examinations, field trials and investigations of any seed sampled under this article, together with any information he may deem advisable; and
(e) To issue and enforce a written or printed "stop sale" or "seizure" order to the owner or custodian of any lot of agricultural, vegetable, flower, or tree and shrub seeds which the commissioner or his authorized agent finds is in violation of any of the provisions of this article or the rules and regulations promulgated thereunder, which order shall prohibit further sale or movement of such seed until such officer has evidence that the law has been complied with and a written release has been issued to the owner or custodian of said seed by an enforcement officer;
(f) To issue and enforce a "stop sale" or "seizure" order with respect to a particular variety of agricultural, vegetable, flower or tree and shrub seeds if the producer or distributor of such variety is found to have violated any of the provisions of this article or the rules and regulations promulgated thereunder with respect to the particular variety, which order shall remain in effect until the producer or distributor is in compliance with the law and has taken any action required by the commissioner to correct the effect of the violation in the marketplace; and
(g) To cooperate with the United States Department of Agriculture in seed law enforcement.
(5) This section shall stand repealed on July 1, 2002.
SECTION 3. Section 69-3-25, Mississippi Code of 1972, is amended as follows:
69-3-25. Any person adjudged by the commissioner to be in violation of any provision of this article may be assessed an administrative fine in an amount not less than Two Hundred Dollars ($200.00) and not more than Five Hundred Dollars ($500.00) for the first offense, not less than Five Hundred Dollars ($500.00) and not more than One Thousand Dollars ($1,000.00) for the second offense, and not less than One Thousand Dollars ($1,000.00) and not more than Two Thousand Dollars ($2,000.00) for the third and subsequent offense. In addition to or in lieu of the administrative fines, the commissioner may suspend or revoke the permit of such person in the manner provided in this article. The commissioner shall notify such person of such action in writing delivered by United States Mail. Such person shall have fifteen (15) days after the notice is mailed within which to request in writing a hearing before the commissioner or his designee for the purpose of deciding whether or not the administrative fine imposed should be allowed to stand. The commissioner shall have the power to issue subpoenas to compel the attendance of witnesses or the production of documents or physical evidence, to administer oaths and hear testimony.
If such person does not deliver the written request for a hearing within such time to the commissioner, the commissioner's original decision shall be final. If either party is aggrieved by the ruling of the commissioner, he may file a notice of appeal within thirty (30) days after the decision of the commissioner with the circuit court of the county of the residence of such person where the case shall be tried de novo. If such person is a nonresident of the State of Mississippi, the case shall be appealed to the Circuit Court of the First Judicial District of Hinds County, Mississippi. A right of appeal to the Mississippi Supreme Court shall be available. If any administrative fine imposed by the commissioner is not paid within thirty (30) days of becoming final, the commissioner may file suit in the circuit court of the county where such person resides or, in the case of a nonresident, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, to enforce the commissioner's decision, and the commissioner may recover reasonable attorney's fees and court costs. The commissioner may invoke the remedy of injunction to enforce any of the provisions of this article. The commissioner may adopt such rules and regulations as necessary to carry out the provisions of this article.
All the fees and fines collected under the provisions of this article shall be deposited in the special fund for the Department of Agriculture and Commerce in the State Treasury.
SECTION 4. Section 69-3-23, Mississippi Code of 1972, which requires traders in seed cotton to keep a register of the names of all persons from whom they buy or procure by barter such cotton, is repealed.
SECTION 5. This act shall take effect and be in force from and after July 1, 1997.