1997 Regular Session
To: Ports and Marine Resources
By: Senator(s) Hewes
Senate Bill 2814
(As Passed the Senate)
AN ACT TO AMEND SECTION 49-15-15, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSION ON MARINE RESOURCES TO PROMULGATE REGULATIONS GOVERNING THE TAKING OF OYSTERS BY NONPROFIT ORGANIZATIONS; TO AUTHORIZE THE ISSUANCE OF SPECIAL PERMITS; TO ALLOW EXCEPTIONS FOR TAKING OYSTERS IN CLOSED SEASONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-15-15, Mississippi Code of 1972, is amended as follows:
49-15-15. (1) The express purpose of this section is to furnish the commission with jurisdiction and authority over all marine aquatic life.
(2) The commission shall have full jurisdiction and control of all public and natural oyster reefs and oyster bottoms of the State of Mississippi.
(a) The commission may regulate any matters pertaining to oysters, shrimp and shellfish and shall utilize the resources of the Gulf Coast Research Lab to the fullest extent possible. The commission shall regulate all oyster, shrimp and shellfish sanitation and processing programs. In the three (3) coastal counties, the shellfish sanitation program regulating processing plants and shellfish sold in retail stores operating in conjunction with a processing plant or seafood market that primarily deals with seafood is under the exclusive authority of the commission. The commission shall develop a water management plan to preserve our oyster, shrimp and shellfish resources and to ensure a safe supply of these resources.
(b) To effectively and efficiently implement the state shellfish sanitation program, the State Health Officer and the executive director of the department shall enter into a memorandum of understanding, which, at a minimum, clearly specifies the responsibilities of each agency in implementing the shellfish sanitation program, as well as the sharing of information and communication and coordination between the agencies.
(c) Any person, licensed live bait dealers, licensed live bait shrimpers and licensed commercial shrimpers shall be allowed to take shrimp in the bays of Bay St. Louis, Biloxi and Pascagoula with a cast net, but shall not take more than fifty (50) pounds of shrimp per person per day. The cast net shall not exceed twelve (12) feet in length.
(3) In connection with its jurisdiction and authority, the commission:
(a) Shall set standards of measure.
(b) Shall open, close and regulate fishing seasons for the taking of shrimp, oysters, fish taken for commercial purposes and crabs. However, the shrimp season shall open on the first Wednesday of June. The shrimp season shall be closed from January 1 until it is opened the first Wednesday of June, except south of the intercoastal waterway. The shrimp season shall be closed south of the intercoastal waterway from May 1 until it is opened the first Wednesday of June. For the purposes of this paragraph only, that portion of the intercoastal waterway that extends from a point south of Long Beach to a point south of Point Clear is described as follows: Begin at green buoy or beacon number 1 which is located approximately three (3) miles north of West Point on Cat Island, thence extending southwesterly to buoy or beacon number 4P, thence southwesterly to Pass Marianne Light, thence southwesterly to buoy or beacon number 15P at the northernmost point of Merrill Coquille, thence southwesterly to buoy or beacon number 17P, thence southwesterly to buoy or beacon number 22, thence westerly to Lighthouse Point and continuing westward following the meandering of the shoreline to the boundary line of the state. The commission, by majority vote, may open the season at an earlier or later date in designated areas only after sampling areas within its jurisdiction where shrimp may be caught for the purpose of determining the count of shrimp per pound. The commission may also, by majority vote, close certain designated areas where the shrimp count is found, by sampling, to be in excess of sixty-eight (68) per pound. The following waters are protective and staging areas for young shrimp, and as such, are permanently closed to commercial and recreational shrimping activities:
All waters north of a line beginning at a point one-half
mile due South of the shoreline at the Mississippi-Alabama
state boundary; thence running westerly following the
meanderings of the shoreline one-half mile therefrom to
Light "5" in the Bayou Casotte Channel; thence running
northerly to Light "7" in the Bayou Casotte Channel;
thence running westerly following the meanderings of the
shoreline one-half mile therefrom to the intersection with
the Pascagoula Channel; thence running northwesterly to
Beacon "44" in the Pascagoula Channel; thence running
southwesterly to Beacon "43" in the Pascagoula Channel;
thence running in the most direct line to the northeast
point of Singing River Island; thence running westerly
along the north shoreline to the northwest point of
Singing River Island; thence running northwesterly to a
point one-half mile due south of the mouth of Graveline
Bayou; thence running westerly following the meanderings
of the shoreline one-half mile therefrom to Beacon "18" in
the Biloxi Bay Channel; thence running northwesterly to
Beacon "22" in the Biloxi Bay Channel; thence running
northwesterly to Beacon "26" in the Biloxi Bay Channel;
thence running westerly to Beacon "34", exclusive of the
Biloxi Channel itself; thence running westerly to Beacon
"30" in the Biloxi Channel, exclusive of the Biloxi
Channel itself; and thence running due South to a point on
the north shore of Deer Island; thence running westerly
following the north shore of Deer Island to the
westernmost tip; thence running westerly in the most
direct line to Biloxi Beacon "8"; thence running westerly
following the meanderings of the shoreline at a distance
of one-half mile therefrom to a point on the centerline
of the CSX Railroad Bridge over St. Louis Bay; thence
running westerly along the centerline of said bridge to
a point one-half mile south of the western abutment;
thence running southwesterly following the meanderings
of the shoreline, at a distance of one-half mile
therefrom, to a point one-half mile due East of the
mouth of Bayou Caddy; thence running due West to the
mouth of Bayou Caddy; thence running southwesterly
following the meanderings of the shoreline to a point on
the Mississippi-Louisiana state boundary.
Public reefs may be opened for harvest of oysters during the season on a rotating basis; but at least one (1) reef must be opened in each county throughout the season, unless a reef is closed pursuant to subsection (9), or unless the commission determines that a particular reef has been over-harvested or that a high percentage of sub-legal size oysters exist on a particular reef and that harvest could damage future oyster crops. Reefs open for harvest during the season shall be open every Monday through Saturday, and subject to the availability of funds, such reefs shall be open on Sunday. Upon making such a determination, the commission may close designated reef areas and keep them closed during the season.
The commission may issue special permits for the purpose of catching oysters outside the open season or in areas not normally open to harvest to those nonprofit organizations that are tax exempt under Section 501(c) of the United States Internal Revenue Code and which have on file with the State Tax Commission a tax exemption letter issued by the United States Internal Revenue Service.
The commission shall promulgate rules and regulations governing the taking of oysters by the nonprofit organization and shall issue such regulations to all organizations upon request and at the issuance of the special permit.
(c) Shall set size, catching and taking regulations for all types of seafood and culling regulations for oysters. Unless otherwise permitted by the commission, no oysters shall be taken from the reefs of this state unless culled upon the natural reefs, and all oysters less than three (3) inches from end to end, and all dead shells, shall be replaced, scattered and broadcast immediately on the natural reefs from which they are taken. It is unlawful for any captain or person in charge of any vessel, or any canner, packer, commission man, dealer or other person to purchase, sell or to have in his possession or under his control any oysters off the public reefs or private bedding grounds not culled according to this section, or any oysters under the legal size. A ten percent (10%) tolerance shall be allowed in relation to any culling. The commission, in its discretion, may authorize the culling of oysters of a lesser measure.
Such authorization shall be in response to special circumstances or extreme natural conditions affecting the habitat, including but not limited to flooding. The department may establish checkpoints in any area within its jurisdiction for the purpose of conducting inspections in the enforcement of the regulations set forth in this subsection.
(d) For the purpose of growing oysters, shall acquire and replant shells, seed oysters and other materials when funding is available. However, one hundred percent (100%) of all the oyster shells produced from oysters taken from the public reefs of the State of Mississippi are hereby declared to be the nontransferable property of the State of Mississippi, and all persons, firms or corporations dealing in or canning oysters taken from the public reefs of the state shall deliver to the commission one hundred percent (100%) of the oyster shells taken or processed by such person, firm or corporation, delivery of same to be at the place of business of the oyster processor, dealer or factory. The commission shall order that such oyster shells shall be spread on the public reefs of this state to improve the oyster beds. The commission shall charge a fee of Fifty Cents (504) per sack to be paid to it for the above shells taken from waters within the territorial jurisdiction of the State of Mississippi, but processed in other states, in lieu of taking delivery of same. Funds received from the shell retention fee shall be paid into a special fund in the State Treasury to be appropriated by the Legislature for use by the commission to further oyster production in this state. Any person failing or refusing to deliver such shells or shell retention fee to the department when called for by it, as provided in this section, is guilty of a misdemeanor and, upon conviction, shall be fined not more than One Hundred Dollars ($100.00) for each barrel of shells they fail or refuse to deliver, or to tender the shell retention fee; and, in addition thereto, shall pay the reasonable value thereof and shall be ineligible to be licensed for any of the activities set forth in this chapter.
The collection and planting of oyster shells as provided under this chapter shall be under the direction and supervision of the executive director of the department. Planting and replanting of oyster shells shall be coordinated by the Gulf Coast Research Laboratory. The governing authorities of each county and municipality bordering upon the Mississippi Sound are hereby empowered to assist the commission and the Gulf Coast Research Laboratory in the planting and replanting of oyster shells. The commission shall construe this subparagraph to require the return of a maximum amount of shells to the reefs, and shall allow the retention of shells only in cases where the collection or return of the shells is impractical or not feasible.
An equal amount of oyster shells shall be planted or replanted in the waters of each county bordering on the Mississippi Sound.
(e) Shall coordinate with the Gulf Coast Research Laboratory in the development of an ordinance for the purpose of taking callinectes sapidus (blue crab) or allied species. The ordinance shall include provisions for the establishment of size limits for individual or market use as well as establishing legal harvest size for the cultivating of peeler crabs and soft shell crabs.
(f) Shall set forth enforcement procedure and penalties for violations, except that in the case where a "live bait dealer" or "live bait catcher boat" is convicted of a violation of this section or a duly adopted ordinance of the commission. In such a case, the commission may, in addition to punishment duly adjudicated, revoke the license of the vessel or dealer to whom it is issued for a period not exceeding two (2) weeks following conviction of the first offense, not exceeding six (6) months following conviction of the second offense, and up to one (1) year revocation following conviction of the third offense when such subsequent offenses are committed within three (3) years of the first offense. Upon the revocation of such license, the commission may require the posting of a cash performance bond not to exceed One Thousand Dollars ($1,000.00) before the reissuance of a license previously revoked in accordance with this section. The commission may at its discretion require the forfeiture of such bond upon the subsequent conviction of any violation of this section or a duly adopted ordinance of the commission. If a person who posts bond under this paragraph desires to no longer engage in the live bait business, such person shall certify that fact to the commission who shall return the bond. If, thereafter, such person desires to again engage in the live bait business a cash performance bond may be required prior to the reissuance of a license.
(g) May set requirements for employment of nonenforcement commission employees whose compensation shall be governed by the rules and regulations of the State Personnel Board.
(h) May acquire and dispose of commission equipment and facilities.
(i) Shall arrange for keeping of proper records of the commission.
(j) May enter into advantageous interstate and intrastate agreements with proper officials, which agreements directly or indirectly result in the protection, propagation and conservation of the seafood of the State of Mississippi, or continue any such agreements now in existence.
(k) May arrange, negotiate or contract for the use of available federal, state and local facilities which would aid in the propagation, protection and conservation of the seafood of the State of Mississippi.
(l) May enact all regulations necessary for the protection, conservation or propagation of all shrimp, oysters, commercial fish and crabs in the waters under the territorial jurisdiction of the State of Mississippi, including but not be limited to the regulation of gill net and purse seine fishermen. However, it is unlawful for any person, firm or corporation to take, catch or have in their possession within territorial waters of the State of Mississippi shrimp of a size weighing in the raw state less than one (1) pound to each sixty-eight (68) shrimp, except when a valid permit or affidavit of another state identifies the catch as having been taken in non-Mississippi waters, or except in case of live bait shrimp. It is unlawful to take, catch or have in possession live bait shrimp of a size weighing in the raw state less than one (1) pound to each one hundred (100) shrimp. This provision may be changed by a two-thirds (2/3) vote of the commission. The commission may adopt rules, regulations, guidelines and other operation criteria in conjunction with licensing live bait dealers and live bait catcher boats as it deems appropriate to ensure that only bona fide operations will be licensed. The commission shall consult with existing live bait dealers and live bait catcher boat operators prior to adoption of such regulations and prior to any future changes, and shall hold public hearings in every county on the Mississippi Gulf Coast.
(m) Shall establish minimum specifications for crab traps and shall require buoys of adequate size which are identified as to the owner of such buoys and traps. Within the bays and bayous recreational crabbers may use no more than six (6) crab traps per household. The commission may require a recreational crabbers license for an administrative fee not to exceed Five ($5.00) Dollars. The taking of crabs with drop nets is permitted without a license.
It is unlawful to catch, hold or have in possession any female sponge crab or any female crab bearing visible eggs at any time within marine waters. It is not unlawful to catch such crabs unintentionally, if the crabs are immediately returned to the water.
(n) May authorize the operation of double rigs in the waters lying between the mainland coast and the island chain, and such rigs shall not exceed a length of twenty-five (25) feet at the cork line, and shall prescribe the length at the lead line for each rig, net or try-trawl.
(o) Shall establish open season for menhaden not later than the third Monday in April and ending no sooner than the second Tuesday in October.
(p) Shall require all boats used under regulation of this chapter which are also used in waters of other states and required by such states to pay licenses or fees for the same purposes as licenses and fees are required under this chapter to purchase a license which reflects that such licensed boats are used within and without the territorial waters of Mississippi. Upon the issuance of such license, such licensed boat, if used exclusively for commercial fishing or charter boats which have been licensed and authorized as such by the United States Coast Guard pursuant to 46 CFR 24-26 and 46 CFR 175-187, shall be deemed to be in the business of interstate transportation; however, this shall in no way affect the collection of other licenses and fees by the commission which would otherwise be due under this chapter.
Notwithstanding the provisions of this section, the commission shall establish a transport permit to land seafood in this state which is legally taken outside of the Mississippi territorial waters without obtaining a license under this chapter; the commission by regulation shall require the registration and inspection of such landings. The commission may establish a permit fee in an amount not to exceed the amount of the license fee established in Section 49-15-29(f). This paragraph shall not be construed to supersede Section 49-15-71.
Any nonresident who engages in the commercial taking of seafood within the territorial waters of Mississippi without having the required nonresident commercial license is guilty of a misdemeanor and shall be fined Five Thousand Dollars ($5,000.00) and shall forfeit any equipment, gear or nets used in the offense.
(q) Shall prohibit the sale or possession of illegal oysters. It is unlawful for any person, firm or corporation to possess or to engage in the sale of oysters not certified in this state, or to shuck or repack for sale any illegal oysters, unless such person, firm or corporation shall possess a bill of sale, valid permit or affidavit of another state, properly dated, evidencing the legality of the sale or possession of such oysters in that state. Any person in possession of illegal oysters shall be subject to civil or criminal prosecution and shall be fined not less than One Hundred Dollars ($100.00) or punished as provided in Section 49-15-63.
(r) When an application for an original or renewal license of any kind authorized by this chapter is received by the commission, the commission shall determine whether the vessel or related equipment subject to such license is owned and operated in compliance with applicable federal and state laws; if it be determined that a vessel or its owner is not in compliance with such laws, then no license shall be issued or renewed for the operation of such vessel for a period of one (1) year. All licenses shall be made available for purchase at any building which is regularly operated by the department or commission on the Mississippi Gulf Coast.
(4) The commission shall keep and maintain an official ordinance book into which shall be copied all regulations promulgated by the commission under authority herein granted, and each regulation so promulgated shall immediately be advertised one (1) time in a newspaper or newspapers having general circulation in counties affected by such regulation. A regulation shall become effective at 6:00 a.m. on the day after its publication.
The commission shall promulgate all rules pertaining to this chapter in accordance with the Mississippi Administrative Procedures Law provided that all hearings required under the Mississippi Administrative Procedures Law concerning the regulation of marine resources shall be held in Hancock, Harrison or Jackson Counties.
(5) The executive director of the department shall have printed an abstract copy of this chapter and all subsequent amendments thereto, as well as all regulations promulgated by the commission, and may distribute the same to all persons interested and desiring a copy thereof and to each licensee at the time of issuance of the license. New regulations and amendments to this chapter may be supplied to each licensee within a reasonable time after their promulgation. The department is authorized to charge a reasonable fee not to exceed actual cost for its publications.
(6) The commission is hereby specifically empowered and authorized to support projects in the nature of digging or constructing canals or ditches in order to bring additional water to existing oyster reefs or beds in need of same, or for the purpose of creating or establishing new oyster reefs or beds, and all reefs so created or established shall be deemed public reefs. The commission may expend such monies as it shall deem necessary and expedient in order to participate in the digging of such canals. The commission may also enter into interstate or intrastate efforts toward this end, and may seek and utilize aid from all federal, state and local sources in this endeavor. To aid in the construction of such canals or ditches, the commission may exercise the right of eminent domain in the manner provided by law on the subject.
(7) The commission may construct, operate and maintain an onshore, molluscan depuration facility using any federal or special funds, other than general funds, for the purpose of testing and proving depuration technology of oysters and other molluscan shellfish. In connection with the construction, operation and maintenance of the facility, the commission may contract with such persons as may be deemed necessary for the operation, testing, maintenance and evaluation of the facility subject to the approval of the State Personnel Board. The commission may locate the facility on any available public properties subject to the approval of the governing body thereof and all other applicable state laws; and once depuration technology has been tested and proven for oysters, the commission may conduct such other tests and experiments with oysters or other shellfish as may be necessary to enhance production or quality of shellfish.
(8) The commission may lease to political subdivisions of the State of Mississippi up to one thousand (1,000) acres of water bottoms for development of oyster reefs and such political subdivisions are authorized to permit residents of the State of Mississippi to harvest oysters from such reefs and charge and receive a fee for each sack of oysters so harvested. The commission shall consider and approve the application of a political subdivision after determining that (a) no conflicts exist with sites requested in applications filed prior to the application of the political subdivision, (b) a fair and reasonable rental payment has been set, and (c) such lease will insure the maximum culture and propagation of oysters.
(9) The commission shall promulgate regulations regarding the closing of oyster reefs which are determined to be contaminated or otherwise unfit for consumption; however, the waters of reefs closed under this chapter shall be tested between five (5) and ten (10) days after closure. When such testing indicates that the oysters on the closed reef are suitable for consumption, the reef shall be opened for the taking of oysters as soon as notice thereof may be made to parties in interest. The authority to open or close oyster reefs under this chapter shall be solely within the discretion of the commission acting through the department. The Gulf Coast Research Laboratory or other certified laboratory shall cooperate with the department and shall conduct necessary tests to determine the condition of oyster reefs at the request of the department. The department pursuant to its statutory authority may limit the sale of oysters for human consumption; however, all matters concerning the harvesting of oysters shall be within the jurisdiction of the commission.
The commission shall establish a reasonable period of time for depuration of oysters replanted from contaminated waters. Such periods of time shall be consistent with the maintenance of the public health and may vary from time to time and from one reef to another in accordance with environmental conditions.
(10)(a) The commission shall provide that residents of other states bordering on the Gulf of Mexico who are applicants for a commercial fishing license of any type as provided for in this chapter shall pay the same fee or fees that a resident of this state pays in this state for such license if the respective applicant's domicile state does not charge a greater fee or fees for a Mississippi resident than for a resident of such other state to engage in a like activity in such other state; however, if such applicant's domicile state does charge a greater fee or fees for residents of Mississippi than for a resident of the applicant's domicile state, then such applicant shall pay the same fee or fees that the applicant's domicile state charges residents of Mississippi.
(b) If a regulatory agency of a foreign state establishes a station or checkpoint through which Mississippi residents must pass for license, permit or catch inspection, or otherwise, the department shall establish similar stations or checkpoints through which residents of such foreign states shall be required to pass.
(11) The commission shall provide by rule for the disposition of equipment or nets which have been lawfully seized by the commission and which are not sold pursuant to Section 49-15-65. The commission is authorized to destroy such property, in its discretion, and pursuant to rules adopted under this subsection.
(12) The commission shall not adopt rules, regulations or ordinances pertaining to marine resources which are more stringent than federal regulations. In any case where federal laws and regulations are silent on a matter pertaining to marine resources, the laws and regulations of the State of Mississippi shall control. The commission shall review all marine resource ordinances for compliance with the no more stringent standard and revise any ordinances more stringent than this standard no later than December 31, 1992. This subsection shall not apply to rules, regulations or ordinances pertaining to the wild stock of marine fin fish.
(13) Prior to the issuance, modification or revocation of any rule, regulation or ordinance pertaining to marine resources, the commission shall hold a public hearing to obtain comments from the public on its proposed action.
SECTION 2. This act shall take effect and be in force from and after its passage.