1999 Regular Session
By: Representative Holland
House Bill 803
AN ACT TO AMEND SECTION 69-3-1, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS AS THEY RELATE TO THE AGRICULTURAL SEED LAW; TO AMEND SECTION 69-3-5, MISSISSIPPI CODE OF 1972, TO REVISE THE LABELING REQUIREMENTS FOR AGRICULTURAL SEEDS; TO AMEND SECTION 69-3-7, MISSISSIPPI CODE OF 1972, TO CORRECT AN INCORRECT SUBSECTION REFERENCE; TO AMEND SECTION 69-3-19, MISSISSIPPI CODE OF 1972, TO INCREASE THE FILING FEE FOR FILING A COMPLAINT AGAINST A SEEDSMAN BEFORE REFERRAL TO ARBITRATION, AND TO AUTHORIZE THE COMMISSIONER OF AGRICULTURE AND COMMERCE TO PROMULGATE RULES AND REGULATIONS GOVERNING THE ARBITRATION PROCESS OF THE SEED ARBITRATION COUNCIL; TO AMEND SECTION 69-3-25, MISSISSIPPI CODE OF 1972, TO REVISE THE CRIMINAL PENALTIES FOR VIOLATIONS OF THE AGRICULTURAL SEED LAW; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 69-3-29, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSIONER OF AGRICULTURE AND COMMERCE TO CONDUCT A FULL EVIDENTIARY HEARING AND IMPOSE CIVIL PENALTIES IN LIEU OF REFERRING THE COMPLAINT TO AN ARBITRATION COUNCIL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-3-1, Mississippi Code of 1972, is amended as follows:
69-3-1. Wherever the following terms or similar terms are used in this article, they shall have the following meanings, unless the context clearly indicates otherwise:
(1) "Advertisement" means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this article.
(2) "Agricultural seeds" means the seed of grass, forage, cereal and fiber crops, lawn seed and any other kinds of seed, including genetically engineered seeds, recognized within this state as agricultural or field seeds and mixtures of such seeds.
(3) "Arbitration council" or "council" means a six-member body appointed by the Commissioner of Agriculture and Commerce to determine the validity and recommend settlements of complaints made by consumers against seedsmen.
(4) "Bulk" or "in bulk" means seed when loose either in vehicles of transportation, bins, cribs or tanks, and not seed in bags, boxes, cartons, bulk/super bags or other containers.
(5) "Certified seed," "registered seed" and "foundation seed" mean seed that has been produced and labeled in accordance with the procedures and in compliance with the rules and regulations of an official certifying agency authorized by the laws of this state or the laws of another state or country.
(6) "Commissioner" means the Commissioner of Agriculture and Commerce of the State of Mississippi.
(7) "Date of test" means the month and year the percentage of germination appearing on the label was obtained by laboratory test.
(8) "Department" means the Mississippi Department of Agriculture and Commerce.
(9) "Federal Seed Act" means an act of the Senate and House of Representatives of August 9, 1939, and any subsequent amendments thereto, and includes rules and regulations under the Federal Seed Act of the Secretary of Agriculture and joint rules and regulations of the Secretary of Agriculture and the Secretary of the Treasury promulgated thereunder and any subsequent amendments thereto.
(10) "Firm ungerminated seed" means live seed, other than hard seed, which neither germinate nor decay during the period and under the conditions prescribed for germination of such seed by the rules and regulations promulgated pursuant to provisions of this article. Kinds of seeds known and recognized to contain firm seeds shall be published by regulation.
(11) "Flower seed" means the seeds of herbaceous plants grown for their blooms, ornamental foliage or other ornamental parts, including genetically engineered seeds, and commonly known and sold under the name of flower seeds in this state.
(12) "Gene stacking" means combining traits in seed through genetic engineering such as herbicide resistance, insect resistance and other physiological characteristics.
(13) "Genetic engineering" means the formation of new combinations of heritable material by the isolation of nucleic acid molecules, produced by whatever means outside of the cell, into any virus, bacterial plasmid or other vector system so as to allow their incorporation into a host organism in which they do not naturally occur but in which they are capable of continued propagation.
(14) "Herbicide tolerant" means a plant whose genetic composition has been altered to allow application of certain herbicides, specific to the amount of herbicide and stage of plant growth.
(15) "Hybrid" means the first generation seed of a cross produced by controlling the pollination and combining: (a) two (2) or more inbred lines, or (b) one (1) inbred line or a single cross with an open-pollinated variety, or (c) two (2) varieties of species, except open-pollinated varieties of corn. The second generation and subsequent generations of such crosses shall not be regarded as hybrids.
(16) "Insect resistant" means a plant whose genetic composition has been altered to produce toxins that disrupt the feeding of certain pests.
(17) "Kind" means one or more related species or subspecies which singly or collectively is known by one common name; for example: soybeans, crimson clover, striate lespedeza, tall fescue.
(18) "Label" means the display or displays of written, printed or graphic matter upon or attached to the container of seed.
(19) "Labeling" includes all labels, advertisements and other written, printed or graphic representations in any manner whatsoever pertaining to any seed, whether in bulk or in containers, and includes representations on invoices, except to current official publications of the United States Department of Interior, state experiment stations, state agricultural colleges and other similar federal or state institutions or agencies authorized by law to conduct research.
(20) "Mixed" or "mixture" means seeds consisting of more than one (1) kind, or kind and variety, or strain, each present in excess of five percent (5%) of the whole.
(21) "Noxious weed seeds" shall consist of two (2) classes, as follows:
(a) "Prohibited noxious weed seeds" means the seeds of weeds that reproduce by seed, and/or spread by underground roots or stems and which, when established, are highly destructive and difficult to control in this state by ordinary good cultural practice or constitute a peculiar hazard to the agriculture of this state. Names of such weed seeds shall be published by regulations promulgated pursuant to the provisions of this article.
(b) "Restricted noxious weed seeds" means the seeds of weeds that are particularly objectionable in fields, lawns or gardens of this state, but which can ordinarily be controlled by good cultural practice. Names of such weed seeds shall be published by regulations promulgated pursuant to the provisions of this article.
(22) "Official certifying agency" means an agency authorized or recognized and designated as a certifying agency by the laws of a state, the United States, a province of Canada, or the government of a foreign country.
(23) "Origin" means the state, District of Columbia, Puerto Rico, or possessions of the United States, or the foreign country where the seeds were grown.
(24) "Processing" means cleaning, scarifying, blending or treating to obtain uniform quality and other operations which would change the purity or germination of the seeds and therefore require retesting to determine the quality of the seed.
(25) "Pure seed," "germination," "other crop seed," "inert matter" and other seed labeling and testing terms in common usage not defined herein are defined as in the Federal Seed Act, and the rules and regulations promulgated thereunder, and any subsequent amendments thereto.
(26) "Recognized professional" means a person who is a licensed consultant, a certified crop consultant, a university employee or any other person recognized by the arbitration council to be qualified to fit this definition.
(27) "Seed lot" or "lot of seed" means a definite quantity of seed identified by a lot number or other identification mark, every portion or bag of which is uniform for the factors which appear on the label, within permitted tolerances.
(28) "Records" or "seed records" means information which relates to the origin, treatment, germination and purity of each lot of agricultural seed sold, offered or exposed for sale in this state or which relates to the treatment, germination and variety of each lot of vegetable, flower, or tree and shrub seed sold, offered or exposed for sale in this state. Such information includes seed samples and records of declarations, labels, purchases, sales, cleaning, bulking, handling, storage, analyses, tests and examinations.
(29) "Seedsman" means a person, firm or corporation engaged in the buying, selling or exchanging, offering or exposing for sale agricultural seeds or mixtures thereof, vegetable, flower, tree and shrub seeds as defined in this article. For the purpose of this article:
(a) "Commission merchant" or "agent" means a person, firm or corporation engaged in the selling of packet seed of less than four (4) ounces to consumers.
(b) "Wholesale distributor" means a person, firm or corporation engaged in the selling of seed to a seedsman holding a permit as required by subsection (1)(c) of Section 69-3-3.
(c) "Consumer" means any person who purchases or otherwise obtains seed for sowing but not for resale.
(d) "Commercial grower" means a person, firm or corporation engaged primarily in the production of seed for planting purposes for sale or trade.
(30) "Stop sale order" means any written or printed notice or order given or issued by the commissioner or his authorized agents to the owner or custodian of any lot of agricultural, vegetable, flower or tree and shrub seeds in this state, directing such owner or custodian not to sell, offer or expose such seeds for sale for planting purposes within this state until requirements of this article shall have been complied with and a written release has been issued.
(31) "Strain" means the subdivision of a variety; for example: Clemson nonshattering soybeans, Strain 4.
(32) "Tolerance" means the allowance for sampling variation specified under rules and regulations promulgated pursuant to the provisions of this article.
(33) "Transgenic seed" means seed from a plant whose genetic composition has been altered to produce seed that contain selected genes from other plants or species by methods other than those used in conventional plant breeding.
(34) "Treated" means that the seed has been given an application of a substance or subjected to a process designed to control or repel certain disease organisms, insects or other pests attacking such seeds or seedlings grown therefrom to improve its planting value or to serve any other purpose.
(35) "Tree and shrub seeds" means the seeds of woody plants, including genetically engineered seeds, commonly known and sold as tree and shrub seeds in this state.
(36) "Variety" means a subdivision of a kind which is characterized by growth, plant, fruit, seed or other characteristics by which it can be differentiated in successive generations from other sorts of the same kind; for example: Lee soybeans, Frontier crimson clover, Kobe striate lespedeza, Kentucky 31 tall fescue.
(37) "Vegetable seeds" means the seeds of those crops which are grown in gardens or on truck farms, including genetically engineered seeds, and are generally known and sold under the name of vegetable seeds in this state.
(38) "Weed seeds" means the seeds, bulblets or tubers of all plants generally recognized as weeds within the state and includes noxious weed seeds.
SECTION 2. Section 69-3-5, Mississippi Code of 1972, is amended as follows:
69-3-5. Each container of agricultural, vegetable, flower, or tree and shrub seeds sold, offered for sale, or exposed for sale, or transported within this state for seeding purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving the following information:
I. For agricultural seeds.
(a) The commonly accepted name of kind and variety of each agricultural seed present in excess of five percent (5%) of the whole and the percentage by weight of each in the order of its predominance. When more than one (1) kind and variety is required to be named, the word "mixture" or the word "mixed" shall be shown conspicuously on the label, provided that the commissioner may through the promulgation of regulations permit certain kinds of seed to be labeled "mixed" without showing the percentage of each variety present. Hybrids shall be labeled with the name and/or number by which the hybrid is commonly designated.
(b) Lot number or other designation.
(c) Net weight.
(e) Percentage by weight of all weed seeds, including noxious weed seeds.
(f) Percentage by weight of inert matter.
(g) Percentage by weight of other crop seed.
(h) For each named agricultural seed.
(1) Percentage of germination, exclusive of hard seed or firm seed.
(2) Percentage of hard seed, if present.
(3) Percentage of firm ungerminated seed, if present.
(4) The calendar month and year the test was completed to determine such percentages.
(i) The name and number per pound of each kind of "restricted" noxious weed seed.
(j) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.
(k) In addition to the above labeling requirements, certain additional information may, through the promulgation of regulations by the commissioner, be required for labeling * * *.
II. For vegetable seeds in containers of * * * more than one (1) pound.
(a) Name of kind and variety of seed.
(b) Net weight.
(c) Lot number or other identification.
(d) Percentage of germination, exclusive of hard seed.
(e) Percentage of hard seed, if present.
(f) Calendar month and year the test was completed to determine such percentages.
(g) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.
(h) For seeds which germinate less than standards prescribed under rules and regulations promulgated pursuant to the provisions of this article, the words "below standard" in not less than 8-point type must be written or printed on face of tag in addition to other information required.
III. For vegetable seeds in containers of one (1) pound or less * * *.
(a) Name of kind and variety.
(b) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.
(c) For seeds which germinate less than the standards last prescribed for such seed under rules and regulations promulgated pursuant to the provisions of this article, the following additional information must be shown:
(1) Percentage of germination, exclusive of hard seed.
(2) Percentage of hard seed, if present.
(3) Calendar month and year the test was completed to determine such percentage.
(4) The words "below standard" in not less than 8-point type.
IV. For flower seed.
Flower seed shall be labeled to comply with rules and regulations promulgated by the commissioner pursuant to the provisions of this article.
V. For tree and shrub seed.
Tree and shrub seed shall be labeled to comply with the rules and regulations promulgated by the commissioner pursuant to the provisions of this article.
VI. For treated seed.
All seeds treated as defined in this article (for which a separate label may be used) shall be labeled in accordance with the rules and regulations promulgated pursuant to the provisions of this article.
SECTION 3. Section 69-3-7, Mississippi Code of 1972, is amended as follows:
69-3-7. (1) Each person handling seed subject to this article shall keep for a period of two (2) years a complete record of agricultural, vegetable, flower or tree and shrub seeds handled.
(2) Such records shall include the information as defined in paragraph (28) of Section 69-3-1.
(3) The commissioner or his duly authorized agents shall have the right to inspect such records for the purpose of the effective administration of this article.
SECTION 4. Section 69-3-19, Mississippi Code of 1972, is 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, including genetically engineered 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 Department of Transportation to determine whether or not seed so tested meets the Transportation Department's requirements as set out in its contract specifications. No further testing shall be required unless the Transportation 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 Transportation 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 * * * for each complaint. Each of the following organizations shall supply the commissioner with a list of four (4) candidates from which to select a council for a complaint: 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. * * * The commissioner shall be a member of and serve as chairman of the council. The commissioner shall select his agency's member. The commissioner 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. The commissioner shall prescribe and adopt reasonable rules and regulations governing the arbitration process.
(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 the alleged failure of seed to perform as represented by labeling.
(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. When a complaint involving genetically engineered seeds is filed for arbitration, the seedsman shall furnish the commissioner the technology and procedures necessary to conduct any test to determine whether the seeds will perform as represented by the seedsman.
(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. A majority of the council shall constitute a quorum at any legally called meeting of, or hearing conducted by, the council, and the act of a majority present at any such meeting or hearing shall be the act of the council. The deliberations of the council at which the merits of a seed arbitration claim are under consideration shall not be subject to the Mississippi Open Meetings Act, Section 25-41-1 et seq.
(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 labeling shall make a sworn complaint against such seedsman alleging damages sustained. The complaint shall include documentation from a recognized professional verifying the problem exists. 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 Two Hundred Fifty Dollars ($250.00) plus a One Dollar ($1.00) per acre assessment 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 an immediate 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; and
(f) To issue and enforce an immediate "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 5. Section 69-3-25, Mississippi Code of 1972, is amended as follows:
69-3-25. (1) Any person violating any of the provisions of this article, or the rules and regulations promulgated hereunder, shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than one (1) year, or by both such fine and imprisonment.
(2) In addition to the criminal penalties provided in subsection (1) of this section, any person violating any of the provisions of this article, or the rules and regulations promulgated hereunder, may be subject to civil penalties as provided in Section 69-3-29.
SECTION 6. The following provision shall be codified as Section 69-3-29, Mississippi Code of 1972:
69-3-29. (1) In lieu of referring the complaint to an arbitration council, the Commissioner of Agriculture and Commerce, or his designee, may conduct a full evidentiary hearing when a written complaint is made against a person, corporation or other entity for violation of this article, or any of the rules or regulations promulgated hereunder. The complaint shall be in writing and shall be filed with the Department of Agriculture and Commerce. The commissioner shall deliver to the accused in the manner described below a copy of the complaint and a summons requiring the accused to file a written answer to the complaint within twenty (20) days after the date of service of the summons and the complaint. The accused may be notified by serving a copy of the summons and complaint on the accused or any of his officers, agents or employees by personal service or by certified mail. Upon receipt of the written answer of the accused, the matter shall be set for hearing before the commissioner, or his designee, within a reasonable time. If the accused fails to file an answer within such time, the commissioner, or his designee, may enter an order by default against the accused. The commissioner is hereby vested with the power to issue subpoenas to require the attendance of witnesses and the production of documents. Compliance with the subpoenas may be enforced by any court of general jurisdiction in this state. The testimony of witnesses shall be upon oath or affirmation, and they shall be subjected to cross-examination. The proceedings shall be recorded. If the commissioner, or his designee, determines that the complaint lacks merit, he may dismiss same. If he finds that there is substantial evidence showing that a violation of any of the statutes or regulations has occurred, he shall have the authority to impose any or all of the following penalties upon the accused: (a) to levy a civil penalty in an amount not to exceed Five Thousand Dollars ($5,000.00) for each violation; (b) to revoke or suspend any license or permit issued to the accused under the terms of this article; (c) to issue a stop sale order; (d) to require the accused to relabel a lot of seed that he is offering or exposing for sale and which is not labeled in accordance with the provisions of this article; or (e) to seize any lot of seed that is not in compliance with this article and destroy, sell or otherwise dispose of the seed and apply the proceeds of the sale to the costs incurred herein and to any civil penalties levied, with the balance to be paid to the accused. The decision of the commissioner, or his designee, shall be in writing and shall be delivered to the accused in the same manner that the summons and complaint was served.
(2) Either the accused or the department shall have the right to appeal the decision of the commissioner, or his designee, to the circuit court of the county of residence of the accused, or if the accused is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County, Mississippi. The appellant shall have the obligation of having the record transcribed and filing it with the circuit court. The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to circuit court. If no appeal is perfected within the required time, the decision of the commissioner, or his designee, shall become final.
(3) The decision of the circuit court may be appealed by either party to the Mississippi Supreme Court in accordance with the existing law and rules affecting such appeals.
(4) Where any violation of this article, or the rules and regulations promulgated hereunder, occurs, or is about to occur, that presents a clear and present danger to the public health, safety or welfare requiring immediate action, any of the department's field inspectors, and any other persons authorized by the commissioner, may issue an order to be effective immediately, prior to notice and a hearing, that imposes any or all of the following penalties against the accused: (a) a stop sale order; (b) require the accused to relabel a lot of seed that he is offering or exposing for sale and which is not labeled in accordance with the provisions of this article; or (c) seize any lot of seed that is not in compliance with this article and destroy, sell or otherwise dispose of the seed and apply the proceeds of the sale to the cost incurred herein and to any civil penalties levied, with the balance to be paid to the accused. The order shall be served upon the accused in the same manner that the summons and complaint were served. The accused shall then have thirty (30) days after service of the order upon him within which to request an informal administrative review before the Director of the Bureau of Plant Industry within the department, or his designee, who shall act as reviewing officer. If the accused makes such a request within such time, the reviewing officer shall provide an informal administrative review to the accused within ten (10) days after such request is made. If the accused does not request an informal administrative review within such time frame, then he will be deemed to have waived his right to same. At the informal administrative review, subpoena power shall not be available, witnesses shall not be sworn nor be subjected to cross-examination, and there shall be no court reporter or record made of the proceedings. Each party may present its case in the form of documents, oral statements or any other method. The rules of evidence shall not apply. The reviewing officer's decision shall be in writing, and it shall be delivered to the parties by any of the methods described herein for service of summons and complaint on the accused. If either party is aggrieved by the order of the reviewing officer, he may appeal to the commissioner for a full evidentiary hearing in accordance with the procedures described in subsection (1) of this section, except that there shall be no requirement for a written complaint or answer to be filed by the parties. Such appeal shall be perfected by filing a notice of appeal with the commissioner within thirty (30) days after the order of the reviewing officer is served on the appealing party. The hearing before the commissioner, or his designee, shall be held within a reasonable time after the appeal has been perfected. Failure to perfect an appeal within the allotted time shall be deemed a waiver of such right.
(5) This section shall not apply to complaints referred to an arbitration council as such complaints are governed by the procedures set forth in Section 69-3-19.
SECTION 7. This act shall take effect and be in force from and after July 1, 1999.