2005 Regular Session
To: Judiciary, Division A
By: Senator(s) Ross
AN ACT TO AMEND SECTIONS 25-43-3.103 AND 25-43-3.109, MISSISSIPPI CODE OF 1972, TO CORRECT TYPOGRAPHICAL ERRORS IN INTERNAL REFERENCES IN THE ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTION 43-13-137, MISSISSIPPI CODE OF 1972, TO CONFORM THE STATUTORY REFERENCE IN THE MEDICAID LAW TO THE ADMINISTRATIVE PROCEDURES ACT TO THE REVISED ACT; TO AMEND SECTION 83-24-43, MISSISSIPPI CODE OF 1972, TO CONFORM THE NOTICE REQUIRED IN INSURANCE REHABILITATION AND LIQUIDATION TO THE FORM OF NOTICE REQUIRED UNDER THE REVISED ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTION 65-9-1, MISSISSIPPI CODE OF 1972, TO CHANGE THE WORD "ACT" TO THE WORD "LAW" IN THE STATE AID ROAD LAW; TO AMEND SECTIONS 77-3-45 AND 77-3-59, MISSISSIPPI CODE OF 1972, TO CONFORM THE NOTICE REQUIREMENTS APPLICABLE TO THE PUBLIC SERVICE COMMISSION TO THE REVISED ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTIONS 53-1-19 AND 53-1-47, MISSISSIPPI CODE OF 1972, TO CONFORM NOTICE PROCEDURES APPLICABLE TO THE OIL AND GAS BOARD TO THE REVISED ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTION 51-11-19, MISSISSIPPI CODE OF 1972, TO CONFORM THE STATUTORY RULE-MAKING AUTHORITY OF THE PEARL RIVER BASIN DEVELOPMENT DISTRICT TO THE REVISED ADMINISTRATIVE PROCEDURES ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-43-3.103, Mississippi Code of 1972, is amended as follows:
25-43-3.103. (1) At least twenty-five (25) days before the adoption of a rule an agency shall cause notice of its contemplated action to be properly filed with the Secretary of State for publication in the administrative bulletin. The notice of proposed rule adoption must include:
(a) A short explanation of the purpose of the proposed rule and the agency's reasons for proposing the rule;
(b) The specific legal authority authorizing the promulgation of rules;
(c) A reference to all rules repealed, amended or suspended by the proposed rule;
(d) Subject to Section 25-43-2.101(7), the text of the proposed rule;
(e) Where, when and how persons may present their views on the proposed rule; and
(f) Where, when and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.
(2) Within three (3) days after its proper filing with the Secretary of State for publication in the administrative bulletin, the agency shall cause a copy of the notice of proposed rule adoption to be provided to each person who has made a timely request to the agency to be placed on the mailing list maintained by the agency of persons who have requested notices of proposed rule adoptions. An agency may mail the copy to the person and may charge the person a reasonable fee for such service, which fee may be in excess of the actual cost of providing the person with a mailed copy. Alternatively, the agency may provide the copy via the Internet or by transmitting it to the person by electronic means, including, but not limited to, facsimile transfer or e-mail at no charge to the person, if the person consents to this form of delivery.
SECTION 2. Section 25-43-3.109, Mississippi Code of 1972, is amended as follows:
25-43-3.109. (1) Each rule adopted by an agency must contain the text of the rule and:
(a) The date the agency adopted the rule;
(b) An indication of any change between the text of the proposed rule contained in the published notice of proposed rule adoption and the text of the rule as finally adopted, with the reasons for any substantive change;
(c) Any changes to the information contained in the notice of proposed rule adoption as required by Section 25-43-3.103(1)(a), (b) or (c) * * *;
(d) Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule; and
(e) The effective date of the rule if other than that specified in Section 25-43-3.113(1).
(2) To the extent feasible, each rule should be written in clear and concise language understandable to persons who may be affected by it.
(3) An agency may incorporate, by reference in its rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, if incorporation of its text in agency rules would be unduly cumbersome, expensive or otherwise inexpedient. The reference in the agency rules must fully identify the incorporated matter with an appropriate citation. An agency may incorporate by reference such matter in its rules only if the agency, organization or association originally issuing that matter makes copies of it readily available to the public. The rules must state if copies of the incorporated matter are available from the agency issuing the rule or where copies of the incorporated matter are available from the agency of the United States, this state, another state or the organization or association originally issuing that matter.
(4) In preparing its rules pursuant to this Article III, each agency shall follow the uniform numbering system, form and style prescribed by the Secretary of State.
SECTION 3. Section 43-13-137, Mississippi Code of 1972, is amended as follows:
43-13-137. The division is an agency as defined under Section 25-43-3 and, therefore, must comply in all respects with the Administrative Procedures Law, Section 25-43-1.101 et seq.
SECTION 4. Section 83-24-43, Mississippi Code of 1972, is amended as follows:
83-24-43. (1) Unless the court otherwise directs, the liquidator shall give or cause to be given notice in a manner specified under the Administrative Procedures Law of the liquidation order as soon as possible:
(a) * * * To the insurance commissioner of each jurisdiction in which the insurer is doing business, who shall receive additional notice by telephone or telegraph;
(b) * * * To any guaranty association or foreign guaranty association which is or may become obligated as a result of the liquidation;
(c) * * * To all insurance agents of the insurer;
(d) * * * To all persons known or reasonably expected to have claims against the insurer, including all policyholders, at their last known address as indicated by the records of the insurer; and
(e) By publication in a newspaper of general circulation in the county in which the insurer has its principal place of business and in such other locations as the liquidator deems appropriate.
(2) Except as otherwise established by the liquidator with approval of the court, notice to potential claimants under subsection (1) shall require claimants to file with the liquidator their claims, together with proper proofs thereof under Section 83-24-71, on or before a date the liquidator shall specify in the notice. The liquidator need not require persons claiming cash surrender values or other investment values in life insurance and annuities to file a claim. All claimants shall have a duty to keep the liquidator informed of any changes of address.
(3) (a) Notice under subsection (1) to agents of the insurer and to potential claimants who are policyholders shall include, where applicable, notice that coverage by state guaranty associations may be available for all or part of policy benefits in accordance with applicable state guaranty laws.
(b) The liquidator shall promptly provide to the guaranty associations such information concerning the identities and addresses of such policyholders and their policy coverages as may be within the liquidator's possession or control, and otherwise cooperate with guaranty associations to assist them in providing to such policyholders timely notice of the guaranty associations' coverage of policy benefits, including, as applicable, coverage of claims and continuation or termination of coverages.
(4) If notice is given in accordance with this section, the distribution of assets of the insurer under this chapter shall be conclusive with respect to all claimants, whether or not they received notice.
SECTION 5. Section 65-9-1, Mississippi Code of 1972, is amended as follows:
65-9-1. The board of supervisors of each county, now having full jurisdiction over all roads, ferries, and bridges in its respective county not maintained as state highways, is hereby fully authorized and empowered to construct and maintain the same (including designated state highways not yet taken over by the highway department); and all such roads under the jurisdiction of the several boards of supervisors are hereby designated, defined, and declared to be either (a) "feeder" or "local farm roads" or (b) "state aid roads."
State aid roads are hereby defined as that group or class of roads composing the main collector and distributor routes feeding into local trade areas or into the state highway network, which are not designated as state highways by the Legislature, and particularly those essential to the conservation and development of natural resources, of economic and social value, and encouraging desirable land utilization, having in addition the following characteristics, to wit: roads (including bridges and ferries) which:
(a) Connect communities within the individual counties and with those of adjoining counties and/or which also connect with the state highway system to form a complete network of secondary or collector routes.
(b) Carry heavy volumes of traffic serving most of the following interests of the counties, to wit:
(3) Educational; and
The State Aid Engineer shall see that the criteria imposed herein are explicitly followed in the designation and in the construction of the state aid roads in each county. The State Aid Engineer shall promulgate regulations pursuant to the Administrative Procedures Law to require the development of a network of intercounty roads and to provide for a review process within the state aid division for the designation of said state aid roads. Such regulations shall also establish standards for state aid route designation. The State Aid Engineer is hereby authorized and directed to withhold funds from such counties until the state aid roads therein are designated and constructed according to the characteristics set forth herein.
All other roads under the jurisdiction of the several boards of supervisors are hereby declared to be "local farm roads" and not affected in anywise by this chapter.
State aid roads in the several counties shall be eligible for state aid in the manner and under the terms and conditions hereinafter set out. Local system roads (as defined in Section 65-18-3) in the several counties shall be eligible for state aid in the manner and under the terms and conditions set out in the Local System Road Program established in Sections 65-18-1 through 65-18-17. State aid, by way of funds to be expended on state aid roads and local system roads (as defined in Section 65-18-3), shall consist of any sum or sums provided by the Legislature to supplement funds furnished by the several counties for the purpose of constructing, improving, widening, straightening, surfacing, or reconstructing roads on the state aid system or for the purpose of the construction, reconstruction and paving of roads on the Local System Road Program, and shall be available to the several counties in such proportion as may be fixed and determined by law.
SECTION 6. Section 77-3-45, Mississippi Code of 1972, is amended as follows:
77-3-45. The commission shall prescribe, issue, amend and rescind such reasonable rules and regulations as may be reasonably necessary or appropriate to carry out the provisions of this chapter in compliance with the Administrative Procedures Law.
The commission * * *, in the exercise of its power to promulgate rules and regulations, shall adopt standard practices and procedures:
(a) To specify what costs may be used for determining a public utility's rate base, which balance the interests of consumers and investors;
(b) To prescribe the time period for measuring a public utility's rate base;
(c) To specify allowable operating expenses, provided, however, that the commission shall exclude from a public utility's allowable operating expenses any interest such utility paid, or credited, to its consumers in connection with refunds in a rate proceeding in which its rates were finally determined to be excessive;
(d) To determine accurately the capital costs of a public utility;
(e) To define specific costs which may be included by a public utility in its monthly fuel adjustment clause retail billings;
(f) To define specific costs which may be included by a public utility distributing gas in its monthly purchased gas adjustments retail billings;
(g) To prescribe minimal uniform standards of service for various classes of public utilities; and
(h) To provide for any other rules and regulations deemed by the commission to be appropriate for carrying out the provisions of this chapter.
SECTION 7. Section 77-3-59, Mississippi Code of 1972, is amended as follows:
77-3-59. The commission shall make and file its findings and order, and its opinion, if any. All findings shall be supported by substantial evidence presented and shall be in sufficient detail to enable the court on appeal to determine the controverted questions presented, and the basis of the commission's conclusion. A copy of such order certified under the seal of the commission, shall be served upon all parties and attorneys of record, and to all persons requesting a copy of the opinion pursuant to the Administrative Procedures Law. The order shall take effect twenty (20) days after the service thereof, unless otherwise provided, and shall continue in force, either for a period which may be designated therein or until changed or revoked by the commission. If an order cannot, in the judgment of the commission, be complied with within twenty (20) days, the commission may grant and prescribe such additional time as in its judgment is reasonably necessary to comply with the order, and may, on application and for good cause shown, extend the time for compliance fixed in its order.
SECTION 8. Section 53-1-19, Mississippi Code of 1972, is amended as follows:
53-1-19. The board shall prescribe its rules of order or procedure in hearings or other proceedings before itconsistent with the Administrative Procedures Law. The board may provide for the recording and preservation of its proceedings by order entered on its minutes.
SECTION 9. Section 53-1-47, Mississippi Code of 1972, is amended as follows:
53-1-47. (a) (i) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall make or cause to be made any false entry, statement of fact or omission in any report required by such sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum, shall be subject to a penalty of not more than Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. In determining the amount of the penalty, the board shall consider the factors specified in subsection (d) of this section. Such penalties shall be assessed according to the procedures set forth in subsection (b) of this section.
(ii) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall intentionally make or cause to be made any false entry, statement of fact or omission in any report required by said sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of competent jurisdiction, to a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or imprisonment for a term of not less than ten (10) days nor more than six (6) months for each such violation, or both such fine and imprisonment.
(b) Any person who violates any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-33, and 53-3-39 through 53-3-165, or any lawful rule, regulation or order of the board made hereunder, shall, in addition to any penalty for such violation that is otherwise provided for herein, be subject to a penalty of not to exceed Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. When any charge is filed with the board charging any person with any such violation, the board shall conduct an adjudicative proceeding in accordance with the Administrative Procedures Law. Such proceeding shall be held by not less than three (3) members of the board and a unanimous verdict of all members hearing such charge shall be necessary for conviction and in the event of a conviction all members of the board hearing such cause must agree on the penalty assessed.
The Attorney General, by his designated assistant, shall represent the board in all such proceedings * * *. The Attorney General shall also designate a member of his staff to present evidence and proof of such violation in the event such charge is contested.
All penalties assessed by the board under the provisions of this section shall have the force and effect of a judgment of the circuit court and shall be enrolled in the office of the circuit clerk and execution may be issued thereon. All such penalties paid or collected shall be paid to the State Treasurer for credit to the Special Oil and Gas Board Fund.
Any person adjudged guilty of any such violation shall have the right of appeal in accordance with the provisions of Section 53-1-39.
The payment of any penalty as provided herein shall not have the effect of changing illegal oil into legal oil, illegal gas into legal gas or illegal product into legal product, nor shall such payment have the effect of authorizing the sale or purchase or acquisition or the transportation, refining, processing or handling in any other way of such illegal oil, illegal gas or illegal product.
(c) Any person who aids or abets any other person in the violation of any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made thereunder, shall be subject to the same penalties as are prescribed herein for the violation by such other person.
(d) In determining the amount of the penalty under subsection (a), (b) or (c) of this section, the board shall consider at a minimum the following factors:
(i) The willfulness of the violation;
(ii) Any damage to water, land or other natural resources of the state or their users;
(iii) Any cost of restoration and abatement;
(iv) Any economic benefit to the violator as a result of noncompliance;
(v) The seriousness of the violation, including any harm to the environment and any harm to the health and safety of the public; and
(vi) Any prior violation by such violator.
(e) The board is authorized to utilize the provisions of Section 85-7-132 to enforce penalties provided by this section.
SECTION 10. Section 51-11-19, Mississippi Code of 1972, is amended as follows:
51-11-19. (1) The board of directors of the district shall have the power to adopt and promulgate all reasonable regulations so as to secure, maintain, and preserve the sanitary condition of all water in and to flow into any reservoir owned by the district, to prevent waste of water or the unauthorized use thereof, and to regulate residence, hunting, fishing, boating, camping, circulation of vehicular traffic on land, the parking of such vehicles, and all recreational and business privileges in, along, or around any such reservoir, any body of land, or any easement owned by the district.
(2) All such regulations shall be promulgated in compliance with the Administrative Procedures Law, and, after publication in a daily newspaper of statewide circulation and in a newspaper of general circulation in each county comprising the area of the district, shall have the full force and effect of law, and violation thereof shall be punishable by fine, not to exceed One Thousand Dollars ($1,000.00), as may be prescribed in such regulations, or by imprisonment, not to exceed fifteen (15) days, to be determined by the court, or both.
(3) In the event of a violation of any regulation adopted to prevent pollution of the waters in any reservoir owned by the district, or the threat of continuous violation thereof, the district shall have authority to sue for and obtain damages and/or other appropriate relief, including injunctive relief.
(4) All such rules and regulations so prescribed and the penalties fixed thereunder, by the authority of this section, shall not conflict with, exceed, alter, or suspend any regulations, rules, or penalties prescribed by general statute, by the Mississippi Commission on Wildlife, Fisheries and Parks or the Mississippi State Board of Health. All fines and penalties levied and collected under this chapter shall be remitted and accounted for in accordance with the general statutes relating thereto.
SECTION 11. This act shall take effect and be in force from and after July 1, 2005.