2006 Regular Session
By: Representative Warren
AN ACT TO REENACT SECTIONS 69-21-101 THROUGH 69-21-125, MISSISSIPPI CODE OF 1972, WHICH CREATE THE AGRICULTURAL AVIATION LICENSING LAW OF 2002; TO AMEND SECTION 69-21-127, MISSISSIPPI CODE OF 1972, TO EXTEND THE DATE OF REPEAL OF THOSE REENACTED SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-21-101, Mississippi Code of 1972, is reenacted as follows:
69-21-101. This article shall be known and cited as the "Agricultural Aviation Licensing Law of 2002."
SECTION 2. Section 69-21-103, Mississippi Code of 1972, is reenacted as follows:
69-21-103. The purpose of this article is to supervise and regulate for the public good all commercial agricultural aerial application within the State of Mississippi and to establish and promote a close working relationship between agricultural aerial applicators and the Mississippi Department of Agriculture and Commerce, the licensing of all persons engaged in the aerial application of pesticides, poisons, seeds and chemicals, and the registration of all such commercial agricultural aircraft and pilots. It is the intent of the Legislature that the program established under this article provide a program of commercial aerial application control within the State of Mississippi sufficient to allow the state to retain delegation from the United States Environmental Protection Agency of the commercial aerial application regulation program created under the Federal Insecticide, Fungicide and Rodenticide Act, 7 USCS 136-136y. This article also establishes an administrative hearing procedure for the board's use in enforcing the rules and regulations of the board.
SECTION 3. Section 69-21-105, Mississippi Code of 1972, is reenacted as follows:
69-21-105. As used in this article, the following terms shall have the meanings hereinafter ascribed to them:
(a) "Board" shall mean the State Board of Agricultural Aviation.
(b) "Person" shall mean any individual, corporation, firm, partnership, company, trust, association or other legal entity.
(c) "Aerial application" means the practice of engaging in agricultural aircraft operations for remuneration.
(d) "Agricultural aircraft operation" means:
(i) Dispensing any pesticide, seed or fertilizer by aircraft;
(ii) Dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control by aircraft; or
(iii) Engaging in dispensing activities directly affecting agriculture, horticulture, or forest preservation by aircraft.
(e) "Aircraft" means any contrivance now known or hereafter invented that is used or designed for navigation of or flight in the air over land and water, and that is designed for or adaptable for use in agricultural aircraft operation.
(f) "Applicator" means any person, as herein defined, who is licensed under this article to engage in agricultural aircraft operations.
(g) "Pesticide" means any substance or mixture of substances, except as set forth in Section 69-21-111, intended for defoliating or desiccating plants, or for preventing, destroying, repelling or mitigating any insects, fungi, bacteria, weeds, or other forms of plant or animal life which the board shall declare to be a pest.
(h) "Pilot" means the operator of an aircraft used in agricultural aircraft operation; provided, however, a pilot may also be a person who is licensed as an applicator under the provisions of this article.
(i) "Insect" means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the Class Insecta, comprising six-legged, usually winged forms, as for example, beetles, bugs and flies; and to other classes of arthropods whose members are wingless and usually have more than six (6) legs, as for example, spiders, mites, ticks, centipedes and wood lice.
(j) "Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
(k) "Desiccant" means any substances or mixtures of substances intended for artificially accelerating the drying of plant tissues.
SECTION 4. Section 69-21-107, Mississippi Code of 1972, is reenacted as follows:
69-21-107. There is hereby created a State Board of Agricultural Aviation composed of five (5) members as follows: two (2) licensed applicators to be appointed by the Governor with the advice and consent of the Senate from a list of four (4) applicators submitted to the Governor by the Mississippi Agricultural Aviation Association, the Executive Director of the Department of Environmental Quality, or his designee, a registered forester and a licensed engineer with agricultural emphasis to be appointed by the Governor with the advice and consent of the Senate. The term of office of one (1) board member shall be one (1) year; the term of office of the second board member shall be two (2) years; the term of office of the third board member shall be three (3) years; the term of office of the fourth board member shall be four (4) years as specified by the Governor in his initial appointments to the board. After the initial appointment, succeeding board members shall serve a staggered four-year term of office. The Executive Director of the Department of Environmental Quality, or his designee, shall continue to serve each term by virtue of his office. Each board member shall serve until his successor is appointed.
Vacancies on the board shall be filled as herein stated by appointment of the Governor.
A quorum necessary to conduct business shall be a majority of the five (5) board members. Any member who shall not attend three (3) consecutive meetings of the board shall be subject to removal by the Governor. The chairman of the board shall notify the Governor in writing when any such member has failed to attend three (3) consecutive regular meetings.
Each member of the Agricultural Aviation Board shall receive a per diem as is authorized by law and actual expenses as provided by law incidental to attending meetings of the board, and other authorized business as provided by board authorization as spread on the board minutes.
SECTION 5. Section 69-21-109, Mississippi Code of 1972, is reenacted as follows:
69-21-109. (1) The board may adopt such rules and regulations as may be necessary to regulate the application of chemicals and pesticides according to the time of year, manner, form and area of application, wind velocity and other pertinent factors and may restrict the use of certain chemicals and pesticides which create an unusual hazard to the health, safety and welfare of the public. The board shall set professional standards for applicators and pilots in the interest of the safety, welfare and general well-being of the public of Mississippi and for the protection of the state's fish and wildlife, air, water and soil.
(2) The board shall have authority to procure samples of pesticide, seed or fertilizer or of pesticide or fertilizer spray and dust materials before and after they are mixed in order to determine the concentration of the mixtures.
(3) Theboard shall have authority to maintain an office and employ necessary personnel within its budget to carry out the purposes of this article.
(4) It shall be the duty of the board, and the board shall have the authority, to enforce this article and all rules and regulations made and adopted in compliance with this article. The board shall not have jurisdiction to determine liability between private parties.
(5) The board or its representatives shall have access to any premises where there is reason to believe that a chemical or pesticide is being or has been applied by an applicator, or where any applicator is based, or preparing to apply any of the materials herein stated, for the purpose of enforcement of this article. The board shall have authority to inspect equipment used for application of chemicals and pesticides as stated in this article.
(6) The board shall maintain a close liaison and spirit of cooperation with the Mississippi Department of Agriculture and Commerce, in the supervision of aerially applied chemicals which are under their jurisdiction as provided by Sections 69-21-7 through 69-21-15. The board and the Mississippi Department of Agriculture and Commerce shall enter a memorandum of agreement stating their plans to cooperate toward these purposes. In adopting regulations regarding agricultural aircraft operation, in providing training and requiring testing and certification of applicators and in enforcing this article, the board shall strive to regulate and train applicators in a manner that is not inconsistent with the training and regulation of ground-based pesticide applicators provided by the Department of Agriculture and Commerce.
(7) The board may cooperate with or enter into formal cooperative agreements with any public or private agency or educational institution of this state or any other state or federal agency for the purpose of carrying out the provisions of this article.
SECTION 6. Section 69-21-111, Mississippi Code of 1972, is reenacted as follows:
69-21-111. Nothing in this article shall be construed as to confer upon the board jurisdiction of the aerial application of hormone-type herbicides which is conferred on the Mississippi Department of Agriculture and Commerce by Sections 69-21-7 through 69-21-15.
SECTION 7. Section 69-21-113, Mississippi Code of 1972, is reenacted as follows:
69-21-113. (1) It shall be unlawful and a misdemeanor for any person to act, operate or do business as an applicator or pilot, or to engage in agricultural aircraft operations, unless such person has an applicator's or pilot's license issued by the board. Such license shall be issued only upon application therefor to the board on a form prescribed by the board. The application shall contain information regarding the applicant's qualifications and proposed operations, and such other information as may be specified by the board.
(2) Applicator's and pilot's licenses are not transferable. Licenses shall be effective for a period of one (1) year. Any licensee wishing to have a license renewed must submit an application for renewal with the board no later than ninety (90) days before the expiration of the license. If the applicant submits a timely and complete application for renewal, and the board, through no fault of the applicant, fails to reissue the license on or before the expiration date of the existing license, the existing license shall remain in effect until final action on the renewal application is taken by the board. Licenses are subject to modification, revocation or reissuance for cause at any time during the effective dates of the license.
(3) Any person seeking to obtain a license as an applicator in this state shall submit proof of payment of all ad valorem and other taxes which might be applicable on aircraft and other equipment.
(4) All persons licensed under the provisions of this article shall be known as registered applicators or pilots, and shall be issued a certificate by the board as proof thereof.
SECTION 8. Section 69-21-115, Mississippi Code of 1972, is reenacted as follows:
69-21-115. Any person seeking to obtain a license as an applicator in this state shall submit proof of financial responsibility to the board, and upon obtaining a license, such person shall maintain proof of financial responsibility at all times while such license shall be in effect. Proof of financial responsibility may consist of:
(a) The deposit with the board of a surety bond in favor of any person or persons who may suffer damage by reason of the operation of an aerial application service, issued by a corporate surety company authorized to do business in this state, which surety bond shall be in an amount not less than the amount of financial responsibility required by the rules and regulations of the board. However, the aggregate liability of the surety to all such persons shall not, in any event, exceed the amount of such bond; or
(b) The filing of an insurance policy of an insurer or surplus line broker authorized to do business in this state insuring the licensee and any of his agents against liability resulting from the operation of an aerial application service, which insurance policy shall be in an amount deemed as acceptable to the board, but not less than Five Thousand Dollars ($5,000.00).
The board shall establish by rules and regulations the amount of financial responsibility to be required of each licensed applicator, but in no event shall the amount of financial responsibility required be less than Five Thousand Dollars ($5,000.00).
SECTION 9. Section 69-21-117, Mississippi Code of 1972, is reenacted as follows:
69-21-117. Any person who is a nonresident of this state and who intends to perform agricultural aircraft operations in the state or as a function of flights originating from a departure point within the state shall obtain an applicator's or pilot's license under this article. Nonresident licensees shall designate and maintain a resident agent in this state for service of process, and shall establish and maintain proof of financial responsibility and provide proof of payment of all state taxes as provided in this article and as applied to a resident aerial applicator. Nothing in this article shall be construed to prevent the board from issuing reciprocal licenses from other states that recognize and accept registered aerial applicators of the State of Mississippi.
SECTION 10. Section 69-21-119, Mississippi Code of 1972, is reenacted as follows:
69-21-119. (1) A fee of not more than Five Hundred Dollars ($500.00) for each aircraft owned, operated, used and employed in aerial application by an applicator shall be paid to the board for the issuance or required annual renewal of a license for an applicator. Each aircraft shall be identified at all times by a device supplied to the registered applicator by the board.
(2) A fee of not more than Two Hundred Fifty Dollars ($250.00) for each pilot engaged in aerial application shall be paid to the board for the issuance or required annual renewal of a license for a pilot. Each pilot shall have in his possession at all times an identification card supplied by the board.
(3) All funds collected under the provisions of this article shall be kept in the Treasury of the State of Mississippi and disbursed upon requisitions signed by the chairman of the board. Such funds shall be subject to audit by the Auditor of the State of Mississippi. The board shall furnish a copy of its financial statement and a copy of any proposed license fee adjustments to the State Auditor no later than sixty (60) days after the end of each fiscal year. Such financial statement shall reflect all funds collected and all disbursements made under the provisions of this article.
SECTION 11. Section 69-21-121, Mississippi Code of 1972, is reenacted as follows:
69-21-121. (1) Any person found by the board to have violated any of the provisions of this article, any rule, regulation or written order of the board or any condition or limitation of a license issued by the board shall be subject to disciplinary action. Disciplinary matters shall be conducted as enforcement proceedings under Section 69-21-129. The board may discipline a violator in the following manner:
(a) By placing him upon probation, the terms of which may be set by the board;
(b) By suspending his right to do business as an applicator or pilot for a time deemed proper by the board;
(c) By revoking, cancelling or suspending his license;
(d) By levying a penalty against him in accordance with Section 69-21-135; and
(e) By taking any other action in relation to his license as the board may deem proper under the circumstances.
(2) The board shall suspend the license of an applicator or pilot for at least one (1) year if either of the following has occurred:
(a) The board determines that the licensee has committed one or more violations of this article, any rule, regulation or written order of the board or any condition or limitation of a license issued by the board on three (3) separate occasions during any twelve-month period, and each of those occasions, including singular or multiple violations, has resulted in the issuance of a penalty of One Thousand Dollars ($1,000.00) or more by the board; or
(b) The board determines that the licensee has committed one or more violations of this article, any rule, regulation or written order of the board or any condition or limitation of a license issued by the board that results in the issuance of a penalty of One Thousand Dollars ($1,000.00) or more by the board while on probation ordered under subsection (1) of this section.
SECTION 12. Section 69-21-123, Mississippi Code of 1972, is reenacted as follows:
69-21-123. Any person, firm, or corporation having a right of action against an applicator, person, firm, association or corporation, or any other person, may bring suit against them or either of them for any damages caused by their negligence of the aerial application regulated by the Agricultural Aviation Board, but in no event, however, shall a surety be named in or made a party to such action. No action for such damages may be brought or maintained, however, unless the person claiming the damages shall have filed with the Mississippi Department of Agriculture and Commerce a written statement claiming that he has been damaged, on a form prescribed by the Mississippi Department of Agriculture and Commerce, within sixty (60) days after the date that the damages occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop. Such statement shall contain, but shall not be limited thereto, the name of the person or persons who operated the aircraft, if known, the permit number of the aircraft, if known, the name of the owner or lessee of the land on which the crops are grown and for which damages are claimed, and the date on which it is alleged that the damage occurred. The Mississippi Department of Agriculture and Commerce, is required to prepare a form to be furnished to persons to be used in such cases, and such form shall contain such other requirements as the Mississippi Department of Agriculture and Commerce may deem proper. The Mississippi Department of Agriculture and Commerce, shall, upon receipt of such statement, notify the licensee and/or operator of the aircraft, and the owner or lessee of the land or other person who may be charged with the responsibility for the damages claimed, and furnish copies of such statements as may be requested. However, notwithstanding any other provisions of this article, any person claiming damages hereunder may give notice to the landowner or lessee of the treated crop claiming that he has been damaged within sixty (60) days after the date that the damage occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop, which said notice shall preserve said persons, claiming damages, cause of action.
SECTION 13. Section 69-21-125, Mississippi Code of 1972, is reenacted as follows:
69-21-125. (1) Violation of this article, the rules and regulations adopted by the board, a condition included in a license issued by the board or an order issued by the board shall be a misdemeanor punishable by a fine of not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment. A violation of this article, the rules and regulations adopted by the board, a condition included in a license issued by the board or an order issued by the board may be cause for the imposition of administrative or civil penalties as allowed by Sections 69-21-129 and 69-21-135. Each violation shall constitute a separate offense.
(2) In addition to the penalties herein provided, the board is hereby granted the authority to file in any court of competent jurisdiction injunctive proceedings against any person violating the provisions of this article or the rules and regulations promulgated hereunder.
(3) The Attorney General, district attorneys, and county attorneys of the state shall assist the boardupon its request to carry out the penalty section of this article.
SECTION 14. Section 69-21-127, Mississippi Code of 1972, is amended as follows:
69-21-127. Sections 69-21-101 through 69-21-125, Mississippi Code of 1972, which create the State Board of Agricultural Aviation and prescribe its duties and powers, shall stand repealed as of June 30, 2008.
SECTION 15. This act shall take effect and be in force from and after its passage.