House Bill 665

(As Passed the House)

AN ACT TO CREATE NEW SECTION 69-1-56, MISSISSIPPI CODE OF 1972, TO DESIGNATE THE MISSISSIPPI DEPARTMENT OF AGRICULTURE AND COMMERCE AS THE STATE AGENCY RESPONSIBLE FOR ADMINISTERING THE PROVISIONS OF THE PRODUCE SAFETY RULE PROGRAM PROVISIONS OF THE FOOD SAFETY MODERNIZATION ACT FOR THE STATE OF MISSISSIPPI AS AGENTS OF THE FOOD AND DRUG ADMINISTRATION; TO PERMIT THE COMMISSIONER OF AGRICULTURE AND COMMERCE TO ENTER INTO COOPERATIVE AGREEMENTS WITH THE FOOD AND DRUG ADMINISTRATION AND TO ACCEPT ANY ADVISORY, TECHNICAL AND FINANCIAL ASSISTANCE THEREFROM FOR THE ADMINISTRATION OF ENFORCEMENT OF THE PRODUCE SAFETY RULE PROGRAM; TO BRING FORWARD SECTION 69-1-18, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 69-1-56, Mississippi Code of 1972:

69-1-56. (1) The Department of Agriculture and Commerce is designated as the authorized state agency responsible for cooperating with the Food and Drug Administration of the United States under the provisions of 21 CFR Part 112, governing the Food Safety Modernization Act as statutorily authorized by 21 USCS Section 321, 21 USCS Section 331, 21 USCS Section 342, 21 USCS Section 350h, 42 USCS Section 243, 42 USCS Section 264 and 42 USCS Section 271, and to enforce those provisions as agents of the Food and Drug Administration. The department shall cooperate with the Food and Drug Administration in administering the Produce Safety Rule Program provisions of the Food Safety Modernization Act for the State of Mississippi under the authority of this section. The requirements of the Produce Safety Rule Program of this state shall be at least equal to those requirements imposed under 21 CFR Part 112, and shall be administered in such a manner that will effectuate the purposes of this section and the applicable federal rules in order to prevent or remediate the adulteration of raw agricultural commodities on farms.

(2) In such cooperative efforts, the department is authorized to accept from the Food and Drug Administration:

(a) Advisory assistance in planning and otherwise developing the state program;

(b) Technical and laboratory assistance and training, including necessary curricular and instructional materials and equipment; and

(3) The department is further authorized to recommend to the Food and Drug Administration any officials or employees of the department as enforcement agents as the department shall designate. The Commissioner of Agriculture and Commerce, or his or her designee, shall serve as the representative of the Office of the Governor for consultation with the Food and Drug Administration.

(4) The commissioner shall have access to any covered farm for the purpose of:

(a) Inspecting such farm to determine if any provision of this chapter is being violated; and

(b) Securing samples or specimens to determine if any provision of this section is being violated.

(5) The commissioner may seize, condemn or destroy any produce that is being grown, kept, exposed for sale, held in possession or under the control of any person on a covered farm if that produce is in violation of this section.

(6) No person shall impede, obstruct, hinder or otherwise prevent or attempt to prevent the Commissioner of Agriculture and Commerce, an inspector or any other person employed or contracted by the department in the performance of his or her duty in administering the program functions as authorized under this section.

(7) The commissioner may promulgate regulations as may be necessary to carry out the provisions of this section.

(8) The Department of Agriculture and Commerce may enter into cooperative agreements as may be necessary to carry out the provisions of a Produce Safety Program.

(9) The commissioner may impose administrative penalties for violations of this section not to exceed Five Thousand Dollars ($5,000.00) for each violation. Any person against whom a complaint is made or who has been made subject to a fine or license suspension may avail themselves of a due process administrative hearing as provided by Section 69-1-18.

(10) The provisions of this section shall stand repealed upon the effective date of the repeal of 21 CFR Part 112, or when the federal funds required to implement this section are no longer allocated to the department by the Food and Drug Administration, whichever shall occur first.

SECTION 2. Section 69-1-18, Mississippi Code of 1972, is brought forward as follows:

69-1-18. (1) The following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Potentially hazardous food" means a food that is natural or synthetic and that requires temperature control because it is in a form capable of supporting: the growth of infectious or toxigenic microorganisms; the growth and toxin production of Clostridium botulinum; or in raw shell eggs, the growth of salmonella enteritis. "Potentially hazardous food" includes an animal food (of animal origin) that is raw or heat-treated; a food of plant origin that is heat-treated or consists of raw seed sprouts; and cut melons.

(b) "Retail food establishment" means any establishment where food and food products are offered for sale to the ultimate consumer and intended for off-premise consumption. Such food or food products may be exposed to varying degrees of preparation and may often need further preparation or processing after it has been purchased. A retail food establishment does not include:

(i) An establishment that offers only prepackaged foods that are not potentially hazardous;

(ii) A produce stand that only offers whole, uncut fresh fruits and vegetables;

(iii) A food processing plant; and

(iv) A food establishment as defined by the Mississippi State Department of Health.

(2) The commissioner and his agents shall have the authority:

(a) To promulgate rules and regulations establishing certain sanitation requirements for retail food establishments;

(b) To conduct sanitation inspections in retail food establishments; and

(c) To publish the names and addresses of violators and such information pertaining to violation(s) of this section as he deems appropriate.

(3) Each retail food establishment, before engaging in business, shall obtain a license from the commissioner. Owners of more than one (1) retail food establishment must obtain a license for each establishment. A license fee of Ten Dollars ($10.00) must be paid to the department before a license will be issued. Application for such license shall be made on forms prescribed and furnished by the commissioner. Licenses issued under this subsection by the commissioner shall expire on June 30 each year and application for renewals thereof shall be made annually before the expiration date. Licenses shall not be transferable and application must be made for a new license if there is any change in location or ownership of the business.

(4) Any person who violates any provision of this law or the regulations adopted hereunder shall be guilty of a misdemeanor, and, upon conviction, shall be punished by the imposition of a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term not to exceed six (6) months, or both.

(5) The commissioner may impose administrative penalties for violation of this section.

(6) Any person found by the commissioner to be in violation of this section may be assessed a penalty in an amount of not more than Five Hundred Dollars ($500.00) and subsequent violations within a six-month period at a penalty of not more than One Thousand Dollars ($1,000.00). In addition to, or in lieu of, such penalties the commissioner may suspend or revoke the permit issued to such person under terms of this section.

(7) When any violation of this section 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, the commissioner or any of the department's field inspectors, or any other persons authorized by the commissioner, may issue an order to be effective immediately before notice and a hearing, that imposes any or all of the following penalties against the accused: (a) a stop sale order on any product in violation of this section; (b) an order to seize any product that is not in compliance with this section and require it to be denatured or destroyed under the supervision of the department's inspectors; or (c) an order that the retail food establishment or any department within such establishment cease operations until it is in compliance with this section. The order shall be served upon the accused in accordance with Rule 4 of the Mississippi Rules of Civil Procedure or certified mail or it may be served by giving a copy of the order to the manager of the retail food establishment or, where no manager is present, an employee of the establishment. The accused shall then have twenty (20) days after service of the order upon him within which to request an informal administrative review before the Director of the Bureau of Regulatory Services in the department, or the director's 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 twenty (20) days, then he shall have waived his right to such review. At the informal administrative review, 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 decisions shall be in writing, and it shall be delivered by certified mail. If the accused is aggrieved by the order of the hearing officer, he may appeal to the commissioner for a full evidentiary hearing. 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.

SECTION 3. This act shall take effect and be in force from and after its passage.