MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Marine Resources
By: Representative Ladner
AN ACT TO AMEND SECTION 49-15-401, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DEPARTMENT OF MARINE RESOURCES, INSTEAD OF THE COMMISSION ON MARINE RESOURCES, SHALL ENFORCE THE RULES AND REGULATIONS, ADMINISTRATIVE CODE AND OTHER STATUTES WITHIN THE JURISDICTION OF THE DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTIONS 49-15-403 AND 49-15-405, MISSISSIPPI CODE OF 1972, TO REVISE HOW ADMINISTRATIVE HEARING PROCESS IS CONDUCTED; TO PROVIDE THAT THE COMMISSION ON MARINE RESOURCES SHALL MAKE A RECOMMENDATION REGARDING WHETHER A VIOLATION HAS BEEN MADE TO THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES; TO PROVIDE THAT THE EXECUTIVE DIRECTOR SHALL TAKE INTO CONSIDERATION THE COMMISSION'S RECOMMENDATION AND MAKE THE FINAL DECISION REGARDING THE PENALTY, IF ANY, TO BE ISSUED; TO AMEND SECTION 49-15-407, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN ALLEGED VIOLATOR'S FAILURE TO RESPOND TO COMPLAINT WITHIN 20, NOT 30, DAYS OR PRESENT EVIDENCE OR COMMENTS AT A REGULAR COMMISSION MEETING SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING; TO AMEND SECTION 49-15-409, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DEPARTMENT OF MARINE RESOURCES, NOT THE COMMISSION ON MARINE RESOURCES, SHALL HAVE JURISDICTION OVER ALL PERSONS AND PROPERTY NECESSARY TO ADMINISTER AND ENFORCE THE ADMINISTRATIVE HEARING PROCEDURES FOR THE DEPARTMENT; TO AMEND SECTION 49-15-411, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY INDIVIDUAL AGGRIEVED BY A FINAL DECISION OF THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES SHALL BE ENTITLED TO JUDICIAL REVIEW; TO AMEND SECTIONS 49-15-413, 49-15-415 AND 49-15-323, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTION 49-15-63, 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. Section 49-15-401, Mississippi Code of 1972, is amended as follows:
49-15-401. It is the
purpose of this article to establish an administrative hearing procedure for
the * * *
Department of Marine Resources to enforce the rules and regulations * * * set forth in Title 22
Administrative Code and Sections 49-15-1 through 49-15-321, 49-27-1 through
49-27-71, 59-21-111, and such other statutes within the jurisdiction of the * * * Department of Marine
Resources. Unless specifically authorized, the * * * department shall not seek
both administrative and criminal penalties against violators of the statutes referred
to herein for the same offense, except as provided in Section 49-15-63. * * *
SECTION 2. Section 49-15-403, Mississippi Code of 1972, is amended as follows:
49-15-403. (1) When any
allegation or charge in the form of a complaint has been made against a person
for * * * violations pursuant to
the authorities outlined in Section 49-15-401 and such matter has been
brought before the * * *
department for administrative penalty processing, the * * * department shall:
(a) Cause the
complaint to be in writing * * *, signed by the person and/or
office making the charge and include the recommended fine;
(b) * * * Ensure that the complaint is
filed * * * with the executive director;
(c) Cause the * * * executive director
of the department, or his designee, to review the complaint; and
(d) Send or deliver a
copy of the complaint and any supporting documents to the alleged violator
along with a * * *
notice of the time, date and place where the allegations will be presented
to the commission for their recommendation. The matter shall not be
presented to the commission before forty-five (45) days after the notification
has been mailed. The notification shall be accomplished by any of the
methods provided for by the Mississippi Rules of Civil Procedure. Citations
issued at the time of the alleged violation by marine enforcement officers
shall constitute sufficient notice.
(2) * * *
(a) The alleged violator shall have twenty (20) days from the date of the
receipt of the complaint within which to file a written response to the allegations
to be considered by the commission at a regularly scheduled meeting, or to
request a formal hearing before the commission which will be conducted in
accordance with 49-15-405.
(b) The alleged violator may present evidence and written or oral comments at the commission meeting in which the allegations will be presented. The alleged violator may be represented by legal counsel, at his or her own expense.
(3) * * * The commission shall make a
recommendation regarding whether a violation has occurred and the amount of the
recommended penalty, if any, to the executive director at a regularly scheduled
meeting of the commission. In determining the amount of the recommended
penalty, the commission may consider the appropriateness of such penalty and
the gravity of the violation.
(4) * * * The executive director shall take
into consideration the commission's recommendation and make the final decision
regarding the penalty to be issued, which may include dismissal of the
complaint, issuance of a warning in lieu of a penalty or a monetary penalty not
to exceed Ten Thousand Dollars ($10,000.00) for each violation.
* * *
SECTION 3. Section 49-15-405, Mississippi Code of 1972, is amended as follows:
49-15-405. (1) If the
alleged violator requests a formal hearing within the time frame provided in
Section 49-15-403(2), the commission shall, within forty (40) days of
notification from the alleged violator that a hearing is requested, schedule a
hearing at a date, time and place to be determined by the commission. For good
cause shown the commission may grant a continuance or continuances of such
hearings. Written notice of the date, time and place of such hearing shall be
mailed to the alleged violator by * * * certified mail, return
receipt requested, no less than fifteen (15) calendar days before the * * * date of the hearing.
(2) In lieu of a hearing before the full commission, the commission may designate one or more members of the commission or a representative of the Attorney General's office to preside over the hearing and render a finding and recommendation for the full commission.
(3) A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings. The hearing shall be closed unless the alleged violator requests a public hearing. The commission shall have the right and duty to impose reasonable restrictions as it may deem necessary or appropriate to ensure an orderly, expeditious and impartial proceedings, and shall admit all relevant and material evidence except evidence which is unduly repetitious. Hearsay shall be admissible to the extent permitted by the commission.
(4) For purposes of such hearing, the commission is hereby empowered to require the attendance of witnesses, administer oaths and hear testimony, either oral or documentary, for and against the alleged violator. The commission shall have the authority to issue subpoenas to compel the attendance of witnesses and the production of books, papers, records or other documentary evidence at a hearing. Subpoenas to be issued shall be delivered to the sheriff of the county where they are to be executed and the sheriff shall serve them. In case of the failure of any person to comply with any subpoena issued by the commission, the commission or its authorized representative may invoke the aid of any court of general jurisdiction of this state. The court may thereupon order such person to comply with the requirements of the subpoena. Failure to comply with the order of the court may be treated as contempt thereof.
(5) At the conclusion of
the hearing, the commission, upon the majority vote of the members present,
shall issue a written * * *
recommendation incorporating its findings of facts and conclusions of
law regarding whether a violation has occurred and * * * the appropriate penalty, if any,
that it may assess not to exceed Ten Thousand Dollars ($10,000.00) per
violation. * * *
(6) The commission's recommendation shall then be forwarded to the executive director who will make the final decision regarding whether a violation has occurred and the appropriate penalty, if any.
(7) If the commission has appointed a representative to conduct the hearing pursuant to subsection (2) of this section, the commission shall consider the representative's recommendation at a regularly scheduled meeting, and upon the majority vote of the members present, shall make a recommendation to the executive director who shall make the final decision regarding whether a violation has occurred and the appropriate penalty, if any.
(8) The executive director's final decision shall be delivered to the alleged violator.
SECTION 4. Section 49-15-407, Mississippi Code of 1972, is amended as follows:
49-15-407. Failure of the
alleged violator to request * * * a hearing, * * * to respond to the complaint within * * * twenty (20) days or to
present evidence or written or oral comments at a regular commission meeting
shall constitute a waiver of the right to a hearing, and any penalties assessed
by the * * *
executive director shall be due and payable as provided in Section 49-15-415.
SECTION 5. Section 49-15-409, Mississippi Code of 1972, is amended as follows:
49-15-409. The * * * department shall have
jurisdiction over all persons and property necessary to administer and enforce
the provisions of this article and the * * * authorities
outlined in Section 49-15-401. The * * * department may adopt rules
and regulations to implement the provisions of this article.
SECTION 6. Section 49-15-411, Mississippi Code of 1972, is amended as follows:
49-15-411. (1) Any
individual aggrieved by a final decision of the * * * executive director shall be
entitled to judicial review.
(2) Any appeal from the * * * executive director's decision
shall be filed in the Chancery Court of the Second Judicial District of
Harrison County, Mississippi, on the record made, including a verbatim
transcript of the testimony at the hearing held before the commission. The appeal
shall be filed within thirty (30) days after notification of the decision of
the * * *
executive director is mailed or served, and the proceedings in chancery
court shall be conducted as other matters coming before the court on appeal.
The appeal shall be perfected upon filing notice of the appeal and by the
prepayment of all estimated costs, including the cost of preparation of the
record of the proceedings before the commission, and the filing of a bond in
the sum of Five Hundred Dollars ($500.00) conditioned that if the * * * executive
director's final decision be affirmed by the chancery court, the aggrieved
party shall pay the costs of the appeal to the chancery court.
(3) The scope of review of
the chancery court in such cases shall be limited to a review of the record
made before the commission and the executive director's final decision
to determine if the * * * decision is unlawful for the reason that it
was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the individual.
(4) No relief shall be granted based upon the court's finding of harmless error by the commission or the executive director in complying with the procedural requirements of this article. If there is a finding of prejudicial error in the proceedings, the cause may be remanded for a rehearing consistent with the findings of the court.
(5) Any party aggrieved by action of the chancery court may appeal to the State Supreme Court in the manner provided by law.
SECTION 7. Section 49-15-413, Mississippi Code of 1972, is amended as follows:
49-15-413. Each violation
of the rules and regulations * * * set forth in Title 22 of
the Administrative Code or violations of the statutes set forth in Chapters
15 and 27 of Title 49, and Chapter 21 of Title 59, Mississippi Code of 1972, shall
be subject to the imposition of a civil penalty up to Ten Thousand Dollars
($10,000.00).
SECTION 8. Section 49-15-415, Mississippi Code of 1972, is amended as follows:
49-15-415. (1) Any penalty
assessed by the * * *department shall be due and payable within forty-five (45)
days of the notification of the decision. All sums of money collected as a
result of criminal or civil penalties levied under this article shall be paid
into the Seafood Fund created and described in Section 49-15-17.
(2) If the judgment is not
paid within the forty-five (45) days, or within such additional time as the * * *department may allow, the * * * department may file suit in
the chancery court of the county where the defendant resides or in the case of
a nonresident defendant in the Chancery Court of the Second Judicial District
of Harrison County or any other court with appropriate jurisdiction to enforce
the decision of the * * *
executive director and recover reasonable attorney's fees and all court
costs.
(3) A copy of the
notification sent by the * * *commission department to the violator shall be
sufficient proof as to the judgment of the * * * department.
SECTION 9. Section 49-15-323, Mississippi Code of 1972, is amended as follows:
49-15-323. If any violation
of any marine resources law or regulation is alleged to have been committed in
the Gulf of Mexico outside of the state's territorial waters where the state
has jurisdiction over the recreational or commercial fishing vessel, under the
Magnuson-Stevens Fishery Conservation and Management Act, 16 USCS Section 1856,
or any other provision of federal law, the * * * Department of Marine
Resources shall have jurisdiction of the offense and may commence
administrative enforcement action against alleged violators in accordance with
the administrative procedures provisions of Section 49-15-401 et seq.,
Mississippi Code of 1972.
SECTION 10. Section 49-15-63, Mississippi Code of 1972, is brought forward as follows:
49-15-63. (1) (a) Any person, firm or corporation violating any of the provisions of this chapter or any ordinance duly adopted by the commission, unless otherwise specifically provided for herein, shall, on conviction, be fined not less than One Hundred Dollars ($100.00), nor more than Five Hundred Dollars ($500.00), for the first offense, unless the first offense is committed during a closed season, in which case the fine shall be not less than Five Hundred Dollars ($500.00), nor more than One Thousand Dollars ($1,000.00); and not less than Five Hundred Dollars ($500.00), nor more than One Thousand Dollars ($1,000.00), for the second offense when such offense is committed within a period of three (3) years from the first offense; and not less than Two Thousand Dollars ($2,000.00) nor more than Four Thousand Dollars ($4,000.00), or imprisonment in the county jail for a period not exceeding thirty (30) days for any third or subsequent offense when such offense is committed within a period of three (3) years from the first offense.
(b) In addition, upon conviction of such third or subsequent offense, it shall be the duty of the court to revoke the license of the convicted party and of the boat or vessel used in such offense, and no further license shall be issued to such person and for said boat to engage in catching or taking of any seafoods from the waters of the State of Mississippi for a period of one (1) year following such conviction. Forfeiture of any equipment or nets used in a second or subsequent offense may be instituted pursuant to Sections 49-15-201 through 49-15-207. If the person in possession of or using the nets in the violation is not the owner or licensee of the nets, the department shall notify the owner or licensee of the nets. The nets shall be subject to forfeiture unless the nets were stolen and prosecution for the theft is initiated. Equipment as used in this section shall not mean boats or vessels.
(c) Any person convicted and sentenced under this section for a second or subsequent offense shall not be considered for reduction of sentence.
(d) Except as provided under subsection (5) of Section 49-15-45, any fines collected under this section shall be paid into the Seafood Fund.
(e) In addition to any other penalties, the commission may suspend the license of any person convicted of a violation of this chapter and may suspend the license of any vessel used in the violation for a period not to exceed five (5) days for the first offense. For a second offense, the commission may suspend the license of such person and vessel for a period not to exceed thirty (30) days.
(f) Upon conviction of five (5) seafood violations within a five-year period, the commission may revoke the license of the convicted party and the boat or vessel used in the offenses, and may prohibit indefinitely the issuance of a license to the person and boat or vessel to engage in catching or taking of any seafood from the waters of the State of Mississippi. The commission shall exercise this authority in accordance with the administrative procedures in Section 49-15-401 et seq.
(2) For any violation of this chapter, the individual registered as the captain shall be subject to the penalties provided in this chapter, if that individual is aboard the vessel. If that individual is not aboard the vessel, the individual designated as the alternate captain under Section 49-15-46 or substitute captain under Section 49-15-64.5 shall be subject to the penalties provided in this chapter. If no individual is designated under Section 49-15-46 or Section 49-15-64.5, the person, firm or corporation owning the vessel shall be subject to the penalties provided for boat captains.
(3) All citations issued to boat operators for not possessing the boat's registration card shall be dismissed, along with all related court costs, upon the presentment of the boat's proper registration card to the court or magistrate holding the trial or hearing.
SECTION 11. This act shall take effect and be in force from and after July 1, 2021.