MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Marine Resources

By: Representative Ladner

House Bill 1211

(As Sent to Governor)

AN ACT TO AMEND SECTION 49-15-401, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DEPARTMENT OF MARINE RESOURCES SHALL ENFORCE THE RULES AND REGULATIONS, ADMINISTRATIVE CODE AND OTHER STATUTES WITHIN THE JURISDICTION OF THE DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTION 49-15-403, MISSISSIPPI CODE OF 1972, TO REVISE THE ADMINISTRATIVE HEARING PROCESS FOR VIOLATIONS WITHIN THE JURISDICTION OF THE DEPARTMENT OF MARINE RESOURCES AND TO CLARIFY THE AUTHORITY OF THE EXECUTIVE DIRECTOR OF THE DEPARTMENT; TO PROVIDE THAT THE EXECUTIVE DIRECTOR SHALL MAKE THE FINAL DECISION REGARDING THE PENALTY, IF ANY, TO BE ISSUED; TO AMEND SECTION 49-15-405, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A FORMAL HEARING CONCLUDED BY A REPRESENTATIVE OF THE ATTORNEY GENERAL; TO AMEND SECTION 49-15-407, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN ALLEGED VIOLATOR'S FAILURE TO PRESENT EVIDENCE 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 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, 49-15-323 AND 49-15-63, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; 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 * * * Commission on Mississippi Department of Marine Resources to enforce the rules and regulations * * * of the commission 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 * * * Commission on Department of Marine Resources.  Unless specifically authorized, the * * * commission 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. * * *  The commission will notify the Department of Marine Resources of violations to bring forward for administrative penalty processing.

     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 * * * violating the rules and regulations of the commission violations pursuant to the authorities outlined in Section 49-15-401 and such matter has been brought before the * * * commission department for administrative penalty processing, the * * * commission department shall:

          (a)  Cause the complaint to be in writing * * * and, signed by the person and/or office making the charge and include the recommended fine;

          (b) * * *  Insure Ensure that the complaint is filed * * * in the office of the commission with the executive director;

          (c)  Cause the * * * complaint to be reviewed by 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 request for the alleged violator to respond to the allegations within thirty (30) days.  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)  Upon receipt of the response and any supporting documents from the alleged violator, the executive director, or his designee, shall review all information on file to determine the merit of the complaint.  If the executive director, or his designee, determines that the complaint lacks merit, the executive director may * * * recommend that the complaint be dismissed dismiss the complaint.

     (3)  If the executive director, or his designee, determines that there are reasonable grounds to indicate that a violation has occurred or if the alleged violator admits to the truth of the allegations upon which the complaint is based, the executive director may * * * recommend to the commission impose a fine not to exceed Ten Thousand Dollars ($10,000.00) for each violation.  The executive director shall send a copy of the * * * recommendation recommended fine to the alleged violator * * * and the commission.

     (4) * * *  (a)  The alleged violator shall have fifteen (15) days from receipt of the * * * recommendation finding and recommended fine of the executive director within which to file * * * with the commission a written request for an informal settlement conference with the executive director, or his designee.  If the alleged violator requests a conference, the executive director, or his designee, shall meet with the alleged violator to discuss the proposed penalty and the possibility of an agreed settlement.  The alleged violator may present evidence and written or oral comments at the executive director's conference.  The alleged violator may be represented by legal counsel, at his or her own expense.  If, in the judgment of the executive director, or his designee, a reasonable settlement is reached, the recommended penalty shall be revised accordingly.  The executive director shall 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.  If a request for information settlement is not received within the timeframe provided, the executive director's recommended fine will be the final decision.

 * * *   (b)  If the alleged violator and the executive director, or his designee, fail to reach an agreement on the recommended penalty, or if the alleged violator does not file a written request for a settlement conference, the alleged violator shall file within twenty (20) days of receipt of the recommendation of the executive director a written request for a hearing before the commission.

(5)  The commission shall consider the alleged violation and the recommendation of the department at a regularly scheduled meeting of the commission.  In determining the amount of the penalty, the commission may consider the appropriateness of such penalty and the gravity of the violation.  The commission may issue a warning in lieu of proposing a penalty.

     SECTION 3.  Section 49-15-405, Mississippi Code of 1972, is amended as follows:

     49-15-405.  (1) * * *  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 registered mail, return receipt requested, no less than fifteen (15) days before the time of the hearing. If the alleged violator requests a formal hearing within thirty (30) days from the receipt of the finding and recommended fine, or within fifteen (15) days from the receipt of the executive director's decision following the information settlement, the executive director shall designate a representative of the Attorney General's office to preside over the hearing and render a finding and recommendation as provided in this section.

 * * * (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.

     ( * * *32)  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 hearing officer shall have the right and duty to impose reasonable restrictions as * * * it he 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 hearing officer.

     ( * * *43)  For purposes of such hearing, the * * * commission hearing officer 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 hearing officer 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 hearing officer, the * * * commission or its authorized representative hearing officer 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.

     ( * * *54)  At the conclusion of the hearing, the * * * commission, upon the majority vote of the members present, hearing officer shall issue a written * * * opinion recommendation incorporating * * * its his findings of facts and conclusions of law regarding whether a violation has occurred and * * * any the appropriate penalty, if any, that * * * it he may assess not to exceed Ten Thousand Dollars ($10,000.00) per violation. * * *  The executive officer shall notify the alleged violator of the commission's decision.

(5)  The hearing officer'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.

(6)  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 an informal settlement conference * * * or, a hearing, or to respond to the complaint within thirty (30) days shall constitute a waiver of the right to a hearing, and any penalties assessed by the * * * commission 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 * * * commission department shall have jurisdiction over all persons and property necessary to administer and enforce the provisions of this article and the * * * rules and regulations of the commission authorities outlined in Section 49-15-401.  The * * * commission 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 * * * commission executive director shall be entitled to judicial review.

     (2)  Any appeal from the * * * commission's 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 hearing officer.  The appeal shall be filed within thirty (30) days after notification of the final decision of the * * * commission 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 executive director, and the filing of a bond in the sum of Five Hundred Dollars ($500.00) conditioned that if the * * * action of the commission 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 executive director's final decision to determine if the * * * action of the commission 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 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 * * * of the commission 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 * * * commission 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 * * * commission department may allow, the * * * commission 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 * * * commission 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 * * *commission 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 * * * Commission on 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 amended 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 department, 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 department 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 department 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 department 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 department 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.

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