1997 Regular Session
By: Representative Ford
House Bill 265
(As Passed the House)
AN ACT TO REENACT SECTION 69-3-19, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE DUTIES OF THE COMMISSIONER OF AGRICULTURE AND COMMERCE CONCERNING AGRICULTURAL SEEDS; TO AMEND REENACTED SECTION 69-3-19, MISSISSIPPI CODE OF 1972, TO EXTEND THE REPEALER ON THE DUTIES OF THE COMMISSIONER OF AGRICULTURE AND COMMERCE CONCERNING AGRICULTURAL SEEDS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-3-19, Mississippi Code of 1972, is reenacted and amended as follows:
69-3-19. It shall be the duty of the Commissioner of Agriculture and Commerce, acting either directly or through his duly authorized agents:
(1) To sample, inspect, make analyses of and test agricultural, vegetable, flower, and tree and shrub seeds transported, held in storage, sold, offered for sale or exposed for sale, or distributed within this state for seeding purposes, at such time and place, and to such extent as he may deem necessary to determine whether said seeds are in compliance with the provisions of this article, and to notify promptly the person who transported, distributed, had in his possession, sold, offered or exposed the seed for sale, of any violation. Such test results shall be sufficient to be used by the Mississippi State Highway Department to determine whether or not seed so tested meets the Highway Department's requirements as set out in its contract specifications. No further testing shall be required unless the Highway Department determines that more than nine (9) months has elapsed, exclusive of the calendar month in which the test was completed, between the germination test data and the time of planting, or if by visual inspection the Highway Department determines that the seed was improperly stored or handled prior to planting.
(2) To prescribe and adopt reasonable rules and regulations governing the methods of sampling, inspecting, making analysis tests and examinations of agricultural, vegetable, flower and tree and shrub seeds, including standards, and the tolerances to be followed in the administration of this article, and any other reasonable rules and regulations as may be necessary to secure efficient enforcement of this article.
(3) To appoint an arbitration council, receive complaints, conduct investigations and issue findings and recommendations prerequisite to legal action as follows:
(a) The commissioner shall appoint an arbitration council composed of six (6) members and six (6) alternate members, with one (1) member and one (1) alternate to be appointed upon the recommendation of each of the following: the Director of the Mississippi Agricultural and Forestry Experiment Station; the Director of the Mississippi Cooperative Extension Service; the President of the Mississippi Seedsmen's Association; the President of the Mississippi Farm Bureau Federation; the Alcorn State University Divisional Director of Agriculture and Applied Sciences. The original council shall be appointed as follows: One (1) member for a term of one (1) year, one (1) member for a term of two (2) years, one (1) member for a term of three (3) years, and one (1) member for a term of four (4) years. All subsequent terms shall be for five (5) years. Each year the respective recommending organizations shall submit member recommendations not less than thirty (30) days prior to the expiration day of an expiring term. Each alternate member shall serve only in the absence of the member for whom he is an alternate. The commissioner shall be a member of and serve as chairman of the council. The commissioner shall select his alternate member and he shall appoint a secretary from the council membership. He may appoint a member of the council to serve as chairman in his absence. It shall be the duty of the chairman to call the council into session to conduct all meetings and deliberations and to direct all other activities of the council. It shall be the duty of the secretary to keep accurate and correct records of all meetings and deliberations and perform such other duties for the council as directed by the chairman.
(b) The purpose of the arbitration council shall be to assist consumers and seedsmen in determining the validity of complaints made by consumers against seedsmen and recommend cost damages resulting from alleged failure of seed to produce as represented by the label on the seed package.
(c) (i) When the department refers to the arbitration council any complaint made by a consumer against a seedsman, the council shall make a full and complete investigation of the matters complained of, and at the conclusion of the investigation, report its findings and make its recommendations of cost damages and file them with the department. Council findings and recommendations may be admissible as evidence in a court of law.
(ii) In conducting its investigation the arbitration council or any member or members shall be authorized to examine the consumer on his farming operation of which he complains; to examine the seedsman on his packaging, labeling and selling operation of the seed alleged to be faulty; to conduct an appropriate test of a representative sample of the alleged faulty seed through the facilities of the state and under the supervision of the department when such action is deemed to be necessary; and to hold informal hearings at a time and place designated by the chairman upon reasonable notice to the consumer and the seedsman.
(iii) Any investigation made by less than the entire membership of the council shall be made by authority of a written directive by the chairman and such investigation shall be summarized in writing and considered by the council in its findings and in making its recommendations.
(iv) If the council determines that an informal hearing should be conducted to allow each party an opportunity to present their respective side of the dispute, attorneys may be present at the hearings to confer with their clients. However, no attorney may participate directly in the proceedings.
(d) The members of the council shall receive no compensation for the performance of their duties but shall be reimbursed for travel expenses in the manner and amount provided in Section 25-3-41, Mississippi Code of 1972.
(e) (i) As a prerequisite to filing a cause of action against a seedsman, a consumer who is damaged by the failure of agricultural, vegetable, flower or forest tree seed to produce or perform as represented by the label attached to such seed under the provisions of Section 69-3-5, Mississippi Code of 1972, shall make a sworn complaint against such seedsman alleging damages sustained. The complaint shall be filed with the department and the department shall send a copy of the complaint to the seedsman by certified mail, within such time as to permit inspection of the crops, plants or trees by the seed arbitration council or its representatives and by the seedsman from whom the seed was purchased.
(ii) Language setting forth the requirement for filing and serving such complaint shall be legibly typed or printed on the seed packages or the analysis label attached to the package containing such seed at the time of purchase by the consumer as follows:
"NOTICE: As a prerequisite to maintaining a legal action based upon the failure of seed to which this label is attached to produce as represented, a consumer shall file a sworn complaint with the Commissioner of Agriculture and Commerce within such time as to permit inspection of the crops, plants or trees."
If language setting forth the requirement is not so placed on the seed package or analysis label, the filing and serving of a complaint under this paragraph is not required.
(iii) A filing fee of Twenty-five Dollars ($25.00) shall be paid to the department with each complaint filed. The fee shall be recovered from the dealer upon the recommendation of the arbitration council.
(iv) Within fifteen (15) days after receipt of a copy of the complaint, the seedsman shall file with the department his answer to the complaint and serve a copy of the answer on the consumer by certified mail.
(v) The department shall refer the complaint and the answer thereto to the arbitration council, as provided herein for investigation, findings, and recommendations on the matters set out in the complaint. Upon receipt of the findings and recommendations of the arbitration council, the department shall transmit them to the consumer by certified mail.
(vi) The consumer and seedsman shall give written notice to the department of the acceptance or rejection of the arbitration council's recommended terms of settlement within thirty (30) calendar days from the date such recommended terms of settlement are issued by the arbitration council.
(4) Further, for the purpose of carrying out the provisions of this article, the commissioner individually or through his designated agents is authorized:
(a) To enter upon any public or private premises where agricultural, vegetable, flower, or tree and shrub seeds are sold, offered or exposed for sale or distribution, during regular business hours in order to have access to seeds or records subject to this article and the rules and regulations thereunder, and to take samples of seed or copies of records in conformity therewith; and
(b) To establish, maintain and support a state seed testing laboratory with such facilities and personnel as may be deemed necessary, such laboratory to be located at Mississippi State University of Agriculture and Applied Science. Such seed laboratory and equipment shall be in cooperation with Mississippi State University of Agriculture and Applied Science and under the supervision of an agronomist of said university, who shall be the state seed analyst; and
(c) To provide that any person, firm or corporation in this state shall have the privilege of submitting service seed samples for test to the state seed testing laboratory, subject to the charges as specified in the rules and regulations promulgated pursuant to the provisions of this article. Any person receiving a statement for seed analysis which is not paid in ninety (90) days will be in violation of this article. Any resident farmer may have one (1) sample of each kind tested free in any calendar year. A signed request by a farmer or individual must accompany the sample when same is sent in by a dealer; otherwise, the sample will be recorded and charges for analysis will be made to the dealer. Official seed samples drawn by inspectors in the enforcement of the provisions of this article shall have first priority for testing in the state seed testing laboratory. The state seed analyst shall not be obligated to analyze uncleaned, unprocessed, and other time-consuming samples which obviously do not meet seed law requirements, except as time and facilities will permit; and
(d) To publish, in his discretion, the results of analyses, tests, examinations, field trials and investigations of any seed sampled under this article, together with any information he may deem advisable; and
(e) To issue and enforce a written or printed "stop sale" or "seizure" order to the owner or custodian of any lot of agricultural, vegetable, flower, or tree and shrub seeds which the commissioner or his authorized agent finds is in violation of any of the provisions of this article or the rules and regulations promulgated thereunder, which order shall prohibit further sale or movement of such seed until such officer has evidence that the law has been complied with and a written release has been issued to the owner or custodian of said seed by an enforcement officer; and (f) To issue and enforce a "stop sale" or "seizure" order with respect to a particular variety of agricultural, vegetable, flower or tree and shrub seeds if the producer or distributor of such variety is found to have violated any of the provisions of this article or the rules and regulations promulgated thereunder with respect to the particular variety, which order shall remain in effect until the producer or distributor is in compliance with the law and has taken any action required by the commissioner to correct the effect of the violation in the marketplace; and
(g) To cooperate with the United States Department of Agriculture in seed law enforcement.
(5) This section shall stand repealed on July 1, 2000.
SECTION 2. This act shall take effect and be in force from and after July 1, 1997.