MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Ports and Marine Resources

By: Senator(s) Hewes

AN ACT TO TRANSFER THE DUTIES, POWERS, PERSONNEL AND RESOURCES OF THE MARINE LAW ENFORCEMENT DIVISION OF THE DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS TO THE DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTIONS 49-4-7, 49-15-3, 49-15-11, 49-15-21, 49-15-301 AND 63-11-19, MISSISSIPPI CODE OF 1972, TO CONFORM; TO FURTHER AMEND SECTION 49-15-21, MISSISSIPPI CODE OF 1972, TO CLARIFY THE POLICE POWERS OF THE MARINE LAW ENFORCEMENT OFFICERS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 49-15-3, Mississippi Code of 1972, is amended as follows:

49-15-3. As used in this chapter, the term:

(a) "Commission" means the Mississippi Commission on Marine Resources.

(b) "Department" means the Department of Marine Resources.

(c) "Domicile" means a person's principal or primary place of abode in which a person's habitation is fixed and to which the person, whenever absent, has the present intention of returning after a departure of absence therefrom, regardless of the duration of the absence. The burden of proving domicile in the State of Mississippi shall be on the person claiming that status. A person holding a current driver's license shall be deemed to be domiciled within the state issuing the license. If a person does not hold a current driver's license the following evidence may be considered in establishing, but is not necessarily determinative of domicile: residence for income or other tax purposes, homestead exemption receipt or other means prescribed by the commission. In the case of minors, domicile of the parents shall be used as evidence of the minor's domicile.

(d) "Game fish" means cobia, also known as ling or lemonfish (rachycentron canadum). The cobia is classified as game fish.

(e) "Illegal oysters" means:

(i) All untagged shell stock;

(ii) Shell oysters obtained from uncertified shops or dealers or from an unlicensed catcher;

(iii) Oysters obtained from waters not declared safe and sanitary by the department, except those oysters caught by the commission for re-laying or under private leases pursuant to Section 49-15-27;

(iv) Shucked oysters obtained from uncertified shops or repackers.

(f) "Inspector" means the chief inspector, the assistant chief inspector, * * * deputy inspector, bureau director and certified enforcement officer employed by the department * * *.

(g) "Natural reefs" means any bottom under the jurisdiction of the commission of one or more acres on which oysters grow naturally, or have grown naturally, in a quantity sufficient to warrant commercial fishing as a means of livelihood, or have been used in such a manner within a period of ten (10) years next preceding the time the bottoms may come up for determination by the commission.

(h) "Resident" means a person, firm or corporation that is domiciled in this state.

(i) "Seafood" means all oysters, saltwater fish, saltwater shrimp, diamondback terrapin, sea turtle, crabs and all other species of marine or saltwater animal life existing or living in the waters within the territorial jurisdiction of the State of Mississippi.

(j) "Tonging reefs" means any bottom under the jurisdiction of the commission designated by the commission as an area in which oysters may only be taken by use of hand tongs.

SECTION 2. Section 49-15-11, Mississippi Code of 1972, is amended as follows:

49-15-11. (1) The Mississippi Department of Marine Resources is hereby established and full power is vested in the department to manage, control, supervise, enforce and direct any matters pertaining to saltwater aquatic life and marine resources under the jurisdiction of the commission. The Department of Wildlife, Fisheries and Parks shall transfer all powers, duties, employees, equipment, funds, buildings, facilities, inventory and resources of the * * * marine * * * law enforcement * * * division to the Department of Marine Resources.

(2) The Executive Director of the Department of Marine Resources shall have the authority to internally reorganize the Department of Marine Resources with persons meeting established qualifications for comparable positions of duty and responsibility including, but not limited to, the deputy director, division chiefs, biologists and other personnel. All personnel actions initiated as a result of the transfer of law enforcement officers shall be subject to the State Personnel Board rules and procedures. The executive director shall implement a merit promotion system for all law enforcement officers. The merit promotion system shall be based on an individual's merit and length of service.

(3) Whenever the terms "Mississippi Marine Conservation Commission," "Marine Conservation Commission," "Bureau of Marine Resources" and "Mississippi Marine Resources Council" appear in any state law, they shall mean the "Mississippi Commission on Marine Resources."

SECTION 3. (1) The Department of Marine Resources and the Department of Wildlife, Fisheries and Parks shall comply with Sections 5-11-1 through 5-11-5 in the transfer of the marine law enforcement division.

(2) The transfer of personnel shall be commensurate with the number and classification of positions (PINS) allocated to the Division of Marine Law Enforcement on January 1, 1999. The transfer shall also include direct support, clerical, data processing, communications and boating safety pins and resources. All unexpended balances of appropriations, allocations or other funds related to marine law enforcement and direct support functions shall be transferred. The transfer of special funds shall be made in such a manner that the relation between law enforcement programs and revenue source is retained.

SECTION 4. Section 49-15-21, Mississippi Code of 1972, is amended as follows:

49-15-21. (1) The executive director * * * shall appoint the necessary enforcement officers for the administration of this chapter. The salary of all enforcement officers employed shall be as determined by the State Personnel Board. However, the members of the Enforcement Officers' Reserve Unit created in subsection (4) shall serve without pay, and shall not be employees of the State of Mississippi for purposes of the State Personnel System, the Workers' Compensation Law, the Public Employees' Retirement System or the State Employees' Life and Health Insurance Plan.

(2) All enforcement officers shall be experienced and qualified persons thoroughly familiar with the seafood business and shall be at least twenty-one (21) years of age and be a high school graduate or its equivalent. The enforcement officers shall diligently enforce all laws and regulations for the protection, propagation, preservation or conservation of all saltwater aquatic life of the State of Mississippi, and they are hereby constituted peace officers of the State of Mississippi, with full police power and jurisdiction to enforce all laws of the State of Mississippi and all regulations adopted and promulgated by the commission. Enforcement officers may exercise such powers in any county of the State of Mississippi and on any waters of the state, and they are hereby authorized to carry firearms or other weapons, concealed or otherwise, and they shall investigate all persons, corporations and otherwise who are alleged to have violated any laws, and make affidavits, arrests and serve papers of any court of competent jurisdiction, in like manner as is provided for sheriffs and deputy sheriffs, when the same shall be in connection with the enforcement of the seafood laws of the State of Mississippi and such other laws and regulations of this state as the commission * * * may designate. The enforcement officers may seize at any time aquatic life caught, taken or transported in a manner contrary to the laws of this state, and may confiscate and dispose of the same. Any net or other paraphernalia used or employed in connection with a violation may be seized, and forfeiture proceedings may be instituted pursuant to Sections 49-7-251 through 49-7-257. Enforcement officers may draft the aid of captains, crews and boats or licensed vessels to enforce this chapter and may, without warrant, board and search vessels or vehicles. The application for any license or permit from the commission to catch, fish, take, transport or handle or process any form of aquatic life, or the taking, catching, transporting or handling or processing of any and all aquatic life in this state shall constitute acquiescence and agreement upon the part of the owners, captains and crews, employers and dealers to the provisions of this chapter and the agreement that enforcement officers may exercise the authority granted under the provisions hereof.

(3) Prior to entering into performance of their duties or delegations or as soon after appointment as possible, each enforcement officer, at the expense of the commission * * *, shall attend and complete an appropriate curriculum in the field of law enforcement at the Mississippi Law Enforcement Officers' Training Academy or other law enforcement training program approved under Section 45-6-7. However, members of the Enforcement Officers' Reserve Unit created in subsection (4) of this section may attend the Mississippi Law Enforcement Officers' Training Academy at the expense of the commission * * * if it deems the training necessary or desirable. No enforcement officer shall be entitled to payment of salary after the first six (6) months in office if he has either failed to attend the academy or has failed to comply with other qualifications or successfully complete any law enforcement qualification examinations as the director deems necessary. The enforcement officers shall, on a periodic basis, be required to attend additional advanced courses in law enforcement in order that they will be properly improved and trained in the modern, technical advances of law enforcement.

(4) (a) There is hereby created an Enforcement Officers' Reserve Unit, hereinafter termed "the reserve," to assist the enforcement officers in the performance of their duties under this chapter. The reserve shall consist of volunteers who are approved by the chief inspector or his designated representative, and the members of the reserve shall serve without pay. Reserve officers shall be in such numbers as determined by the enforcement needs, with the maximum strength of reserve officers limited to the same number as enforcement officers.

(b) To be eligible for membership in the reserve, an applicant must be twenty-one (21) years of age, be a high school graduate or its equivalent, be in good physical condition, have a Mississippi driver's license, be in good standing with the community, be available for training and duty, not be a member of any police, auxiliary police, civil defense, or private security agency, have never been convicted of a felony, and have one (1) of the following:

(i) An honorable discharge or honorable separation certificate from one (1) of the United States military services;

(ii) Three (3) years of responsible post-high school work experience that required the ability to deal effectively with individuals and groups of persons;

(iii) Successful completion of sixty (60) semester hours at an accredited college or university; or

(iv) The qualifications as are outlined in this section for enforcement officers.

Members of the immediate family of enforcement officers shall not be eligible for the reserve unless a special waiver is granted.

Upon acceptance into the reserve, members shall receive a temporary appointment for one (1) year. During this year of temporary status, members must successfully complete the required training and must qualify on the same firearms course as enforcement officers.

(c) The reserve shall be under the leadership and direction of the assistant chief inspector, who may designate an enforcement officer to coordinate the actions of the reserve. The training of the reserve shall be conducted by an enforcement officer. The reserve shall meet at least once each month for the purpose of training and transacting any business as may come before it. The chief inspector shall be notified in writing of all meetings of the reserve and the time and place of the meetings shall be recorded with the chief inspector. The chief inspector shall prepare a reserve officer's manual with the advice and consent of the commission * * *. The manual shall include, but is not limited to, the following: activities and operations, training, administration and duties. During active service, the reserve shall be under the direction of the chief inspector or his designated representative. When a reserve officer is on active duty and assigned to a specific enforcement officer, he shall be under the direct supervision of that officer. Reserve officers serve at the discretion of the chief inspector and may be dismissed by him or by a board of inquiry appointed by the commission * * *. Reserve officers shall furnish their own uniforms and other personal equipment if the commission * * * does not provide such items.

(d) The commission * * * may, by regulation, require members of the Enforcement Officers' Reserve Unit to attend officer reserve training programs conducted by county or municipal agencies.

(e) The commission * * * may issue uniforms to such reserve officers and may authorize the issuance of any state equipment necessary for the reserve officers to adequately assist law enforcement officers. The commission * * * shall develop a reserve officer identification system to accomplish the issuance of such items in accordance with the State Auditor guidelines.

(f) If the commission * * * determines that a member of the Enforcement Officers' Reserve Unit may attend a training program as authorized under this section, it shall require that reserve officer to sign an agreement, prior to attending a training program, which shall stipulate that if the reserve officer accepts employment from any other public or private law enforcement agency within three (3) years after completion of his training program, the reserve officer or the respective hiring law enforcement agency shall reimburse the department for the total cost of his training program. By October 1 of each year, the department * * * shall provide the Game and Fish Committee of the Mississippi House of Representatives and the Ports and Marine Resources Committee of the Mississippi Senate a listing which contains each name and the respective cost of training each reserve officer received during the previous year.

SECTION 5. Section 49-15-301, Mississippi Code of 1972, is amended as follows:

49-15-301. (1) The Mississippi Commission on Marine Resources is hereby established and full power is vested in the commission to regulate all matters pertaining to all saltwater aquatic life and marine resources. The commission shall administer the Coastal Wetlands Protection Law and the Public Trust Tidelands Act. The power and duties of the commission shall be exercised through the Department of Marine Resources. * * *

(2) On July 1, 2002, the commission shall be reconstituted. The terms of the nonseafood industry member and the member of the Commission on Wildlife, Fisheries and Parks shall expire July 1, 2002. The remaining five (5) members serving on July 1, 2002 shall compose the reconstituted commission and shall continue to serve until the expiration of their terms. The reconstituted Mississippi Commission on Marine Resources shall consist of five (5) members to be appointed as follows:

(a) The Governor shall appoint five (5) members who shall be residents of Jackson, Harrison and Hancock Counties with the advice and consent of the Senate. The Governor shall appoint at least one (1) member from each county but not more than two (2) members from any one (1) county. The members designated in subparagraphs (i), (ii) and (iv) * * * must be a resident of the county where the business he is appointed to represent is located. (b) The commission shall be composed as follows:

(i) One (1) member shall be a commercial seafood processor.

(ii) One (1) member shall be a commercial fisherman.

(iii) One (1) member shall be a recreational sports fisherman.

(iv) One (1) member shall be a charter boat operator.

(v) One (1) member shall be a member of an incorporated nonprofit environmental organization.

(c) Of the initial members appointed by the Governor, the members designated in subparagraphs (i),(ii) and (iii) shall serve for an initial term of two (2) years and one (1) member shall be appointed from each county. The members designated in subparagraphs (iv) and (v) * * * shall serve an initial term of four (4) years and one (1) member shall be appointed from each county. All terms after the initial terms shall be for a period of four (4) years. * * *

(d) Any vacancy in the office of an appointed member of the commission shall be filled by appointment by the Governor for the balance of the unexpired term.

(3) Each member shall have a demonstrated history of involvement in the matter of jurisdiction for which he is appointed to represent and his employment and activities must not conflict with the matter of jurisdiction represented. A member shall not have a record of conviction of violation of fish and game or seafood laws or regulations within the five (5) years preceding his appointment or a record of any felony conviction.

(4) The commission shall elect a chairman who shall preside at all meetings of the commission, and the commission shall also elect a vice-chairman who shall serve in the absence or inability of the chairman. * * *

(5) Each member shall be paid actual and necessary expenses incurred in attending meetings of the commission and in performing his duties away from his domicile under assignment by the commission. In addition, members shall receive the per diem authorized in Section 25-3-69, Mississippi Code of 1972.

(6) The commission shall adopt rules and regulations governing times and places of meetings and shall adopt bylaws governing the manner of conducting its business. Each member shall take the oath prescribed by Section 268 of the Mississippi Constitution of 1890 and shall, before assuming office, enter into bond in the amount of Thirty Thousand Dollars ($30,000.00), to be approved by the Secretary of State conditioned according to law and payable to the State of Mississippi.

(7) The commission shall not take any action, except by vote in meeting assembled, and such action shall be included in the minutes of the commission. A majority of the members shall constitute a quorum of the commission.

(8) The commission, through the Department of Marine Resources, shall devise a plan to make licenses available in each coastal county.

(9) (a) There is hereby created a marine resources technical advisory council composed of the Executive Director of the Gulf Coast Research Lab, or his designee; the Executive Director of the Department of Environmental Quality, or his designee; and the Executive Director of the Department of Wildlife, Fisheries and Parks, or his designee.

(b) The council shall give technical assistance to the commission.

(10) For purposes of this section the following definitions apply:

(a) "Charter boat operator" means an individual who operates a vessel for hire guiding sports fishermen for a fee and is duly licensed to engage in such activity in the State of Mississippi.

(b) "Commercial fisherman" means a fisherman who sells, barters or exchanges any or all of his catch or who is paid for attempting to catch marine species.

(c) "Commercial seafood processor" means an individual who engages in the business of purchasing seafood products and preparing them for resale and who is duly licensed to engage in such commercial activity in the State of Mississippi.

(d) "Incorporated environmental nonprofit organization" means an organization duly incorporated in any state as a nonprofit organization and whose stated goals and purposes are the conservation of natural resources.

(e) "Non-seafood industry" means an industry not involved in the catching, processing or packaging of marine species.

(f) "Recreational sports fisherman" means an individual who catches or harvests marine species only for recreation or personal consumption and not for sale.

SECTION 6. Section 63-11-19, Mississippi Code of 1972, is amended as follows:

63-11-19. A chemical analysis of the person's breath, blood or urine, to be considered valid under the provisions of this section, shall have been performed according to methods approved by the State Crime Laboratory created pursuant to Section 45-1-17 and the Commissioner of Public Safety and performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis. The State Crime Laboratory and the Commissioner of Public Safety are authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Crime Laboratory. The State Crime Laboratory shall not approve the permit required herein for any law enforcement officer other than a member of the State Highway Patrol, a sheriff or his deputies, a city policeman, an officer of a state-supported institution of higher learning campus police force, a security officer appointed and commissioned pursuant to the Pearl River Valley Water Supply District Security Officer Law of 1978, a national park ranger, a national park ranger technician, a military policeman stationed at a United States military base located within this state other than a military policeman of the Army or Air National Guard or of Reserve Units of the Army, Air Force, Navy or Marine Corps, a marine law enforcement officer employed by the Department of Marine Resources, or a conservation officer employed by the Mississippi Department of Wildlife, Fisheries and Parks. The permit given a conservation officer or a marine law enforcement officer shall authorize such officer to administer tests only for violations of Sections 59-23-1 through 59-23-7.

The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of the methods, machines or devices used in making chemical analysis of a person's breath as shall be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of the same.

SECTION 7. Section 49-4-7, Mississippi Code of 1972, is amended as follows:

49-4-7. The commission * * * shall establish and appoint advisory committees for * * * Parks and Recreation and * * * Wildlife and Fisheries. The advisory committees shall aid the commission * * * in formulating policies, discussing problems and considering other matters related to these * * * areas as designated by the commission.

The department is designated as the single state agency to receive and expend any federal funds * * * made available for matters within the jurisdiction of the department.

The department shall be responsible for conserving, managing, developing and protecting the wildlife and freshwater fisheries resources of the state * * *. The department shall coordinate all functions of state government related to wildlife and fisheries resources that are within the jurisdiction of the department.

SECTION 8. Section 59-21-111, Mississippi Code of 1972, is amended as follows:

59-21-111. (1) The Mississippi Commission on Wildlife, Fisheries and Parks shall be the Mississippi Boat and Water Safety Commission, and shall exercise the duties and responsibilities of the Mississippi Boat and Water Safety Commission through the Mississippi Department of Wildlife, Fisheries and Parks, insofar as practicable under the provisions of Chapter 4 of Title 49, Mississippi Code of 1972; except on marine waters under the jurisdiction of the Commission on Marine Resources.

(2) The Commission on Marine Resources shall exercise the duties and responsibilities of the Mississippi Boat and Water Safety Commission through the Mississippi Department of Marine Resources on the marine waters of the state. The Commission on Marine Resources shall not exercise any powers related to numbering of undocumented vessels. Those powers are vested exclusively in the Commission on Wildlife, Fisheries and Parks.

SECTION 9. This act shall take effect and be in force from and after July 1, 1999.