MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Agriculture

By: Representative Holland

AN ACT TO AMEND SECTION 69-3-1, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS UNDER THE AGRICULTURAL SEED LAW; TO AMEND SECTION 69-3-5, MISSISSIPPI CODE OF 1972, TO REVISE LABELING REQUIREMENTS FOR SEEDS; TO AMEND SECTION 69-3-19, MISSISSIPPI CODE OF 1972, TO REMOVE THE AUTHORITY FOR THE APPOINTMENT AND DUTIES OF THE ARBITRATION COUNCIL; TO AMEND SECTION 69-3-25, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR VIOLATIONS; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 69-3-29, MISSISSIPPI CODE OF 1972, TO PROVIDE ADMINISTRATIVE PROCEDURES FOR THE HANDLING OF COMPLAINTS AND EVIDENTIARY HEARINGS CONCERNING VIOLATIONS OF THE SEED LAW; TO BRING FORWARD SECTION 25-41-3, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE OPEN MEETINGS ACT; TO AMEND SECTION 69-3-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 69-3-1, Mississippi Code of 1972, is amended as follows:

69-3-1. Wherever the following terms or similar terms are used in this article, they shall have the following meanings, unless the context clearly indicates otherwise:

(a) The term "advertisement" means all representations made by the labeler, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this article.

(b) The term "commissioner" means the Commissioner of Agriculture and Commerce of the State of Mississippi.

(c) The term "seedsman" means a person, firm or corporation engaged in the buying, selling or exchanging, offering or exposing for sale agricultural seeds or mixtures thereof, vegetable, flower, tree and shrub seeds as defined in this article. For the purpose of this article:

(i) The term "commission merchant" or "agent" means a person, firm or corporation engaged in the selling of packet seed of less than four (4) ounces to consumers.

(ii) The term "wholesale distributor" means a person, firm or corporation engaged in the selling of seed to a seedsman holding a permit as required by subsection (1)(c) of Section 69-3-3.

(iii) The term "consumer" means any person who purchases or otherwise obtains seed for sowing but not for resale.

(iv) The term "commercial grower" means a person, firm or corporation engaged primarily in the production of seed for planting purposes for sale or trade.

(d) The term "agricultural seeds" means the seed of grass, forage, cereal and fiber crops, lawn seed, and any other kinds of seed, including transgenic seeds, recognized within this state as agricultural or field seeds, and mixtures of such seeds.

(e) The term "vegetable seeds" means the seeds of those crops which are grown in gardens or on truck farms, including transgenic seeds, and are generally known and sold under the name of vegetable seeds in this state.

(f) The term "flower seed" means the seeds of herbaceous plants grown for their blooms, ornamental foliage or other ornamental parts, including transgenic seeds, and commonly known and sold under the name of flower seeds in this state.

(g) The term "tree and shrub seeds" means the seeds of woody plants, including transgenic seeds, commonly known and sold as tree and shrub seeds in this state.

(h) The term "transgenic seed" means seed from a plant whose genetic composition has been altered by methods other than those used in conventional plant breeding to produce seed that contains selected genes from other plants or species that will produce results such as herbicide tolerance, insect tolerance or other traits derived from biotechnology.

(i) The term "seed lot" or "lot of seed" means a definite quantity of seed identified by a lot number or other identification mark, every portion or bag of which is uniform for the factors which appear on the label, within permitted tolerances.

(j) The term "kind" means one or more related species or subspecies which singly or collectively is known by one (1) common name; for example: soybeans, crimson clover, striate lespedeza, tall fescue.

(k) The term "variety" means a subdivision of a kind which is characterized by growth, plant, fruit, seed or other characteristics by which it can be differentiated in successive generations from other sorts of the same kind; for example: Lee soybeans, Frontier crimson clover, Kobe striate lespedeza, Kentucky 31 tall fescue.

(l) The term "strain" means the subdivision of a variety; for example: Clemson nonshattering soybeans, Strain 4.

(m) The term "hybrid" means the first generation seed of a cross produced by controlling the pollination and combining: (i) two (2) or more inbred lines; or (ii) one (1) inbred line or a single cross with an open-pollinated variety; or (iii) two (2) varieties or species, except open-pollinated varieties of corn. The second generation and subsequent generations of such crosses shall not be regarded as hybrids.

(n) The terms "pure seed," "germination," "other crop seed," "inert matter" and other seed labeling and testing terms in common usage not defined herein are defined as in the Federal Seed Act and the rules and regulations promulgated thereunder and any subsequent amendments thereto.

(o) The term "weed seeds" means the seeds, bulblets or tubers of all plants generally recognized as weeds within the state and includes noxious weed seeds.

(p) The term "noxious weed seeds" shall consist of two (2) classes, as follows:

(i) "Prohibited noxious weed seeds" means the seeds of weeds that reproduce by seed, and/or spread by underground roots or stems, and which, when established, are highly destructive and difficult to control in this state by ordinary good cultural practice, or constitute a peculiar hazard to the agriculture of this state. Names of such weed seeds shall be published by regulations promulgated pursuant to the provisions of this article.

(ii) "Restricted noxious weed seeds" means the seeds of weeds that are particularly objectionable in fields, lawns or gardens of this state, but which can ordinarily be controlled by good cultural practice. Names of such weed seeds shall be published by regulations promulgated pursuant to the provisions of this article.

(q) The term "firm ungerminated seed" means live seed, other than hard seed, which neither germinate nor decay during the period and under the conditions prescribed for germination of such seed by the rules and regulations promulgated pursuant to provisions of this article. Kinds of seeds known and recognized to contain firm seeds shall be published by regulation.

(r) The term "date of test" means the month and year the percentage of germination appearing on the label was obtained by laboratory test.

(s) The term "mixed" or "mixture" means seeds consisting of more than one (1) kind, or kind and variety, or strain, each present in excess of five percent (5%) of the whole.

(t) The term "origin" means the state, District of Columbia, Puerto Rico, or possessions of the United States, or the foreign country where the seeds were grown.

(u) The term "label" means the display or displays of written, printed or graphic matter upon or attached to the container of seed pertaining to the contents of the container.

(v) The term "labeler" means the person, firm, corporation or the registered code number whose name appears on the label or container of seed.

(w) The term "labeling" includes all labels and other written, printed or graphic representations in any manner whatsoever * * * pertaining to the contents, whether in bulk or in containers, and includes representations on invoices except for current official publications of the United States Department of Agriculture, state experiment stations, state agricultural colleges and other similar federal or state institutions or agencies authorized by law to conduct research.

(x) The term "treated" means that the seed has been given an application of a substance or subjected to a process designed to control or repel certain disease organisms, insects or other pests attacking such seeds or seedlings grown therefrom to improve its planting value or to serve any other purpose.

(y) The term "records" or "seed records" means information which relates to the origin, treatment, germination and purity of each lot of agricultural seed sold, offered or exposed for sale in this state, or which relates to the treatment, germination and variety of each lot of vegetable, flower, or tree and shrub seed sold, offered or exposed for sale in this state. Such information includes seed samples and records of declarations, labels, purchases, sales, cleaning, bulking, handling, storage, analyses, tests and examinations.

(z) The term "processing" means cleaning, scarifying, blending or treating to obtain uniform quality and other operations which would change the purity or germination of the seed and therefore require retesting to determine the quality of the seed.

(aa) The term "tolerance" means the allowance for sampling variation specified under rules and regulations promulgated pursuant to the provisions of this article.

(bb) The terms "certified seed," "registered seed" and "foundation seed" mean seed that has been produced and labeled in accordance with the procedures and in compliance with the rules and regulations of an official certifying agency authorized by the laws of this state or the laws of another state or country.

(cc) The term "official certifying agency" means an agency authorized or recognized and designated as a certifying agency by the laws of a state, the United States, a province of Canada, or the government of a foreign country.

(dd) The term "stop sale order" means any written or printed notice or order given or issued by the commissioner or his authorized agents to the owner or custodian of any lot of agricultural, vegetable, flower, or tree and shrub seeds in this state, directing such owner or custodian not to sell, offer or expose such seeds for sale for planting purposes within this state until requirements of this article shall have been complied with and a written release has been issued. * * *

(ee) The term "Federal Seed Act" means the laws codified at 7 USCS 1551, et seq., and all regulations promulgated thereunder.

(ff) The term "bulk" or "in bulk" means seed when loose either in vehicles of transportation, bins, cribs or tanks, and not seed in bags, boxes, cartons, bulk/super bags or other containers.

(gg) The term "department" means the Mississippi Department of Agriculture and Commerce.

SECTION 2. Section 69-3-5, Mississippi Code of 1972, is amended as follows:

69-3-5. (1) Each container of agricultural, vegetable, flower, or tree and shrub seeds sold, offered for sale, or exposed for sale, or transported within this state for seeding purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving the following information:

(a) For agricultural seeds:

(i) The commonly accepted name of kind and variety of each agricultural seed present in excess of five per cent (5%) of the whole and the percentage by weight of each in the order of its predominance. When more than one (1) kind and variety is required to be named, the word "mixture" or the word "mixed" shall be shown conspicuously on the label, provided that the commissioner may through the promulgation of regulations permit certain kinds of seed to be labeled "mixed" without showing the percentage of each variety present. Hybrids shall be labeled with the name and/or number by which the hybrid is commonly designated.

(ii) Lot number or other designation.

(iii) Net weight.

(iv) Origin.

(v) Percentage by weight of all weed seeds, including noxious weed seeds.

(vi) Percentage by weight of inert matter.

(vii) Percentage by weight of other crop seed.

(viii) For each named agricultural seed:

1. Percentage of germination, exclusive of hard seed or firm seed.

2. Percentage of hard seed, if present.

3. Percentage of firm ungerminated seed, if present.

4. The calendar month and year the test was completed to determine such percentages.

(ix) The name and number per pound of each kind of "restricted" noxious weed seed.

(x) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.

(xi) In addition to the above label requirements, certain additional information may, through the promulgation of regulations by the commissioner, be required for the label.

(b) For vegetable seeds in containers of * * * more than one (1) pound:

(i) Name of kind and variety of seed.

(ii) Net weight.

(iii) Lot number or other identification.

(iv) Percentage of germination, exclusive of hard seed.

(v) Percentage of hard seed, if present.

(vi) Calendar month and year the test was completed to determine such percentages.

(vii) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.

(viii) For seeds which germinate less than standards prescribed under rules and regulations promulgated pursuant to the provisions of this article, the words "below standard" in not less than 8-point type must be written or printed on face of tag in addition to other information required.

(c) For vegetable seeds in containers of one (1) pound or less:

(i) Name of kind and variety.

(ii) The name and address, or the registered code number, of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.

(iii) For seeds which germinate less than the standards last prescribed for such seed under rules and regulations promulgated pursuant to the provisions of this article, the following additional information must be shown:

1. Percentage of germination, exclusive of hard seed.

2. Percentage of hard seed, if present.

3. Calendar month and year the test was completed to determine such percentage.

4. The words "below standard" in not less than 8-point type.

(d) For flower seed:

Flower seed shall be labeled to comply with rules and regulations promulgated by the commissioner pursuant to the provisions of this article.

(e) For tree and shrub seed:

Tree and shrub seed shall be labeled to comply with the rules and regulations promulgated by the commissioner pursuant to the provisions of this article.

(f) For treated seed:

All seeds treated as defined in this article (for which a separate label may be used) shall be labeled in accordance with the rules and regulations promulgated pursuant to the provisions of this article.

(2) The labeler shall keep records of the year of production and blending components of all agricultural or vegetable seeds in each lot labeled, distributed or offered for sale within the state. The records shall be made available to any purchaser either through the label, the container or such other means that may be required by regulation in order to provide the information requested in a timely manner.

SECTION 3. Section 69-3-7, Mississippi Code of 1972, is amended as follows:

69-3-7. (1) Each person handling seed subject to this article shall keep for a period of two (2) years a complete record of agricultural, vegetable, flower, or tree and shrub seeds handled.

(2) Such records shall include the information as defined in paragraph (y) of Section 69-3-1.

(3) The commissioner or his duly authorized agents shall have the right to inspect such records for the purpose of the effective administration of this article.

SECTION 4. Section 69-3-19, Mississippi Code of 1972, is 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, including transgenic 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 the 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 * * * Department of Transportation to determine whether or not seed so tested meets the * * * requirements of the Department of Transportation as set out in its contract specifications. No further testing shall be required unless the * * * Department of Transportation 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 * * * Department of Transportation 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) 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 the Director of the Bureau of Plant Industry, 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.

(4) This section shall stand repealed on July 1, 2002.

SECTION 5. Section 69-3-25, Mississippi Code of 1972, is amended as follows:

69-3-25. Any person violating any of the provisions of this article or the rules and regulations made by the commissioner pursuant thereto at a minimum is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00) at the discretion of the court having jurisdiction.

SECTION 6. The following section shall be codified as Section 69-3-29, Mississippi Code of 1972:

69-3-29. (1) When a written complaint is made against a person, corporation or other entity for violation of any of the provisions of this article, or any of the rules or regulations promulgated hereunder, the Commissioner of Agriculture and Commerce, or his designee, shall conduct a full evidentiary hearing relative to the charges. The complaint shall be in writing and shall be filed in the Office of the Mississippi Department of Agriculture and Commerce. The commissioner shall cause to be delivered to the accused in the manner described herein a copy of the complaint and a summons requiring the accused to file a written answer to the complaint within thirty (30) calendar days after service of the summons and the complaint on him. The accused may be notified by serving a copy of the summons and complaint on the accused by any of the methods set forth in Rule 4 of the Mississippi Rules of Civil Procedure or by certified mail. Upon receipt of the written answer of the accused, the matter shall be set for hearing before the commissioner or his designee within a reasonable time. If the accused fails to file an answer within such time, the commissioner or his designee may enter an order by default against the accused. The commissioner may issue subpoenas to require the attendance of witnesses and the production of documents. Compliance with such subpoenas may be enforced by any court of general jurisdiction in this state. The testimony of witnesses shall be upon oath or affirmation, and they shall be subject to cross-examination. The proceedings shall be recorded. If the commissioner or his designee determines that the complaint lacks merit, he may dismiss same. If he finds that there is substantial evidence showing that a violation has occurred, he may impose any or all of the following penalties upon the accused: (a) levy a civil penalty in the amount of no more than Five Thousand Dollars ($5,000.00) for each violation; (b) revoke or suspend any license or permit issued to the accused under the terms of this article; (c) issue a stop sale order; (d) require the accused to relabel a lot of seed that he is offering or exposing for sale and which is not labeled in accordance with the provisions of this article; or (e) seize any lot of seed that is not in compliance with this article and destroy, sell or otherwise dispose of the seed and apply the proceeds of any such sale to the costs herein and any civil penalties levied with the balance to be paid to the accused. The decision of the commissioner or his designee shall be in writing, and it shall be delivered to the accused by certified mail.

(2) Either the accused or the Department may appeal the decision of the commissioner or his designee to the circuit court of the county of residence of the accused or, if the accused is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County, Mississippi. The appellant shall have the obligation of having the record transcribed and filing it with the circuit court. The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to circuit court. If no appeal is perfected within the required time, the decision of the commissioner, or his designee shall then become final.

(3) The decision of the circuit court may then be appealed by either party to the Mississippi Supreme Court in accordance with the existing law and rules affecting such appeals.

(4) Where any violation of this article, 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, any of the department's field inspectors, and 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) issue a stop sale order; (b) require the accused to relabel a lot of seed that he is offering or exposing for sale and which is not labeled in accordance with the provisions of this article; or (c) seize any lot of seed that is not in compliance with this article and destroy, sell or otherwise dispose of the seed and apply the proceeds of any such sale to the cost herein and any civil penalties levied with the balance to be paid to the accused. The order shall be served upon the accused in the same manner that the summons and complaint may be served upon him. The accused shall then have thirty (30) days after service of the order upon him within which to request an informal administrative review before the Director of the Bureau of Plant Industry in the department, or his 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 such time frame, then he will be deemed to have waived his right to the review. At the informal administrative review, subpoena power shall not be available, witnesses shall not be sworn nor be subject to cross-examination and 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 decision shall be in writing, and it shall be delivered to the parties by certified mail. If either party is aggrieved by the order of the reviewing officer, he may appeal to the commissioner for a full evidentiary hearing in accordance with the procedures described in subsection (1) of this section, except that there shall be no requirement for a written complaint or answer to be filed by the parties. 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 7. Section 25-41-3, Mississippi Code of 1972, is brought forward as follows:

25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:

(a) "Public body" shall mean: (i) any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether such entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and (ii) any standing, interim or special committee of the Mississippi Legislature. There shall be exempted from the provisions of this chapter the judiciary, including all jury deliberations, public and private hospital staffs, public and private hospital boards and committees thereof, law enforcement officials, the military, the State Probation and Parole Board, the Workers' Compensation Commission, legislative subcommittees and legislative conference committees, and license revocation, suspension and disciplinary proceedings held by the Mississippi State Board of Dental Examiners.

(b) "Meeting" shall mean an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power.

SECTION 8. This act shall take effect and be in force from and after July 1, 2000.