House Bill 704

AN ACT TO REQUIRE AN OPERATOR, FIRM OR CORPORATION ENGAGED IN COMMERCIAL SHRIMPING OR A PROCESSOR, DISTRIBUTOR, WHOLESALER OR RETAILER OF SHRIMP TO LABEL SHRIMP WITH THE COUNTRY OF ORIGIN AND OCEAN OF ORIGIN; TO RESTRICT THE USE OF THE TERM "GULF SHRIMP"; TO PROVIDE PENALTIES FOR SHRIMP WITH A FALSE LABEL OR WITHOUT THE REQUIRED LABEL OR AN INCORRECT LABEL; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) No shrimp shall be offered for direct retail sale for human consumption by any operator, firm or corporation engaged in commercial shrimping or by any processor, distributor, wholesaler or retailer of shrimp unless the shrimp is labeled with the country of origin and ocean of origin. For purposes of this section, the following terms shall have the meanings ascribed in this subsection:

(a) "Country of origin" means the country of the port where the shrimp is first brought in from a freight boat, ice boat or catching boat.

(b) "Ocean of origin" means the body of water in which the shrimp is harvested.

(c) "False label" means that the "country of origin" or "ocean of origin" listed on a label is not the true "country of origin" or "ocean of origin."

(d) "Gulf shrimp" means a shrimp product that is harvested from the Gulf of Mexico or the Mississippi Sound.

(2) Any person selling gulf shrimp or any other shrimp exclusively and directly to the consumer may have on his premises a sign reasonably visible to the consumer identifying the shrimp, rather than labeling each individual container or package of shrimp.

(3) Any retailer selling shrimp not wrapped or in a container may comply with this article by placing a sign on the display case or refrigeration unit reasonably visible to the consumer, giving notice of the origin of the shrimp.

(4) Any advertising as to any shrimp product shall state the country of origin and ocean of origin shrimp product, as defined in this section. The term "gulf shrimp" shall not be used as a common name or in the label name of a shrimp product, except as provided in this section.

(5) (a) When a complaint is made against a person for violation of any of the provisions of this section, the complaint shall be filed with the Mississippi Department of Marine Resources or the Mississippi Department of Agriculture and Commerce. The Executive Director of the Department of Marine Resources or the Director of the Regulatory Division of the Department of Agriculture and Commerce, or a designee, shall act as reviewing officer. The reviewing officer shall cause to be delivered to the accused, in the manner described in this subsection, a copy of the complaint and any supporting documents along with a summons requiring the accused to respond to the allegations within thirty (30) days after service of the summons and complaint upon the accused. The accused shall file with the department a written response to the complaint and any supporting documents within the thirty-day period. The accused may be notified by serving a copy of the summons and complaint on the accused or any of his officers, agents or employees by personal service or by certified mail. Upon the expiration of the thirty-day period, the reviewing officer shall review the complaint, the written response of the accused, if any, and all supporting documents offered by the parties in support of their respective positions. The reviewing officer's decision shall be based solely on the documents provided by the parties. If the reviewing officer determines that the complaint lacks merit, he may dismiss the complaint. If he finds that there are reasonable grounds showing that a violation of the statutes or regulations has been committed, he may impose any or all of the following penalties upon the accused: (i) levy a fine of Ten Cents (10¢) per pound for shrimp that does not have a label as required in subsection (1) of this section; (ii) levy a fine of One Dollar ($1.00) per pound for all shrimp on which is placed a false label; (iii) issue a stop-sale order; (iv) require the accused to relabel any shrimp that he is offering for sale and which is not labeled in accordance with the provisions of this section; or (v) seize any shrimp that is not in compliance with this section, and destroy, sell or otherwise dispose of the shrimp, and apply the proceeds of any such sale to the costs and any penalties levied, with the balance to be paid to the accused. The reviewing officer's decision shall be in writing, and it shall be delivered to the accused by any of the methods described herein for service of the summons and complaint on the accused.

(b) Either the accused or the department may appeal the decision of the reviewing officer to the Department of Marine Resources or the Commissioner of Agriculture and Commerce by filing a notice of appeal with the department in which the complaint was filed within thirty (30) days of receipt of the reviewing officer's decision. If no appeal is taken from the order of the reviewing officer within the allotted time, the order shall then become final. In the event of an appeal, the executive director, director or his designee, shall conduct a full evidentiary hearing relative to the charges. The executive director or director 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 by a court reporter. The commissioner shall have all the powers of the reviewing officer described herein, and the commissioner may affirm, reverse or modify the order of the reviewing officer. The commissioner's decision shall be in writing, and it shall be delivered to the parties in the same manner that the summons and complaint may be served upon the accused.

(c) Either the accused or the department in which the complaint was filed may appeal the decision of the commissioner 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 has the obligation of having the record transcribed and filed with the circuit court. The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to the circuit court. If no appeal is perfected within the required time, the decision of the commissioner, or his designee, shall then become final.

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

(e) Where any violation of this section 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 of Marine Resources' enforcement officers or the Department of Agriculture and Commerce's field inspectors and any other authorized persons, may issue an order to be effective immediately, before notice and a hearing, that imposes any or all of the penalties described in this subsection against 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 reviewing officer, or his designee, as described herein. The accused shall include within his request all documents that support his position. The department may also submit any documents that support its position. If the accused makes such a request within such time, the reviewing officer, or his designee, shall review the documents provided by the parties and render a written decision within thirty (30) days after such request is made. Upon the making of such a request, the procedure described in this section shall be followed, except that there is no need for a complaint to be filed against the accused. If the accused does not request an administrative review within such time frame, then he shall have waived his right to an administrative review.

(f) Any fines collected from enforcement of this section shall be deposited to the agency that collects the penalties, except as provided in subparagraph (e) of this subsection.

SECTION 2. The provisions of Section 1 of this act shall be codified as a separate section in Chapter 15, Title 49, Mississippi Code of 1972.

SECTION 3. This act shall take effect and be in force from and after July 1, 2004.