MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Agriculture; Judiciary, Division A
By: Senator(s) Hyde-Smith, Lee (35th)
AN ACT TO AMEND SECTIONS 69-25-51 THROUGH 69-25-63, MISSISSIPPI CODE OF 1972, TO REVISE THE ADMINISTRATIVE HEARING PROCEDURE FOR THE BUREAU OF PLANT INDUSTRY; TO PROVIDE AN EMERGENCY PROCEDURE WHEN A HERBICIDE OR INSECTICIDE VIOLATION PRESENTS A CLEAR AND PRESENT DANGER TO THE HEALTH, SAFETY OR WELFARE OF THE PUBLIC; TO AUTHORIZE THE DEPARTMENT OF AGRICULTURE AND COMMERCE TO ISSUE EMERGENCY ORDERS PRIOR TO A HEARING WHEN SUCH VIOLATIONS OCCUR; TO PROVIDE FOR THE REPEAL OF THE ADMINISTRATIVE FINE; TO AMEND SECTION 69-19-15, MISSISSIPPI CODE OF 1972, TO CONFORM REGULATION OF PROFESSIONAL SERVICES TO THE REVISED ADMINISTRATIVE HEARING PROCEDURE; TO AMEND SECTIONS 69-21-7, 69-21-9 AND 69-21-13, MISSISSIPPI CODE OF 1972, TO CONFORM THE REGULATION OF AERIAL APPLICATION OF HORMONE-TYPE HERBICIDES TO THE REVISED ADMINISTRATIVE HEARING PROCEDURE; TO AMEND SECTION 69-21-5, MISSISSIPPI CODE OF 1972, TO ADD A DEFINITION; TO AMEND SECTION 69-21-25, MISSISSIPPI CODE OF 1972, TO CLARIFY THE INSPECTION POWERS OF THE DEPARTMENT OF AGRICULTURE; TO AMEND SECTIONS 69-23-7, 69-23-9, 69-23-11, 69-23-21, 69-23-27 AND 69-23-29, MISSISSIPPI CODE OF 1972, TO CONFORM PESTICIDE REGISTRATION LAWS TO THE REVISED ADMINISTRATIVE HEARING PROCEDURE; TO AMEND SECTION 69-23-23, MISSISSIPPI CODE OF 1972, TO REVISE NONRESIDENT BOND REQUIREMENTS; TO AMEND SECTIONS 69-23-101 THROUGH 69-23-127, 69-23-133 AND 69-23-135, MISSISSIPPI CODE OF 1972, TO CORRECT CODE REFERENCES TO THE PESTICIDE APPLICATION LAW OF 1975; TO FURTHER AMEND SECTIONS 69-23-117 AND 69-23-135, MISSISSIPPI CODE OF 1972, TO CONFORM TO REVISED ADMINISTRATIVE HEARING PROCEDURE; TO FURTHER AMEND SECTION 69-23-115, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE REVISED ADMINISTRATIVE HEARING PROCEDURE AND TO CLARIFY UNLAWFUL ACTS UNDER THE PESTICIDE APPLICATION LAWS; TO REPEAL SECTION 69-25-55, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT THE FAILURE TO REQUEST A TIMELY HEARING CONSTITUTES A WAIVER OR THE RIGHT TO A HEARING; TO REPEAL SECTION 69-25-65, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT THE ADMINISTRATIVE HEARING PROCEDURE SHALL NOT APPLY TO AERIAL APPLICATORS OF PESTICIDES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-25-51, Mississippi Code of 1972, is amended as follows:
69-25-51. (1) When any administrative allegation or charge is made against a person for violating the rules and regulations of the Bureau of Plant Industry * * * of the Mississippi Department of Agriculture and Commerce or the laws under Sections 69-19-1 through 69-19-15, * * * Sections 69-21-1 through 69-21-27, or Sections 69-23-1 through 69-23-135, Mississippi Code of 1972, the Director of the Bureau of Plant Industry, or his designee, shall act as the reviewing officer. The * * * complaint must be in writing, signed by the person making the charge, * * * and filed in the office of the Bureau of Plant Industry. * * * The department shall send a copy of the complaint and any supporting documents to the person accused along with a summons requiring the accused to respond to the allegations within thirty (30) days. The notification shall be accomplished by any of the methods provided for in Rule 4 of the Mississippi Rules of Civil Procedure or by certified mail. If the accused does not respond within the thirty-day period, he shall be considered to be in default. Upon receipt of the response and any supporting documents from the accused, the reviewing officer shall * * * determine the merits of the complaint * * *. The reviewing officer may meet informally with the accused and discuss the alleged violation with him.
(2) If the reviewing officer determines that the complaint lacks merit, he may dismiss the complaint.
(3) If the reviewing officer determines that there is substantial evidence that a violation has occurred or if the accused admits to the truth of the allegations upon which the complaint is based, the reviewing officer may impose * * * an appropriate penalty on the accused, which may be any or all of the following:
(a) Issue a warning letter.
(b) Suspend, modify, deny, cancel or revoke any license or permit granted by the department to the accused.
(c) Issue a stop sale order with regard to any pesticide, plant or other material regulated by the department that is mislabeled or otherwise not in compliance with applicable law or regulations.
(d) Require the accused to relabel any pesticide, plant or other material regulated by the department that is mislabeled.
(e) Seize any pesticide, plant or other material regulated by the department and sell, destroy or otherwise dispose of such material and apply the proceeds of such sale to the state's expenses and any fees or penalties levied hereunder.
(f) Refuse to register, or cancel or suspend the registration of a pesticide, plant or other material that is not in compliance with any applicable law or regulation.
(g) Levy a civil penalty in an amount not to exceed Five Thousand Dollars ($5,000.00) for each violation. This paragraph shall repeal on July 1, 2008.
In determining the amount of the penalty, the reviewing officer shall consider the appropriateness of such penalty for the particular violation, the effect of the penalty on the person's ability to continue in business and the gravity of the violation.
(4) If the accused requests a hearing with the department, in writing, within thirty (30) days from receipt of the decision of the reviewing officer, the commissioner shall appoint three (3) members of the advisory board to the Bureau of Plant Industry to act as a hearing committee and a hearing shall be scheduled. If the accused fails to request a hearing within the thirty-day period, the decision of the reviewing officer is final.
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SECTION 2. Section 69-25-53, Mississippi Code of 1972, is amended as follows:
69-25-53. (1) Within a reasonable time after the accused's request for a hearing, the hearing committee shall conduct an evidentiary hearing. * * * For good cause shown, the hearing committee may grant a continuance * * * of the hearing. Written notice of the date, time and place of such hearing shall be delivered to the accused * * * not less than fifteen (15) days prior to the * * * hearing.
(2) A * * * court reporter shall be in attendance and shall record the proceedings. * * * The hearing committee shall have the right and duty to impose reasonable restrictions as it may deem necessary or appropriate to insure an orderly, expeditious and impartial proceeding. The parties may offer oral testimony through witnesses and shall have the right of cross-examination. The rules of evidence shall be relaxed.
(3) * * * At the hearing, the hearing committee may administer oaths and * * * receive evidence, either oral or documentary. Upon the request of either party, the Department of Agriculture and Commerce may issue subpoenas to compel the attendance of witnesses or the production of books, papers, records or other documentary evidence * * *. If a person fails to comply with a subpoena issued by the department, either party may invoke the aid of any court of general jurisdiction of this state. The court may * * * 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 * * *.
(4) At the conclusion of the hearing, the hearing committee * * * shall render a written decision incorporating the findings of facts, conclusions of law and * * * penalty, if any. The hearing committee may impose any penalty authorized under Section 69-25-51. A copy of the decision of the hearing committee shall be delivered to the accused by certified mail.
SECTION 3. Section 69-25-57, Mississippi Code of 1972, is amended as follows:
69-25-57. The Commissioner of Agriculture and Commerce shall have jurisdiction over all persons and property necessary to administer and enforce the provisions of this article and he may adopt rules and regulations to implement the provisions of this article. * * *
SECTION 4. Section 69-25-59, Mississippi Code of 1972, is amended as follows:
69-25-59. (1) Any individual aggrieved by a final decision of the hearing committee shall be entitled to judicial review.
(2) An appeal from the * * * decision of the hearing committee shall be made by filing a written notice of appeal with the circuit court clerk of the county where the accused resides, or in the case of a nonresident accused, in the Circuit Court of the First Judicial District of Hinds County * * *. The notice of
appeal and the payment of costs must be filed and paid with the circuit clerk, within thirty (30) days of the entry of the order being appealed. The appeal shall otherwise be conducted in accordance with existing laws and rules.
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(3) Any party aggrieved by the action of the circuit court may appeal to the Mississippi Supreme Court in the manner provided by law and rules.
SECTION 5. Section 69-25-61, Mississippi Code of 1972, is amended as follows:
69-25-61. (1) When a violation occurs, or is about to occur, that presents and clear and present danger to the public health, safety or welfare and requires immediate action, the commissioner, department field inspectors, or any person authorized by the commissioner, may issue an order to be effective immediately, prior to notice and a hearing, that imposes any or all of the following penalties against the accused:
(a) A stop sale order for any pesticide, plant or other material regulated by the department that is mislabeled or otherwise not in compliance with applicable law or regulations.
(b) Require the accused to relabel any pesticide, plant or other material regulated by the department that is mislabeled.
(c) Seize any pesticide, plant or other material regulated by the department and sell, destroy or otherwise dispose of such material and apply the proceeds of such sale to the state's expenses and any fees or penalties levied.
(d) Refuse to register, or cancel or suspend the registration of a pesticide, plant or other material that is not in compliance with any applicable law or regulation.
The order shall be served upon the accused in the same manner that the summons and complaint may be served upon him, except that, in the alternative, it may be served by giving a copy of the order to the attendant or clerk at the accused's establishment. The accused shall then have thirty (30) days after service of the order to request an informal administrative review before the Director of the Bureau of Plant Industry, or his designee, who shall act as reviewing officer. If the accused requests a review within thirty (30) days, the reviewing officer shall conduct an informal administrative review within ten (10) days after the request is made. If the accused does not request an informal administrative review within thirty (30) days, then he is deemed to have waived his right to a 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 or oral statements. 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 request a full evidentiary hearing before the hearing committee in accordance with the procedures in Sections 69-25-51 and 69-25-53. The request for an evidentiary hearing must be made with the department within thirty (30) days of receipt of the decision of the reviewing officer. Failure to request an evidentiary hearing within the thirty (30) days is deemed a waiver of such right. If either party is aggrieved by the decision of the hearing committee, he shall have the right of judicial review in circuit court and in the Supreme Court as provided in Section 69-25-59.
SECTION 6. Section 69-25-63, Mississippi Code of 1972, is amended as follows:
69-25-63. * * * When any penalty assessed by the hearing officer or committee * * * is not paid, * * * the department may file suit in a court of competent jurisdiction for the purpose of reducing the order of the hearing officer or committee to judgment, and if successful on the merits, the department shall be entitled to an award for reasonable attorney's fees and * * * court costs.
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SECTION 7. Section 69-19-15, Mississippi Code of 1972, is amended as follows:
69-19-15. (1) (a) Any person violating * * * this chapter or the rules and regulations issued under this chapter is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), by imprisonment for not more than one (1) year, or by both such fine and imprisonment at the discretion of the court having jurisdiction.
(b) Each violation and each day's violation shall constitute a separate offense.
(c) Any person violating * * * this chapter or the rules and regulations issued under this chapter in such a way that causes harm or poses a threat to man, animals or the environment is guilty of a felony and, upon conviction, shall be punished by a fine of not more than Twenty-five Thousand Dollars ($25,000.00) or by imprisonment in the State Penitentiary for a term of not more than twenty (20) years or by both such fine and imprisonment for each violation.
(2) Each violation of this chapter or the applicable rules and regulations * * * shall subject the violator to administrative action as provided for in Sections 69-25-51 through 69-25-63.
SECTION 8. Section 69-21-5, Mississippi Code of 1972, is amended as follows:
69-21-5. For purposes of this article, the following terms shall have the meanings ascribed to them in this section:
(a) * * * "Commissioner" means Commissioner of Agriculture and Commerce.
(b) "Department" means the Department of Agriculture and Commerce.
(c) * * * "Hormone-type herbicide" means any substance or mixture of substances producing a physiological change in the plant tissue without burning, intended for preventing, destroying, repelling or mitigating any weed.
SECTION 9. Section 69-21-7, Mississippi Code of 1972, is amended as follows:
69-21-7. (1) The department shall regulate the application of hormone-type herbicides by aircraft within the state.
(2) No person, firm or corporation shall apply hormone-type herbicides by aircraft within this state at any time without a license issued by the commissioner through his agent, the State Entomologist. Application for a license shall be made to the commissioner through his agent, the State Entomologist at Mississippi State University * * *, Starkville, Mississippi. Each application for a license shall contain information regarding the applicant's qualifications and proposed operations and other relevant matters as required pursuant to regulations promulgated by the commissioner.
(3) The commissioner may require the applicant to show, upon examination, that he possesses adequate knowledge concerning the proper use and application of herbicides and the dangers involved and precautions to be taken in connection with their application. If the applicant is other than an individual, the applicant shall designate an officer, member or technician of the organization to take the examination. The designee is subject to the approval of the commissioner. If the extent of the applicant's operations warrant it, the commissioner may require more than one (1) officer, member or technician to take the examination.
(4) If the commissioner finds the applicant qualified, he shall issue a license, for such period as the commissioner may by regulation prescribe, to perform application of herbicides within this state. The license may restrict the applicant to the use of a certain type or types of equipment or materials if the commissioner finds that the applicant is qualified to use only such type or types. If a license is not issued as applied for, the commissioner shall inform the applicant in writing of the reasons therefor.
SECTION 10. Section 69-21-9, Mississippi Code of 1972, is amended as follows:
69-21-9. * * * A person may be the subject of administrative action under Sections 69-25-51 through 69-25-63 when he is no longer qualified to apply hormone-type herbicides by aircraft, has engaged in fraudulent business practices in the application of herbicides, * * * has made any application in a faulty, careless, or negligent manner, or has violated any of the provisions of this article or applicable regulations * * *.
SECTION 11. Section 69-21-13, Mississippi Code of 1972, is amended as follows:
69-21-13. The commissioner shall require each person, firm, association or corporation who is granted a permit to use aircraft in the application of "hormone-type herbicides" to furnish to, and file with, the * * * commissioner a fidelity bond, insurance policy, or other security satisfactory to the commissioner, conditioned that the principal therein named shall pay for * * * all damages suffered by any person, firm, association or corporation, by reason of the negligence of the principal or his or its agents or employees in the conduct of the business authorized by this article, and shall honestly conductthe business and as otherwise conditioned by the commissioner. * * * The bond or other security shall be at least Ten Thousand Dollars ($10,000.00). Any person, firm * * * or corporation having a right of action * * *, against such person, firm, association or corporation, * * * may bring suit against them or any of them for any damages caused by their negligence in the conduct of the business authorized hereunder * * *.
If the surety * * * becomes unsatisfactory, the applicant shall execute a new bond and if he fails to do so, it shall be the duty of the commissioner to cancel his license and give him notice of the cancellation. After the cancellation of the license, it is unlawful * * * for the person to engage in * * * business without obtaining a new license.
SECTION 12. Section 69-21-25, Mississippi Code of 1972, is amended as follows:
69-21-25. To carry * * * out the provisions of this article the commissioner or his employees may enter upon any public or private premises at reasonable times in order to have access for the purpose of inspecting any equipment, herbicide, records, aircraft or other object subject to this article.
SECTION 13. Section 69-23-7, Mississippi Code of 1972, is amended as follows:
69-23-7. (1) Every pesticide which is distributed, sold or offered for sale within this state or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside this state shall be registered in the office of the commissioner, and such registration shall be renewed annually. * * * Products which have the same formula, are manufactured by the same person, the labeling of which contains the same claims, and the labels * * * bear a designation identifying the products as the same pesticide, may be registered as a single pesticide. * * * Additional names and labels shall be added by supplement statements during the current period of registration. The registrant shall file with the commissioner a statement including:
(a) The name and address of the registrant and the name and address of the person whose name will appear on the label if other than the registrant;
(b) The name of the pesticide;
(c) A complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for it, including directions for use and the use classification as provided for in FIFRA;
(d) If requested by the commissioner, a full description of the tests made and the results * * * upon which the claims are based. In the case of renewal of registration, a statement shall be required only for information which is different from that furnished when the pesticide was registered or last reregistered; and
(e) Any other information required by the commissioner which may be prescribed by regulation.
(2) The registrant shall pay an annual fee of Two Hundred Dollars ($200.00) for each brand or grade of pesticide registered. All of the fees collected under * * * this section shall be deposited in a special fund in the Treasury of the State of Mississippi and subject to appropriation by the Mississippi Legislature. The fees shall be used by the Mississippi Department of Agriculture and Commerce for enforcement of this chapter. The Department of Agriculture and Commerce may contract with the Department of Environmental Quality for a groundwater monitoring program.
(3) The commissioner, whenever he deems it necessary in the administration of this chapter, may require the submission of the complete formula of any pesticide. If it appears to the commissioner that the composition of the articles * * * warrants the proposed claims for it, and if the article and its labeling and other material required to be submitted comply with the requirements of Section 69-23-5, he shall register the article, if the article is registered under FIFRA. If the state is certified by the administrator of EPA to register pesticides pursuant to Section 24(c) of FIFRA, the commissioner may register the article to meet special local needs if he determines that the registration will not be in violation of FIFRA.
(4) If it does not appear to the commissioner that the article * * * warrants the proposed claims for it or if the article and its labeling and other material required to be submitted do not comply with the provisions of this chapter, * * * the commissioner may refuse to register the article * * *. In order to protect the public, the commissioner * * * may, at any time, cancel or suspend the registration of a pesticide if he determines that it does not comply with this chapter or creates an imminent hazard. * * * If he receives a notice from the Commission on Environmental Quality under Section 49-17-26 in relation to state underground water quality standards, he may order the relabeling of any pesticide, or suspend or cancel the registration of any pesticide or any use of any pesticide, or adopt a regulation in accordance with Section 69-23-9 to protect the underground water resources, as defined in the Federal Safe Drinking Water Act * * *. He may advise EPA of the manner in which a federally registered pesticide fails to comply with FIFRA and suggest the necessary corrections. Regulatory action taken under this subsection shall be conducted in accordance with Sections 69-25-51 through 69-25-63.
(5) Notwithstanding any other provision of this chapter, registration is not required in case of a pesticide shipped from one plant within this state to another plant within this state operated by the same person.
SECTION 14. Section 69-23-9, Mississippi Code of 1972, is amended as follows:
69-23-9. (1) The commissioner is authorized * * *:
(a) To declare as a pest any form of plant or animal life or virus which is injurious to plants, man, domestic animals, articles or substances;
(b) To determine whether pesticides registered under authority of Section 24(c) of FIFRA are highly toxic to man as described in federal regulations;
(c) To determine standards of coloring or discoloring for pesticides and to subject pesticides to the requirements of Section 69-23-5(1).
(2) The commissioner may adopt, amend or repeal rules and regulations for carrying out the provisions of this chapter, including, but not limited to, rules and regulations providing for the collection and examination of samples; the safe handling, transportation, storage, display, distribution and disposal of pesticides and their containers; protecting the environment; labeling and adopting state restricted pesticide uses.
(3) In order to avoid confusion endangering the public health resulting from diverse requirements, particularly as to the labeling and coloring of pesticides, and to avoid increased costs to the people of this state due to the necessity of complying with such diverse requirements in the manufacture and sale of such pesticides, it is desirable that there should be uniformity between the requirements of the several states and the federal government relating to such pesticides. To this end the commissioner is authorized * * * to adopt * * * such regulations, applicable to and in conformity with the primary standards established by this chapter, as have been or may be prescribed by the United States government for pesticides.
(4) No action taken by the commissioner under * * * this section shall be effective unless and until such action is approved by the advisory board created under * * * Section 69-25-3, Mississippi Code of 1972.
SECTION 15. Section 69-23-11, Mississippi Code of 1972, is amended as follows:
69-23-11. (1) The commissioner or his employees, with proper identification and during normal working hours, shall have free access to all places of business, factories, buildings, carriages, cars, stores, warehouses and other places where pesticides are offered for sale or kept for sale or distribution or use and application, and shall have authority to inspect or open any container of pesticide and to take * * * a sample for the purpose of examination and analysis. It shall be the duty of the commissioner to take such samples and deliver them to the State Chemist for examination and analysis.
(2) It shall be the duty of the State Chemist to cause as many analyses to be made of samples delivered to him by the commissioner as may be necessary to properly carry into effect the intent of this chapter. He shall make reports of such analysis to the commissioner and to the manufacturer, firm or person responsible for placing on the market the pesticide represented by the samples.
(3) If it * * * appears that any pesticide fails to comply with the provisions of this chapter, or if provisions of this chapter are violated, the commissioner may proceed with appropriate action as provided in this chapter or under the administrative hearing procedures provided in Section 69-25-51 et seq. If, in the opinion of the commissioner, it * * * appears that the provisions of the chapter have been violated, the commissioner may refer the facts to the county attorney, district attorney or Attorney General. * * *
(4) It shall be the duty of each county attorney, district attorney or Attorney General to whom any such violation is reported to cause appropriate proceedings to be instituted and prosecuted in the appropriate court without delay.
(5) The commissioner shall, by publication in such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this chapter.
SECTION 16. Section 69-23-21, Mississippi Code of 1972, is amended as follows:
69-23-21. (1) Any pesticide that is distributed, sold or offered for sale within this state or delivered for transportation or transported to intrastate commerce or between points within this state through any point outside this state shall be liable to be proceeded against in any circuit court in any county of the state where it may be found and seized for confiscation * * * and condemnation:
(a) If it is adulterated or misbranded;
(b) If it has not been registered under the provisions of Section 69-23-7;
(c) If it fails to bear on its label the information required by this chapter;
(d) If it is a white power pesticide and is not colored as required under this chapter.
(2) If the article is condemned, it shall, after entry of decree, be disposed of by destruction or sale, as the court may direct, and the proceeds, if such article is sold, less legal costs, shall be paid to the commissioner for transmission to the General Funds of the State Treasury * * *.
(3) When a decree of condemnation is entered against the article, court costs and fees and storage and other proper expenses shall be awarded against the person shown to be the claimant of the article.
(4) The remedy in this section is supplemental to and not in replacement of the remedies under Sections 69-25-51 through 69-25-63.
SECTION 17. Section 69-23-23, Mississippi Code of 1972, is amended as follows:
69-23-23. (1) Any nonresident individual, partnership, association, firm, or corporation desiring to distribute, sell, or offer for sale within this state any product described in this chapter, and any such nonresident who may be subject otherwise to the provisions of such chapter, shall file a written power of attorney designating the Secretary of State as the agent of such nonresident upon whom service of process may be had in the event of any suit against said nonresident individual, partnership, firm, association, or corporation; and such power of attorney shall be so prepared in such form as to render effective the jurisdiction of the courts of Mississippi over such nonresident applicants and make such applicants amenable to the jurisdiction of the courts of this state. Provided, however, that any such nonresident who has a duly appointed resident agent upon whom process may be served as provided by law shall not be required to designate the Secretary of State as such agent. The Secretary of State shall be allowed such fees therefor as provided by law for designating resident agents. The commissioner shall be furnished with a copy of such designation of the Secretary of State or of a resident agent, such copy to be duly certified by the Secretary of State.
(2) The commissioner may also require such nonresident subject to the provisions of this chapter to furnish to him a fidelity bond or other security satisfactory to him and conditioned that the principal therein named shall pay for any and all damages suffered by any person by reason of the negligence of the principal or his or its agents in the conduct of said business and shall honestly conduct said business and as otherwise conditioned by said commissioner, provided that in no case shall a bond or other security less than Ten Thousand Dollars ($10,000.00) be required. A copy of said bond duly certified by the commissioner shall be received as evidence in all courts of this state without further proof. Any person having a right of action against such person, firm, association or corporation may bring suit against the principal and sureties on such bond. Should the surety furnished become unsatisfactory, said applicant shall execute a new bond and should he fail to do so, it shall be the duty of the commissioner to cancel his license and give him notice of said fact, and it shall be unlawful thereafter for such person to engage in said business without obtaining a new license.
SECTION 18. Section 69-23-27, Mississippi Code of 1972, is amended as follows:
69-23-27. (1) It is unlawful for any person to act as a licensed pesticide dealer without being licensed by the commissioner. A license shall be required for each location or outlet located within this state from which such pesticides are distributed. Any dealer who has no pesticide outlet licensed within this state and who distributes such pesticides directly into this state shall obtain a pesticide dealer license for his principal out-of-state location or outlet.
(2) Application for a license shall be submitted on a form prescribed by the commissioner, and shall include the name and address of the applicant, the name of the pesticide dealer manager, the address of each outlet, the name of the resident agent if the dealer is not a resident of this state, and any other information required by the commissioner.
(3) * * * This section shall not apply to (a) a licensed pesticide applicator who sells pesticides only as an integral part of his pesticide application service where such pesticides are applied by the commercial applicator; or (b) any federal, state, county or municipal agency which provides pesticides only for its own programs.
(4) The commissioner may set standards and qualifications for licensing of pesticide dealers and dealer managers to determine their competency.
(5) Licenses for pesticide dealers will expire on December 31 of each year and must be renewed annually.
(6) The commissioner may prescribe rules and regulations pertaining to licensing of pesticide dealers, including but not limited to record keeping, and may at any time cancel, suspend or revoke a pesticide dealer license when he finds there has been a failure or refusal to comply with the provisions of this chapter or regulations adopted hereunder. The regulatory action authorized in this subsection shall be governed by Sections 69-25-51 through 69-25-63.
SECTION 19. Section 69-23-29, Mississippi Code of 1972, is amended as follows:
69-23-29. (1) (a) Any person violating any of the provisions of this chapter or the rules and regulations issued under this chapter is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than one (1) year or by both such fine and imprisonment at the discretion of the court having jurisdiction.
(b) Each violation and each day's violation for continuing acts, shall constitute a separate offense.
(c) Any person violating any of the provisions of this chapter or the rules and regulations issued under this chapter in such a way that causes harm or poses a threat to man, animals or the environment is guilty of a felony and, upon conviction, shall be punished by a fine of not more than Twenty-Five Thousand Dollars ($25,000.00) or by imprisonment in the State Penitentiary for a term of not more than twenty (20) years or by both such fine and imprisonment for each violation.
(2) Each violation of this chapter or the applicable rules and regulations * * * shall subject the violator to administrative action as provided for in Sections 69-25-51 through 69-25-63.
SECTION 20. Section 69-23-101, Mississippi Code of 1972, is amended as follows:
69-23-101. Sections 69-23-101 through 69-23-135 may be known as the "Mississippi Pesticide Application Law of 1975."
SECTION 21. Section 69-23-103, Mississippi Code of 1972, is amended as follows:
69-23-103. Sections 69-23-101 through 69-23-135 shall be administered by the Commissioner of the Mississippi Department of Agriculture and Commerce, or his agent, herein referred to as the "commissioner."
SECTION 22. Section 69-23-105, Mississippi Code of 1972, is amended as follows:
69-23-105. The purpose of Sections 69-23-101 through 69-23-135 is to provide a means for the state certification of applicators of restricted use pesticides required under the Federal Insecticide, Fungicide and Rodenticide Act, and to regulate in the public interest the use and application of such pesticides, except as such application is regulated under Sections 69-19-1 through 69-19-15, 69-21-1 through 69-21-27, or 69-21-101 through 69-21-141, and to designate the Mississippi Department of Agriculture and Commerce as the agency responsible for administering a plan for certification of applicators of restricted use pesticides and to cooperate with the United States Environmental Protection Agency as provided for in the Federal Insecticide, Fungicide and Rodenticide Act, and for other purposes.
SECTION 23. Section 69-23-107, Mississippi Code of 1972, is amended as follows:
69-23-107. When used in the context of Sections 69-23-101 through 69-23-135, the following terms shall be ascribed the following meanings:
(a) "Commissioner" means the Commissioner of Agriculture and Commerce of the State of Mississippi.
(b) "Certification" means the recognition by a state that a person is competent and thus authorized to use or supervise the use of restricted use pesticides.
(c) "Certified applicator" means any person who is certified to use or supervise the use of any restricted use pesticide covered by this certification.
(d) "Commercial applicator" means a certified applicator (whether or not he is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by the definition of "private applicator."
(e) "Division" means the Bureau of Plant Industry within the Regulatory Office of the Mississippi Department of Agriculture and Commerce.
(f) "Division of Plant Industry" means the Bureau of Plant Industry within the Regulatory Office of the Mississippi Department of Agriculture and Commerce.
(g) "EPA" means the United States Environmental Protection Agency.
(h) "FIFRA" means the Federal Insecticide, Fungicide and Rodenticide Act, as amended.
(i) "License" means a license, certificate or permit.
(j) "Person" means any individual, partnership, association, corporation or organized group of persons, whether incorporated or not.
(k) "Pest" means:
(i) Any insects, rodents, nematodes, fungi, weeds; and
(ii) Other forms of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria or other microorganism on or in living man or other living animals) which the commissioner declares to be a pest.
(l) "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, mitigating or attracting any pests; and shall also include adjuvants intended to enhance the effectiveness of pesticides; and any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.
(m) "Private applicator" means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned, rented or controlled by him or his employer or, if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person, subject to regulations adopted under authority granted by Sections 69-23-101 through 69-23-135.
(n) "Public applicator" means any individual who applies restricted use pesticides as an employee of a state agency, municipal corporation, public utility, or other governmental agency. This term does not include employees who work under direct "on-the-job" supervision of a public applicator.
(o) "Restricted use pesticide" means any pesticide classified for restricted use by EPA or by the commissioner.
(p) "State restricted pesticide use" means any pesticide use which, when used as directed or in accordance with a widespread and commonly recognized practice, the commissioner determines subsequent to a hearing, requires additional restrictions for that use to protect the environment including man, lands, beneficial insects, animals, crops and wildlife, other than pests.
(q) "Under the direct supervision of a certified applicator" means, unless otherwise prescribed by its labeling, a pesticide which is to be applied by a competent person acting under the instructions and control of a certified applicator who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.
(r) "Unreasonable adverse effects on the environment" means any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide.
(s) Words and terms as defined in Sections 69-19-1 through 69-19-15, 69-21-1 through 69-21-27, 69-21-101 through 69-21-141, and 69-23-1 through 69-23-29, when used in Sections 69-23-101 through 69-23-135 shall have the same meaning ascribed therein.
SECTION 24. Section 69-23-109, Mississippi Code of 1972, is amended as follows:
69-23-109. (1) The commissioner may adopt regulations to carry out the provisions of Sections 69-23-1 through 69-23-135.
(2) In adopting regulations, the commissioner shall give consideration to pertinent research findings and recommendations of other agencies of this state or federal government. The commissioner shall report to the Legislature on or before February 1 of each year any regulation promulgated under this section which is more restrictive than applicable federal regulations.
(3) Regulations promulgated by the commissioner under * * * Sections 69-23-1 through 69-23-135 shall not be effective until approved by the advisory board created under * * * Section 69-25-3.
(4) In order to eliminate inequitable application or establishment of opposing regulations, the authority to regulate any matter pertaining to the registration, sale, handling, distribution, notification of use, application and use of pesticides shall vest solely in the Commissioner of Agriculture and Commerce, except where other state agencies, including the Agricultural Aviation Board, exercise such regulatory authority under state law.
SECTION 25. Section 69-23-111, Mississippi Code of 1972, is amended as follows:
69-23-111. (1) After October 21, 1976, it is unlawful for any person to engage in the application or use of any pesticide which is restricted by EPA or the commissioner, except as provided for and defined in Sections 69-19-1 through 69-19-15, 69-21-1 through 69-21-27, 69-21-101 through 69-21-141, and 69-23-1 through 69-23-29, without being certified or licensed by the commissioner.
(2) The commissioner may classify licenses or permits to be issued under Sections 69-23-101 through 69-23-135. Separate classifications and subclassifications may be specified by the commissioner in conformity with FIFRA. Each classification may be subject to separate requirements of testing procedures.
(3) Application for license shall be made on a form provided by the commissioner and shall contain information regarding the applicant's qualifications, proposed operations, and license classification or classifications as prescribed by regulations.
(4) The commissioner shall require each applicant for a certified applicator's license to demonstrate competency by a written or oral examination, or such other equivalent procedure as may be adopted by the commissioner by regulation, that he possesses adequate knowledge with respect to the proper use and application of pesticides in the particular categories or classification for which application for license is made. The commissioner may cooperate with other state, federal and private agencies in preparing, administering and evaluating examinations or other equivalent procedures, including training, for determining competency of certified applicators, and shall consider and be guided by certification requirements set forth by EPA.
(5) If the commissioner finds the applicant qualified in the classification for which he has applied, he shall issue a certified applicator's license limited to that classification. Expiration dates of licenses may be established by regulation, unless revoked, suspended, denied, cancelled or modified prior thereto by the commissioner for cause as hereinafter provided.
SECTION 26. Section 69-23-113, Mississippi Code of 1972, is amended as follows:
69-23-113. Any nonresident commercial applicator applying for a license under Sections 69-23-101 through 69-23-135 to operate in the state shall file a written power of attorney designating the Secretary of State as the agent of such nonresident upon whom service of process may be had in the event of any suit against the nonresident person, and such power of attorney shall be prepared and in such form as to render effective the jurisdiction of the courts of this state over such nonresident applicant. * * * Any * * * nonresident who has a duly appointed resident agent upon whom process may be served as provided by law shall not be required to designate the Secretary of State as such agent. The Secretary of State shall be allowed such fees therefor as provided by law for designating resident agents. The commissioner shall be furnished with a copy of such designation of the Secretary of State or of a resident agent, such copy to be duly certified by the Secretary of State.
SECTION 27. Section 69-23-115, Mississippi Code of 1972, is amended as follows:
69-23-115. It is unlawful for a person to: * * *
(a) Make false or fraudulent claims through any media misrepresenting the effect of materials or methods to be used;
(b) Conduct pest control operations in a faulty, careless or negligent manner or to * * * operate faulty or unsafe pest control equipment * * *;
(c) * * * Fail to comply with the provisions of Sections 69-23-101 through 69-23-135, or the regulations adopted hereunder * * *;
(d) * * * Fail to keep and maintain records required by Sections 69-23-101 through 69-23-135 or to make reports when required;
(e) Make false or fraudulent records, invoices or reports;
(f) Use fraud or misrepresentation in making application for a license or renewal for a license;
(g) Aid or abet any person in evading the provisions of Sections 69-23-101 through 69-23-135, or allow one's license to be used by another person;
(h) Impersonate any state or federal official;
(i) * * * Commit a violation under FIFRA; * * *
(j) * * * Use any restricted use pesticide in a manner which is * * * inconsistent with its labeling; or
(k) Commit any other act or omission specified in the regulations adopted under Sections 69-23-101 through 69-23-135.
* * *
SECTION 28. Section 69-23-117, Mississippi Code of 1972, is amended as follows:
69-23-117. Commercial applicators shall maintain records with respect to the application of pesticides. Such relevant information as the commissioner may deem necessary and the length of time that these records shall be maintained may be specified by the commissioner, and upon request * * * the licensee shall * * * furnish * * * a copy of such records * * *.
SECTION 29. Section 69-23-119, Mississippi Code of 1972, is amended as follows:
69-23-119. (1) Any person duly licensed and certified under Sections 69-19-1 through 69-19-15, 69-21-1 through 69-21-27, or 69-21-101 through 69-21-141, is exempted from the licensing provisions of Sections 69-23-101 through 69-23-135.
(2) The commissioner may exempt such other persons as may be exempted by federal regulations.
(3) The commissioner may exempt public applicators from the requirements of Sections 69-23-113 and 69-23-117.
SECTION 30. Section 69-23-121, Mississippi Code of 1972, is amended as follows:
69-23-121. The Mississippi Cooperative Extension Service shall conduct courses of instruction and training for the purpose of carrying out the provisions of Sections 69-23-101 through 69-23-135.
SECTION 31. Section 69-23-123, Mississippi Code of 1972, is amended as follows:
69-23-123. The commissioner may cooperate with or enter into formal cooperative agreements with any public or private agency or educational institution of this state or any other state or federal agency for the purpose of carrying out the provisions of Sections 69-23-101 through 69-23-135, to encourage training of certified applicators and securing uniformity of regulations.
SECTION 32. Section 69-23-125, Mississippi Code of 1972, is amended as follows:
69-23-125. The commissioner shall enforce the provisions of Sections 69-23-101 through 69-23-135. The commissioner or his representative may enter upon public or private premises at reasonable times for the purpose of enforcing said sections, and may investigate complaints of injury or accidents resulting from use of restricted use pesticides.
SECTION 33. Section 69-23-127, Mississippi Code of 1972, is amended as follows:
69-23-127. The commissioner may obtain an injunction to enjoin the violation of Sections 69-23-101 through 69-23-135 or any regulations issued under those sections in the chancery court of the county in which the violation occurs.
SECTION 34. Section 69-23-133, Mississippi Code of 1972, is amended as follows:
69-23-133. The commissioner shall appoint an advisory committee, and by regulation establish the composition of the committee to include representatives from the agriculture, agribusiness and related industries.
The purpose of the committee shall be to advise and assist the commissioner in developing regulations and plans for implementing the provisions of Sections 69-23-101 through 69-23-135 and a pesticide regulatory program to meet the requirements of FIFRA.
SECTION 35. Section 69-23-135, Mississippi Code of 1972, is amended as follows:
69-23-135. (1) (a) Any person violating any of the provisions of this chapter or the rules and regulations issued under this chapter at a minimum is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than one (1) year or by both such fine and imprisonment at the discretion of the court having jurisdiction.
(b) Each violation and each day's violation for continuing acts shall constitute a separate offense.
(c) Any person violating any of the provisions of this chapter or the rules and regulations issued under this chapter in such a way that causes harm or poses a threat to man, animals or the environment is guilty of a felony and, upon conviction, shall be punished by a fine of not more than Twenty-Five Thousand Dollars ($25,000.00) or by imprisonment in the State Penitentiary for a term of not more than twenty (20) years or by both such fine and imprisonment for each violation.
(2) Each violation of this chapter or the rules and regulations issued under this chapter shall subject the violator to administrative action as provided for in Sections 69-25-51 through 69-25-63.
SECTION 36. Section 69-25-55, Mississippi Code of 1972, which provides that the failure to request a timely hearing constitutes a waiver or the right to a hearing is repealed.
SECTION 37. Section 69-25-65, Mississippi Code of 1972, which provides that the administrative hearing procedure shall not apply to aerial applicators of pesticides is repealed.
SECTION 38. This act shall take effect and be in force from and after July 1, 2005.