MISSISSIPPI LEGISLATURE

2013 Regular Session

To: Agriculture

By: Representative Sullivan

House Bill 751

AN ACT TO AMEND SECTION 69-3-6, MISSISSIPPI CODE OF 1972, TO REMOVE THE NOTARIZATION REQUIREMENT FOR QUARTERLY REPORTS TO BE PROVIDED TO THE DEPARTMENT OF AGRICULTURE AND COMMERCE ON THE TOTAL POUNDAGE OF ALL SEED SALES DURING THE QUARTER; TO AMEND SECTION 69-3-25, MISSISSIPPI CODE OF 1972, TO INCREASE THE PENALTY IMPOSED FOR VIOLATIONS OF THE SEED LAW; TO AMEND SECTION 69-3-29, MISSISSIPPI CODE OF 1972, TO REVISE THE ADMINISTRATIVE HEARING PROCEDURES FOR VIOLATIONS OF THE LAW TO ADHERE TO THE PROVISIONS FOR ADMINISTRATIVE HEARINGS CONDUCTED BY THE BUREAU OF PLANT INDUSTRY; TO AMEND SECTION 69-25-51, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISION; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 69-3-6, Mississippi Code of 1972, is amended as follows:

     69-3-6.  (1)  The department may establish seed inspection fees, prescribe and furnish forms, and require the filing of reports necessary for the payment of the inspection fees.  The department may inspect the record of any seedsman during the normal hours of business operation as it deems necessary.

     (2)  All fees collected under this section shall be deposited into a special fund in the State Treasury.  The department may expend the monies in the fund by an annual appropriation approved by the Legislature for the support of the Seed Division of the Bureau of Plant Industry.

     (3)  Every seedsman who sells or distributes seed for sale, whether in bulk or in containers, within or into Mississippi for planting purposes, shall be assessed a seed inspection fee as required by the department.

     (4)  Every seedsman must:

          (a)  Pay an inspection fee on the total number of pounds of seed sold or otherwise distributed for sale within or into the state.  Payment of the seed inspection fees shall be the responsibility of the seedsman initiating the first sale of seed within or into the state;

          (b)  Maintain records, as required by the department, that accurately reflect the total pounds of seed subject to the fees that are handled, sold or offered, or distributed for sale;

          (c)  File quarterly * * * notarizedreports on forms provided or approved by the department, covering the total pounds of all sales of seed subject to the fee and sold during the preceding quarter.  The reports and fees due shall be filed with the department no later than thirty (30) days following the end of each calendar quarter.

     (5)  A seedsman who does not file the quarterly report by the due date shall pay a penalty fee as provided by the regulations of the department.  The penalty fee shall be waived if the seedsman obtains prior written approval from the department for a late filing and complies with the late filing requirements.

     (6)  If a seedsman does not comply with all the requirements of this section, the commissioner may suspend the seedsman's permit until the seedsman is in compliance.

     SECTION 2.  Section 69-3-25, Mississippi Code of 1972, is amended as follows:

     69-3-25.  Any person who * * * knowingly, or as a result either of gross negligence or of a failure to make a reasonable effort to inform himself of the pertinent facts,violates any provision of this * * * act article or the rules and regulations made and promulgated thereunder shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall pay a fine of not * * * less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00).  Nothing in this act shall be construed as requiring the Commissioner to recommend prosecution for minor violations of this act or the rules and regulations made and promulgated thereunder whenever he believes that the public interest will be adequately served by suitable written notice or warningmore than One Thousand Dollars ($1,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment.

     SECTION 3.  Section 69-3-29, Mississippi Code of 1972, is amended as follows:

     69-3-29.  * * *

(1) When a written complaint is made against a person for violation of this article, or any of the rules or regulations, the commissioner, or his designee, shall conduct a full evidentiary hearing.  The complaint shall be in writing and shall be filed in the office of the department.  The commissioner shall serve the accused with a copy of the complaint and a summons by any of the methods set forth in Rule 4 of the Mississippi Rules of Civil Procedure or by certified mail.  Within thirty (30) days after receipt of the summons and a copy of the complaint, the accused shall file a written answer with the department.  Upon receipt of the written answer of the accused, the matter shall be set for hearing before the commissioner within a reasonable time.  If the accused fails to file an answer within the thirty (30) days, the commissioner 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 the 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 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 which is not labeled in accordance with 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 the sale to the costs and 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 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 record transcribed and file 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 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)  When any violation of this article, or the rules and regulations 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 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 the sale to the cost 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 a timely request, 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 the thirty (30) days, 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 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.  The 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.Whenever it has been alleged that any person or other entity has violated any of the provisions of this article, or any of the rules or regulations promulgated hereunder, the matter shall be conducted as an administrative proceeding under the terms and conditions of Sections 69-25-51 through 69-25-63, and where found culpable, such person or other entity shall be subject to the administrative and civil penalties provided therein.

     ( * * *52)  The procedures described herein shall not apply to seed arbitration claims which are described in Sections * * * 69‑3‑1969-3-20 through 69-3-22, as such claims shall be governed by the procedures set forth in * * * thatthose statutes.

     SECTION 4.  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 69-3-1 through 69-3-29, Sections 69-19-1 through 69-19-15, Sections 69-21-101 through 69-21-128, Sections 69-23-1 through 69-23-135, Sections 69-25-1 through 69-25-47 or Sections 69-25-101 through 69-25-109, 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 the material and apply the proceeds of the sale to the state's expenses and any fees or penalties levied under this article.

          (f)  Refuse to register, 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.

     In determining the amount of the penalty, the reviewing officer shall consider the appropriateness of the 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.

     SECTION 5.  This act shall take effect and be in force from and after July 1, 2013.

---