SB2479_H_Cmte_Amend

SECTION 1. The following shall be codified as Section 75-46-1, Mississippi Code of 1972:

75-46-1. This chapter shall be known as the "Mississippi Grain Indemnity Act."

SECTION 2. The following shall be codified as Section 75-46-3, Mississippi Code of 1972:

75-46-3. As used in this act, the following terms shall have the meaning ascribed in this section, unless the context clearly requires otherwise:

(a) "Board" means the Mississippi Grain Indemnity Trust Fund Board.

(b) "Claimant" means a producer who:

(i) Has suffered either a "contract loss" or

"storage loss" as defined herein; and

(ii) Has a claim that has been determined by the board to meet all requirements of this chapter and any rules issued by the board under this chapter.

(d) "Contract loss" means a loss to a claimant when a failed first purchaser licensee has not fully paid the claimant for grain sold to the licensee under any type of contract.

(e) "Department" means the Mississippi Department of Agriculture and Commerce.

(f) "Failed" or "failure" means:

(i) Inability of a first purchaser licensee to satisfy all obligations due to a claimant;

(ii) A declaration of insolvency of a first purchaser licensee by the licensee or by the commissioner;

(iii) Nonpayment of a first purchaser licensee's debts in the ordinary course of business unless there is a good faith dispute regarding the legitimacy of the debt;

(iv) Revocation or suspension of the first purchaser licensee's license by the State of Mississippi or the United States Department of Agriculture, if the licensee has outstanding indebtedness owed to claimants;

(v) Voluntary surrender of a first purchaser licensee's license to the State of Mississippi or the United States Department of Agriculture, if the licensee has outstanding indebtedness owed to claimants; or

(vi) Insolvency, or nonvoluntary or voluntary bankruptcy of a first purchaser licensee.

(g) "First purchaser licensee" means an entity that is the first entity to purchase grain or is paid to store grain produced in Mississippi from producers and is:

(i) Licensed by the State of Mississippi to store grain under Chapter 44, Title 75, Mississippi Code of 1972;

(ii) Licensed by the State of Mississippi to act as a grain dealer under Chapter 45, Title 75, Mississippi Code of 1972; or

(iii) Licensed by the United States under the United States Warehouse Act to store grain.

(h) "Fund" means the Mississippi Grain Indemnity Trust Fund.

(i) "Grain" means whole kernel corn for all purposes, grain sorghum, oats, soybeans and wheat. Grain does not include sweet corn, popcorn and any other corn for human consumption.

(j) "Mississippi Grain Indemnity Trust Fund" means the fund established as provided in this chapter.

(k) "Mississippi Grain Indemnity Trust Fund Board" means the board established under Section 75-46-5.

(l) "Person" means a natural person, trust, partnership, corporation or any other business entity.

(m) "Producer" means a person that is:

(i) An owner of land, a tenant on a farm, or an operator of a farm; and

(ii) Receives from a first purchaser licensee proceeds from the sale of grain produced by the owner, tenant, or operator.

(n) "Storage loss" means a loss to a claimant when a failed first purchaser licensee has not fully satisfied the licensee's storage obligations to the claimant, less any allowable charges that have not been paid by the claimant.

SECTION 3. The following shall be codified as Section 75-46-5, Mississippi Code of 1972:

75-46-5. (1) (a) There is hereby created the Mississippi Grain Indemnity Board, which is established for the purposes of providing money to pay agricultural producers for contract losses due to a failure of a grain dealer licensed by the State of Mississippi under Chapter 45, Title 75, Mississippi Code of 1972, and for contract and storage losses due to the failure of a grain warehouse operator licensed by the State of Mississippi under Chapter 44, Title 75, Mississippi Code of 1972, or by the United States Department of Agriculture under the United States Warehouse Act. The board shall consist of:

(i) The commissioner who shall be the chairperson of the board;

(ii) Two (2) members selected by the President of the Mississippi Farm Bureau;

(iii) Two (2) members selected by the President of the Delta Council; and

(iv) Two (2) members selected at-large by the commissioner who shall be active Mississippi grain farmers.

(b) Members of the initial board shall be appointed as follows:

(i) The Delta Council shall appoint members for terms of one (1) and three (3) years;

(ii) Mississippi Farm Bureau shall appoint members for two (2) and four (4) years; and

(iii) The commissioner shall appoint members for one (1) and three (3) years.

Following the initial board, subsequent members appointed to the board shall serve a term of four (4) years with staggered expiration dates. Members of the board shall, while serving on business of the board, be entitled to receive as compensation a per diem, as provided by law, in addition to any actual and necessary expenses incurred in the performance of the official duties of the board. The commissioner may call a meeting of the board upon reasonable notice to the board members.

(2) There is created in the State Treasury a special fund to be designated the "Mississippi Grain Indemnity Trust Fund." Funds collected by or appropriated to the board shall be held in trust by the State Treasurer for use and benefit of the board, only to pay claimants and costs for the administration of this chapter. Claimants shall be accorded rights under this act. The fund shall consist of:

(a) Money collected under this chapter;

(b) Interest earned on any money in the fund;

(d) Any bond proceeds or other financial obligation in

favor of the commissioner as provided in Sections 75-44-29 and 75-45-305.

(3) Amounts in the fund may be invested and reinvested at the discretion of the State Treasurer. Interest from these investments shall be deposited in the fund and shall be available for the same purposes as other monies deposited in the fund. The monies in the fund shall not be available for any purpose other than those specified in subsection (2) of this section.

(4) The fund shall operate on a fiscal year basis of July 1 to June 30. The board may accept and expend funds deposited into the fund and funds not expended at the end of the fiscal year shall not lapse into the State General Fund, and any investment earnings or interest earned on such accounts shall be deposited to the credit of the fund.

(5) A producer's decision to participate in the trust fund and program described herein is voluntary.

SECTION 4. The following shall be codified as Section 75-46-7, Mississippi Code of 1972:

75-46-7. (1) The fund shall be administered by the board. All payments made to claimants under this chapter may only be made with board approval, and the board shall provide advice to the commissioner on the day-to-day operation of the fund. The board shall have the authority to contract with a third party to:

(a) Administer payments;

(b) Handle the accounting functions, including, but not limited to, financial reviews or audits, and financial filings or matters; and

(2) The commissioner shall be responsible for the day-to-day operation of the fund including the disbursement of payments approved by the board under subsection (1) of this section. Disbursements are allowed without specific appropriation by the Legislature.

SECTION 5. The following shall be codified as Section 75-46-9, Mississippi Code of 1972:

75-46-9. Beginning on July 1, 2022, producers of grain shall be charged an assessment equal to two-tenths percent (0.2%) of the price on all marketed grain that is sold to a first purchaser licensee.

SECTION 6. The following shall be codified as Section 75-46-11, Mississippi Code of 1972:

75-46-11. Assessments shall be collected by the first purchaser licensee and by any agent or representative of the licensee. The first purchaser licensee shall deduct the assessment from the purchase price of the grain and shall document the amount of the assessment that was deducted on an invoice provided to the producer. The first purchaser licensee shall submit monthly assessments to the department by the twentieth day of the following month.

SECTION 7. The following shall be codified as Section 75-46-13, Mississippi Code of 1972:

75-46-13. (1) Assessments shall be collected when the board has determined and announced that the amount in the fund is less than Eighteen Million Dollars ($18,000,000.00). Assessments shall be required to be collected and submitted until the board determines that the amount in the fund is Twenty Million Dollars ($20,000,000.00).

(2) If the amount in the fund is less than Eighteen Million Dollars ($18,000,000.00) or the board has determined that the failure of a first purchaser licensee will likely result in the issuance of payments to claimants that will reduce the amount in the fund to less than Eighteen Million Dollars ($18,000,000.00) at the end of the current fiscal year, assessments shall be required beginning July 1 of the following fiscal year.

(3) If the amount in the fund exceeds Twenty Million Dollars ($20,000,000.00) at any time during a fiscal year when assessments are being collected, assessments shall continue until the end of such fiscal year without regard to the maximum amount authorized to be in the fund.

SECTION 8. The following shall be codified as Section 75-46-15, Mississippi Code of 1972:

75-46-15. (1) First purchaser licensees shall maintain a ledger of all assessments collected by the licensee that specifies the date of the collection, from whom the assessment was collected, and the amount of the assessment collected.

(2) At the request of the board, first purchaser licensees shall make ledgers and related records available to the commissioner or a designee of the commissioner. The commissioner shall only disclose information obtained from such ledgers and related records to the board, employees of the office of the commissioner, law enforcement officials of the State of Mississippi, law enforcement officials of the United States, as directed by any court order, and as required by the Mississippi Public Records Act of 1983.

SECTION 9. The following shall be codified as Section 75-46-17, Mississippi Code of 1972:

75-46-17. (1) Participation in the fund is voluntary. During any fiscal year in which assessments are collected under this chapter, a producer who does not desire to participate in the fund shall notify the commissioner by the preceding June 1 of such year that the producer has opted out of the fund by submission of a written notification on a form provided by the commissioner. The election to opt-out shall be effective for only one (1) crop year. A producer who opts out of the fund shall not be eligible to receive any payment with respect to grain produced during such crop year for a contract loss or storage loss resulting from the failure of a first purchaser licensee.

(2) A producer who opts out of the fund has the obligation to notify any first purchaser licensee of the election to opt out of the fund and the licensee may require the producer to provide a copy of the form referenced in subsection (1) of this section.

(3) If an assessment is collected by a first purchaser licensee from a producer who has opted out of the fund, the producer may obtain a refund of the amount paid to the commissioner in the manner established by the board.

SECTION 10. The following shall be codified as Section 75-46-19, Mississippi Code of 1972:

75-46-19. The commissioner shall be responsible for determining when a first purchaser licensee has failed. Upon making such a determination, the commissioner shall issue a legal notice in a paper of general circulation once a week for two (2) consecutive weeks in the county in which the first purchaser licensee operates setting forth the name of the failed first purchaser licensee and details on how a producer may file a claim for a payment from the fund. The commissioner shall take any other action the commissioner deems to be appropriate to provide notice to affected producers.

SECTION 11. The following shall be codified as Section 75-46-21, Mississippi Code of 1972:

75-46-21. (1) The commissioner shall issue rules the commissioner determines to be necessary to provide for a simple and timely process to receive and adjudicate claims submitted in response to the failure of a first purchaser licensee. These rules shall include requirements that provide:

(a) A claim must be on a form prescribed by the commissioner;

(b) A claim must be submitted not later than ninety (90) days after the announcement made by the commissioner under Section 75-46-19 of this act;

(c) A copy of any written agreement for the sale of grain to the failed first purchaser licensee by the producer must be included with the submitted form;

(d) For filing of an affidavit under penalty of perjury

setting forth the terms and conditions of any oral contract for the sale of grain to the failed first purchaser licensee by the producer; and

(e) A copy of any warehouse receipt, scale ticket or other similar document showing the delivery of grain by the producer to the failed first purchaser licensee must be included with the claim.

(2) The commissioner may extend the time for filing a claim upon a finding that extenuating circumstances exist that warrant an extension.

SECTION 12. The following shall be codified as Section 75-46-23, Mississippi Code of 1972:

75-46-23. (1) All claims submitted to the commissioner shall be reviewed by commissioner or designees of the commissioner. The commissioner or the designees shall make a preliminary determination regarding the eligibility for payment from the fund. If the preliminary determination provides that less than the full amount of the claimed loss should be paid, the determination shall set forth an explanation of why the lesser amount, if any, should be paid. The preliminary determination shall be provided to the board for a final determination of eligibility for payment from the fund.

(2) The board or the commissioner may request from a claimant additional information it determines necessary to adjudicate the claim and may provide an opportunity for the claimant to provide oral testimony to the board or to a designee of the board.

(3) If a claim is not approved for the full amount, the board shall provide a written explanation to the claimant setting forth the basis for the final determination of the eligible amount of the claim.

(4) Within thirty (30) days of the receipt of the final determination in which a claim has been denied in whole or only partially approved, claimant may file with the board a request for reconsideration of the claim.

(5) A claimant that does not agree with the determination of the board issued after reconsideration of the final determination may seek review of the determination issued by the board after its reconsideration of the final determination by filing an appeal with the circuit court located in the county of the producer's residence. The circuit court shall render a decision based on the administrative record prepared by the commissioner without a trial by jury. The circuit court's decision may then be appealed to the Mississippi Supreme Court. Any such appeal to circuit court or to the Supreme Court shall be in accordance with existing laws and regulations governing such appeals.

(6) (a) The department shall have subpoena power for witnesses to attend hearings and for production of documents for any and all proceedings under the department's jurisdiction. The subpoenas shall be enforced by the chancery court of the residence of the witness.

(b) The department shall have the authority to make application for administrative inspection warrants and administrative search warrants for any and all proceedings under the department's jurisdiction. A judge or any state court of record, or any justice court judge within his jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections for the department. For purposes of the issuance of administrative inspection or search warrants, probable cause exists upon showing a valid public interest in the effective enforcement of matters under the department's jurisdiction. An administrative search warrant shall issue only upon an affidavit of a person having knowledge or information of the facts alleged, sworn to before the judge or justice court judge and establishing that the grounds for the application exist or that there is probable cause to believe they exist. The judge shall issue a warrant identifying the area, premises, building or conveyance to be searched, the purpose of the search, and, if appropriate, the type of property to be searched. When authorized by an administrative inspection or search warrant issued, an officer or employee of the department, upon presenting the warrant and appropriate credentials to the owner, operator, or agent in charge, may enter the premises for the purpose of conducting an administrative inspection.

SECTION 13. The following shall be codified as Section 75-46-25, Mississippi Code of 1972:

75-46-25. (1) Subject to Section 75-46-27, claims for storage losses shall be paid at one hundred percent (100%) of the amount of loss of the claimant less any amount received by the claimant from any other source. The value of the grain subject to the claim shall be the market price of the grain as determined by the board as of the date of failure of the first purchaser licensee. The board may adjust the value of the grain subject to the claim if there is sufficient evidence on a warehouse receipt, scale ticket or other similar document showing the quality of the grain.

(2) (a) Subject to Section 75-46-27, claims for contract losses shall be paid at one hundred percent(100%) of the amount of loss of the claimant less any amount received by the claimant from any other source including the sale of the grain to another entity. The board shall use the purchase price set forth in the contract for sale to determine the amount of loss and if purchase price is not clearly set forth in the contract, the board shall establish the price of grain to be used to determine the amount of the loss taking into account normal marketing practices in the area in which the first purchaser licensee conducted business.

(b) A claim for a contract loss shall not be approved by the board if the claimant engaged in conduct or practices that differ from generally accepted marketing practices within the grain industry to an extent the claimant's actions have substantially contributed to the claimant's loss.

claim for payment from the fund for any loss associated with a grain warehouse owned in whole or in part by the licensee or an entity that is a grain dealer owned in whole or in part by the licensee.

(d) Payments from the fund shall be available for storage and contract losses incurred with respect to crops produced in the 2022 and subsequent crop years.

SECTION 14. The following shall be codified as Section 75-46-27, Mississippi Code of 1972:

75-46-27. If the total amount of eligible claims exceeds the amount of funds available to the board from the fund, the board shall make initial payments on a pro rata basis. Assessments subsequently collected and submitted to the fund shall not be used to make an additional payment for prior payments made at less than the full amount.

SECTION 15. The following shall be codified as Section 75-46-29, Mississippi Code of 1972:

75-46-29. The failure of a first purchaser licensee to timely collect and submit assessments required by Section 75-46-11 of this act shall be basis for the commissioner to revoke a license issued to the licensee under Sections 75-44-23 and 75-45-309.

SECTION 16. The following shall be codified as Section 75-46-31, Mississippi Code of 1972:

75-46-31. The commissioner shall establish a toll-free hotline and other information collection processes for the purposes of receiving information concerning the failure of a first purchaser licensee to make timely payments for the purchase of grain and information concerning any suspected fraudulent activity of a first purchaser licensee. Upon receipt of information from the hotline, the commissioner shall take such action as the commissioner determines to be appropriate including referral of the matter to the Attorney General. Information received through the hotline shall not be subject to disclosure to the public except as determined appropriate by the commissioner.

SECTION 17. The following shall be codified as Section 75-46-33, Mississippi Code of 1972:

75-46-33. All the board's books, records, accounts, and other papers shall be subject to inspection, copying and audit by the Office of the State Auditor at any time.

SECTION 18. The following shall be codified as Section 75-46-35, Mississippi Code of 1972:

75-46-35. The board may adopt any and all rules and regulations deemed necessary or desirable by the board to carry out the powers and duties of the board, including, but not limited to, the collection and receipt of assessments, the procedure for adjudicating the claims of loss by the producers, the refunding of assessment to producers and the subrogation of procedures' claims against a warehouse or dealer in return for payment from the trust fund.

SECTION 19. This act shall take effect and be in force from and after July 1, 2022, and shall stand repealed on June 30, 2022.