Bill Text: MS HB363 | 2023 | Regular Session | Introduced
Bill Title: Mississippi Department of Agriculture and Commerce; technical amendments related to certain powers and duties.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2023-03-22 - Approved by Governor [HB363 Detail]
Download: Mississippi-2023-HB363-Introduced.html
MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Agriculture
By: Representative Pigott
House Bill 363
AN ACT TO CREATE NEW SECTION 69-1-401, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSIONER OF AGRICULTURE AND COMMERCE TO ISSUE ADMINISTRATIVE SUBPOENAS FOR PROCEEDINGS BEFORE THE DEPARTMENT; TO PERMIT THE COMMISSIONER OR ANY DESIGNATED AGENT ADMINISTER OATHS AND AFFIRMATIONS, EXAMINE WITNESSES AND RECEIVE EVIDENCE; TO CREATE NEW SECTION 69-1-403, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE MISSISSIPPI DEPARTMENT OF AGRICULTURE AND COMMERCE TO HAVE ISSUED BY THE CIRCUIT COURT AND TO EXECUTE ADMINISTRATIVE INSPECTION AND SEARCH WARRANTS FOR PREMISES OF ENTITIES OR INDIVIDUALS THAT DEPARTMENT LICENSES OR REGULATES; TO PRESCRIBE THE CIRCUMSTANCES BY WHICH THE DEPARTMENT MAY FACILITATE THE ISSUANCE AND EXECUTION OF ADMINISTRATIVE INSPECTION AND SEARCH WARRANTS; TO AMEND SECTION 69-5-31, MISSISSIPPI CODE OF 1972, TO EXEMPT OR MAINTAIN CONFIDENTIALITY OF PERSONAL IDENTIFYING INFORMATION OF LAW ENFORCEMENT OFFICERS HIRED BY THE DEPARTMENT; TO AMEND SECTION 69-29-1, MISSISSIPPI CODE OF 1972, TO ALLOW ARRESTS BY INVESTIGATORS OF THE MISSISSIPPI AGRICULTURAL & LIVESTOCK THEFT BUREAU FOR MATTERS AUTHORIZED UNDER THE CONSTITUTIONAL AND GENERAL LAWS OF THE STATE AND TO PERMIT RETIRING INVESTIGATORS TO RETAIN SIDE ARM; TO AMEND SECTION 69-42-1, MISSISSIPPI CODE OF 1972, TO DELETE REQUIREMENT FOR PRODUCTION OF ANNUAL REPORTS; TO AMEND SECTION 69-46-3, MISSISSIPPI CODE OF 1972, TO PROVIDE ADDITIONAL MEETING VENUE FOR THE MISSISSIPPI LAND, WATER AND TIMBER RESOURCES BOARD MEETINGS; TO AMEND SECTION 75-44-29, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT LIABILITY UNDER GRAIN BOND ISSUED UNDER GRAIN DEALERS LAW SHALL NOT BE LIMITED BY PAYMENT UNDER GRAIN WAREHOUSE LAW; TO AMEND SECTION 75-44-31, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY BOND SHALL BE AVAILABLE FOR CLAIMS FILED UNDER GRAIN WAREHOUSE AND GRAIN DEALERS LAW; TO AMEND SECTION 75-44-35, MISSISSIPPI CODE OF 1972, TO CLARIFY LANGUAGE RELATED TO FILING A CLAIM FOR FAILURE TO DELIVER GRAIN; TO AMEND SECTION 75-45-305, MISSISSIPPI CODE OF 1972, TO CLARIFY HEARING PROCEDURES RELATED TO SURETY BOND FOR GRAIN DEALERS; TO AMEND SECTION 75-45-311, MISSISSIPPI CODE OF 1972, TO CLARIFY PROCEDURE FOR GRAIN PRODUCERS TO NOTIFY COMMISSIONER IN EVENT OF GRAIN DEALER'S FAILURE TO PAY; TO REPEAL SECTIONS 69-41-1, 69-41-3, 69-41-5, 69-41-7, 69-41-9, 69-41-11, 69-41-13 AND 69-41-19, MISSISSIPPI CODE OF 1972, WHICH ARE PROVISIONS ESTABLISHING AND GOVERNING THE ADMINISTRATION OF THE "MISSISSIPPI AGRIBUSINESS COUNCIL ACT OF 1993"; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 69-1-401, Mississippi Code of 1972, is created as follows:
69-1-401. (1) The commissioner shall have power to issue subpoenas and subpoena duces tecum to compel the attendance of witnesses and the production of documents, papers, books, records and other evidence in a hearing or proceeding before him in any matter over which he has jurisdiction.
(2) The commissioner or any agent designated by him or her, may administer oaths and affirmations, examine witnesses and receive evidence. The attendance of witnesses and the production of evidence may be required from any place in the state at any designated place of hearing.
(3) (a) If any person served with a subpoena to give testimony, or to produce evidence as required thereby, a circuit court judge in the county in which the hearing or proceeding is to occur shall, upon application and proof of such refusal, make an order awarding process of subpoena or subpoena duces tecum, for the witness to appear before the commissioner and to give testimony, and to produce evidence as required thereby. Upon filing the order in the office of the clerk of the court, the clerk shall issue process of subpoena, as directed, under the seal of the court, requiring the person to whom it is directed, to appear at the time and place therein designated.
(b) If any person served with any subpoena issued by the circuit court shall refuse to obey the same, or to give testimony, or to produce evidence as required thereby, the commissioner may apply to the circuit court for an order of contempt.
SECTION 2. The following shall be codified as Section 69-1-403, Mississippi Code of 1972, is created as follows:
69-1-403. (1) If the Mississippi Department of Agriculture and Commerce is denied access to records or authority to inspect the premises of entities or individuals which the Department licenses or regulates and for which it has statutory authority to inspect and access said premises and documents, the department may make application to the circuit court of the county in which the premises and documents are located for an administrative inspection and search warrant.
(2) Issuance and execution of administrative inspection and search warrants for the department shall be as follows:
(a) A circuit court judge, upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections for matters set forth in subsection (1), and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this article or rules thereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant. All such warrants shall be served during normal business hours;
(b) A search warrant shall be issued only upon an affidavit of a person having knowledge or information of the facts alleged, sworn to before the circuit court judge and establishing the grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he or she 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, if any. The warrant shall:
(i) State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
(ii) Be directed to a department employee to serve and execute;
(iii) Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified, and if appropriate, direct the seizure of the property specified;
(iv) Identify the item or types of property to be seized, if any; and
(v) Direct that it be served and designate the judge or magistrate to whom it shall be returned.
(c) A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant; and
(d) The judge who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of the court for the judicial district in which the inspection was made.
(3) When authorized by an administrative inspection warrant issued in accordance with the conditions imposed in this section, an officer or employee designated by 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 related to an investigation, proceeding or hearing of the department.
(4) When authorized by an administrative inspection warrant, an officer or employee designated by the department may:
(a) Seize, inspect and copy records required by this article to be kept;
(b) Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in subsection (5), all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this article; and
(c) Seize or prepare an inventory of any stock of any regulated substances or items therein and obtain samples thereof.
(5) This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena, nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:
(a) If the owner, operator or agent in charge of the controlled premises consents;
(b) In situations presenting imminent danger to health or safety;
(c) In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
(d) In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or
(e) In all other situations in which a warrant is not constitutionally required.
(6) Any officer acting under such warrant shall, as soon as practical, after entering the premises, identify himself and give the reasons and authority for his entrance upon the premises.
SECTION 3. Section 69-5-31, Mississippi Code of 1972, is amended as follows:
69-5-31. (1) The Department of Agriculture and Commerce is authorized to hire and designate area law enforcement officers on a contractual basis to provide security and to enforce all laws of the State of Mississippi on the Mississippi State Fairgrounds Complex. All officers must have attended and satisfactorily completed the training course required for law enforcement officers at the Law Enforcement Officer's Training Academy or an equivalent facility. All officers must be current with this certification. A complete record of all law enforcement training of each employee will be maintained in each employee's record of employment. Furthermore, the Department of Agriculture and Commerce may enter into a contract with any certified law enforcement officer to provide security to the Department of Agriculture and Commerce with jurisdiction to enforce all laws of the State of Mississippi on property known as the "Mississippi State Fairgrounds Complex" and any and all of its outlying buildings and property.
(2) (a) All officers while in performance of their duty on the premises or at any of the facilities at the Mississippi State Fairgrounds Complex under the direction or control of the Department of Agriculture and Commerce and public property immediately adjacent to such facilities shall:
(i) Be required to dress in uniforms prescribed by the respective law enforcement agency by which he or she is employed; and
(ii) Be authorized to carry weapons.
(b) Employees designated as officers shall be duly sworn and vested with authority to bear arms and make arrests, and shall exercise primarily the responsibilities of the prevention and detection of crime, the apprehension of criminals, and the enforcement of the ordinances and policies of the Department of Agriculture and Commerce, a political subdivision of the State of Mississippi. Employees designated as such officers shall be considered law enforcement officers within the meaning of Section 45-6-3.
(3) The identities and personal information of the officers under the authority of this section are confidential and shall not be publicly disclosed by the department. All contract entered under the authority of this section shall be exempt from disclosure under the Mississippi Public Records Act, prescribed under Section 25-61-1 et seq.
SECTION 4. Section 69-29-1, Mississippi Code of 1972, is amended as follows:
69-29-1. (1) (a) There is established the Mississippi Agricultural and Livestock Theft Bureau.
(b) The Commissioner of Agriculture and Commerce shall appoint a director of the Mississippi Agricultural and Livestock Theft Bureau. Such director shall have at least five (5) years of law enforcement experience. Such director shall be responsible solely to the supervision of the Commissioner of Agriculture and Commerce and to no other person or entity. Such director may be discharged only for just cause shown.
(c) The director may employ twelve (12) agricultural and livestock theft investigators. Each investigator shall be certified as a law enforcement officer, successfully completing at least a nine-week training course, in accordance with Section 45-6-11. The curriculum for the training of constables shall not be sufficient for meeting the certification requirements of this paragraph. In the selection of investigators under this section, preference shall be given to persons who have previous law enforcement experience.
(d) The director appointed under this section, under the direction, control and supervision of the commissioner, and the investigators employed under this section shall perform only the duties described in subsection (2) of this section and shall not be assigned any other duties.
(2) The director appointed under this section and the investigators employed under this section shall have the following powers, duties and authority:
(a) To enforce all of the provisions of Sections 69-29-9 and 69-29-11, and particularly those portions requiring persons transporting livestock to have a bill of sale in their possession; to make investigations of violations of such sections and to arrest persons violating same;
(b) To enforce all of the laws of this state enacted for the purpose of preventing the theft of livestock, poultry, timber and agricultural, aquacultural and timber products and implements; to make investigations of violations thereof and to arrest persons violating same;
(c) To cooperate with all regularly constituted law enforcement officers relative to the matters herein set forth;
(d) To serve warrants and other process emanating from any court of lawful jurisdiction, including search warrants, in all matters herein set forth;
(e) To carry proper credentials evidencing their authority, which shall be exhibited to any person making demand therefor;
(f) To make arrests with
or without warrant in all matters * * *
authorized under the constitutional and general laws of this state;
(g) To handle the registration of brands of cattle and livestock;
(h) To investigate, prevent, apprehend and arrest those persons anywhere in the state who are violating any of the laws administered by the Department of Agriculture and Commerce, including, but not limited to, all agriculture-related crimes;
(i) To access and examine records of any person, business or entity that harvests, loads, carries, receives or manufactures timber products as defined in this section. Each such person or entity shall permit the director or any investigator of the Mississippi Agricultural and Livestock Theft Bureau to examine records of the sale, transfer or purchase of timber or timber products, including, but not limited to, contracts, load tickets, settlement sheets, drivers' logs, invoices, checks and any other records or documents related to an ongoing investigation of the Mississippi Agricultural and Livestock Theft Bureau;
(j) To conduct training for law enforcement regarding laws enforced by the bureau and to assist any other law enforcement agencies in responding to matters that may be related to agriculture and commerce in the State of Mississippi and in cases of natural disasters or other disasters to respond as needed or as requested by other agencies.
(3) The Commissioner of Agriculture and Commerce shall furnish such investigators with such vehicles, equipment and supplies as may be necessary. All expenses of same, and all other expenses incurred in the administration of this section, shall be paid from such appropriation as may be made by the Legislature.
(4) Any director or investigator of the Agricultural and Livestock Theft Bureau who retires for superannuation or for reasons of disability under the Public Employees' Retirement System, upon his or her request, may be allowed by the commissioner to retain, as his or her personal property, one (1) side arm which issued to him or her during his or her service.
( * * *5) The Mississippi Department of
Revenue and its agents and employees shall cooperate with such investigators by
furnishing to them information as to any possible or suspected violations of
any of the laws mentioned herein, including specifically Section 69-29-27, and
in any other lawful manner.
( * * *6) The conservation officers of the
Department of Wildlife, Fisheries and Parks are authorized to cooperate with
and assist the agricultural and livestock theft investigators in the
enforcement and apprehension of violators of laws regarding agricultural and
livestock theft.
( * * *7) The Mississippi Forestry Commission
employees are excluded from any timber and timber products theft investigative
responsibilities except when technical expertise is needed and requested
through the State Forester or his designee.
( * * *8) For the purposes of this section,
"timber product" means timber of all kinds, species or sizes,
including, but not limited to, logs, lumber, poles, pilings, posts, blocks,
bolts, cordwood and pulpwood, pine stumpwood, pine knots or other distillate
wood, crossties, turpentine (crude gum), pine straw, firewood and all other
products derived from timber or trees that have a sale or commercial value.
SECTION 5. Section 69-42-1, Mississippi Code of 1972, is amended as follows:
69-42-1. (1) For the purposes of this section, the following words shall have the meanings ascribed in this section unless the context otherwise requires:
(a) "Agribusiness" means any agricultural, aquacultural, horticultural, manufacturing, research and development or processing enterprise or enterprises.
(b) "Farmer" means a resident of Mississippi who engages or wishes to engage in the commercial production of crops on land in Mississippi. The term shall include individuals, partnerships and corporations.
(2) The Mississippi Development Authority shall develop and implement a program to stimulate growth in the agricultural industry for agribusiness concerns and farmers.
(3) The program developed and implemented by the Mississippi Development Authority under this section shall:
(a) Increase the availability of financial assistance available to agribusiness concerns and farmers;
(b) Provide incentives for agribusiness concerns and farmers which will encourage growth in the Mississippi agricultural industry;
(c) Assist new agribusiness concerns and farmers in developing and implementing business plans;
(d) Develop methods for increasing markets for the goods and services of agribusiness concerns and farmers;
(e) Work with public and private entities in disseminating information about public and private programs that benefit agribusiness concerns and farmers; and
(f) Identify sources of financial assistance available to agribusiness concerns and farmers and assist agribusiness concerns and farmers with the preparation of applications for assistance from public and private sources.
* * *
SECTION 6. Section 69-46-3, Mississippi Code of 1972, is amended as follows:
69-46-3. (1) There is created the Mississippi Land, Water and Timber Resources Board, hereinafter referred to as "the board," for the purpose of assisting Mississippi agricultural industry in the development, marketing and distribution of agricultural products.
(2) The board shall be composed of the following members:
(a) The Chairman of the Senate Agriculture Committee, or a member of the Senate Agriculture Committee designated by the chairman, as a nonvoting member;
(b) The Chairman of the House of Representatives Agriculture Committee or a member of the House of Representatives Agriculture Committee designated by the chairman, as a nonvoting member;
(c) The Chairman of the Senate Forestry Committee, or a member of the Senate Forestry Committee designated by the chairman, as a nonvoting member;
(d) The Executive Director of the Mississippi Development Authority, or his designee;
(e) The Commissioner of the Mississippi Department of Agriculture and Commerce, or his designee;
(f) The President of the Mississippi Farm Bureau Federation, or his designee;
(g) The Director of the Cooperative Extension Service at Mississippi State University, or his designee;
(h) The Executive Director of the Agribusiness and Natural Resource Development Center at Alcorn State University, or his designee;
(i) The Director of the Agricultural Finance Division of the Mississippi Development Authority, or his designee;
(j) The Director of the Agriculture Marketing Division of the Mississippi Department of Agriculture and Commerce, or his designee;
(k) The Executive Director of the Mississippi Forestry Commission, or his designee; and
(l) Three (3) individuals appointed by the Governor who are active producers of Mississippi land, water or timber commodities. The Governor shall appoint one (1) such person from each Supreme Court district.
(3) The Executive Director of the Mississippi Development Authority and the Commissioner of the Mississippi Department of Agriculture and Commerce shall serve as cochairmen of the board.
(4) The board shall meet at least once each calendar quarter at the call of the cochairmen. A majority of the members of the board shall constitute a quorum at all meetings. An affirmative vote of a majority of the members present and voting is required in the adoption of any actions taken by the board. All members must be notified, in writing, of all regular and special meetings of the board, which notices must be mailed at least ten (10) days before the dates of the meetings. All meetings shall take place at the State Capitol in Jackson, Mississippi, or at a location to be determined by the cochairmen. The board shall provide a copy of the minutes of each of its meetings to the Chairman of the Senate Agriculture Committee and the Chairman of the House of Representatives Agriculture Committee.
(5) Members of the board shall not receive compensation. However, each member may be paid travel expenses and meals and lodging expenses as provided in Section 25-3-41, for such expenses incurred in furtherance of their duties. Travel expenses and meals and lodging expenses and other necessary expenses incurred by the board shall be paid out of funds appropriated to the Mississippi Development Authority.
(6) In carrying out the provisions of the Mississippi Land, Water and Timber Resources Act, the board may utilize the services, facilities and personnel of all departments, agencies, offices and institutions of the state, and all such departments, agencies, offices and institutions shall cooperate with the board in carrying out the provisions of such act.
SECTION 7. Section 75-44-29, Mississippi Code of 1972, is amended as follows:
75-44-29. (1) Before any person is granted a license pursuant to Section 75-44-23 such person shall give a bond to the commissioner executed by the grain warehouseman as principal and by a corporate surety licensed to do business in this state as a surety. The bond shall be in favor of the commissioner for the benefit of all persons interested, their legal representatives, attorneys or assigns, conditioned upon the faithful compliance by the grain warehouseman with the provisions of this chapter, the provision of the "Mississippi Grain Dealers Law of 1978," authorized under Article 7, Chapter 45, Title 75, Mississippi Code of 1972, and the rules and regulations of the State Department of Agriculture and Commerce applicable thereto. The aggregate liability of the surety to all depositors or storers of grain under this chapter and to sellers of grain under the "Mississippi Grain Dealers Law of 1978" shall not exceed the sum of such bond. However, the liability under a bond additionally issued under the "Mississippi Grain Dealers Law of 1978" shall not be limited by payment under the bond required under this chapter. The bond may be cancelled at any time by the surety by giving written notice to the Commissioner of Agriculture and Commerce of its intention to cancel the bond and all liability thereunder shall terminate thirty-five (35) days after the mailing of such notice except that such notice shall not affect any claims arising under the bond, whether presented or not, before the effective date of the cancellation notice.
(2) In lieu of the bond required in subsection (1) of this section an applicant for a license may be a self-insurer by posting with the commissioner any of the following:
(a) Cash;
(b) Certificates of deposit from any bank or banking corporation insured by the Federal Deposit Insurance Corporation;
(c) Irrevocable letters of credit from any bank or banking corporation insured by the Federal Deposit Insurance Corporation;
(d) Federal treasury bills; or
(e) Notes, securities or bonds secured by the federal government or the State of Mississippi.
Self insurers shall post an amount equivalent to the amount of the bond required in Section 75-44-31.
SECTION 8. Section 75-44-31, Mississippi Code of 1972, is amended as follows:
75-44-31. (1) The amount of bond to be furnished for each grain warehouse shall be fixed at a rate of Twenty-five Cents (25¢) per bushel for the first one million (1,000,000) bushels of licensed capacity; Twenty Cents (20¢) per bushel for the next one million (1,000,000) bushels of licensed capacity; and Fifteen Cents (15¢) per bushel for all licensed capacity over two million (2,000,000) bushels; provided that in no case shall the amount of the bond be less than Fifteen Thousand Dollars ($15,000.00) or more than One Million Dollars ($1,000,000.00), except as prescribed in subsection (3) of this section. The licensed capacity shall be equal to the maximum number of bushels of grain that the grain warehouse can accommodate for storage. In no event shall the liability of the surety accumulate for each successive license period during which this bond is in force, but shall be limited in the aggregate to the bond amount or changed by appropriate rider or endorsement.
(2) A grain warehouseman who is licensed or is applying for licenses to operate two (2) or more grain warehouses may give a single bond meeting the requirements of this chapter to cover all such grain warehouses within the state. In such cases all grain warehouses to be covered by the bond shall be deemed to be one (1) warehouse for purposes of determining the amount of bond required under subsection (1) of this section.
(3) In case of a deficiency in the net assets required by Section 75-44-21, there shall be added to the amount of the bond determined in accordance with subsection (1) of this section an amount equal to such deficiency. In any other case in which the commissioner finds that conditions exist which warrant requiring additional bond, there shall be added to the amount of bond such further amount as is determined to be reasonable by the commissioner.
(4) If a public grain warehouseman is licensed under this chapter and also conducts grain transaction under the "Mississippi Grain Dealers Law of 1978" authorized under Article 7, Chapter 45, Title 75, Mississippi Code of 1972, the entire bond, in addition to any other required bond, shall be available to claims filed under this chapter and Chapter 45, Title 75, Mississippi Code of 1972.
SECTION 9. Section 75-44-35, Mississippi Code of 1972, is amended as follows:
75-44-35. (1) It shall be
the duty of the grain warehouseman to deliver grain to the holder of a
warehouse receipt within ten (10) days of the demand for the redemption of such
receipt. In the event the grain warehouseman fails to deliver grain to the
holder of a warehouse receipt within ten (10) days of the demand the holder of
the warehouse receipt may make demand of the surety for payment under the
bond. The surety has the responsibility to pay within fifteen (15) days
following receipt by the surety of the notice of the demand for redemption.
Any holder of a warehouse receipt issued by a grain warehouseman who has made
demand for redemption of such receipt, which demand was, without lawful excuse,
not satisfied within ten (10) days, shall notify the commissioner in writing
and the holder shall have the right to * * * file a claim with the
commissioner against the grain warehouseman and the surety on the grain
warehouseman's bond for payment of the market value of the grain represented by
such warehouse receipt, such market value to be determined as of the date of
the demand, plus legal interest accrued from the date of the demand. In the
event the grain warehouseman is a self-insurer as provided in Section 75-44-29
the holder of a warehouse receipt shall have the right to * * * file a claim with the
commissioner against the grain warehouseman to the extent of the amount
posted in lieu of the bond. * * * The
commissioner may also pay to the holder of a warehouse receipt the amount of
the market value of the grain provided that the grain warehouseman agrees to
such payment * * *.
* * *
(2) (a) Upon receipt of any claim, the commissioner shall provide written notice, via certified mail, return receipt requested, to the warehouseman and the corporate surety of the claims. The notice shall be effective upon receipt of proof of delivery or a receipt marked as refused delivery. If the commissioner determines, in his or her opinion, that there are or may be other competing claims as to bond, the commissioner shall give notice to other interested parties, which shall include the holders of outstanding and uncanceled receipts and scale tickets, any person having a claim for payment under Section 75-45-311, and any other person or party claiming any rights under the bond. The notice shall be deemed complete and sufficient upon the publication once per week for three (3) consecutive weeks in a newspaper of general circulation. The commissioner shall promulgate regulations which shall govern the procedure and process to be followed in the hearing. The regulations shall, among other things, set forth the county or counties, depending on whether the licensee is a warehouseman, grain dealer, individual or corporate entity or resident or nonresident, in which publication of notice hereunder shall be made.
(b) The commissioner or his designated representative, hereinafter "hearing officer," shall hear evidence and determine whether a loss has occurred. Upon a determination that a loss has occurred, the hearing officer shall determine the date of the loss, the fair market value at the place of loss or in the region immediately surrounding the place of loss, whether payments should be made by the corporate surety and, if so, to what parties and in what amounts. Recovery under the bond shall be prorated by the hearing officer when the claims exceed the liability of the corporate surety under the bond. The burden of establishing the proration shall be on the corporate surety as a matter of defense. The hearing officer shall enter a written order determining the validity of claims under the bond and setting forth those claimants who are entitled to recover thereunder. The order shall be final, binding and conclusive on all interested parties. The order shall be sent by registered or certified mail to all interested parties that appeared in the hearing. Within thirty (30) days after the mailing of said order, any interested party, if dissatisfied with the order of the hearing officer, may appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, by filing a written notice of appeal alleging the pertinent facts upon which the appeal is grounded. At the time of the filing of the appeal, the appellant shall give a bond for costs conditioned upon his prosecution of the appeal without delay and payment of all costs assessed against him. Appeal may be with supersedeas and shall be subject to the provisions of Section 11-51-31.
(3) Where a warehouseman licensed under this chapter is involved in the hearing, the claim determination provisions of this chapter are applicable to claims arising both under this chapter and Article 7, Chapter 45, Title 75, Mississippi Code of 1972.
SECTION 10. Section 75-45-305, Mississippi Code of 1972, is amended as follows:
75-45-305. (1) Every person licensed as a grain dealer shall have filed with the department a surety bond signed by the dealer as principal and by a responsible company authorized to execute surety bonds within the State of Mississippi. A grain dealer may file with the department, in lieu of a surety bond, a certificate of deposit or irrevocable letter of credit from any bank or banking corporation insured by the Federal Deposit Insurance Corporation, payable to the commissioner, as trustee. The principal amount of the certificate of deposit or the amount of the letter of credit shall be the same as that required for a surety bond under this article and the interest thereon shall be made payable to the purchaser thereof. Such bond shall be a principal amount (to the nearest One Thousand Dollars ($1,000.00)) equal to ten percent (10%) of the aggregate dollar amount paid, by the dealer to producers for grain purchased from them during the dealer's last completed fiscal year or in the case of a dealer who has been engaged in business as a grain dealer for less than one (1) year or who has not theretofore engaged in such business, ten percent (10%) of the estimated aggregate dollar amount to be paid by the dealer to producers for grain purchased from them during the next fiscal year. Such bond shall not be less than Twenty-five Thousand Dollars ($25,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), except as otherwise authorized by this article. The commissioner shall determine the sufficiency of any letter of credit.
(2) The commissioner may, when he questions a grain dealer’s ability to pay producers for grain purchased, require a grain dealer to post an additional bond in a dollar amount deemed appropriate by the commissioner. Failure to post such additional bond or certificate of deposit or irrevocable letter of credit, constitutes grounds for suspension or revocation of a license issued under this article.
(3) Any required bond or bonds shall be executed by the grain dealer as principal and by a corporate surety licensed to do business in this state as a surety. The bond shall be in favor of the commissioner for the benefit of all persons interested, their legal representatives, attorneys or assigns, conditioned upon the faithful compliance by the grain dealer with the provisions of this article and the rules and regulations of the State Department of Agriculture and Commerce applicable thereto. The aggregate liability of the surety shall not exceed the sum of such bond. The bond may be cancelled at any time by the surety by giving written notice to the commissioner of its intention to cancel the bond and all liability thereunder shall terminate sixty (60) days after the mailing of such notice except that such notice shall not affect any claims arising under the bond, whether presented or not, before the effective date of the cancellation notice.
(4) Any grain dealer who is of the opinion that his net worth and assets are sufficient to guarantee payment to producers for grain purchased by him may request the commissioner to be relieved of the obligation of filing a bond in excess of the minimum bond of Twenty-five Thousand Dollars ($25,000.00). Such request shall be accompanied by a financial statement of the applicant made within six (6) months of the date of such request certified by a certified public accountant. If such financial statement discloses net assets and a net worth of an amount equal to at least three (3) times the amount of the bond required by this article and the commissioner is otherwise satisfied as to the financial ability and resources of the applicant, the commissioner may waive that portion of the required bond in excess of Twenty-five Thousand Dollars ($25,000.00). However, in the case of a grain dealer whose net worth is not equal to three (3) times the amount of bond required, the commissioner may allow such grain dealer to waive in One Thousand Dollar ($1,000.00) increments a portion of the bond required in excess of Twenty-five Thousand Dollars ($25,000.00). The percentage factor to be applied to the bond required in excess of Twenty-five Thousand Dollars ($25,000.00) shall be determined by dividing actual net worth by the net worth required to waive all bond in excess of Twenty-five Thousand Dollars ($25,000.00). If the result of this computation provides a percentage factor of eighty percent (80%) or greater, then that same percentage of the bond in excess of Twenty-five Thousand Dollars ($25,000.00) may be waived. The grain dealer shall then provide to the commissioner a surety bond in the amount of Twenty-five Thousand Dollars ($25,000.00) plus any additional bond required in excess thereof.
(5) Any grain dealer who purchases grain from producers only in connection with or as an incident to some other business and whose total purchases of grain from producers during any fiscal year do not exceed an aggregate amount of One Hundred Thousand Dollars ($100,000.00) may satisfy the bonding requirements of this article by filing with the commissioner a bond, or certificate of deposit or irrevocable letter of credit from any bank or banking corporation insured by the Federal Deposit Insurance Corporation, at the rate of One Thousand Dollars ($1,000.00) for each Ten Thousand Dollars ($10,000.00) or fraction thereof of the dollar amount to be purchased, with a minimum bond, certificate of deposit or irrevocable letter of credit of One Thousand Dollars ($1,000.00) and a current financial statement.
(6) Failure of a grain dealer to file a bond, or certificate of deposit, or letter of credit, and to keep such bond, certificate of deposit or line of credit in force, or to maintain assets adequate to assure payment to producers for grain purchased from them shall be grounds for the suspension or revocation of a license issued under this article.
(7) When the commissioner
has determined that a grain dealer has defaulted payment to producers for grain
which he has purchased from them, the commissioner shall determine * * * ,using
the hearing procedures set out in Section 75-44-35, the producers and the
amount of defaulted payment and as trustee of the bond shall immediately after
such determination call for the dealer's surety bond or bonds, or other pledged
financial assets, to be paid to him for distribution to those producers who
should receive the benefits. Should the defaulted amount owed the producers be
less than the principal amount of the bond or bonds or pledged financial
assets, then the surety bank, or banking corporation shall be obligated to pay
only the amount of the default.
SECTION 11. Section 75-45-311, Mississippi Code of 1972, is amended as follows:
75-45-311. If a grain
dealer should fail or refuse to make payment to a producer for grain purchased
when such payment is requested by the producer and the request is made within
one hundred sixty (160) days of the date of sale or the date of delivery of
such grain to the dealer, whichever is later, but in case of deferred pricing,
delayed pricing, priced-later, or similar contractual arrangements, no more
than two hundred seventy (270) days after the date of delivery, the producer
may notify the commissioner in writing, by certified mail when possible, of
such failure or refusal within the period of * * *
thirty (30) days after such refusal or failure to pay. The commissioner
upon receiving such notice shall * * * initiate a
hearing procedure as set forth in Section 75-44-35. The producer shall then
file a claim in accordance with any regulations promulgated by the commissioner.
The producer furnishing such written notice within the prescribed length of
time is entitled to the benefits of the grain dealer's bond. However, if a
producer fails to furnish written notice to the commissioner within the
prescribed time, then such producer is not entitled to any benefits under the
grain dealer's bond. Grain dealer liability under priced-later contracts, open-priced
contracts, deferred price contracts, or similar agreements shall accrue under
the bond in effect at the date of default as determined by the commissioner. Any
bond required under this chapter shall be in addition to the bond required by
an entity licensed under the "Mississippi Grain Warehouse Law,"
established under Section 75-44-1 et seq.
SECTION 12. Sections 69-41-1, 69-41-3, 69-41-5, 69-41-7, 69-41-9, 69-41-11, 69-41-13 and 69-41-19, Mississippi Code of 1972, which are provisions establishing and governing the administration of the "Mississippi Agribusiness Council Act of 1993," are repealed.
SECTION 13. This act shall take effect and be in force from and after July 1, 2023.
