THE MISSISSIPPI LEGISLATURE

The Joint Committee on
Performance Evaluation and Expenditure Review

Report # 418

A Review of the Agricultural Aviation Board

Executive Summary

MISS. CODE ANN. Section 69-21-127 repeals provisions creating and empowering the State Board of Agricultural Aviation as of December 31, 2004. To aid the Legislature in deciding whether to re-enact the board, PEER approached this review as a sunset review, which determines whether an agency can justify its continued existence.

To make this determination, PEER reviewed:

whether a clear public need exists for the regulation of agricultural aviation;

the agency’s effectiveness in meeting that need;

the extent to which the agency’s programs and jurisdiction duplicate those of other entities; and,

the agency’s programs could be performed more efficiently and effectively by consolidating them with those of another agency.

The following questions and answers summarize PEER’s conclusions.

Does a clear public need exist for regulation of Mississippi’s agricultural aviation industry?

A clear public need exists for regulation of the state’s agricultural aviation industry in order to protect the public from the risks posed by the industry. These risks include the safety, health, environmental, and economic risks associated with flying agricultural airplanes and applying agricultural products.
Does the Agricultural Aviation Board effectively regulate the state’s agricultural aviation industry?
The Agricultural Aviation Board does not adequately perform its regulatory responsibilities related to examination of pilots and applicators for licensure, ongoing inspections of regulated facilities and equipment, and the imposition of appropriate disciplinary actions.

PEER compared the Agricultural Aviation Board’s testing practices to those of the Council on Licensure, Enforcement, and Regulation (CLEAR), which provides standard professional testing practices for regulatory boards. The Agricultural Aviation Board does not meet CLEAR’s professional standards in the areas of test development, test administration, statistical analysis and research, scoring and reporting, or examination security. Because the board’s written examination for pilots and applicators does not fully comply with professional testing standards, the board cannot ensure that it is licensing individuals who can provide competent aerial commercial agricultural application services to the public.

The Agricultural Aviation Board does not require documentation of its inspections of airplanes, equipment, or facilities used in agricultural aviation, and thus cannot ensure that it conducts inspections effectively, uniformly, and consistently.

Concerning its complaint intake process, the Agricultural Aviation Board does not adequately publicize how citizens may make complaints concerning agricultural aviation.

Concerning the board’s enforcement process, the Agricultural Aviation Board does not impose penalties sufficient to deter and discipline violators. Further, the board allows its members to participate in penalty decisions involving their own companies. PEER found that:

The Environmental Protection Agency (EPA), which has ultimate responsibility for enforcement of the Federal Insecticide, Fungicide and Rodenticide Act, has determined that the board has not enforced penalties consistently and fairly.

The board did not comply with EPA’s request to improve the board’s penalty matrix and provide written justifications for penalty decisions. This contributed to EPA’s decision to terminate its Memorandum of Agreement and the accompanying funding to the board.

A board member participated in the disposition of a drift complaint case in which he was an interested party.

To what extent do the Agricultural Aviation Board’s programs and jurisdiction duplicate those of other entities?
Duplication of programs and jurisdiction between the Agricultural Aviation Board and federal and state agencies has resulted in confusion and unnecessary effort and costs.

Five agencies have statutory responsibilities for regulating agricultural aviation in Mississippi: the Agricultural Aviation Board, the Department of Agriculture and Commerce’s Bureau of Plant Industry, the Department of Environmental Quality, the Federal Aviation Administration, and the Environmental Protection Agency.

State law divides responsibility between the Agricultural Aviation Board and the Bureau of Plant Industry based on the type of product applied (hormonal versus non-hormonal). However, applicators cannot be divided into these two categories because no applicators currently only apply hormone-type herbicides. Thus the general public and state and federal agencies have been confused regarding the proper role of each agency in regulation of aerial application of pesticides and herbicides.

Also, because some regulatory responsibilities of relevant state and federal agencies overlap, applicators and pilots are subject to duplicate pilot examinations and inspections.

Could the Agricultural Aviation Board’s statutory responsibilities be performed more efficiently and effectively by consolidating them with those of another agency?
Yes, the duties and responsibilities of the Agricultural Aviation Board could be carried out by the Department of Agriculture’s Bureau of Plant Industry, which would eliminate the duplication between the two agencies and place responsibility in an agency with a more structured approach to regulation.

According to the Bureau of Plant Industry’s Director, the duties currently being performed by the Agricultural Aviation Board could be delegated to his bureau if the fee system remained in place and he was given one additional employee. The Bureau of Plant Industry’s Director noted that every state in EPA’s Region IV area, with the exception of Mississippi, has agricultural aviation responsibilities under its Department of Agriculture.

Recommendations

1. To improve efficiency and effectiveness in the regulation of agricultural aviation, reduce confusion, and improve accountability, the Legislature should consider transferring the duties and responsibilities of the Agricultural Aviation Board back to the Department of Agriculture and Commerce.

2. Whichever agency is responsible for regulating the state’s agricultural aviation industry should implement the following:

Testing

Revise agricultural aviation written examinations to comply with professional testing standards, such as those promulgated by the Council on Licensure, Enforcement and Regulation (CLEAR).

To avoid duplicating the flight performance exams given by the Federal Aviation Administration, eliminate state flight performance exams of pilots.

Inspection

Establish formal policies and procedures governing inspections, such as the required frequency of inspections and the type of documentation required to show that inspections are being conducted in an appropriate manner.

Complaint Process

Improve the public’s access to the complaint process by establishing formal procedures to ensure that the public is aware of the complaint resolution process. The board should maintain a listing in local telephone directories and make information available to the public which describes the complaint process (e.g., a telephone number where persons can call to report a complaint, where to file complaints, what information is needed to respond to a complaint, and complainants’ rights). With complaints outside the Agricultural Aviation Board’s jurisdiction, the board should refer the public to the proper entity for action (e.g., agricultural aircraft accidents should be reported to the Federal Aviation Administration, wastewater disposal violations by applicators should be reported to the Department of Environmental Quality).

Enforcement Actions

The Agricultural Aviation Board should develop formal, written standard operating procedures in the enforcement case process, including case review, evidence assessment, and penalty calculation. The board should also develop a penalty policy provision that allows for escalation of penalties for recurring violators.

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THE MISSISSIPPI LEGISLATURE

The Joint Committee on Performance Evaluation and Expenditure Review

Report # 418

The Joint Committee on
Performance Evaluation and Expenditure Review