Senate Bill No. 533

(By Senators Miller and Williams)

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[Introduced February 10, 2014; referred to the Committee on Agriculture and Rural Development; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §19-14-1, §19-14-2, §19-14-5 and §19-14-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §19-14-16, all relating to commercial feed; revising definitions; updating certain provisions; adding a small producer category; clarifying fees and penalties are set by rule; and permitting emergency and legislative rules.

Be it enacted by the Legislature of West Virginia:

    That §19-14-1, §19-14-2, §19-14-5 and §19-14-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §19-14-16, all to read as follows:

ARTICLE 14. WEST VIRGINIA COMMERCIAL FEED LAW.

§19-14-1. Title.

    This article shall be known as the "West Virginia Commercial Feed Law”. of 1991

§19-14-2. Definitions.

    (a) "Brand name" means any word, name, symbol or device, or any combination thereof, identifying the commercial feed of a distributor or manufacturer and distinguishing it from all others.

    (b) "Bulk" refers to commercial feed distributed in nonpackaged form and accompanied by an invoice or delivery slip means any lot of commercial feed that is not in a closed container at the time it passes into the possession of the consumer in any stage of distribution.

    (c) "Commercial feed" means all materials distributed for use as feed or for mixing in feed for animals, other than man, except: (1) Unmixed or unprocessed whole seeds when such whole or unprocessed seeds are not chemically changed or adulterated; (2) unground hay, straw, stover, silage, cobs, husks, hulls and raw meat when not mixed with other materials and when not adulterated; or (3) individual chemical compounds when not mixed with other materials. The term commercial feed shall include “Commercial feed” includes the categories of feed ingredients, customer-formula feeds, pet foods and specialty pet foods.

    (d) "Commissioner" refers to the Commissioner of Agriculture of the State of West Virginia or a duly authorized employee.

    (e) “Container” means a bag, box, barrel, bottle, package, carton, object, apparatus, device or appliance in which commercial feed is placed, stored or packed for handling, transporting or distributing.

    (e) (f) "Contract feeder" means a person who, as an independent contractor, feeds commercial feed to animals pursuant to a contract and the commercial feed is supplied, furnished or provided to the independent contractor and such the contractor's remuneration is determined all or in part by feed consumption, mortality, profits, or the amount or quality of the product.

    (f) "Customer-formula feed" means a commercial feed which is manufactured according to the specific instructions of the final purchaser.

    (g) "Customer-formula feed" means commercial feed that consists of a mixture of commercial feed or ingredients, or both, in which each batch is manufactured according to the specific instructions of the final purchaser.

    (g) (h) "Distribute" means to offer for sale, sell, expose for sale, exchange or barter commercial feed, or to supply, furnish or provide commercial feed to a contract feeder.

    (h) (I) "Distributor" means any person who sells, exposes for sale, offers for sale, exchanges, barters, gives, parcels out, allots, shares or dispenses a commercial feed.

    (I) "Domesticated animal" means any species of animal living and bred in a tame condition.

    (j) "Drug" means any substance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in animals, other than man; and substances, other than nutritive components, intended to affect the structure or any function of the animal body.

    (k) "Feed ingredient" means each constituent material making up composing commercial feed. including individual chemical compounds labeled for use as a feed ingredient.

    (l) "Label" means a display of written, printed or graphic matter affixed to the container in which commercial feed is distributed; or affixed to the invoice, delivery slip or other shipping document which accompanies bulk shipments of commercial feed or customer-formula feed. All such labels shall be legible and in English.

    (m) "Labeling" means all written, printed or graphic matter, or advertising referencing such commercial feed.

    (n) "Manufacture" means to grind, mix, blend, package, pack, repackage, repack or process a commercial feed for distribution.

    (o) "Medicated feed" means any commercial feed which that contains one or more drugs.

    (p) "Mineral feed" means a commercial feed designed or intended to supply primarily mineral elements or inorganic nutrients.

    (q) "Official sample" means any sample of commercial feed taken by the commissioner in accordance with the provisions of this article and rules promulgated hereunder.

    (r) "Percent" or "percentage" means percentage by weights.

    (s) "Person" means an individual, partnership, association, fiduciary, firm, company, corporation or any organized group of persons whether incorporated or not.

    (t) "Pet" or “pets” means any domesticated species of animal normally maintained in or near the household of the owner including, but not limited to, dogs, cats and specialty pets a dog or cat.

    (u) "Pet food" means any commercial feed manufactured and distributed for consumption by pets.

    (v) "Principal display panel" means the part of a label that is intended to be shown and examined when the product is on display for retail sale.

    (w) "Process" means any treatment that changes a feed ingredient so that it can no longer be restored to its previous form.

    (x) "Product name" means the name of the commercial feed which identifies it, such as: Species of animal, age group of animal, characterizing ingredients, specific use, or other descriptive terms that identifies it as to kind, class or specific use and distinguishes it from all other products bearing the same brand name.

    (y) "Registrant" means any person who registers commercial feed for distribution or use in this state.

    (z) "Repack" or "repackaging" means to pack and label a previously manufactured and packaged commercial feed prior to a specific request of a customer.

    (aa) “Small Producer” means any person who exclusively processes dog or cat treats, snacks or biscuits in the amount of one thousand pounds or less annually.

    (aa) (bb) "Specialty pet" or “specialty pets” means any domesticated pet normally maintained in a cage or tank including, but not limited to, gerbils, hamsters, birds, tropical fish, goldfish, snakes and turtles.

    (bb) (cc) "Specialty pet food" means any commercial feed intended for consumption by specialty pets.

    (cc) (dd) "Ton" means a net weight of two thousand pounds avoirdupois.

§19-14-5. Permits; registration.

    (a) Permits Commercial feed permits and registrations shall not be transferrable with respect to persons or locations.

    (b) A person must apply for a permit or registration at least fifteen days prior to the expiration of the current permit or registration expires; or at least fifteen days prior to the date that the person intends to engage in business or market products in this state or be subject to a penalty. All applications shall be accompanied by the fee established in this section. A penalty of $2 shall be added to the fee for all permits or registrations that are not applied for or renewed within the time limit. Forms, fees and penalties shall be set forth in rules.

    (c) Persons manufacturing commercial feed or customer-formula feed in this state must obtain a commercial feed manufacturing permit, except all persons manufacturing feed for only his/her his or her animals on his/her his or her premises. Application forms shall be provided by the commissioner and include such information as established by rules. A separate permit shall be obtained for each manufacturing facility or location in this state. Each commercial feed manufacturing permit application shall be accompanied by an application fee. of $15 Each permit issued shall expire on December 31, next following the date of issue.

    (d) Each person first distributing commercial feed into West Virginia trade channels must obtain a commercial feed distributor permit, except: (1) Persons distributing pet food exclusively; (2) Persons holding a valid commercial feed manufacturing permit; and or (3) Persons distributing only those feeds that they register. Application forms shall be provided by the commissioner and include such information as established by rules. Each commercial feed distributor permit application shall be accompanied by an application fee. of $10 Each permit issued shall expire on December 31st next following the date of issue.

    (e) All commercial feed distributed or used in this state, except customer-formula feed, must be registered. Commercial feed that can be uniquely identified by its brand name, product name, physical form or other descriptive term shall be registered as a separate product. Commercial feed that is packaged in such weights by weight as to apply to several categories shall be registered in each applicable category. Application forms shall be provided by the commissioner and include such information as established by rules. Registration categories are as follows:

    (1) Commercial feed, other than pet food, in packages over ten pounds or bulk shall be registered permanently annually. A registration fee of $10 per product shall accompany each application for registration, except that there will be no fee for a revision of a revising commercial feed already on file that involves a change in the net weight, a change in the list of ingredients, and/or or a change in the guarantee for vitamins or minerals. The registration shall expire on December 31st following the date of issue.

    (2) On the thirty-first day of August, 1991, permanent registrations for pet food in packages over ten pounds are void and application for registration and payment of fees will be required. Pet food, including specialty pet foods, in packages over ten pounds or bulk shall be registered annually. A registration fee of $50 per product shall accompany each application for registration. The registration shall expire on August 31st next following the date of issue.

    (3) Commercial feed excluding specialty pet food in packages of one pound or less, in packages of ten pounds and under or less shall be registered annually, excluding specialty pet food in packages of one pound or less. A registration fee of $40 per product shall accompany each application. for registration The registration shall expire on December 31st next following the date of issue.

     (4) Specialty pet food in packages of one pound or less shall be registered annually. A registration fee of $20 per product shall accompany each application. for registration The registration shall expire on December 31st next following the date of issue.

    (5) A small producer as defined herein shall register annually. A registration fee shall accompany each application. The registration shall expire on December 31st following the date of issue.

    (f) A person is not required to register any brand name or product name of commercial feed which that is already registered by another person.

    (g) Alteration of commercial feed that changes the label requires a new application for a commercial feed registration be made submitted and approved before distribution.

§19-14-9. Tonnage reports; inspection fees.

    (a) Each person holding a commercial feed manufacturing permit, a commercial feed distributor permit and every registrant, except those persons exempted in subsection (b) of this section, shall report the number of tons of commercial feed distributed and pay an inspection fee on all feed distributed, except no inspection fee shall be due on:

    (1) Commercial feed, if the payment was made by a previous distributor;

    (2) Customer-formula feeds or commercial feeds manufactured in this state, if the inspection fee was paid on the commercial feed or all the feed ingredients used as ingredients therein. For the purpose of this exemption, the sale of the feed ingredients used in customer-formula feeds are considered to have taken place before the processing of these items;

    (3) Commercial feeds or commercial feeds manufactured in this state which are subsequently used as ingredients in the continuing manufacture of commercial feeds in which the end product is registered;

    (4) Commercial feed supplied to a poultry contract feeder;

    (5) Commercial feed in packages of ten pounds or less;

    (6) Pet food or specialty pet food; or

    (7) Commercial feed, where when the inspection fee was paid during a previous quarter and is offered for sale in the current quarter.

    (b) Each person holding a commercial feed manufacturing permit, a commercial feed distributor permit or a registrant shall file a semiannual statement under oath before January 31 and July 31 of each year, except those persons (1) exclusively distributing or manufacturing pet food or specialty pet food, or (2) exclusively distributing or manufacturing commercial feed in packages of ten pounds or less. shall file a semiannual statement under oath before the 31st of January and July of each year The statement shall include the number of net tons of commercial feeds and feed ingredients manufactured or first distributed in this state during the preceding six-month period.

    (c) Each report statement shall be accompanied by an inspection fee at the rate of 35¢ per ton on commercial feed and feed ingredients with the minimum inspection fee being $10 each statement. The minimum fee is waived if the total amount of the calculated inspection fee due is $2 or less. Such fees become effective on July 1, 1991. Inspection fees which are due and payable and not remitted to the commissioner within fifteen days following the due date shall be assessed a penalty. of ten percent of the amount due, except that semiannual reports with no fees due received fifteen days after the due date shall be assessed a penalty of $10 The assessment of this penalty fee shall not prevent the commissioner from taking other actions as provided in this chapter. Fees and penalties are set forth in rules.

    (c) (d) All persons must keep accurate records, as may be necessary or required by the commissioner, to indicate the tonnage of commercial feed distributed in this state.

§19-14-16. Commissioner to promulgate rules.

    (a) The commissioner may propose emergency or legislative rules for approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this article.

    (b) The rules may adopt by reference federal regulations, and terms, definitions and publications adopted by the Association of American Feed Control Officials, Incorporated.

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    (NOTE: The purpose of this bill is update the commercial feed laws and have the fees set forth in rules.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

    §19-14-16 is new; therefore, strike-throughs and underscoring have been omitted.)