H. B. 4332
(By Delegates Beach and Williams)
[Introduced February 11, 1998; referred to the
Committee on Agriculture and Natural Resources then
A BILL to amend and reenact article sixteen, chapter nineteen of
the code of West Virginia, one thousand nine hundred
thirty-one as amended, relating to rewriting the
agricultural and forest seed law and designating the article
as the West Virginia seed law; providing definitions;
labeling requirements for agricultural, vegetable, tree and
shrub seeds and seed potatoes; certificates of registration
requirements, seed fees and use of the fees by the
commissioner of agriculture; prohibiting distributions or
transportations of certain seeds and other acts; exemptions;
power and authority of the commissioner of agriculture;
right of embargo and seizure by commissioner; and providing
civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article sixteen, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 16. WEST VIRGINIA SEED LAW.
(a)"Agricultural seed" includes grass, forage, cereal,
oil, fiber, and other kinds of crop seeds commonly recognized
within this state as agricultural seeds, lawn seeds, and
combinations of such seeds, and may include noxious weed seeds
when the commissioner determines that such seed is being used as
(b)"Blend" means seed consisting of more than one variety
of a kind, each in excess of five percent by weight of the whole.
(c)"Brand" means a word, name, symbol, number, design or
device, or any combination thereof, identifying the seed of one
person and distinguishing it from all others.
(d)"Bulk" means seed when loose in vehicles of
transportation or in storage, or in retail displays and not in
seed bags or other containers.
(e)"Certifying agency" means: (1) An agency authorized
under the laws of a state, territory or possession to officially
certify seed and which has standards and procedures approved by
the U. S. Secretary of Agriculture to assure the genetic purity
and identity of the seed certified; or (2) an agency of a
foreign country determined by the U.S. Secretary of Agriculture
to adhere to procedures and standards for seed certification
comparable to those adhered to generally by seed certifying
agencies under subdivision (1) of this subsection.
(f)"Coated" means a seed unit covered with any substance
which changes size, shape or weight of original seed. Seeds
coated with ingredients, such as, but not limited to, rhizobia, dyes and pesticides, are excluded.
(g)"Commissioner" refers to the commissioner of
agriculture of the state of West Virginia or a duly authorized
(h)"Complete record" means any and all information which
relates to the origin, treatment, germination, purity, kind and
variety of each lot of agricultural seed sold in this state, or
which relates to the treatment, germination, kind and variety of
each lot of vegetable, or tree and shrub seed sold in this state.
Such information shall include seed samples and records of
declarations, labels, purchases, sales, conditioning, bulking,
treatment, handling, storage, analyses, tests and examinations.
(i)"Conditioning" means drying, cleaning, scarifying, and
other operations which may change the purity or germination of
the seed and require the seed lot to be retested to determine the
(j)"Dealer" means any person who sells, exposes for sale,
offers for sale, exchanges or barters seed for sowing purposes
within this state to the ultimate consumer exclusively.
(k)"Distribute" means to offer for sale, sell, expose for
sale, exchange, or barter seed for sowing purposes within the
(l)"Distributor" means any person who sells, exposes for
sale, offers for sale, exchanges, barters, gives, parcels out,
allots, shares, or dispenses a seed for sowing purposes within
(m)"Dormant" means viable seed, excluding hard seed, which fail to germinate when provided the specified germination
conditions for the kind of seed in question.
(n) "Genuine growers declaration" means a statement signed
by the grower which gives for each lot of seed the lot number,
kind, variety (if known), origin, weight, year of production,
date of shipment and to whom the shipment was made.
(o)"Germination" means the emergence and development from
the seed embryo of those essential structures which, for the kind
of seed in question, are indicative of the ability to produce a
normal plant under favorable conditions.
(p)"Hard seeds" means seeds which remain hard at the end
of the prescribed test period because they have not absorbed
water due to an impermeable seed coat.
(q)"Hybrid" means the first generation seed of a cross
produced by controlling the pollination and by combining: (1)
Two or more inbred lines; (2) one inbred or a single cross with
an open pollinated variety; or (3) two varieties or species,
except open-pollinated varieties of corn (Zea mays). The second
generation of subsequent generations from such crosses shall not
be regarded as hybrids. Hybrid designations shall be treated as
(r)"Inert matter" means all matter not seed, which
includes, but is not limited to, broken seeds, sterile florets,
chaff, fungus bodies and stones as determined by methods defined
(s)"Kind" means one or more related species or subspecies
which singly or collectively is known by one common name, for example, corn, oats, alfalfa, and timothy.
(t)"Label" means a display of written, printed, or graphic
matter affixed to the container or package in which seed is
distributed; or affixed to the invoice, delivery slip, or other
shipping document which accompanies bulk lots of seed. All such
labels shall be legible and in English.
(u) "Labeling" means all written, printed, or graphic
matter, or advertisement referencing such seed.
(v)"Lot" means a definite quantity of seed identified by
a lot number, code number, or other mark, every portion or bag of
which is uniform within recognized tolerances for the factors
which appear on the label.
(w)"Mixture", "mix" or "mixed" means seed consisting of
more than one kind, each in excess of five percent by weight of
(x)"Mulch" means a protective covering of any suitable
substance placed with seed which acts to retain sufficient
moisture to support seed germination and sustain early seedling
growth and aid in the prevention of the evaporation of soil
moisture, the control of weeds and the prevention of erosion.
(y)Noxious weed seeds are divided into two classes:
"prohibited noxious weed seeds" and "restricted noxious weed
seeds" as defined in (1) and (2) of this subsection:
(1) The term "prohibited noxious weed seeds" are those weed
seeds which are prohibited from being present in agricultural,
vegetable, tree or shrub seed. They are the seeds of weeds which
are highly destructive and difficult to control by good cultural practices and the use of herbicides;
(2) The term "restricted noxious weed seeds or undesirable
grass seed" are those weed seeds which are objectionable in
agricultural crops, lawns and gardens of this state and which can
be controlled by good cultural practices or the use of
(z)"Off type" means any seed or plant not a part of the
variety in that it deviates in one or more characteristics from
the variety as described and may include: A seed or plant of
another variety; a seed or plant not necessarily any variety; a
seed or plant resulting from cross-pollination by another kind or
variety; a seed or plant resulting from uncontrolled self
pollination during production of hybrid seed; or segregates from
any of the above.
(aa)"Official sample" means any sample of seed taken by the
commissioner in accordance with the provisions of this article
and rules promulgated thereunder.
(bb)"Origin" for an indigenous stand of trees means the
area on which the trees are growing; for a nonindigenous stand,
it is the place from which the seeds or plants were originally
(cc)"Other crop seed" means seed of plants grown as crops
(other than the kind or variety included in the pure seed) as
determined by methods defined by rule.
(dd)"Person" means an individual, partnership, corporation,
company, association, receiver, trustee, agent, fiduciary, firm
or any group of organized persons whether incorporated or not.
(ee)"Pure seed" means seed exclusive of inert matter and
all other seeds not of the seed being considered as determined by
methods defined by rule.
(ff)"Registrant" means any person who registers as a
seedsman in order to distribute seed for sowing purposes within
(gg)"Seed potato" refers to the Irish potato (Solanum
tuberosum) which must grade equal to or better than the minimum
requirements of U.S. No. 1, from the standpoint of physical
defects, size or disease, and must be certified by an official
(hh)"Seizure" means a legal process carried out by court
order against a definite amount of seed.
(ii) "Stop sale or embargo" means an administrative order
provided by this article, restraining the sale, use, disposition,
and movement of a definite amount of seed.
(jj)"Treated" means that the seed has received an
application of a substance, or that it has been subjected to a
process for which a claim is made.
(kk)"Tree and shrub seeds" includes seeds of woody plants
commonly known and sold as tree and shrub seeds in this state.
(ll)"Tree seed collector's declaration" means a statement
signed by a grower or person having knowledge of the place of
collection giving, for a lot of seed, the lot number, common or
scientific name of the species (and subspecies, if appropriate),
origin, elevation, and quantity of tree and shrub seed.
(mm)"Type" means a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated
except under special conditions.
(nn)"Variant" means any seed or plant which: (A) Is
distinct within the variety but occurs naturally in the variety;
(B) is stable and predictable with a degree of reliability
comparable to other varieties of the same kind, within recognized
tolerances, when the variety is reproduced or reconstituted; and
(C) was originally a part of the variety as released. A variant
is not an off-type.
(oo)"Variety" means a subdivision of a kind which is
distinct, uniform and stable.
(1)"Distinct" means that the variety can be differentiated
by one or more identifiable morphological, physiological or other
characteristics from all other varieties of public knowledge.
(2)"Uniform" means that the variations in essential and
distinctive characteristics are describable.
(3)"Stable" means that the variety will remain unchanged
in its essential and distinctive characteristics and its
uniformity when reproduced or reconstituted as required by the
different categories of varieties.
(pp)"Vegetable seeds" includes the seeds of those crops
which are grown in gardens or on truck farms and are generally
known and sold under the name of vegetable or herb seeds in this
(qq) "Weed seed" means the seeds of all plants generally
recognized as weeds within this state, as determined by methods
defined by rule, and includes the categories of prohibited noxious weed seeds and restricted noxious weed seeds.
§19-16-2. Label requirements for agricultural, vegetable, tree
and shrub seeds and seed potatoes.
Each container of agricultural or vegetable seeds which is
distributed or transported within this state for sowing purposes
shall bear thereon or have attached thereto in a conspicuous
place a plainly written or printed label or tag in the English
(a)For all treated agricultural and vegetable seeds (for
which a separate label may be used):
(1)A word or statement indicating that the seed has been
(2)The commonly accepted coined, chemical or abbreviated
chemical (generic) name of the applied substance or description
of the process used.
(3)A caution statement, such as "do not use for food,
feed, or oil purposes," if the substance in the amount present
with the seed is harmful to human or other vertebrate animals.
The caution for toxic substances shall be a poison statement or
symbol or both a poison statement and symbol.
(4)The date beyond which the inoculant is not to be
considered effective (date of expiration), if the seed is treated
with an inoculant.
(b)For agricultural seeds, except for grass seed mixtures,
seed sold on a pure live seed basis or for hybrids which contain
less than ninety-five percent hybrid seed:
(1)The commonly accepted name of the kind and variety for each agricultural seed component present in excess of five
percent of the whole and the percentage by weight of each in
order of its predominance: Provided, That if the variety of
those kinds generally labeled as to variety is not stated, the
label shall show the name of the kind and the words, "Variety Not
Stated." Hybrids shall be labeled as hybrids.
(2)Lot number or other lot identification.
(3)Origin (state or foreign country), if known, of
alfalfa, red clover and field corn (except hybrid corn). If the
origin is unknown, the fact shall be stated.
(4)Percentage by weight of all weed seeds.
(5)The name and rate of occurrence per pound or ounce of
each kind of restricted noxious weed seed or undesirable grass
seed present. The name and approximate number of each kind of
noxious weed seed: (a) Per ounce in Agrostis spp., Poa spp.,
Rhodes grass, Bermuda grass, timothy, orchard grass, fescues,
alsike and white clover, reed, canary grass, Dallas grass,
ryegrass, foxtail millet, alfalfa, red clover, sweet clovers,
lespedezas, smooth brome, crimson clover, Brassica spp., flax,
Agropyron spp., and other agricultural seeds of similar size and
weight, or mixtures within this group; and (b) per pound in
Proso, sudan grass, wheat, oats, rye, barley, buckwheat,
sorghums, vetches and other agricultural seeds of a size and
weight similar to or greater than those within this group, or any
mixtures within this group.
(6)Percentage by weight of agricultural seeds (which may
be designated as "crop seeds") other than those required to be named on the label.
(7)Percentage by weight of inert matter.
(8)For each named agricultural seed:
(A) Percentage of germination, exclusive of hard seed;
(B)Percentage of hard seed, if present;
(C)Following (A) and (B) above the "total germination and
hard seed" may be stated as such, if desired;
(D)The calendar month and year the test was completed to
determine such percentages; and
(9)Name and address of the person who labeled said seed,
or who distributes said seed within this state.
(c)For grass seed mixtures for lawn or turf purposes;
(1)The word "mixed" or "mixture" shall be stated with the
name of the mixture;
(2)The heading "Pure Seed" and "Germination" or "Germ"
shall be used in the proper places;
(3)Commonly accepted name of kind or kind and variety of
each agricultural seed component in excess of five percent of the
whole, and the percentage by weight of pure seed in order of its
predominance and in columnar form;
(4)Percentage by weight of agricultural seed other than
those required to be named on the label (which shall be
designated as "crop seed");
(5)The percentage by weight of inert matter not to exceed
ten percent by weight. Except for coating material, fertilizer
and mulch as provided by section three, subdivision (d) of this
article, foreign material not common to grass seed shall not be added;
(6)Percentage by weight of all weed seeds. Maximum weed
seed content not to exceed one-half of one percent by
(7)Noxious weed seeds that are required to be labeled by
rule will be listed under the heading "Noxious Weed Seeds";
(8)For each agricultural seed named under section three
(A)Percentage of germination, exclusive of hard seed;
(B)Percentage of hard seed, if present;
(C)Calendar month and year the test was completed to
determine such percentages. The most recent available
chronological test date shall be used;
(D) When only one test date is listed for the entire
mixture, the listed test date shall be the oldest chronological
test date of the components; and
(9)Name and address of the person who labeled said seed,
or who distributes said seed within the state.
(d)For agricultural seeds that are coated:
(1)Percentage by weight of pure seeds with coating
(2)Percentage by weight of coating material;
(3)Percentage by weight of inert material exclusive of
coating material; and
(4)Percentage of germination is to be determined on 400
pellets with or without seeds.
(e)For vegetable seeds in packets as prepared for use in home gardens or household plantings; or in preplanted containers,
mats, tapes, or other planting devices:
(1)Name of kind and variety of seed;
(2)Lot number or other lot identification;
(3)The year for which the seed was packed for sale as
"Packed for _____________" or the percentage germination and the
calendar month and year the test was completed to determine such
(4)Name and address of the person who labeled the seed or
who distributes the seed for sale within this state.
(f)For seeds which germinate less than the standard as
established by rule promulgated under this article:
(2)Percentage of hard seed, if present; and
(1)Percentage of germination, exclusive of hard seed;
(3) The words "Germination Below Standard" in not less than
(g)For seeds placed in a germination medium, mat, tape, or
other device in such a way as to make it difficult to determine
the quantity of seed without removing the seeds from the medium,
mat, tape or device, a statement to include the minimum number of
seeds in the container;
(h)For vegetable seeds in containers other than packets
prepared for use in home gardens or household plantings and other
than preplanted containers, mats, tapes, or other planting
(1)The name of each kind and variety present in excess of
five percent and the percentage by weight of each in order of its predominance;
(2)Lot number or other lot identification;
(3)For each named vegetable seed:
(A) Percentage germination exclusive of hard seed;
(B)Percentage of hard seed, if present;
(C)Following (A) and (B) the "total germination and hard
seed" may be stated as such, if desired; and
(D)The calendar month and year the test was completed to
determine such percentages; and
(4)Name and address of the person who labeled said seed,
or who distributes said seed within this state.
(i)For agricultural and vegetable hybrid seed which
contain less than ninety-five percent hybrid seed:
(1)Kind or variety must be labeled as "hybrid";
(2) The percent which is hybrid shall be labeled
parenthetically in direct association following named variety;
such as, Comet (eighty-five percent Hybrid); and
(3)Varieties in which the pure seed contain less than
seventy-five percent hybrid seed shall not be labeled as
(j)For agricultural and vegetable seeds, the label may
show an expiration date in lieu of:
(1)The calendar month and year of a germination test or
pure live seed test; and
(2)The year for which the seed was packaged;
(k)For combination mulch, seed and fertilizer products:
(1)The word "combination" followed by the words "mulch - seed - fertilizer (if appropriate)" must appear on the upper
thirty percent of the principal display panel. The word
"combination" must be the largest and most conspicuous type on
the container, equal to or larger than the product name. The
words "mulch - seed - fertilizer" shall be no smaller than one- half the size of the word "combination" and in close proximity to
the word "combination." These products shall contain a minimum
of seventy percent mulch; and
(2)Agricultural, lawn and turf seeds placed in a
germination medium, mat, tape or other device or mixed with mulch
shall be labeled as follows:
(C) Percentage by weight of pure seed of each kind and
variety named which may be less than five percent of the whole;
(D)Percentage by weight of other crop seeds;
(E)Percentage by weight of inert matter which shall not be
less than seventy percent;
(F)Percentage by weight of weed seeds;
(G)Name and number of noxious weed seeds per pound or
ounce, if present;
(H)Percentage of germination (and hard seed if
appropriate) of each kind or kind and variety named and date of
(I)Name and address of the person who labeled said seed,
or who distributes said seed within this state;
(l)The labeling requirements for agricultural, and vegetable seeds shall be deemed to have been met if the seed is
weighed from a properly labeled bulk container in the presence of
(m)Once a dealer has broken the seal on a container of
seed for any reason, the dealer becomes fully responsible for
it's contents including the guarantees for purity, germination
rate and anything else pertaining to the integrity of the opened
(n) Label requirements for tree and shrub seeds:
Each container of tree and shrub seed which is distributed
or transported within this state for sowing purposes shall bear
thereon or have attached thereto in a conspicuous place a plainly
written or printed label or tag in the English language, giving
the following information, which statement may not be modified or
denied in the labeling or on another label attached to the
container -- except that labeling of seed supplied under a
contractual agreement may be by invoice accompanying the shipment
or by an analysis tag attached to said invoice if each bag or
other container is clearly identified by a lot number stenciled
on the container, or if the seed is in bulk. Each bag or
container that is not so identified must carry complete labeling.
(1)For all treated tree and shrub seeds as defined in this
article (for which a separate label may be used):
(A)A word or statement indicating that the seed has been
(B)The commonly accepted coined, chemical or abbreviated
chemical (generic) name of the applied substance or description of the process used;
(C)A caution statement, such as "Do not use for food, feed
or oil purposes," if the substance in the amount present with the
seed may be harmful to human or other vertebrate animals. The
caution for mercurials and similarly toxic substances shall be a
poison statement and symbol; and
(D)The date beyond which the inoculant is not to be
considered effective (date of expiration), if the seed has been
treated with an inoculant;
(2)For all tree and shrub seeds subject to the article:
(A)Common name of the species of seed (and subspecies, if
(B)The scientific name of the genus and species (and
subspecies, if appropriate);
(C)Lot number or other lot identification; and
(i)For seed collected from a predominantly indigenous
stand, the area of collection given by latitude and longitude, or
geographic description, or political subdivision such as state or
(ii)For seed collected from other than a predominantly
indigenous stand, identify the area of collection and the origin
of the stand or state "Origin not Indigenous."
(E)The elevation or the upper and lower limits of
elevations within which said seed was collected.
(F)Purity as a percentage of pure seed by weight.
(G)For those species for which standard germination testing procedures are prescribed by the Commissioner, the
(i)Percentage germination exclusive of hard seed.
(ii)Percentage of hard seed, if present.
(iii)The calendar month and year test was completed to
determine such percentages.
(iv)In lieu of (i), (ii) and (iii) above, the seed may be
labeled "Test is in process, results will be supplied upon
(H)For those species for which standard germination
testing procedures have not been prescribed by the commissioner,
the calendar year in which the seed was collected.
(I)The name and address of the person who labeled said
seed or who distributes said seed within this state.
(o) Label requirements for seed potatoes:
(1)The following information must appear on each label
attached to a bag or container of certified seed potato:
(A)Name of the person or agency certifying such seed
(B)Name of the official state or governmental agency
making the inspection upon which the certification is made;
(C)Name and address or identification number of the grower
of such seed potatoes.
§19-16-3. Certificate of registration; seed fees; payment of
fees; disposition of funds.
(a) No person may distribute any agricultural, vegetable,
tree and shrub seeds or seed potatoes without a valid certificate of registration issued by the commissioner. Application forms
shall be provided by the commissioner and the application fee
will be set forth by regulations. Each certificate of
registration shall expire on the thirty-first day of December
following the next date of issue. A dealer may not be required
to register, if he or she can prove that the person he or she is
obtaining the seed from has a valid certificate of registration.
(b) A person must apply for a certificate of registration at
least fifteen days prior to the expiration of the current
registration; or at least fifteen days prior to the date that the
person intends to engage in business in this state. Each
application shall be accompanied by the fee established in this
section. A penalty of two dollars shall be added to the fee for
each registration that is not applied for or renewed within the
(c)Certificates of registration are not transferable with
respect to persons or locations.
(d)The commissioner may refuse to grant, or may suspend or
revoke a certificate of registration when it is determined that
the applicant or registrant has violated the provisions of this
article or any official rule promulgated hereunder; or this
article or the rules promulgated hereunder cannot be or will not
be complied with: Provided, That the applicant or registrant
shall have the opportunity to be heard prior to the denial of the
application or suspension or revocation of the registration.
(e) Each person who holds a valid certificate of
registration shall report to the commissioner the net pounds or kilograms of seeds distributed and sold by kind or variety,
except for seed potatoes, on a semiannual basis. Each report
shall be filed under oath and due before the thirty-first day of
January and July of each year for the preceding six-month period.
Payment shall be made according to the fee schedule for
agriculture, vegetable, tree and shrub seeds as set by rules.
(f)Persons distributing vegetable seeds packaged in
containers of eight ounces or 226.8 grams or less and sold from
display units are exempt from reporting poundage and paying a
poundage fee: Provided, That a seed stamp be purchased from the
commissioner , at the rate set by rules, and placed in a
conspicuous place on each display unit.
(g)Persons first distributing seed potatoes into West
Virginia trade channels shall report to the commissioner the net
pounds or kilograms of seed potatoes distributed during the first
six months of the year. The report and appropriate fee is due by
the thirty-first day of July as set by rules.
(h)All persons must keep accurate records, as may be
necessary or required by the commissioner, to indicate the pounds
of agricultural, vegetable, or tree and shrub seeds or seed
potatoes distributed in this state.
(i) All fees and penalties collected under the provisions of
this article shall be deposited with the state treasurer in a
special revenue account. These moneys shall be expended by the
commissioner of agriculture for inspection, sampling, analysis,
and other expenses necessary for the administration of this
(a) It is unlawful for any person to distribute or transport
for sale any agricultural, vegetable, tree and shrub seeds or
seed potatoes within this state:
Unless the test to determine the percentage of germination
required by sections three and four of this article has been
completed within the test period prescribed in rules proposed
under authority of this article, except that seed potatoes are
exempted from germination testing;
(1)Not labeled in accordance with the provisions of this
article or which has false or misleading labeling;
(2)Which has been the subject of false or misleading
(3)Consisting of or containing prohibited noxious weed
seeds, subject to tolerances and methods of determination as
prescribed by rules promulgated under this article;
(4)Consisting of or containing restricted noxious weed
seeds per pound or ounce in excess of the number prescribed by
rules promulgated under this article, or in excess of the number
declared on the label attached to the container of the seed or
associated with seed;
(5)Containing more than two and one-half percent by weight
of all weed seeds;
(6)If any labeling, advertising or other representation
subject to this article represents the seed to be certified seed
or any class thereof unless:
(A)It has been determined by a seed certifying agency that such seed conformed to standards of purity and identity as to
kind, species (and subspecies, if appropriate), or variety, and
also that tree seed was found to be of the origin and elevation
claimed, in compliance with the rules and regulations of that
agency pertaining to such seed; and
(B) That the seed bears an official label issued for that
seed by a seed certifying agency certifying that the seed is of
a specified class and a specified kind, species (and subspecies,
if appropriate) or variety;
(7)Labeled with a variety name but not certified by an
official seed certifying agency when it is a variety for which a
U. S. certificate of plant variety protection under the Plant
Variety Protection Act specifies sale only as a class of
certified seed: Provided, That seed from a certified lot may be
labeled as to variety name when used in a mixture by, or with the
approval of, the owner of the variety.
(b)It is unlawful for any person within this state:
(1)To detach, alter, deface, or destroy any label provided
for in this article or the rules promulgated under this article,
or to alter or substitute seed in a manner that may defeat the
purpose of this article.
(2)To disseminate any false or misleading advertisement
concerning seeds subject to this article in any manner or by any
(3)To interfere with the commissioner's official duties.
(4)To fail to comply with a "stop sale or embargo" order
or to move or otherwise handle or dispose of any lot of seed held under a "stop sale or embargo" order or tags attached thereto,
unless released by the commissioner, and for the purpose
(5)To use the word "trace" as a substitute for any
statement which is required.
(6)To use the word "type" in any labeling in connection
with the name of any agricultural seed variety.
(7)To distribute or knowingly use any agricultural,
vegetable or tree and shrub seed that is misbranded.
(8)To misbrand any agricultural, vegetable, or tree and
shrub seed or seed potato. An agricultural, vegetable, tree or
shrub seed or seed potato is misbranded:
(A)If its label or labeling is false or misleading.
(B)If it is not labeled as required by this article.
(C)If any word, statement, or other information required
by this article to appear on the label is not prominently and
conspicuously placed so that it can be read and understood by the
ordinary individual under customary conditions of purchase and
(D)If any damage or inferiority has been concealed.
(9)To distribute or knowingly use any agricultural,
vegetable, or tree and shrub seed or seed potato that has not had
an accurate statement of poundage reported to the commissioner in
the previous reporting period;
(10)To use or imply the name West Virginia department of
agriculture, or reference any inspection or sample findings made
by the West Virginia department of agriculture on labels or labeling of agricultural, vegetable, or tree and shrub seed or
(11) To falsify any laboratory reports regarding seed
distributed within this state.
(a)The provisions of sections two, three, four and eight
of this article do not apply:
(1)To seed or grain not intended for sowing purposes.
(2)To seed in storage, or seed being transported or
consigned to a cleaning or processing establishment for cleaning
or processing: Provided, That the invoice, label or labeling
accompanying any shipment of said seed bears the statement "seeds
for processing"; and that any label or labeling or other
representation which may be made with respect to the uncleaned or
unprocessed seed shall be subject to this article.
(3)To any carrier in respect to any seed transported or
delivered for transportation in the ordinary course of its
business as a carrier: Provided, That the carrier is not engaged
in producing, processing, or marketing seeds subject to the
provisions of this article.
(b)No person is subject to the penalties of this article
for having sold or offered for sale seeds subject to provisions
of this article which were incorrectly labeled or represented as
to kind, species (and subspecies, if appropriate), variety, type,
or origin, elevation, and year of collection (if required), which
seeds cannot be identified by examination thereof, unless he has
failed to obtain an invoice, genuine grower's or tree seed collector's declaration or other labeling information and to take
such other precautions as may be reasonable to insure the
identity to be that stated. A genuine grower's declaration of
variety shall affirm that the grower holds records of proof
concerning parent seed, such as invoice and labels.
(c)The provisions of sections two and three of this
article do not apply to tree seed produced by the consumer.
§19-16-6. Duties and authority of commissioner of agriculture
The commissioner has the power and authority to:
(a) Establish by legislative rule germination standards for
agricultural, forest, vegetable seeds;
(b) Enter and inspect, during reasonable hours, any location
where agricultural, vegetable, tree and shrub seeds or seed
potatoes for sowing purposes are manufactured, distributed,
transported or used, and where records relating to the
manufacture, distribution, shipment, labeling or sale of seed are
kept. This inspection includes, but is not limited to,
examining, photographing, verifying, copying and auditing records
as is necessary to determine compliance with this article,
labels, consumer complaints, and papers relating to the
manufacturing, distribution, sampling, testing and sale of
agricultural, vegetable, tree and shrub seeds or seed potatoes;
(c) Open, examine, sample and test agricultural, vegetable,
or tree and shrub seeds or seed potatoes, equipment, containers,
transport containers, and packages used or intended to be used in
the manufacture and distribution of seeds used for sowing
(d) Issue certificates of registration pursuant to this
(e) Refuse applications for registration; or suspend or
revoke registrations as provided in this article;
(f) Issue "stop sale or embargo" orders as provided in this
(g) Condemn and confiscate any agricultural, vegetable, or
tree and shrub seed or seed potato that is not brought into
compliance with this article;
(h) Collect fees and penalties, and expend moneys under the
terms of this article;
(i) Sampling in accordance with the official methods as
established by The Association of Analytical Chemists, The
Association of American Seed Control Officials, The United States
Department of Agriculture or The Association of Official Seed
(j) Conduct hearings as provided by this article;
(k) Assess civil penalties and refer violations to a court
of competent jurisdiction;
(l)Obtain court orders directing any person refusing to
submit to inspection, sampling and auditing to submit;
(m) Establish and maintain seed testing facilities;
establish reasonable fees for such tests; incur expenses; and
conduct tests in accordance with the Association of Official Seed
(n) Be guided by the analytical results of the official
sample when determining whether the agricultural, vegetable, or tree and shrub seed is deficient in any component;
(o) Report the analytical results on all official deficient
samples to the registrant, dealer, purchaser if known, and or
(p) Upon request made within thirty days from the date the
official sample results are reported, furnish a portion of the
official sample to the registrant;
(q) Publish and distribute annually a composite report
containing: (1) The sales of agricultural, vegetable, tree and
shrub seeds and seed potatoes during the preceding period; (2)
the results of analysis of official samples as compared with the
guarantee on the label; (3) firms responsible for the product;
and (4) such other data the commissioner deems necessary:
Provided, That the information on production and use so provided
does not disclose the operations of any person;
(r) To cooperate with and enter into agreements with
governmental agencies of this state and other states, agencies of
the federal government and foreign governments, and private
associations in order to carry out the purpose and provisions of
(s) Propose rules, in accordance with chapter twenty-nine-a
of this code; and
(t) Promulgate emergency rules ninety days within passage of
this bill into law.
§19-16-7. Stop sale orders or embargo; seizure.
(a)Stop sale orders: When the commissioner has reasonable
cause to believe any lot of seed or seed potato is being distributed or used in this state in violations of the provisions
or of this article or any rule promulgated hereunder, then he or
she may issue and enforce a written stop sale order, warning the
custodian of the seed not to distribute, use, remove or dispose
of the seed in any manner until the stop sale order is released
by the commissioner or by court order.
(1) When the stop sale or embargo order is issued, the
commissioner shall affix a tag or other marking to the seed
warning that such seed is under a stop sale order and notify the
custodian that he or she has a right to request an immediate
(2) The commissioner shall release the stop sale or embargo
order when said seed has been brought into compliance with this
article and its rules.
(3) The commissioner has the authority to issue a stop sale
or embargo order against a perishable product, even if the result
is the involuntary disposal of the product.
(4) The commissioner may take action to seize any seed not
brought into compliance with this article and the rules issued
hereunder, within ninety days of the notice to the custodian.
(b) Seizure: Any lot of seed or seed potato not in
compliance with the provisions of this article shall be subject
to seizure on complaint of the commissioner to a court of
competent jurisdiction in the locality in which the seed or seed
potato is located. In the event the court finds the seed to be
in violation of this article and orders the condemnation of said
seed or seed potato, it shall be denatured, processed, destroyed, relabeled, or otherwise disposed of in compliance with the laws
of this state: Provided, That in no instance may the court order
such disposition of said seed without first having given the
claimant an opportunity to apply to the court for the release of
said seed or seed potato or permission to process or relabel it
into compliance with this article.
§19-16-8. Penalties and prosecutions.
(a) Criminal penalties. -- Any person violating any of the
provisions of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars for the first offense,
and for each subsequent offense, shall be fined not less than
five hundred nor more than one thousand dollars, or imprisoned in
the county jail not more than six months, or both fined and
imprisoned. Magistrates have concurrent jurisdiction with
circuit courts to enforce the provisions of this article.
(b) Civil penalties. --
(1) Any person violating any of the provisions of this
article or the rules adopted hereunder may be assessed a civil
penalty by the commissioner. In determining the amount of any
civil penalty, the commissioner shall give due consideration to
the history of previous violations of any person; the seriousness
of the violation, including any irreparable harm to the
environment, and the demonstrated good faith of any person
charged in attempting to achieve compliance with this article
after written notification of the violation.
(2) The commissioner may assess a penalty of not more than five hundred dollars for the first offense or nonserious
violation, as determined by the commissioner in accordance with
the rules promulgated in accordance with the provisions of
chapter twenty-nine-a of this code, and not more than one
thousand dollars for a serious, repeat, or intentional violation,
as determined by the commissioner in accordance with such
(3) The civil penalty is payable to the state of West
Virginia and is collectible in any manner now or hereafter
provided for collection of a debt. Any person liable to pay the
civil penalty and neglecting or refusing to pay the same, shall
be assessed interest at ten percent per annum from the date the
penalty was assessed. The penalty and interest constitute a lien
in favor of the state of West Virginia and shall attach on the
person's property when such lien is properly recorded in the
county where such property is located. There may be no cost as
a condition precedent to recording.
(c) Notwithstanding any other provision of law to the
contrary, the commissioner may promulgate and adopt rules which
permit consent agreements or negotiated settlements for the civil
penalties assessed as a result of a violation of the provisions
of this article.
(d) Nothing in this article may be construed as to require
the commissioner to report minor violations of this article when
the commissioner believes that the public interest will be best
served by a written notice.
(e) No state court may allow the recovery of damages for administrative action taken if the court finds that there was
probable cause for such action.
NOTE: This bill rewrites the Agricultural and Forest Seed
law and redesignates the article as the WestVirginia Seed law.
It provides new definitions; labeling requirements for
agricultural, vegetable, tree and shrub seeds and seed potatoes;
certificates of registration requirements, seed fees and use of
the fees by the commissioner of agriculture. It prohibits
distributions or transportations of certain seeds and other acts
and provides certain exemptions. It defines the power and
authority of the commissioner of agriculture to enforce the
provisions of the new article, including right of embargo and
seizure by commissioner. And provides civil and criminal
This article is completely rewritten; therefore,
strike-throughs and underscoring have been omitted.