The commissioner shall be a practical farmer, learned in the science of agriculture, and shall have made agriculture his chief business for a period of ten years immediately preceding his election.
commissioner.
The commissioner shall organize his department and may employ
such assistants, agents, clerks, stenographers, chemists, analysts,
botanists, microscopists, institute instructors, pomologists,
entomologists, veterinarians and such other employees as may be
necessary in the performance of the duties of his office and fix
their compensation and may require them to give bond for the
faithful performance of their duties.
It shall be the duty of the commissioner to certify to the auditor of this State, from time to time, an itemized account of all expenditures made by him for clerk hire and other purposes, whereupon the auditor shall draw his warrant on the treasurer of the State for the payment thereof out of the funds appropriated by the legislature for that purpose, but in no case to exceed such appropriation.
The commissioner shall, within ten days after the expiration of each month, submit to the auditor and treasurer an itemized statement of all moneys received by him during that month, and at the same time pay such money into the treasury of the State.
The duties of the Marketing and Development Division are to
establish marketing, promotional and development programs to
advance West Virginia agriculture in the domestic and international
markets; to provide grading, inspection and market news services to
the various elements of the West Virginia agricultural industry;
and to regulate and license individuals involved in the marketing
of agricultural products.
Acts, 2010 Reg. Sess., Ch. 32.
(a) Devise means of advancing the agricultural interests of the state and, in the performance of such duty, he or she shall have authority to call upon any state department, or officer of the state or county, to cooperate in promoting the agricultural interests of the state. It shall be the duty of any such department, or officer, upon request of the commissioner to render the assistance desired;
(b) Promote and encourage the organization of such societies and associations as have for their object the improvement and development of the state's agricultural, horticultural and kindred interests, especially in production, processing for market and distribution;
(c) Conduct cooperative work with the United States department of agriculture in inspecting and determining the grade and condition of farm produce at collecting centers, receiving centers and shipping points;
(d) Induce the investment of capital in, and immigration into, this state by the dissemination of information relative to the soil, climate, health, natural resources, market opportunities and advantages of the state;
(e) Investigate and report upon the kinds, conditions and extent of the mineral products of the state and their value;
(f) Take charge of the museum of the department of agriculture, collect, preserve and exhibit therein specimens of agricultural, horticultural and kindred products, products of the forests, minerals, flora and fauna of the state;
(g) Publish and distribute, from time to time, such reports and bulletins concerning agriculture, horticulture and kindred subjects as may be of value to the farmers of the state and, as conditions may demand, publish a handbook giving the resources of the several counties of the state, the varieties of soil and products, both mineral and vegetable, and the adaptability of the different sections of the state to the different branches of agriculture, horticulture and kindred interests;
(h) Submit a biennial report to the governor and Legislature containing such information as to the operations of the department as may be helpful to the agricultural interests of the state, together with an itemized statement of all receipts and disbursements during the biennial period covered thereby and giving the name of every person employed during such period, the time employed and the amount paid each employee;
(i) Perform such other duties and exercise such other powers as are provided in this chapter and by general law; and
(j) Propose rules, including regulatory standards, for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the purpose of carrying out the requirements of this chapter.
The commissioner of agriculture is hereby empowered and he shall have authority to accept and receive donations, gifts, contributions, grants, and appropriations of money, services, materials, real estate or other things of value from the United States department of agriculture, or any of its divisions or bureaus, and he shall have authority to use, utilize, develop, or expend such money, services, material, or other contributions in conformity with the conditions and provisions set forth in such grants, appropriations, or donations.
By and with the approval of the governor, the commissioner may accept and receive donations, gifts, contributions, and grants of money, services, materials, real estate, and other things of value from individuals, partnerships, associations, or corporations, and he shall have authority to utilize such contributions to encourage, promote and develop the agricultural interests or industries of the state.
The commissioner is hereby empowered, and he shall have authority, to enter into agreements with any department of state government for the purpose of carrying out any regulatory laws where or when any related functions or duties exist. He shall also have authority to enter into agreements with any city council or county court of the state of West Virginia, for carrying out the provisions of the agricultural laws over which he has enforcement authority.
The commissioner is hereby authorized to promulgate and adopt rules in accordance with the provisions of chapter twenty-nine-a of this code, fixing dues for permits, licenses, certificates, registrations and laboratory tests when, in the opinion of the commissioner, it becomes necessary to increase these fees in order to cover the costs of providing the services involved or issuing the permits, licenses, certificates or registrations applicable.
Commencing on the first day of July of each year, the assessors shall proceed to gather such statistics as the commissioner of agriculture and the tax commissioner may require, and the printed books, forms, blanks, papers and reports when so completed shall be returned to the commissioner of agriculture, on or before the first day of March next ensuing.
Repealed.
Acts, 1980 Reg. Sess., Ch. 31.
The decision of any two members of such board shall be final, and the department against which such decision shall be shall cease all activities not in conformity with such decision, and the other department shall proceed to carry on the work in conformity therewith.
The Legislature also finds that the production potential of the state's forest resources remains far greater than the present demand.
The Legislature further finds that the promotion of existing forest products industries and the promotion of new forest products industries would benefit the state in terms of employment and additional revenue to the state.
The Legislature further finds and declares that, to increase employment and boost the state's economy, the limits to the development of the potential of West Virginia forest resources must be reduced through an intensive campaign aimed at making new contacts, developing new and existing markets and increasing public awareness of the advantages of the forest resources in West Virginia.
The Legislature further finds that the state forests are an important resource for silvicultural and scientific research; developed and undeveloped outdoor recreation; propagation of forest trees, fish and wildlife; wildlife and fisheries management; aesthetic preservation; hunting and fishing; timber production; and demonstration of state-of-the-art forestry management and therefor should be managed on a multiple-use basis.
The Division of Forestry has jurisdiction to regulate the growing, digging, collecting, gathering, possession and sale of ginseng as provided in section three-a, of this article.
The chief of the Division is the Director of the Division of Forestry who shall be appointed and qualified as provided in section five of this article.
The Director of the Division of Forestry shall study means and methods of implementing the provisions of section fifty-three, Article VI of the Constitution of West Virginia, relating to forest lands, and shall prepare and recommend legislation thereon.
The Division lines within the State Forests between improved recreation areas under the management of the Division of Natural Resources and the demonstration forests under the management of the Division of Forestry, heretofore established by agreement, are hereby continued with the exception of Kanawha State Forest where the entire forest will be managed by and under the jurisdiction of the Division of Natural Resources for multiple uses and the Division of Natural Resources shall continue to provide recreational opportunities, including, but not limited to, mountain-biking trails, hiking trails, horseback-riding trails and hunting, fishing and trapping lands. The forest may not be designated as a state park or state recreation area; however, any sale of timber from Kanawha State Forest shall continue to be prohibited.
In the event of disagreement over the placement of a Division line or dual occupancy of a building, the disposition shall be decided by the Legislature's Joint Committee on Government and Finance at a regularly scheduled meeting.
(2) For purposes of this section:
(A) "Certified" means the ginseng carries a certificate of origin issued by the director which allows the export from West Virginia of ginseng legally harvested in this state;
(B) "Commercial use" means to sell or to use ginseng for financial gain;
(C) "Cultivated ginseng" means ginseng that is purposefully planted in beds under artificial shade using standard horticultural practices such as mechanical tillage, fertilization, weed control, irrigation and pesticides;
(D) "Dealer" means a person who purchases ginseng for purposes of commercial use;
(E) "Digger" means a person who digs, collects or gathers wild ginseng by searching woodlands to find the plants;
(F) "Director" means the Director of the Division of Forestry;
(G) "Division" means the Division of Forestry;
(H) "Export" means the movement of ginseng from state to state as well as sending it abroad;
(I) "Ginseng" means cultivated ginseng, woods grown ginseng, wild simulated ginseng and wild ginseng;
(J) "Green ginseng" means a fresh wild ginseng root that has not been intentionally subjected to a drying process and from which most natural moisture has not been removed by drying.
(K) "Grower" means a person who purposefully plants and grows cultivated ginseng, woods grown ginseng or wild simulated ginseng for purposes of commercial use: Provided, That a grower does not include a digger who plants wild ginseng seed from the wild ginseng plants he or she digs, collects or gathers;
(L) "Harvest" means to dig, collect or gather ginseng;
(M) "Person" means an individual, corporation, partnership, firm or association;
(N) "Rootlets" means woods grown or wild simulated one to two-year old ginseng roots commonly sold as transplants to growers;
(O) "Wild ginseng" means Panax quinquefolius L. that is not grown or nurtured by a person regardless of the putative origin of the plants: Provided, That wild ginseng may originate from seeds planted by a digger at the same site from which the digger harvests the wild ginseng;
(P) "Wild simulated ginseng" means ginseng that is purposefully planted in the woods without a bed being prepared and without the use of any chemical weed, disease or pest control agents;
(Q) "Woods grown ginseng" means ginseng that is purposefully planted in beds prepared in the woods in a manner that uses trees to provide necessary shade and which may be grown with the use of chemical or mechanical weed, disease or pest control agents.
(3) (A) The Division of Forestry shall regulate the growing, digging, collecting, gathering, possessing and selling of ginseng.
(B) The division may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this section including the amount of any permit fee.
(C) For purposes of regulating the growing, harvesting and commercial use of ginseng, a division employee may enter upon any public or private property, other than a dwelling house, at reasonable times, in order to inspect the ginseng operation or records. A person may not obstruct or hinder the employee in the discharge of his or her enforcement duties.
(D) All moneys received from permit fees and civil penalties assessed pursuant to this section shall be credited to the special account within the Division of Forestry to be used for the purposes set forth in section three of this article.
(E) The site plats required to be submitted to the division and other information identifying the specific location of ginseng plants are not open to public inspection pursuant to article one, chapter twenty-nine-b of this code since they disclose information having a significant commercial value.
(b) (1) The digging season for wild ginseng begins on the first day of September and ends on the thirtieth day of November of each year. It is unlawful for a person to dig, collect, or gather wild ginseng between the first day of December and the thirty-first day of August of the following year.
(2) A person digging, collecting, or gathering wild ginseng upon the enclosed or posted lands of another person shall first obtain written permission from the landowner, tenant or agent, and shall carry the written permission on his or her person while digging, collecting or gathering wild ginseng upon the enclosed or posted lands. It is unlawful to dig, collect, or gather wild ginseng from the property of another without the written permission of the landowner.
(3) A person digging, collecting or gathering wild ginseng shall plant the seeds from the wild ginseng plants at the time and at the site from which the wild ginseng is harvested. It is unlawful to remove wild ginseng seeds from the site of collection.
(4) It is unlawful to dig, collect or gather wild ginseng less than five years old.
(5) A person may not rescue wild ginseng plants endangered by ground-disturbing activities unless he or she has first obtained a moving permit from the division. The person shall provide the reason for moving the plants, the current location of the plants, the proposed new planting site and other information required by the division.
(6) It is unlawful to plant ginseng or ginseng seed and to dig, collect or gather ginseng on West Virginia public lands, except by land grant university researchers performing research or demonstration projects regarding the growing, cultivating or harvesting of ginseng: Provided, That it is unlawful for anyone to plant ginseng or ginseng seed and to dig, collect, or gather ginseng on state wildlife management areas or on state parks.
(c) (1) A person may not act as a grower unless he or she has obtained a grower's permit from the division.
(2) Prior to planting cultivated, woods grown or wild simulated ginseng, a grower shall:
(A) Submit to the director a plat of the exact planting location prepared by a licensed surveyor or a registered forester as defined in article nineteen, chapter thirty of this code, along with information verifying the name of the landowner: Provided, That if the grower is not the landowner, the grower shall also submit written permission from the landowner to grow and harvest cultivated, woods grown or wild simulated ginseng on that property.
(B) Obtain a written determination from the director certifying that the planting area is free from wild ginseng; and
(C) Submit other information required by the division.
(3) A grower shall keep accurate and complete records on each ginseng planting on forms provided by the division. The records shall be available for inspection by a division employee and shall be submitted to the division at intervals established by rule by the division. A grower shall maintain records for a period of not less than ten years. The information required to be kept shall include:
(A) The origin of ginseng seed, rootlets or plants;
(B) The location of purposefully planted cultivated, wild simulated and woods grown ginseng and a site plat of the planting;
(C) The original of the director's determination that the site was free from wild ginseng at the time of planting;
(D) The date each site was planted;
(E) The number of pounds of seeds planted, or the number and age of rootlets, or both; and
(F) Other information required by the division.
(4) A grower may harvest cultivated ginseng on or after the effective date of this section throughout the year.
(5) A grower may harvest wild simulated and woods grown ginseng from the first day of September through the thirtieth day of November of each year.
(6) It is unlawful for a person to dig, collect or gather wild simulated and woods grown ginseng between the first day of December and the thirty-first day of August.
(7) It is unlawful to dig, collect and gather wild simulated and woods grown ginseng less than five years old.
(8) A grower shall comply with the certification procedures set forth in subdivision (f) of this section.
(9) For planting locations in existence prior to the first day of July, two thousand five, provide proof of having purchased ginseng seed, rootlets, or plants for planting for a minimum of one or more of the five years immediately prior to the first day of July, two thousand five, and sign a certification that to the best of his or her knowledge, no wild ginseng existed on the site at the time the ginseng was planted: Provided, That no grower may certify a planting location in existence prior to the first day of July, two thousand five under this provision after the thirty-first day of December, two thousand nine.
(d) (1) A person may not act as a dealer unless he or she has obtained a dealer's permit from the division.
(2) A dealer shall keep accurate and complete records on his or her ginseng transactions on forms provided by the division. A dealer is required to maintain a record of all persons, including a digger, grower and dealer, involved in each purchase or sale transaction and shall include the name, address, permit number, and a copy of each ginseng certification issued by the division. All records shall be available for inspection by a division employee. A dealer shall maintain records for a period of not less than ten years. In addition, a dealer is required to report the following information to the division monthly:
(A) The date of the transaction;
(B) The type of ginseng, whether wild, cultivated, woods grown or wild simulated ginseng;
(C) Whether the ginseng is dried or green at the time of the transaction;
(D) The weight of the ginseng;
(E) The county from which the ginseng was harvested;
(F) The identification number from the state ginseng certification; and
(G) Other information required by the division.
(3) A dealer shall include a West Virginia export certificate, numbered by the division, with each shipment of ginseng transported out-of-state.
(4) A dealer may not import out-of-state ginseng into this state unless the ginseng is accompanied by a valid export certificate issued by the state of origin. A dealer must return uncertified ginseng to the state of origin within fifteen calendar days.
(5) It is unlawful to include false information on any certificate or record required to be completed or maintained by this section. All ginseng harvested in West Virginia must be certified by the director before being transported or shipped out-of-state.
(e) (1) A person may not act as a grower or act as a dealer unless he or she has been issued the appropriate permit by the division. A person must obtain a separate permit for each activity. Permit applications shall be made on forms provided by the division. The application for a permit shall be accompanied by the applicable permit fee. The division shall assign a permit number to each person granted a permit and it shall keep records of the permits issued.
(2) Permits expire on the thirty-first day of December of each year for growers and the thirty-first day of August of each year for dealers. All permits must be renewed annually. Renewal forms will be mailed to current permit holders. The failure to receive a renewal form does not relieve the permit holder of the obligation to renew. The division may require a late fee when renewal is received more than sixty days after the expiration of the current permit.
(3) The permit holder shall notify the division of any changes in the information on the permit.
(f) All ginseng harvested in this state shall be certified as to type, whether wild, cultivated, woods grown or wild simulated, and to its origin, weight and lawful harvest. Other information may be required for ginseng to be certified by the division to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora to allow for its export: Provided, That live one and two-year old cultivated, woods grown or wild simulated rootlets sold by growers for propagation purposes within the United States are not regarded as harvested and are exempt from the certification requirement. All ginseng, except cultivated ginseng, must be certified or weight receipted by the first day of April of the year following harvest: Provided, however, That no ginseng may be certified between the first day of January through the thirty-first day of March unless the person requesting certification displays a valid permit. It is unlawful for a person to have in his or her possession uncertified wild ginseng from the first day of April through the thirty-first day of August.
(g) The director shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code designed to implement the ginseng certification process.
(h) The division may, by order entered in accordance with the provisions of article five, chapter twenty-nine-a, deny, suspend or revoke the permit of a grower or dealer and may invalidate an export certificate completed by a dealer when the division finds that a grower or dealer has violated any provision of this section or a legislatively approved rule.
(i) The division may assess a civil penalty against a person who violates any provision of this section or a provision of a legislatively approved rule. The division may assess a monetary penalty of not less than one hundred dollars nor more than five hundred dollars.
(j) Any person violating a provision of this section 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 dollars nor more than one thousand dollars, or confined in jail not more than six months, or both. The court, in imposing the sentence of a person convicted of an offense under this section, shall order the person to forfeit all ginseng involved in the offense.
(k) It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the division, to institute proceedings, and to prosecute the person charged with the violation.
(a) The director shall:
(1) Develop, promote and advance the growth of the forest products industries of this state;
(2) Cooperate with educational institutions, development agencies and private and public organizations to promote the expansion of the forest products industries of this state in local and global markets;
(3) Conduct research on marketing and developing forest products and forest products industries; conserving, managing and utilizing the state's forest land and its multiple uses; and improving the forestry knowledge and practices of private landowners; and
(4) Compile its findings and recommendations, and disseminate the results of its research to the public, the forest products industry, the Governor and the Legislature.
(b) The director has the power to carry out and effectuate the purposes of this article, article one-b of this chapter and article three of chapter twenty of this code, including the power to:
(1) Accept and use gifts, donations or contributions from individuals, organizations or corporations, and to acquire by gift, lease or purchase real estate;
(2) Establish law-enforcement practices and procedures to address the law-enforcement requirements of the division;
(3) To promulgate rules and regulations, subject to the provisions of chapter twenty-nine-a of this code; and
(4) Enter into stewardship end-result contract projects with
the United States Forest Service by written agreement or contract
and submit an annual report to the Joint Committee on Government
and Finance, no later than the first day of October each year,
specifying the locations of projects, the amount of funding
received, number of contracts and the purpose of each contract.
Repealed.
Acts, 1994 Reg. Sess., Ch. 119.
This article shall be known and cited as the "Logging Sediment Control Act."
The Legislature hereby finds that some activities associated with the commercial harvesting of timber results in the exposure of soil and that, if uncontrolled, such exposed soil can erode resulting in gullying, soil slippages and sediment deposition in streams.
It is the policy of this state to strengthen and extend the present sediment control activities of this state by implementing operator licensing, logger certification and logging operations notification programs through the division of forestry.
(b) "Chief" means the Director of the Division of Water and Waste Management of the Department of Environmental Protection, or his or her designee.
(c) "Director" means the Director of the Division of Forestry of the Department of Commerce or his or her designee.
(d) "Operator" means any person who conducts timbering operations.
(e) "Timbering operation," or the plural, means activities directly related to the severing or removal of standing trees from the forest as a raw material for commercial processes or purposes. For the purpose of this article, timbering operations do not include the severing of evergreens grown for and severed for the traditional Christmas holiday season; the severing of trees incidental to ground-disturbing construction activities, including well sites, access roads and gathering lines for oil and natural gas operations; the severing of trees for maintaining existing, or during construction of, rights-of-way for public highways or public utilities or any company subject to the jurisdiction of the Federal Energy Regulatory Commission unless the trees so severed are being sold or provided as raw material for commercial wood product purposes; or the severing of trees by an individual on the individual's own property for his or her individual use provided that the individual does not have the severing done by a person whose business is the severing or removal of trees.
(f) "Sediment" means solid particulate matter, usually soil or
minute rock fragments, moved by wind, rainfall or snowmelt into the
streams of the state.
(b) Exemptions.- A person who severs or removes, or hires or contracts with another to sever or remove, standing trees from his or her own land is exempted from the timbering operations licensure requirement of this section during any calendar year in which all trees severed or removed by or for this owner have an aggregate stumpage value that does not exceed $15,528. A person hired or contracted to sever or remove standing trees from the land of another is exempted from the timbering operations licensure requirement of this section during any calendar year in which all trees severed or removed by the hired or contracted person have an aggregate stumpage value that does not exceed $15,528.
(c) An applicant for a timbering operation license shall submit an application and the fee of $150 for each biennial renewal of the license. The application shall contain the following information:
(1) Name, address and telephone number of the applicant and if the applicant is a business entity other than a sole proprietor, the names and addresses of the principals, officers and resident agent of the business entity;
(2) The applicant's West Virginia business registration number or a copy of the current West Virginia business registration certificate. The Division of Forestry shall submit this information and a list of all applicants to the Tax Commissioner each month of the calendar year to ensure compliance with payment of severance, income withholding and all other applicable state taxes; and
(3) Any other information as required by the director.
(d) The director shall propose rules for legislative approval pursuant to the provisions of article three, chapter twenty-nine-a of this code, regarding the acquisition, suspension and revocation a license under this article. The rules are the proper subject of emergency legislative rules that may be promulgated in accordance with the provision of section fifteen, article three, section twenty-nine-a of this code.
(e) The director shall prescribe a form providing the contents
and manner of posting notice at the timbering operation. The
notice shall include, at a minimum, the operator's name and license
number.
(b) Upon notification of the chief or upon a finding by the director that failure to use a particular best management practice is causing or contributing, or has the potential to cause or contribute, to soil erosion or water pollution, the director shall issue a written compliance order requiring the person conducting the timbering operation to take corrective action. The order shall mandate compliance within a reasonable and practical time not to exceed ten days. The person subject to the order may appeal the order within forty-eight hours of its issuance to the conference panel in accordance with section eleven of this article.
(c) The director has the discretion to immediately suspend a timbering operator or operation, or any part of a timbering operation, in any part of the state if:
(1) The director believes that the observed damage or circumstances on a timbering operation are sufficient to endanger life or result in uncorrectable soil erosion or water pollution, or if the;
(2) The operator is not licensed pursuant to this article; or
(3) A certified logger is not supervising the timbering operation.
(d) The timbering operation, the operator, or both shall remain suspended until the corrective action mandated in the compliance order is instituted. The director shall not lift the suspension until compliance is satisfactory or until overruled on appeal. Failure to comply with any compliance order is a violation of this article. The timbering operator or operation subject to the compliance order may appeal to the conference panel in accordance with the provisions of section eleven of this article.
(e) For a second violation within any two-year period, the director may suspend the license of any operator conducting a timbering operation or the certification of any certified logger supervising a timbering operation for no less than thirty nor more than ninety days if the person is found in violation of this article or article eleven, chapter twenty-two of this code. One or more violations for the same incident is only one violation for purposes of this subsection.
(f) For a third violation within any two-year period, the director may revoke the license of any operator conducting timbering operations or the certification of any certified logger if the person is found in violation of this article or article eleven, chapter twenty-two of this code. One or more violations for the same incident is only one violation for purposes of this subsection. A revoked license is not subject to reissue during the current licensing period.
(g) The director shall notify the chief of any order issued or
any suspension or revocation of a license pursuant to this section
within thirty days of the director's action.
(1) All persons who conduct timbering operations or who harvest timber for sale, including those persons who are specifically exempted from the licensure requirements of section four of this article, shall provide to the director of the division notification of harvesting of timber, which shall include:
(A) The name and address of the harvester of timber;
(B) The name and addresses of the owner or owners of the property upon which the timber is located;
(C) The business tax number or social security number of the harvester of timber; and
(D) An acknowledgment that the harvester of timber will conduct the harvest according to best management practices.
(2) In addition to the requirements of subdivision (1) of this subsection, persons who are subject to the licensure requirements of section four of this article shall provide to the director of the division notification of timbering operations, which shall include, at a minimum, the following:
(A) The specific topographic location where the timbering operations are to be conducted;
(B) The approximate dates that the timbering operation will begin and end;
(C) The approximate acreage over which timbering operations are contemplated;
(D) The names and addresses of the owner or owners of the timber to be harvested and, if different, the names and addresses of the owner or owners of the property upon which the timber is located;
(E) A sketch map of the proposed logging operation, including haul roads, landings and stream crossings;
(F) A description of the sediment control practices to be used by the logger during the timber harvesting operation;
(G) An acknowledgment that the operator will conduct the operations in compliance with the provisions of this article and any applicable rules promulgated pursuant to this article;
(H) A certification satisfactory to the director that all permits required under state law have been obtained or applied for and that all pertinent requirements for obtaining any permit applied for, but not yet obtained, have been complied with; and
(I) The name or names of the person or persons who will be supervising the timbering operations at the site of the operations and his or her logger certification numbers.
(b) The notification shall be made within at least three days of the beginning of the operation.
(c) Further notice shall be given if the operation is to be, for any reason, closed more than seven days before the estimated date for closing provided under paragraph (B), subdivision (2), subsection (a) of this section.
(b) The director is responsible for the development of standards and criteria for education, training and examination that must be successfully completed for persons to be certified to supervise any timbering operation. The certified logger shall attend a training program every four years after certification. The program for certified loggers shall provide for education and training in the safe conduct of timbering operations, in first aid procedures and in the use of best management practices to prevent soil erosion on timbering operations. The goals of this program will be to assure that timbering operations are conducted in accordance with applicable state and federal safety regulations in a manner that is environmentally sound and safe.
(c) The director shall provide programs using the resources of the division, other appropriate state agencies, educational entities and other qualified persons. Each inspector under the jurisdiction of the chief shall attend a certification program free of charge and complete the certification requirements of this section.
(d) The director shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to effectuate the purposes of this article.
(e) Upon a person's successful completion of the certification requirements, the director shall provide proof of the completion by issuing a numbered certificate and a wallet-sized card to that person. The division shall maintain a record of each certificate issued and the person to whom it was issued.
(f) The certified logger shall submit a fee of $150 for the initial certification application and the renewal application every two years thereafter.
(g) Every timbering operation that is required to be licensed under section four of this article must have at least one person certified pursuant to this section supervising the operation at any time the timbering operation is being conducted. All timbering operators shall be guided by the West Virginia forest practice standards and the West Virginia silvicultural best management practices to reduce sediment movement during a timber operation.
(h) The director shall, at no more than five-year intervals,
convene a committee to review the best management practices to
ensure that they reflect and incorporate the most current
technologies. The committee shall, at a minimum, include a person
researching silvicultural best management practices, a person in
the field of silviculture, two loggers certified under this article, a representative of the Division of Water and Waste
Management of the Department of Environmental Protection and a
representative of an environmental organization. The director
shall chair the committee and may amend the best management
practices according to the suggestions of the committee for the
next certification cycle.
There is created in the state treasury a special revolving fund designated the "Timbering Operations Enforcement Fund." All fees collected pursuant to this article shall be deposited into the fund: Provided, That amounts deposited in the fund which are found from time to time to exceed the amounts necessary to effectuate the purposes of this article may be redesignated for other purposes by appropriation by the Legislature.
This fund shall be appropriated to the division of forestry to be used for the administration and enforcement of the provisions of this article and for no other purpose.
The director or the chief has the right to enter upon any property for the purpose of making inspections to ensure that the provisions of this article and any rules promulgated pursuant thereto are being complied with.
Notwithstanding the provisions of section five of this article, whenever the director determines that any person has violated a provision of this article or any rules promulgated pursuant thereto, he or she may enter an order directing the person to cease the violation and, where appropriate, to take such action to remediate damage created or to take action appropriate for the specific site.
Any person having an interest which is or may be adversely affected by any order of the director may file an appeal in accordance with the provisions of section eleven of this article.
(b) Upon appeal of a decision under this section or upon petition by the chief, pursuant to the provisions of subsection (a), section five of this article, the panel shall hold an informal conference affirming, modifying or vacating an order of the director, or issuing an order in the name of the director. The panel shall forthwith notify the parties of its decision and as soon as practicable send written notice of its decision to the parties. The decision of the panel is final.
(c) A party aggrieved by a decision of a panel may appeal to
the circuit court of the county wherein the cause for the order
arose. The appeal must be filed with the circuit court within
twenty days of the date of decision of the panel and shall be heard
de novo by the court. The court may reverse, vacate or modify the
decision of the panel. The decision of the circuit court is final
unless reversed, vacated or modified on appeal to the Supreme Court
of Appeals in the manner provided by law.
The director may seek and recover a civil penalty for a violation of any provision of this article, any rule, regulation or order of the director in the circuit court of the county in which the violation occurred, in an amount not exceeding two thousand five hundred dollars for the first offense and not exceeding five thousand dollars for any subsequent offense.
Any penalty recovered pursuant to this section shall be deposited in the state treasury to the credit of the timbering operations enforcement fund.
Any person aggrieved by a decision of the circuit court pursuant to this section may appeal the circuit court order to the supreme court of appeals.
(1) Conducts timbering operations or purchases timber or buys logs for resale in this state without holding a valid license from the Director of the Division of Forestry, as required by section four of this article;
(2) Conducts timbering operations or severs trees for sale at a location in this state, without providing the Director of the Division of Forestry with notice of the location where the timbering or harvesting operations are to be conducted, as required by section six of this article;
(3) Conducts a timbering operation in this state that is not supervised by a certified logger who holds a valid certificate from the Director of the Division of Forestry, as required by section seven of this article; or
(4) Continues to conduct timbering operations in violation of an existing suspension or revocation order that has been issued by the Director of the Division of Forestry or a conference panel under sections five, ten or eleven of this article.
(b) For the purposes of this section, each day that a person conducts timbering operations in this state without a license as required by this article, without the supervision of a certified logger as required by this article, without providing notice of the location to the director as required by this article, or in violation of an outstanding suspension or revocation order shall constitute a separate offense.
(c) In addition to any other law-enforcement agencies that
have jurisdiction over criminal violations, any forester or forest
technician employed by the Division of Forestry, who, as a part of
his or her official duties is authorized by the Director of the
Division of Forestry to inspect timbering operations, is authorized
to issue citations for any of the listed violations in this article
that he or she has witnessed. The limited authority granted to
employees of the Division of Forestry to issue citations to enforce
the provisions of this section does not include the power to place
any individual or person under arrest.
All state agencies shall cooperate with the director in the director's efforts to ensure that persons conducting timbering operations are doing so in compliance with all applicable provisions of state law, and the director shall cooperate with such other state agencies to enforce their statutory and regulatory responsibilities and duties. Cooperation shall include the sharing of information necessary or helpful to the accomplishment of such responsibilities and duties. The director shall notify the chief of commencement of timbering operations. The chief and the director each shall submit an annual report on the progress and effectiveness of the programs incorporated in this article to the governor, the speaker of the House of Delegates and the president of the Senate.
Nothing in this article relieves any person conducting timbering operations from complying with any other provision of this code.
(1) Establishing standards governing the care and well-being of livestock in this state;
(2) Maintaining food safety;
(3) Encouraging locally grown and raised food; and
(4) Protecting West Virginia farms and families.
(b) Therefore, to protect the public interest, the Legislature finds that it is necessary to create a Livestock Care Standards Board.
(1) "Board" means the Livestock Care Standards Board.
(2) "Livestock" has the same definition as set out in subsection (d), section two, article ten-b of this chapter.
(b) Prior to July 1, 2010, the Governor shall appoint, by and with the advice and consent of the Senate, the following eleven members:
(1) One member who is a veterinarian licensed in this state engaging in large animal practice, for a term of two years;
(2) The dean of the agriculture department of a college or university located in this state, for a term of three years;
(3) One member representing a county humane society that is organized under state law, for a term of four years;
(4) One member who is knowledgeable about food safety in this state, for a term of five years;
(5) Two members of the public representing West Virginia consumers, one for a term of two years and one for a term of four years;
(6) Two members representing state agricultural organizations that represent farmers, one of whom must be a member of the largest organization in the state representing farmers for a term of three years, and the other must be a member of a statewide livestock organization, for a term of five years; and
(7) Three members representing family farms engaged in animal production, at least two of whom are family farmers, for the following terms: one for three years, one for four years and one for five years.
(c) After the initial appointment terms, the appointment term is five years. Appointed members may be reappointed for additional terms.
(d) Commencing July 1, 2010, the board consists of the following thirteen members:
(1) The Commissioner of the Department of Agriculture or his or her designee, ex officio non-voting, who is the chairperson of the board;
(2) The Director of the Animal Health Division, ex officio non-voting;
(3) One member who is a veterinarian licensed in this state engaging in large animal practice;
(4) The dean of the agriculture department of a college or university located in this state;
(5) One member representing a county humane society that is organized under state law;
(6) One member who is knowledgeable about food safety in this state;
(7) Two members of the public representing West Virginia consumers;
(8) Two members representing state agricultural organizations that represent farmers, one of whom must be a member of the largest organization in the state representing farmers, and the other must be a member of a statewide livestock organization; and
(9) Three members representing family farms engaged in animal production, at least two of whom are family farmers.
(e) All members must be residents of this state during their terms. No more than seven members of the board may be of the same political party and no more than five may be from the same congressional district at any given time.
(f) All appointed members serve until their successor has been appointed and qualified. Vacancies shall be filled in the same manner as the original appointment for the remainder of the unexpired term.
(1) Establish standards governing the care and well-being of livestock in this state;
(2) Maintain food safety;
(3) Encourage locally grown and raised food; and
(4) Protect West Virginia farms and families.
(b) The board is also authorized to establish standards by legislative rule, pursuant to the provisions of article three, chapter twenty-nine-a of this code, governing the care and well-being of livestock in this state, including:
(1) The agricultural best management practices for the care and well-being of livestock and poultry in this state;
(2) Biosecurity, disease prevention, animal morbidity and mortality data;
(3) Food safety practices; and
(4) The protection of local, affordable food supplies for consumers.
(c) The Department of Agriculture shall administer and enforce the standards established by the board that are approved by the Legislature.
(b) The appointed members of the board shall receive compensation for each day or portion of a day engaged in the discharge of official duties, which compensation may not exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law.
(c) Each member of the board shall be reimbursed actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(a) Person includes individual, partnership, corporation and association.
(b) Agricultural products include livestock and livestock products, poultry and poultry products, fruits and fruit products, vegetables and vegetable products, grains and hays and the products derived therefrom, tobacco, syrups, honey, and other products derived from the business of farming; including such other products as may be manufactured, derived, or prepared from agricultural products, raw or processed, which are used as food for man or other animals.
(c) Commissioner means the "commissioner of agriculture" of the state of West Virginia.
(d) Commission merchant means any person, firm, corporation, association, or partnership engaged in the business of receiving agricultural products on consignment and selling or distributing the same for a commission.
(1) Infected with any contagious or communicable disease; or
(2) Which consists in whole or in part of any filthy, putrid or decomposed substance; or
(3) Which has been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated or rendered injurious to health; or
(4) If it or its container is composed in whole or in part, of any poisonous or deleterious substance injurious to health; or
(5) If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or
(6) If any substance has been substituted wholly or in part therefor; or
(7) If damage or inferiority has been concealed in any manner; or
(8) If its labeling is false or misleading; or
(9) If it is offered for sale under the name of another food; or
(10) If it is an imitation of another food, unless its label bears in prominent type the word "imitation"; or
(11) If its container is so made, formed, or filled as to be misleading; or
(12) If the labeling thereon does not identify the producer, manufacturer or handler thereof, and an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; or
(13) If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is.
Nothing herein contained shall prohibit the sale of livestock for immediate slaughter in accordance with the meat inspection regulations of the United States department of agriculture.
(1) The official grades, classifications and standards for agricultural products;
(2) The methods for marking, advertising, and using such grades, classifications, and standards;
(3) Lists of the principal markets in the state and the principal markets outside of the state where agricultural products are sold or distributed;
(4) Such other information which may be of value or assistance in the production, handling, and marketing of agricultural products.
Before the granting of any such permit, the applicant shall execute and deliver to the commissioner a surety bond conditioned as the commissioner may require and acceptable to him, payable to the state of West Virginia, for the benefit of the consignors at said market of livestock, poultry, and other agricultural and horticultural products, who have been wronged or damaged by any fraud or fraudulent practices of the market and so adjudged by a court of competent jurisdiction and who shall have the right of action for damage for compensation against such bond. A holder of a permit, who shall have been in operation not less than twelve months, shall maintain and deliver such bond to said commissioner as aforesaid in an amount not to exceed one hundred twenty percent of the average of its sales during the preceding calendar year. A holder of a permit, who shall have been in operation less than twelve months, shall maintain and deliver such bond to said commissioner as aforesaid in an amount established by the commissioner, but in no case shall the bond be less than the average bond maintained by all other public markets in the state that have been in operation more than twelve months.
The form of the bond shall be approved by the commissioner and may include, at the option of the applicant, surety bonding, collateral bonding (including costs and securities), establishment of an escrow account or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank or of the homeowners' loan corporation; full faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district or municipality of the state of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. It shall be the duty of the applicant to ensure the market value of such bonds are sufficient. The commissioner shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the treasurer of the state of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The applicant making the deposit shall be entitled from time to time to receive from the state treasurer, upon the written approval of the commissioner, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.
All livestock sold by weight at any public market shall be sold subject to weight at place of sale on day sold by auctioneer.
The commissioner may refuse to grant a license or may revoke or suspend any license issued under the provisions of this article, for the violation of any of the provisions of this article or of any of the rules and regulations adopted pursuant to the provisions of this article: Provided, That before such suspension or revocation becomes effective the party shall be notified by the commissioner of his intention to refuse, revoke, or suspend and the party shall be given ten days in which to request a hearing before the commissioner, which request shall be made in writing by registered mail. The commissioner is hereby authorized to summon witnesses for and to take testimony at such hearings.
At any public market where livestock is received, sold, offered or exposed for sale for purposes other than slaughter, the same shall be inspected for livestock diseases by a licensed and accredited veterinarian or by a livestock inspector approved by the commissioner and working under the direct supervision of the veterinary director of the animal health division, which veterinarian and livestock inspector shall be employed by the commissioner of agriculture and shall have authority to carry out the provisions of this section and enforce the provisions of article nine, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one.
The management of such market shall collect a fee of fifty cents per head for cattle when tested for Bang's disease, and ten cents per head for hogs when treated for the prevention of cholera. In addition thereto they shall collect from the purchaser the actual cost of vaccines or biological products used in the testing of such animals. Such vaccines or biological products shall be approved by the commissioner.
It shall be the duty of each veterinarian or livestock inspector to keep a record of all animals tested by him on forms furnished by the commissioner; such records shall be made in duplicate, the original to be forwarded to the commissioner, and the duplicate to be furnished to the public market at which such testing was done.
On the first day of each month the public market shall forward to the commissioner all moneys due for testing done during the previous month.
Every public market, as defined in section one of this article, shall maintain a separate bank account for the deposit of sale proceeds due to shippers and producers of the products and sales subject to the provisions of this article. All payments due to shippers and producers for such products and sales shall be drawn upon the separate account herein required and such payments shall be made within seventy-two hours following the conclusion of the daily activities at such market. Anyone violating the provisions of this section shall be guilty of a misdemeanor and subject to the penalties prescribed in section nineteen of this article.
In the event any of the provisions or requirements of this article should be a duplication or in conflict with the authority exercised by the secretary of agriculture under the Packers and Stockyard Act of the United States Congress, then the provisions and requirements of this article shall not apply.
Acts, 2010 Reg. Sess., Ch. 32.
Unless the context in which used clearly requires a different meaning, as used in this article:
(a) "Department" means the department of agriculture of the state of West Virginia;
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia and duly authorized representatives;
(c) "Person" means any individual, partnership, corporation, association, or other entity;
(d) "Contract veterinarian" means a graduate of a school of veterinary medicine accredited by the American Veterinary Medical Association who provides services for the department under contract;
(e) "Veterinary supervisor" means a graduate of a school of veterinary medicine accredited by the American Veterinary Medical Association, employed by the department and authorized by the commissioner to perform on his or her behalf any inspection and supervisory functions under this article;
(f) "Inspector" means an individual employed by the department and authorized by the commissioner to perform on his or her behalf any inspection functions under this article;
(g) "State inspection" means inspection services conducted by the department at or in connection with establishments required to be licensed by this article;
(h) "W. Va. condemned," or abbreviation thereof, means theanimal or poultry so marked has been inspected and found to be in a dying condition, or to be affected with any other condition or disease that would require condemnation of its carcass;
(i) "W. Va. inspected and condemned," or abbreviation thereof, means that the carcass, meat product or poultry product, so marked or so identified, is adulterated and shall be disposed of in the manner prescribed by the commissioner;
(j) "W. Va. retained" means that the carcass, meat product or poultry product or any ingredient used in processing, or any direct or indirect container used for meat products or poultry products so identified is held for further examination by a veterinary supervisor or contract veterinarian to determine its disposal;
(k) "W. Va. suspect" means that the animal or poultry so marked and identified is suspected of being affected with a disease or condition which may require its condemnation, in whole or in part, when slaughtered, and is subject to further examination by a contract veterinarian or veterinary supervisor to determine its disposal;
(l) "W. Va. inspected and passed," or abbreviation thereof, means that the carcass, meat product or poultry product so marked or so identified, was at the time it was so marked or so identified found to be wholesome;
(m) "Country" when used in the name of a meat product or poultry product means that such meat product or poultry product was actually prepared on a farm;
(n) "Federal inspection" means the meat and poultry inspection service conducted by the food safety and inspection service of the United States department of agriculture;
(o) "Federal Meat Inspection Act" means the act so entitled, approved March four, one thousand nine hundred seven, as amended by the Wholesome Meat Act;
(p) "Federal Poultry Products Inspection Act" means the act of Congress approved August twenty-eighth, one thousand nine hundred fifty-seven, as amended;
(q) "Inspection legend" means a mark or a statement on a carcass, meat product or poultry product indicating the same has been inspected and passed in this state under the provisions of this article;
(r) "Label" means a display of written, printed or graphic matter on a container indicating the carcass, meat product or poultry product contained therein has been inspected and passed in this state under the provisions of this article;
(s) "Official inspection mark" means any symbol prescribed by the commissioner for the purpose of identifying the inspection status of any meat product or poultry product so inspected;
(t) "Establishment number" means an official number assigned by the commissioner to each establishment and included on the inspection legend and label to identify all inspected and passed carcasses, meat product or poultry product handled in that establishment;
(u) "Container" and "package" shall include, but not be limited to, any box, can, tin, cloth, plastic or any other receptacle, wrapper or cover;
(v) "Sell" means offer for sale, expose for sale, have in possession for sale, exchange, barter or trade;
(w) "Animals" mean cattle, swine, sheep and goats;
(x) "Carcass" means all or any part of a slaughtered animal or poultry, including viscera, which is capable of being used for human consumption;
(y) "Meat" means the edible part of the muscle of animals which is skeletal or which is found in the tongue, in the diaphragm, in the heart or in the esophagus, with or without the accompanying or overlying fat, and the portions of bone, skin, sinew nerve and blood vessels which normally accompany the muscle tissue and which are not separated from it in the process of dressing; it does not include the muscle found in the lips, snout or ears;
(z) "Meat food product" means any article of food for human consumption or any article which enters into the composition of food for human consumption, which is derived or prepared in whole or in part from any portion of any animal except organotherapeutic substances, meat juices, meat extract and the like which are only for medicinal purposes and are advertised only to the medical profession; any edible part of the carcass which has been manufactured, cured, smoked, processed or otherwise treated shallbe considered a meat food product;
(aa) "Meat by-product" means any edible part of an animal or poultry other than meat or meat food product;
(bb) "Meat product" means any meat, meat food product, and meat by-product capable of use as human food;
(cc) "Poultry" means any domesticated bird which is used or intended to be used for human consumption;
(dd) "Poultry meat" means the carcass or parts of such carcass of any poultry;
(ee) "Poultry food product" means any product of poultry, other than eggs, capable of use as human food which is made wholly or in part from any poultry meat or other portion of the carcass of poultry;
(ff) "Poultry by-product" means any part or parts of poultry, other than eggs, capable of use as human food, other than poultry carcass which have been derived from one or more birds;
(gg) "Poultry product" means any poultry meat, poultry food product, and poultry by-product capable of use as human food;
(hh) "Process" means to cut up, bone, chop, mix, grind, slice, cook, smoke, cure, salt, marinate, dry, can, or otherwise manufacture, or package any meat product or poultry product;
(ii) "Denature" means the uniform application of sufficient quantities of crude carbolic acid, cresylic disinfectant, or any other agent approved by the commissioner upon and into the freely slashed flesh of any carcass or product condemned;
(jj) "Decharacterization" means the uniform application of sufficient quantities of dye, charcoal, malodorous fish oil, or any other agent approved by the commissioner, upon and into the freely slashed flesh of carcasses or meat not being rendered, so as to unequivocally preclude its use for human food;
(kk) "Inedible" means the carcass, meat product or poultry product derived from 4-D or condemned animals or poultry, or meat products or poultry products which have deteriorated or are otherwise unfit for human consumption;
(ll) "4-D animal or 4-D poultry" means an animal or poultry that is dead, dying, down or diseased on arrival at the slaughterhouse;
(mm) "Commercial slaughterer" means a person engaged for profit in this state in the business of slaughtering animals or poultry for human consumption which are to be sold or offered for sale through a commercial outlet or establishment, and shall include a person who in addition to such commercial slaughtering also engages in the business of a custom slaughterer;
(nn) "Custom slaughterer" means a person engaged for profit in this state in the business of slaughtering animals or poultry for human consumption which are not to be sold or offered for sale through a commercial outlet, commercial establishment, distributor, or to an individual, and shall include the boning or cutting up of carcasses of such animals or poultry and the grinding, chopping and mixing of the carcasses thereof;
(oo) "Slaughterhouse" shall include, but not be limited to, all buildings, structures and facilities used in the slaughtering of animals or poultry for human consumption;
(pp) "Distributor" means a person engaged for profit in this state in the business where carcasses, meat products or poultry products are received from state inspected establishments, or establishments inspected by the United States department of agriculture and who stores and distributes to commercial outlets, processors or individuals and who conducts no processing;
(qq) "Processor" means a person who engages for profit in this state in the business of processing carcasses, meat products or poultry products for human consumption;
(rr) "Commercial processor" means a processor for commercial outlets or distributors and shall include the business of custom processing;
(ss) "Custom processor" means a processor in which the carcass, meat products or poultry products derived through processing cannot be sold or offered for sale through a commercial outlet, commercial establishment, distributor, or to an individual;
(tt) "Processing plant" shall include, but not be limited to, all buildings, structures, chill rooms, aging rooms, processing rooms, sanitary facilities, other facilities, and utensils, used by or in connection with the operations of a processor;
(uu) "Establishment" means any slaughterhouse, processing plant or distributor in this state;
(vv) "Related industries" means rendering plants, refrigerated meat warehouses, food lockers, meat and poultry wholesalers, brokers, pet food manufacturers, other animal food manufacturers, animal impoundments whose main source of food supply is derived from the raw meats, transportation firms and private carriers;
(ww) "Commercial outlet" means a place of business in this state and shall include all retail stores and public eating places in which carcasses, meat products or poultry products are stored, sold or offered for sale for human consumption by the purchaser or other individual consumers;
(xx) "Commercial dealer" means any person who operates one or more commercial outlets and who sells or offers for sale thereat any carcasses, meat products or poultry products for human consumption, and who does not can, cook, cure, dry, smoke or render any carcass, meat products or poultry products at such outlets and who conducts no slaughtering or preparing of carcasses, meat products or poultry products at such outlets other than boning or cutting up of carcasses, and other than grinding, chopping and mixing operations at such outlets with respect to trim or meat derived only from such boning or cutting up operations;
(yy) "Custom slaughtered carcass, meat or poultry" or "custom processed meat products or poultry products" mean, respectively, carcasses, meat products or poultry products which were slaughtered, or processed by a custom slaughterer;
(zz) "Wholesome" means sound, healthful, clean, and otherwisefit for human consumption;
(aaa) "Adulterated" means and shall apply to any carcass, part thereof, meat product or poultry product under one or more of the following circumstances:
(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such carcass, meat product or poultry product shall not be considered adulterated under this clause if the quantity of such substance in or on such carcass, meat product or poultry product does not ordinarily render it injurious to health;
(2) (A) If it bears or contains (by reason of administration of any substance to the live animal or poultry or otherwise) any added poisonous or added deleterious substance (other than one which is a pesticide chemical in or on a raw agricultural commodity; a food additive; or a color additive) which may, in the judgment of the commissioner make such carcass, meat product or poultry product unfit for human food;
(B) If it is, in whole or in part, a raw agricultural commodity and such commodity bears or contains a pesticide chemical which is unsafe within the meaning of the federal Food, Drug and Cosmetic Act;
(C) If it bears or contains any food additive which is unsafe within the meaning of the federal Food, Drug and Cosmetic Act;
(D) If it bears or contains any color additive which is unsafewithin the meaning of the federal Food, Drug and Cosmetic Act: Provided, That a carcass, meat product or poultry product which is not adulterated under paragraph (B), (C) or (D) of this subsection, shall nevertheless be deemed adulterated if use of the pesticide chemical, food additive, or color additive in or on such carcass, meat product or poultry product is prohibited by rules in establishments at which inspection is maintained;
(3) If it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food;
(4) If it has been processed, packed, or held under insanitary conditions whereby it may have become contaminated with filth or pathogenic microorganisms, or whereby it may have been rendered injurious to health;
(5) If it is, in whole or in part, the product of an animal or poultry which has died otherwise than by slaughter;
(6) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
(7) If it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to the federal Food, Drug and Cosmetic Act;
(8) If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or if any substance has beensubstituted, wholly or in part therefor; or if damage or inferiority has been concealed in any manner; or if any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is;
(bbb) "Antemortem" means before death;
(ccc) "Postmortem" means after death;
(ddd) "Reinspection" means inspection of the processing of carcass, meat products and poultry products, as well as a reexamination of products previously inspected;
(eee) "Licensee" means any person licensed under the provisions of this article;
(fff) "Misbranded" applies to any carcass, meat product or poultry product under one or more of the following circumstances:
(1) If its labeling is false or misleading in any particular;
(2) If it is offered for sale under the name of another meat product or poultry product;
(3) If it is an imitation of another meat product or poultry product; unless its label bears, in type of uniform size and prominence, the word "imitation" and immediately thereafter, the name of the meat product or poultry product imitated;
(4) If its container is made, formed or filled as to be misleading;
(5) Unless it bears a label showing: (A) The name and place of business of the establishment; and (B) an accurate statement ofthe quantity of the contents in terms of weight, measure or numerical count;
(6) If any word, statement or other information required by or under authority of this article to appear on the label or other labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
(7) If it purports to be or is represented as a meat product or poultry product for which a definition and standard of identity or composition has been prescribed by rules promulgated by the commissioner unless: (A) It conforms to such definition and standards; and (B) its label bears the name of the meat product or poultry product specified in the definition and standard of identity and the common names of optional ingredients (other than spices, flavoring and coloring) present in such products;
(8) If it is not subject to the provisions of subsection (7), unless its label bears: (A) The common or usual name of the meat product or poultry product, if any there be, and (B) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings and colorings may be designated as such without naming each;
(9) If it purports to be or is represented for special dietary uses, unless its label bears such information concerning itsvitamin, mineral and other dietary properties as the commissioner determines to be necessary in order fully to inform purchasers as to its value for such uses;
(10) If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; or
(11) If it fails to bear, directly thereon or on its container, as the commissioner may by rules prescribe, the inspection legend and, unrestricted by any of the foregoing, such other information as the commissioner may require in such rules to assure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the meat product or poultry product in a wholesome condition.
(a) The commissioner shall administer and enforce the provisions of this article and for this purpose is hereby authorized and empowered to promulgate reasonable rules and to employ or contract with such persons as may be appropriate. All rules shall be promulgated in accordance with the provisions of chapter twenty-nine-a of this code. Such rules shall, insofar as practicable, be in conformity with the rules and regulations issued under the federal Meat Inspection Act and the federal Poultry Products Inspection Act.
(b) The commissioner is hereby authorized and empowered to cooperate with the federal government and any agencies, departments and instrumentalities thereof, the state of West Virginia and any agencies, departments or political subdivisions thereof, and any other state or commonwealth and any agencies, departments or political subdivisions thereof, in order to carry out the effective administration of this article.
(a) No commercial slaughterer, custom slaughterer, commercial processor, custom processor or distributor shall operate an establishment unless he or she shall first have obtained a license from the commissioner, which license remains unsuspended and unrevoked. Application for such license shall be made on forms prescribed by the commissioner and shall be accompanied by the fee required in this section.
When such a person operates as a commercial slaughterer and also operates as a commercial processor, whether such operations are located on the same or different premises in this state, each such operation shall be licensed. When such a person operates two or more slaughterhouses not on the same premises in this state, or operates two or more processing plants not on the same premises in this state, a separate license shall be required for each such slaughterhouse and each such processing plant. Each license shall expire on the thirtieth day of June next following its issuance, and the annual fee for each such license shall be based upon the average number of animals slaughtered per year and upon the average finished product poundage processed per year, as set forth in the following table, except that the annual fee for the license of a person who operates solely as a custom slaughterer shall be ten dollars or as a custom processor shall be five dollars or as a distributor shall be five dollars.
Average Number of AnimalsAnnual
ClassSlaughtered Per YearFee Small1-500$10.00
Medium501-1000$25.00
Large1001-5000$50.00
Extra LargeOver 5000$75.00
Average Finished ProductAnnual
ClassPoundage Processed Per Year Fee
Small1-25,000$10.00
Medium25,001-250,000$25.00
Large250,001-1,000,000$50.00
Extra LargeOver 1,000,000$75.00
Before issuing any license required by the provisions of this section, the commissioner shall inspect the applicant's establishment and if the commissioner is satisfied that the establishment is clean and sanitary, is properly equipped, and is in conformity with the provisions of this article and any reasonable rules promulgated by the commissioner, and if he or she is further satisfied that the carcasses, meat products or poultry products to be sold or offered for sale therefrom through commercial outlets will be wholesome and unadulterated, he or she shall issue the license. Each license shall specify the location of the establishment at which the licensee shall carry on his or her operations. The license shall also contain the establishment number assigned by the commissioner.
(b) When a licensee changes the location of his or her establishment, he or she shall not operate at such new location unless and until his or her establishment at such new location has been inspected by the commissioner and a new license has been issued, or when a licensee leases, sells, changes name, incorporates or in any other way changes the status of his or her establishment with relationship to issuance of current license, the new lessee, owner, etc., shall not operate at the location unless and until the establishment at such location has been inspected and approved by the commissioner and a new license has been issued in accordance with the provisions of subsection (a) of this section: Provided, That a fee shall not be charged for such new license during the license year in which the change in location or change in ownership, name or leasing was made.
(c) The commissioner may refuse to grant a license or maysuspend or revoke a license issued under the provisions of this section whenever he or she finds that the applicant's or licensee's establishment, as the case may be, is not clean or sanitary, or is not properly equipped, or is not in conformity with the provisions of this article or any reasonable rules promulgated by the commissioner, or if he or she finds that the carcasses, meat products or poultry products to be sold or offered for sale therefrom through commercial outlets are or will be adulterated.
Upon the refusal to grant a license, the commissioner shall furnish a written statement to the applicant specifying the grounds for such refusal. No such revocation or suspension of a license shall be effective until the licensee has received written notice thereof, which notice shall specify the grounds for such revocation or suspension.
Whenever there is sufficient cause for the revocation or suspension of a license as hereinabove specified, the commissioner may in lieu of such revocation or suspension, suspend inspections at the establishment. Immediately upon suspension of such inspections the commissioner shall give the licensee written notice thereof, and such notice shall contain a recitation of the deficiencies which must be fully and completely corrected before inspections shall be resumed.
Upon receipt of a written statement advising that a license has been refused or upon receipt of a written notice of the revocation or suspension of a license, or upon the suspension of inspections at the licensee's establishment, the applicant or licensee, as the case may be, may, in writing, demand a hearing. The commissioner shall hold such a hearing within ten days after receipt of such written demand, in accordance with the provisions of section nine of this article.
(a) The commissioner shall provide antemortem and postmortem inspection of all animals and poultry which are to be sold or offered for sale through a commercial outlet, establishment or distributor.
(b) The commissioner shall provide reinspection of carcasses, meat products and poultry products during further processing which have previously been inspected.
(c) All inspections under the provisions of this article shall be performed in accordance with reasonable rules promulgated by the commissioner.
(d) The commissioner shall inspect all establishments under state inspection to make certain that they are operating in accordance with the provisions of this article and all reasonable rules promulgated by the commissioner.
(e) When one inspector is assigned to make inspections at two or more establishments where few animals or poultry are slaughtered, or where small quantities of carcasses, meat products or poultry products are processed, or where the operations at such establishments are sporadic, and such establishments in any of such cases are in reasonable close proximity to one another, the commissioner, giving full consideration to the convenience of thelicensees of such establishments and considering the available inspection work force, may by written notice to such licensees specify a reasonable schedule for such operations: Provided, That the commissioner may not require operations other than during normal working hours.
(f) Every conveyance used by any establishment under state inspection, and, notwithstanding the provisions of section seven of this article, every conveyance used by any slaughterhouse, processing plant or distributor inspected by the United States department of agriculture, for the transportation of carcasses, meat products or poultry products shall be maintained in a clean and sanitary condition and may be inspected in accordance with the provisions of this article and reasonable rules promulgated by the commissioner.
(g) The commissioner shall require such quarantine and segregation of animals or poultry, carcasses, meat products or poultry products in establishments as is deemed necessary to effectuate the provisions of this article.
(h) The head, tongue, tail, thymus glands, viscera, blood and other parts of any slaughtered animal shall be retained in such a manner as to preserve their identity until after the postmortem inspection has been completed.
(i) Each licensee shall pay for such devices for the affixing of marks, brands, or stamps and for such labels as may be prescribed for his or her establishment by the commissioner. Suchdevices and labels shall be under the exclusive control and supervision of the commissioner. The label used by any licensee shall be of the form and size prescribed by reasonable rules promulgated by the commissioner.
(j) Each animal carcass that has been inspected and passed in this state by the commissioner shall be marked at the time of inspection with the inspection legend. Any animal or poultry carcass which is not passed shall be marked conspicuously by the commissioner at the time of inspection in the following manner: "W. Va. inspected and condemned," or any abbreviation thereof.
(k) Each primal part of an animal carcass that has been inspected and passed shall be marked with the inspection legend, and each liver, beef heart and beef tongue that has been inspected and passed shall be branded with the inspection legend at the time of final inspection. Meat that has been boned out, cut from primal parts or otherwise changed so that the inspection legend is no longer plainly visible, and meat products and poultry products that are too small to be marked with the inspection legend shall be packed in closed containers to which shall be affixed the label indicating that the meat products or poultry products contained therein have been inspected and passed. Upon removal of the contents of such containers bearing such label, the label shall be defaced to prevent its reuse.
(l) All carcasses, and meat products which have been derived from an animal slaughtered by a custom slaughterer or processed bya custom slaughterer or custom processor shall be marked "W. Va. custom slaughtered" in letters not less than three eighths of an inch in height.
(m) Each official inspection mark shall contain the establishment number of the establishment involved, unless otherwise authorized by rules promulgated by the commissioner.
(n) The commissioner is hereby authorized and empowered to seize and destroy: (1) Any animal or poultry to be slaughtered in this state and thereafter sold or offered for sale through a commercial outlet or distributor which cannot be made fit for human consumption; (2) any animal or poultry, carcass, meat product or poultry product slaughtered or processed in this state in violation of the provisions of this article or any reasonable rules promulgated by the commissioner; (3) any carcass, meat product or poultry product that does not bear an inspection legend or label provided for by this article or which has not been inspected and passed under inspection provided by the United States department of agriculture and which is intended to be sold or offered for sale through a commercial outlet or distributor; and (4) any animal or poultry, carcass, meat product or poultry product which is adulterated.
Where appropriate, the commissioner may, in lieu of destruction as aforesaid, denature, decharacterize, mutilate or slash any carcass, meat product or poultry product intended to be sold or offered for sale through a commercial outlet ordistributor. The commissioner is also authorized and empowered to seize and retain under a retained tag any animal or poultry, carcass, meat product or poultry product until the commissioner determines to destroy, denature, decharacterize, mutilate, slash or release the same. Whenever the commissioner is authorized or empowered to take any of the actions specified in this subsection, he or she may order and direct the person having custody or possession of such animal or poultry, carcass, meat product or poultry product, or the licensee of the establishment in which it is found, to be responsible for the disposition thereof, as well as any necessary storage, handling or other incidentals related thereto. Such disposition shall be carried out only under the direction and supervision of the commissioner.
(o) Whenever practicable, the commissioner shall forego the actions authorized in the immediately preceding subsection and permit reprocessing if such reprocessing will correct or eliminate the conditions which would have justified any of such actions. Any such reprocessing in this state shall be under the supervision of the commissioner.
(p) Whenever the commissioner has good cause to believe that any carcass, meat product or poultry product whether fresh, frozen, or processed, and which is intended to be sold or offered for sale through a commercial outlet or distributor, may be adulterated or otherwise injurious to health, he or she may inspect or reinspect the same under the provisions of this article and any reasonablerules promulgated by him or her, even though such carcass, meat product or poultry product may have been previously inspected and passed.
(q) No licensee shall employ in any establishment any person who has any communicable disease or infected wounds or who is a carrier of any communicable disease. To enforce the provisions of this subsection, the commissioner may require any employee or prospective employee to submit to a health examination by a physician and furnish to the commissioner a certificate from such physician concerning his or her findings. The cost of conducting such examination and furnishing such certificate shall be borne by the licensee concerned.
(r) Whenever the commissioner inspects any room, compartment, equipment or utensil in any establishment subject to state inspection and finds the same not to be clean and sanitary or finds the same to be otherwise unsuitable for the slaughtering or processing operations carried on in such establishment, he or she shall affix thereto a rejection tag or rejection notice. No such rejected room, compartment, equipment or utensil shall be used until the deficiencies requiring such rejection shall have been fully and completely corrected and the rejection tag or rejection notice has been removed. No person other than the commissioner shall remove any such rejection tag or notice.
(s) When any animal or poultry, carcass, meat product or poultry product has been inspected hereunder, the appropriateofficial inspection mark shall be affixed thereto, and no person shall remove the same unless authorized so to do by the commissioner.
The provisions of this article shall not apply to any slaughterhouse or processing plant operating under the federal Meat Inspection Act or the federal Poultry Products Inspection Act, or approved by the United States department of agriculture.
(a) In order to accomplish the objectives of this article, the commissioner may by reasonable rules exempt from inspection:
(1) Any commercial dealer, provided all carcasses, meat products or poultry products sold or offered for sale by such dealer were slaughtered and/or processed in commercial establishments under state inspection or have been inspected and passed by the United States department of agriculture and shall be identified, labeled and sold in normal retail quantities as prescribed by reasonable rules promulgated by the commissioner;
(2) The slaughtering by any person of animals of his or her own raising, and the preparation by him or her of the carcasses, meat products or poultry products of such animals exclusively for use by him or her and members of his or her household and his or her nonpaying guests and employees; or custom slaughtered animals, by a custom slaughterer, delivered by the owner thereof for such slaughter and the preparation by such slaughterer or custom processor of the carcasses, meat products or poultry products of such animals, exclusively for use, in the household of such owner, by him or her and members of his or her household and his or her nonpaying guests and employees: Provided, That the custom slaughterer or custom processor is not handling adulterated carcasses, meat products and poultry products; maintains identity of carcasses, meat products and poultry products; and maintains acceptable sanitation and operational controls as prescribed by reasonable rules promulgated by the commissioner;
(3) Antemortem and postmortem inspection of a licensed custom slaughterer;
(4) Any other operations which the commissioner may determine would best be exempted to further the purposes of this article, to the extent such exemptions conform to the federal Meat Inspection Act and the federal Poultry Products Inspection Act as amended from time to time and the regulations thereunder.
(b) Any institution operated by the state requiring inspection under this article shall be exempt from the licensing fee as required by section four of said article.
(a) When any person is entitled to a hearing before the commissioner as authorized in this article, the commissioner shall hold such hearing and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern such hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of said article five were set forth in extenso in this subsection, except that the hearing shall be held in the county in which the establishment involved is located, or in which the affected person resides or has his or her principal place of business, or in Kanawha county, West Virginia, at the election of the commissioner. Any such hearing shall be held within the time limits hereinbefore specified in this article, unless there is a postponement or a continuance for good cause shown.
(b) For the purpose of any such hearing, the commissioner shall have the power and authority to issue subpoenas and subpoenas duces tecum, in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code. All subpoenas and subpoenas duces tecum shall be issued and served within the time and for the fees and shall be enforced, as specified in section one, article five of said chapter twenty-nine-a, and all of the said section one provisions dealing with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder. At any such hearing, the person who demanded the same may represent himself or be represented by an attorney-at-law admitted to practice before any circuit court of this state.
(c) After such hearing and consideration of all the testimony, evidence and record in the case, the commissioner shall make and enter an order deciding the matter in question. Such order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code, and a copy of such order and accompanying findings and conclusions shall be served upon all the parties and their attorneys of record, if any, in person or by registered or certified mail. The commissioner shall also cause a notice to be served with a copy of such order, which notice shall advise the parties of their right to judicial review, in accordance with the provisions of subsection (d) of this section. The order of the commissioner shall be final unless vacated or modified upon judicial review thereof in accordance with the provisions of subsection (d) of this section.
(d) Any party adversely affected by a final order made and entered by the commissioner after such hearing, held in accordance with the provisions of subsections (a) through (c) of this section, is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such review with like effect as if the provisions of said section four were set forth in extenso in this subsection, except that the petition shall be filed in the circuit court of the county in which the hearing before the commissioner was held.
(e) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(a) For any person to operate any establishment under state inspection which is not clean and sanitary;
(b) To slaughter any adulterated animal or poultry intended to be sold or offered for sale through a commercial outlet or distributor;
(c) To sell or offer for sale through a commercial outlet or distributor any carcass, meat product or poultry product for human consumption which is adulterated;
(d) To slaughter for human consumption any animal or poultry tagged or permanently identified as "W.Va. condemned," or abbreviation thereof;
(e) To process, sell or offer for sale for human consumption any carcass, meat product or poultry product which is mislabeled with intent to deceive or which is marked "W.Va. inspected and condemned," or abbreviation thereof;
(f) To process in an establishment under state inspection for sale through any commercial outlet or distributor any carcass, meat product or poultry product intended for human consumption and derived, in whole or in part, from any calf, pig, kid, lamb, chicken or turkey which is so immature as to be lacking in nutritional value;
(g) To knowingly or intentionally expose any carcass, meat product and poultry product in any establishment under state inspection to insects, live animals or any contamination;
(h) To add kangaroo meat, horse meat, mule meat or other equine meat to any animal meat, meat product or poultry product to be sold or offered for sale through commercial outlets or distributors for human consumption;
(i) To remove any hide, skin or any other part of an unborn or stillborn animal in the confines of a room in an establishment where any animals or poultry, carcasses, meat products or poultry products are slaughtered or processed, as the case may be, or to be sold or offered for sale through a commercial outlet or distributor;
(j) To process for human consumption in any establishment subject to state inspection any carcass, meat product and poultry product derived from any animal or poultry which died other than by slaughter;
(k) To transport to any commercial outlet or distributor for the purpose of being sold or offered for sale therein, any carcass, meat product or poultry product which is not marked, branded or stamped as having been inspected and passed by the commissioner or by the United States department of agriculture;
(l) For any commercial outlet or distributor to receive, for the purpose of being sold or offered for sale therein, any carcass, meat product or poultry product which is not marked, branded or stamped as having been inspected and passed by the commissioner or by the United States department of agriculture;
(m) To slaughter any horse, mule or other equine in any establishment under state inspection in which animals or poultry are slaughtered for human consumption for the purpose of being sold or offered for sale through commercial outlets;
(n) To bring any kangaroo meat, horse meat, mule meat or other equine meat into any establishment under state inspection where animal or poultry carcasses, meat products or poultry products are processed for human consumption for the purpose of being sold or offered for sale through commercial outlets;
(o) To transport, process, sell or offer for sale any kangaroo meat, horse meat, mule meat or other equine meat within this state for human consumption unless it is conspicuously and plainly identified or stamped as such;
(p) For any person to use an establishment number not assigned to him or her or to use an establishment number in connection with operations concerning which a different establishment number was assigned by the commissioner;
(q) To remove from any article any retained tag affixed by the commissioner, unless such removal is authorized by him or her;
(r) To remove from any room, compartment, equipment or utensil any rejection tag or rejection notice affixed by the commissioner, unless such removal is authorized by him or her;
(s) For a licensee to use any container bearing an official inspection mark unless it contains the exact carcass, meat product or poultry product which was in the container at the time such contents were inspected and passed: Provided, That such a container may be otherwise used if such official inspection mark thereon is removed, obliterated or destroyed, and such other use is authorized by reasonable rules promulgated by the commissioner;
(t) For any person, other than the commissioner, to possess, keep or use, except as authorized by the commissioner, any label or device for the affixing of a mark, brand or stamp prescribed for inspection purposes hereunder;
(u) For any person, with intent to deceive, to possess, keep or use any label, mark, brand or stamp similar in character or import to an official label, mark, brand or stamp prescribed by the commissioner hereunder or to an official label, mark, brand or stamp used by the United States department of agriculture;
(v) To falsely make, falsely issue, falsely publish, alter, forge, simulate or counterfeit any inspection certificate, memorandum, label, mark, brand, or stamp, or device for making an inspection mark, brand or stamp, or to possess, keep or use the same, with intent to deceive;
(w) For any person to refuse to permit the commissioner to enter and inspect at any time, upon presentation of appropriate credentials, an establishment under state inspection, or to interfere with any such lawful entry or inspection;
(x) For any person to refuse to permit the commissioner, upon presentation of appropriate credentials, to examine and copy the records described in section five of this article;
(y) For a person to prevent or fail to decharacterize or denature carcasses, meat products or poultry products as prescribed by reasonable rules promulgated by the commissioner;
(z) For a person to transport offal, blood, or inedible and condemned parts of animal and poultry carcasses from slaughterhouses, processing plants or other related industries: Provided, That such products may be transported if placed in suitable containers with tight covers, or watertight tanks so as not to contaminate the public highways or private roadways while going to or from the points of pickup;
(aa) For a person to store offal, blood, or inedible and condemned parts of animal and poultry carcasses from slaughterhouses, processing plants or other related industries during interim transit movement in refrigerated warehouses, food lockers or other related industries: Provided, That such products may be otherwise stored if properly marked "NOT FOR HUMAN FOOD" "FOR ANIMAL FOOD ONLY" and identified as approved products to be used for animal food;
(bb) For a person knowingly to deliver a dead or dying animal or poultry to an establishment in this state;
(cc) For any person to transport carcasses, meat products and poultry products that are intended for human consumption in a manner which would permit the products to become adulterated;
(dd) For any person to forcibly assault, resist, oppose, impede, intimidate or interfere with the commissioner or his or her representative while engaged in or on account of the performances of his or her official duties;
(ee) For any person to deliver, with intent to deceive, any graded meat product, poultry product or any other agricultural commodity to a state institution that does not meet the grade specifications for that grade when a specified grade is required in a contract;
(ff) To sell any meat product or poultry product for which the processor's expiration date has expired;
(gg) To alter, change or cover-up the expiration date of any meat product or poultry product established by the processor.
In addition to any other powers conveyed in this article, the commissioner may inspect any meat product, poultry product or any other agricultural commodity sold to a state institution to enforce the provisions of this subdivision.
(1) Any person who violates any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined not less than two hundred nor more than one thousand dollars and upon conviction of each subsequent offense shall be fined not less than four hundred nor more than two thousand dollars.
(2) If a person knowingly sells, offers for sale or distribution, or attempts to sell, offers for sale or distribution of a carcass, meat product or poultry product that is contaminated with pathogenic microorganisms or otherwise adulterated, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than ten thousand dollars upon conviction of each offense.
(b) Civil penalties.
(1) Any slaughterer, processor or distributor who violates any of the provisions of this article or regulations 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; the seriousness of the violation, including any hazards to the health and safety of the public; and the demonstrated good faith efforts by the charged party to ensure that similar violations do not recur.
(2) The commissioner may assess a penalty of not more than five hundred dollars for a first violation and not more than one thousand dollars for each subsequent violation.
(3) The civil penalty is payable to the state of West Virginia and may be collected in any manner for collection of debt to the state. If a person assessed a civil penalty pursuant to this subsection neglects or refuses to pay, the amount of that penalty, together with interest calculated at ten percent per annum, may be filed as a lien in favor of the state upon any and all property of the person, both real and personal. The lien shall be recorded in the records kept in the office of the county clerk in the county wherein the violation occurred. The county clerk in the recording county shall enter the same to record without requiring payment of recording fees as a condition precedent to the recording. A notice of the lien shall be mailed or delivered to the person against whose property the lien has been placed. All penalties, together with any interest, collected by the state, pursuant to this subsection, shall be deposited in the general revenue fund.
(4) Notwithstanding any other provision of the law to the contrary, the commissioner may enter into consent agreements or negotiated settlement agreements for the civil penalties assessed pursuant to this subsection.
(5) No state court may allow the recovery of damages for administrative action taken by the commissioner if the court finds, as a matter of law, that there was probable cause for such action.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
For the purposes of this article:
(a) The term "auctioneer" means and includes a person who sells goods or real estate at public auction for another on commission or for other compensation. The term "auctioneer" does not include: (1) Persons conducting sales at auctions conducted by or under the direction of any public authority or pursuant to any judicial order or direction or to any sale required by law to be at auction; (2) the owner of any real or personal property when personally sold at auction by such owner and such owner has not personally conducted an auction within the previous twelve-month period; (3) persons conducting sales pursuant to a deed of trust or other security agreement; (4) fiduciaries of estates when selling real or personal property of such estate; (5) persons conducting sales on behalf of charitable, religious, fraternal or other nonprofit organizations; and (6) persons properly licensed pursuant to the provisions of article twelve, chapter forty-seven of this code when conducting an auction, any portion of which contains any leasehold or any estate in land whether corporeal or incorporeal, freehold or nonfreehold, when such person is retained to conduct an auction by a receiver or trustee in bankruptcy, a fiduciary acting under the authority of a deed of trust or will, or a fiduciary of a decedent's estate: Provided, That nothing contained in this article exempts persons conducting sales at public markets from the provisions of article two-a of this chapter, where the sale is confined solely to livestock, poultry and other agriculture and horticulture products.
(b) The term "public auction" means any public sale of real or personal property when offers or bids are made by prospective purchasers and the property sold to the highest bidder.
(c) The term "commissioner" means the commissioner of agriculture of West Virginia.
(d) The term "department" means the West Virginia department of agriculture.
Any person who wishes to conduct an auction as an auctioneer may apply for a license on forms prescribed by the commissioner and containing such information as the commissioner may require by a legislative rule promulgated in accordance with article three, chapter twenty-nine-a of this code. A nonreturnable application fee of fifty dollars shall accompany each application as well as a license fee of fifty dollars. All fees collected under this article shall be paid into a special revenue fund in the state treasury to be used by the department of agriculture for the expressed purpose of administering and enforcing this article and for providing continuing education for auctioneers: Provided, That for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-seven, fees collected under this article shall be paid into the state fund, general revenue.
In addition to the payment of fees, an applicant shall file with his or her application a bond as required in section four of this article.
The commissioner shall, within thirty days after the receipt of an application, notify the applicant of his or her eligibility to be examined at the next regularly scheduled examination, as well as the date of the examination.
In the event the license is denied, the commissioner shall refund the license fee submitted with the application to the applicant.
Licenses issued expire on the thirty-first day of December of each year but are renewable upon the payment of the annual license fee within sixty days of the expiration date. Renewals received more than sixty days after the expiration date are subject to a late renewal fee of twenty-five dollars in addition to the annual renewal fee. The commissioner shall not renew licenses which have been expired for more than two years and the auctioneer or apprentice auctioneer shall take the written and oral examination and pay the examination fee in order to renew his or her license. The commissioner shall not renew a license unless the applicant complies with the other requirements of this article.
Where an auctioneer or apprentice auctioneer requires a duplicate or replacement license or a license reflecting a change in information, the auctioneer or apprentice auctioneer shall submit a fee of five dollars with the request.
The state department of agriculture is the agent for the purpose of service of process on any licensed auctioneer for any action occasioned by the performance of the duties of the auctioneer. Every licensed auctioneer, by virtue of his or her application for a license, shall be considered to have consented tothe statutory agency.
Every person applying for a license as an auctioneer, apprentice auctioneer or continuing to act as a licensed auctioneer or apprentice auctioneer shall file with the commissioner and maintain in full effect a bond satisfactory to the commissioner and in form and amount as prescribed by the commissioner pursuant to the rules and regulations promulgated in accordance with this article: Provided, That in no event shall the amount of such bond be less than ten thousand dollars for an auctioneer and in no event less than five thousand dollars for an apprentice auctioneer. The bond may include, at the option of the applicant, corporate surety bonding, collateral bonding (including costs and securities), establishment of an escrow account, an irrevocable letter of credit or a combination of these methods. If collateral bonding is used, the auctioneer may elect to deposit cash, or any of the following collateral securities or certificates: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district, or municipality of the state of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in the name of the department. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. It shall be the duty of the applicant to ensure the market value of such bonds is sufficient. The commissioner shall, upon receipt of any such deposits of cash, securities or certificates, promptly place the same with the treasurer of the state of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the license is issued. The applicant making the deposit shall be entitled from time to time to receive from the state treasurer, upon written approval of the commissioner, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond. Such bond shall be conditioned upon the faithful compliance by the auctioneer with the provisions of this article and the payment of all required taxes, fees and penalties imposed by this state and its political subdivisions, as well as the payment by any auctioneer of any final judgment obtained for damages arising out of his conduct or duties as an auctioneer. Such bond shall be open to public inspection.
(1) Each person seeking a license hereunder after the effective date of this section shall submit satisfactory evidence to the commissioner showing:
(a) That he or she has successfully completed the written and oral examinations provided for in this article;
(b) That he or she has a good reputation;
(c) That he or she is of trustworthy character;
(d) That he or she has met the apprenticeship requirements set forth in this article, if applicable;
(e) That he or she is a citizen of the United States; and
(f) That he or she has a general knowledge of the auctioneering profession and the principles involved in conducting an auction.
(2) The commissioner shall promulgate such reasonable rules and regulations as he or she considers necessary to carry out the intent and the administration and enforcement of this article, which said rules and regulations shall be promulgated in accordance with the applicable provisions of chapter twenty-nine-a of this code.
(3) Each licensee shall promptly produce for inspection such license at all sales conducted by or participated in by such licensee when requested to do so by any person and shall keep complete and accurate records of all transactions engaged in for a period of six months, which records shall be open to inspection by the commissioner or his authorized representative.
Examinations shall be held in April and October of each year, at a time and place to be designated by the commissioner or his authorized representative.
Any individual auctioneer applicant may take the examination for auctioneer or apprentice auctioneer at the regularly scheduled time and place. The apprentice auctioneer's examination shall consist of a written examination. The auctioneer's examination will consist of both a written and oral examination. The passing grade for any written examination shall be seventy percent out of one hundred percent. The oral portion will be scored by the commissioner or his authorized representative. If the applicant fails either the written or oral portion of the examination, no license will be issued and he or she shall not be administered the examination again until the next regularly scheduled examination date. A person who is qualified for a auctioneer's license as provided for in this article is considered to be a professional in his trade.
One notice only of the examination shall be mailed to the applicant at the address given on the application. If the applicant fails to appear for such examination, except as provided herein, a new application and a new fee shall be required. No fee shall be returned except when the applicant fails to take the examination because of illness evidenced by a doctor's certificate sent to the commissioner. If excused because of illness the applicant shall be admitted to the next scheduled examination without paying an additional fee. No applicant shall be excused from taking the scheduled examination for any reason other than illness unless in the judgment of the commissioner the applicant would suffer undue hardship by not being excused.
An examination fee of fifty dollars, in addition to any other fees required by this article, shall be collected from each person taking such examination. If the applicant has previously paid the examination fee and successfully completed the apprentice auctioneer's examination, no additional examination fee will be required to take the auctioneer's examination as provided for in this article.
If the commissioner determines that an applicant does not qualify for a license, he or she shall so notify the applicant by certified mail. The notice shall state the reason for refusal to grant a license and the applicant's right to appeal the commissioner's decision within twenty days of receipt of the notice.
An examination shall not be required for the renewal of any license unless such license has been revoked or suspended, in which case the applicant may be required, by the commissioner, to take and pass any written or oral examination required by the department. In cases where a license has been expired for more than two years and not been revoked or suspended, the applicant is required to take and pass any written and oral examinations required by the department. The commissioner is hereby authorized to promulgate rules as he or she considers necessary for the renewal of auctioneer licenses, including, but not limited to, requirements for continuing education of auctioneers.
The department of agriculture may grant apprentice auctioneer's licenses to those persons considered qualified by the commissioner. Every applicant for an apprentice auctioneer's license must take and pass a written examination relating to the skills and knowledge and statutes and regulations governing auctioneers. Every applicant shall furnish to the commissioner on forms provided by the department satisfactory proof of the following:
(a) That he or she has a good reputation;
(b) That he or she is a trustworthy character; and
(c) That he or she is a citizen of the United States.
Any apprentice auctioneer may take the examination to become an auctioneer after serving a two-year apprenticeship under a licensed auctioneer: Provided, That if the apprentice auctioneer has attended a nationally accredited graduate school of auctioneering, approved by the commissioner, he or she shall serve an apprenticeship of only six months. Before an apprentice auctioneer may take the auctioneer's examination, the apprentice auctioneer shall conduct at least six auction sales under the direct supervision of the sponsoring auctioneer. The commissioner may waive the requirements of this section, on an individual basis, upon the presentation of written evidence that the applicant has educational training or exceptional experience in the auctioneering profession and that the applicant has been unable to obtain sponsorship by a licensed auctioneer: Provided, however, That the commissioner shall promulgate rules and regulations setting forth educational and experience qualifications which would entitle an individual to a waiver of the provisions of this section: Provided further, That the commissioner shall not waive apprenticeship requirements for any applicant without the concurrence of the board of review.
When any apprentice auctioneer is discharged or terminates his employment with an auctioneer for any reason, the auctioneer shall immediately provide written notification to the commissioner. No discharged or terminated apprentice auctioneer shall thereafter perform any acts under the authority of his license until such apprentice auctioneer receives a new license bearing the name and address of his new employer. No more than one license shall be issued to any apprentice auctioneer for the same period of time. The fee for the transfer of the license of an apprentice auctioneer to a new employer auctioneer is fifteen dollars.
The fee for the annual renewal of the apprentice auctioneer's license is fifty dollars. Bond requirements for an apprentice auctioneer shall be established by reasonable rules and regulations promulgated by the commissioner, and both the annual renewal fee and the bond must be filed with the department of agriculture: Provided, That the bond required by this section shall not be less than five thousand dollars. The department shall not issue an apprentice auctioneer's license until bond has been filed in accordance with this article. All apprentice auctioneer licenses expire on the thirty-first day of December of each year but are renewable upon the payment of the annual fee.
The department of agriculture may, upon its own action, and shall upon the verified written complaint of any person, investigate the actions of any auctioneer, apprentice auctioneer, any applicant for an auctioneer's or apprentice auctioneer's license, or any person who assumes to act in that capacity, if the complaint, together with other evidence presented in connection with it, establishes probable cause.
Upon verification of the complaint, the department shall present the complaint to the board of review. The board of review shall consider all of the facts of the complaint and recommend a course of action to the commissioner.
The board of review shall be appointed by the governor, by and with the advice and consent of the Senate, and shall consist of three members, each appointed for a staggered three-year term. Two members of the board of review shall be licensed auctioneers in West Virginia and residents of this state and shall have been licensed and been practicing the profession of auctioneering for five years immediately preceding their appointment. The third member shall be a lay person from the commercial or agricultural community who has utilized services of auctioneers for at least three years. No more than one board member shall be from any one congressional district and no more than two members shall be from the same political party. Board members shall receive no compensation for their service on the board, but shall be entitled to receive reimbursement for expenses in accordance with the department of agriculture travel regulations.
During the establishment of the board one member shall be appointed for a three-year term, one member for a two-year term and one member for a one-year term. The first year of each term expires on the first day of January, one thousand nine hundred ninety-two, and subsequently on the first day of January of each year. There shall be no limit on the number of consecutive terms a member may serve on the board. The governor is authorized to fill a vacancy when it occurs on the board for any reason. An appointment to fill a vacancy shall be for the remainder of the existing term of the vacant position.
An apprentice auctioneer shall only conduct or assist in auctions under the direct supervision of his sponsoring auctioneer. A licensed apprentice auctioneer may not enter into a contract to conduct an auction unless the contract is cosigned by his sponsoring auctioneer.
The sponsoring auctioneer is responsible for the actions of an apprentice auctioneer. It is his responsibility to insure adherence to this and all applicable sections of state law: Provided, That if the apprentice auctioneer conducts auctions without the consent of his sponsor, only the apprentice auctioneer is subject to the penalties in section eight of this article.
To qualify for a nonresident license by reciprocity, the applicant must show evidence of licensing in another state for a period of one year preceding the date of application. The licensing may have been as an apprentice auctioneer or as an auctioneer. Provided this qualification is met and the applicant meets all the other requirements as required by this article and by regulation, he or she shall be licensed either as an apprentice auctioneer or as an auctioneer, based on a nonresident license, as the case may be.
When an applicant's resident state has no licensing law for auctioneers or the applicant's resident state has no written or oral examination associated with its licensing requirements, the department of agriculture shall require proof that the applicant has been a practicing auctioneer for a period of two years preceding the date of application. The proof shall be in the form of sale bills, contracts, sale permits and other such evidence acceptable to the commissioner. Provided this qualification is met, and the applicant meets other requirements for licensing as required by the statutes and regulations, the applicant shall be admitted to the next scheduled written and oral examination for auctioneers without being required to first serve an apprenticeship.
(a) Criminal penalties. -- Any person, firm, association or corporation violating any of the provisions of this article, or of the rules and regulations adopted pursuant to the provisions thereof, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than two hundred dollars for the first offense, and not less than four hundred dollars nor more than one thousand dollars for the second and subsequent offenses. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.
(b) Civil penalties. -- (1) Any person violating a provision of this article or any rule or regulation 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 the person, the seriousness of the violation, and the demonstrated good faith of the person charged in attempting to achieve compliance with this article before and after written notification of the violation; (2) the commissioner may assess a penalty of not more than two hundred dollars for each first offense, and not more than one thousand dollars for a second and subsequent offense; and (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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs 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 violation of the provisions of this article.
(d) No state court may allow for the recovery of damages for any administrative action taken if the court finds that there was probable cause for such action.
In addition to the penalties in section eight of this article, the commissioner may, by order, suspend, deny or revoke any license granted hereunder for any violation of this article or the rules and regulations promulgated hereunder or for any of the following reasons:
(a) Obtaining a license through false or fraudulent representation;
(b) Making any substantial misrepresentation in any application for an auctioneer's or apprentice auctioneer's license;
(c) Engaging in a continued or flagrant course of misrepresentation or for making false promises through an agent, advertisement or otherwise;
(d) Failing to account for or remit within a reasonable time any money belonging to others that comes into his possession;
(e) Being convicted in any court of competent jurisdiction of this state or any other state of a criminal offense involving moral turpitude or a felony; or for failing to notify the department of any such conviction within fifteen days of conviction;
(f) Engaging in any conduct of an auctioneer which demonstrates dishonesty or incompetency;
(g) Engaging in any other conduct that constitutes fraudulent or dishonest dealing; and
(h) Acting as an attorney for a client.
Any auctioneer or apprentice auctioneer who has had his license suspended or revoked shall not be issued another such license until a period not to exceed two years has elapsed from the date of revocation. The commissioner may also require the successful completion of the examinations required for an auctioneer's license or an apprentice auctioneer's license.
No person shall act as auctioneer on the sale at public auction of any goods, wares, merchandise or of any other property, real or personal, until he or she has entered into a written contract in duplicate with the owner or consignor of the property to be sold, containing the terms and conditions upon which the licensee receives or accepts the property for sale at auction. No apprentice auctioneer shall be authorized to enter into a contract without the written consent of his or her sponsoring auctioneer. All contracts shall be in the name of and on behalf of the sponsoring auctioneer.
The commissioner may require by rule the following:
(a) That written contracts between the auctioneer and the seller be made in duplicate;
(b) That the original contract is to be retained by the auctioneer for a period of six months;
(c) That one copy of the contract is to be furnished to each person that entered into the contract;
(d) That an apprentice auctioneer may not contract directly with a client but only through his or her sponsoring auctioneer;
(e) That an apprentice auctioneer may not engage in a sale with an auctioneer by whom he or she is not sponsored without first obtaining the written consent of his or her sponsoring auctioneer; and
(f) That on all contracts between an auctioneer and a seller there shall be a prominent statement indicating that the auctioneer is licensed by the department of agriculture and bonded in favor of the state of West Virginia.
In advertising an auction sale by any licensed auctioneer, the principal auctioneer or auctioneers who physically conduct the sale shall be listed prominently in such advertising as used by said auctioneer or auctioneers. The individual auctioneer or auctioneers who conduct the sale shall be the person or persons who call for, accept and close bids on the majority of items offered for sale.
Any apprentice auctioneer who advertises, as provided in this section, shall indicate in his advertisement the name of the sponsoring auctioneer under whom he or she is licensed.
The auctioneer's name and license number shall be displayed in equal prominence with the name of the apprentice auctioneer and license number in such advertisement.
Nothing in the provisions of this article shall be construed so as to prohibit any other auctioneer, licensed pursuant to this article, from assisting with any auction, notwithstanding the failure to list the name of the other auctioneer in any advertising associated with such auction.
Repealed.
Acts, 1991 Reg. Sess., Ch. 123.
"Imitation honey" means any mixture of sugars with or without honey as one of the constituent ingredients, which has been manufactured to represent honey.
"Label" means all written, printed or graphic information upon, attached to or accompanying product containers or wrappers.
"Package" means any container or wrappings in which a product is enclosed for use in the delivery or display of that product to retail purchasers.
"Person" means any individual, firm, corporation, association or any other group of people or business unit whether or not they are incorporated.
(b) No person shall sell, expose or offer for sale any product, compound or mixture of sugars labeled as or for honey, with or without honey as a constituent ingredient, unless the product, compound or mixture of sugars is labeled "imitation honey" with the word "imitation" appearing in letters equal in size to the letters used to spell "honey."
(a) "Commercial slaughtering establishments" means a person engaged for profit in this state in the business of slaughtering or dressing animals for human consumption which are to be sold or offered for sale through a commercial outlet or establishment;
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia and his duly authorized representatives;
(c) "License" means any person licensed under the provisions of article two-b, chapter nineteen of the code of West Virginia;
(d) "Person" means any individual, partnership, corporation, association, fiduciary or other group of persons whether organized or not;
(e) "Livestock" means cattle, swine, sheep or goats.
(b) By slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument as well as handling techniques in connection with such slaughtering; or
(c) By slaughtering in accordance with any method of humane slaughter approved by the United States department of agriculture.
(1) "Council" means the West Virginia Beef Industry Council.
(2) "Commissioner" means the Commissioner of the West Virginia Department of Agriculture.
(3) "Person" means an individual, partnership, corporation, association, fiduciary, or other group of persons acting together whether organized or not.
(4) "Producer" means any person in the business of raising, breeding or growing cattle or calves for beef production.
(b) The Commissioner, when petitioned by no less than fifty producers, must hold a public hearing no more than forty-five days after receipt of the petition to decide whether a referendum should be held to establish an assessment on the sale of beef and dairy cattle, the amount of the assessment and the duration of the assessment. The Commissioner shall give no less than fifteen days notice of the public hearing including the date, time and place of the public hearing. If a majority of those present vote in favor of holding the referendum, including the amount and duration of the proposed assessment, the Commissioner shall notify the Council to schedule and hold a referendum on the proposed assessment.
(b) The Council shall provide ballots and polling places in each county. All cattle producers who may be subject to the proposed assessment are eligible to vote in the referendum upon presentation of proof showing them to be bona fide cattle producers subject to the assessment. The referendum is decided by a majority of the votes cast.
(c) The Commissioner shall canvass, tabulate and publicly announce the results of the referendum no later than five days after the end of the election. The Commissioner must preserve all ballots for one year after the date of the referendum.
(d) All expense and costs necessary to conduct a referendum are bourne by the Council.
(b) In the event that an assessment is in effect and set to expire, the Council is authorized to conduct a subsequent referendum under the provisions of section four of this article during the last year of the assessment without complying with the requirements set forth in section three of this article, so long as the amount and duration of the subsequent assessment are not increased.
(a) The West Virginia Beef Industry Council is hereby continued. The members of the Council in office on the date this section becomes effective shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) (1) Commencing with the Council terms beginning on the first day of July, two thousand five, the Council shall consist of nine members appointed for terms of three years by the Governor with the advice and consent of the Senate. Six members of the Council must be beef cattle producers, one member must be a dairy cattle producer, one member must be a representative of a public livestock market and one member must be a meat packer or meat processor.
(2) Each member of the Council, at the time of his or her appointment, must have been engaged in his or her representative
occupation for a period of not less than five years immediately preceding the appointment and each member must be a United States citizen and a resident of this state during the appointment term.
(3) In making appointments to the Council, the Governor shall consider proposed member recommendations made by West Virginia organizations and groups concerned with or engaged in beef production.
(4) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member continues to serve until his or her successor has been appointed and qualified.
(5) The Governor may remove any member of the Council for neglect of duty, incompetency or official misconduct.
(c) The Council elects a chair, a secretary and a treasurer from its membership each for a term of two years. The Council meets as often as necessary at the time and place designated by the chair or by call of a majority of the Council members. All Council meetings shall be held in accordance with the provisions of article nine-a, chapter six of this code. All decisions of the Council are determined by a majority of the members appointed.
(d) The Board shall reimburse each member's expenses for room, meals and mileage in the same manner and amount as state employees receive for travel. No member may receive any other salary or compensation for his or her services.
(1) Receive and disburse funds as prescribed in this article to be used for the purposes of this article;
(2) Enter into contracts;
(3) Hire and discharge employees, prescribe their duties and fix their compensation;
(4) Accept grants, gifts and contributions for expenditure consistent with the purposes of this article;
(5) Sue and be sued as a council without individual liability of the members for acts of the Council when the Council is acting within the scope of the powers conferred by this article;
(6) Cooperate with other state or federal agencies and organizations engaged in work or activities consistent with the purposes of this article;
(7) Conduct public relations and education programs for increasing beef production and improving beef marketing practices;
(8) Conduct or contract for scientific research with any accredited college or university which will aid in implementing the purposes of this article; and,
(9) Prepare and submit an annual report of its activities and fiscal accounting to the Commissioner no later than the fifteenth day of January of each year.
(b) The Council may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code designed to implement the provisions of this article.
(b) The assessment approved by referendum is deducted by all livestock markets, packers, buying stations, order buyers, livestock dealers or other persons purchasing cattle, including dairy cattle, on each cattle purchase from the sale settlement. The purchasers remit the assessments within thirty days of the date of the sale settlement to the treasurer of the Council.
(c) The Council must keep accurate records of the amount of assessments received, the date on which they were received and the name of the person making the remittance. The records must be preserved for at least five years.
Acts, 2010 Reg. Sess., Ch. 32.
Acts, 2009 Reg. Sess., Ch. 36.
Acts, 2009 Reg. Sess., Ch. 36.
Acts, 2009 Reg. Sess., Ch. 36.
Repealed.
Acts, 1993 Reg. Sess., Ch. 163.
Repealed.
Acts, 1993 Reg. Sess., Ch. 163.
Acts, 2009 Reg. Sess., Ch. 36.
Acts, 2009 Reg. Sess., Ch. 36.
Repealed.
Acts, 1993 Reg. Sess., Ch. 163.
Acts, 2009 Reg. Sess., Ch. 36.
Acts, 2009 Reg. Sess., Ch. 36.
(1) Failed to satisfy a money judgment properly served against him;
(2) Made false, fraudulent or improper charges or returns for the handling, sale, storage, or other services in connection with agricultural products;
(3) Failed or refused to render an account of sales or make prompt settlement thereon;
(4) Knowingly made false or misleading statements as to the condition, quality, or quantity of agricultural products received, handled, stored, or held by him for sale;
(5) Made false or misleading statements concerning market conditions, with the intent to deceive;
(6) Combined or conspired to fix prices either directly or indirectly;
(7) Purchased for his own account agricultural products received by him upon consignment without prior notice to the consignor in writing, or at an agreed price fixed by the consignor;
(8) Made fictitious sales or has been guilty of collusion to defraud the consignor;
(9) Has reconsigned agricultural products without the written consent of the consignor or without notice to the consignor that all or part of his shipment has been reconsigned;
(10) Sold consigned goods to another person, exchange, association, or corporation in which the consignee has a financial interest without notice in writing to the consignor of such interest.
All moneys collected under this article shall be deposited with the treasurer of the state of West Virginia and shall be kept in a separate fund to be designated as the "general marketing fund" and reappropriated to the department of agriculture for the administration of this article.
(a) "Agricultural products," horticultural, viticultural, forestry, dairy, livestock, poultry, bee and any farm products, in their natural form or processed;
(b) "Member," actual members of associations without capital stock and holders of common stock in associations organized with capital stock;
(c) "Association," any corporation organized under the provisions of this article. Such association shall be deemed nonprofit.
(a) To engage in any activity in connection with the marketing, selling, preserving, harvesting, drying, processing, manufacturing, canning, packing, grading, storing, handling or utilization of any agricultural products produced or delivered to it by its members or purchased or received by consignment from other persons, or the manufacturing or marketing of the by- products thereof; or any activity in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment; or in securing and disseminating market information; or in the financing, directly, through agricultural credit associations, and/or otherwise, any such activities; or in any one or more of the activities specified in this section: Provided, however, That all transactions with nonmembers shall be on terms fixed by the association, and such nonmembers shall not otherwise participate in any benefits derived from such transactions;
(b) To borrow money without limitation as to amount of corporate indebtedness or liability, and to make advance payments and advances to members; to execute, issue, draw, make, accept, endorse, and guarantee, without limitation, promissory notes, bills of exchange, drafts, warrants, certificates, mortgages, and any other form of obligation or negotiable or transferable bills of any kind; to become the surety, guarantor, maker, and/or endorser for accommodation or otherwise of bills, notes, securities, and other evidences of debt of any association or person, anything in any other statutes or law of this state to the contrary notwithstanding;
(c) To act as the agent or representative of any member or members in any of the above-mentioned activities;
(d) To purchase or otherwise acquire, and to hold, own, and exercise all rights of ownership in, and to sell, transfer or pledge, or guarantee the payment of dividends or interest on, or the retirement or redemption of, shares of the capital stock or bonds of any corporation or association engaged in any related activity or in the warehousing or handling or marketing of any of the products handled by the association;
(e) To establish reserves and to invest the funds thereof in bonds or in such other property as may be provided in the bylaws;
(f) To buy, hold and exercise all privileges of ownership over real or personal property as may be necessary or convenient for the conduct and operation of any of the business of the association, or incidental thereto;
(g) To establish, secure, own and develop patents, trademarks and copyrights;
(h) To do each and every thing necessary, suitable or proper for the accomplishment of any one of the purposes or the attainment of any one or more of the subjects herein enumerated, or conducive to or expedient for the interest or benefit of the association; and to contract accordingly; and, in addition, to exercise and possess all powers, rights and privileges necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged, and any other rights, powers, and privileges granted by the laws of this state to ordinary corporations, except such as are inconsistent with the purposes of this article; and to do any such thing anywhere. An agricultural credit association shall have all of the powers given to a cooperative association under the provisions of subdivision (b) of section four of this article, and in general shall have power to do and perform any act or thing, not inconsistent with law, which may be appropriate to promote and attain the objects and purposes of such credit association.
If a member of a nonstock association be other than a natural person, such member may be represented by an individual, associate, officer or manager or member thereof, duly authorized in writing.
One association organized hereunder may become a member or stockholder of any other association or associations organized under this article or similar laws of any state.
(a) The name of the association;
(b) The purposes for which it is formed;
(c) The place where its principal business will be transacted;
(d) The period, if any prescribed, for the duration of the corporation;
(e) The number of incorporators which shall not be less than five, the number of directors which shall not be less than five and may be any number in excess thereof, or it may be set forth that the number of directors shall be fixed by the bylaws;
(f) If organized without capital stock, whether the property rights and interest of each member be equal or unequal; and if unequal, the general rule or rules applicable to all members, or classes of members, by which the property rights and interest, respectively, of each member may and shall be determined and fixed; and provision for the admission of new members who shall, or shall not be, entitled to share in the property of the association with the old members, in accordance with such general rule or rules. This provision or paragraph of the articles of incorporation shall not be altered, amended, or repealed except by the written consent or vote of three fourths of the members;
(g) If organized with capital stock and authorized to issue only one class of stock, the total number of shares of stock which the association shall have authority to issue and (1) the par value of each of such shares, or (2) a statement that all such shares are to be without par value; or, if the association is to be authorized to issue more than one class of stock, the total number of shares of all classes of stock which the association shall have authority to issue and (1) the number of shares of each class thereof that are to have a par value and the par value of each share of each such class, and/or (2) the number of such shares that are to be without par value, and (3) a statement of all or any of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, which are permitted by the provisions of section thirteen of this article in respect of any class or classes of stock of the association and the fixing of which by the articles of incorporation is desired, and an express grant of such authority as it may then be desired to grant to the board of directors to fix by resolution or resolutions any thereof that may be desired but which shall not be fixed by such articles;
The articles must be subscribed by the incorporators and acknowledged by one of them before an officer authorized by the law of this state to take and certify acknowledgments of deeds and conveyances; and shall be filed in accordance with the provisions of the general corporation law of this state; and, when so filed, such articles of incorporation, or certified copies thereof, shall be received in all the courts of this state and other places as prima facie evidence of the facts contained therein and of the due incorporation of such association;
The secretary of state shall provide suitable application blanks and supply them on request;
(h) The articles may also contain any provisions which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the association, and any provisions creating, defining, limiting and/or regulating the powers of the association, the directors and the stockholders, or any class of the stockholders or, in the case of an association which is to have no capital stock, of the members of such association: Provided, That such provisions are not contrary to the laws of the state.
(a) The time, place and manner of calling and conducting its meetings;
(b) The number of stockholders or members constituting a quorum;
(c) The right of members or stockholders to vote by proxy or by mail or both; and the conditions, manner, form, and effect of such votes;
(d) The number of directors constituting a quorum; and, if authority therefor is given in the articles of incorporation, the total number of directors;
(e) The qualifications, compensation, duties and term of office of directors and officers; time of their election and the mode and manner of giving notice thereof;
(f) Penalties for violation of the bylaws;
(g) The amount of entrance, organization and membership fees, if any; the manner and method of collecting the same; and the purposes for which they may be used;
(h) The amount which each member or stockholder shall be required to pay annually or from time to time, if at all, to carry on the business of the association; the charge, if any, to be paid by each member or stockholder for services rendered by the association to him and the time of payment and the manner of collection; and the marketing contract between the association and its members or stockholders which every member or stockholder may be required to sign;
(i) The number and qualifications of members or stockholders of the association and the conditions precedent to membership or ownership of common stock; the method, time and manner of permitting members to withdraw or the holders of common stock to transfer their stock; the manner of assignment and transfer of the interest of members and of the shares of common stock; the conditions upon which and time when membership of any member shall cease; the automatic suspension of the rights of a member when he ceases to be eligible to membership in the association; the mode, manner and effect of the expulsion of a member; the manner of determining the value of a member's interest, and provision for its purchase by the association, at its option, upon the death or withdrawal of a member or stockholder, or upon the expulsion of a member or forfeiture of his membership, or, at the option of the association, the purchase at a price fixed by conclusive appraisal by the board of directors, or at the election of the board, such property interests may be sold at public auction to the association itself, or to any person eligible to membership in such association and the proceeds of such sale paid over to the personal representative of such deceased member, or to the member withdrawing or expelled, as the case may be.
An association may provide a fair remuneration for the time actually spent by its officers and directors in its service and for the service of the members of its executive committee. No director, during the term of his office, shall be a party to a contract for profit with the association differing in any way from the business relations accorded regular members or holders of common stock of the association, or others, or differing from terms generally current in that district.
The bylaws may provide that no director, except the president and secretary, shall occupy any position in the association on regular salary or substantially full-time pay.
The bylaws may provide for an executive committee and may allot to such committee all the functions and powers of the board of directors, subject to the general direction and control of the board.
When a vacancy on the board of directors occurs other than by expiration of term, the remaining members of the board, by a majority vote, shall fill the vacancy, unless the bylaws provide for an election of directors by district. In such a case the board of directors shall immediately call a special meeting of the members or stockholders in that district to fill the vacancy.
No association shall issue stock to a member until it has been fully paid for. The promissory notes of the members may be accepted by the association as full or partial payment. The association shall hold the stock as security for the payment of the note; but such retention as security shall not affect the member's right to vote.
No member shall be liable for the debts of the association to an amount exceeding the sum remaining unpaid on his membership fee or his subscription to the capital stock, including any unpaid balance on any promissory notes given in payment thereof.
An association in its bylaws, may limit the amount of common stock which one member may own. No member or stockholder shall be entitled to more than one vote, regardless of the number of shares of common stock owned by him.
Any association organized with stock under this article may issue preferred stock, with or without the right to vote. Such stock may be sold to any person, member or nonmember, and may be redeemable or retireable by the association on such terms and conditions as may be provided for by the articles of incorporation and printed on the face of the certificate. The bylaws shall prohibit the transfer of the common stock of the association to persons, or organizations, not engaged in the production or cooperative marketing of the agricultural products handled by the association, and/or members of credit associations financing such products; and such restrictions shall be printed upon every certificate of stock subject thereto.
Other kinds and classes of stock may be issued in compliance with the provisions of the articles of incorporation, the terms of the bylaws, or special resolutions of the board of directors.
The association may, at any time, as specified in the bylaws, except when the debts of the association exceed fifty percent of the assets thereof, buy in or purchase its common stock at the book value thereof, as conclusively determined by the board of directors, and pay for it in cash within one year thereafter.
In case the bylaws provide for election of directors by districts with primary elections in each district, then the petition for removal of a director must be signed by twenty percent of the members residing in the district from which he was elected. The board of directors must call a special meeting of the members residing in that district to consider the removal of the director; and by a vote of the majority of the members of that district the director in question shall be removed from office.
In the event of any such breach or threatened breach of such marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance thereof. Pending the adjudication of such an action and upon filing a verified complaint showing the breach or threatened breach, and upon filing a sufficient bond, the association may be entitled to a temporary restraining order and preliminary injunction against the member.
In any action upon such marketing agreement, it shall be presumed as between the parties that the landowner, landlord or lessor claiming therein so to be is able to control the delivery of products produced on his land by tenants or others, whose tenancy or possession or work on such land or the terms of whose tenancy or possession or labor thereon were created or changed after execution by the landowner, landlord or lessor of such marketing agreement; and in such actions the foregoing remedies for nondelivery or breach shall lie and be enforceable against such landowner, landlord or lessor.
Any exemptions whatsoever under any and all existing laws applying to agricultural products in the possession or under the control of the individual producer shall apply similarly and completely to such products delivered by its former members, in the possession or under the control of the association.
If such corporations are warehousing corporations, they may issue legal warehouse receipts to the association against the commodities delivered by it, or to any other person, and such legal warehouse receipts shall be considered as adequate collateral to the extent of the usual and current value of the commodity represented thereby. In case such warehouse is licensed or licensed and bonded under the laws of this or any other state or the United States, its warehouse receipt delivered to the association on commodities of the association or its members, or delivered by the association or its members, shall not be challenged or discriminated against because of ownership or control, wholly or in part, by the association.
Where any association may be incorporated under this article, all contracts made prior to April eighteenth, nineteen hundred and twenty-three, by or on behalf of such association by the promoters thereof in anticipation of its becoming incorporated under the laws of this state, whether or not such contracts be made by or in the name of some corporation organized elsewhere, and when they would have been valid if entered into subsequent to such date, shall be held valid as if made after such date.
It is the intent of this article that the commissioner of agriculture of West Virginia shall promulgate all United States standard grades for fruits and vegetables, and, after consulting with the president of the state horticultural society and a committee of five fruit and vegetable growers appointed by the president of said society, such committee to be made up of growers from the various fruit and vegetable producing sections of the state, shall, with their advice and consent, establish such other grades within this state as in their judgment may be advisable.
(a) To enter and inspect personally, or through any authorized agent, every place within this state where fruits or vegetables are produced, packed, or stored for sale, shipped, delivered for shipment, offered for sale, or sold, and to inspect such places and all fruit or vegetable containers and equipment found in any such place;
(b) To appoint, superintend, control and discharge such inspectors and subordinate inspectors as in his discretion may be deemed to be necessary, for the special purpose of enforcing the terms of this article, to prescribe their duties and fix their compensation;
(c) Personally, or through any authorized agent or any such inspector, to forbid the movement of any closed package or packages of fruits or vegetables found to be in violation of any of the provisions of this article which have not been actually accepted by a common carrier for shipment in interstate traffic, and to require the same to be repacked or remarked. A carload of fruits or vegetables shall not be considered as actually accepted by a common carrier for shipment until the loading is finished, the car sealed and the bill of lading issued;
(d) To cause to be instituted through the prosecuting attorney of any county of this state, in any court of competent jurisdiction or before any justice of the peace of such county, in which fruits or vegetables are packed, shipped, delivered for shipment, offered for sale or sold, or may be found, in violation of any of the provisions of this article, prosecutions for such violations.
(a) When he or it can establish by satisfactory evidence that he or it was not a party to the packing, grading or marking of such fruits or vegetables;
(b) When he or it can establish that the fruits or vegetables offered for sale have passed inspection by an authorized inspector of this state and bear the official West Virginia inspection stamp, or by an inspector of the United States department of agriculture and found to be packed in accordance with the requirements of the commissioner of agriculture of West Virginia.
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his duly authorized representatives.
(c) "Controlled atmosphere storage" or "CA" means any storage warehouse consisting of one or more rooms in any one facility in which atmospheric gases are controlled in their amount and in degrees of temperature for the purpose of controlling the condition and maturity of any fresh fruits and vegetables in order that upon removal therefrom they may be designated as having been exposed to controlled atmosphere.
(d) "Person" means an individual, firm, partnership, corporation, cooperative, company, society or association and each officer, agent or employee thereof and shall import either the singular or plural as the case may be.
(b) The commissioner is hereby authorized and empowered to cooperate with the federal government and any agencies, departments, and instrumentalities thereof, the state of West Virginia and any agencies, departments or political subdivisions thereof, and any other state or commonwealth and any agencies, departments or political subdivisions thereof, in order to carry out the effective administration of this article.
The commissioner may refuse to grant a license or may suspend or revoke a license issued under the provisions of this section whenever he finds that the applicant's or licensee's CA storage warehouse, as the case may be, is not properly equipped, or is not in conformity with the provisions of this article or any rules and regulations promulgated by the commissioner.
No such revocation or suspension of a license shall be effective until the licensee has received notice thereof, which notice shall specify the grounds for such revocation or suspension.
No person in this state shall place, stamp, mark or cause to be placed, stamped or marked the letters "CA" or a similar designation in conjunction with a number or numbers upon any container or subcontainer of any fruits or vegetables, or imply that such fruits and vegetables have been subjected to controlled atmosphere conditions unless the commissioner has inspected such fruits and vegetables and issued a state lot number in conjunction with a certificate stating their quality and condition, that they were stored in a warehouse licensed under the provisions of this article and met the requirements of the article and regulations promulgated thereunder: Provided, That if such fruits and vegetables are not allowed to enter the channels of commerce within two weeks of such inspection or subsequent similar inspection by the commissioner the letters "CA" and the state lot number shall be eradicated by the licensee.
(a) Prescribing the maximum amount of oxygen that may be retained in a sealed controlled atmosphere warehouse.
(b) Prescribing the maximum period of time in which the oxygen content shall be reduced to the amount prescribed under subdivision (a) of this section.
(c) Prescribing the length of time and degree of temperature at which any fruits or vegetables shall be retained in a controlled atmosphere storage warehouse before they may be classed as having been stored in a CA storage.
(a) Full name and address of licensee.
(b) Number and storage capacity of the warehouse.
(c) Date of sealing of the warehouse.
(d) Date of opening of the warehouse.
(e) A daily record of the date and time of tests including the percentage of carbon dioxide, oxygen and the temperature.
(f) Any records required by the commissioner to fulfill the provisions of this article.
Acts, 2001 Reg. Sess., Ch. 129.
(b) Other agricultural and industrial associations not entitled to aid under the provisions of this article may receive aid from the state of West Virginia, if funds are available, when, in the judgment of the commissioner of agriculture, the exhibitions are in the interest of the agricultural or the industrial development of the state.
(c) The commissioner of agriculture may assist in the promotion and operation of an annual state fair and 4-H regional fairs and, when funds are available, to expend those funds for their support and development.
Acts, 2001 Reg. Sess., Ch. 129.
Acts, 2001 Reg. Sess., Ch. 129.
Acts, 2001 Reg. Sess., Ch. 129.
(b) The governor and commissioner of agriculture are ex officio members of the board of directors of the fair association for the purpose of protecting the interests of the state in the awarding of premiums and in the arrangement of the agriculture and other exhibits.
(c) The provisions of this section may not alter, change or alienate the rights of any other association, organization or individual entitled to benefits under the provisions of this article, except as to the use of the name designated in subsection (a) of this section.
(d) For the purpose of encouraging agriculture and industry, the state fair of West Virginia is not limited to the appropriations authorized by section one of this article. Nothing contained in this article may be construed or interpreted to prevent the state fair of West Virginia from receiving the benefit of any sum specifically appropriated for its use by the Legislature to pay awards and exhibition expenses.
The commissioner of agriculture may pay premiums, awards and provide monetary assistance to the exhibitors at county, community and state fairs, festivals or events of any agricultural or horticultural products when appropriations are specifically made available for specific events or organizations.
(b) The commissioner of agriculture shall propose legislative rules for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code. The rules shall provide for the administration of the provisions of this article and shall provide criteria under which the commissioner is to determine the eligibility of an association, organization or individual to receive state aid under the provisions of this article. Notwithstanding any other provisions of this code to the contrary, until the Legislature has authorized the rules, the commissioner of agriculture may promulgate emergency rules for those purposes pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
It shall each year be the duty and responsibility of the county extension service committee:
(1) To enter into a memorandum of agreement with the cooperative extension service of West Virginia University for the employment of county cooperative extension workers.
(2) To prepare a memorandum of agreement with the county commission and with the county board of education for their financial support of extension work.
(3) To give guidance and assistance in the development of the county cooperative extension service program and in the preparation of the annual plan of work for the county.
Such county cooperative extension service committee may on or before the first day of July of each year file with the county commission a written memorandum of agreement with the cooperative extension service of West Virginia University for the employment for the next fiscal year of county extension agents, extension homemaker agents, associate or assistant agents, and clerical workers.
The county cooperative extension service committee may also file on or before the first day of July of each year with the county board of education a written memorandum of agreement with the cooperative extension service of West Virginia University for the employment for the next fiscal year of Four-H club or youth development agents, associate or assistant agents, and clerical workers.
If such agreement or agreements are so filed, the county commission and the county board of education of such county, or either of them, may annually enter into such agreement or agreements for the employment for the next fiscal year of such county extension agents, extension homemaker agents, Four-H club or youth development agents, associate or assistant agents, and clerical workers, or any of them, as may be nominated by the cooperative extension service of West Virginia University, and approved in writing by at least five members of the county extension service committee.
Salaries and expenses of all such county extension workers shall be paid by the cooperative extension service, the county commission, and the board of education, or jointly out of such appropriations as are made by the Legislature, the county commission and the board of education, separately or in conjunction with such federal acts as do now, or may hereafter, provide funds for such purpose. That part of salaries, travel and general office expense to be provided by the county commission according to the approved memorandum shall be paid from general county funds.
Whenever the cooperative extension service is required by law or legislative intent to grant a salary increase to its employees, the state budget shall include such additional funds as may be necessary to fully fund such salary increase. It is the intent of this section that the cooperative extension service shall not bedependent upon county or federal funds or upon the other funds of the institution or the governing board to meet the costs of such a salary increase required by law or legislative intent regardless of the source of the employee's base salary: Provided, That any decrease by the county of base salary levels of county extension employees, as exists on June thirtieth of the year preceding the year the salary increase is authorized, shall not be funded by the state.
Acts, 1953 Reg. Sess., Ch. 8.
§19-9-1. Definitions.
The following words, as used in this article, or in any rule or regulation authorized thereunder, unless the context otherwise requires or a different meaning is specifically prescribed, shall have the following meanings:
(a) "Commissioner," the state commissioner of agriculture;
(b) "Animal," any domestic equine or bovine animal, sheep, goat, swine, dog, cat or poultry;
(c) "Owner," any person who owns, leases or hires any domestic animal from another, or who allows a domestic animal habitually to remain about the premises inhabited by such person;
(d) "Premises," is to be taken in its widest sense, and shall include land, any structure, building, pen, coop or inclosure thereon, and any vehicle, car or vessel used in transporting passengers, goods or animals by land or water;
(e) "Communicable disease," actinobacillosis, actinomycosis, anaplasmosis, anthrax, apthous fever (foot-and-mouth disease), aujesky's disease (mad itch), bacillary hemoglobinuria, blackleg, brucellosis (cattle, swine and goats), contagious ecthyma (sheep sore mouth), contagious pleuropneumonia, dourine (horses), encephalomyelitis, equine encephalomyelitis, erysipelas (swine), glanders, hemorrhagic enteritis in swine, hemorrhagic septicemia (shipping fever), hog cholera, influenza (horses and swine), infectious equine anemia, infectious keratitis, Johne's disease (paratuberculosis in cattle), laryngo tracheitis (poultry), leptospirosis, listerellosis, malignant oedema, necrobacillosis, newcastle disease (avian pneumonencephalitis), psittacosis, pullorum disease, pox (chicken, cow, swine and horse), Q fever, rabies, rinderpest, Rocky Mountain spotted fever (in rodents and dogs), salmonellosis, scabies (mange -- in all species), tick fever, tularemia, trichinosis, trichomoniasis, tuberculosis, vesicular exanthema (swine), vesicular stomatitis, vibrio foetus, X-disease (hyperkeratosis), or any other disease which has been or may hereafter be adjudged and proclaimed by the commissioner or the bureau of animal industry of the United States department of agriculture to be contagious, infectious or otherwise transmissible or communicable.
(a) To prevent, suppress, control and eradicate any communicable diseases of animals or poultry;
(b) To make and enforce such rules and regulations as may be necessary to effectuate the provisions of this article;
(c) To collect and disseminate information and statistics by means of circulars and bulletins on the prevalence and control of animal and poultry diseases and their treatment, the proper care and sanitation of stables and other buildings, so as to prevent the existence and spread of communicable diseases among such animals and poultry, and such other information relative thereto as will be of value to the stock industry of the state;
(d) To make or cause to be made any investigations he may deem advisable regarding the causes and methods of preventing, controlling and eradicating diseases of animals or poultry, and exercise such other powers and perform such other duties as may be proper or necessary to prevent the spread of, eradicate or control any communicable disease among animals or poultry, including the power to promulgate, issue, and enforce regulations prohibiting the feeding of garbage to swine unless said garbage has been thoroughly heated to a temperature of at least 212 degrees F for at least thirty minutes or treated in some other manner equally effective for the prevention of swine diseases and the protection of public health, such regulations not to apply to any individual who feeds only his own household garbage to swine which are raised for such individuals' own use;
(e) To prohibit the importation into this state of animals and poultry, when necessary to prevent the spread of disease;
(f) To cause general or special quarantine of premises and of animals and poultry to be established and maintained;
(g) To cause the disinfection of any premises;
(h) To cause the destruction of diseased animals, when such animals are deemed diseased as a result of physical examination or an approved test, and of infected personal property, and to regulate and prohibit the moving or transportation of such animals or property from one place to another in this state;
(i) To have charge of the enforcement of the provisions of this article and the laws of the state relating to diseases of animals and poultry, and the manufacture, preparation, storage, sale and offering for sale of the food and food products derived from diseased animals and poultry.
Whenever any incorporated city of this state shall have in its employ any veterinary sanitary officer engaged in the inspection of meat, milk or animals, and such officer is a registered veterinarian as aforesaid, the commissioner may appoint such city veterinary sanitary officer a consulting veterinarian, but such officer shall not be entitled to compensation or expenses from both the state and city for the same service.
The commissioner shall regulate and fix the fees to be charged by the inspector, which fees shall be paid by the owner requesting such examination and inspection, and the inspector shall receive no compensation from the state for any such service he may render.
Upon the request of any owner for an examination and inspection of such animals and tender of the fees authorized to be charged therefor, it shall be the duty of the inspector to examine and inspect such animals and to issue and deliver to such owner a certificate of inspection showing the results of such examination and inspection.
Any veterinarian or other person who shall knowingly fail to report such a case or who shall attempt to conceal the existence of such disease shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.
The premises and animal identification data collected by the Commissioner in accordance with the requirements of the National Animal Identification System are specifically exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code.
TESTS FOR DISEASES AND SALE OF DIAGNOSTIC MATERIAL
It shall be unlawful for any person, firm, corporation or association to sell or offer for sale, distribute, administer, barter, exchange, give away or otherwise dispose of unattenuated hog cholera virus except upon a special written permit issued by the commissioner of agriculture.
"Hog cholera virus" means an unattenuated virus administered to swine for the purpose of immunizing such swine against the disease known as hog cholera.
Quarantine shall be of two kinds:
(a) "Special quarantine," which shall mean a quarantine of a single animal; or a quarantine of a single building, structure, pen, coop, car, vessel, vehicle, field or inclosure; or a quarantine of any number of animals when confined or contained in the same building, structure, pen, coop, car, vessel, vehicle, field or inclosure;
(b) "General quarantine," which shall include all quarantines not included under the term "special quarantine" as herein defined.
IMPORTATION OF ANIMALS INTO STATE
SLAUGHTERING OF DISEASED ANIMALS
(a) For animals owned by the United States, this state, or any county, city, town or village in this state;
(b) For animals brought into this state contrary to the provisions of this article, or where the owner of the animals or person claiming compensation has failed to comply with the provisions of this article;
(c) When the owner or claimant at the time of coming into possession of the animal knew or had reason to believe it to be afflicted with a communicable disease;
(d) When the owner has been guilty of negligence or carelessly exposed such animals to a communicable disease; and
(e) When the owner has refused or neglected to comply with the sanitary requirements of the Commissioner of Agriculture or the commissioner's agents.
The euthanasia may be supervised and certified by the commissioner; any of the commissioner's agents; or any person with the authority of an agent or officer of the United States Department of Agriculture. The commissioner may prescribe other requirements for the certificates or the affidavits required by this article, and may make and enforce rules governing the handling, shipping and euthanasia of such animals.
When a bovine animal has a clearly defined reaction to such test, as prescribed by the commissioner's rules, the animal shall be considered infected with bovine tuberculosis and shall be marked or branded upon the left jaw with a capital "T" not less than two inches high, one and one-half inches wide, with a mark one fourth of an inch wide. Such branding shall not constitute cruelty to animals within the meaning of the penal laws of the state.
All bovine animals within the state which are deemed to have tuberculosis, either as a result of a physical examination or the tuberculin test, shall be euthanized, and if the owner of any such animal demands indemnity, the owner shall execute the agreement provided for in section twenty-eight of this article; such animal shall be appraised as provided in section thirty of this article; an appraisal certificate shall be issued as provided in section thirty-one of this article; and the euthanasia shall be supervised and the certificate shall be issued as provided in section thirty-two of this article.
TRANSPORTATION OR SALE OF DISEASED ANIMALS
PENALTIES FOR VIOLATIONS
(a) "Garbage" means putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of foods including animal carcasses or parts thereof;
(b) "Persons" means the state, any municipality, political subdivision, institution, public or private corporation, individual, partnership, or other entity;
(c) "Commissioner" means the state commissioner of agriculture or his authorized agents.
(b) This article shall not apply to any person who feeds only his own household garbage to swine which are raised for such person's own use.
(b) The commissioner may require maintenance of records relating to the operating of equipment for and procedure of treating garbage to be fed to swine and any authorized representative of the commissioner may examine any such records or memoranda pertaining to the feeding of garbage to swine. Copies of such records shall be submitted to the commissioner upon request.
Acts, 2009 Reg. Sess., Ch. 37.
(b) Except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal laws and regulations promulgated under the auspices of the United States secretary of agriculture and the United States secretary of health and human services in order to provide movement of eggs in intrastate and interstate commerce with a minimum of economic barriers.
(b) "Candle" means to determine the interior quality based on the use of a candling light as defined in federal standards adopted in section ten of this article.
(c) "Case" means a container that is not a carton and that is used to pack eggs for distribution or sale to the consumer. A case may contain either loose or cartoned eggs.
(d) "Commissioner" means the commissioner of agriculture for the state of West Virginia or his or her duly authorized agent.
(e) "Container" means any carton, basket, case, cart, pallet or other receptacle.
(f) "Consumer" means any person using eggs for food and shall include restaurants, hotels, cafeterias, hospitals, state institutions and any other establishment serving food to be consumed or produced on the premises, but shall not include the armed forces or any other federal agency or institution.
(g) "Denatured" means rendering unfit for human food by treatment or the addition of a foreign substance as approved by the United States department of agriculture (USDA), agriculture marketing service (AMS), administrator.
(h) "Distributor" means a person or firm engaged in the business of buying eggs from producers or other persons on his or her own account and selling or transferring eggs to other distributors or retailers. A distributor further means a person or firm engaged in producing eggs from his or her own flock and marketing of any portion of this production on a graded basis.
(i) "Egg" means the product of the domesticated chicken hen or any other eggs offered for sale for human consumption.
(j) "Embargo" means a written stop sale order issued by the commissioner of agriculture prohibiting the sale, use of or transportation of eggs in any manner until the embargo is released by the commissioner.
(k) "General embargo" means a statewide written stop sale order issued by the commissioner of agriculture prohibiting the sale, use of or transportation of eggs in any manner until the embargo is released by the commissioner.
(l) "Graded egg" means an egg which is classified in accordance with the standards established by the United States department of agriculture.
(m) "Inedible" and "unfit for human food" means eggs described as black rots, yellow rots, white rots, mixed rots (addled eggs), sour eggs, eggs with green whites, eggs with stuck yolks, moldy eggs, musty eggs, eggs showing blood rings, eggs containing embryo chicks (at or beyond the blood ring state), and any eggs that are adulterated as that term is defined in the federal food, drug and cosmetic act.
(n) "Packer" means any person who grades, sizes, candles or packs eggs for the purpose of resale.
(o) "Person" means any partnership, association, business trust, corporation or any organized group of persons, whether incorporated or not.
(p) "Possession" means the fact of possession by any person engaged in the sale of a commodity is prima facie evidence that the commodity is for sale.
(q) "Processor" means a person who operates a plant for the purpose of breaking eggs for freezing, drying or commercial food manufacturing.
(r) "Producer" means any person owning laying hens who markets eggs.
(s) "Repacker" means any person who packs previously graded and packed shell eggs for resale.
(t) "Retailer" means any person who sells eggs directly to the consumer.
(u) "Sell" means to offer for sale, expose for sale, have in possession for sale, exchange, barter or trade.
(b) For the purposes of financing the administration and enforcement of this article, the state of West Virginia, through the West Virginia department of agriculture shall collect an inspection and permit fee from the distributor first introducing the eggs into West Virginia trade channels.
(c) The commissioner shall set an inspection fee and annual permit fee by legislative rule for the distribution of all shell eggs processed or sold in the state of West Virginia.
(d) All fees, interest, penalties or other moneys collected by the commissioner under the provisions of this article shall be paid into a special account and be expended upon the order of the commissioner for the purpose of the enforcement and administration of this article.
(e) An egg distributor shall conspicuously post his or her permit in the place of business to which it applies. The permit year is twelve months or any fraction thereof beginning the first day of July and ending the thirtieth day of June of each year.
(f) No permit is transferable. Each physical location where eggs are stored for distribution shall have a separate egg distributor permit.
(g) Producers exempted by the commissioner by legislative rule shall register with the West Virginia department of agriculture but are exempt from paying the permit or inspection fee pursuant to the provisions of section four of this article.
(h) The provisions of this article are applicable to all retailers, wholesalers, packers and distributors of eggs.
(i) The commissioner has the power to revoke or suspend the certificate for failure to comply with the provisions of this article and refuse to issue a certificate to willful violators.
The commissioner shall determine and assess violations of this article to the packer, repacker, distributor or retailer.
(b) No person, firm or corporation may sell, traffic in or deliver to the retail or consuming trade, any eggs that are:
(1) Loss, inedible, denatured or leaker eggs;
(2) Not refrigerated; or
(3) Mislabeled or deceptively advertised.
(c) No person may sell eggs for resale to consumers below "U.S. Consumer Grade B".
(d) No person may prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, offer for sale in bulk containers or advertise by sign, placard or otherwise any eggs for human consumption which are mislabeled or deceptive.
(e) No person or retailer may repack eggs in cartons which were previously used and labeled by a packer, except as outlined in legislative rule.
(f) No person may distribute eggs without a valid egg distributor's permit.
(g) No person may store or transport eggs unless held under refrigeration as outlined in legislative rule.
(h) No person may offer for sale or expose for sale shell eggs that are in containers that are dirty, broken or not free from foreign odor.
(1) The identity of the packer by registry of USDA plant number or by state permit number or name and address of the packer, distributor, retailer or repacker;
(2) The correct grade and size or weight classification;
(3) The term "EGGS";
(4) The quantity of eggs per retail unit (i.e. one dozen, eighteen count, etc.) or dozens per case when packing loose eggs for institutional use or an accurate statement of the quantity of the contents in terms of numerical count;
(5) The words "keep refrigerated" in a plain and conspicuous manner on each container or consumer receptacle of shell eggs;
(6) Use by or expiration date; and
(7) Additional labeling according to legislative rule.
(b) Loose eggs shall be labeled according to legislative rule.
(b) The commissioner of agriculture is authorized to examine the invoices and such other records needed to determine the cause and place of any violation of this article.
(b) All eggs advertised or displayed for sale for human food at a given price shall be advertised or displayed in the manner adopted by legislative rule.
(c) Restaurants, hotels, delicatessens and other eating places using eggs below "A" quality shall advertise this fact to the public according to legislative rule.
(b) All duties and functions required to be performed by the West Virginia department of agriculture under the provisions of this article shall be performed by the commissioner of agriculture.
(c) The commissioner of agriculture shall enforce the provisions of this article and may make and propose those rules for promulgation as may be necessary for the enforcement of this article.
(d) The commissioner has the power to issue an embargo or general embargo for any product which is or is believed to be adulterated, mislabeled or is not in compliance with this article and to cause the distributing of that product to cease. Nothing in this article may be construed as to requiring the commissioner to issue embargoes for minor violations of this article when the commissioner believes that a written notice of violation will serve the public interest.
(e) Audits:
(1) The West Virginia department of agriculture may conduct annual audits of all permit holders, including out-of-state permit holders to ensure proper reporting of egg inspection fees.
(2) Out-of-state permit holders shall reimburse the department for travel expenses incurred in conducting out-of-state audits. The state of West Virginia's out-of-state daily allowance for meals and lodging is the maximum amount reimbursable, plus travel expenses to and from locations of permit holders.
(b) All eggs shall be stored or transported under refrigeration as required by legislative rule.
(c) The commissioner shall set standards for egg handling facilities, humidity, sanitation and the cleaning of eggs by legislative rule.
(b) All eggs are considered the property of the person in whose possession they are found except those in the custody of common carriers or public warehouses where the owner is identified by record.
(b) Civil penalties. -- Any person violating a provision of this article or any rules adopted under the authority of this article may be assessed a civil penalty by the commissioner of agriculture. 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, any hazards to the health and safety of the public, any economic damages to the public and the demonstrated good faith of any person charged to achieve compliance with this article before and after written notification of the violation:
(1) The commissioner may assess a civil penalty of up to one thousand dollars for a violation;
(2) The civil penalty is payable to the state of West Virginia and is collectible in any manner now or hereafter provided for collection of debt. If any person liable to pay a civil penalty neglects or refuses to pay the civil penalty, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of that person after the lien has been entered and docketed to record in the county where the property is situated. The clerk of the county, upon receipt of the certified copy of the lien, shall enter it to record without requiring the payment of costs as a condition precedent to recording.
(c) Notwithstanding any other provision of law to the contrary, the commissioner may propose for promulgation and adopt rules which permit consent agreement or negotiated settlements for the civil penalties assessed as a result of violation of the provision of this article.
(d) Upon application by the commissioner for an injunction, the circuit court of the county in which the violation is occurring, has occurred or is about to occur, as the case may be, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any provision of this article or any rule promulgated under this article, notwithstanding the existence of other remedies of law. Any such injunction shall be issued without bond.
(e) No state court may allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for that action.
(f) It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings and to prosecute the person charged with that violation.
(g) Hearings and appeals. --
(1) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner;
(2) Hearings shall be conducted in accordance with procedures set forth by rule;
(3) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party;
(4) Any person who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person has located its principal place of business.
(b) Any person who causes an act to be done which if directly performed by him or her or another would be a violation of the provisions of this article is punishable as a principal.
Unless the context clearly indicates otherwise, as used in this article:
(a) "Bond" means a written instrument guaranteeing that the person bonded shall faithfully fulfill the terms of the contract of purchase and guarantee payment of the purchase price of all livestock purchased by him/her, and made payable to the commissioner for the benefit of persons sustaining loss resulting from the nonpayment of the purchase price or the failure to fulfill the terms of the contract of purchase.
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia and duly authorized representatives.
(c) "Department" means the department of agriculture of the state of West Virginia.
(d) "Livestock" means cattle, horses, swine, sheep, goats or any other animal of the bovine, equine, porcine, ovine or caprine specie, and domestic poultry.
(e) "Livestock dealer" means a person other than a livestock producer who buys, receives or assembles livestock for resale, either for his/her own account or that of another person.
(f) "Livestock producer" means a person selling livestock which he/she has raised or livestock which he/she has additionally purchased and summered or wintered.
(g) "Person" means an individual, partnership, corporation, association or other legal entity.
Before issuing any livestock dealer's license, the commissioner shall require the applicant to file either:
(1) A properly attested sworn statement that he or she is maintaining a valid surety bond pursuant to the requirements of The United States Department of Agriculture Packers and Stockyards Act of 1921, 42 Stat 159.7 USCA, 181 as amended; or
(2) A fully executed bond in an amount prescribed by the commissioner by regulation, but not less than ten thousand dollars, for the benefit of the sellers of livestock who have been wronged or damaged by any fraud or fraudulent practices of the livestock dealer and so adjudged by a court of competent jurisdiction, and who shall have the rights of action for damage for compensation against such bonds. The bond may include, at the option of the applicant, corporate surety bonding, collateral bonding (including costs and securities), establishment of an escrow account, an irrevocable letter of credit or a combination of these methods. If collateral bonding is used, the livestock dealer may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district, or municipality of the state of West Virginia or other states; the certificates of deposit in a bank in this state which certificates shall be in favor of the department.
The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. It shall be the duty of the applicant to insure that the market value of such bonds is sufficient.
(3) The commissioner shall, upon receipt of any such deposits of cash, securities or certificates, promptly place the same with the treasurer of the state of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the license is issued. The applicant making the deposit shall be entitled from time to time to receive from the state treasurer, upon written approval of the commissioner, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond. Such bond shall be open to public inspection.
If the commissioner has reasonable cause to believe any livestock in this state are diseased in a manner such as to constitute a health hazard to other livestock, wherever located, he may request in writing the livestock sales records of any livestock dealer in the state for the purpose of tracing or discovering the diseased livestock, the source of the disease, and all other livestock which may be affected by the disease. A livestock dealer shall comply with such request within twenty-four hours.
The commissioner shall have the authority to enter premises and buildings occupied by a livestock dealer at any reasonable time in order to examine books and records maintained by the livestock dealer.
The commissioner may require livestock dealers to file in such form as he may prescribe, regular or special reports, or answers in regard to specific questions, for the purpose of providing information concerning livestock movement and animal disease control.
(a) The commissioner of agriculture is hereby invested with the authority to, and shall upon the verified written complaint of any person or by his/her own initiative, investigate the actions of any livestock dealer, or any person who assumes to act in that capacity. Upon verification of the complaint that there is probable cause, the commissioner shall present the complaint and evidence to the board of review. The board of review shall consider all of the facts and recommend a course of action to the commissioner. The commissioner shall then issue an order.
(b) The order by the commissioner shall be served upon all persons affected thereby by registered mail. Within ten days of receipt of such order, any party adversely affected thereby may, in writing, request a hearing before the commissioner. Such hearing and any judicial review thereof shall be conducted in accordance with the applicable provisions of articles five and six, chapter twenty-nine-a of this code, as if the same were set forth herein in extenso. The effect of any order shall be suspended during the course of any hearing or subsequent appeals.
(c) The board of review shall be appointed by the commissioner and shall include three persons who are residents of West Virginia and citizens of the United States. One member shall be a licensed livestock dealer, one member shall be a verified livestock producer, and one member shall represent the livestock public market industry. The members shall be appointed for terms of three years and may serve successive terms: Provided, That at the inception of the board, one member shall be appointed for a three year term, one member for a two year term and one member for a one year term. The first year term shall expire on the first day of January, one thousand nine hundred ninety-two, and subsequently thereafter the terms shall expire on the first day of January of each year. There shall be no limit to the number of consecutive terms a member may serve on the board. Board members shall receive no compensation for their service on the board, but shall be entitled to receive reimbursement for expenses in accordance with the department of agriculture's travel regulations.
The commissioner may refuse to grant or may suspend or revoke a livestock dealer's license when it is determined from the evidence that there is reasonable cause to believe that any of the following situations exists:
(a) Where the applicant or licensee has violated the laws of the state or official regulations governing the interstate or intrastate movement, shipment or transportation of livestock.
(b) Where there have been false or misleading statements as to the health or physical condition of the animals with regard to the official tests or quality of the animals, or the practice of fraud or misrepresentation in connection therewith; in the buying or receiving of animals; or in the receiving, selling, exchanging, soliciting or negotiation of the sale, resale, exchange, weighing or shipment of animals.
(c) Where the applicant or licensee acts as a dealer for a person attempting to conduct business in violation of this article, after the notice of such violation has been given the licensee by the commissioner.
(d) Where the applicant or licensee fails to practice measures of sanitation, disinfection and inspection of premises or vehicles used for the yarding, holding or transportation of livestock.
(e) Where there has been a failure to keep records required by the commissioner, or where there is a refusal on the part of the applicant or licensee to produce records of transactions in the carrying on of the business for which such license is granted.
(f) Where the licensee fails to maintain a bond or to adjust a bond upon thirty days notice, or refuses or neglects to pay the fees or inspection charges required to be paid.
(g) Where the licensee has been suspended by order of the secretary of agriculture of the United States department of agriculture under provisions of The United States Department of Agriculture Packers and Stockyards Act of 1921, 42 Stat 159.7 USCA, 181 as amended.
(b) Civil penalties.
(1) Any person violating a provision of this article or rule 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, and the demonstrated good faith of any person charged in attempting to achieve compliance with this article before and after written notification of the violation.
(2) The commissioner may assess a penalty of not more than five hundred dollars for the first offense, and not less than five hundred dollars nor more than five thousand dollars for the second and subsequent offenses.
(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 from the date the penalty was assessed. Such 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 the property is situated. There shall 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 in accordance with the provisions of chapter twenty-nine-a of this code, which permit consent agreements or negotiated settlements for the civil penalties assessed as a result of violation of the provisions of this article, and which deal with the civil penalties and procedures thereunder.
(d) No state court may allow for the recovery of damages for any administrative action taken if the court finds that there was a probable cause for such action.
It is the intent of the Legislature that this article regulate the purchase of milk on the basis of weight, measure or components in the milk; confer powers and impose duties upon the commissioner of agriculture; prescribe penalties; and provide for the enforcement thereof.
Furthermore, except where otherwise indicated it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States secretary of health and human services in order to provide for the movement of bulk milk, cream and the products manufactured from milk and cream in interstate and intrastate commerce with a minimum of economic barriers.
(a) "Adulterated" means milk or the products manufactured from milk meeting one or several of the conditions listed in section seven of this article.
(b) "Certified tester" means any person who has passed an examination in milk testing, weighing and sampling conducted by the commissioner.
(c) "Certified weigher and sampler" means any person who has passed an examination in milk weighing and sampling conducted by the commissioner.
(d) "Clean" means the condition where no residue remains on a surface that will, or is likely to, cause adulteration or other contamination.
(e) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
(f) "Component" means any of the constituent parts of milk in the solids-not-fat, milk fat or water portion of the milk.
(g) "Dairy plant" means any place, premises, or establishment where milk is collected, handled, processed, stored, pasteurized or prepared for further distribution.
(h) "Distribute" means the act of transporting, holding for sale, offering for sale, selling, bartering, parceling out, giving or otherwise disposing of milk.
(i) "Embargo" means an order to withdraw milk from distribution. An embargo shall detain such milk or milk product and prohibit the transportation or distribution of milk as provided in section nine of this article.
(j) "Manufacture" means pasteurizing, ultrapasteurizing, formulating or compounding milk or packaging or preparing said product for distribution.
(k) "Milk" means the normal lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows or goats prior to pasteurization or ultrapasteurization. The term may include the components of milk, including cream.
(l) "Milk fat" means fat or butterfat in milk.
(m) "Milk producer" means any person who operates a dairy farm and who provides, sells or offers milk for sale.
(n) "Milk hauler" means any person who transports milk in an unpackaged form.
(o) "Person" means any individual, partnership, association, fiduciary, firm, company, corporation, or any organized group of persons whether incorporated or not. The term "person" extends to the agents, servants, officers and employees of the person.
(p) "Receiving station" means any place, premises, or establishment where milk in unpackaged form is received, collected, handled, stored or cooled and prepared for further transporting.
(q) "Sanitization" means the application of any effective method or substance to a clean surface for the destruction of pathogens, and of other organisms as far as practicable. Such treatment shall not adversely affect the equipment, the milk or the health of the consumers consuming the milk or milk products manufactured in the equipment and shall be a method acceptable to the commissioner.
(r) "Solids-not-fat" means all components of milk that are not milk fat or water.
(s) "Transport" means the movement of milk or milk products from one facility to another in a manner that maintains adequate temperatures and protects the product from freezing temperatures, exposure to the sun and from sources of contamination.
(t) "Transfer station" means any place, premises or establishment where milk is transferred directly from one transport tank to another.
(u) "Transport tank" means any tank which is used for the pickup of milk or the transportation of milk to or from any milk producer, dairy plant, receiving station, or transfer station.
(a) A "permit for the purchase of milk" shall be issued by the commissioner to each place of operation of each person receiving or buying milk on the basis of the components in the product or weight or measure regardless of the method of settlement, except that transfer stations are exempt from this provision. The permit shall expire on the thirty-first day of March following date of issue.
(b) Permits are not transferable with respect to persons or locations.
(c) Permits shall be applied for at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. Application for all permits shall be made on forms supplied by the commissioner and provide such information as may be considered reasonably necessary by the commissioner. All applications shall be accompanied by a fee of fifteen dollars. A penalty of two dollars shall be added to all permits that are not applied for or renewed within the time limits set forth in this subsection.
(d) Permits shall be posted prominently at the place of operation.
(a) Certificates of proficiency shall be issued by the commissioner to individuals who successfully pass an examination given under the terms of this article.
(b) Persons requesting an examination shall pay an examination fee of fifteen dollars at the time of the request. Requests for certification for several tests at one time shall be covered under one examination fee. Reexaminations or examinations for additional tests subsequent to the issuing of a certificate will require an additional fee of fifteen dollars. Only persons of good character shall be allowed to take this examination. Examinations shall be given within thirty days of the request and at the time and place that the commissioner shall designate.
(c) The examination to weigh and sample milk shall cover the skills needed to weigh and sample milk for the purpose of establishing a price based on the components or weight or volume of the product.
(d) The examination to test milk shall cover the skills needed to test, weigh, measure and sample milk for the purpose of establishing a price based on the components or the weight or measure of the product. The examination will test the proficiency of performing the Babcock test and all other testing methods used by that person for determination of the components of milk. The certificate of proficiency shall state which testing methods the applicant will be certified to perform. Testers will have eight months from the effective date of this article to obtain certificates for specific tests and licenses shall be issued under the former certificates during this time period.
(e) Certificates shall be issued under a serial number to the person that passed the examination and shall be permanent, except that in the case where the person does not obtain a license as provided for under section five of this article for five successive years then the certificate will automatically expire.
(f) Certificates shall be posted prominently at the person's place of business.
(g) Persons who fail the examination may be issued a temporary waiver by the commissioner under terms established by rule. The temporary waiver is intended to give the person the opportunity to learn the skills needed to pass the examination. No temporary waiver will be issued if the interests of milk producers and purchasers of milk are not protected.
(h) If the examination to test milk is given at a site that requires travel to an out-of-state location, the expenses incurred by the commissioner to travel to the location shall be paid by the person requesting the examination.
(a) Licenses shall be issued by the commissioner to certified testers, certified weighers and samplers and to laboratories performing tests for the components of milk. Licenses are not transferable.
(b) Licenses shall expire on the thirtieth day of June following date of issue: Provided, That weighers and samplers licenses issued with an expiration date of the thirty-first day of December, one thousand nine hundred ninety-one, shall be extended, at no additional fee, through the thirtieth day of June, one thousand nine hundred ninety-two. Applications for all licenses shall be made on forms supplied by the commissioner and shall provide such information as may be considered reasonably necessary by the commissioner for the administration of this article. Licenses shall be applied for at least fifteen days previous to the date when the current license expires or at least five days before the person intends to do business, except for persons who operate a laboratory for the testing of milk where the initial application shall be made at least thirty days before the person intends to do business to allow for on-site inspection prior to issuing the license. The application for licenses shall be accompanied by a fee of ten dollars. A penalty of two dollars shall be added to all licenses that are not applied for or renewed within this time limit.
(c) A "milk laboratory license" shall be issued to each laboratory where a licensed milk tester performs analytical operations. The license shall not be issued until the commissioner is satisfied that the tests made in such laboratory shall be conducted by qualified persons, with adequate facilities and that such tests shall be performed accurately and according to methods approved by the commissioner.
(d) A "milk tester license" shall be issued to persons who determine the weight, measure or components of milk for the purpose of establishing a purchase price for such milk. The license will cover the performance of each test used to determine the purchase price as listed on the person's certificate of proficiency. No test method may be used under provisions of this license until the person has obtained a certificate of proficiency for that test.
(e) A "milk weighers and samplers license" shall be issued to persons who weigh or sample milk for the purpose of establishing a purchase price for such milk and who are not involved in testing the components of milk.
(f) Licenses shall be posted prominently at the person's place of business.
(a) No determination of the weight or measure of milk may be made from a milk producer's tank that is not properly calibrated and level.
(b) No determination of the weight of milk in a transport tank may be made with a device that is not accurate.
(c) Each person obtaining a sample of milk for the purpose of establishing a purchase price shall immediately record the sample data on the receipt. The receipt shall contain the milk producer's name or number, the date and time of the sample, the temperature of the product, the measuring rod reading, the calculated weight, the name of the employer of the weigher and sampler and the signature of the weigher and sampler. A copy of the receipt shall be left with the milk producer, or seller, at the time of obtaining the sample.
(d) No test on milk may be made from a sample which is in such condition as to prevent an accurate reading of the components in the product.
(e) Only testing methods approved by the commissioner may be used. The Babcock method or other method approved by the commissioner shall be the reference method to establish calibration of other milk fat test methods.
(f) Each person making tests of samples of milk for the purpose of establishing a purchase price for such milk shall cause the test results to be accurately recorded in an unalterable or verifiable manner. Each method for recording test results may be examined by the commissioner to determine that the test results are recorded in an unalterable or verifiable manner. All test results shall identify the milk producer or seller of the milk, the results of each test for the components in the product and an identification of the person doing the test. The records shall be filed at the place where the testing occurred for a minimum of one year and shall be available to the milk producer, other seller, or the commissioner upon request.
(g) Each person testing milk for its components shall retain the remainder of the sample when the commissioner so requests for the purpose of verifying sample results.
(h) Each person providing payment to a milk producer or seller of milk on the basis of component content or weight or measure shall provide to the milk producer or seller at each time of payment a statement showing for each milk producer or seller the pay period, total weight or measure of milk received during this period, and the average content of the component(s) of the milk used to establish the purchase price; except that this statement format shall not apply to sales between milk cooperatives and purchasers of milk from cooperatives. Nothing in this requirement may prohibit persons purchasing or receiving milk from giving a more detailed report to the milk producer or seller.
Any milk or any milk products are considered adulterated within the meaning of this article if:
(a) They bear or contain any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(b) They bear or contain any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or which is found in the product in excess of an established tolerance;
(c) They are or have been produced, transported, or held under unsanitary conditions;
(d) They contain any substance added thereto so as to make them appear better or of a greater value than they are; or
(e) They meet or have met other conditions of adulteration as established by rule.
(a) No person may have in his possession with the intent to sell, transport or manufacture any milk which is adulterated within the meaning of this article.
(b) No person may interfere with or prohibit the commissioner from performing the duties of his office.
(c) No person may fail to comply with the provisions of an embargo order issued under this article.
(d) No person may fail to comply with the provisions of a revocation, suspension or denial order issued under this article.
(e) No person who in any official capacity obtains any information under the provisions of this article that would be considered trade secrets regarding the quality, source and disposition of milk may use this information to his or her own personal gain.
(f) No person may purchase milk in this state on the basis of, or in any manner with reference to, the weight or measure or the amount of components in the product without a valid "permit for the purchase of milk" and may not establish the price on the basis of measurements or tests that have been performed in a dishonest, incompetent, or inaccurate manner, or falsify the records thereof.
(g) No person may weigh, measure, sample or test milk produced in this state for the purpose of establishing a purchase price of the product without a valid "milk tester license" and may not perform these duties in a dishonest, incompetent or inaccurate manner, falsify the records thereof, or use a testing method unless he has been certified to use that method.
(h) No person may weigh, measure or sample milk produced in this state for the purpose of establishing a purchase price of the product without a valid "milk weighers and samplers license" and may not perform these duties in a dishonest, incompetent manner or falsify the records thereof.
(i) No person may haul milk in or through this state in a tank truck that has previously been used to haul a chemical or foreign substance unless such tank truck has been cleaned and sanitized according to the rules promulgated by the commissioner prior to the hauling of such milk.
(j) No person may sell, offer for sale or expose for sale any milk that is from a herd that does not meet the requirements for animal health as set by rule under this article.
The commissioner has the power and duty to:
(a) Adopt, promulgate and enforce rules to carry out the purpose of this article;
(b) Have access to and enter at all reasonable times all places where milk produced in this state is stored, purchased on the basis of weight or measure or component content, transferred, transported, held or used in the state and have access to all places where samples, records, papers or documents relating to these transactions are kept;
(c) Inspect and photograph all places where milk produced in this state is stored, purchased on the basis of weight or measure or component content, transferred, transported, held or used; inspect, audit and copy records and papers relating to these activities and the sampling, testing and purchase of milk; examine measuring and testing apparatus; examine milk and milk samples and examine equipment used in holding and transporting milk, except that inspections performed under authority of the provisions of article seven, chapter sixteen of this code will not be duplicated;
(d) Examine tanks, holding containers, vehicles, and processing equipment holding or intended to hold milk and collect evidence, including samples, from these areas to establish compliance with this article;
(e) Open any tank or other container containing or believed to contain milk or samples of milk, for the purpose of inspecting and sampling;
(f) Issue permits, certificates, waivers and licenses;
(g) Suspend, revoke or deny permits, licenses or certificates;
(h) Collect fees and expend moneys under the terms of this article;
(i) Give examinations for proficiency in the weighing, sampling and testing of milk;
(j) Issue embargoes for any milk which is or is believed to be adulterated or that is not in compliance with this article and to cause the transportation or distribution of the milk to cease. Nothing in this article may be construed as requiring the commissioner to issue embargoes for minor violations of this article when he or she believes that a written notice will serve the public interest.
(1) When an embargo is issued, the commissioner shall affix to such product or holding container in an appropriate manner a tag or other marking giving warning that such product is under embargo.
(2) The commissioner shall give written notice to the custodian of the product under embargo describing the violation and stating that the product is prohibited from being transported or distributed and is ordered to be held on the premises. This notice shall notify the custodian of the right to request an immediate hearing under the rules that the commissioner shall adopt.
(3) The commissioner may take action to seize and condemn any product that is not brought into compliance with this article and the rules issued under this article within ninety days of the notice to the custodian of the product.
(4) The commissioner has the authority to issue an embargo against a perishable product, even if the practical result is to bring about the involuntary disposal of the product. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this article in as short a time frame as possible and shall promptly lift the embargo order if the product is found to be in compliance with this article;
(k) Establish, maintain and make provision for milk testing facilities; approve testing facilities; establish reasonable fees for such tests; and incur such expenses as may be necessary to maintain and operate these facilities;
(l) Conduct all sampling and testing using methods set forth in the fifteenth edition of and supplement to the Official Methods of Analysis of the Association of Official Analytical Chemists, published by the Association of Official Analytical Chemists; orthe fifteenth edition of the Standard Methods for the Examination of Dairy Products, published by the American Public Health Association, Inc.; or methods approved by the commissioner;
(m) Obtain from any state court an order directing any person to submit to inspection and sampling subsequent to the refusal of any person to allow inspection and sampling;
(n) Investigate complaints, showing good cause, that the weighing and sampling or the testing of the raw bulk milk is incorrect, inaccurate or performed in a deceitful manner;
(o) Conduct hearings as provided by this article; and
(p) Assess civil penalties and refer violations to a court of competent jurisdiction: Provided, That the commissioner is not required to report for prosecution minor violations of the article when he or she believes that the public interest will be best served by a written notice.
(a) The commissioner may deny any application for a permit, license or certificate whenever said permit, license or certificate has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner or the applicant is determined to be not in compliance with or not able to comply with this article.
(b) The commissioner may suspend a permit, license or certificate whenever a health hazard exists, the permit, license, or certificate has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the permit, license or certificate holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. A person whose permit, license or certificate has been suspended shall discontinue operations covered by the permit, license or certificate during the period of the suspension. The commissioner may issue a summary suspension in cases where violations of this article constitute a hazard to the public health, safety or welfare where the public interest requires immediate action.
(1) Except for summary suspensions, the commissioner shall give written notice to the person(s) affected by the pending suspension, stating that he or she contemplates suspension of the permit, license or certificate and giving reasons therefor. The suspension notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit, license, or certificate holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) All summary suspensions shall be followed by a notice of suspension, the reasons therefor, and an opportunity for a hearing in accordance with this article.
(3) At the end of the period of suspension, the permit, license or certificate holder may resume operations without reapplication for a permit, license or certificate.
(c) The commissioner may revoke any permit, license or certificate issued under this article whenever a health hazard exists, the permit, license or certificate has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit, license or certificate has been revoked shall immediately discontinue all operations covered under the permit, license or certificate.
(1) Before revoking any permit, license or certificate, the commissioner shall give written notice to the persons affected, stating that the revocation of the permit, license or certificate is being contemplated and giving reasons therefor. The revocation notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit, license or certificate holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) At the end of the period of revocation a new permit, license or certificate will not be issued without the filing of an application, payment of the required fee and compliance with all conditions that the commissioner shall require for the reissuing of such permit, license or certificate.
(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner.
(b) Hearings shall be conducted according to procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings.
The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person's principal place of business is located.
(a) Criminal penalties. -- Any person violating any provision of this article or rules adopted hereunder 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 the second or 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 a provision of this article or 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, any hazards to the health and safety of the public and any economic damages to the public and the demonstrated good faith of any person charged in attempting to achieve compliance with this article before and after written notification of the violation.
(2) The commissioner may assess a civil penalty of up to one thousand dollars for any violation.
(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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs 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 violation of the provisions of this article.
(d) Nothing in this article may be construed as requiring the commissioner or his representative to report for prosecution as a result of minor violations of the article when he believes that the public interest will be best served by a suitable notice of warning in writing.
(e) Upon application by the commissioner therefor, the circuit court of the county in which the violation is occurring, has occurred or is about to occur, as the case may be, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this article or any rule promulgated under this article, notwithstanding the existence of other remedies at law. Any such injunction shall be issued without bond.
(f) No state court may allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for the action.
(g) It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings and to prosecute the person charged with such violation.
All fees, penalties or other moneys collected by the commissioner under the provisions of this article shall be paid into a special account and expended upon the order of the commissioner for the purpose of the enforcement and administration of this article.
The commissioner may cooperate with and enter into agreements with governmental agencies of this state, other states, agencies of the federal government, agencies of foreign governments, and private associations in order to carry out the purpose and provisions of this article.
The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when revealing the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant; or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
Repealed.
Acts, 1991 Reg. Sess., Ch. 7.
Repealed.
Acts, 1991 Reg. Sess., Ch. 7.
Advances in food technology have resulted in the development of a variety of products of similar usage as standardized dairy products that are so similar in appearance, odor and taste that they are difficult to differentiate from dairy products. Therefore, it is the purpose of this article to regulate these products in addition to dairy products and to regulate their marketing, to protect, promote and preserve the public health and general welfare, to prevent fraud and deception in the manufacture and trade of products covered under this article, to establish labeling requirements and to establish standards of identity for dairy products and imitation dairy products intended primarily for human consumption.
Except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States secretary of health and human services in order to provide for the movement of milk products, cheeses and frozen desserts and imitation dairy products in interstate and intrastate commerce with a minimum of economic barriers.
(a) "Adulterated" means dairy products or imitation dairy products meeting one or several of the conditions listed in section five of this article.
(b) "Approved laboratory" means a laboratory approved by the commissioner under section nine of this article.
(c) "Cheese" means blue, cheddar, cottage, cream, edam, gouda, gruyere, limburger, monterey jack, mozzarella, muenster, neufchatel, romano, roquefort, swiss or cold-pack cheese; pasteurized blended cheese whether made from cow or goat milk; and such other products as established by rule as a cheese.
(d) "Clean" means the condition where no residue remains on a surface that will, or is likely to, cause adulteration.
(e) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
(f) "Dairy products" means milk products, frozen desserts and cheeses as defined in this article which are intended for human consumption.
(g) "Distributor" means any person who distributes dairy products or imitation dairy products. The term does not include persons who are exclusively retailers.
(h) "Distribute" means the act of transporting, holding for sale, offering for sale, selling, bartering, parceling out, giving or otherwise disposing of dairy products or imitation dairy products. This term does not apply to a firm listed as a distributor on the label if the firm is not engaged in the activities listed in this subsection within the state of West Virginia.
(i) "Embargo" means an order to withdraw a dairy product or imitation dairy product from distribution or to stop a manufacturing operation. An embargo shall detain such product and prohibit the manufacturing process as provided in section ten of this article.
(j) "Freezer" means mechanical equipment used to lower the temperature of a mix, with or without incorporating air into the mix during the freezing process. Freezers may operate on a continuous or batch basis.
(k) "Frozen dessert" means ice cream, frozen custard, French ice cream, French custard ice cream, ice milk, goat's milk ice cream, goat's milk ice milk, fruit sherbet, nonfruit sherbets, frozen dietary dessert, frozen yogurt, frozen lowfat yogurt, milkshakes, any mix used to make such frozen desserts whether quiescently frozen or frozen while mixed and such other products as established by rule as a frozen dessert whether made with milk products from a cow or goat.
(l) "Imitation dairy products" means products that are manufactured, packaged or labeled so as to resemble the composition, physical and sensory properties of dairy products, which contain dairy products or milk-derived ingredients and which are intended to be used as a substitute for a dairy product.
(m) "Label" means the display of written, printed or graphic matter upon or affixed to the package in which the dairy product or imitation dairy product is distributed.
(n) "Labeling" means all representations disseminated in any manner or by any means other than by the label, which induce or which are likely or intended to induce the purchase or use of dairy products or imitation dairy products.
(o) "Manufacture" means pasteurizing, ultrapasteurizing, formulating, compounding, freezing, packaging or preparation for distribution of dairy products or imitation dairy products.
(p) "Manufacturer" means any person who manufactures dairy products or imitation dairy products.
(q) "Milk-derived ingredients" means whey, modified whey products, casein, caseinates, lactose, lactalbumins and lactoglobulins used in fluid, concentrated or dry form and such other ingredients established by rule as a milk-derived ingredient.
(r) "Milk products" means milk, acidified milk, cultured milk, concentrated milk, sweetened condensed milk, sweetened condensed skim milk, lowfat dry milk, nonfat dry milk, nonfat dry milkfortified with vitamins A and D, evaporated milk, evaporated skim milk, lowfat milk, acidified lowfat milk, cultured lowfat milk, skim milk, acidified skim milk, cultured skim milk, dry whole milk, cream, dry cream, heavy cream, light cream, light whipping cream, sour cream, acidified sour cream, eggnog, half-and-half, sour half-and-half, acidified sour half-and-half, butter, yogurt, lowfat yogurt, nonfat yogurt and such other products established by rule as a milk product whether made with milk products from a cow or goat.
(s) "Milk fat" means fat in dairy products or in milk-derived ingredients.
(t) "Misbranded" means dairy products or imitation dairy products meeting one or several of the conditions listed in section six of this article.
(u) "Mix" means the product that when frozen produces a frozen dessert or an imitation of a frozen dessert.
(v) "Official sample" means any sample taken in accordance with the provisions of this article.
(w) "Package" means any container holding dairy products or imitation dairy products.
(x) "Pasteurized" means the process of uniformly heating every particle of a dairy product or imitation dairy product, holding it in the heated state and cooling it, in equipment under conditions of temperature and time that is established in the Grade "A" Pasteurized Milk Ordinance, 1989 revision, published by the United States department of health and human services: Provided, That nothing contained in this definition shall be construed as barring any other process which may be approved by the commissioner or the state director of health that results in products that are free from pathogens.
(y) "Person" means any individual, partnership, association, fiduciary, firm, company, corporation, or any organized group of persons whether incorporated or not. The term "person" extends to the agents, servants, officers and employees of the person.
(z) "Retailer" means the person who sells dairy products or imitation dairy products only to the ultimate consumer, who does not transport dairy products or imitation dairy products in any manner except between buildings on the same lot or within the retail premises and who sells frozen desserts from a freezer only at the firm where the freezer is located.
(aa) "Sanitization" means the application of any effective method or substance to a clean surface for the destruction, as far as practicable, of pathogens and other organisms. Such treatment shall not adversely affect the equipment, the milk or the health of the consumers consuming the products manufactured in the equipment and shall be a method acceptable to the commissioner.
(bb) "Transport" means the movement from one facility to another of dairy products and imitation dairy products in a manner that maintains adequate temperatures and protects the product from freezing temperatures, exposure to the sun and from sources of contamination.
(cc) "Ultrapasteurized" means the process of heating every particle of a dairy product or imitation dairy product at or above two hundred eighty degrees Fahrenheit for at least two seconds either before or after packaging so as to produce a product which has an extended shelf life under refrigerated conditions.
(a) Permits are not transferable with respect to persons or locations.
(b) Application for all permits shall be made on forms supplied by the commissioner and shall provide such information as may be considered necessary by the commissioner.
(c) Permits shall be posted prominently at the place of operation.
(d) A dairy products distributors permit shall be issued by the commissioner to each person distributing dairy products in this state, even if there is no permanent location maintained in this state. Persons maintaining multiple permanent locations in this state or distributing into this state from several locations shall obtain a permit for each location. Application shall be made at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. The application shall be accompanied by a fee of fifteen dollars. A penalty of two dollars shall be added to all permits that are not applied for or renewed within this time limit. Permits shall expire on the thirty-first day of March following date of issue: Provided, That firms that have a permit with an expiration date of the thirtieth day of June, one thousand nine hundred ninety-one, on the date of implementation of this article shall be allowed to make application for a dairy products permit for the period of the first day of July, one thousand nine hundred ninety-one, through the thirty-first day of March, one thousand nine hundred ninety-two, at a fee of ten dollars.
(e) A dairy products distributors permit is not required for persons who distribute only aseptically processed and hermetically sealed dairy products or frozen desserts, dry dairy products or dry frozen dessert mixes.
(f) A temporary marketing permit may be issued by the commissioner for the marketing of dairy products that are not covered by an established standard. The temporary permit may be issued according to procedures established by rule. Persons applying for a temporary marketing permit shall have a valid dairy products distributors permit. There is no fee for the permit.
(a) All packages of dairy products or imitation dairy products shall have a label upon or affixed to the package. The label shall be legible and of a print size and style easily readable by the ordinary citizen. The information required in this section shall be on each label and shall be stated in English.
(b) The label shall contain the following information:
(1) The name of the product;
(2) The quantity of the contents;
(3) The name and address of the manufacturer, packer or distributor: Provided, That the manufacturer's plant code or name and address shall always appear on the label for Grade "A" products; and
(4) Such other information as the commissioner shall require by rule.
Any dairy product or imitation dairy product referred to in this article is considered adulterated within the meaning of this article if it:
(a) Bears or contains any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(b) Contains any coloring substance or flavoring matter that may be deleterious to health;
(c) Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or which is found in the product in excess of an established tolerance;
(d) Does not meet the quality standards set forth in this article;
(e) Is or has been manufactured under conditions not in conformity with the provisions of this article;
(f) Is or has been produced, processed, prepared or held under unsanitary conditions;
(g) Has not been manufactured according to the provisions of the applicable standard of identity or that contains pathogens after manufacture;
(h) Is or has been stored in a package composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
(i) Contains any substance added thereto or mixed or packed therewith so as to make it appear better or of greater value than it is; or
(j) Meets or has met other conditions of adulteration as established by rule.
Any dairy product or imitation dairy product referred to in this article is considered misbranded within the meaning of this article if:
(a) It is labeled as a product for which there is a standard established by this article and it does not conform to such standards;
(b) Its label or labeling is false or misleading in any particular;
(c) It is not labeled in accordance with the requirements of this article;
(d) Any word, statement or other information required by this article to appear on the label or the labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs or devices in the labeling and in such terms as to render it likely to be read or understood by the ordinary person under customary conditions of purchase and use;
(e) Damage or inferiority has been concealed by any means; or
(f) It meets or has met other conditions of misbranding as established by rule.
(a) No person may distribute, sell, offer for sale, hold for sale or have in his possession with the intent to sell any dairy product or imitation dairy product which is adulterated or misbranded within the meaning of this article.
(b) No person may interfere with or prohibit the commissioner from performing the duties of his office.
(c) No person may fail to comply with the provisions of an embargo order issued under this article.
(d) No person may fail to comply with the provisions of a revocation, suspension or denial order issued under this article.
(e) No person who, in any official capacity, obtains any information under the provisions of this article that would be considered trade secrets regarding the quality, source and disposition of dairy products or imitation dairy products may use this information to his or her own personal gain.
(f) No person may bring into, send into or receive into this state, distribute within this state or have in storage dairy products without a valid dairy products distributors permit, except that retailers are exempt from this requirement.
(g) No person may distribute, sell, offer for sale, hold for sale or have in their possession with intent to sell, a dairy product or imitation dairy product in a container if the whole or any part of the item(s) required by this article to be on the label have been altered, mutilated, destroyed, obliterated, removed, concealed, replaced or otherwise falsely represented.
(h) No person may alter or deface any part of the items required by this article to be on the label after packaging.
(i) No person may offer for sale, transport, or distribution dairy products or imitation dairy products subsequent to packaging that have been allowed to exceed a temperature of forty-five degrees Fahrenheit for refrigerated noncultured products or zero degrees Fahrenheit for frozen products, except that dairy products or imitation dairy products containing active cultures shall not be allowed to exceed a temperature of fifty degrees Fahrenheit; and cheeses or imitations of cheeses shall not be allowed to reach temperatures that will allow for spoilage or mold organisms, other than those mold organisms that may be in the product as a result of the process used to make the product, to grow on or in the product. Dairy products or imitation dairy products that have been aseptically processed and hermetically sealed and dry dairy products or dry imitation dairy products are exempted from the requirements of this subsection.
(j) No person may transport dairy products or imitation dairy products in a vehicle that has previously been used to haul a chemical or foreign substance unless such vehicle has been cleaned according to rules promulgated by the commissioner.
(k) No person may sell or reprocess for human consumption dairy products or imitation dairy products that are in, or have been in, broken or opened retail packages that have been out of the possession of the manufacturer. Nothing in this provision prohibits the return of these containers to the distributor for inspection purposes only.
(l) No person may distribute or use for human consumption products manufactured from packaged dairy products or imitation dairy products that have been out of the possession of the manufacturer.
(m) No person may distribute or use dairy products or imitation dairy products that have been repasteurized subsequent to transportation in bulk, except for products that have been handled in a sanitary manner and maintained at forty-five degrees Fahrenheit or less prior to repasteurization.
(n) No person may sell, offer for sale or expose for sale any product containing milk products or milk-derived products that are from a herd that does not meet the requirements for animal health as set by rules promulgated under this article.
(o) No person may sell or exchange or have in his possession with intent to sell or exchange in this state any milk powder originating from any country or area outside the United States withreported cases of rinderpest, African swine fever or foot and mouth disease unless that product is imported into this state under conditions set by rules promulgated under this article.
(a) All sampling and testing methods shall be those set forth in the fifteenth edition of and supplement to the Official Methods of Analysis of the Association of Official Analytical Chemists, published by the Association of Official Analytical Chemists; or the fifteenth edition of the Standard Methods for the Examination of Dairy Products, published by the American Public Health Association, Inc.; or methods approved by the commissioner.
(b) The Babcock method or other methods approved by the commissioner for determining the milk fat content of dairy products shall be used as the reference method to establish and maintain the calibration of automated testing instruments.
(a) Each person who desires to have his laboratory approved by the commissioner for testing official dairy product or imitation dairy product samples as herein provided shall first satisfy the commissioner that tests to be made in such laboratory shall be conducted by qualified persons, with adequate facilities and that such tests are performed accurately and according to methods approved by the commissioner.
(b) For the purpose of determining whether a laboratory shall be designated as an approved laboratory the commissioner shall designate a qualified person or persons to inspect the laboratory, its equipment, facilities and personnel at the expense of the applying laboratory, and thereafter may have similar inspections made at the expense of the approved laboratory for the purpose of determining whether or not such approval should be continued.
(c) The commissioner may accept the test results of any laboratory that has been approved under this article: Provided, That the commissioner shall not accept the test results of any approved laboratory for samples manufactured, distributed or used by a firm the same as or related to the approved laboratory.
The commissioner has the power and duty to:
(a) Adopt, promulgate and enforce rules to carry out the purpose of this article, including establishing definitions and standards of quality and identity for dairy products and imitation dairy products;
(b) Have access to and enter at all reasonable times all places where dairy products or imitation dairy products are manufactured, packaged, stored, held, transported, distributed or used in this state and where records, papers or documents relating to these transactions are kept;
(c) Inspect and photograph all places where dairy products or imitation dairy products are manufactured, packaged, stored, held, transported, distributed or used, inspect, audit and copy records and papers relating to the manufacturing, distribution, sampling, testing and sale of dairy products or imitation dairy products, examine measuring and testing apparatus; and examine equipment used in manufacturing and transportation of dairy products or imitation dairy products, except that inspections performed under authority of the provisions of article seven, chapter sixteen of this code will not be duplicated;
(d) Examine and sample dairy products or imitation dairy products, including, but not limited to, ingredients and packages that are used in the manufacture of these products, and may open any package containing or believed to contain any dairy product or imitation dairy product, or an ingredient to be used in the manufacture of these products for the purpose of inspecting and sampling;
(e) Issue, suspend, revoke or deny permits;
(f) Collect fees and expend moneys under the terms of this article;
(g) Collect evidence, including samples, of the condition of equipment, holding tanks, storage rooms and vehicles used, or intended to be used in the processing, packaging, transporting or holding of dairy products or imitation dairy products;
(h) Examine the labels and labeling of dairy products or imitation dairy products;
(i) Issue embargoes for any dairy product or imitation dairy product which is or is believed to be adulterated, misbranded or that is not in compliance with this article and to cause the manufacturing and distributing of same to cease. Nothing in this article may be construed as requiring the commissioner to issue embargoes for minor violations of this article when he or she believes that a written notice of the violation will serve the public interest.
(1) When an embargo is issued, the commissioner shall affix to such product or manufacturing device in an appropriate manner a tag or other marking giving warning that such product is under embargo.
(2) The commissioner shall give written notice to the custodian of the product or process under embargo describing the violation and stating that the product is prohibited from being sold, offered for sale, exposed for sale or distributed and is ordered to be held on the premises and, further, that all manufacturing processes in the state of West Virginia for this product shall cease until the embargo is released. This notice shall notify the custodian of the right to request an immediate hearing under the rules adopted by the commissioner.
(3) The commissioner may take action to seize and condemn any product that is not brought into compliance with this article and the rules issued within ninety days of the notice to the custodian of the product.
(4) The commissioner has the authority to issue an embargo against a perishable product, even if the practical result is to bring about the involuntary disposal of the product. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this article in as short a time frame as possible and shall promptly lift the embargo order if the product is found to be in compliance with this article;
(j) Establish, maintain and make provision for dairy product and imitation dairy product testing facilities, to establish reasonable fees for such tests and to incur such expenses as may be necessary to maintain and operate these facilities;
(k) Approve sampling and testing methods and evaluate and approve official laboratories;
(l) Obtain from any state court an order directing any person to submit to inspection and sampling subsequent to the refusal of any person to allow inspection and sampling;
(m) Conduct hearings as provided by this article; and
(n) Assess civil penalties and refer violations to a court of competent jurisdiction: Provided, That the commissioner is not required to report for prosecution minor violations of the article when he or she believes that the public interest will be best served by a written notice of violation.
(a) The commissioner may deny any application for a permit whenever said permit has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner, or the applicant is determined to be not in compliance with or not able to comply with this article.
(b) The commissioner may suspend a permit whenever a health hazard exists or is believed to exist, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the permit holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been suspended shall immediately discontinue all operations covered under the permit. The commissioner may issue a summary suspension in cases where violations of this article constitute a hazard to the public health, safety or welfare or where the public interest requires immediate action.
(1) Except for summary suspensions, the commissioner shall give written notice to the persons affected of the pending suspension, stating that the suspension of the permit is being contemplated and giving reasons therefor. The suspension notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) All summary suspensions shall be followed by a notice of suspension, the reasons for the suspension, and an opportunity for a hearing in accordance with this article.
(3) At the end of the period of suspension, the permit holder may resume operations without reapplication for a permit.
(c) The commissioner may revoke any permit issued under this article whenever a health hazard exists, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been revoked shall immediately discontinue all operations covered under the permit.
(1) Before revoking any permit the commissioner shall give written notice to the persons affected, stating that the revocation of the permit is being contemplated and giving reasons for the revocation. The revocation notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) At the end of the period of revocation the permit will not be issued without an application, payment of required fee and the compliance with all conditions that the commissioner shall require for the reissuing of such permit.
(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under rules promulgated by the commissioner.
(b) Hearings shall be conducted according to procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person has located its principal place of business or to the circuit court of Kanawha County.
(a) Criminal penalties. -- Any person violating any provision of this article or rule adopted hereunder 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 the second or 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 a provision of this article or 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, any hazards to the health and safety of the public and any economic damages to the public and the demonstrated good faith of any person charged in attempting to achieve compliance with this article before and after written notification of the violation.
(2) The commissioner may assess a civil penalty of up to one thousand dollars for a violation.
(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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs 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 violation of the provisions of this article.
(d) Upon application by the commissioner for an injuntion, the circuit court of the county in which the violation is occurring, had occurred or is about to occur, as the case may be, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this article or any rule promulgated under this article, notwithstanding the existence of other remedies at law. Any such injunction shall be issued without bond.
(e) No state court may allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for such action.
(f) It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings and to prosecute the person charged with such violation.
All fees, penalties or other moneys collected by the commissioner under the provisions of this article shall be paid into a special account and expended upon the order of the commissioner for the purpose of the enforcement and administration of this article.
The commissioner may cooperate with and enter into agreements with governmental agencies of this state, other states, agencies of the federal government, agencies of foreign governments, and private associations in order to carry out the purpose and provisions of this article.
The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
The legislative intent of this article is to protect, promote and preserve the public health and general welfare and to prevent fraud and deception in the manufacture, sale, offering for sale, exposing for sale, and possession with intent to sell, frozen desserts and products resembling frozen desserts for human consumption. Further, the Legislature recognizes that advances in food technology have resulted in the development of a variety of products of similar usage as standardized frozen desserts that are so similar in appearance, odor and taste that they are difficult to differentiate from frozen desserts. Therefore, this article shall regulate these products in addition to frozen desserts, establish definitions and standards for such foods or labeling requirements by rules which effect their orderly marketing and ensure similar sanitary standards for frozen desserts and imitation frozen desserts.
Except where otherwise indicated, it is the intent of the Legislature that this article substantially conform with the federal regulations promulgated under the authority of the United States secretary of health and human services in order to provide for the movement of frozen desserts and imitation frozen desserts in interstate and intrastate commerce with a minimum of economic barriers.
(a) "Adulterated" means frozen desserts or imitation frozen desserts meeting one or several of the conditions listed in section five of this article.
(b) "Approved laboratory" means a laboratory approved by the commissioner under section nine of this article.
(c) "Clean" means the condition where no residue remains on a surface that will, or is likely to, cause adulteration.
(d) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
(e) "Distributor" means any person who distributes frozen desserts or imitation frozen desserts. The term does not include persons who are exclusively retailers and who are not engaged in the transportation of frozen desserts or imitation frozen desserts.
(f) "Distribute" means the act of transporting, holding for sale, offering for sale, selling, bartering, parceling out, giving or otherwise disposing of frozen desserts or imitation frozen desserts.
(g) "Embargo" means an order to withdraw a frozen dessert or imitation frozen dessert from distribution or to stop a manufacturing operation as provided in section ten of this article.
(h) "Freezer" means mechanical equipment used to lower the temperature of a mix, with or without incorporating air into the mix during the freezing process. Freezers may operate on a continuous or batch basis.
(i) "Frozen dessert" means ice cream, frozen custard, French ice cream, French custard ice cream, ice milk, goat's milk ice cream, goat's milk ice milk, fruit sherbet, nonfruit sherbets, frozen dietary dessert, frozen yogurt, frozen lowfat yogurt, milkshakes, any mix used to make such frozen desserts whether quiescently frozen or frozen while mixed and such other products as established by rule as a frozen dessert whether made with milk products from a cow or goat.
(j) "Imitation frozen desserts" means products that are manufactured, packaged or labeled so as to resemble the composition, physical and sensory properties of frozen desserts which contain milk products or milk-derived ingredients whether from a cow or a goat and which are intended to be used as a substitute for a frozen dessert. This term includes any mix used to manufacture imitation frozen desserts.
(k) "Label" means the display of written, printed or graphic matter upon or affixed to the package in which the frozen dessert or imitation frozen dessert is distributed.
(l) "Labeling" means all representations disseminated in any manner or by any means other than by the label which induce or which are likely or intended to induce the purchase or use of frozen desserts or imitation frozen desserts.
(m) "Manufacture" means pasteurizing, ultrapasteurizing, formulating, compounding, freezing, processing or packaging a mix into a frozen dessert or imitation frozen dessert.
(n) "Manufacturer" means any person who manufactures frozen desserts or imitation frozen desserts.
(o) "Milk-derived ingredients" means whey, modified whey products, casein, caseinates, lactose, lactalbumins and lactoglobulins used in fluid, concentrated or dry form and other ingredients as established by rule as a milk-derived ingredient.
(p) "Milk products" means milk, acidified milk, cultured milk, concentrated milk, sweetened condensed milk, sweetened condensed skim milk, lowfat dry milk, nonfat dry milk, nonfat dry milk fortified with vitamins A and D, evaporated milk, evaporated skim milk, lowfat milk, acidified lowfat milk, cultured lowfat milk, skim milk, acidified skim milk, cultured skim milk, dry whole milk, cream, dry cream, heavy cream, light cream, light whipping cream, sour cream, acidified sour cream, eggnog, half-and-half, sour half-and-half, acidified sour half-and-half, butter, yogurt, lowfat yogurt, nonfat yogurt and such other products as established by rule as a milk product whether made with milk products from a cow or goat.
(q) "Milk fat" means fat in frozen desserts or imitationfrozen desserts.
(r) "Misbranded" means frozen desserts or imitation frozen desserts meeting one or several of the conditions listed in section six of this article.
(s) "Mix" means the product made from wholesome ingredients that when frozen shall produce a frozen dessert or imitation frozen dessert.
(t) "Official sample" means any sample taken in accordance with the provisions of this article.
(u) "Package" means any container holding frozen desserts or imitation frozen desserts.
(v) "Pasteurized" means the process of uniformly heating every particle of a mix, holding in the heated state and cooling it, in equipment under conditions of temperature and time that is established in Grade "A" Pasteurized Milk Ordinance, 1989 revision, published by the United States department of health and human services: Provided, That nothing contained in this definition may be construed as barring any other process which may be approved by the commissioner or the state director of health that results in products that are free from pathogens.
(w) "Person" means any individual, partnership, association, fiduciary, firm, company, corporation or any organized group of persons whether incorporated or not. The term "person" extends to the agents, servants, officers and employees of the person.
(x) "Rerun" means a frozen dessert or imitation frozen dessert that is removed from a freezer and is intended to be reprocessed.
(y) "Retailer" means the person who sells frozen desserts or imitation frozen desserts to the ultimate consumer and who does not transport frozen desserts or imitation frozen desserts to or from the location of the freezer.
(z) "Sanitization" means the application of any effective method or substance to a clean surface for the destruction of pathogens, and other organisms as far as practicable. Such treatment shall not adversely affect the equipment, the dairy product or the health of the consumers consuming the products manufactured in the equipment and shall be a method acceptable to the commissioner.
(aa) "Transport" means the movement from one facility to another in a manner that maintains adequate temperatures and protects the product from freezing temperatures, exposure to the sun and from sources of contamination.
(bb) "Ultrapasteurized" means the process of heating every particle of a dairy product or mix at or above two hundred eighty degrees Fahrenheit for at least two seconds either before or after packaging so as to produce a product which has an extended shelf life under refrigerated conditions.
(a) A "frozen desserts manufacturer permit" shall be issued to each manufacturer of frozen desserts or imitation frozen desserts. Permits shall be issued for each place of operation and shall not be transferable with respect to persons or locations. The permit may be applied to the operation of several freezers at one location. Each mobile unit shall be considered as operating at one location.
(b) Application shall be made on forms supplied by the commissioner and provide such information as may be considered necessary by the commissioner. Permits shall be applied for at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. The application shall be accompanied by a fee of twenty dollars. A penalty of two dollars shall be added to all permits that are not applied for or renewed within this time limit. The permits shall expire on the thirty-first day of March following date of issue: Provided, That firms that have a permit with an expiration date of the thirtieth day of June, one thousand nine hundred ninety-one, on the date of implementation of this article shall be allowed to make application for a frozen desserts manufacturer permit for the period of the first day of July, one thousand nine hundred ninety-one, through the thirty-first day of March, one thousand nine hundred ninety-two, at a fee of ten dollars.
(c) Permits shall be posted prominently at the place of operation.
(a) All packages of frozen desserts or imitation frozen desserts shall have a label upon or affixed to the package. The label shall be legible and of a print size and style easily readable by the ordinary citizen. The information required in this section shall be on each label and shall be stated in English.
(b) The label shall contain the following information:
(1) The name of the product;
(2) The quantity of the contents;
(3) The name and address of the manufacturer, packer or distributor; and
(4) Such other information as the commissioner shall establish by rule.
Any frozen dessert or imitation frozen dessert referred to in this article is considered adulterated within the meaning of this article if it:
(a) Bears or contains any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;
(b) Contains any coloring substance or flavoring matter that may be deleterious to health;
(c) Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal law or regulation or in excess of an established tolerance;
(d) Does not meet the quality standards set forth in this article;
(e) Is or has been manufactured under conditions not in conformity with the provisions of this article;
(f) Is or has been produced, processed, prepared or held under unsanitary conditions;
(g) Is or has been stored in a package composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
(h) Contains any substance added thereto or mixed or packed therewith so as to make it appear better or of greater value than it is; or
(i) Meets or has met other conditions of adulteration as established by rule.
Any frozen dessert or imitation frozen dessert referred to in this article is considered misbranded within the meaning of this article if:
(a) It is labeled as a product for which there is a standard established by this article and it does not conform to such standards;
(b) Its label or labeling is false or misleading in any particular;
(c) It is not labeled in accordance with this article;
(d) Any word, statement or other information required by this article to appear on the label or the labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs, or devices in the labeling and in such terms as to render it likely to be read or understood by the ordinary person under customary conditions of purchase and use;
(e) If damage or inferiority has been concealed by any means; or
(f) It meets or has met other conditions of misbranding as established by rule.
(a) No person may distribute, sell, offer for sale, hold for sale or have in his possession with the intent to sell any frozen dessert or imitation frozen dessert which is adulterated or misbranded within the meaning of this article.
(b) No person may interfere with or prohibit the commissioner from performing the duties of his office.
(c) No person may fail to comply with the provisions of an embargo order issued under section ten of this article.
(d) No person may fail to comply with the provisions of a revocation, suspension or denial order issued under section eleven of this article.
(e) No person who in any official capacity obtains any information under the provisions of this article that would be considered trade secrets regarding the quality, source and disposition of frozen desserts or imitation frozen desserts may use this information to his or her own personal gain.
(f) No person may dispense or manufacture frozen desserts or imitation frozen desserts without a valid frozen desserts manufacturer permit.
(g) No person may distribute, sell, offer for sale, hold for sale or have in their possession with intent to sell, a frozen dessert or imitation frozen dessert in a container if the whole or any part of the items required by this article to be on the label have been altered, mutilated, destroyed, obliterated, removed, concealed, replaced or otherwise falsely represented.
(h) No person may alter or deface any items required by this article to be on the label after packaging.
(i) No person may offer for sale, transport, or distribution, frozen desserts or imitation frozen desserts subsequent to their packaging that have been allowed to exceed a temperature of forty-five degrees Fahrenheit for refrigerated noncultured products or zero degrees Fahrenheit for frozen products, except that mixes containing active cultures shall not be allowed to exceed a temperature of fifty degrees Fahrenheit. Mixes that have been sterilized and hermetically sealed and dry mixes are exempted from this provision.
(j) No person may haul frozen desserts or imitation frozen desserts in a vehicle that has previously been used to haul a chemical or foreign substance unless such vehicle has been cleaned according to the rules promulgated by the commissioner prior to the hauling of such frozen dessert or imitation frozen dessert.
(k) No person may sell or reprocess frozen desserts or imitation frozen desserts for human consumption that are in or have been in broken or opened retail packages. Nothing in this provision may prohibit the return of these containers to the manufacturer or distributor for inspection purposes only.
(l) No person may distribute or use for human consumption products manufactured from returned packaged frozen desserts or imitation frozen desserts.
(m) No person may distribute or use mix that has been repasteurized subsequent to transportation in bulk, except for products that have been handled in a sanitary manner and maintained at forty-five degrees Fahrenheit or less prior to repasteurization.
(n) No person may sell, offer for sale or expose for sale any product containing milk products or milk-derived products that are from a herd that does not meet the requirements for animal health as required by rules promulgated under this article.
(a) All sampling and testing methods shall be those set forth in the fifteenth edition of and supplement to the Official Methods of Analysis of the Association of Official Analytical Chemists, published by the Association of Official Analytical Chemists; or the fifteenth edition of the Standard Methods for the Examination of Dairy Products, published by the American Public Health Association, Inc.; or methods approved by the commissioner as provided by rule.
(b) The Babcock method or other methods approved by the commissioner for determining the milk fat content of frozen desserts shall be used as the reference method to establish and maintain the calibration of automated testing instruments.
(a) Each person who desires to have his laboratory approved by the commissioner for testing official frozen dessert or imitation frozen dessert samples as provided in this section shall first satisfy the commissioner that tests to be made in such laboratory shall be conducted by qualified persons with adequate facilities and that such tests shall be performed accurately and according to approved methods.
(b) For the purpose of determining whether or not a laboratory shall be designated as an approved laboratory the commissioner shall designate a qualified person or persons to inspect the laboratory, its equipment, facilities and personnel at the expense of the applying laboratory, and thereafter may have similar inspections made at the expense of the applying laboratory for the purpose of determining whether or not such approval should be continued.
(c) The commissioner may accept the test results of any laboratory that has been approved under this article: Provided, That the commissioner shall not accept the test results of any approved laboratory for samples manufactured, distributed or used by a firm related to or owned by the approved laboratory.
The commissioner has the power and duty to:
(a) Adopt, promulgate and enforce rules to carry out the purpose of this article;
(b) Have access to and enter at all reasonable times all places where frozen desserts or imitation frozen desserts are manufactured, stored, held, transported, distributed or used in the state and where records, papers or documents relating to these transactions are kept;
(c) Inspect and photograph all places where frozen desserts or imitation frozen desserts are manufactured, packaged, stored, held, transported or distributed; inspect, audit and copy records and papers relating to the manufacturing, distribution, sampling, testing and sale of frozen desserts or imitation frozen desserts; examine measuring and testing apparatus; and examine equipment used in manufacturing and transportation of frozen desserts or imitation frozen desserts, except that inspections performed under authority of the provisions of article seven, chapter sixteen of this code will not be duplicated;
(d) Sample frozen desserts or imitation frozen desserts, including, but not limited to, ingredients and packages that are used in the manufacture of these products and may open any package containing or believed to contain any frozen dessert or imitation frozen dessert or an ingredient to be used in the manufacture of a frozen dessert or imitation frozen dessert for the purpose of inspecting and sampling;
(e) Issue, suspend, revoke or deny permits;
(f) Collect fees and expend moneys under the terms of this article;
(g) Collect evidence, including samples, of the condition of equipment, holding tanks, storage rooms and vehicles used, or intended to be used, in the processing, packaging, transporting or holding of frozen desserts or imitation frozen desserts;
(h) Examine the labels and labeling of frozen desserts and imitation frozen desserts;
(i) Issue embargoes for any product which is or is believed to be adulterated, misbranded or that is not in compliance with this article and to cause the manufacturing and distributing of same to cease. Nothing in this article may be construed as requiring the commissioner to issue embargoes for minor violations of this article when he or she believes that a written notice of violation will serve the public interest.
(1) When an embargo is issued, the commissioner shall affix to such product or manufacturing device in an appropriate manner a tag or other marking giving warning that such product is under embargo.
(2) The commissioner shall give written notice to the custodian of the product or process under embargo describing the violation and stating that the product is prohibited from being sold, offered for sale, exposed for sale or distributed and is ordered to be held on the premises and, further, that all manufacturing processes for this product shall cease until the embargo is released. This notice shall notify the custodian of the right to request an immediate hearing under the rules adopted by the commissioner.
(3) The commissioner shall take action to seize and condemn any product that cannot be brought into compliance with this article and the rules issued under same within ninety days of notice to the custodian of the product.
(4) The commissioner has the authority to issue an embargo against a perishable product, even if the practical result is to bring about the involuntary disposal of the product. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this article in as short a time frame as possible and shall promptly lift the embargo order if the product is found to be in compliance with this article;
(j) Establish, maintain and make provision for frozen dessertand imitation frozen dessert testing facilities; to establish reasonable fees for such tests and to incur such expenses as may be necessary to maintain and operate these facilities;
(k) Approve sampling and testing methods, and evaluate and approve official laboratories;
(l) Obtain from any state court an order directing any person to submit to inspection and sampling subsequent to the refusal of any person to allow inspection and sampling;
(m) Conduct hearings as provided by this article; and
(n) Assess civil penalties and refer violations to a court of competent jurisdiction: Provided, That the commissioner is not required to report for prosecution minor violations of the article when he or she believes that the public interest will be best served by a suitable notice in writing.
(a) The commissioner may deny any application for a permit whenever said permit has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner or the applicant is determined to be not in compliance with or not able to comply with this article.
(b) The commissioner may suspend a permit whenever a health hazard exists or is believed to exist, said permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the permit holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with the provisions of this article. Any person whose permit has been suspended shall immediately discontinue all operations covered under the permit. The commissioner may issue a summary suspension in cases where violations of this article constitute a hazard to the public health, safety or welfare where the public interest requires immediate action.
(1) Except for summary suspensions, the commissioner shall give written notice to the persons affected of the pending suspension, stating that suspension of the permit is being contemplated and giving reasons therefor. The suspension notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) All summary suspensions shall be followed by a notice of suspension, the reasons for the suspension and an opportunity for a hearing in accordance with the provisions of this article.
(3) At the end of the period of suspension, the permit holder may resume operations without reapplication for a permit.
(c) The commissioner may revoke any permit issued under this article whenever a health hazard exists, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or it is determined that the holder is dishonest, deceitful, incompetent or not in compliance with or is unable to comply with this article. Any person whose permit has been revoked shall immediately discontinue all operations covered under the permit.
(1) Before revoking any permit, the commissioner shall give written notice to the persons affected, stating that revocation of the permit is being contemplated and giving reasons for the revocation. The revocation notice shall appoint a time and place for hearing and shall be mailed by certified mail to the business address of the permit holder at least ten days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his decision.
(2) At the end of the period of revocation, the permit will not be issued without an application, payment of the required fee and compliance with all conditions that the commissioner shall require for the reissuing of such permit.
(a) Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the commissioner under the rules promulgated by the commissioner.
(b) Hearings shall be conducted in accordance with procedures set forth by rule.
(c) All the testimony and evidence at a hearing shall be recorded by mechanical means, which may include the use of tape recordings. The mechanical record shall be maintained for ninety days from the date of the hearing and a transcript shall be made available to the aggrieved party.
(d) Any party who feels aggrieved of the suspension, revocation or denial order may appeal within sixty days to the circuit court of the county in which the person has located its principal place of business.
(a) Criminal penalties. -- Any person violating any provision of this article or rule adopted hereunder 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 the second or 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 a provision of this article or 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, any hazards to the health and safety of the public and any economic damages to the public and the demonstrated good faith of any person charged in attempting to achieve compliance with this article before and after written notification of the violation.
(2) The commissioner may assess a civil penalty of up to one thousand dollars for a violation.
(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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs 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 violation of the provisions of this article.
(d) Upon application by the commissioner for an injunction, the circuit court of the county in which the violation is occurring, has occurred or is about to occur, as the case may be, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this article or any rule promulgated under this article, notwithstanding the existence of other remedies at law. Any such injunction shall be issued without bond.
(e) No state court may allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for such action.
(f) It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings and to prosecute the person charged with such violation.
All fees, penalties or other moneys collected by the commissioner under the provisions of this article shall be paid into a special account and expended upon the order of the commissioner for the purpose of the enforcement and administration of this article.
The commissioner may cooperate with and enter into agreements with governmental agencies of this state, other states, agencies of the federal government, agencies of foreign governments and private associations in order to carry out the purpose and provisions of this article.
The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person or privileged or confidential information: Provided, That when the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
SOUTHERN DAIRY COMPACT
ARTICLE I. STATEMENT OF PURPOSE, FINDINGS AND DECLARATION OF POLICY.
§1. STATEMENT OF PURPOSE, FINDINGS AND DECLARATION OF POLICY.
The purpose of this compact is to recognize the interstate
character of the southern dairy industry and the prerogative of
the states under the United States Constitution to form an
interstate commission for the southern region. The mission of the
commission is to take such steps as are necessary to assure the
continued viability of dairy farming in the south, and to assure
consumers of an adequate, local supply of pure and wholesome milk.
The participating states find and declare that the dairy industry is an essential agricultural activity of the south. Dairy farms, and associated suppliers, marketers, processors and retailers, are an integral component of the region's economy. Their ability to provide a stable, local supply of pure, wholesome milk is a matter of great importance to the health and welfare of the region.
The participating states further find that dairy farms are essential and they are an integral part of the region's rural communities. The farms preserve land for agricultural purposes and
provide needed economic stimuli for rural communities.
By entering into this compact, the participating states affirm that their ability to regulate the price which southern dairy farmers receive for their product is essential to the public interest. Assurance of a fair and equitable price for dairy farmers ensures their ability to provide milk to the market and the vitality of the southern dairy industry, with all the associated benefits.
Recent, dramatic price fluctuations, with a pronounced downward trend, threaten the viability and stability of the southern dairy region. Historically, individual state regulatory action had been an effective emergency remedy available to farmers confronting a distressed market. The federal order system, implemented by the Agricultural Marketing Agreement Act of 1937, establishes only minimum prices paid to producers for raw milk, without preempting the power of states to regulate milk prices above the minimum levels so established.
In today's regional dairy marketplace, cooperative, rather than individual state action is needed to more effectively address the market disarray. Under our constitutional system, properly authorized states acting cooperatively may exercise more power to regulate interstate commerce than they may assert individually without such authority. For this reason, the participating states invoke their authority to act in common agreement, with the consent of Congress, under the compact clause of the Constitution.
In establishing their constitutional regulatory authority over the region's fluid milk market by this compact, the participating states declare their purpose that this compact neither displace the
federal order system nor encourage the merging of federal orders. Specific provisions of the compact itself set forth this basic principle.
Designed as a flexible mechanism able to adjust to changes in a regulated marketplace, the compact also contains a contingency provision should the federal order system be discontinued. In that event, the interstate commission is authorized to regulate the marketplace in replacement of the order system. This contingent authority does not anticipate such a change, however, and should not be so construed. It is only provided should developments in the market other than establishment of this compact result in discontinuance of the order system.
ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION.
§2. DEFINITIONS.
For the purposes of this compact, and of any supplemental or
concurring legislation enacted pursuant thereto, except as may be
otherwise required by the context:
(a) "Class I milk" means milk disposed of in fluid form or as a fluid milk product, subject to further definition in accordance with the principles expressed in subdivision (b) of section three.
(b) "Commission" means the Southern Dairy Compact Commission established by this compact.
(c) "Commission marketing order" means regulations adopted by the commission pursuant to sections nine and ten of this compact in
place of a terminated federal marketing order or state dairy regulation. Such order may apply throughout the region or in any part or parts thereof as defined in the regulations of the commission. Such order may establish minimum prices for any or all classes of milk.
(d) "Compact" means this interstate compact.
(e) "Compact over-order price" means a minimum price required to be paid to producers for Class I milk established by the commission in regulations adopted pursuant to sections nine and ten of this compact, which is above the price established in federal marketing orders or by state farm price regulation in the regulated area. Such price may apply throughout the region or in any part or parts thereof as defined in the regulations of the commission.
(f) "Milk" means the lacteal secretion of cows and includes all skim, butterfat, or other constituents obtained from separation or any other process. The term is used in its broadest sense and may be further defined by the commission for regulatory purposes.
(g) "Partially regulated plant" means a milk plant not located in a regulated area but having Class I distribution within such area. Commission regulations may exempt plants having such distribution or receipts in amounts less than the limits defined therein.
(h) "Participating state" means a state which has become a party to this compact by the enactment of concurring legislation.
(i) "Pool plant" means any milk plant located in a regulated area.
(j) "Region" means the territorial limits of the states which are parties to this compact.
(k) "Regulated area" means any area within the region governed by and defined in regulations establishing a compact over-order price or commission marketing order.
(l) "State dairy regulation" means any state regulation of dairy prices, and associated assessments, whether by statute, marketing order or otherwise.
§3. RULES OF CONSTRUCTION.
(a) This compact shall not be construed to displace existing
federal milk marketing orders or state dairy regulation in the
region but to supplement them. In the event some or all federal
orders in the region are discontinued, the compact shall be
construed to provide the commission the option to replace them with
one or more commission marketing orders pursuant to this compact.
(b) This compact shall be construed liberally in order to achieve the purposes and intent enunciated in section one. It is the intent of this compact to establish a basic structure by which
the commission may achieve those purposes through the application, adaptation and development of the regulatory techniques historically associated with milk marketing and to afford the commission broad flexibility to devise regulatory mechanisms to achieve the purposes of this compact. In accordance with this intent, the technical terms which are associated with market order regulation and which have acquired commonly understood general meanings are not defined herein but the commission may further define the terms used in this compact and develop additional concepts and define additional terms as it may find appropriate to achieve its purposes.
ARTICLE III. COMMISSION ESTABLISHED.
§4. COMMISSION ESTABLISHED.
There is hereby created a commission to administer the
compact, composed of delegations from each state in the region.
The commission shall be known as the Southern Dairy Compact
Commission. A delegation shall include not less than three or more
than five persons. Each delegation shall include at least one
dairy farmer who is engaged in the production of milk at the time
of appointment or reappointment, and one consumer representative.
Delegation members shall be residents and voters of, and subject to
such confirmation process as is provided for in, the appointing
state. Delegation members shall serve no more than three
consecutive terms with no single term of more than four years, and
be subject to removal for cause. In all other respects, delegation members shall serve in accordance with the laws of the state represented. The compensation, if any, of the members of a state delegation shall be determined and paid by each state, but their expenses shall be paid by the commission.
§5. VOTING REQUIREMENTS.
All actions taken by the commission, except for the
establishment or termination of an over-order price or commission
marketing order, and the adoption, amendment or rescission of the
commission's bylaws, shall be by majority vote of the delegations
present. Each state delegation shall be entitled to one vote in
the conduct of the commission's affairs. Establishment or
termination of an over-order price or commission marketing order
shall require at least a two-thirds vote of the delegations
present. The establishment of a regulated area which covers all or
part of a participating state shall require also the affirmative
vote of that state's delegation. A majority of the delegations
from the participating states shall constitute a quorum for the
conduct of the commission's business.
§6. ADMINISTRATION AND MANAGEMENT.
(a) The commission shall elect annually from among the
members of the participating state delegations a chairperson, a
vice-chairperson, and a treasurer. The commission shall appoint an
executive director and fix his or her duties and compensation. The
executive director shall serve at the pleasure of the commission and, together with the treasurer, shall be bonded in an amount determined by the commission. The commission may establish through
its bylaws an executive committee composed of one member elected by each delegation.
(b) The commission shall adopt bylaws for the conduct of its business by a two-thirds vote, and shall have the power by the same vote to amend and rescind these bylaws. The commission shall publish its bylaws in convenient form with the appropriate agency or officer in each of the participating states. The bylaws shall provide for appropriate notice to the delegations of all commission meetings and hearings and of the business to be transacted at such meetings or hearings. Notice also shall be given to other agencies or officers of participating states as provided by the laws of those states.
(c) The commission shall file an annual report with the Secretary of Agriculture of the United States, and with each of the participating states by submitting copies to the governor, both houses of the Legislature, and the head of the state department having responsibilities for agriculture.
(d) In addition to the powers and duties elsewhere prescribed in this compact, the commission shall have the power:
(1) To sue and be sued in any state or federal court;
(2) To have a seal and alter the same at pleasure;
(3) To acquire, hold and dispose of real and personal property by gift, purchase, lease, license or other similar manner, for its corporate purposes;
(4) To borrow money and to issue notes, to provide for the rights of the holders thereof and to pledge the revenue of the commission as security therefore, subject to the provisions of section eighteen of this compact;
(5) To appoint such officers, agents and employees as it may deem necessary, prescribe their powers, duties and qualifications; and
(6) To create and abolish such offices, employments, and positions as it deems necessary for the purpose of the compact and provide for the removal, term, tenure, compensation, fringe benefits, pension and retirement rights of its officers and employees. The commission may also retain personal services on a contract basis.
§7.RULE-MAKING POWER.
In addition to the power to promulgate a compact over-order
price or commission marketing orders as provided by this compact,
the commission is further empowered to make and enforce such
additional rules and regulations as it deems necessary to implement
any provisions of this compact, or to effectuate in any other
respect the purpose of this compact.
ARTICLE IV. POWERS OF THE COMMISSION.
§8. POWERS TO PROMOTE REGULATORY UNIFORMITY, SIMPLICITY AND INTERSTATE COOPERATION.
The commission is hereby empowered to:
(a) Investigate or provide for investigations or research projects designed to review the existing laws and regulations of the participating states, to consider their administration and costs, to measure their impact on the production and marketing of milk and their effects on the shipment of milk and milk products within the region.
(b) Study and recommend to the participating states joint or cooperative programs for the administration of the dairy marketing laws and regulations and to prepare estimates of cost savings and benefits of such programs.
(c) Encourage the harmonious relationships between the various elements in the industry for the solution of their material problems. Conduct symposia or conferences designed to improve industry relations, or a better understanding of problems.
(d) Prepare and release periodic reports on activities and results of the commission's efforts to the participating states.
(e) Review the existing marketing system for milk and milk products and recommend changes in the existing structure for assembly and distribution of milk which may assist, improve or promote more efficient assembly and distribution of milk.
(f) Investigate costs and charges for producing, hauling, handling, processing, distributing, selling and for all other services performed with respect to milk.
(g) Examine current economic forces affecting producers, probable trends in production and consumption, the level of dairy farm prices in relation to costs, the financial conditions of dairy farmers, and the need for an emergency order to relieve critical conditions on dairy farms.
§9. EQUITABLE FARM PRICES.
(a) The powers granted in this section and section ten shall
apply only to the establishment of a compact over-order price, so
long as federal milk marketing orders remain in effect in the
region. In the event that any or all such orders are terminated,
this article shall authorize the commission to establish one or
more commission marketing orders, as herein provided, in the region
or parts thereof as defined in the order.
(b) A compact over-order price established pursuant to this section shall apply only to Class I milk. Such compact over-order price shall not exceed one dollar and fifty cents per gallon at Atlanta, GA; however, this compact over-order price shall be adjusted upward or downward at other locations in the region to reflect differences in minimum federal order prices. Beginning in one thousand nine hundred ninety, and using that year as a base, the foregoing one dollar fifty cents per gallon maximum shall be adjusted annually by the rate of change in the Consumer Price Index
as reported by the Bureau of Labor Statistics of the United States Department of Labor. For purposes of the pooling and equalization
of an over-order price, the value of milk used in other use classifications shall be calculated at the appropriate class price established pursuant to the applicable federal order or state dairy regulation and the value of unregulated milk shall be calculated in relation to the nearest prevailing class price in accordance with and subject to such adjustments as the commission may prescribe in regulations.
(c) A commission marketing order shall apply to all classes and uses of milk.
(d) The commission is hereby empowered to establish a compact over-order price for milk to be paid by pool plants and partially regulated plants. The commission is also empowered to establish a compact over-order price to be paid by all other handlers receiving milk from producers located in a regulated area. This price shall be established either as a compact over-order price or by one or more commission marketing orders. Whenever such a price has been established by either type of regulation, the legal obligation to pay such price shall be determined solely by the terms and purposes of the regulation without regard to the status of the transfer of title, possession or any other factors not related to the purposes of the regulation and this compact. Producer-handlers as defined in an applicable federal market order shall not be subject to a compact over-order price. The commission shall provide for similar treatment of producer-handlers under commission marketing orders.
(e) In determining the price, the commission shall consider the balance between production and consumption of milk and milk products in the regulated area, the costs of production including, but not limited to, the price of feed, the cost of labor including the reasonable value of the producer's own labor and management, machinery expense, and interest expense, the prevailing price for milk outside the regulated area, the purchasing power of the public and the price necessary to yield a reasonable return to the producer and distributor.
(f) When establishing a compact over-order price, the commission shall take such other action as is necessary and feasible to help ensure that the over-order price does not cause or compensate producers so as to generate local production of milk in excess of those quantities necessary to assure consumers of an adequate supply for fluid purposes.
(g) The commission shall whenever possible enter into agreements with the state or federal agencies for exchange of information or services for the purpose of reducing regulatory burden and cost of administering the compact. The commission may reimburse other agencies for the reasonable cost of providing these services.
§10. OPTIONAL PROVISIONS FOR PRICING ORDER.
Regulations establishing a compact over-order price or a commission marketing order may contain, but shall not be limited to, any of the following:
(1) Provisions classifying milk in accordance with the form in which or purpose for which it is used, or creating a fault pricing program;
(2) With respect to a commission marketing order only, provisions establishing or providing a method for establishing separate minimum prices for each use classification prescribed by the commission, or a single minimum price for milk purchased from producers or associations of producers;
(3) With respect to an over-order minimum price provisions establishing or providing a method for establishing such minimum price for Class I milk;
(4) Provisions for establishing either an over-order price or a commission marketing order may make use of any reasonable method for establishing such price or prices including flat pricing and formula pricing. Provision may also be made for location adjustments, zone differentials and for competitive credits with respect to regulated handlers who market outside the regulated area.
(5) Provisions for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses
made of such milk by the individual handler to whom it is delivered, or for the payment of producers delivering milk to the
same handler or uniform prices for all milk delivered by them.
(a) With respect to regulations establishing a compact over-order price, the commission may establish one equalization pool within the regulated area for the sole purpose of equalizing returns to producers throughout the regulated area.
(b) With respect to any commission marketing order, as defined in Article II, section two, subdivision (c) of this compact, which replaces one or more terminated federal orders or state dairy regulation, the marketing area of now separate state or federal orders shall not be merged without its delegation, which is partly or wholly included within any such new marketing area.
(6) Provisions requiring persons who bring Class I milk into the regulated area to make compensatory payments with respect to all such milk to the extent necessary to equalize the cost of milk purchased by handlers subject to a compact over-order price or commission marketing order. No such provisions shall discriminate against milk producers outside the regulated area. The provisions for compensatory payments may require to be paid for such milk in the state of production by a federal milk marketing order or state dairy regulation and the Class I price established by the compact over-order price or commission marketing order.
(7) Provisions specially governing the pricing and pooling of
milk handled by partially required plants.
(8) Provisions requiring that the account of any person regulated under the compact over-order price shall be adjusted for any payments made to or received by such persons with respect to a producer settlement fund of any federal or state milk marketing order or other state dairy regulation within the regulated area.
(9) Provisions requiring the payment by handlers of an assessment to cover the costs of the administration and enforcement of such order pursuant to Article VII, Section 18(a).
(10) Provisions for reimbursement to participants of the Women, Infants and Children Special Supplement Food Program of the United States Child Nutrition Act of 1966.
(11) Other provisions and requirements as the commission may find are necessary or appropriate to effectuate the purposes of this compact and to provide for the payment of fair and equitable minimum prices to producers.
ARTICLE V. RULE-MAKING PROCEDURE.
§11. RULE-MAKING PROCEDURE.
Before promulgation of any regulations establishing a compact over-order price or commission marketing order, including any provision with respect to milk supply under subsection 9(f), or amendment thereof, as provided in Article IV, the commission shall conduct an informal rule-making proceeding to provide interested persons with an opportunity to present data and views. Such rule-making proceeding shall be governed by section four of the Federal Administrative Procedure Act, as amended (5 U.S.C. §553). In addition, the commission shall, to the extent practicable, publish notice of rule-making proceedings in the official register of each participating state. Before the initial adoption of regulations establishing a compact over-order price or a commission marketing order and thereafter before any amendment with regard to prices or assessments, the commission shall hold a public hearing. The commission may commence a rule-making proceeding on its own initiative or may in its sole discretion act upon the petition of any person including individual milk producers, any organization of milk producers or handlers, general farm organizations, consumer or public interest groups, and local, state or federal officials.
§12. FINDINGS AND REFERENDUM.
(a) In addition to the concise general statement of basis and purpose required by section 4(b) of the Federal Administrative Procedure Act, as amended (5 U.S.C. §553(c)), the commission shall make findings of fact with respect to:
(1) Whether the public interest will be served by the establishment of minimum milk prices to dairy farmers under Article IV;
(2) What level or prices will assure that producers receive a price sufficient to cover their costs of production and will elicit an adequate supply of milk for the inhabitants of the regulated area and for manufacturing purposes;
(3) Whether the major provisions of the order, other than those fixing minimum milk prices, are in the public interest and are reasonably designed to achieve the purposes of the order;
(4) Whether the terms of the proposed regional order or amendment are approved by producers as provided in section thirteen.
§13. PRODUCER REFERENDUM.
(a) For the purpose of ascertaining whether the issuance or
amendment of regulations establishing a compact over-order price or
a commission marketing order, including any provision with respect
to milk supply under subsection 9(f), is approved by producers, the
commission shall conduct a referendum among producers. The referendum shall be held in a timely manner, as determined by
regulation of the commission. The terms and conditions of the
proposed order or amendment shall be described by the commission in
the ballot used in the conduct of the referendum, but the nature,
content, or extent of such description shall not be a basis for
attacking the legality of the order or any action relating thereto.
(b) An order or amendment shall be deemed approved by producers if the commission determines that it is approved by at least two thirds of the voting producers who, during a representative period determined by the commission, have been engaged in the production of milk the price of which would be regulated under the proposed order of amendment.
(c) For purposes of any referendum, the commission shall consider the approval or disapproval by any cooperative association of producers, qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the Capper-Volstead Act, bona fide engaged in marketing milk, or in rendering services for or advancing the interests of producers of such commodity as the approval or disapproval of the producers who are members or stockholders in, or under contract with, such cooperative association of producers, except as provided in subdivision (1) hereof and subject to the provision of subdivisions (2) through (5) hereof.
(1) No cooperative which has been formed to act as a common marketing agency for both cooperatives and individual producers shall be qualified to block vote for either.
(2) Any cooperative which is qualified to block vote shall, before submitting its approval or disapproval in any referendum, give prior written notice to each of its members as to whether and how it intends to cast its vote. The notice shall be given in a timely manner as established, and in the form prescribed, by the commission.
(3) Any producer may obtain a ballot from the commission in order to register approval or disapproval of the proposed order.
(4) A producer who is a member of a cooperative which has provided notice of its intent to approve or not to approve a proposed order, and who obtains a ballot and with such ballot expresses his approval or disapproval of the proposed order, shall notify the commission as to the name of the cooperative of which he or she is a member, and the commission shall remove such producer's name from the list certified by such cooperative with its corporate vote.
(5) In order to insure that all milk producers are informed regarding a proposed order, the commission shall notify all milk producers that an order is being considered and that each producer may register his approval or disapproval with the commission either directly or through his or her cooperative.
§14. TERMINATION OF OVER-ORDER PRICE OR MARKETING ORDER.
(a) The commission shall terminate any regulations
establishing an over-order price or commission marketing order issued under this article whenever it finds that such order or
price obstructs or does not tend to effectuate the declared policy
of this compact.
(b) The commission shall terminate any regulations establishing an over-order price or a commission marketing order issued under this article whenever it finds that such termination is favored by a majority of the producers who, during a representative period determined by the commission, have been engaged in the production of milk the price of which is regulated
by such order; but such termination shall be effective only if announced on or before such date as may be specified in such marketing agreement or order.
(c) The termination or suspension of any order or provision thereof, shall not be considered an order within the meaning of this article and shall require no hearing, but shall comply with the requirements for informal rule-making prescribed by section four of the Federal Administrative Procedure Act, as amended (5 U.S.C. §553).
ARTICLE VI. ENFORCEMENT.
§15. RECORDS, REPORTS, ACCESS TO PREMISES.
(a) The commission may by rule and regulation prescribe
recordkeeping and reporting requirements for all regulated persons.
For purposes of the administration and enforcement of this compact,
the commission is authorized to examine the books and records of
any regulated person relating to his or her milk business and for that purpose, the commission's properly designated officers,
employees, or agents shall have full access during normal business
hours to the premises and records of all regulated persons.
(b) Information furnished to or acquired by the commission officers, employees or its agents pursuant to this section shall be confidential and not subject to disclosure except to the extent that the commission deems disclosure to be necessary in any administrative or judicial proceeding involving the administration
or enforcement of this compact, an over-order price, a compact marketing order or other regulations of the commission. The commission may promulgate regulations further defining the confidentiality of information pursuant to this section. Nothing in this section shall be deemed to prohibit: (i) The issuance of general statements based upon the reports of a number of handlers, which do not identify the information furnished by any person; or (ii) the publication by direction of the commission of the name of any person violating any regulation of the commission, together with a statement of the particular provisions violated by such person.
(c) No officer, employee or agent of the commission shall intentionally disclose information, by inference or otherwise, which is made confidential pursuant to this section. Any person violating the provisions of this section shall, upon conviction, be subject to a fine of not more than $1,000 or to imprisonment for not more than one year, or to both, and shall be removed from office. The commission shall refer any allegation of a violation of this section to the appropriate state enforcement authority or United States Attorney.
§16. SUBPOENA, HEARINGS AND JUDICIAL REVIEW.
(a) The commission is hereby authorized and empowered by its
members and its properly designated officers to administer oaths
and issue subpoenas throughout all signatory states to compel the
attendance of witnesses and the giving of testimony and the production of other evidence.
(b) Any handler subject to an order may file a written petition with the commission stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the commission. After such hearing, the commission shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.
(c) The district courts or the United States in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction to review such ruling, provided a complaint for that purpose is filed within thirty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the commission by delivering to it a copy of the complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the commission with directions either: (1) To make such ruling as the court shall determine to be in accordance with law; or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subdivision shall not impede, hinder or delay the
commission from obtaining relief pursuant to section seventeen. Any proceedings brought pursuant to section seventeen, except where brought by way of counterclaim in proceedings instituted pursuant to this section, shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this section.
§17. ENFORCEMENT WITH RESPECT TO HANDLERS.
(a) Any violation by a handler of the provisions of
regulations establishing an over-order price or a commission
marketing order, or other regulations adopted pursuant to this
compact shall:
(1) Constitute a violation of the laws of each of the signatory states. Such violation shall render the violator subject to a civil penalty in an amount as may be prescribed by the laws of each of the participating states, recoverable in any state or federal court of competent jurisdiction. Each day such violation continues shall constitute a separate violation;
(2) Constitute grounds for the revocation of license or permit to engage in the milk business under the applicable laws of the participating states.
(b) With respect to handlers, the commission shall enforce the provision of this compact, regulations establishing an over-order price, a commission marketing order or other regulations adopted hereunder by:
(1) Commencing an action for legal or equitable relief brought in the name of the commission in any state or federal court of competent jurisdiction; or
(2) Referral to the state agency for enforcement by judicial or administrative remedy with the agreement of the appropriate state agency of a participating state.
(c) With respect to handlers, the commission may bring an action for injunction to enforce the provisions of this compact or the order or regulations adopted thereunder without being compelled to allege or prove that an adequate remedy of law does not exist.
ARTICLE VII. FINANCE.
§18. FINANCE OF START-UP AND REGULAR COSTS.
(a) To provide for its start-up costs, the commission may
borrow money pursuant to its general power under section six,
subdivision (d), paragraph four. In order to finance the costs of
administration and enforcement of this compact, including payback
of start-up costs, the commission is hereby empowered to collect an
assessment from each handler who purchases milk from producers
within the region. If imposed, this assessment shall be collected
on a monthly basis for up to one year from the date the commission convenes, in an amount not to exceed $.015 per hundredweight of
milk purchased from producers during the period of the assessment.
The initial assessment may apply to the projected purchase of
handlers for the two-month period following the date the commission
convenes. In addition, if regulations establishing an over-order price or a compact marketing order are adopted, they may include an assessment for the specific purpose of their administration. These regulations shall provide for establishment of a reserve for the commissioner's ongoing operating expenses.
(b) The commission shall not pledge the credit of a participating state or of the United States. Notes issued by the commission and all other financial obligations incurred by it, shall be its sole responsibility and no participating state or the United States shall be liable therefor.
§19. AUDIT AND ACCOUNTS.
(a) The commission shall keep accurate accounts of all
receipts and disbursements, which shall be subject to the audit and
accounting procedures established under its rules. In addition,
all receipts and disbursements of funds handled by the commission
shall be audited yearly by a qualified public accountant and the
report of the audit shall be included in and become part of the
annual report of the commissioner.
(b) The accounts of the commission shall be open at any reasonable time for inspection by duly constituted officers of the participating states and by any persons authorized by the commission.
(c) Nothing contained in this article shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any participating state
or of the United States.
ARTICLE VIII. ENTRY INTO FORCE; ADDITIONAL MEMBERS AND WITHDRAWAL.
§20. ENTRY INTO FORCE; ADDITIONAL MEMBERS.
The compact shall enter into force effective when enacted into law by any three states of the group of states composed of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia and West Virginia and when the consent of Congress has been obtained.
§21. WITHDRAWAL FROM COMPACT.
Any participating state may withdraw from this compact by
enacting a statute repealing the same, but no such withdrawal shall
take effect until one year after notice in writing of the
withdrawal is given to the commission and the governors of all
other participating states. No withdrawal shall affect any
liability already incurred by or chargeable to a participating
state prior to the time of such withdrawal.
§22. SEVERABILITY.
If any part or provision of this compact is adjudged invalid by any court, such judgment shall be confined in its operation to the part or provision directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this compact. In the event Congress consents to this compact subject to conditions, said conditions shall not impair the validity of this compact when said conditions are accepted by three or more compacting states. A compacting state may accept the conditions of Congress by implementation of this compact.
The compact administrator of this state is the commissioner of agriculture. The duties of the compact administrator are deemed a regular part of the duties of his office.
(a) In order for cheese production to fall within the exemption created in section two of this article, all of the following criteria must apply:
(1) The cheese must be manufactured at a home or farm-based site using either raw milk from West Virginia cows, production of which is regulated by the department of agriculture, or commercially pasteurized cow's milk;
(2) The cheese products must be aged at least sixty days;
(3) The cheese products must be sold directly to the consumer at the production site or marketed in local restaurants or local small businesses not engaged in interstate commerce: Provided, That for the purposes of this article, acceptance of a national credit card shall not be construed as engaging in interstate commerce.
(b) The exemptions contained in this article are not applicable to:
(1) Persons and businesses manufacturing more than five thousand pounds of cheese products per year;
(2) Cheese products sold to the ultimate consumer outside the borders of the state;
(3) Cheese products marketed by mail or on the internet; or
(4) Cheese products the sale or manufacture of which is governed by applicable federal law.
The following definitions shall apply in the interpretation and enforcement of this article. All words shall be construed to import either the plural or the singular, as the case demands:
(a) "Certificate" means a document issued or authorized by the commissioner indicating that a regulated article is not contaminated with a pest.
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia and his or her duly authorized representatives.
(c) "Compliance agreement" means a written agreement between the department and any person engaged in growing, handling or moving articles, plants or plant products regulated under this article, wherein the person agrees to comply with stipulated requirements.
(d) "Dealer" means any person who buys, receives on consignment or otherwise acquires and has in his or her possession nursery stock which that person has not grown from propagative material such as tissue culture plants, cuttings, liners, seeds or transplanted nursery stock for the purpose of offering or exposing for sale, reselling, reshipping or distributing same. Each separate location shall constitute a dealership.
(e) "Department" means the department of agriculture of the state of West Virginia.
(f) "Genetically modified organism" means any organism alteredor produced through genetic modification from a donor, vector or recipient organism using modern molecular techniques.
(g) "Host" means any plant or plant product upon which a pest is dependent for completion of any portion of its life cycle.
(h) "Infested area" means any area of uncontrolled growth of insects, plant diseases, noxious weeds or other plant pests.
(i) "Noxious weed" means any living plant, or part thereof, declared by the commissioner, after public hearing, to be detrimental to crops, other desirable plants, waterways, livestock, land or other property, or to be injurious to public health or the economy.
(j) "Nursery" means any grounds or premises on or in which nursery stock is being propagated or grown for sale or distribution, including any grounds or premises on or in which nursery stock is being fumigated, treated, packed or stored or otherwise prepared or offered for sale or movement to other localities.
(k) "Nurseryman" means and includes any person who owns, leases, manages or is in charge of a nursery.
(l) "Nursery stock" means all trees, shrubs and woody vines, including ornamentals, bush fruits, grapevines, fruit trees and nut trees, whether cultivated, native or wild, and all buds, grafts, scions, fruit pits and cuttings from such plants. It also means sod, including sod plugs and sod-producing plants, and such herbaceous plants, including strawberry plants, narcissus plantsand narcissus bulbs as the commissioner declares by rule to be so included whenever he or she considers control of the movement of such plants and bulbs necessary for the control of any destructive plant pest. Florists' or greenhouse plants for inside culture or use, unless declared otherwise by the commissioner, as herein authorized, shall not be considered nursery stock, except that all woody plants, whether greenhouse or field grown, if for outside planting, are hereby defined as nursery stock.
(m) "Permit" means a document issued or authorized by the commissioner to provide for a movement of regulated articles to restricted destinations for limited handling, utilization or processing.
(n) "Person" means any individual or combination of individuals, partnership, corporation, company, society, association, governmental organization or other business entity and each officer, agent or employee thereof.
(o) "Plant and plant products" means trees, shrubs, vines; forage, fiber, cereal plants and all other plants; cuttings, grafts, scions, buds and lumber and all other parts of plants and plant products; and fruit, vegetables, roots, bulbs, seeds and wood.
(p) "Plant pest" means any living stage of: Any insects, mites, nematodes, slugs, snails, protozoa or other invertebrate animals, bacteria, fungi, other parasitic plants or reproductive parts thereof, viruses or any organisms similar to or allied withany of the foregoing, or any infectious substances, and any genetically modified organisms for which there is reason to believe may directly or indirectly injure or cause disease or damage in any plants or parts thereof, or any processed, manufactured or other products of plants.
(q) "Quarantine" means a legal declaration by the commissioner which specifies:
(1) The plant pest or noxious weeds.
(2) The articles to be regulated.
(3) Conditions governing movement.
(4) The area or areas quarantined.
(5) Exemptions.
(r) "Regulated article" means any article of any character, as described in quarantine or other order of the commissioner carrying or capable of carrying a pest.
(a) It shall be the duty of the commissioner to exercise the powers and duties imposed upon him or her by this article for the purpose of protecting agricultural, horticultural and other interests of the state from plant pests or other insects and noxious weeds and for this purpose the commissioner is hereby authorized and empowered to promulgate such legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, as are necessary to effectively eradicate, suppress or control plant pests or other insects or noxious weeds or to retard the dissemination of plant pests or other insects or noxious weeds as far as may be practical and to employ or contract with such persons as may be appropriate.
(b) The commissioner is hereby authorized and empowered to cooperate with the federal government and any agencies, departments and instrumentalities thereof, the state of West Virginia and any agencies, departments, divisions or political subdivisions thereof and any other state or commonwealth and any agencies, departments or political subdivisions thereof, in order to carry out the effective administration of this article.
(c) The commissioner is empowered to enter into compliance agreements with any person engaged in growing, handling or moving articles, plants or plant products regulated by the provisions of this article.
The commissioner may order the owner or any person in charge of any infested or infected nursery stock or other nursery material, article or host plants, including soil, to take such necessary measures as will eradicate or control the said infestation or infection as he may deem necessary or proper. Such owner or person in charge shall carry out the order of the commissioner within the period of time designated in the order. If such owner or person in charge shall refuse or fail to carry out any such order, the commissioner may cause to be performed such eradication or control measures as are required by the order which shall be at the expense of the owner or person in charge.
Nursery stock brought into the state under an inspection certificate, as above required, may be sold and moved under the certificate of a registered West Virginia nurseryman or dealer or agent, but this shall not preclude inspection at any time within the state.
No person may sell, barter, expose, offer for sale or move, transport, deliver, ship or offer for shipment into or within this state any plant pest or other insects or noxious weeds in any living stage without first obtaining either a federal permit, where applicable, or a state permit from the commissioner. A state permit may be issued only after it has been determined that the plant pests or other insects or noxious weeds are not injurious, are generally present already or are for scientific purposes subject to specified safeguards. If a permit, which addresses environmental safety, has been issued by the appropriate federal regulatory agency in consultation with the commissioner, no state permit is required. If the appropriate federal regulatory agency determines that a permit is unnecessary, the commissioner may, if he or she deems it necessary to protect West Virginia's agricultural interests, require a state permit.
(a) Criminal penalties. -- Any person violating any of the provisions of this article, or the rules adopted hereunder, 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 the second offense, shall be fined not less than five hundred dollars nor more than one thousand dollars, or confined in the county jail not more than six months, or both.
(b) Civil penalties. --
(1) Any person violating a provision of this article or 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, any hazards to the health and safety of the public and any economic damages to the public and the demonstrated good faith of any person charged in attempting to achieve compliance with the article before and after written notification of the violation.
(2) The commissioner may assess a penalty of not more than five hundred dollars for each first offense or nonserious violation, and not more than one thousand dollars for a serious violation, or for a repeat or intentional violation.
(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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs as a condition precedent to recording.
(4) The commissioner shall promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, to provide for the implementation and assessment of civil penalties pursuant to subsection (b) of this section.
(5) The commissioner shall promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, to permit consent agreements or negotiated settlements for the civil penalties which may be assessed pursuant to the provisions of this section.
(c) No state court may allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for such action.
(d) It shall be the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings and to prosecute the person charged with such violation.
The commissioner may not make public information which contains or relates to trade secrets, commercial or financial information obtained from a person which is privileged or confidential information: Provided, That when the information is necessary to carry out the provisions of this article, this information may be revealed, subject to a protective order, to any federal, state or local agency consultant; or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the commissioner.
(b) Not later than the first day of January, one thousand nine hundred ninety-five, the Commissioner of the Department of Agriculture shall report to the Legislature on the optimum use or disposition of each institutional farm transferred pursuant to this section. The commissioner shall set forth the objectives of the agency with respect to the land, the criteria by which the agency has determined the optimum use or disposition of the property, and determinations as to whether the land shall be used in the production of food products, the production or development of natural resources, held for recreational or other specified uses, or sold, or leased in whole or in part. With respect to each institutional farm, the commissioner shall report on which properties are subject to reversionary clauses or other restrictions in deeds of conveyance which may affect permitted uses, or proposed sales or leases. With respect to each institutional farm, the commissioner shall report on projected revenues and expenses from operations. Planned activities and uses with respect to the land shall be detailed for at least five years specifically and at least ten years generally and shall include a cost benefit analysis of options or alternatives for action. In the case of land managed for production of timber, the commissioner shall report on projections for timber harvesting on a sustained-yield basis, income estimates, and the years in which income will be generated. The report shall detail planned actions to protect the land from erosion, fire, plant and animal pests, noxious insects, noxious weeds and plant and animal diseases. In the case of land subject to rights granted by existing contracts, leases, licenses or easements, the report shall include a determination as to whether the interest granted should be continued or withdrawn. In the case of land managed under land management plans adopted prior to the effective date of this section, land management plans shall be reviewed and amended as may be necessary. When appropriate, the commissioner shall consult with the secretaries of the various departments of state government and shall request from the secretaries suggestions for land use and resource development on the land. In the case of land recommended for sale, lease, or transfer, the report shall include the review and approval of the director of the West Virginia Development Office of the proposed use and alternate suggestions for use of any institutional farm which may be in the public interest. Notwithstanding any other provision of this subsection to the contrary, title to the Weston State Hospital Institutional Farm, located at Weston, Lewis County, is hereby transferred from the Department of Agriculture to the Department of Health and Human Resources, including all buildings thereon: Provided, That the Department of Agriculture shall retain all oil, gas and mineral rights, interests and title underlying the surface of the real property being transferred to the Department of Health and Human Resources under this subsection.
The Secretary of the Department of Health and Human Resources is authorized to sell, lease, donate or otherwise transfer the Weston State Hospital Institutional Farm, as well as the grounds of the former Weston State Hospital including the improvements and appurtenances belonging thereto: Provided, That notice of the sale of the real estate at auction shall include the right of the state to reject any and all bids: Provided, however, That the deed conveying title to the real estate shall contain a reservation in it providing that the communications tower, located on the real estate and owned and maintained by the county commission of Lewis County, shall remain the property of the Lewis County Commission and shall remain on the real estate free of any cost or rent and the county commission of Lewis County shall have an easement for ingress and egress and for the maintenance of the tower in perpetuity unless agreed otherwise in writing by the county commission of Lewis County.
(c) Nothing in this section shall be construed to limit the duties imposed on the Department of Health and Human Resources and the Division of Corrections to purchase food products pursuant to section five of this article and to make interdepartmental transfers pursuant to section six of this article: Provided, That purchases shall be made from and transfers made to the Department of Agriculture.
(d) Nothing in this section shall be construed to invalidate any action or contractual obligation of the farm management commission prior to the effective date of this section.
(e) Notwithstanding the provisions of subsection (b) of this section, in any case where the farm management commission has determined by motion adopted prior to the effective date of this article that an institutional farm or part thereof should be transferred or disposed of, or authorized any formal agreement for this purpose, whether or not any documents related to the agreement have been reduced to writing or executed, the commissioner shall execute all documents and take all necessary actions to implement the transfer or disposition of the property.
(f) For any land transferred to the public land corporation for sale, exchange or transfer pursuant to section five of this article, the farm property shall be offered for sale in both small parcels of land and as whole farms and shall be sold in the form which brings the highest price for the total property. For purposes of this subsection, "small parcels" means parcels of no more than five acres.
"Agricultural products" means livestock and livestock products, poultry and poultry products, fruits and fruit products, vegetables and vegetable products, grains and hays and the products derived therefrom, tobacco, syrups, honey, and other products derived from the business of farming; including such other products as may be manufactured, derived, or prepared from agricultural products, raw or processed, which are used as food for man or animals.
"Commission" means the farm management commission as established by this article.
"Farm equipment" means any equipment used for agricultural production, owned by an institution and transferred to the commission as provided in this article.
"Farm facility" means any processing plant, milking parlor, farm equipment storage building, barn, silo, grain storage building, swinery or any other building owned by an institution, used in its farming operations and transferred to the commission as provided in this article.
"Institution" means any facility operated by the department of mental health or the state commissioner of public institutions for care, treatment, confinement or rehabilitation of residents.
"Institutional farm" means any land owned by the department of mental health or the state commissioner of public institutions which was formerly operated as a farm, is now being operated as a farm or could be converted to agricultural production, and is transferred to the commission as provided in this article.
The farm management commission heretofore created is hereby continued and shall be composed of three members who are the commissioner of agriculture, who shall be chairman, the secretary of the department of administration and the dean of the West Virginia university college of agriculture and forestry. No business may be transacted by the commission in the absence of a quorum which consists of two members including the chairman. The farm management commission shall hold meetings at least once every two months and on call of the chairman.
If a vacancy occurs on the commission, the farm management director, as provided in this article, shall act as a member of the commission until the vacancy is filled.
If a vacancy occurs in the office of the commissioner of agriculture, the members of the commission and the farm management director shall select, from among them, a chairman to serve until a commissioner of agriculture is appointed or elected and qualified.
Pursuant to the provisions of section four, article ten, chapter four of this code, the farm management commission shall continue to exist until the first day of July, one thousand nine hundred ninety-four, to allow for the completion of an audit by the joint committee on government operations.
(a) On the first day of July, one thousand nine hundred seventy-six, the department of mental health shall transfer all institutional farms and all easements, mineral rights, appurtenances, farm equipment, agricultural products, inventories and farm facilities thereon, or attached thereto, to the commission as set forth below:
(1) The Colin Anderson institutional farm, located at St. Marys, Pleasants County, which shall include not less than six hundred fifty acres;
(2) The Huntington State Hospital institutional farm, located at Barboursville, Cabell County, which shall include not less than six hundred ninety-seven acres;
(3) The Lakin State Hospital institutional farm, located at Lakin, Mason County, which shall include not less than nine hundred fifty acres;
(4) The Spencer State Hospital institutional farm, located at Spencer, Roane County, which shall include not less than one hundred nine acres;
(5) The Weston State Hospital institutional farm, located at Weston, Lewis County, which shall include not less than five hundred seventy acres; and
(6) The Roney's Point Branch Hospital institutional farm located at Triadelphia, Ohio County, which shall include not less than one hundred thirty acres.
(b) On the first day of July, one thousand nine hundred seventy-six, the state commissioner of public institutions shall transfer all institutional farms and all easements, mineral rights, appurtenances, farm equipment, agricultural products, inventories and farm facilities thereon or attached thereto to the commission as set forth below:
(1) The Huttonsville Correctional Center institutional farm, located at Huttonsville, Randolph County, which shall include not less than five thousand two hundred acres, including all of the tract of land commonly known as Becky's Creek farm;
(2) The Hopemont State Hospital institutional farm, located at Terra Alta, Preston County, which shall include not less than five hundred acres;
(3) The West Virginia Industrial School for Boys institutional farm, located at Pruntytown, Taylor County, which shall include not less than one thousand five hundred eighty-seven acres;
(4) The West Virginia Prison for Women institutional farm, located at Pence Springs, Summers County, which shall include not less than one hundred eighty acres;
(5) The Pinecrest State Hospital institutional farm, located at Beckley, Raleigh County, which shall include not less than two hundred twenty acres;
(6) The West Virginia Penitentiary institutional farm, located at Moundsville, Marshall County, which shall contain not less than one hundred forty-one acres;
(7) The Denmar State Hospital institutional farm, located at Beard, Pocahontas County, which shall include not less than one hundred twelve acres;
(8) The Andrew S. Rowan Memorial Home institutional farm, located at Sweet Springs, Monroe County, which shall include not less than six hundred fifty acres;
(9) The West Virginia Children's Home institutional farm, located at Elkins, Randolph County, which shall include not less than one hundred fifty acres; and
(10) The West Virginia Industrial Home for Girls institutional farm, located at Industrial, Harrison County, which shall include not less than twenty acres.
(c) In the event a water supply system, a sewage disposal system or any other utility or service facility involved in the operation of an institution is hereby transferred to the commission, an easement is hereby granted to the institutionaffected to enable the institution to continue, uninterrupted, the water supply system, the sewage disposal system or the utility or service facility so transferred.
If an institutional farm is dependent upon a water supply system, a sewage disposal system or any other utility or service facility located on the property of an institution, an easement is hereby granted to the commission to enable the commission to continue, uninterrupted, the water supply system, the sewage disposal system or the utility or service facility involved.
In all cases where an institution and a farm under the control of the commission are jointly dependent on the same water supply system, sewage disposal system, utility or service facility, the cost shall be prorated on the basis of the amount used by the institution and the institutional farm.
(d) In order to provide for the uninterrupted operation of institutional farms, the commission shall, before the twenty-fifth day of June, one thousand nine hundred seventy-six, meet and establish a farm management plan. Before the twenty-fifth day of June, one thousand nine hundred seventy-six, the commission shall employ a farm management director and establish an employee system. The commission and the farm management director shall meet and confer with the commissioner of public institutions and the director of the department of mental health prior to the first day of July, one thousand nine hundred seventy-six, to facilitate the orderly transfer of the institutional farms. The state commissioner of public institutions and the director of the department of mental health shall cooperate fully with the commission to ensure that farming operations are not discontinued prior to their transfer to the commission.
(e) After the thirtieth day of June but no later than the fifteenth day of July, one thousand nine hundred seventy-six, all funds remaining in all institutional farms' special revenue accounts shall be transferred to the general revenue account of the state and all institutional farms' special revenue accounts shall be abolished.
(a) On or before the first day of July, one thousand nine hundred ninety, the commission shall meet and confer with respect to the development of a management plan to determine the optimum use or disposition of all institutional farms, at which time the farm management director shall provide the commission with a complete inventory of all institutional farms, and such information relating to easements, mineral rights, appurtenances, farm equipment, agricultural products, livestock, inventories and farm facilities as may be necessary to develop such management plan. The commission shall complete and provide to the governor a management plan, which plan shall set forth the objectives of the commission with respect to institutional farms, the criteria by which the commission shall determine the optimum use or disposition of such property, and determinations as to whether each institutional farm shall be used in production, sold, or leased, in whole or in part. Prior to the adoption of any plan, the commission shall consult with the secretaries of the various departments of state government and shall request from such secretaries suggestions for land use and resource development on farm commission lands. On or before the first day of December, one thousand nine hundred ninety, such management plan shall be presented to the Legislature, by providing a copy to the president of the Senate and the speaker of the House of Delegates. The commission may confer with any other agency or individual in implementing and adjusting its management plan. The management plan established pursuant to this subsection may be amended, from time to time, as may be necessary.
(b) The commission shall manage its institutional farms, equipment and other property in order to most efficiently produce food products for state institutions and shall implement the intent of the Legislature as set forth by this article. From the total amount of food, milk and other commodities produced on institutional farms, the commission shall sell, at prevailing wholesale prices, and each of the institutions under the control of the bureau of public health and the division of corrections shall purchase, a proportionate amount of these products based on the dietary needs of each institution.
(c) If requested by the commissioner of corrections, the commission may authorize the division of corrections to operate a farm or other enterprise using inmates as labor on such lands. The commissioner of corrections is responsible for the selection, direction and supervision of the inmates and shall assign the work to be performed by inmates.
(d) The commission is hereby authorized and empowered to:
(1) Lease to public or private parties, for purposes including agricultural production or experimentation, public necessity, or other purposes permitted by the management plan, any land, easements, equipment, or other property, except that property may not be leased for any use in any manner that would render the land toxic for agricultural use, nor may toxic or hazardous materials as identified by the commissioner of agriculture be used or stored upon such property unless all applicable state and federal permits necessary are obtained. Any lease for an annual consideration of one thousand dollars or more shall be by sealed bid auction and the commission shall give notice of such auction by publication thereof as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication is the county in which the property to be leased is located;
(2) Transfer to the public land corporation land designated in its management plan as land to be disposed of, which land shall be sold, exchanged or otherwise transferred pursuant to sections four and five, article one-a, chapter twenty of this code: Provided, That the net proceeds of the sale of farm commission lands shall be deposited in the general revenue fund of the state: Provided, however, That no sale may be concluded until on or after the fifteenth day of March, one thousand nine hundred ninety-one, except with respect to: (A) Properties located at institutionsclosed on or before the effective date of this section, the tenth day of March, one thousand nine hundred ninety; or (B) properties conveyed to or from the farm management commission to or from any other entity in order to facilitate the construction of a regional jail or correctional facility by the regional jail and correctional facilities authority or the state building commission, with the decision to execute any such conveyance being solely within the discretion of, and at the direction of, the regional jail and correctional facilities authority;
(3) Develop lands to which it has title for the public use including forestation, recreation, wildlife, stock grazing, agricultural production, rehabilitation and/or other conservation activities and may contract or lease for the proper development of timber, oil, gas or mineral resources, including coal by underground mining or by surface mining where reclamation as required by specifications of the division of environmental protection will increase the beneficial use of such property. Any such contract or lease shall be by sealed bid auction as provided for in subdivision (1) above;
(4) Exercise all other powers and duties necessary to effectuate the purposes of this article.
(e) Notwithstanding the provisions of subsection (d) herein, no timberland may be leased, sold, exchanged or otherwise disposed of unless the division of forestry of the department of commerce, labor and environmental resources certifies that there is no commercially salable timber on the timberland, an inventory is provided, an appraisal of the timber is provided, and the sale, lease, exchange or other disposition is accomplished by the sealed bid auction procedure provided above in subdivisions (1) or (2), as applicable.
(f) The commission shall promulgate, pursuant to chapter twenty-nine-a of this code, rules and regulations relating to the powers and duties of the commission as enumerated in this section.
The commission shall appoint a farm management director who, in addition to qualifications established by the commission, shall have owned, operated or managed a farm for at least five years within ten years immediately prior to being appointed. The farm management director is the chief executive officer of the commission and is responsible for conducting the operations of the farms. The director shall prepare an annual report of the farming operations, including a listing of all receipts and expenditures and shall present it to the commission and the Legislature at the end of each fiscal year.
As authorized or directed by the commission, the director shall also:
(1) Prepare the annual budget request for the operation of the institutional farms and submit it to the commission for approval and submission to the secretary of the department of administration.
(2) Receive and approve all requisitions for farm supplies and equipment.
(3) Supervise the operation of all canneries and determine what foods are to be canned.
(4) Recruit and approve assistant farm managers to supervise each institutional farm.
(5) Implement all orders of the commission.
(6) Supervise all other employees of the commission.
(7) Transfer farm supplies, farm equipment, farm facilities, food stuffs and produce from one institutional farm to another to promote efficiency and improve farm management.
With the approval of the commission, the farm management director may rent or lease additional land for farm use.
By the thirtieth day of September each year, each institution under the control of the division of health and the division of corrections shall present to the farm management director a purchase order for its food requirements during the next fiscal year as determined by the institution. If, during the year, an institution finds that it needs other or additional food, milk, or commodities not included in its purchase order for the year, the institutional superintendent may forward a supplemental request to the farm management director, which order may be filled depending on availability. If institutional farms produce more food, milk and other commodities than can be sold to the institutions, the farm management director may sell the surplus to other state agencies willing to purchase. If any surplus remains after sales to other state agencies, the director may sell the surplus on the open market, or at the discretion of the director, turn over any surplus food products to appropriate public, nonprofit agencies upon application.
On the first day of July, one thousand nine hundred ninety, the division of health and the division of corrections shall each transfer, by interdepartmental transfer, the sum of two hundred thousand dollars to the farm management commission to be credited toward their purchase of food products from the commission. Such credits shall be treated as advance payments for food products purchased by these divisions pursuant to this section and such divisions shall not be required to make actual payments for food products until such credits have been completely expended.
All funds collected by the commission by virtue of this article, whether from the sale of food, the disposition of assets other than land, the lease of land or minerals, or any other source, shall be paid into a special revenue account to be used for the purposes of this article: Provided, That when the aggregate of said funds so collected and deposited in the special revenue account in any fiscal year total one million five hundred thousand dollars, the commission shall deposit any funds collected in excess thereof in the general revenue fund of the state.
Nothing contained in section five of this article shall be construed to abridge the rights of farm employees of the commission within the classified service of the state to the procedures and protections of sections ten and ten-a, article six, chapter twenty-nine of this code, subject to the limitations set forth in subsection (d), section two, article two, chapter five-f of this code.
Repealed
.
Acts, 1991 Reg. Sess., Ch. 86.
PEST CONTROL COMPACT
Article I. Findings.
The party states find that:
(a) In the absence of the higher degree of cooperation among them possible under this compact, the annual loss of approximately seven billion dollars from the depredations of pests is virtually certain to continue, if not to increase.
(b) Because of varying climatic, geographic and economic factors, each state may be affected differently by particular species of pests; but all states share the inability to protect themselves fully against those pests which present serious dangers to them.
(c) The migratory character of pest infestations makes it necessary for states both adjacent to and distant from one another, to complement each other's activities when faced with conditions of infestation and reinfestation.
(d) While every state is seriously affected by a substantial number of pests, and every state is susceptible of infestation by many species of pests not now causing damage to its crop and plant life and products, the fact that relatively few species of pests present equal danger to or are of interest to all states makes the establishment and operation of an insurance fund, from which individual states may obtain financial support for pest control programs of benefit to them in other states and to which they may contribute in accordance with their relative interests, the most equitable means of financing cooperative pest eradication and control programs.
Article II. Definitions.
As used in this compact, unless the context clearly requires
a different construction:
(a) "State" means a state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(b) "Requesting state" means a state which revokes the procedures of the compact to secure the undertaking or intensification of measures to control or eradicate one or more pests within one or more other states.
(c) "Responding state" means a state requested to undertake or intensify the measures referred to in subdivision (b) of this article.
(d) "Pest" means any invertebrate animal, pathogen, parasitic plant or similar or allied organism which can cause disease or damage in any crops, trees, shrubs, grasses or other plants of substantial value.
(e) "Insurance fund" means the pest control insurance fund established pursuant to this compact.
(f) "Governing board" means the administrators of this compact representing all of the party states when such administrators are acting as a body in pursuance of authority vested in them by this compact.
(g) "Executive committee" means the committee established pursuant to Article V (e) of this compact.
Article III. The Insurance Fund.
There is hereby established the pest control insurance fund
for the purpose of financing other than normal pest control
operations which states may be called upon to engage in pursuant
to this compact. The insurance fund shall contain moneys
appropriated to it by the party states and any donations and
grants accepted by it. All appropriations, except as conditioned
by the rights and obligations of party states expressly set forth
in this compact, shall be unconditional and may not be restricted
by the appropriating state to use in the control of any specified
pest or pests. Donations and grants may be conditional or
unconditional: Provided, That the insurance fund shall notaccept any donation or grant whose terms are inconsistent with
any provision of this compact.
Article IV. The Insurance Fund, Internal Operations
And Management.
(a) The insurance fund shall be administered by a governing
board and executive committee as hereinafter provided. The
actions of the governing board and executive committee pursuant
to this compact shall be deemed the actions of the insurance
fund.
(b) The members of the governing board shall be entitled to one vote each on such board. No action of the governing board shall be binding unless taken at a meeting at which a majority of the total number of votes of the governing board are cast in favor thereof. Action of the governing board shall be only at a meeting at which a majority of the members are present.
(c) The insurance fund shall have a seal which may be employed as an official symbol and which may be affixed to documents and otherwise used as the governing board may provide.
(d) The governing board shall elect annually, from among its members, a chairman, a vice chairman, a secretary and a treasurer. The chairman may not succeed himself. The governing board may appoint an executive director and fix his duties and his compensation, if any. Such executive director shall serve at the pleasure of the governing board. The governing board shall make provision for the bonding of such of the officers and employees of the insurance fund as may be appropriate.
(e) Irrespective of the civil service, personnel or other merit system laws of any of the party states, the executive director, or if there be no executive director, the chairman, in accordance with such procedures as the bylaws may provide, shall appoint, remove or discharge such personnel as may be necessary for the performance of the functions of the insurance fund and shall fix the duties and compensation of such personnel. The governing board in its bylaws shall provide for the personnel policies and programs of the insurance fund.
(f) The insurance fund may borrow, accept or contract for the services of personnel from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation.
(g) The insurance fund may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation, and may receive, utilize and dispose of the same. Any donation, gift or grant accepted by the governing board pursuant to this paragraph or services borrowed pursuant to paragraph (f) of this article shall be reported in the annual report of the insurance fund. Such report shall include the nature, amount and conditions, if any, of the donation, gift, grant or services borrowed and the identity of the donor or lender.
(h) The governing board shall adopt bylaws for the conduct of the business of the insurance fund and shall have the power to amend and rescind these bylaws. The insurance fund shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto with the appropriate agency or officer in each of the party states.
(i) The insurance fund annually shall make to the governor and legislature of each party state a report covering its activities for the preceding year. The insurance fund may make such additional reports as it may deem desirable.
(j) In addition to the powers and duties specifically authorized and imposed, the insurance fund may do such other things as are necessary and incidental to the conduct of its affairs pursuant to this compact.
Article V. Compact And Insurance Fund Administration.
(a) In each party state there shall be a compactadministrator, who shall be selected and serve in such manner as
the laws of his state may provide, and who shall:
1. Assist in the coordination of activities pursuant to the compact in his state; and
2. Represent his state on the governing board of the insurance fund.
(b) If the laws of the United States specifically so provide, or if administrative provision is made therefor within the federal government, the United States may be represented on the governing board of the insurance fund by not to exceed three representatives. Any such representative or representatives of the United States shall be appointed and serve in such manner as may be provided by or pursuant to federal law, but no such representative shall have a vote on the governing board or on the executive committee thereof.
(c) The governing board shall meet at least once each year for the purpose of determining policies and procedures in the administration of the insurance fund and, consistent with the provisions of the compact, supervising and giving direction to the expenditure of moneys from the insurance fund. Additional meetings of the governing board shall be held on call of the chairman, the executive committee, or a majority of the membership of the governing board.
(d) At such times as it may be meeting, the governing board shall pass upon applications for assistance from the insurance fund and authorize disbursements therefrom. When the governing board is not in session, the executive committee thereof shall act as agent of the governing board, with full authority to act for it in passing upon such applications.
(e) The executive committee shall be composed of the chairman of the governing board and four additional members of the governing board chosen by it so that there shall be one member representing each of four geographic groupings of party states. The governing board shall make such geographic groupings. If there is representation of the United States on the governing board, one such representative may meet with the executive committee. The chairman of the governing board shall be chairman of the executive committee. No action of the executive committee shall be binding unless taken at a meeting at which at least four members of such committee are present and vote in favor thereof. Necessary expenses of each of the five members of the executive committee incurred in attending meetings of such committee, when not held at the same time and place as a meeting of the governing board, shall be charges against the insurance fund.
Article VI. Assistance And Reimbursement.
(a) Each party state pledges to each other party state that
it will employ its best efforts to eradicate, or control within
the strictest practicable limits, any and all pests. It is
recognized that performance of this responsibility involves:
1. The maintenance of pest control and eradication activities of interstate significance by a party state at a level that would be reasonable for its own protection in the absence of this compact.
2. The meeting of emergency outbreaks of infestations of interstate significance to no less an extent than would have been done in the absence of this compact.
(b) Whenever a party state is threatened by a pest not present within its borders but present within another party state, or whenever a party state is undertaking or engaged in activities for the control or eradication of a pest or pests, and find that such activities are or would be impracticable or substantially more difficult of success by reason of failure of another party state to cope with infestation or threatened infestation, that state may request the governing board to authorize expenditures from the insurance fund for eradication or control measures to be taken by one or more of such other party states at a level sufficient to prevent, or to reduce to the greatest practicable extent, infestation or reinfestation of therequesting state. Upon such authorization the responding state or states shall take or increase such eradication or control measures as may be warranted. A responding state shall use moneys made available from the insurance fund expeditiously and efficiently to assist in affording the protection requested.
(c) In order to apply for expenditures from the insurance fund, a requesting state shall submit the following in writing:
1. A detailed statement of the circumstances which occasion the request for the invoking of the compact.
2. Evidence that the pest on account of whose eradication or control assistance is requested constitutes a danger to an agricultural or forest crop, product, tree, shrub, grass or other plant having a substantial value to the requesting state.
3. A statement of the extent of the present and projected program of the requesting state and its subdivisions, including full information as to the legal authority for the conduct of such program or programs and the expenditures being made or budgeted therefor, in connection with the eradication, control or prevention of introduction of the pest concerned.
4. Proof that the expenditures being made or budgeted as detailed in item 3 do not constitute a reduction of the effort for the control or eradication of the pest concerned or, if there is a reduction, the reasons why the level of program detailed in item 3 constitutes a normal level of pest control activity.
5. A declaration as to whether, to the best of its knowledge and belief, the conditions which in its view occasion the invoking of the compact in the particular instance can be abated by a program undertaken with the aid of moneys from the insurance fund in one year or less, or whether the request is for an installment in a program which is likely to continue for a longer period of time.
6. Such other information as the governing board may require consistent with the provisions of this compact.
(d) The governing board or executive committee shall give due notice of any meeting at which an application for assistance from the insurance fund is to be considered. Such notice shall be given to the compact administrator of each party state and to such other officers and agencies as may be designated by the laws of the party states. The requesting state and any other party state shall be entitled to be represented and present evidence and argument at such meeting.
(e) Upon the submission as required by paragraph (c) of this article and such other information as it may have or acquire, and upon determining that an expenditure of funds is within the purposes of this compact and justified thereby, the governing board or executive committee shall authorize support of the program. The governing board or executive committee may meet at any time or place for the purpose of receiving and considering an application. Any and all determinations of the governing board or executive committee, with respect to an application, together with the reasons therefor shall be recorded and subscribed in such manner as to show and preserve the votes of the individual members thereof.
(f) A requesting state which is dissatisfied with a determination of the executive committee shall upon notice in writing given within twenty days of the determination with which it is dissatisfied, be entitled to receive a review thereof at the next meeting of the governing board. Determination of the executive committee shall be reviewable only by the governing board at one of its regular meetings, or at a special meeting held in such manner as the governing board may authorize.
(g) Responding states required to undertake or increase measures pursuant to this compact may receive moneys from the insurance fund, either at the time or times when such state incurs expenditures on account of such measures, or as reimbursement for expenses incurred and chargeable to the insurance fund. The governing board shall adopt and, from time to time, may amend or revise procedures for submission of claims upon it and for payment thereof.
(h) Before authorizing the expenditure of moneys from theinsurance fund pursuant to an application of a requesting state, the insurance fund shall ascertain the extent and nature of any timely assistance or participation which may be available from the federal government and shall request the appropriate agency or agencies of the federal government for such assistance and participation.
(i) The insurance fund may negotiate and execute a memorandum of understanding or other appropriate instrument defining the extent and degree of assistance or participation between and among the insurance fund, cooperating federal agencies, states and any other entities concerned.
Article VII. Advisory And Technical Committees.
The governing board may establish advisory and technical
committees composed of state, local, and federal officials, and
private persons to advise it with respect to any one or more of
its functions. Any such advisory or technical committee, or any
member or members thereof may meet with and participate in its
deliberations. Upon request of the governing board or executive
committee an advisory or technical committee may furnish
information and recommendations with respect to any application
for assistance from the insurance fund being considered by such board or committee and the board or committee may receive and
consider the same: Provided, That any participant in a meeting
of the governing board or executive committee held pursuant to
Article VI (d) of the compact shall be entitled to know the
substance of any such information and recommendations, at the
time of the meeting if made prior thereto or as a part thereof
or, if made thereafter, no later than the time at which the
governing board or executive committee makes its disposition of
the application.
Article VIII. Relations With Nonparty Jurisdictions.
(a) A party state may make application for assistance from
the insurance fund in respect of a pest in a nonparty state.
Such application shall be considered and disposed of by the
governing board or executive committee in the same manner as an
application with respect to a pest within a party state, except
as provided in this article.
(b) At or in connection with any meeting of the governing board or executive committee held pursuant to Article VI (d) of this compact a nonparty state shall be entitled to appear, participate, and receive information only to such extent as the governing board or executive committee may provide. A nonparty state shall not be entitled to review of any determination made by the executive committee.
(c) The governing board or executive committee shall authorize expenditures from the insurance fund to be made in a nonparty state only after determining that the conditions in such state and the value of such expenditures to the party states as a whole justify them. The governing board or executive committee may set any conditions which it deems appropriate with respect to the expenditure of moneys from the insurance fund in a nonparty state and may enter into such agreement or agreements with nonparty states and other jurisdictions or entities as it may deem necessary or appropriate to protect the interests of the insurance fund with respect to expenditures and activities outside of party states.
Article IX. Finance.
(a) The insurance fund shall submit to the executive head or
designated officer or officers of each party state a budget for
the insurance fund for such period as may be required by the laws
of that party state for presentation to the legislature thereof.
(b) Each of the budgets shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. The requests for appropriations shall be apportioned among the party states as follows: One tenth of the total budget in equal shares and the remainder in proportion to the value of agricultural and forest crops and products, excluding animals and animal products, produced in each party state. In determining the value of such crops and products theinsurance fund may employ such source or sources of information as in its judgment present the most equitable and accurate comparisons among the party states. Each of the budgets and requests for appropriations shall indicate the source or sources used in obtaining information concerning value of products.
(c) The financial assets of the insurance fund shall be maintained in two accounts to be designated respectively as the "Operating Account" and the "Claims Account." The operating account shall consist only of those assets necessary for the administration of the insurance fund during the next ensuing two-year period. The claims account shall contain all moneys not included in the operating account and shall not exceed the amount reasonably estimated to be sufficient to pay all legitimate claims on the insurance fund for a period of three years. At any time when the claims account has reached its maximum limit or would reach its maximum limit by the addition of moneys requested for appropriation by the party states, the governing board shall reduce its budget requests on a pro rata basis in such manner as to keep the claims account within such maximum limit. Any moneys in the claims account by virtue of conditional donations, grants or gifts shall be included in calculations made pursuant to this paragraph only to the extent that such moneys are available to meet demands arising out of claims.
(d) The insurance fund shall not pledge the credit of any party state. The insurance fund may meet any of its obligations in whole or in part with moneys available to it under Article IV (g) of this compact, providing that the governing board takes specific action setting aside such moneys prior to incurring any obligation to be met in whole or in part in such manner. Except where the insurance fund makes use of moneys available to it under Article IV (g) hereof, the insurance fund shall not incur any obligation prior to the allotment of moneys by the party states adequate to meet the same.
(e) The insurance fund shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the insurance fund shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the insurance fund shall be audited yearly by a certified or licensed public accountant and a report of the audit shall be included in and become part of the annual report of the insurance fund.
(f) The accounts of the insurance fund shall be open at any reasonable time for inspection by duly authorized officers of the party states and by any persons authorized by the insurance fund.
Article X. Entry Into Force And Withdrawal.
(a) This compact shall enter into force when enacted into
law by any five or more states. Thereafter, this compact shall
become effective as to any other state upon its enactment
thereof.
(b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until two years after the executive head of the withdrawing state has given notice in writing of the withdrawal to the executive heads of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.
Article XI. Construction And Severability.
This compact shall be liberally construed so as to
effectuate the purposes thereof. The provisions of this compact
shall be severable and if any phrase, clause, sentence or provisions of this compact is declared to be contrary to the
constitution of any state or of the United States or the
applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of
this compact and the applicability thereof to any government,
agency, person or circumstance shall not be affected thereby. If
this compact shall be held contrary to the constitution of any
state participating herein, the compact shall remain in full
force and effect as to the remaining party states and in full
force and effect as to the state affected as to all severablematters.
Repealed.
Acts, 1991 Reg. Sess., Ch. 120
(a) "Certificate" means a document issued by the commissioner indicating a regulated article is free of noxious weeds.
(b) "Commissioner" means the commissioner of agriculture of the state of West Virginia and his duly authorized representatives.
(c) "Infested" means the establishment of a noxious weed or exposure to such weed in a way creating reasonable certainty that establishment will occur.
(d) "Move" means to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move or allow to be moved.
(e) "Noxious weed" means any living plant, or part thereof, declared by the commissioner, after public hearing, to be detrimental to crops, other desirable plants, waterways, livestock, land or other property, or to be injurious to public health or the economy.
(f) "Permit" means a document issued by the commissioner to provide for movement of regulated articles to restricted destinations for limited handling, utilization, processing, or for scientific purposes.
(g) "Person" means any individual or combination of individuals, partnership, corporation, company, society, association, firm, or other business entity and each officer, agent or employee thereof; the state and federal government and any department, agency, or subdivision thereof; or any other entity.
(h) "Quarantine" means a legal declaration by the commissioner specifying:
(1) The common and scientific name of the noxious weed.
(2) The articles to be regulated.
(3) The conditions governing movement.
(4) Exemptions.
(i) "Regulated article" means any article of any character which is transporting or which is capable of transporting any noxious weed.
(j) "Reasonable notification" means at least forty-eight hours.
(b) In issuing such regulations, the commissioner shall give consideration to pertinent research findings and recommendations of other agencies of the state, the federal government, and other reliable sources.
(b) Multiflora rose, Rosa multiflora, is a detriment to agriculture in West Virginia and is hereby declared to be a noxious weed.
(b) No person shall move, transport, deliver, ship or offer for shipment into or within this state any noxious weed without first obtaining a permit from the commissioner and such permit shall be issued only after it has been determined that the noxious weed is generally present throughout the state or is for scientific purposes subject to prescribed safeguards.
(c) The commissioner, in order to prevent the introduction or dissemination of noxious weeds, is hereby authorized to stop delivery, stop sale, seize, destroy, treat, or order returned to the point of origin, at the owner's expense, any noxious weed, article or substance, whatsoever, if it is being transported or moved within this state, or if it exists on any premises within the state, or if it is being brought into this state from any place outside thereof, if such is found by him to be infested with any noxious weed subject to this article.
(b) The commissioner is authorized to cooperate in any way with any person in programs designed to suppress or control noxious weeds already widely distributed in the state without first declaring a quarantine.
(c) The commissioner may, upon request, cooperate with federal and state agencies and political subdivisions in the enforcement of the narcotic laws to the extent of preventing the spread of and destroying marijuana or hemp, Cannabis spp., or other plants which produce drugs which have been condemned for destruction under the narcotics laws: Provided, That nothing herein shall authorize the commissioner to participate in a criminal investigation or prosecution under the Controlled Substances Act or federal narcotic laws. Such drug producing plants are hereby declared noxious.
(d) It is hereby declared to be the policy of the Legislature to control, and ultimately to eradicate, in West Virginia the noxious weed known as multiflora rose, which, having been introduced into West Virginia, multiplied and infested fields and meadows to the point where it defies eradication or control by means available to the average landowner.
The commissioner shall take any and all action necessary to eradicate the multiflora rose, Rosa multiflora, including, but not limited to, the commissioner's initiating a research and testing program.
The commissioner is therefore authorized to initiate a research and testing program for the control, and ultimately the eradication, of multiflora rose on suitable lands, public or private, which are infested by that noxious weed. The program may include control of any and all means by which multiflora rose is spread, whether by plant, animal or fowl, or by any other means. If the land to be used for the program is privately owned, then the owner must give his consent in writing to such use. In selecting the site for, and in conducting the program on the land the commissioner shall solicit the opinion of persons and groups affected by, or concerned about the proliferation of multiflora rose.
In conducting the program the commissioner shall use only such chemicals and other means that have been tested and determined to be reasonably safe for the purposes stated herein, and shall take all due care to avoid injury and damage to plant, animal and human life and health and to all structures of any kind on or near the site of the test program.
All agencies of state government and its political subdivisions shall cooperate with the commissioner for the purposes stated herein, and the commissioner shall use any public moneys available or appropriated for the pilot program. The commissioner may also use, as part of a cost- sharing program, any moneys contributed voluntarily by landowners, including persons whose land may be used for the program. The results of such programs shall be reported to the Legislature at its next regular session.
It shall be the duty of the prosecuting attorney of the county in which the violation occurred to represent the commissioner, to institute proceedings and to prosecute the person charged with such violation. In the event a county or prosecuting attorney refuses to act on behalf of the commissioner, the attorney general shall so act.
(1) "Commissioner" means the commissioner of agriculture;
(2) "Industrial hemp" means all parts and varieties of the plant cannabis sativa L. containing no greater than one percent tetrahydrocannabinol; and
(3) "Marijuana" means all plant material from the genus cannabis containing more than one percent tetrahydrocannabinol or seeds of the genus capable of germination.
(b) The application for a license must include the name and address of the applicant and the legal description of the land area to be used for the production of industrial hemp.
(c) The commissioner shall require each first-time applicant for a license to file a set of the applicant's fingerprints, taken by a law-enforcement officer, and any other information necessary to complete a statewide and nationwide criminal history check with the criminal investigation bureau of the department of justice for state processing and with the federal bureau of investigation for federal processing. All of the costs associated with the criminal history check are the responsibility of the applicant. Criminal history records provided to the department under this section are confidential. The commissioner may use the records only to determine if an applicant is eligible to receive a license for the production of industrial hemp.
(d) Prior to issuing a license under the provisions of this article, the commissioner shall determine that the applicant has complied with all applicable requirements of the United States department of justice, drug enforcement administration for the production, distribution and sale of industrial hemp.
(e) If the applicant has completed the application process to the satisfaction of the commissioner, the commissioner shall issue the license which is valid until the thirty-first day of December of the year of application. An individual licensed under this section is presumed to be growing industrial hemp for commercial purposes.
(1) Documentation showing that the seeds planted are of a type and variety certified to contain no more than one percent tetrahydrocannabinol; and
(2) A copy of any contract to grow industrial hemp.
(b) Each licensee shall notify the commissioner of the sale or distribution of any industrial hemp grown by the licensee, including, but not limited to, the name and address of the person or entity receiving the industrial hemp and the amount of industrial hemp sold.
(1) Testing of the industrial hemp during growth to determine tetrahydrocannabinol levels;
(2) Supervision of the industrial hemp during its growth and harvest;
(3) Assessment of a fee that is commensurate with the costs of the commissioner's activities in licensing, testing and supervising industrial hemp production;
(4) Promulgate rules relating to the production and sale of industrial hemp which are consistent with the rules of the United States department of justice, drug enforcement administration for the production, distribution and sale of industrial hemp; and
(5) Any other rules and procedures necessary to carry out the purposes of this article.
(1) The defendant was growing industrial hemp pursuant to the provisions of this article;
(2) The defendant has a valid applicable controlled substances registration from the United States department of justice, drug enforcement administration; and
(3) The defendant fully complied with all of the conditions of the controlled substances registration.
(b) This section is not a defense to a charge of criminal sale or distribution of marijuana as defined in chapter sixty-a of this code which does not meet the definition of industrial hemp.
This article may be cited as "The West Virginia Apiary Act."
(1) "Abandoned apiary" means any apiary in which twenty-five percent or more of the colonies are dead or diseased, or the death or disarray of the colonies exposes them to robbing, or diseased or potentially diseased abandoned bee equipment which may jeopardize the welfare of neighboring colonies.
(2) "Apiary" means any place where one or more colonies or nuclei of bees are kept or where bee equipment is stored.
(3) "Appliances" means any apparatus, tool, machine or other device, used in the handling and manipulating of bees, honey, wax and hives. It also means any container of honey and wax that may be used in any apiary or in transporting bees and their products and apiary supplies.
(4) "Bees" means any stage of the common hive or honey bee (Apis mellifera), or other species of the genus Apis.
(5) "Bee equipment" means hives, supers, frames, veils, gloves or any other appliances.
(6) "Bee products" means honey, bees wax, pollen, propolis and royal jelly.
(7) "Colony" means the hive and includes bees, comb, honey and bee equipment.
(8) "Commissioner" means the commissioner of the department of agriculture of the state of West Virginia or a duly authorized employee.
(9) "Control agents or control mechanisms" means any method of chemical or mechanical control to suppress or eradicate an apiary disease, pest, or parasitic infestation in an apiary or the colonies contained therein.
(10) "Department" means the department of agriculture of the state of West Virginia.
(11) "Hive" means a frame hive, box hive, box, barrel, log, gum, skep or any other receptacle or container, natural or artificial, or any part thereof, which may be used or employed as a domicile for bees.
(12) "Honey bee pest" means American foulbrood (Bacillus larvae), European foulbrood (Melissococcus pluton), Varroa mite (Varroa destructor), honey bee tracheal mite (Acarapis woodi), or any other virus or infectious or parasitic organism determined by the commissioner to be transmissible to other bee colonies and that represents a threat to beekeeping in West Virginia.
(13) "Nuclei" means the removal of a split portion or division of any colony of honey bees for the express purpose of creating a numerical increase in colonies for honey production, pollination service or monetary gain through sale of honey bees.
(14) "Packaged bees" means bees shipped in combless packages accompanied by a valid certificate of health from an authorized state or federal agency verifying the absence or presence of any infectious or communicable diseases or parasitic infestations, and further providing that no honey has been used for food while in transit or that any honey used as food in transit was properly sterilized.
(15) "Person" means corporations, partnerships, associations, societies, individuals or group of individuals or any employee, servant or agent acting for or employed by any person.
(16) "Premises" means any parcel of real estate and structures in which bee equipment, bees, bee products and bee appliances are or may be utilized for storage purposes.
(17) "Quarantine" means a declaration by the commissioner which specifies a period of enforced isolation to contain and prevent the spread of honey bee pests.
(18) "Sterilized or sterilization" means to treat and neutralize honey bee pests by means of steam autoclave, pit incineration, or by any other acceptable method which the commissioner determines effective for control of honey bee pests.
(b) The commissioner is authorized to conduct apiary education in a manner which advances and promotes bee culture in West Virginia.
(c) The commissioner is authorized to cooperate with the federal government and its agencies, departments and instrumentalities; other West Virginia agencies, departments, divisions, or political subdivisions; and any other state or commonwealth and its agencies, departments or political subdivisions, in order to carry out the effective administration of this article.
(d) The commissioner is authorized to stop the delivery of, to seize, to destroy, to treat or to order returned to point of origin, at the owner's expense, all appliances, bees, bee equipment, bee products or hives transported into or within this state, found to be infected with honey bee pests regardless of whether a valid certificate of inspection is attached.
(b) All persons owning or operating an apiary which is not located on their own property must post the name and address of the owner or operator in a conspicuous place in the apiary.
(c) A person who:
(1) Owns and operates an apiary;
(2) Is registered with the Commissioner; and
(3) Operates the apiary in a reasonable manner and in conformance with the West Virginia Department of Agriculture's written best management practices provided by rule, is not liable for any personal injury or property damage that occurs in connection with the keeping and maintaining of bees, bee equipment, queen breeding equipment, apiaries and appliances. The limitation of liability established by this section does not apply to intentional tortious conduct or acts or omissions constituting gross negligence.
The limitation on liability in this subsection shall not take effect until legislative rules promulgated by the Commissioner of Agriculture are authorized by the Legislature. However, the Commissioner of Agriculture shall have the authority to promulgate emergency rules under this subsection.
(d) In order to effectuate the purposes of subsection (c), the commissioner shall propose for promulgation, legislative rules in accordance with article three, chapter twenty-nine-a of this code: Provided, That the initial promulgation may be by emergency rule. The rule shall include best management standards for the operation of apiaries. The limitation on liability contained in subsection (c) shall not take effect until legislative rules are promulgated in accordance with article three, chapter twenty-nine-a of this code.
(b) The commissioner shall inspect, as practicable, all colonies of honey bees domiciled within the state of West Virginia. If any honey bee pest is found in the apiary, the commissioner shall immediately notify, in writing, the owner or operator stating the type of honey bee pest and whether it may be successfully treated or not.
In cases where the honey bee pest is subject to treatment, the commissioner shall specify and direct the necessary treatment, which will be administered by the owner or operator, within fourteen days of the date of notice. If not treated, the colonies contained in the apiary in which the honey bee pests are found shall be depopulated without remuneration to the owner. All bee hives and related bee equipment found in any diseased apiary shall be destroyed, sterilized or treated in a manner approved by and under the direction of the commissioner.
(c) All apiaries producing queens, packaged bees or nuclei colonies for distribution shall be inspected each year. If honey bee pests are found in the apiary, the commissioner shall immediately notify, in writing, the owner or operator, and thereafter it shall be unlawful for the owner or operator to ship, sell or give away any queen bees, appliances, packaged bees, full colonies or nuclei colonies from the apiary until the honey bee pests have been controlled to the satisfaction of the commissioner.
(d) The commissioner shall quarantine all apiaries, bees, bee equipment, bee products, appliances and premises infected by honey bee pests. The notice of quarantine shall specify the name of the honey bee pest, the premises or apiary quarantined, bee equipment, bee products and appliances regulated and all conditions governing movement. The commissioner may adopt other orders to prevent the introduction of or to contain the spread of honey bee pests that are capable of being transported by bees, appliances or bee equipment. The order shall set forth the conditions governing the movement of the regulated items.
The commissioner shall rescind, in writing, quarantines and other orders when he or she determines the need no longer exists.
(b) Prior to the movement of any bees, used bee equipment or used appliances into West Virginia, and as a prerequisite to the issuance of a permit of entry, the commissioner shall be furnished by the owner, transporter, or operator the following:
(1) The exact location or destination of the bees, used bee equipment or used appliances.
(2) Name and address of the owner of the property where the bees, used bee equipment or used appliances will be located.
(3) The exact number of colonies or amount of used bee equipment or used appliances in the shipment.
(4) A copy of the inspection certificate issued by the state or federal inspector.
The commissioner shall issue a temporary or permanent permit of entry. A temporary permit may not exceed sixty days.
If the commissioner denies the request for an entry permit, he or she shall notify the owner, operator or transporter of the denial and the reasons therefor.
Acts, 2003 Reg. Sess., Ch. 8.
Any person who engages in the shipping of bees in combless packages in this state shall, in manufacturing candy for mailing cages, sterilize the same or use candy that does not contain honey.
Acts, 2003 Reg. Sess., Ch. 8.
(2) It shall be the duty of the prosecuting attorney of the county in which the violation occurred to represent the department of agriculture, to institute proceedings, and to prosecute the person charged with such violation.
(b) Civil penalties. --
(1) Any person violating the provisions of this article or rule promulgated pursuant to this article 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 violation of any persons, the seriousness of the violation, including any hazards to agriculture in West Virginia 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 one hundred dollars for the first offense or less serious violation, as determined by the commissioner in accordance with the rules approved 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 the approved rules.
(3) The commissioner may negotiate and enter into a settlement agreement for the payment of civil penalties.
(4) The civil penalty is payable to the state of West Virginia and is collectable in any manner authorized by law for the collection of debts. Any person liable to pay a civil penalty and neglecting or refusing to pay it within thirty days of written notice of demand for payment, shall be assessed interest at the rate of ten percent per year from the date the penalty was assessed to the date of payment. The penalty and interest constitute a lien in favor of the state of West Virginia and shall attach on the person's property when a lien is properly recorded in the county wherein the property is situated. There shall be no cost as a condition precedent to recording.
(5) The commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish procedures for the assessment and collection of civil penalties as provided in this section.
(6) 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.
If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of the article are declared severable.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 10.
This article shall be known as the "West Virginia Commercial Feed Law of 1991."
(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.
(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; (3) individual chemical compounds when not mixed with other materials. The term commercial feed shall include 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) "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 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) "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) "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 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 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" 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.
(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.
(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) "Specialty pet" 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) "Specialty pet food" means any commercial feed intended for consumption by specialty pets.
(cc) "Ton" means a net weight of two thousand pounds avoirdupois.
The commissioner has the power and authority to:
(a) Enter and inspect, during reasonable hours, any location where commercial feeds are manufactured, distributed, transported or used, and where records relating to the manufacture, distribution, shipment, labeling or sale of commercial feed are kept. Such 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 commercial feeds.
(b) Open, examine, sample and test commercial feed, unmixed or unprocessed whole seeds, equipment, containers, transport containers, and packages used or intended to be used in the manufacture and distribution of commercial feeds.
(c) Issue permits and registrations pursuant to this article.
(d) Refuse, suspend, or revoke permits and registrations as provided in this article.
(e) Issue embargoes as provided in this article.
(f) Condemn and confiscate any product that is not brought into compliance with this article.
(g) Collect fees and penalties, and expend moneys under the terms of this article.
(h) Conduct sampling in accordance with the official methods published in the current edition of the Official Methods of Analysis of the Association of Official Analytical Chemists and supplements thereto, or methods approved by the commissioner by rules.
(i) Conduct hearings as provided by this article.
(j) Assess civil penalties and refer violations to a court of competent jurisdiction.
(k) Obtain court orders directing any person refusing to submit to inspection, sampling, and auditing to submit.
(l) Establish and maintain feed testing facilities; establish reasonable fees for such tests; incur expenses; and conduct tests in accordance with the official methods published in the current edition of the Official Methods of Analysis of the Association of Official Analytical Chemists and supplements thereto, or methods approved by the commissioner by rules.
(m) Be guided by the analytical results of the official sample when determining whether the commercial feed is deficient in any component.
(n) Report the analytical results on all official samples to the registrant and, in the case of deficient samples, also to the dealer and the purchaser, if known.
(o) 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.
(p) Publish and distribute annually a composite report containing: (1) The sales of commercial feeds and feed ingredients during the preceding period, (2) the results of the 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.
(q) 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 this article.
(r) Promulgate rules, in accordance with chapter twenty-nine-a of this code, dealing with commercial feeds and enforcement of this article.
All fees and penalties collected under the provisions of this article shall be deposited with the state treasurer in a special revenue account. Such moneys shall be expended by the commissioner of agriculture for inspection, sampling, analysis, and other expenses necessary for the administration of this article.
(a) 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. All applications shall be accompanied by the fee established in this section. A penalty of two dollars shall be added to the fee for all permits or registrations that are not applied for or renewed within the time limit.
(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 animals on his/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 fifteen dollars. Each permit issued shall expire on the thirty-first day of December 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 (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 ten dollars. Each permit issued shall expire on the thirty-first day of December 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 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.
(1) Commercial feed, other than pet food, in packages over ten pounds or bulk shall be registered permanently. A registration fee of ten dollars per product shall accompany each application for registration, except that there will be no fee for a revision of a commercial feed already on file that involves a change in the net weight, a change in the list of ingredients, and/or a change in the guarantee for vitamins or minerals.
(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 fifty dollars per product shall accompany each application for registration. The registration shall expire the thirty-first day of August 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 shall be registered annually. A registration fee of forty dollars per product shall accompany each application for registration. The registration shall expire on the thirty-first day of December 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 twenty dollars per product shall accompany each application for registration. The registration shall expire on the thirty-first day of December next following the date of issue.
(f) A person is not required to register any brand name or product name of commercial feed which 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 and approved before distribution.
The commissioner may refuse to grant, or may suspend or revoke registration of any commercial feed; any commercial feed manufacturing permit; or any commercial feed distributor permit when it is determined that: (a) The applicant, permittee, or registrant has violated the provisions of this article or any official rule promulgated hereunder; or (b) this article or the rules promulgated hereunder cannot be or will not be complied with: Provided, That the permittee or registrant shall have the opportunity to be heard prior to the suspension or revocation of the registration or permit.
(a) No application shall be refused until the applicant has the opportunity to amend his/her application to comply with the requirements of this article.
No registration or permit shall be refused, suspended or revoked until the registrant or permittee shall have the opportunity to have a hearing before the commissioner.
(b) Any person adversely affected by an act, order or ruling made pursuant to the provisions of this article, may within forty-five days thereafter, bring an action for judicial review in the circuit court of the county in which the violation occurred.
Any party aggrieved by a final judgment entered by a circuit court, may appeal to the West Virginia supreme court of appeals.
(a) When commercial feed, except customer-formula feed, is distributed in this state in bags or other containers, the label shall be affixed to the container; when commercial feed is distributed in bulk, the label shall accompany delivery.
(b) All commercial feed labels, except customer-formula feeds, shall state the following:
(1) The net weight avoirdupois. The net weight may also be stated in metric units.
(2) The product name, including brand name, if any, under which the commercial feed is distributed.
(3) The guaranteed analysis stating what the commissioner determines by rules is required to advise the user of the composition of the feed and other necessary information to support claims made on the label. The substances or elements guaranteed must be determinable by laboratory methods published by the association of official analytical chemists or by an acceptable method supplied by the registrant.
(4) An ingredient statement, except that an ingredient statement is not required for single standardized ingredient feeds or when such statement is not in the interest of consumers. An ingredient statement shall include:
(A) The common or usual name of each ingredient as officially defined in the annual Official Publication of the Association of American Feed Control Officials;
(B) Collective terms as defined in the annual Official Publication of the Association of American Feed Control Officials;
(C) The common or usual name of substances generally recognized as safe (GRAS) as authorized by 21 Code of Federal Regulations 570.30 (April 1, 1990) of the Federal Drug and Cosmetic Act as amended August, 1985;
(D) The common or usual name of substances which are so common so as to not need a definition, have a substantially safe history, and no safety hazard is known to exist after consumption by a significant number of animals, including, but not limited to, salt and sugar; or
(E) Other ingredients or additives that the commissioner, by rules, deems necessary.
(5) The name and principal mailing address of the manufacturer or the distributor.
(6) Adequate directions and precautionary statements for safe and effective use.
(7) If a drug or drug containing product is used, then the following shall be stated:
(A) The established name of each active drug ingredient;
(B) The level of each drug used in the final mixture;
(C) The purpose of the medication (claim statement);
(D) Appropriate cautions and warnings on the use of the medicated commercial feed;
(E) Withdrawal statements, if applicable;
(F) The word "medicated" shall appear directly following and below the product name in type size, no smaller than one-half the type size of the product name.
(c) Pet food labels shall have such additional information as required by the commissioner through rules.
(d) All customer-formula feeds shall be labeled at all times and shall be supplied to the purchaser at the time of delivery. The label shall bear the following information:
(1) Name and address of the manufacturer.
(2) Name and address of the purchaser.
(3) Date of manufacture.
(4) Net weight (avoirdupois) of the commercial feed and each feed ingredient used in the customer-formula feed.
(5) Adequate directions and precautionary statements for safe and effective use.
(6) If a drug or drug containing product is used, then the following shall be stated:
(A) The established name of each active drug ingredient;
(B) The level of each drug used in the final mixture;
(C) The purpose of the medication (claim statement);
(D) Appropriate cautions and warnings on the use of the commercial feed;
(E) Withdrawal statements, if applicable;
(F) The word "medicated" shall appear directly following and below the product name in type size no smaller than one-half the type size of the product name.
(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.
(7) Commercial feed, where 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, 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 thirty-first day 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.
Each report shall be accompanied by an inspection fee at the rate of thirty-five cents per ton on commercial feed and feed ingredients with the minimum inspection fee being ten dollars each statement. The minimum fee is waived if the total amount of the calculated inspection fee due is two dollars or less. Such fees become effective on the first day of July, 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 ten dollars. The assessment of this penalty fee shall not prevent the commissioner from taking other actions as provided in this chapter.
(c) 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.
Commercial feed or feed ingredients is adulterated:
(a) If it contains any poisonous, deleterious or nonnutritive substance, including pesticide chemical residues, food additives, color additives or drugs which is or may be injurious to animals when fed such feed in accordance with the directions, or to humans who consume the resultant food product of the animal;
(b) If its composition or quality falls below or differs from what is stated on the label or by its labeling;
(c) If it contains viable weed seeds exceeding the limits set by the commissioner by rules;
(d) If the facilities, controls, or methods used in the manufacture, processing, or packaging do not conform to industry standards set by the commissioner by rules; or
(e) If it was manufactured or held under conditions whereby it became contaminated by dust, dirt, insects, birds, rodents, or animal excretion thereby rendering it injurious to animal health.
Commercial feed 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 use;
(d) If it purports to or contains a feed ingredient that does not conform to the definition of identity prescribed by the commissioner by rules; or
(e) If any damage or inferiority has been concealed.
(a) Embargo orders: When the commissioner has reasonable cause to believe any lot of commercial feed is being manufactured, distributed, offered for sale, exposed for sale, or used in this state in violation of the provisions of this article or any rule promulgated hereunder, then he/she may issue and enforce a written embargo order, warning the custodian of the commercial feed not to manufacture, distribute, use, remove, or dispose of the commercial feed in any manner until the embargo is released by the commissioner or by court order.
When the embargo is issued, the commissioner shall affix a tag or other marking to the commercial feed and/or to the manufacturing device warning that such product or process is under embargo and notify the custodian that he/she has a right to request an immediate hearing.
The commissioner shall release the commercial feed so embargoed when said commercial feed has been brought into compliance with this article and its rules.
The commissioner shall have the authority to issue an embargo against a perishable product, even if the result is the involuntary disposal of the product.
The commissioner may take action to seize and condemn any product if not brought into compliance with this article and the rules issued hereunder, within ninety days of the notice to the custodian.
(b) Condemnation and confiscation: Any commercial feed not in compliance with the provisions of this article or the rules promulgated hereunder shall be subject to condemnation and confiscation on complaint of the commissioner to the circuit court of the county in which the commercial feed in question is located. Jurisdiction is hereby conferred upon the circuit courts to hear and determine such matter.
If the court finds that the commercial feed is in violation of the provisions of this article or its rules and should be confiscated, then the court shall order the condemnation and confiscation of such commercial feed and its disposition in a manner consistent with the quality of such commercial feed which is not in violation of any other laws of this state: Provided, That the owner thereof must first be given an opportunity to process or relabel such commercial feed or dispose of the same in full compliance with the provisions of this article and its rules.
(c) Injunctions: Upon application by the commissioner, the circuit court of the county in which the violation is occurring, has occurred or is about to occur, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this article or any rule promulgated hereunder. An injunction shall be issued without bond.
The commissioner may not make public any information which contains or relates to trade secrets, acquired under the authority of this article, concerning any methods, formulas, processes, sales, or distribution information: Provided, That the commissioner may exchange information of a regulatory nature with duly appointed officials of the United States Government, of other states, or of other foreign governments who are similarly prohibited by law from revealing this information.
It shall be unlawful:
(a) To manufacture, distribute, or knowingly use any commercial feed that is adulterated or misbranded.
(b) To adulterate or misbrand any commercial feed.
(c) To distribute, use, remove, or dispose of commercial feed in violation of an embargo order, or condemnation and confiscation order provided for under this article.
(d) To manufacture, distribute, or use any commercial feed containing a drug or drugs that cause or may cause residue of the drug or drugs in the edible tissues, milk, or eggs of the animals fed such feed in excess of the acceptable residue levels set by the commissioner by rules.
(e) To fail or refuse to register commercial feeds.
(f) To fail or refuse to obtain permits required under this article.
(g) To fail to make an accurate statement of tonnage.
(h) To fail to pay inspection fees as required under this article.
(i) To distribute or knowingly use any commercial feed that has not had an accurate statement of tonnage reported to the commissioner in the previous reporting period.
(j) 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 commercial feed.
(k) To interfere with the commissioner's official duties.
(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, any hazards to the health and safety of the public and to the animals consuming or intended to consume the commercial feed; 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 promulgated rules.
(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 from the date the penalty was assessed. Such 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 shall 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) It shall be the duty of each prosecuting attorney to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.
(e) Nothing in this article shall be construed as to require the commissioner to report minor violations of this article when he/she believes that the public interest will be best served by a written notice.
(f) 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.
(b) "Bulk fertilizer" means fertilizer delivered to the purchaser either in solid or liquid state in a nonpackage form to which a label cannot be attached.
(c) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
(d) "Compost" means a biologically stable material derived from the composting process.
(e) "Custom media" means a horticultural growing medium prepared to exact specifications of the person who will be planting in the medium.
(f) "Department" means the department of agriculture of the state of West Virginia.
(g) "Distribute" means to import, consign, to offer for sale, sell, barter, warehouse or otherwise supply a regulated product in this state.
(h) "Distributor" means any person who distributes a regulated product in this state.
(i) "Embargo" means a written stop sale order issued by the commissioner of agriculture prohibiting the sale, use of or transportation of any regulated product in any manner until the embargo is released by the commissioner.
(j) "Fertilizer" means any substance containing one or more recognized plant nutrients, including natural organic fertilizer, which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes and gypsum and other products exempted by rule of the commissioner.
(k) "Fertilizer material" means a fertilizer which either:
(1) Contains important quantities of no more than one of the primary plant nutrients: (nitrogen (N), available phosphate (P205) and soluble potash (K20); or
(2) Has eighty-five percent or more of its plant nutrient content present in the form of a single chemical compound; or
(3) Is derived from a plant or animal residue or by-product or a natural material deposit which has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration.
(l) "Grade" means the percentage of total nitrogen, available phosphate and soluble potash stated in whole numbers in the same terms, order and percentages as in the guaranteed analysis: Provided, That specialty fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphate and soluble potash: Provided, however, That fertilizer materials, bone meal, manures and similar raw materials may be guaranteed in fractional units.
(m) "Guaranteed analysis" means the minimum percentage of plant nutrients claimed in the following order and form:
(1) Total nitrogen (N) ................ percent
Available phosphate (P205) ........ percent
Soluble potash (K201).............. percent
(2) For unacidulated mineral phosphatic materials and basic slag, bone, tankage and other organic phosphatic materials, the total available phosphate or degree of fineness may also be guaranteed.
(3) Guarantees for other plant nutrients may be permitted or required by rule of the commissioner and shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the commissioner. When any plant nutrients or other substances or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and rules prescribed by the commissioner.
(n) "Horticultural growing medium" means any substance or mixture of substances promoted as or intended to function as a commercial or consumer growing medium for the managed growth of horticultural crops in containers.
(o) "Investigational allowance" means an allowance for variations inherent in the collection, preparation and analysis of an official sample of regulated product.
(p) "Label" means the display of all written, printed or graphic matter upon the immediate container or statement accompanying a regulated product.
(q) "Labeling" means all written, printed or graphic matter, upon or accompanying any regulated product, or advertisements, brochures, posters or electronic announcements used in promoting the sale of regulated products.
(r) "Local legislation" means, but not limited to, any ordinance, motion, resolution, amendment, regulation or rule adopted by a political subdivision.
(s) "Manufacture" means to produce, compound, mix, blend or in any way alter the chemical or physical characteristics of a regulated product.
(t) "Manufacturer" means any person who manufactures a regulated product.
(u) "Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials.
(v) "Natural organic fertilizer" means materials derived from either plant or animal products containing one or more elements other than carbon, hydrogen and oxygen which are essential for plant growth. These materials may be subjected to biological degradation processes under normal conditions of aging, rainfall, sun-curing, air drying, composting, rotting, enzymatic or anaerobic/aerobic bacterial action or any combination of these. These materials may not be mixed with synthetic materials or changed in any physical or chemical manner from their initial state except by manipulations such as drying, cooking, chopping, grinding, shredding, hydrolysis or pelleting.
(w) "Official sample" means any sample of regulated product collected by the commissioner or his or her agent and designated as "official" by the commissioner.
(x) "Percent" or "percentage" means the percentage by weight.
(y) "Person" means an individual, partnership, association, firm or corporation.
(z) "Political subdivision" means any local government entity which includes, but is not limited to, any city, county or municipal corporation and any other body corporate and politic that is responsible for government activities in a geographical area smaller than that of the state.
(aa) "Primary nutrients" means nitrogen (N), available phosphate (P205) and soluble potash (K20).
(bb) "Registrant" means the person who registers regulated products under the provisions of this article.
(cc) "Regulated product" means any product governed by this article, including any fertilizer, specialty fertilizer, soil amendment and horticultural growing medium.
(dd) "Soil amendment" means any substance or mixture of substances, imported, manufactured, prepared or sold for manurial, soil enriching or soil corrective purposes, or intended to be used for promoting or stimulating the growth of plants, increasing the productivity of plants, improving the quality of crops or producing any chemical or physical change in the soil. The following are exempt from the definition of "soil amendment": Fertilizer, unmanipulated animal manures, horticultural growing medium, agricultural liming materials, unmixed mulch and unmixed peat.
(ee) "Specialty fertilizer" means a fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, house plants, golf courses, municipal parks, cemeteries, greenhouses and nurseries.
(ff) "Synthetic" means any substance generated from another material or materials by means of a chemical reaction.
(gg) "Ton" means a net weight of two thousand pounds avoirdupois.
(hh) "Unmanipulated manure" means substances composed of the excreta of domestic animals, or domestic fowls, which has not been processed or conditioned in any manner, including, but not limited to, processing or conditioning by drying, grinding, pelleting, shredding, addition of plant food, mixing artificially with any material or materials, other than those which have been used for bedding, sanitary or feeding purposes for animals or fowls or by any other means.
(b) Each brand or grade of regulated product shall be registered before being distributed in this state. The application for registration shall be submitted to the commissioner on forms furnished or approved by the commissioner, and shall be accompanied by a fee established by legislative rule. Upon approval by the commissioner a copy of the registration shall be furnished to the applicant. All registrations expire on the thirtieth day of June of the following year.
The application for fertilizer, soil amendment or horticultural growing medium shall include the following information:
(1) The net weight;
(2) The brand and, in the case of fertilizer when primary nutrients are claimed, the grade;
(3) The guaranteed analysis, or other information related to ingredients, guaranteed analysis of ingredients, percentages of ingredients, source of ingredients, physical components, physical properties or nutrient analysis as the commissioner may require;
(4) The purpose of the product;
(5) Directions for application; and
(6) The name and address of the registrant.
(c) A distributor is not required to register any regulated product which is already registered under this article by another person, providing the label does not differ in any respect.
(d) A distributor is not required to register each grade of regulated product formulated according to specifications which are furnished by a consumer prior to mixing, but is required to register his or her firm in a manner and at a fee established by legislative rule, and to label the regulated product as provided in subsection (c), section three of this article.
(e) Any person applying for registration of a fertilizer or specialty fertilizer, soil amendment or horticultural growing medium shall include with the application a label and any advertising literature.
(f) The commissioner may require proof of any claims made for any regulated product. If no claims are made, he or she may require proof of the usefulness and value of the regulated product. For evidence of proof the commissioner may rely on experimental data, evaluations or advice supplied from such sources as the director of the agricultural experiment station. The experimental design shall be related to state conditions for which the product is intended. The commissioner may accept or reject other sources of proof as additional evidence in evaluating regulated products.
(g) If the commissioner identifies any unregistered regulated product in commerce or any regulated product from any nonregistered manufacturer or distributor during the registration year, the commissioner shall give the grantor a grace period of fifteen working days from issuance of notification within which to register the regulated product or distributor. Any person required to register regulated products or as a distributor, who fails to register within the grace period shall pay to the commissioner a penalty fee as established by legislative rule in addition to the registration fee. The commissioner may issue an embargo order on any regulated product until the registration is issued.
(h) Exemptions for horticultural growing medium:
(1) Distribution of horticultural growing media planted with live plant material is exempt from the labeling and registration requirements of this article.
(2) Distribution of custom media is exempt from the registration requirements of this article, if it is prepared for a single end user.
(3) Distribution of horticultural growing media containing plant nutrients of three percent or less are exempt from the requirements of this article.
(b) In case of bulk shipments, the same information required on a label, in written or printed form, shall accompany delivery and be supplied to the purchaser at time of delivery.
(c) A regulated product formulated according to specifications which are furnished by a consumer prior to mixing shall be labeled to show the net weight, guaranteed analysis of each ingredient, guaranteed analysis of the finished product and the name and address of the distributor.
On individual packages of fertilizer containing ten pounds or less, there shall be paid in lieu of a per ton inspection fee, an inspection fee established by legislative rule for each brand and grade sold or distributed. Where a person sells fertilizer in packages over ten pounds the inspection fee for each brand or grade shall apply only to that portion sold in packages of ten pounds or less, and that portion sold in packages over ten pounds shall be subject to the same per ton inspection fee provided by rule.
(b) Every person who distributes a fertilizer in this state shall:
File with the commissioner on forms furnished or approved by the commissioner a quarterly statement for the periods ending on the thirtieth day of September, the thirty-first day of December, the thirty-first day of March and the thirtieth day of June, setting forth the number of net tons of each fertilizer distributed in this state during such quarter. The report shall be due on or before the thirtieth day of the month following the close of each quarter and upon such statement shall pay the inspection fee at the rate stated in subsection (a) of this section.
If the tonnage report is not filed and the payment of inspection fee is not made within thirty days after the end of the quarter, a collection fee established by legislative rule shall be assessed against the registrant, and the amount of fees due shall constitute a debt and become the basis of a judgment against the registrant.
(c) When more than one person is involved in the distribution of a fertilizer, the last person who has the fertilizer registered or distributes to a nonregistrant (dealer or consumer) is responsible for reporting the tonnage and paying the inspection fee, unless the report and payment is made by a prior distributor of a fertilizer.
(b) The methods of sampling and analysis to determine plant food deficiencies in fertilizer or deficiencies in other regulated products shall be those established by the Association of American Plant Food Control Officials and AOAC International or other methods approved by the commissioner by legislative rule.
(c) The commissioner, in determining for administrative purposes whether any fertilizer is deficient in plant food, or whether any other regulated product in compliance with this article shall be guided solely by the official sample as defined in subsection(v), section one of this article, and obtained and analyzed as provided for in subsection (b) of this section.
(d) The results of official analysis of regulated products and portions of official samples, shall be distributed by the commissioner as provided by legislative rule. The results of official analysis of fertilizers and portions of official samples shall be distributed by the commissioner as provided by legislative rule. Official samples establishing a penalty for nutrient deficiency shall be retained for a minimum of thirty days from issuance of a deficiency report.
(b) Penalty for soil amendment. -- If the analysis shows that any soil amendment falls short of the guaranteed analysis in any one soil amending ingredient or in total soil amending ingredients, a penalty shall be assessed in favor of the commissioner. A penalty of three times the value of the total soil amending ingredient deficiency shall be assessed when the total deficiency is more than two percent under the calculated total soil amending ingredient guarantee.
(c) Penalty for other deficiencies. -- Deficiencies beyond the investigational allowances established by rule in any other constituent which the registrant is required to or may guarantee shall be evaluated and penalties prescribed by the commissioner.
(d) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction praying for judgment as to the justification of such penalties.
(e) All penalties assessed under this section shall be paid to the consumer of the lot of regulated product represented by the sample analyzed. Within three months after the date of notice from the commissioner to the registrant, the penalty shall be collected and promptly forwarded to the commissioner. If the consumers cannot be found, the amount of penalty shall be paid to the commissioner and deposited in the department of agriculture's fees account.
(f) A deficiency in an official sample of mixed fertilizer resulting from nonuniformity is not distinguishable from a deficiency due to actual plant nutrient shortage and is properly subject to official action.
(g) If, upon evidence satisfactory to the commissioner, a person is found to have: (1) Altered the content of any regulated product shipped to him by a registrant; or (2) mixed or commingled regulated product from two or more suppliers so that the result of either alteration changes the analysis of the regulated product as originally guaranteed, then the person who has altered, mixed or commingled shall become responsible for obtaining a registration, as the case may be; shall be held liable for all assessments; and shall be subject to other provisions of this article, including, by way of example, but not by way of limitation, seizure, condemnation and embargo.
(a) If its label is false or misleading in any particular;
(b) If it is distributed under the name of another regulated product;
(c) If it is not labeled as required in section three of this article and in accordance with rules prescribed under this article; or
(d) If it purports to be, to contain or is represented as a fertilizer, plant nutrient, soil amendment, or horticultural growing medium, but is not according to the definition prescribed by rule of the commissioner. In the adopting of legislative rules defining these terms the commissioner shall give regard to commonly accepted definitions and official terms such as those issued by the Association of American Plant Food Control Officials (AAPFCO).
(b) "Bulk fertilizer" means fertilizer delivered to the purchaser either in solid or liquid state in a nonpackage form to which a label cannot be attached.
(c) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
(d) "Compost" means a biologically stable material derived from the composting process.
(e) "Custom media" means a horticultural growing medium prepared to exact specifications of the person who will be planting in the medium.
(f) "Department" means the department of agriculture of the state of West Virginia.
(g) "Distribute" means to import, consign, to offer for sale, sell, barter, warehouse or otherwise supply a regulated product in this state.
(h) "Distributor" means any person who distributes a regulated product in this state.
(i) "Embargo" means a written stop sale order issued by the commissioner of agriculture prohibiting the sale, use of or transportation of any regulated product in any manner until the embargo is released by the commissioner.
(j) "Fertilizer" means any substance containing one or more recognized plant nutrients, including natural organic fertilizer, which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes and gypsum and other products exempted by rule of the commissioner.
(k) "Fertilizer material" means a fertilizer which either:
(1) Contains important quantities of no more than one of the primary plant nutrients: (nitrogen (N), available phosphate (P205) and soluble potash (K20); or
(2) Has eighty-five percent or more of its plant nutrient content present in the form of a single chemical compound; or
(3) Is derived from a plant or animal residue or by-product or a natural material deposit which has been processed in such a way that its content of primary plant nutrients has not been materially changed except by purification and concentration.
(l) "Grade" means the percentage of total nitrogen, available phosphate and soluble potash stated in whole numbers in the same terms, order and percentages as in the guaranteed analysis: Provided, That specialty fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphate and soluble potash: Provided, however, That fertilizer materials, bone meal, manures and similar raw materials may be guaranteed in fractional units.
(m) "Guaranteed analysis" means the minimum percentage of plant nutrients claimed in the following order and form:
(1) Total nitrogen (N) ................ percent
Available phosphate (P205) ........ percent
Soluble potash (K201).............. percent
(2) For unacidulated mineral phosphatic materials and basic slag, bone, tankage and other organic phosphatic materials, the total available phosphate or degree of fineness may also be guaranteed.
(3) Guarantees for other plant nutrients may be permitted or required by rule of the commissioner and shall be expressed in the form of the element. The sources of such other nutrients (oxides, salt, chelates, etc.) may be required to be stated on the application for registration and may be included as a parenthetical statement on the label. Other beneficial substances or compounds, determinable by laboratory methods, also may be guaranteed by permission of the commissioner. When any plant nutrients or other substances or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and rules prescribed by the commissioner.
(n) "Horticultural growing medium" means any substance or mixture of substances promoted as or intended to function as a commercial or consumer growing medium for the managed growth of horticultural crops in containers.
(o) "Investigational allowance" means an allowance for variations inherent in the collection, preparation and analysis of an official sample of regulated product.
(p) "Label" means the display of all written, printed or graphic matter upon the immediate container or statement accompanying a regulated product.
(q) "Labeling" means all written, printed or graphic matter, upon or accompanying any regulated product, or advertisements, brochures, posters or electronic announcements used in promoting the sale of regulated products.
(r) "Local legislation" means, but not limited to, any ordinance, motion, resolution, amendment, regulation or rule adopted by a political subdivision.
(s) "Manufacture" means to produce, compound, mix, blend or in any way alter the chemical or physical characteristics of a regulated product.
(t) "Manufacturer" means any person who manufactures a regulated product.
(u) "Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials.
(v) "Natural organic fertilizer" means materials derived from either plant or animal products containing one or more elements other than carbon, hydrogen and oxygen which are essential for plant growth. These materials may be subjected to biological degradation processes under normal conditions of aging, rainfall, sun-curing, air drying, composting, rotting, enzymatic or anaerobic/aerobic bacterial action or any combination of these. These materials may not be mixed with synthetic materials or changed in any physical or chemical manner from their initial state except by manipulations such as drying, cooking, chopping, grinding, shredding, hydrolysis or pelleting.
(w) "Official sample" means any sample of regulated product collected by the commissioner or his or her agent and designated as "official" by the commissioner.
(x) "Percent" or "percentage" means the percentage by weight.
(y) "Person" means an individual, partnership, association, firm or corporation.
(z) "Political subdivision" means any local government entity which includes, but is not limited to, any city, county or municipal corporation and any other body corporate and politic that is responsible for government activities in a geographical area smaller than that of the state.
(aa) "Primary nutrients" means nitrogen (N), available phosphate (P205) and soluble potash (K20).
(bb) "Registrant" means the person who registers regulated products under the provisions of this article.
(cc) "Regulated product" means any product governed by this article, including any fertilizer, specialty fertilizer, soil amendment and horticultural growing medium.
(dd) "Soil amendment" means any substance or mixture of substances, imported, manufactured, prepared or sold for manurial, soil enriching or soil corrective purposes, or intended to be used for promoting or stimulating the growth of plants, increasing the productivity of plants, improving the quality of crops or producing any chemical or physical change in the soil. The following are exempt from the definition of "soil amendment": Fertilizer, unmanipulated animal manures, horticultural growing medium, agricultural liming materials, unmixed mulch and unmixed peat.
(ee) "Specialty fertilizer" means a fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, house plants, golf courses, municipal parks, cemeteries, greenhouses and nurseries.
(ff) "Synthetic" means any substance generated from another material or materials by means of a chemical reaction.
(gg) "Ton" means a net weight of two thousand pounds avoirdupois.
(hh) "Unmanipulated manure" means substances composed of the excreta of domestic animals, or domestic fowls, which has not been processed or conditioned in any manner, including, but not limited to, processing or conditioning by drying, grinding, pelleting, shredding, addition of plant food, mixing artificially with any material or materials, other than those which have been used for bedding, sanitary or feeding purposes for animals or fowls or by any other means.
(a) If it contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil or water when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use, which may be necessary to protect plant life, animals, humans, aquatic life, soil or water are not shown upon the label;
(b) If its composition falls below or differs from that which it is purported to possess by its labeling; or
(c) If it contains unwanted crop seed, weed seed or noxious weed seed, as defined in article 16, chapter 19 of the West Virginia Seed Law.
(d) If adulteration levels of one or more metals in regulated products are in excess of those officially adopted by the Association of American Plant Food Control Officials.
Local legislation in violation of this section is void and unenforceable.
(b) Any person convicted of violating any provisions of this article or rules issued thereunder is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than two hundred dollars for the first offense and not less than two hundred dollars nor more than five hundred dollars for each subsequent offense.
(c) Nothing in this article may be construed as requiring the commissioner or his or her agent to report for prosecution or for the institution of seizure proceedings as a result of minor violations of the article when he or she believes that the public interest will be best served by a suitable notice of warning in writing.
(d) It is the duty of each prosecuting attorney to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.
(e) The commissioner is hereby authorized to apply for and the court to grant a temporary or permanent injunction, to be issued without bond, restraining any person from violating or continuing to violate any provision of this article or rule promulgated thereunder notwithstanding the existence of other remedies at law.
(a) "Agricultural liming material" means a product that contains calcium and magnesium carbonate, hydroxide or oxide which are capable of neutralizing soil acidity.
(b) "Brand" means the term, designation, trademark, product name or other specific designation under which individual agricultural liming materials are offered for sale.
(c) "Bulk" means materials in nonpackaged form.
(d) "Burnt lime" means a calcined material comprised chiefly of calcium oxide in natural association with lesser amounts of magnesium, and which is capable of slaking with water.
(e) "Calcium carbonate equivalent" (CCE) is an expression of the acid-neutralizing capacity of an agricultural liming material relative to that of a pure calcium carbonate, expressed as a percentage.
(f) "Commissioner" means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent. (g) "Distributor" means any person who sells or offers for sale agricultural liming products that are registered pursuant to this article, but does not include persons who retail registered products in nonbulk form to the ultimate consumer.
(h) "Dolomite" means an agricultural liming material composed chiefly of carbonates of magnesium and calcium in substantially equimolar (1-1.19) proportions.
(i) "Embargo" means an order prohibiting the sale, processing, mixing, transporting and use of any product.
(j) "Fineness" means the percentage by weight of the material which will pass U.S. standard sieves of specific sizes.
(k) "Ground shells" means a material obtained by grinding the shells of mollusks.
(l) "High calcic liming material" means an agricultural liming material containing at least twenty-five percent calcium and at least ninety-one percent of the total calcium and magnesium is calcium.
(m) "High magnesic liming material" means an agricultural liming material containing at least six percent magnesium.
(n) "Hydrated lime" means a material made from burnt lime.
(o) "Industrial coproduct" means any industrial waste or by-product containing calcium or calcium and magnesium in forms that will neutralize soil acidity which may be designated by prefixing the name of the industry or process by which it is produced, including, but not limited to: Gas-house lime, tanners' lime, acetylene lime-waste, lime-kin ashes and calcium silicate.
(p) "Label" means any written or printed matter on or attached to the package or on the delivery ticket which accompanies bulk shipments.
(q) "Limestone" means a material consisting essentially of calcium carbonate or a combination of calcium carbonate with magnesium carbonate capable of neutralizing soil acidity.
(r) "Marl" means a granular or loosely consolidated earthy material composed largely of shell fragments and calcium carbonate precipitated in ponds.
(s) "Percent or percentage" means a part of a whole expressed in hundredths by weight.
(t) "Person" means any individual, partnership, association, fiduciary, firm, corporation or any organized group of persons whether incorporated or not.
(u) "Registrant" is a person who registers agricultural liming materials by product and is responsible for the guarantee of the product.
(v) "Type" means the designation given to the product from its source material.
(w) "Ton" means a weight of two thousand pounds avoirdupois.
(x) "Weight" means the weight of undried liming material as offered for sale.
(b) Application for registration shall be made to the commissioner on forms approved or supplied by the commissioner. Each separately identified agricultural liming material shall be registered before being distributed or used in the state.
(c) The commissioner shall collect a registration fee for each brand of the agricultural liming material registered and a registration fee from all distributors of agricultural liming materials. The commissioner shall set the registration fees by legislative rule.
(d) All registrations shall expire at the end of the calendar year of issue unless sooner revoked by the commissioner as provided in section six of this article.
(e) Valid registrants of agricultural liming materials are exempt from obtaining a distributors permit, unless distributing another registrants product.
(1) The name and principal business address of the manufacturer or distributor.
(2) The brand name of the agricultural liming material.
(3) The identification of the product as to the type of liming material.
(4) The net weight of the agricultural liming material.
(5) The minimum percentage of calcium oxide and magnesium oxide or calcium carbonate and magnesium carbonate.
(6) The calcium carbonate equivalent as determined by methods prescribed by the Association of Official Analytical Chemists International (AOAC).
(7) The minimum percent by weight passing through United States standard sieves.
(8) The fineness classification of the material.
(b) A copy of the statement provided for in subsection (a) of this section shall be posted for each brand sold in bulk at each site where purchase orders are accepted or from which deliveries for such liming materials are made.
(c) No information or statement may appear on any package, label, delivery invoice or advertisement which gives a false or misleading impression to the purchaser as to the quality, analysis, type or composition of the liming material.
(d) When agricultural liming material has been adulterated subsequent to packaging, labeling or loading thereof and before delivery has been made to the consumer, conspicuous, plainly worded notice to that effect shall be affixed by the vendor to the package or delivery invoice to identify the kind and degree of adulteration therein: Provided, That agricultural liming material may not be sold or offered for sale in the state which contains toxic materials in quantities injurious to plants or animals when applied according to directions.
(b) Within thirty days following the thirtieth day of June and the thirty-first day of December of each year, each registrant and distributor shall submit on a form furnished by the commissioner a summary of tons of each agricultural liming material sold or distributed by each registrant and distributor in the state during the previous six months' period. The report of tonnage shall be accompanied by payment of an inspection fee as established by legislative rule. If the tonnage, or portion thereof, has been paid by another person, documentation by invoice must accompany such report. The semiannual payment and late fee shall be established by legislative rule.
(c) The commissioner shall publish annually on the Department of Agriculture's website a composite report showing the net tons of agricultural liming material sold in this state during the preceding period. This report may not divulge information that can be related to the business of any individual registrant.
(b) The methods of analysis and sampling shall be those approved by the commissioner and guided by the AOAC procedures.
(c) The results of official analyses of agricultural liming materials and portions of official samples shall be distributed by the commissioner as he or she considers necessary to carry out the enforcement of this article.
(d) The commissioner shall, on request, provide the registrant with a portion of the official sample: Provided, That the request is made within thirty days of the assessment of a violation.
(e) In determining whether any agricultural liming material is deficient in guarantee, the commissioner shall be guided solely by the official sample.
(b) The commissioner may issue an embargo order to the owner or custodian of any lot of agricultural liming material when he or she finds said agricultural liming material is being offered or exposed for sale in violation of any of the provisions of this article or related rule. The order shall remain in effect until it has been rescinded in writing by the commissioner: Provided, That the commissioner may not rescind any embargo order until the requirements of this article have been complied with and all related costs and expenses have been paid.
(c) Any agricultural liming material found to be in violation of the provisions of this article is subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the county in which such agricultural liming material is located. If the court orders the condemnation of such material it shall be disposed of in a manner consistent with the quality of the agricultural liming material and the laws of the state. The court may not order the disposition of agricultural liming material without first giving the owner or custodian an opportunity to apply to the court for release of the agricultural liming material or for permission to process or relabel the agricultural liming material to bring it in compliance with this article.
(b) A registrant shall pay the deficiency assessment to the ultimate consumer of the product and deliver receipts for the payment to the commissioner. If the ultimate consumer is not known, the penalty assessed shall be paid to the commissioner and deposited as set forth in section nine of this article.
(c) If a deficiency assessment has not been paid within sixty days of the notice of the assessment, then a late payment penalty, as established by legislative rule, will be added for each one hundred eighty days that the assessment remains unpaid.
(1) The minimum acceptable fineness classifications;
(2) The minimum acceptable calcium carbonate equivalents for agricultural liming materials; and
(3) The establishment of fees required by this article.
When used in this article:
(a) "Commissioner" means the commissioner of agriculture of the state of West Virginia or his duly authorized representatives;
(b) The term "person" shall include any individual, partnership, corporation, company, society or association;
(c) The term "agricultural seeds" shall include the seeds of grass, forage, cereal, tobacco and fiber crops and any other kinds of seeds commonly recognized within this state as agricultural or field seeds and mixtures of such seeds. Forest seeds shall include all deciduous and coniferous trees and shrubs and ornamentals;
(d) The term "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 seeds in this state;
(e) The term "seed potato" shall refer to the Irish potato (Solanum tuberosum);
(f) The term "weed seeds" shall include the seeds of all plants generally recognized as weeds within this state;
(g) Noxious weed seeds shall be divided into two classes, "prohibited weed seeds" and "noxious weed seeds," as defined in (1) and (2) of this subdivision: Provided, That the commissioner of agriculture may, through promulgation of regulations, add to or subtract from the list of seeds included under either definition whenever he finds that such additions or subtractions are within the respective definitions;
(1) "Prohibited weed seeds" are the seeds of perennial weeds which reproduce by seed, or spread by underground roots or stems, and which when established are highly destructive and difficult to control in this state by ordinary cultural practice;
"Prohibited weed seeds" in this state are the seeds of dodder (Cuscuta spp.), quack grass (Agropyrons repens), Johnson grass (Sorghum halapense), Canada thistle (Carduus arvensis), perennial sow thistle (Sonchus arvensis), serrated tussock (Nassella trichotoma);
(2) "Noxious weed seeds" are the seeds of such weeds as are very objectionable in fields, lawns or gardens of this state, but can be controlled by good cultural practice. "Noxious weed seeds" in this state are the seeds of wild onion (Allium vineale), hawk weed (Hieracum spp.), buckhorn (Plantago lanceolata), English charlock or wild mustard (Brassica arvensis), corn cockle (Agrostemma gilthago), oxeye daisy (Chrysanthemum leucanthemum), Indian mustard (Brassica juncea), star thistle (Centurea solstitialis), wild carrot (Daucus carota), horse nettle (Solanum carolinas), field pepper grass (Lepidium compestre), wild morning glory (Ipomea purpurea), bindweed (Convolvulus arvensis);
(h) The term "labeling" includes all labels and other written, printed or graphic representation, in any form whatsoever, accompanying and pertaining to any seed whether in bulk or in containers, and includes invoices;
(i) The term "advertisement" means all representation, other than those on the label, disseminated in any manner or by any means, relative to seed within the scope of this article.
(a) For agricultural and forest seeds:
(1) Commonly accepted name of
(a) Kind and variety of each agricultural or forest seed component in excess of five percent of the whole, and the percentage by weight of each in order of its predominance. Where more than one component is required to be named, the word "mixture" or the word "mixed" shall be shown conspicuously on the label.
(b) If the variety is unknown, that fact shall be stated for each agricultural or forest seed component in excess of five percent of the whole.
(2) Lot number or other lot identification.
(3) Origin, if known, of alfalfa, red clover, forest seeds and field corn (except hybrid corn). If the origin is unknown that fact shall be stated.
(4) Percentage by weight of all weed seeds.
(5) 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.
(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.
All determinations of noxious weed seeds shall be subject to tolerances and methods of determination prescribed in the rules and regulations under this article.
(6) Percentages 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 or forest seed: (a) Percentage of germination exclusive of hard seed; (b) percentage of hard seed, if present; (c) the calendar month and year the test was completed to determine each percentage.
Following (a) and (b) the "total germination and hard seeds" may be stated as such, if desired.
(9) Name and address of the person who labeled said seed, or who sells, offers or exposes said seed for sale within this state.
(10) For agricultural or forest seeds which germinate less than the standard last established by the commissioner under this article, the label shall show in addition to the previous requirements of this section, the words "germination below standard" in not less than eight point type.
(b) For vegetable seeds:
(1) Name of kind and variety;
(2) For seeds which germinate less than the standard last established by the commissioner under this article: (a) Percentage of germination, exclusive of hard seed; (b) percentage of hard seed, if present; (c) the calendar month and year the test was completed to determine such percentages; (d) the words "below standard" in not less than eight point type; and
(3) Name and address of the person who labeled said seed, or who sells, offers or exposes said seed for sale within the state.
(c) For seed potatoes:
Only "certified" seed potatoes which grade from the standpoint of physical defects better than the minimumrequirements of U.S. No. 1 may be offered for sale as seed. There shall be attached to each bag or container a tag showing by whom certified, the standard or conditions under which said certification is made, and the name of the official state or governmental agency making the inspection upon which the certification is made.
(b) Application for a certificate of registration shall be made in writing to the commissioner on forms provided by the commissioner. Each application shall contain:
(1) The name and business address of the person applying for the certificate;
(2) A list of the seeds to be offered for sale;
(3) A consent for the commissioner to inspect and audit all sales invoices and records; and
(4) Any other necessary information prescribed by the commissioner.
(c) The commissioner shall require an annual fee of one dollar for each certificate of registration so issued.
(d) The commissioner shall cancel any certificate of registration upon receiving satisfactory evidence that any provisions of this article or any rules and regulations issued by the commissioner under the auspices of this article have been violated.
(e) Certificates of registration issued by the commissioner shall expire at the end of the calendar year of issue next after date of issue unless sooner revoked as herein provided.
(f) Any person who sells, offers to sell or exposes for sale or distribution any such seed shall report to the commissioner, on forms prescribed by the commissioner, on or before the fifteenth day of April, July, October and January of each year the net pounds of seeds sold by kind or variety and shall pay a state seed fee on such poundage as provided in the following schedule:
(1) For forest, tobacco, alfalfa, clovers and all grass or mixtures of any of these, and all vegetable seeds, except those packaged in units of eight ounces or less and sold from display units, ten cents for each one hundred pounds.
(2) For all other agricultural seeds, five cents for each one hundred pounds.
(3) For seed potatoes, two cents for each one hundred pounds.
(4) For vegetable seeds packaged in containers of eight ounces or less and sold from display units, one dollar per display unit which shall be paid through the purchase of seed stamps from the commissioner with such seed stamps being attached in a conspicuous place to each and every display unit.
(g) A dealer shall not be required to register or pay the seed fee on any agricultural, forest, or vegetable seed, or seed potato which he can prove was currently registered and with the fees paid by a person entitled to do so.
(h) All moneys collected in the enforcement of this article shall be deposited in a special revenue fund with the state treasurer, and shall be expended on order of the commissioner.
(1) Unless the test to determine the percentage of germination required by section two of this article shall have been completed within the test period prescribed in regulations issued by the commissioner;
(2) Not labeled in accordance with the provisions of this article or which has false or misleading labeling;
(3) Which has been the subject of false or misleading advertisement;
(4) Containing prohibited weed seeds, subject to tolerances and methods of determination prescribed in the rules and regulations issued under the auspices of this article;
(5) Containing more than two percent by weight of weed seed.
(b) It shall be unlawful for any person within this state:
(1) To detach, alter, deface or destroy any label provided for in this article or the rules and regulations issued thereunder, or to alter or substitute seed in a manner that may defeat the purposes of this article;
(2) To disseminate any false or misleading advertisement concerning agriculture, forest, vegetable or potato seed in any manner or by any means;
(3) To hinder or obstruct in any way any authorized person in the performance of his duties under this article;
(4) To fail to comply with a "stop sale" order.
(b) No political subdivision may adopt or continue in effect any local laws, ordinances or regulations relating to the regulating, registration, packaging, labeling, sale, storage, distribution, transportation or any other use of seeds.
(c) Local laws, ordinances or regulations in violation of this section are void and unenforceable.
(1) To grain or potatoes not intended for seeding purposes;
(2) To seed in storage in or consigned to a seed cleaning or processing establishment for cleaning or processing: Provided, That any labeling or other representation which may be made with respect to the uncleaned or unprocessed seed shall be subject to this article;
(b) No person shall be subject to the penalties of this article for having sold or offered or exposed for sale in this state any agricultural, vegetable or potato seeds which were incorrectly labeled or represented as to kind, variety, type, or origin, which seeds cannot be identified by examination thereof, unless he has failed to obtain an invoice or grower's declaration giving kind, or kind and variety, or kind and type, and origin, if required, and to take such other precautions as may be necessary to insure the identity to be that stated.
(1) To establish germination standards for agricultural, forest and vegetable seeds;
(2) To sample, inspect, make analysis of, and test agricultural, forest, vegetable and potato seeds transported, sold or offered or exposed for sale within this state for seeding purposes, at such time and place and to such extent as he may deem necessary to determine whether such seeds are in compliance with the provisions of this article, and to notify promptly the person who transported, sold, offered or exposed the seed for sale, of any violation;
(3) To prescribe and adopt rules and regulations governing the methods of sampling, inspecting, analysis, tests and examination of agricultural, forest and vegetable seed, and the tolerances to be followed in the administration of this article, which shall be in general accord with officially prescribed practice in interstate commerce, and such other rules and regulations as may be necessary to secure the efficient enforcement of this article.
(b) Further for the purpose of carrying out the provisions of this article the commissioner, individually or through his authorized agents, is authorized:
(1) To enter upon any public or private premises during regular business hours in order to have access to seeds subject to this article and the rules and regulations thereunder;
(2) To issue and enforce a written or printed "stop sale" order to the owner or custodian of any lot of seed which the commissioner finds is in violation of any provisions of this article, which order shall prohibit further sale or movement of such seed until the commissioner has released the same;
(3) To establish and maintain or make provisions for seed testing facilities, to employ qualified persons, and to incur such expenses as may be necessary to comply with these provisions;
(4) To make or provide for making purity and germination tests of seeds for farmers and dealers on request; to prescribe rules and regulations governing such testing; and to fix and collect charges for the tests made. Such fees shall be deposited with the state treasurer in a special revenue fund and may be expended on order of the commissioner;
(5) To cooperate with the United States department of agriculture in seed law enforcement;
(6) To establish a certifying agency for seed grown in this state.
When the commissioner shall find that any person has violated any of the provisions of this article, he or his duly authorized agent or agents may institute proceedings in a court of competent jurisdiction: Provided, however, That no prosecution under this article shall be instituted without the defendant first having been given an opportunity to appear before the commissioner or his duly authorized agent to introduce evidence, either in person or by agent or attorney, at a hearing. If, after such hearing, or without such hearing in case the defendant or his agent or attorney fails or refuses to appear, the commissioner is of the opinion that the evidence warrants prosecution, he shall proceed according to law.
This article shall be known as the "West Virginia Pesticide Control Act of 1990".
The purpose of this article is to regulate and control pesticides in the public interest, by their registration, use and application. The Legislature finds that pesticides perform a vital function in modern society because they control insects, fungi, nematodes, rodents and other pests which ravage and destroy our food and fiber, which serve as vectors of disease, and which otherwise constitute a nuisance in the environment or the home; they control weeds which compete in the production of foods and fiber, disrupt the supply of energy, render highways unsafe and which otherwise are unwanted elements in our environment; and they regulate plant growth to enhance both the quality and quantity of our food and fiber and to facilitate its harvest. Pesticides, however, may be rendered ineffective, may cause injury to man or may cause unreasonable, adverse effects on the environment if not properly used. They may injure man or animals either by direct poisoning or by the gradual accumulation of pesticide residues in their tissues. Crops or other plants may be affected by their improper use. The misapplication, the drifting or washing of pesticides into streams or lakes may cause appreciable damage to aquatic life. A pesticide applied for the purpose of killing pests in a crop, which is not itself injured by the pesticide, may drift and injure other crops or nontarget organisms with which it comes in contact. Therefore, it is deemed necessary to provide for the control of pesticides.
Nothing in this article shall be construed as permitting municipalities or counties to enact laws or ordinances regarding pesticide control.
As used in this article:
(1) "Active ingredient" means:
(A) In the case of pesticides other than a plant regulator, defoliant or desiccant, an ingredient which will prevent, destroy, repel or mitigate insects, nematodes, fungi, rodents, weeds or other pests;
(B) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof;
(C) In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and
(D) In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues.
(2) "Agriculture commodity" means any plant, or part thereof, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters or other comparable persons) primarily for sale, consumption, propagation or other use by man or animals.
(3) "Animal" means all vertebrate and invertebrate species, including, but not limited to, man and other mammals, birds, fish and shell fish.
(4) "Adulterated" means when the strength or purity of any pesticide falls below or is in excess of the professed standard or quality as expressed on labeling under which it is sold, or if any substance has been substituted wholly or in part for the article, or if any valuable constituent of the article has been wholly or in part abstracted.
(5) "Antidote" means the most practical immediate treatment in case of poisoning and includes first-aid treatment.
(6) "Certified applicator" means any person who is certified under this article to use or supervise the use of any restricted use pesticides or general use pesticides for hire.
(7) "Certified public applicator" means a licensed applicator who applies "restricted use pesticides or general use pesticides for hire" as an employee of a state agency, municipal corporation or other governmental agency. This term does not include employees who work only under the direct supervision of a certified public applicator.
(8) "Commercial applicator" means a certified applicator (whether or not he or she is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as defined under the definition of "private applicator".
(9) "Commissioner" means the commissioner of agriculture of the state of West Virginia and his or her duly authorized representatives.
(10) "Defoliant" means any substance or mixture of substances intended for causing the leaves of foliage to drop from a plant, with or without causing abscission.
(11) "Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.
(12) "Device" means any instrument or contrivance (other than a firearm) intended for trapping, destroying, repelling or mitigating insects or rodents or destroying, repelling or mitigating fungi, nematodes or such other pests as may be designated by the commissioner, but not including treated wood products or equipment used for the application of pesticides when sold separately therefrom.
(13) "Direct supervision" means that unless otherwise prescribed by its labeling, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting under the verifiable instructions and control of a certified applicator who is available when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.
(14) "Environment" includes water, air, land and all plants and man and other animals living therein, and the interrelationships which exist among these.
(15) "Fumigant or fumigation" means any substance which, by itself or in combination with any other substance, emits or liberates a gas or gases, fumes or vapors, which gas or gases, fumes or vapors, when liberated and used, will destroy vermin, rodents, insects and other pests, and are usually lethal, poisonous, noxious or dangerous to human life.
(16) "Fungicide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungi or plant disease.
(17) "Fungus" means any nonchlorophyll-bearing thallophytes (that is, any nonchlorophyll-bearing plant of a lower order than mosses and liverworts), as, for example, rust, smut, mildew, mold, yeast, bacteria and virus, except those on or in living man or other animals and except those on or in processed food, beverages or pharmaceuticals.
(18) "General use pesticide" means any pesticide not designated as restricted use by the administrator, United States environmental protection agency or a state restricted use pesticide by the commissioner.
(19) "Herbicide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed.
(20) "Inert ingredient" means an ingredient which is not an active ingredient.
(21) "Ingredient statement" means a statement of the name of each active ingredient, together with the name of each and total percentage of the inert ingredients, if any, in the pesticide, and in case the pesticide contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, each calculated as elemental arsenic.
(22) "Insect" means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six-legged, either winged or wingless forms, as, for example, beetles, bugs, bees, flies, aphids and termites, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as, for example, spiders, mites, ticks, centipedes and wood lice.
(23) "Insecticide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever.
(24) "Label" means the written, printed or graphic matter on, or attached to, the pesticide or device, or the immediate container thereof, and the outside container or wrapper of the retail package, if any there be, of the pesticide or device.
(25) "Labeling" means all labels and other written, printed, graphic matter or advertising:
(A) Upon the pesticide or device or any of its containers or wrappers;
(B) Accompanying the pesticide or device at any time;
(C) To which reference is made on the label or in literature accompanying the pesticide or device, except when accurate, nonmisleading reference is made to current official publications of the United States departments of agriculture or interior, the United States public health service, state experiment stations, state agricultural colleges or other similar federal institutions or official agencies of this state or other states authorized by law to conduct research in the field of pesticides; and
(D) Conveyed in any public media such as newspapers, periodicals, radio or television, relative to the offering for sale of any pesticide or device.
(26) "Land" means all land and water areas, including airspace and all plants, animals, structures, buildings, contrivances and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.
(27) "Misbranded" means any pesticide or device if its labeling bears any statement, design or graphic representationrelative thereto or to its ingredients which is false or misleading in any particular; or
(A) If it is an imitation of or is offered for sale under the name of another pesticide;
(B) If its labeling bears any reference to registration under this article;
(C) If the labeling accompanying it does not contain directions for use which are necessary and, if complied with, adequate for the protection of the public;
(D) If the label does not contain a warning or caution statement which may be necessary and, if complied with, adequate to prevent injury to living man and other vertebrate animals, vegetation and useful invertebrate animals;
(E) If the label does not bear an ingredient statement on that part of the immediate container of the retail package which is presented or displayed under customary conditions of purchase, and on the outside container or wrapper, if any, through which the ingredient statement on the immediate container cannot be clearly read;
(F) If any word, statement or other information required by or under authority of this article to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statement, designs or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
(G) If in the case of an insecticide, nematocide, fungicide or herbicide when used as directed or in accordance with commonly recognized practice it is injurious to living man or other vertebrate animals, except weeds to which it is applied, or to the person applying such pesticide; or
(H) If in the case of a plant regulator, defoliant or desiccant when used as directed it is injurious to living man or other vertebrate animals, or vegetation to which it is applied, or to the person applying such pesticide: Provided, That physical or physiological effects on plants or parts thereof are not deemed to be injury, when this is the purpose for which the plant regulator, defoliant or desiccant was applied, in accordance with the label claims and recommendations.
(28) "Name" as applied to the active ingredient shall be designated by an accepted chemical name and in addition the accepted common name, or by a common name promulgated by the commissioner. It is recommended that the commissioner adopt the nomenclature approved by the interdepartmental committee on pest control or the American standards committee or any national committee similarly functioning.
(29) "Nematode" means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform or sac like bodies covered with cuticle and inhabiting soil, water, plants or plant parts; may also be called nemas or eelworms.
(30) "Nematocide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating nematodes.
(31) "Permit" means a written certificate, issued by the commissioner authorizing the use of certain restricted use pesticides or state restricted use pesticides.
(32) "Person" means any individual, partnership, association, fiduciary, corporation or any organized group of persons whether incorporated or not.
(33) "Pest" means any insect, rodent, nematode, fungus, weed or any other form of terrestrial or aquatic plant or animal life or virus, bacteria or other microorganism (except viruses, bacteria or other microorganisms on or in living man or other living animals) which is declared to be a pest by the commissioner.
(34) "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any undesirable insects, rodents, nematodes, fungi, weeds and other forms of plant or animal life or viruses, except viruses on or inliving man or other animals or which the commissioner may declare to be a pest and any substance or mixture of substances intended for use as a plant regulator, defoliant, desiccant or herbicide.
(35) "Pesticide application business" means any person who owns or manages a pesticide application business which is engaged in the business of applying pesticides upon the lands of another (whether such person applies restricted use pesticides or other pesticides) and means each place for which the business of applying pesticides for hire is carried on, including a branch office, franchise location, suboffice or worker location of a larger business entity.
(36) "Pesticide business" means any person engaged in the business of distributing, applying or recommending the use of a product, storing, selling or offering for sale pesticides for distribution to the user. The term does not include wood treaters not for hire or businesses exempted by rule adopted pursuant to this article.
(37) "Pesticide dealer" means any person who sells, wholesales, distributes, offers or exposes for sale, exchanges, barters or gives away within or into this state any restricted use pesticide.
(38) "Plant regulator" means any substance or mixture of substances, intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation or for otherwise altering the behavior of ornamental or crop plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments.
(39) "Private applicator" means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or her or his or her employer or if applied without compensation other than trading of personal services between producers of agricultural commodities on property of another person.
(40) "Registered technician" means an individual who renders services similar to those of a certified commercial applicator, but who has not completed all the training or time in service requirements to be eligible for examination as a commercial applicator and is limited to application of general use pesticides. However, if he or she applies restricted use pesticides, he or she may do so only under the direct supervision of a certified commercial applicator.
(41) "Registrant" means the person registering any pesticide pursuant to the provisions of this article.
(42) "Repellent" means a substance, not a fumigant, under whatever name known, which may be toxic to insects and related pests, but is generally employed because of its capacity for preventing the entrance or attack of pests.
(43) "Restricted use pesticide" means any pesticide classified for restricted use by the administrator, United States environmental protection agency or any pesticide declared to be state restricted by the commissioner.
(44) "Rodenticide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any undesirable rodents or any other vertebrate animals or others which the commissioner may declare to be a pest.
(45) "Serious violation" means a violation of this article or rule promulgated by the commissioner where there is a substantial probability that death or serious physical harm to persons, serious harm to property or serious harm to the environment could have resulted from the violation unless the person or licensee did not or could not with the exercise of reasonable diligence know of the violation.
(46) "State restricted use pesticide" means any pesticide that the commissioner determines subsequent to a hearing, when used as directed or in accordance with a widespread and commonly recognized practice, requires additional restrictions for that use to prevent unreasonable adverse effects on the environment including man,land, beneficial insects, animals, crops and wildlife, other than pests.
(47) "Unreasonable adverse effects on the environment" means any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide.
(48) "Weed" means any plant which grows where not wanted.
(49) "Wildlife" means all living things that are neither human, domesticated nor, as defined in this article, pests, including, but not limited to, mammals, birds and aquatic life.
The commissioner of agriculture has the power and duty to carry out the provisions of this article and is authorized to:
(a) Delegate to employees of the department of agriculture the authority vested in the commissioner by virtue of the provisions of this article;
(b) Cooperate, receive grants in aid and enter into agreements with any other agency of the state, the United States department of agriculture, United States environmental protection agency or any other federal agency or any other state or agency thereof for the purpose of carrying out the provisions of this article;
(c) Contract for research projects;
(d) Require that pesticides used in this state are adequately tested and are safe for use under local conditions;
(e) Require that individuals who sell, store, dispose or apply pesticides are adequately trained and observe appropriate safety practices;
(f) Promulgate rules pursuant to chapter twenty-nine-a of this code, including, but not limited to, the following:
(1) Licensing of businesses that sell, store, recommend for use, mix or apply pesticides;
(2) Registration of pesticides for manufacture, distribution, sale, storage or use in this state;
(3) Requiring reporting and recordkeeping related to licensing and registration;
(4) Establishing training, testing and standards for certification of commercial application, public application, registered technician and private applicator;
(5) Revoking, suspending or denying licenses, registration and certification or certificate or permits;
(6) Creating advisory committees made up of both pesticide industry representatives and consumers as considered necessary to implement this article;
(7) Establishing a fee structure for licenses, registration and certificate to defray the costs of implementing this article;
(8) Classifying or subclassifying certificate or certificates to be issued under this article. The classification may include, but not be limited to, agricultural, forest, ornamental, aquatic, right-of-way, industrial, institutional, structural or health-related pest control;
(9) Restricting or prohibiting the sale or use and disposal of any pesticide, pesticide container or residue which is extremely hazardous;
(10) Coordinating and supporting pesticide monitoring programs;
(11) Developing a program for registration of persons with health sensitivity to pesticide drift;
(12) Establishing guidelines and requirements, as deemed necessary, for licenses, certificate holders and permittees for the identification of pests and their methods of inspection of property to determine the presence of pests;
(13) Establishing procedures for reporting spills, accidents or incidents; and
(14) Such other rules necessary or convenient to carry out the purpose of this article;
(g) Design and conduct an appropriate educational program on the use of pesticides and the necessity for care when applying the same; and
(h) Only after consultation with the state board of education, division of human services for child welfare, representatives from the environmental community, and representatives of school and daycare employees, by the first day of July, one thousand nine hundred ninety-five, promulgate emergency rules, pursuant to article three, chapter twenty-nine-a of this code, establishing an integrated pest management program. The emergency and legislative rules for the program established in this subsection shall include, but are not limited to, the following:
(1) The use of least hazardous materials;
(2) That pesticides shall only be applied when monitoringindicates that pest infestations are present;
(3) That students and school and daycare employees, except school, board of education or daycare employees that are certified applicators, shall not be present during application and provide for appropriate reentry times, except that pesticides may be applied to a localized area of infestation when students or school and daycare employees are present if the infestation causes an imminent threat of bodily harm;
(4) A definition of pesticides; and
(5) A system for prior notification to parents and school and daycare employees.
(a) Every pesticide which is manufactured, distributed, sold or offered for sale, used or offered for use within this state, or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside this state shall be registered in the office of the commissioner, and such registration shall be renewed annually. The commissioner may register and permit the sale and use of any pesticide which has been registered under the provisions of 7 U.S.C. § 136 et seq., as the same is in effect on the effective date of this article: Provided, That such pesticides are subject to registration fees and all other provisions of this article.
(b) Products which have the same formula, and are manufactured by the same person, the labeling of which contain the same claims and which have designation identifying the products as the same pesticide may be registered as a single pesticide without an additional fee.
(c) Within the discretion of the commissioner or his or her authorized representative, a change in labeling or formulas of a pesticide may be made within the current period of registration, without requiring a new registration of the product. The period of registration shall be for one year, commencing on the first day of January and ending on the thirty-first day of December of each year.
(d) The registrant shall file with the commissioner a statement including:
(1) The name and address of the registrant and the name and address of the person whose name will appear on the label, if other than the registrant;
(2) The name of the pesticide;
(3) A complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for it including directions for use; and
(4) If requested by the commissioner, a full description of the tests made and the results thereof upon which the claims are based and the analytical method or methods employed in determining the percentage of each active ingredient listed on the label to be registered. In the case of renewal of registration, a statement is required only with respect to information which is different from that furnished when the pesticide was registered or last registered.
(e) The registrant shall pay an annual fee as prescribed by rules promulgated hereunder for each brand and grade of pesticide. The fees shall be deposited in the state treasury and to the credit of a special fund to be used only for carrying out the provisions of this article, and shall be expended upon order of the commissioner of agriculture, pursuant to section twenty-three of this article.
(f) The commissioner may require the submission of the complete formula of any pesticide. If it appears to the commissioner that the composition of the item is such as to warrant the proposed claims for it and if the item and its labeling and other material required to be submitted to comply with the requirements of this article, he or she shall register the item.
(g) If it does not appear to the commissioner that the item is such as to warrant the proposed claims for it or if the item and its labeling and other material required to be submitted do not comply with the provisions of this article, he or she shall notify the registrant of the manner in which the item, labeling or other material required to be submitted fails to comply with this article so as to afford the registrant an opportunity to make the necessary corrections.
(h) The commissioner may not make public, information which, in his or her judgment, contains or relates to trade secrets, commercial or financial information obtained from a person and privileged or confidential, except that, when necessary to carry out the provisions of this article, information relating toformulas of products acquired by authorization of this article may be revealed to any federal, state or local agency consultant and may be revealed at a public hearing or in findings of fact issued by the commissioner when it is in the public's best interest.
(i) The commissioner shall provide the necessary forms to register pesticides.
The commissioner may refuse or cancel the registration of a pesticide if he or she finds, after a hearing, that use of the pesticide has demonstrated unreasonable adverse effects on the environment; or, a false or misleading statement about the pesticide has been made or implied by the registrant or the registrant's agent, in writing, verbally or through any form of advertising or literature or the registrant has not complied or the pesticide does not comply with the requirements of this article or any rule adopted pursuant to this article.
(b) Application for a pesticide application business license shall be made in writing to the commissioner on forms approved or supplied by the commissioner. Each application for a license shall contain information regarding the applicant's qualifications and proposed operations, license classification or classifications the applicant is applying for and shall include the following:
(1) The full name of the person applying for the license;
(2) If different from subdivision (1) of this subsection, the full name of the individual qualifying under subsection (c) of this section;
(3) If the applicant is a person other than an individual, the full name of each member of the firm or partnership or the names of the officers of the association, corporation or group;
(4) The principal business address of the applicant in the state and elsewhere;
(5) The address of each branch office or suboffice from which the business of applying pesticides is carried on. Each suboffice shall be licensed;
(6) The name and address of each certified commercial applicator applying pesticides or supervising the application of pesticides for the pesticide application business;
(7) State tax number; and
(8) Any other necessary information prescribed by the commissioner.
(c) The commissioner may not issue a pesticide application business license until the owner, manager, partner or corporate officer is qualified by passing an examination to demonstrate to the commissioner his or her knowledge of the state and federal pesticide laws, safe use and storage of pesticides. The pesticide application business shall be limited to the classification or classifications for which the business maintains certified commercial applicators in their employ.
(d) If the commissioner finds the applicant qualified to apply pesticides in the classifications the applicant has applied for, and if the applicant files the financial security required by this article, and if the applicant applying for a license to engage in aerial application of pesticides has met all the requirements of the federal aviation agency, the aeronautics commission of this state, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the commissioner shall issue a pesticide application business license. The license expires at the end of the calendar year of issue, unless it has been revoked or suspended prior to expiration by the commissioner for cause. When the financial security required under this article is dated to expire at an earlier date, the license shall be dated to expire upon expiration date of the financial security. The commissioner may limit the license of the applicant to certain classifications of pest control work, or to certain areas or to certain types of equipment or to certain specific pesticides if the applicant is only so qualified. If a license is not issued as applied for, the commissioner shall inform the applicant in writing of the reasons for the denial.
(e) All persons applying pesticides as a pesticide business, whether or not they are applying restricted-use pesticides, shall be a certified applicator in the appropriate category or subcategory or shall be a registered technician under the direct supervision of a certified commercial applicator.
(f) All funds collected pursuant to this section shall be deposited in the Pesticide Control Fund of the state pursuant to section twenty-three of this article.
(a) The commissioner may not issue a pesticide application business license until the business has furnished evidence of financial security with the commissioner consisting of either:
(1) A surety bond to the benefit of the state of West Virginia; or
(2) A liability insurance policy from a person authorized to do business within this state or a certificate thereof protecting persons who may suffer legal damages as a result of the operation of licensee's business operation.
(b)(1) The commissioner, taking into consideration the different classifications or categories of pesticide application business licenses, shall establish the amount and kind of financial security for property damage and public liability and including loss of damage arising out of the actual use of any pesticide for each classification of license required. The financial security shall be maintained at not less than that sum at all times during the licensed period. The commissioner shall be notified forty-five days prior to any reduction at the request of the applicant or cancellation of such surety bond or liability insurance by the surety or insurer. The total and aggregate liability of the surety or insurer for all claims is limited to the face of the bond or liability insurance policy. The commissioner may accept a liability insurance policy or surety bond in the proper sum which has a deductible clause in the amount not exceeding that which the commissioner shall establish separately for aerial applicators and for other commercial applicators for the total amount of financial security required herein. If the applicant has not satisfied the requirement of the deductible amount in any prior legal claim, the deductible clause may not be accepted by the commissioner unless the applicant furnishes the commissioner with a surety bond or liability insurance which satisfies the amount of the deductible as to all claims that may arise in his or her application of pesticides.
(2) If the surety furnished becomes unsatisfactory, the applicant shall, upon notice, immediately establish new evidence of financial security and if he or she fails to do so, it is unlawful thereafter for such person to engage in said business of applying pesticides until the financial security is brought into compliance with the requirements as established by the commissioner and the person's license is reinstated.
(c) Nothing in this article may be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides even though the use conforms to the rules of the commissioner.
As a condition of obtaining or renewing a license, each pesticide business shall maintain such records as required by the rules promulgated hereunder. The commissioner may require a licensed pesticide business to submit records to his or her office and failure to submit requested records is grounds for revocation of a license.
No person may use any pesticide classified for restricted use unless that person has first complied with the certification requirements of the rules promulgated pursuant to this article, unless such person is acting under the direct supervision of a certified applicator.
All state agencies, municipal corporations or any other governmental agency are subject to the provisions of this article and rules adopted thereunder concerning the registration or application of pesticides.
These agencies are exempt from any fees prescribed by this article.
The governmental agencies and municipal corporations are subject to legal recourse by any person damaged by the application of any pesticide, and the action may be brought in the county where the damage or some part thereof occurred.
(a) Application for a private or commercial applicator's license shall be made in writing to the commissioner on forms approved or supplied by the commissioner. Each application shall contain:
(1) The full name of the person applying for the license;
(2) The principal business address of the applicant;
(3) A listing of agricultural commodities produced or to be produced by the applicant applying for a private applicator's license;
(4) Any other necessary information prescribed by the commissioner; and
(5) Payment of required fees.
(b) The commissioner may renew any applicant's license under each classification for which such applicant is licensed. However, the applicant may, at no greater than three-year intervals, be required to present evidence or documentation indicating he or she has attended a workshop or training session approved by the commissioner.
(c) No private applicator may use any restricted use pesticide which is restricted to use by certified applicators without having first complied with the certification requirements determined by the commissioner as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use.
(d) As a minimum requirement for certification, a private or commercial applicator must show that he or she possesses a practical knowledge of the pest problems and pest control practices associated with his or her agricultural operations, proper storage, use, handling and disposal of the pesticides and containers and his or her related legal responsibility. This practical knowledge includes ability to:
(1) Recognize common pests to be controlled and damage caused by them;
(2) Read and understand the label and labeling information including the common name of pesticides he or she uses; the crop, animal or site to which they will be applied; pests to be controlled; timing and methods of application; safety precautions; any preharvest or reentry restrictions; and any specified disposal procedures;
(3) Apply pesticides in accordance with label instructions and warnings, including the ability to prepare the proper concentration of pesticide to be used under particular circumstances, taking into account such factors as area to be covered, speed at which application equipment will be driven, and the quantity dispersed in a given period of operation;
(4) Recognize local environmental situations that must be considered during application to avoid contamination; and
(5) Recognize poisoning symptoms and procedures to follow in case of a pesticide accident.
(e) If the commissioner does not certify the private or commercial application under this section, he or she shall inform the applicant in writing of the reasons therefor.
(f) Any written examinations required of private or commercial applicators may not be more stringent than the requirements for such examinations by the United States environmental protection agency.
Any person holding a current valid license, permit or certification may renew such license, permit or certification for the next year without taking another examination, unless the license, permit or certification is not renewed by the first day of April of any year in which case such licensee, permittee or certificate holder shall be required to take another examination: Provided, That no person holding an expired license, permit or certification may engage in any activity for which such license, permit or certification is required until such license, permit or certification has been renewed. Any person renewing after the fifteenth day of January of each year shall pay a penalty of twenty-five percent of the established license, permit or certificate fee. A penalty of fifty percent of the established fee shall be levied after the first day of February of each year. Persons delinquent after the first day of February shall be so notified.
(a) Veterinarian exemption. -- The provisions of section seven of this article relating to licenses and requirements for their issuance do not apply to a doctor of veterinary medicine applying pesticides to animals during the normal course of his or her veterinary practice: Provided, That he or she is not regularly engaged in the business of applying pesticides for hire amounting to a principal or regular occupation and does not publicly hold himself or herself out as a pesticide applicator.
(b) Farmer exemption. -- The provisions of section seven of this article relating to licenses and requirements for their issuance do not apply to any farmer applying pesticides for himself or herself or with ground equipment or manually for his or her farmer neighbors: Provided, That he or she:
(1) Operated farm property and operates and maintains pesticide application equipment primarily for his or her own use;
(2) Is not regularly engaged in the business of applying pesticides for hire amounting to a principal or regular occupation and that he or she does not publicly hold himself or herself out as a pesticide applicator; and
(3) Operates his or her pesticide application equipment only in the vicinity of his or her own property and for the accommodation of his or her neighbors.
(c) Experimental research exemption. -- The provisions of section seven of this article relating to licenses and requirements for their issuance do not apply to research personnel applying pesticides only to bona fide experimental plots.
Any applicator, whose certificate has been suspended, revoked or modified or if significant technological developments have occurred requiring additional knowledge related to the classification or subclassification for which the applicator has applied, or when required by additional standards established by the United States environmental protection agency, or when required by rules of the commissioner, is required to be reexamined or to take special examinations and furnish satisfactory evidence of completion of educational courses, programs or seminars approved by rules relating to applicator's certification.
A licensee shall register with the commissioner any employee who performs pest control within thirty days after employment. The employee must have successfully completed training approved by the department. An employee who has not successfully completed training may only apply pesticides if a certified applicator is physically present at the time and place the pesticide is applied. The commissioner shall adopt rules that establish the criteria for approved training programs for such registered technicians.
The commissioner may waive all or part of any license examination requirement provided for in this article on a reciprocal basis with any other state which has standards at least equal to those of West Virginia and with federal agencies whose employees are certified under a government agency plan approved by the administrator of the federal environmental protection agency and may issue a license to the applicant: Provided, That all other requirements of this article are complied with by the applicant.
The commissioner shall notify any licensee of violations of this article by the licensee, and after inquiry, including opportunity for a hearing, may deny, suspend, revoke or modify any provision of any license, permit or certification issued under this article, or he or she may impose a civil penalty as provided hereafter by this article, if he or she finds that the applicant or the holder of a license, permit or certification has violated any provision of the act or any rule promulgated hereunder.
(a) Any person claiming damages for a pesticide application shall file with the commissioner, on a form provided by the commissioner, a written statement claiming that he or she has been damaged. This report must be filed within sixty days after the date that damages occurred. If a growing crop is alleged to have been damaged, the report must be filed prior to the time that twenty-five percent of the crop has been harvested. The statement shall contain, but not be limited to, the name of the person allegedly responsible for the application of said pesticide, the name of the owner or lessee of the land on which the crop is grown and for which damage is alleged to have occurred and the date on which the alleged damage occurred. The commissioner shall, upon receipt of the statement, notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility of the damages claimed and furnish copies of statements as requested. The commissioner shall inspect damages whenever possible and when he or she determines that the complaint has sufficient merit he or she shall make the information available to the person claiming damage and to the person who is alleged to have caused the damage.
(b) The filing of the report or the failure to file a report need not be alleged in any complaint which is filed in a court of law, and the failure to file the report may not be considered a bar to the maintenance of any criminal or civil action.
(c) The failure to file a report is not a violation of the provisions of this article. However, if the person failing to file a report is the only one injured from such use or application of a pesticide by others, the commissioner may, when in the public interest, refuse to hold a hearing for the denial, suspension or revocation of a license or permit issued under this article until a report is filed.
(d) Where damage is alleged to have occurred, the claimant shall permit the commissioner, the licensee and his or her representative, such as bondsman or insurer, to observe within reasonable hours the lands or nontarget organism alleged to have been damaged in order that the damage may be examined. Failure of the claimant to permit the observation and examination of the damaged lands automatically bars the claim against the licensee.
Any person aggrieved by any action of the commissioner may obtain a review thereof by filing in a court of competent jurisdiction, within thirty days of notice of the action, a written petition praying that the action of the commissioner be set aside. A copy of such petition shall forthwith be delivered to the commissioner and within thirty days thereafter the commissioner shall certify and file in the court a transcript of any record pertaining thereto, including a transcript of evidence received, whereupon the court has jurisdiction to affirm, set aside or modify the action of the commissioner, except that the findings of the commissioner as to the facts, if supported by substantial evidence, are conclusive.
It is unlawful for any person to manufacture, distribute, sell or offer for sale, use or offer to use:
(1) Product registration. -- (A) Any pesticide which is not registered pursuant to the provisions of this article, or any pesticide if any of the claims made for it or any of the directions for its use differ in substance from the representation made in connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration, in the discretion of the commissioner, a change in the labeling or formula of a pesticide may be made, within a registration period, without requiring registration of the product, however, changes are not permissible if they lower the efficiency of the product.
(B) Any pesticide sold, offered for sale or offered for use which is not in the registrant's or the manufacturer's unbroken container and to which there is not affixed a label, visible to the public, bearing the following information:
(i) The name and address of the manufacturer, registrant or person for whom manufactured;
(ii) The name, brand or trademark under which the pesticide is sold; and
(iii) The net weight or measure of the content, subject to such reasonable variation as the commissioner may permit.
(C) Any pesticide which contains any substance or substances in quantities highly toxic to man, unless the label bears, in addition to any other matter required by this article:
(i) A skull and crossbones;
(ii) The word "poison" prominently in red, on a background of distinctly contrasting color; and
(iii) A statement of an antidote for the pesticide.
(D) The pesticides commonly known as lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, sodium fluoride, sodium fluosilicate and barium fluosilicate unless they have been distinctly colored or discolored as provided by rules issued in accordance with this article, or any other white powder pesticide which the commissioner, after investigation of and after public hearing on the necessity for such action for the protection of the public health and the feasibility of coloration or discoloration, by rules, requires to be distinctly colored or discolored, unless it has been so colored or discolored. The commissioner may exempt any pesticide to the extent that it is intended for a particular use or uses from the coloring or discoloring required or authorized by this subsection if he or she determines that such coloring or discoloring for such use or uses is not necessary for the protection of the public health.
(E) Any pesticide which is adulterated or misbranded, or any device which is misbranded.
(F) Any pesticide that is subject of a stop sale, use or removal order provided for hereinafter in this article until such time as the provisions of that section hereafter have been met.
(2) Business/applicator violations. -- In addition to imposing civil penalties or referring certain violations for criminal prosecution the commissioner may, after providing an opportunity for a hearing, deny, suspend, modify or revoke a license issued under this article, if he or she finds that the applicant, or licensee or his or her employee has committed any of the following acts, each of which is declared to be a violation:
(A) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized or sold;
(B) Used or caused to be used any pesticide in a manner inconsistent with its labeling or rules of the commissioner: Provided, That such deviation may include provisions set forth in section 2(ee) of the federal insecticide, fungicide and rodenticide act (7 U.S.C. § 136 et seq.), as the same is in effect on the effective date of this article, disposed of containers or unused portions of pesticide inconsistent with label directions or therules of the commissioner in the absence of label directions if those rules further restrict such disposal;
(C) Acted in a manner to exhibit negligence, incompetence or misconduct in acting as a pesticide business;
(D) Made false or fraudulent records, invoices or reports;
(E) Failed or refused to submit records required by the commissioner;
(F) Used fraud or misrepresentation, or presented false information in making application for a license or renewal of a license, or in selling or offering to sell pesticides;
(G) Stored or disposed of containers or pesticides by means other than those prescribed on the label or adopted rules;
(H) Provided or made available any restricted use pesticide to any person not certified under the provisions of this article or rules issued hereunder;
(I) Made application of any pesticide in a negligent manner;
(J) Neglected or, after notice, refused to comply with the provisions of this article, the rules adopted hereunder or of any lawful order of the commissioner;
(K) Refused or neglected to keep and maintain records or reports required under the provisions of this article or required pursuant to rules adopted under the provisions of this article or refused to furnish or permit access for copying by the commissioner any such records or reports;
(L) Used or caused to be used any pesticide classified for restricted use on any property unless by or under the direct supervision of a certified applicator;
(M) Made false or misleading statements during or after an inspection concerning any infestation of pests found on land;
(N) Refused or neglected to comply with any limitations or restrictions on or in a duly issued certification;
(O) Aided, abetted or conspired with any person to violate the provisions of this article, or permitted one's certification or registration to be used by another person;
(P) Impersonated any federal, state, county or city inspector or official;
(Q) Made any statement, declaration or representation through any media implying that any person certified or registered under the provisions of this article is recommended or endorsed by any agency of this state;
(R) Disposed of containers or unused portions of pesticide inconsistent with label directions or the rules of the commissioner in the absence of label directions if those rules further restrict such disposal;
(S) Detach, alter, deface or destroy, in whole or in part, any label or labeling provided for in this article or the rules promulgated under the provisions of this article; or
(T) Refuse, upon a request in writing specifying the nature or kind of pesticide or device to which such request relates, to furnish to or permit any person designated by the commissioner to have access to and to copy such records of business transactions as may be essential in carrying out the purposes of this article.
(a) Criminal penalties. -- Any person violating any provision of this article or rule adopted hereunder 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 the second 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 a provision of this article or rule 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 any hazards to the health and safety of the public 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 each first offense, nonserious violation, and not more than one thousand dollars for a serious violation, or for a repeat or intentional violation.
(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 debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of such a person after the same has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of such, shall enter same to record without requiring the payment of costs 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 violation of the provisions of this article.
(d) 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.
The commissioner may issue subpoenas to compel the attendance of the witnesses or production of books, documents and records anywhere in the state in any hearing affecting the authority or privilege granted by a license, certification or permit issued under the provisions of this article.
(a) For the purpose of carrying out the provisions of this article, the commissioner may enter upon any public or private premises, other than a dwelling house and the curtilage thereof, at reasonable times, after reasonable notification to the owner, tenant or agent, in order to:
(1) Have access for the purpose of inspecting any equipment subject to this article and such premises on which such equipment is kept or stored;
(2) Inspect lands actually or reported to be exposed to pesticides;
(3) Inspect storage or disposal areas;
(4) Inspect or investigate complaints of injury to humans or land; or
(5) Sample pesticides being applied or to be applied.
(b) If the commissioner is denied access to any land where such access was sought for the purpose set forth in this article, he or she may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for said purposes. The court may, upon such application, issue the search warrant for the purposes requested.
(c) The commissioner, with or without the aid and advice of the county prosecuting attorney, is charged with the duty of enforcing the requirements of this article and any rules issued hereunder. In the event a county prosecuting attorney refuses to act on behalf of the commissioner, the attorney general shall so act.
(d) The commissioner may bring an action to enjoin the violation or threatened violation of any provisions of this article or any rule made pursuant to this article in a court of competent jurisdiction of the county in which such violation occurs or is about to occur.
The commissioner shall issue and enforce a written or printed "stop-sale, use or renewal" order directed to the owner or custodian of any lot of pesticide, requiring him or her to hold the lot of pesticide at a designated place, when the commissioner finds the pesticide is being offered or exposed for sale or use or is being used in violation of any of the provisions of this article, until the law has been complied with and the pesticide is released in writing by the commissioner, or the violation has been otherwise legally disposed of by written authority. The owner or custodian of such pesticide has the right to judicial review of such order in accordance with the provisions of article five, chapter twenty-nine-a of this code. The provisions of this section may not be construed as limiting the right of the commissioner to proceed as authorized by other provisions of this chapter. The commissioner shall release the pesticide so withdrawn when the requirements of the provisions of this chapter have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.
Nothing in this article requires the commissioner to report, for the institution of proceedings under this article, minor violations of this article whenever the commissioner believes that the public interest will be adequately served by a suitable written notice or warning to the person violating the provisions of this article.
Repealed.
Acts, 1990 Reg. Sess., Ch. 7.
(a) If built of common rails, known as the worm fence, four and one half feet high;
(b) If built with posts and rails, or posts and plank, or pickets, four feet high;
(c) If built with stone, two feet wide at base, and three and one-half feet high;
(d) If a hedge fence, four feet high. If any hedge fence be built upon a mound, the same from the bottom of the ditch shall be included in estimating the height of such fence;
(e) If built with posts and wire, or pickets and wire, four feet high, and shall consist of not less than six strands, the first strand five inches, the second strand ten inches, the third strand seventeen inches, the fourth strand twenty-five inches, the fifth strand thirty-six inches, and the sixth strand forty-eight inches from the ground; and if with more than six strands, the space between the strands shall in no case be greater than hereinbefore provided. The space between the posts shall, in no case, be greater than sixteen feet;
(f) If built with posts and high tensile galvanized wire, forty-six inches high, and shall consist of not less than eight strands, the first strand four inches, the second strand nine inches, the third strand fourteen inches, the fourth strand nineteen inches, the fifth strand twenty-five inches, the sixth strand thirty-one inches, the seventh strand thirty-eight inches, and the eighth strand forty-six inches from the ground. The wire shall be maintained at no less than a two hundred pound tension at all times. The space between posts shall, in no case, be greater than thirty feet, provided that pressure-treated one and one-fourth inch by one and one-half inch by forty-eight inch slotted hardwood or one and one-half inch by two inch by forty-eight inch soft wood battens are used between posts at a distance no greater than ten feet; and
(g) If built with posts and high tensile galvanized wire and electrified, thirty-eight inches high and shall consist of not less than five strands, the first strand five inches, the second strand ten inches, the third strand seventeen inches, the fourth strand twenty-seven inches, and the fifth strand thirty-eight inches from the ground. The wire shall be maintained at no less than a two-hundred pound tension at all times. The space between posts shall, in no case, be greater than one hundred fifty feet, provided that pressure-treated one and one-fourth inch by one and one-half inch slotted hardwood or one and one-half inch by two inch softwood battens are used between posts at a distance no greater than thirty-five feet: Provided, That if said fence is constructed to confine only horses, mules, asses, jennets, or cattle, it shall be deemed a legal fence if it is not less than three strands, the first strand seventeen inches, the second strand twenty-seven inches and the third strand thirty-eight inches from the ground. The space between posts shall, in no case, be greater than one hundred fifty feet, provided that pressure-treated one and one-fourth inch by one and one-half inch slotted hardwood or one and one-half inch by two inch softwood battens are used between posts at a distance no greater than thirty-five feet. Only high-powered low impedance fence controllers which comply with international safety standards shall be used to electrify fence.
All fences heretofore built under the existing law and in compliance therewith shall be and remain and may be kept up as lawful fences.
The county court may, upon like application and notice of any person, annul or amend any order made by said court establishing any river or stream, or any part of either, as a lawful fence; but such order shall not be made within one year from the date of the order sought to be annulled or amended, and shall not take effect until six months after it is made.
If a dispute arises between the owners of adjoining lands concerning the proportion or particular part of a fence to be built or maintained by either of them, or the amount to be paid by one party to the other for any fence already built or maintained, either party may proceed by civil action in a magistrate or circuit court, as shall have jurisdiction of the amount or value in controversy, within the county in which any portion of the partition built or to be built, is or is to be located, to determine the amount to be paid by one party to the other for the just proportion of the costs of any construction, repair or maintenance of the partition fence. The person who is required to share in the cost of the construction, repair or maintenance of the partition fence shall not be liable for more than one half of the cost of the construction, repair or maintenance of a fence which meets the standards of subdivision (e), section one of this article.
Repealed.
Acts, 1993 Reg. Sess., Ch. 57.
Whereas, The infringement upon agricultural lands and agricultural operations by other uses and occupancies which are either adverse or incompatible with the continued agricultural utilization may be of such nature as to endanger orderly agricultural production, it is hereby declared to be the public policy of this state that agricultural production and the utilization of land in agricultural productive operations be protected and preserved.
(a) "Agriculture" shall mean the production of food, fiber and woodland products, by means of cultivation, tillage of the soil and by the conduct of animal, livestock, dairy, apiary, equine or poultry husbandry, and the practice of forestry, sylviculture, horticulture, or any other plant or animal production and all farm practices related, usual or incidental thereto, including the storage, packing, shipping and marketing, but not including any manufacturing, milling or processing of such products by other than the producer thereof.
(b) "Agricultural land" shall mean not less than five acres of land and the improvements thereupon, used or usable in the production of food, fiber or woodland products of an annual value of one thousand dollars or more, by the conduct of the business of agriculture, as defined in subsection (a) of this section.
(1) The complainant's use and occupancy of land of the complainant has existed upon his adjoining or neighboring land before the agricultural operation complained of upon the agricultural land; and
(2) The conduct of such agricultural operation complained of has caused or will cause actual physical damage to the person or property of the owner or occupant of such adjoining or neighboring lands.
(b) The rights and remedies available under this section are in addition to any other rights or remedies otherwise available in law or statute.
(c) For the purpose of this section, the term "person" means an individual or any nongovernmental group, association, corporation or any other nongovernmental entity.
At the same time as the head tax is assessed, the assessor and his or her deputies shall, on the forms prescribed under section four of this article, take down the age, sex, color, character of hair (long or short) and breed (if known) and the name and address of the owner, keeper or harborer thereof. When the head tax, and extra charges, if any, are paid, the officer to whom payment is made shall issue a certificate of registration and a registration tag for such dog.
In addition to the assessment and registration above provided for, whenever a dog either is acquired or becomes six months of age after the assessment of the personal property of the owner, keeper or harborer thereof, the said owner, keeper or harborer of said dog shall, within ten days after the acquisition or maturation, register the said dog with the assessor, and pay the head tax thereon unless the prior owner, keeper or harborer paid the head tax.
All certificates of registration and registration tags issued pursuant to the provisions of this section shall be issued for the fiscal year and shall be valid from the date on which issued until the thirtieth day of June of that fiscal year, or until reissued by the assessor or his or her deputy in the regular performance of his or her duties, but in no case shall previous registration tags be valid after September thirtieth of the next ensuing fiscal year.
The assessor collecting the head tax on dogs shall be allowed a commission of ten percent upon all such taxes collected by him or her, and shall turn in to the county treasury ninety percent of such taxes so collected, as are levied by this section; and the assessor shall turn over to the treasurer or other proper officer of each and every municipality within the county ninety percent of such taxes levied by the ordinances of such municipality. All such dog taxes, except those belonging to municipalities, shall be accredited to the dog and kennel fund provided for in section ten of this article. Such dog taxes as are collected for and turned over to municipalities shall be deposited by the proper officer of such municipalities to such fund and shall be expended in such manner as the law of such municipality may provide. All taxes on dogs not collected by the assessor shall be collected by the regular tax collecting officer of the county and placed to the credit of the dog and kennel fund.
Every person upon becoming the owner or operator of a kennel of dogs as herein described after the thirtieth day of September of any year shall, within three days after becoming such owner or operator, register such kennel for the remainder of the current fiscal year in the manner, and upon the payment of the registration fee, herein provided.
All certificates of registration issued pursuant to the provisions of this section shall be issued for the fiscal year, and shall be valid from the date on which issued until the thirtieth day of June of that fiscal year.
A public record of all certificates of registration and registration tags issued under the provisions of this article shall be kept by the assessor of each county. Such record shall be kept intact and available for inspection for a period of not less than two years following the end of the registration year.
Registration tags shall be made of metal or some other suitable substance of a permanent nature. The design of such tags shall be changed from year to year so that identification of the year of issue of any tag may be made without close visual examination. If any registration tag be lost, a duplicate shall be furnished by such assessor upon proper proof of loss and the payment to him of a fee of twenty-five cents.
The county dog warden and his deputies shall patrol the county in which they are appointed and shall seize on sight and impound any dog more than six months of age found not wearing a valid registration tag, except dogs kept constantly confined in a registered dog kennel. They shall be responsible for the proper care and final disposition of all impounded dogs. The county dog warden shall make a monthly report, in writing, to the county commission of his county. When any dog shall have been seized and impounded, the county dog warden shall forthwith give notice to the owner of such dog, if such owner be known to the warden, that such dog has been impounded and that it will be sold or destroyed if not redeemed within five days. If the owner of such dog be not known to the dog warden, he shall post a notice in the county courthouse. The notice shall describe the dog and the place where seized and shall advise the unknown owner that such dog will be sold or destroyed if not redeemed within five days.
(b) Any county commission may promulgate and enforce such ordinances, rules and regulations, not inconsistent with the provisions of this article, as it considers necessary or convenient for the control and management of all dogs in the county, or any portion thereof, regardless of the age of any such dog: Provided, That the county commissions may promulgate and enforce such ordinances, rules and regulations to the extent necessary for the implementation of the provisions contained in this article.
(c) The county commission of each county may provide in such ordinance for the arrest, conviction and punishment of any person who violates the provisions thereof. The county commission of each county may provide in any such ordinance that any person who violates the provisions of the ordinance is guilty of a misdemeanor, and, upon conviction thereof, that such person is subject to a fine or fines. The amount of such fine for a single violation of any such ordinance may not exceed one hundred dollars. Magistrate courts and circuit courts shall have concurrent jurisdiction with respect to such misdemeanors.
In addition to the powers granted to county commissions by section six of this article, the county commission of each county may contract with or reimburse any private incorporated society or association, county commission or municipality for the care, maintenance, control or destruction of dogs and cats.
The county court of each county, if the court appoints a county dog warden, shall provide the dog warden with nets and other suitable devices for taking dogs in a humane manner, and with facilities for transporting any dog seized to the dog pound, a suitable place for impounding dogs with proper provisions for their feeding and care, and humane equipment, devices and methods for destroying dogs: Provided, That in any county in which there is a society for the prevention of cruelty to animals or a humane society, incorporated and organized under the laws of this state, and having one or more duly appointed agents, and maintaining an animal home or shelter suitable for impounding dogs and possessing devices for humanely destroying dogs, the county court shall not be required to provide a dog pound, but it may designate such animal home or shelter as the county dog pound, and the county dog warden shall in such case deliver all dogs seized by him and his deputies to such animal home or shelter for impounding and disposition in the manner provided by this article. The county court shall provide for the payment of reasonable compensation, not to exceed the fees and costs provided for in this article, to such society for the use of its facilities and services in impounding and disposing of dogs. Such compensation to such society shall be paid from the fund provided for in this article.
(b) (1) The term "humanely destroyed" as used in this section means:
(A) Humane euthanasia of an animal by hypodermic injection by a licensed veterinarian or by an animal euthanasia technician certified in accordance with the provisions of article ten-a, chapter thirty of this code; or
(B) Any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing a dog or cat by means of a gas chamber: Provided, That any county which has a gas chamber in operation as of the effective date of this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal euthanasia technician certified pursuant to article ten-a, chapter thirty of this code; and (2) the gas chamber shall have been manufactured and installed by a person who regularly manufactures and installs gas chambers. The Board of Veterinary Medicine shall promulgate emergency rules regarding the inspection of gas chambers, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
(c) In an emergency or in a situation in which a dog cannot be humanely destroyed in an expeditious manner, a dog may be destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of firearms with a weapon and ammunition of suitable caliber and other characteristics designed to produce instantaneous death by a single shot; and
(2) Maximum precaution is taken to minimize the dog's suffering and to protect other persons and animals.
(d) The owner, keeper or harborer of any dog seized and impounded under the provisions of this article may, at any time prior to the expiration of five days from the time that notice of the seizure and impounding of the dog has been given or posted as required by this article, redeem the dog by paying to the dog warden or his or her authorized agent or deputy all of the costs assessed against the dog and by providing a valid certificate of registration and registration tag for the dog.
(e) Reasonable costs and fees, in an amount to be determined, from time to time, by the county commission, shall be assessed against every dog seized and impounded under the provisions of this article, except dogs taken into custody under section two of this article. The cost shall be a valid claim in favor of the county against the owner, keeper or harborer of any dog seized and impounded under the provisions of this article and not redeemed or sold as provided in this section and the costs shall be recovered by the sheriff in a civil action against the owner, keeper or harborer.
(f) A record of all dogs impounded, the disposition of the dogs and a statement of costs assessed against each dog shall be kept by the dog warden and a transcript thereof shall be furnished to the sheriff quarterly.
(g) All persons or entities in the state performing euthanasia under this article shall register with the Board of Veterinary Medicine by December 31, 2009, in a manner to be prescribed by the board. The Board of Veterinary Medicine shall promulgate emergency rules relating to the registration of those performing animal euthanasia, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
The county court of any county may contract with any municipality within the county for the joint ownership, leasing, operation and maintenance within the county of a dog pound and may jointly employ a dog warden or dog wardens.
Any person who shall alter, or forge any certificate or tag, provided for in this article, or display, present, or utter such certificate as valid with knowledge that it has been altered or forged, or who knowingly causes or permits any dog owned, kept or harbored by him to wear any fictitious, altered, or invalid registration tag in place of a valid tag as required under the provisions of this article, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment in the county jail for not more than thirty days or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by both such fine and imprisonment.
(b) If any unvaccinated domesticated animal is bitten by a rabid animal, the owner shall confine the bitten animal for a period of six months. The animal shall be vaccinated or revaccinated after five months.
(c) If the animal is not confined and quarantined as directed in subsections (a) and (b) of this section, the humane officer, dog warden or sheriff may cause the animal to be placed in the custody and care of a licensed veterinarian for that purpose at the owner's expense. The penalty for any violation of this section is a fine of fifty dollars or confinement in the county or regional jail for a period of no less than two nor more than three days.
The county commission shall expend such fund, and issue drafts payable therefrom, for the following purposes, and no others: To pay the actual expenses incurred by the county commission, the county assessor, and the sheriff in carrying out the provisions of this article; to pay for the services of the dog warden, his deputies, poundkeepers, and such other persons as may be employed, if any, or may render services, in actually carrying out the provisions of this article; to pay in its discretion to the dog warden and his deputies mileage at the rate up to fifteen cents per mile for the use of their privately owned vehicles actually used in carrying out the provisions of this article; to pay for the purchase, procurement, rental, construction, operation, maintenance and repair of any property, devices or facilities reasonably necessary and required to carry out the provisions of this article; to compensate any department of the state government or any local board of health for any necessary service rendered in connection with this article; to pay the costs of any rabies control project or program authorized by law; to compensate any persons who have suffered loss or damage on account of the destruction, loss, or injury by dogs of any sheep, lamb, goat, kid or poultry, when such claims have been proved and allowed as provided in this article: Provided, however, That such compensation authorized by the county commission shall not exceed an amount double the assessed value of the destroyed or injured animals or poultry as shown on the assessor's records, and in the event such animals are not assessed, then compensation authorized by said court shall not exceed the average assessed value of like animals or poultry, or if no like animal or poultry is assessed, then not to exceed the fair market value as determined by the county commission.
In the event that the dog and kennel fund shall in any year be insufficient to pay the several items set forth in this section, then the county commission may be, and it is hereby, authorized and empowered to pay such items out of the county general fund. Any surplus of the dog and kennel fund remaining unexpended in the county treasury, and, in the opinion of the county commission, not needed for the payment and satisfaction of claims and expenses as herein provided, shall annually be paid into and credited to the county school fund, but the funds thus used shall be in an amount deemed proper and safe in the judgment and discretion of the county commission.
(b) Any person who shall intentionally and unlawfully steal a dog, cat, other animal or reptile as specified in subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be ordered to provide public service for not less than thirty nor more than ninety days or fined not less than three hundred nor more than five hundred dollars, or both. Any person violating the provisions of this subsection, for second or subsequent offense, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than ninety days nor more than six months, or shall be ordered to provide public service for not more than one year, and fined not less than one thousand dollars. In no case can any action or prosecution relating to a dog under the provisions of this section be maintained if the dog concerned has not been duly registered pursuant to the provisions of this article or owned and kept pursuant to the provisions of this section or owned and kept pursuant to the provisions of this section at the time the cause of action shall have arisen.
(c) No person other than the owner of a registered dog may remove a tag, collar or other identifying apparel from the registered dog, nor remove or turn off a radio transmitting collar on the registered dog, without the permission of the owner, unless removal of the tag, collar or apparel is necessary to prevent or treat an injury to the dog or is done by a law-enforcement officer for a legitimate law-enforcement purpose. Any person who intentionally removes a tag, collar or other apparel from a registered dog in violation of the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be ordered to provide community service for not less than eight hours nor more than forty hours or fined not less than fifty dollars nor more than one hundred fifty dollars, or both.
(d) The Commissioner of Agriculture is hereby authorized to designate a reasonable number of his or her present employees as may be necessary to investigate alleged incidents of the unlawful stealing of dogs, other domestic animals or reptiles, alleged incidents of cruelty to animals or reptiles and the alleged incidents of the unlawful stealing of animals or reptiles for the purpose of sale to medical or other research companies. The deputies shall make the results of their investigations known to any law-enforcement officers who have authority to enforce the provisions of this article.
(e) It shall be the duty of all members of the West Virginia State Police, sheriffs and police officers to aid in the enforcement of the provisions of this article and, for services rendered in the enforcement thereof, those persons shall be entitled to fees in the amounts set forth in section eight of this article. The fees shall be paid by the county commission from the dog and kennel fund.
The county commission may, at its discretion, empower county dog wardens and deputy dog wardens to issue citations for violation of provisions of this article.
On and after the first day of September, one thousand nine hundred eighty-nine, any dog or cat impounded under the provisions of this article may not be sold, given, transferred or otherwise made available directly or indirectly to any person, institution, corporation or other entity for use in educational or scientific research or related activities. Disposition of impounded dogs or cats may only be by adoption as pets or humanely destroyed. Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than four hundred fifty dollars nor more than two thousand dollars.
Any person who, without justification, willfully and unlawfully causes physical injury to any trained dog or horse used by law-enforcement officials, the Department of Military Affairs and Public Safety or by fire prevention or investigation officials in the performance of their official duties is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in jail not more than six months, or both.
Any person convicted of a violation of this section shall be
ordered to make restitution to the law-enforcement agency, the
Department of Military Affairs and Public Safety or to the State
Fire Marshal or other fire prevention or investigation department
or agency owning the animal for any veterinary bills, and
replacement costs of any disabled or killed animal.
(1) Transfer ownership of the dog or horse to another governmental agency within West Virginia;
(2) Transfer ownership of the dog or horse to the animal's handler;
(3) Transfer ownership of the dog or horse to a person who wishes to maintain the animal; or
(4) Transfer the dog or horse to the care and custody of any animal shelter, humane society or society for the prevention of cruelty to animals, organized and operating under the laws of this state, so that the dog or horse may be adopted. If the animal shelter, humane society or society for the prevention of cruelty to animals determines that the dog or horse is not suitable for adoption, then the animal may be humanely euthanized by a person licensed under the provisions of article ten or ten-a, chapter thirty of this code.
(b) In the event ownership of a dog or horse is transferred pursuant to subdivision (2), (3) or (4), subsection (a) of this section, the transfer documents must include provisions, signed by the person accepting ownership of the dog or horse, which hold the state harmless from any liability after the date of transfer.
The purpose of this article is to establish a rabies
vaccination procedure for dogs and cats and to check the spread of
rabies for the immediate preservation of life, health and safety
for the reason that rabies is spreading among dogs and cats, and
becoming a menace and danger to people, livestock, poultry and
game, and the provisions herein are designated to prevent the
spread of rabies.
(b) Dogs and cats over six months of age entering the State of West Virginia must have been vaccinated for rabies as set forth in subsection (a) of this section prior to entry.
(c) A dog or cat may be vaccinated by any licensed veterinarian or his or her assistant. If there is no licensed veterinarian practicing in the county, a qualified person may be appointed by the county health department to administer vaccinations.
Whoever vaccinates or revaccinates a dog or cat against rabies shall keep a record of such vaccination or revaccination, and on or before the first day of each calendar month thereafter, shall mail to or deliver to the county clerk of the county where the vaccination takes place a report of such vaccination or revaccination which shall include a number identifying the individual record of the dog or cat vaccinated, a complete description of the dog or cat, place where the dog or cat is kept or harbored, name of the owner, keeper or harborer, his or her address, date and type of vaccination or revaccination and such other information as may be required by the county health department or the county commission over the signature of the person reporting.
Each person vaccinating a dog or cat for rabies shall provide a "certificate of rabies vaccination" which shall contain the following information:
(a) Name of the county where the owner of the animal resides;
(b) Vaccination tag number;
(c) Identification of the animal by color, weight, breed, age and sex;
(d) Name, address and telephone number of the owner;
(e) Type of vaccine, the manufacturer of the vaccine and the serial number;
(f) Date of the vaccination;
(g) Identification of the veterinarian, doctor of medicine or person administering the vaccination;
(h) Such other information as the commissioner of agriculture may require.
The owner of the animal shall retain the original certificate of vaccination in his or her records. Copies of the certificate or a computer printout that contains the information required above shall be filed with the person administering the vaccination and the clerk of the county commission in the county where the owner of the animal resides.
Tags to be furnished by the county commission shall be of a distinctive and easily recognized color, and shall have thereon engraved, or stamped, the year of vaccination and the number indicating the record above described. Such tag shall be securely fastened to the collar worn by the dog and shall be given to the owner by the veterinarian, the doctor of medicine or the person vaccinating the dog or cat at the time of vaccination.
Whoever owns, keeps or harbors a dog or cat and fails to have such dog or cat vaccinated or revaccinated against rabies, and whoever vaccinates a dog or cat against rabies and fails or refuses to keep and report the required record of such vaccination, or fails or refuses to provide the required tag, or whoever obstructs or interferes in any way with the enforcement of any section of this article shall, upon conviction, be fined not less than ten dollars nor more than fifty dollars, or be confined in the county jail not less than ten days nor more than sixty days, or both.
(1) The dog or cat has already been spayed or neutered;
(2) The dog or cat has been spayed or neutered by a licensed veterinarian while in the custody of the agency; or
(3) The new owner signs a written agreement with the agency stating that the new owner will have the dog or cat spayed or neutered by a licensed veterinarian:
(A) Within thirty days of the date of the adoption, if the dog or cat is sexually mature; or
(B) Within thirty days after the dog or cat reaches six months of age, if the dog or cat is not sexually mature at the time of the adoption.
(b) Any agency as set forth in subsection (a) of this section which has written policy of not permitting the adopted dog or cat from being released from the custody of the agency to the new owner until the dog or cat has been spayed or neutered, does not have to comply with the provisions of subdivision (3), subsection (a) of this section.
(c) Nothing in this section precludes the spaying or neutering of a sexually immature dog or cat at the discretion of a licensed veterinarian with the consent of the new owner.
(b) If the new owner fails to have the dog or cat spayed or neutered within the time frame established in section two of this article, or if the spaying or neutering is timely performed, but the new owner fails to request the return of the deposit within an additional thirty days after the date by which the spaying or neutering is required to be performed, the deposit shall be forfeited to the agency holding the deposit and shall be used by the agency to conduct programs to spay or neuter dogs and cats or to conduct educational programs in support of the spaying and neutering of dogs and cats.
The jurisdiction, power and authority conferred upon the circuit courts of this state by this article shall include the establishing, organizing and providing for the operation and maintenance of drainage, levee and reclamation districts in this state, which districts, when organized, shall have the power to construct all levees, ditches, drains or canals, pumping plants, floodgates, and other needed improvements, or to have constructed, straightened, widened, deepened, strengthened and improved any levee, ditch, drain, creek or water courses within this state, all for the purpose of reclaiming, draining or improving any low, wet, swampy or overflowed lands in this state, or to prevent the overflow of lands, or to protect towns, municipalities and cities from such overflow therein: Provided, however, That in so doing navigation upon navigable streams in this state shall not thereby be impaired: Provided further, That such improvement will result in public benefit, or will promote the public health, or will be conducive to the general welfare of the community in which the proposed district is established.
Whenever the words "court,""judge" and "clerk of the court" are used in this article, they shall be construed to mean "circuit court,""circuit judge" and "clerk of the circuit court," respectively, unless otherwise indicated.
The petition shall describe in a general way, and by reference to roads, streams, railroads and other landmarks, the body of land or other property proposed to be reclaimed, drained, leveed, improved and embraced within the district, and shall set forth in a general way the conditions existing and the advantages that will result from the proposed improvement. It also shall indicate opposite the name of each signer the approximate acreage of each signer which will be affected. Said petition also shall contain a prayer that the lands described therein be declared a drainage district under the provisions of this article. The petition may be amended or supplemented at any time before the drainage, levee or reclamation district is fully and completely organized.
The petition may be signed by any landowner, male or female, married or single; guardians or committees may sign for their wards, and trustees, executors and administrators may sign for the estates represented by them. If the signature of any corporation, by its authorized officer or officers, is attached thereto, attested by the corporate seal, the same shall be sufficient evidence of the assent of the corporation to such petition. Any person having signed the petition shall have no right to have such proceedings dismissed as to him without the written consent of the majority in acreage of the owners who signed the petition.
Immediately upon the filing of the engineer's report, the clerk of the circuit court shall give notice by causing publication to be made as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in which are situated lands of the proposed district. The last publication shall be made at least fifteen days prior to the first day of the next regular or special term of the circuit court at which such petition is to be heard. Such notice shall be substantially in the following form which shall be deemed sufficient for all purposes of this article: NOTICE OF APPLICATION TO FORM DRAINAGE DISTRICT.
Notice is hereby given to all persons interested in the following described real estate in _________________ county of West Virginia (here describe the property as set out in the petition) that a petition asking that the foregoing lands and other property be formed into a drainage district under the provisions of the statutes of West Virginia, and that the lands and other property above described will be affected by the formation of such drainage district and be rendered liable for taxation for the purposes of paying the expenses of organizing, making and maintaining the improvements that may be found necessary to drain, protect and reclaim the lands and other property in said district, and you and each of you are hereby notified to appear at a term of the circuit court of _______________ county, to be held on the ______ day of __________________, 19_____, at the courthouse thereof, and show cause, if any there be, why such drainage district, as set forth in the petition, should not be organized.
_____________________________________________ Clerk of the Circuit Court __________ County.
The circuit court of the county in which the petition shall have been filed shall thereafter maintain and have original and exclusive jurisdiction coextensive with the boundaries and limits of such district, without regard to county lines, for all purposes of this article.
If the board of appraisers finds that other lands not embraced within the boundaries of the district will be affected by the proposed improvement, they shall assess the estimated benefits and damages to such land and shall specifically report to the court the assessments which they have made on the lands beyond the boundaries of the district as already established. It shall then be the duty of the clerk of the circuit court to give the following described notice by publication as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county where such lands lie. The notice shall describe the lands which have been assessed, and the owners of real property so assessed shall be allowed twenty days after the publication of such notice to file with the clerkof the circuit court their protest against being included within the district. The circuit court shall at its next session investigate the question whether the lands beyond the boundaries of the district so assessed by the appraisers will in fact be benefited or damaged by the making of the improvement; and from its findings in that regard either the property owners affected by the assessment of the appraisers or the district may within twenty days file an appeal. If the finding is in favor of the district, the limits of the district shall be extended so as to embrace any lands that may be affected by the making of the improvements, and such lands shall be subject to the taxes provided for in section eleven of this article. The appraisers shall have no power to change "the plan for reclamation" heretofore provided for.
The board of appraisers shall prepare a report of their findings, which shall be arranged in tabular form, the columns of which shall be headed as follows: Column one, "owner of property assessed"; column two, "description of property assessed"; column three, "number of acres assessed"; column four, "amount of benefits assessed expressed in dollars and cents"; column five, "number of acres taken for right-of-way"; column six, "value of property taken"; column seven, "damages assessed." They shall also, by and with the advice of the engineer of the district, estimate the cost of works set out in "the plan for reclamation," which estimate shall include the cost of property required for rights-of-way and damages and the actual expenses of organization and administration, as estimated by the board of supervisors, and shall itemize and tabulate the same. Such reports shall be signed by at least a majority of the appraisers and filed in the office of the circuit clerk in which the petition was filed. The secretary of the board of supervisors, or his deputy, shall accompany such appraisers while engaged in their duties, and shall perform all the clerical work of such board; he shall also, under the advice, supervision and direction of the attorney for the district, prepare their report. The board of appraisers shall report to the board of supervisors the number of days each had been employed and the actual expenses incurred. Each appraiser shall be paid five dollars per day for his services, and necessary expenses in addition thereto.
NOTICE OF FILING OF APPRAISERS' REPORT.
For ............ Drainage District.
Notice is hereby given to all persons interested in any land
and property included within ............... Drainage District in
................ county (or counties), West Virginia, that the
appraisers heretofore appointed to assess benefits and damages to
the property and lands situated in such drainage district and to
appraise the cash value of the land necessary to be taken for
rights-of-way and other works of such district, within or without
the limits of such district, filed their report in this office on
the ........ day of ..........., 19 ....., as follows: (Here
insert report of appraisers.) And you and each of you are hereby
notified that you may examine such report and file exceptions to
all or any part thereof, as provided by law.
................................
Clerk of the Circuit Court of ............. County, West
Virginia.
Provided, That where lands in different counties are contained in such report, it shall not be necessary to publish in each county the appraisers' report on all of such lands in such district, but only that part relating to property situate in the respective counties.
Any owner of real property within the district who conceives himself to be aggrieved by the assessment of benefits or damages, or who deems that the assessment of any land in the district is inadequate, shall present his complaint to the circuit court at the first regular, adjourned, or special session held more than ten days after the last publication of such notice, and such court shall consider the same and enter its findings thereon either confirming such assessment or increasing or diminishing the same, and its findings shall then have the force and effect of a judgment from which an appeal may be taken within twenty days, either by the property owners or by the supervisors of the district.
It shall be the duty of the board of supervisors to have the amount of work performed by any contractor estimated from time to time, as may be desirable, by the chief engineer, and the board shall draw its warrants in favor of the contractor for not more than eighty percent of the amount of work so required, reserving the remainder until it has been ascertained that the work has been completed according to contract, and is free from liens.
County of ............ ) ss.
To ..................., sheriff of said county:
This is to certify that by virtue and authority of the laws of West Virginia relating to drainage districts, the board of supervisors of .............. drainage district of West Virginia has levied and does hereby levy the sum of $.......... as the annual installment of tax for the year 19.... of the total tax levied under the provisions of said laws; and the board of supervisors of such district, by and with the authority of said laws, has levied also the sum of $...... as a maintenance tax for such year. Said annual installment of tax and maintenance tax on the real estate and other property in such drainage district situate in your county are set out in the following table, in which are: First, the names of the owners of such lands and other property, as they appear in the decree of the court organizing such district, are as they appear on the records of the clerk of the county court on the first day of April of each year subsequent to the decrees of the court; second, the descriptions of such lands and other property opposite the names of such owners; third, the amount of such installment of tax levied on each tract of real estate and other property; and fourth, the amount of maintenance tax levied against the same. Such taxes shall be collectible and payable for the present year at the same time that state and county taxes are due and collected, and you are directed and ordered to demand and collect such taxes between the first day of October and last day of December of the present year, and this certificate "drainage tax book" shall be your warrant and authority for making such demand and collection.
Witness the signature of the president of such board of supervisors, attested by the seal of such district, and the signature of the secretary of said board, this .......... day of .............., 19.....
..........................
President of District.
Then shall follow a table of schedules showing in properly ruled columns, first, the names of the owners of such lands and other property; second, the description of such lands and other property opposite the names of such owners; third, the amount of such annual installment tax levied on each tract of land or piece of property; fourth, the amount of maintenance tax; fifth, a blank column in which the sheriff of the county shall record the several amounts as collected by him; sixth, a blank column in which the sheriff shall record the date of payment of the different sums; seventh, a blank column in which the sheriff shall record the names of the person or persons paying the several amounts. The columns in which the annual installment tax and the maintenance tax, if any, appear shall be correctly totaled and the total amount shall correspond to the amount set out in the above-mentioned certificate. Such certificate and table shall be prepared in the form of a well-bound book which shall be indorsed and named "drainage tax book".............. drainage district ................ county, West Virginia, for the year 19...., which indorsement shall also be printed at the top of each page in said book.
v.
Delinquent lands.
All persons having or claiming an interest in any of the following described lands are hereby notified that suit is pending in the circuit court of ______________ county, West Virginia, to enforce the collection of certain drainage taxes on the subjoined list of lands, the name of each supposed owner having been set opposite his or her or its lands, together with the amounts severally due from each, to wit:
(Then shall follow a list of supposed owners, with a descriptive list of such delinquent lands, and the amounts due thereon respective as aforesaid, and such public notice may conclude in the following form:)
All persons and corporations interested in such lands are hereby notified that they are required by law to appear within thirty days after the first publication hereof and make defense to such suit, or the same will be taken for confessed and final judgment will be entered directing the sale of such lands for the purpose of collecting such taxes, together with the payment of interest, penalty and costs allowed by law.
__________________________
Clerk of Said Court.
Such suit shall be set for trial at the first term of court after the completion of such publication, unless a continuance be granted for good cause shown, within the discretion of the court; and such continuance may be granted as to a part of such lands or defendants, without affecting the duty of the court to dispose finally of the others as to whom no continuance may be granted, and in all cases where notice has been properly given as aforesaid, and where no answer has been filed, or if filed, and the cause decided for the plaintiff, the court by its decreeshall grant the relief as prayed for in the complaint and shall direct such commissioner to sell the lands or other property described in the complaint at the front door of the courthouse of the county wherein the decree is entered, at public outcry, to the highest and best bidder for cash in hand, after having first advertised such sale (such advertisement may include all the lands described in the decree) as a Class III-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county. If all the lands or other property be not sold on the day as advertised, such sale shall continue from day to day until completed. The commissioner shall sell such lands as directed, and the court, upon approval and confirmation of such sale, shall appoint a commissioner to execute proper deeds conveying to the purchaser the lands and other property so sold, and the title to such lands and other property shall thereupon become vested in such purchaser as against all others whomsoever, saving to infants and to insane persons having no guardian or committee the right they now have by law to appear and except to such proceedings within three years after their disabilities are removed.
In all suits brought under this section a reasonable attorney's fee shall be taxed in favor of the attorney for the plaintiff, which fee shall be added to the amount of the costs.
In case the supervisors shall fail to commence suit within sixty days after the taxes become delinquent, the holder of any bond issued by the district shall have right to bring suit for collection of the delinquent assessments, and the proceedings in such suit brought by the bondholder shall in all respects be governed by the provisions applicable to suits by the supervisors.
If any bond or interest coupon or any bond issued by such board is not paid within thirty days after its maturity, it shall be the duty of the circuit court of the proper county, on application of any holder of such bond or interest coupon so overdue, to appoint a receiver to collect the taxes aforesaid; and the proceeds of such taxes and collections shall be applied, after payment of costs, first to overdue interest, and then to payment pro rata of all bonds issued by such board which are then due and payable; and such receiver may be directed by suit to foreclose the lien of such taxes on such lands; and the suits so brought by such receiver shall be conducted in all matters as suits by the board as hereinbefore provided, and with like effect, and the decrees and deed therein shall have the same presumptions in their favor: Provided, however, That when all such past due sums have been paid, the receiver shall be discharged, and the affairs of the district conducted by the board of supervisors of such district as hereinbefore provided.
Whenever it becomes necessary for any county or any public utility to construct, enlarge or reconstruct any bridge, culvert, aqueduct or other structure under the provisions in the paragraph immediately preceding, such changes shall be made within the time directed by the circuit court either in term or vacation. In case such changes or adjustments are not made within the prescribed time, the board of supervisors may proceed to make such necessary changes at the expense of the county or public utility.
In case it is necessary to pass any dredge boat or other equipment through a bridge, aqueduct, trestle or other structure of any railroad company or other public utility, county, district, or municipality, the board of supervisors shall give twenty days' notice to the owner of said structure that the same shall be removed temporarily by a certain date to allow the passage of such equipment, or that an agreement be immediately entered into in regard thereto. The owner of such structure shall keep an itemized account of the cost of the removal, and, if necessary, of the replacing of such structure, and such actual cost shall be paid by the district. In case the owner of such structure shall refuse to provide for the passage of such equipment, the board of supervisors may remove such structure at its own expense, interrupting traffic in the least degree consistent with good work and without delay or unnecessary damage. In case they shall be prevented from doing so, the owner of such structure shall be liable for damages for the resulting delay.
NOTICE OF DRAINAGE HEARING
To the owners and all persons interested in the lands, corporate and other property in and adjacent to ______ _______________ drainage district:
You and each of you are hereby notified that (here state by whom petition was filed) has filed in the office of the circuit clerk of __________________ county, _______________, a petition praying such court for permission to (here insert the prayer of such petition), and unless you show cause to the contrary on or befo
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