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.
(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.
Note: WV Code updated with legislation passed through the 2012 1st Special Session