(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).
(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.