Senate Bill No. 431
(By Senators Edgell and Love)
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[Introduced February 1, 2007; referred to the Committee on
Agriculture.]
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A BILL to amend and reenact §19-15A-1, §19-15A-2, §19-15A-3,
§19-15A-4, §19-15A-5, §19-15A-6, §19-15A-7, §19-15A-8,
§19-15A-9 and §19-15A-10 of the Code of West Virginia, 1931,
as amended, all relating to the regulation of agricultural
liming materials; and updating definitions.
Be it enacted by the Legislature of West Virginia:
That §19-15A-1, §19-15A-2, §19-15A-3, §19-15A-4, §19-15A-5,
§19-15A-6, §19-15A-7, §19-15A-8, §19-15A-9 and §19-15A-10 of the
Code of West Virginia, 1931, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 15A. WEST VIRGINIA AGRICULTURAL LIMING MATERIALS LAW.
§19-15A-1. Definitions of words and terms.
As used in this article:
(a) "Agricultural liming material" means a product
with
calcium or that contains calcium and magnesium
carbonate, hydroxide or oxide which are compounds which are capable of neutralizing soil
acidity.
and which are intended to be used to neutralize 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
agricultural liming materials in nonpackaged
form.
(d) "Burnt lime" means a
material, made from limestone which
consists essentially of calcium oxide or a combination of calcium
oxide with magnesium oxide 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"
means the acid neutralizing
capacity of agricultural liming material expressed as the weight
percentage of calcium carbonate (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,
Exempted from this definition are 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
classification" means
the designation given to
the product by 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.
which consists essentially of calcium hydroxide or a combination of
calcium hydroxide with magnesium oxide and magnesium hydroxide, or
both magnesium oxide and magnesium hydroxide.
(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.
(o) (p) "Label" means any written or printed matter on or
attached to the package or on the delivery ticket which accompanies
bulk shipments.
(p) (q) "Limestone" means a material consisting essentially of
calcium carbonate
or a combination of calcium carbonate with
magnesium carbonate capable of neutralizing soil acidity.
(q) (r) "Marl" means a granular or loosely consolidated earthy
material composed largely of shell fragments and calcium carbonate
precipitated in ponds.
(r) (s) "Percent or percentage" means
percent or percentage a
part of a whole expressed in hundredths by weight.
(s) (t) "Person" means any individual, partnership,
association, fiduciary, firm, corporation or any organized group of
persons whether incorporated or not.
(t) (u) "Registrant" is a person who registers agricultural
liming materials by product and is responsible for the guarantee of
such the product.
(u) "Slag" means any industrial waste or by-product containing
calcium or calcium and magnesium in forms that will neutralize soil
acidity.
(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.
§19-15A-2. Registration of brands; registration fees.
(a) No Agricultural liming material shall may not be used,
sold or offered for sale in the state unless it has been registered
with the commissioner.
(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 twenty-five dollar
registration fee for each brand of the agricultural liming material
registered and the commissioner shall collect a ten dollar
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.
§19-15A-3. Required labeling; toxic materials prohibited.
(a) No A person shall may not sell, offer to sell or expose
for sale in the state any agricultural liming materials which do
not have affixed to the outside of each package in a conspicuous manner a plainly printed, stamped or otherwise marked label, tag or
statement or, in the case of bulk sales, a delivery invoice
including at least the following:
(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. or total
elemental calcium and total elemental magnesium.
(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 shall 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 no agricultural liming material shall 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.
§19-15A-4. Inspection fee; report of tonnage; annual report.
(a) The amount of the inspection fee shall be clearly stated
on Each sales invoice prepared in normal course of business by
either a registrant or distributor reflecting shall reflect the
amount of said the inspection fee and the name of the payor. of the
same.
(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 him each registrant and distributor
in the state
during the previous six months' period. Such The report of tonnage
shall be accompanied by payment of an inspection fee at the rate of
five cents per ton as established by legislative rule. If such the
tonnage, or portion thereof, has been paid by another person, documentation by invoice must accompany such report. The minimum
semiannual payment and late fee shall be established by legislative
rule. shall be ten dollars. The minimum fee is waived if the total
amount of the semi-annual inspection fee due is two dollars or
less. A penalty of ten percent of the fees due or ten dollars
whichever is greater shall be assessed a registrant or distributor
whose report is not received by the fifteenth day of August and the
fifteenth day of February each calendar year.
(c) The commissioner shall publish and distribute at least
annually on the Department of Agriculture's website to each
agricultural liming material registrant, distributor and other
interested persons, a composite report showing the net tons of
agricultural liming material sold in this state during the
preceding period. This report shall in no way may not divulge
information that can be related to the business of any individual
registrant.
§19-15A-5. Inspection; sampling; analysis.
(a) It shall be the duty of The commissioner shall to audit,
inspect, sample, analyze and test agricultural liming materials
used, sold or offered for sale within the state as he or she may
deem considers necessary to determine whether such the agricultural
liming materials are in compliance with the provisions of this
article. and For this purpose the commissioner is authorized to
may enter upon any public or private premises or carriers during
reasonable times to inspect and sample liming materials and to inspect records related to their distribution.
(b) The methods of analysis and sampling shall be those
approved by the commissioner and guided by the AOAC procedures.
association of official analytical chemists or those approved by
the commissioner.
(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 may deem 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
be is made within thirty days of the assessment of a violation.
(e) The commissioner In determining whether any agricultural
liming material is deficient in guarantee, the commissioner shall
be guided solely by the official sample.
§19-15A-6. Embargo; suspension or cancellation of registration;
seizure of materials.
(a) The commissioner is authorized to may suspend or cancel
the registration of any brand of agricultural liming material and
to may refuse the application for registration of any brand of
agricultural liming material upon being presented satisfactory
evidence that the registrant has used false, fraudulent or
deceptive practices in the evasion or attempted evasion of the
provisions of this article or any regulation issued thereunder
related rule: Provided, That no registration shall be suspended, revoked or refused until the registrant has been given an
opportunity to appear for a hearing before the commissioner.
(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 the regulations issued thereunder related rule. and such
The order shall remain in effect until it has been rescinded in
writing by the commissioner: Provided, That the commissioner shall
may not rescind any embargo order until the requirements of this
article have been complied with and all related costs and expenses
incurred in connection therewith have been paid.
(c) Any agricultural liming material found to be in violation
of the provisions of this article shall be 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. In no
instance shall The court may not order the disposition of said
agricultural liming material be ordered by the court without first
giving the claimant owner or custodian an opportunity to apply to
the court for release of said the agricultural liming material or
for permission to process or relabel said the agricultural liming
material to bring it in compliance with this article.
§19-15A-7. Deficiency assessment, tolerances and payment.
(a) A registrant shall pay a deficiency assessment in
accordance with the provisions of this section for each lot of
agricultural liming material found to be deficient in its
guaranteed analysis. Deficiencies existing in more than one
component shall be considered additional violations.
(b) When the calcium carbonate equivalent is found to be over
five percent deficient from the stated guarantee, the registrant
shall pay a deficiency assessment equal to two times the actual
cash value of the deficiency based on the retail price per ton at
the distribution point where the official sample was collected.
The cash value of the deficiency is calculated by multiplying the
actual percent deficiency, less the five percent taken, times the
retail price per ton, times the tons in the lot sampled. The
minimum assessed penalty shall be fifty cents per ton in the lot
sampled.
(c) When the product is found to be over five percent
deficient in one or more of the guarantees for fineness
classification, a penalty shall be assessed at one dollar per ton
in the lot sampled.
(d) When the product is found to be over ten percent deficient
for one or more of the following guarantees: Calcium oxide,
magnesium oxide, calcium carbonate, magnesium carbonate, total
elemental calcium or total elemental magnesium, a penalty shall be
assessed at one dollar per ton in the lot sampled.
(e) (b) Such A registrant shall pay
the deficiency assessment
shall be paid to the ultimate consumer of the product with and
deliver receipts for the payment thereof being delivered to the
commissioner. as evidence of payment being made. If said 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.
(f) (c) If any a deficiency assessment has not been paid
within sixty days of the notice of such the assessment, then a late
payment penalty, as established by legislative rule, of ten percent
of the original penalty assessment will be added for each one
hundred eighty days such that the assessment remains unpaid.
§19-15A-8. Rule-making authority.
The commissioner shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code to establish, implement and enforce the provisions of this
article, which rules shall include, but not be limited to:
(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.
§19-15A-9. Disposition of fees.
Any fees and penalties collected under the provisions of this
article shall be deposited with the State Treasurer in a special
revenue account known as the Agricultural Fee Fund as established in article one, chapter nineteen of this code.
§19-15A-10. Penalties.
Any person violating any of the provisions of this article or
the regulations issued thereunder related rule shall be guilty of
a misdemeanor and, upon conviction, thereof, shall be fined not
less than two hundred dollars nor more than three hundred dollars
for the first offense and not less than three hundred dollars nor
more than one thousand dollars for each subsequent offense.
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(NOTE: The purpose of this bill is to impose regulations
relative to agricultural liming materials. The bill also updates
definitions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. §19-15A-8 and §19-15A-9 have been completely rewritten;
therefore strike-throughs and underlines have been omitted.)
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