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Email: Chapter 19

§19-23-12e. Licensing of advance deposit account wagering.

(a) As used in this section:

“Account” means an advance deposit wagering (ADW) account owned by an account holder and managed by an ADW licensee that the Racing Commission has determined will maintain a specific identifiable record of account deposits, wagers, credits, debits, and withdrawals, and protect the account holder’s confidential information.

“Account holder” means a resident individual, at least 18 years of age who applies for and successfully opens an account with an ADW licensee.

“Advance deposit account wagering” means a method of pari-mutuel wagering that is permissible under the Interstate Horseracing Act, 15 U.S.C. §3001 et seq., in which an individual may establish an account with a person or entity, licensed by the Racing Commission, to place pari-mutuel wagers on horse or greyhound racing with the ADW licensee via electronic media or by telephone, but not including account wagering conducted through a licensee under §19-23-9(a) of this code, and the Racing Commission’s rules thereunder with respect to wagering conducted pursuant to Racing Commission Rule §178-5-5.

“Advance deposit account wagering licensee” means an entity licensed by the Racing Commission to conduct advance deposit account wagering that accepts deposits and wagers, issues a receipt or other confirmation to the account holder evidencing the deposits and wagers, and transfers credits and debits to and from an account.

“ADW” means advance deposit account wagering.

“Confidential information” means: (A) The amount of money credited to, debited from, withdrawn from, or present in an account; (B) the amount of money wagered by an account holder on any race or series of races, or the identities of racing associations on which the account holder is wagering or has wagered; (C) the account number and secure personal identification information of an account holder; and (D) unless authorized by the account holder, the name, address, or other information that would identify the account holder to any person or entity other than the Racing Commission or the ADW licensee that manages the account.

“Electronic media” means any electronic communication device or combination of devices, including, but not limited to, personal computers, the Internet, private networks, interactive televisions, and wireless communication technologies or other technologies approved by the Racing Commission.

“Licensee” means any racing association holding a license as defined by §19-23-3 of this code;

“Located” means, in regard to a resident account holder, where his or her principal residence is located.

“Principal residence” means the street address identified by a resident account holder as that individual’s residential address, as the address may be verified by the ADW licensee to the satisfaction of the Racing Commission.

“Resident” is an individual who: (A) Is domiciled in West Virginia; (B) maintains a place of abode and spends at least 183 days within a calendar year in West Virginia; or (C) lists an address in West Virginia as his or her principal residence when opening an account.

“Source market fee” means a fee paid by the ADW licensee which shall be four percent of the total amount wagered through the ADW licensee by residents under this section, excluding refunds and cancellations, payable on a monthly basis to the Racing Commission and distributed as set forth in subsection (b) of this section.

“Total handle” means the total annual dollar sales amount of all pari-mutuel wagering on horse and greyhound races conducted at, or generated from, imports or exports of simulcast horse and greyhound races to or from a licensee, including all moneys from wagering conducted under §19-23-9, §19-23-12a, §19-23-12b, and §19-23-12c of this code, but excluding refunds, cancellations, and advance deposit account wagering under this section.

(b) The source market fee shall be paid by the ADW licensee on a monthly basis to the Racing Commission and distributed as provided in this subsection. The Racing Commission shall prorate all source market fees derived from wagers of account holders between the licensees by dividing each licensee’s total handle by the total handle of all West Virginia licensees in the prior calendar year, and distribute the prorated amounts as follows:

(1) Ten percent of each horse racing licensee’s prorated amount to the West Virginia Thoroughbred Development Fund or 10 percent of each dog racing licensee’s prorated amount to the West Virginia Racing Commission Special Account-West Virginia Greyhound Breeding Development Fund;

(2) Forty-five percent to the purse fund of each prorated licensee; and

(3) Forty-five percent to each prorated licensee.

(c) The advance deposit account wagers placed by account holders with an ADW licensee licensed by the Racing Commission in accordance with this section are authorized, and the provisions of §61-10-1 et seq. of this code relating to gaming do not apply to advance deposit account wagering conducted in accordance with this section.

(d) The Racing Commission is vested with jurisdiction over any person or entity that solicits account holders or offers advance deposit account wagering in West Virginia. Any person or entity that solicits account holders or offers advance deposit account wagering in West Virginia shall be licensed and the Racing Commission may impose a nonrefundable initial and annual renewal licensing application fee not to exceed $5,000. The Racing Commission may also require any applicant for an initial or renewal ADW license to bear the costs involved in conducting background checks and reviews. If a licensee or an affiliate of a licensee applies for an ADW license under this section, all fees under this subsection shall be deemed paid and an ADW license issued as part of a licensee’s annual licensing, or, if the license application is submitted apart from annual licensing, an ADW license shall be issued at the time the application is submitted.

(e) A person or entity may not conduct advance deposit account wagering in West Virginia unless the person or entity has applied for and been granted an ADW license by the Racing Commission. The Racing Commission shall also ensure that, except for advance deposit account wagering authorized under this section, all pari-mutuel wagering on racing is conducted within the confines of a licensee’s racetrack or licensed contiguous hotel, as permitted under §19-23-9(a) and §19-23-12a(1) of this code and implementing rules thereunder, including Racing Commission Rule §178-5-5, or within an authorized gaming facility in a historic resort hotel, as permitted under §19-23-12d of this code and implementing rules thereunder.

(f) Any person who is not licensed as an advance deposit account wagering licensee by the Racing Commission who accepts an advance deposit account wager from a resident is guilty of a felony and, upon conviction thereof, shall be fined not more than $50,000 or imprisoned in a state correctional facility not more than five years, or both fined and imprisoned. Further, the court shall order any convicted person to pay restitution to recover all amounts that would have been payable to the Racing Commission under this section.

(g) The Racing Commission may seek injunctive relief against any person who is not licensed as an advance deposit account wagering licensee by the Racing Commission who accepts or attempts to accept an advance deposit account wager from a resident. The Racing Commission may also seek recovery of all amounts that would have been payable to the Racing Commission under this section, damages equal to three times the amount of recovery, and reasonable costs and attorney fees. Damages recovered by the Racing Commission shall be distributed as source market fees under this section.

(h) There is hereby assessed a regulatory fee paid by the ADW licensee, which shall be one-half percent of the total amount wagered through the ADW licensee by residents under this section, excluding refunds and cancellations, payable on a monthly basis to the Racing Commission for deposit into the Racing Commission’s general administrative account.

(i) There is further assessed an additional fee paid by the ADW licensee, which shall be one and one-half percent of the total amount wagered through the ADW licensee by residents under this section, excluding refunds and cancellations, payable on a monthly basis to the Racing Commission for deposit into a special revenue account in the State Treasury to be known as the “Advance Deposit Wagering Account” to be expended pursuant to appropriation of the Legislature.

(j) Advance deposit account wagers placed by residents are considered to be wagering conducted in this state and subject to the laws of this state and the rules of the Racing Commission.

 (k) The Racing Commission shall submit a report by December 31, 2020, and annually thereafter to the Joint Committee on Government and Finance detailing the operation of ADW in this state. The report shall include, but is not limited to, the following:

(1) A complete list of ADW licensees offering ADW services;

(2) The total amount of funds paid to the Racing Commission pursuant to subsection (h) of this section;

(3) The total amount deposited in the preceding 12-month period in the special revenue account set forth in subsection (i) of this section;

(4) The amounts distributed as set forth in subdivision (b) of this section;

(5) Beginning with the report due December 31, 2021, a statistical comparison of ADW     services to the preceding year; and

(6) The total amount of wagering by West Virginia residents through ADW Licensees.

(l) The Racing Commission may propose legislative rules for promulgation, pursuant to §29A-3-1 et seq. of this code, to implement this section and may propose emergency rules to provide conditions for the licensing of advance deposit account wagering. Those rules may include, but are not limited to: (1) Standards, qualifications, and procedures for the issuance of an advance deposit account wagering license in West Virginia; (2) rules establishing initial and renewal license fees and payment of same to the Racing Commission to cover the costs of licensing ADW licensees; (3) provisions regarding the collection and distribution of those fees; (4) provisions regarding access to books and records and submission to investigations and audits by the Racing Commission; (5) standards and procedures for opening, maintaining, operating, and securing ADW accounts, as well as protecting confidential information therein; and (6) any other conditions to ensure an orderly process of accepting ADW wagers in acting in the best interests of the West Virginia horse and dog racing industries.

§19-36-4. Liability of agritourism businesses.

(a) To qualify for the limitation on liability afforded by §19-36-3 of this code, an agritourism business shall post and maintain signs that contain the notice specified in §19-36-4(b) of this code. The sign must be placed in a clearly visible location at the entrance to the agritourism location and at the site of the agritourism activity. The notice must be clearly legible, with each letter to be a minimum of one inch in height. Every written contract entered into by an agritourism professional for the providing of professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves agritourism activities on or off the location or at the site of the agritourism activity, must contain in clearly legible print the notice specified in §19-36-4(b) of this code.

(b) The signs and contracts described in §19-36-4(a) of this code must contain the following notice:

NOTICE

Under West Virginia law, there may be limited liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism business if the injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to landscape, terrain, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.

(c) Failure to comply with the requirements concerning notices provided in this section will prevent an agritourism business from invoking the privileges of immunity provided by this article.

§19-36-5. Maintenance of property status for certain purposes; exceptions.

(a) Notwithstanding any provision of this code to the contrary, the occurrence of agritourism does not change the nature or use of property that otherwise qualifies as agricultural for building code and property tax classification purposes.

(b) An agritourism business may use certain of its facilities for occasional events without complying with building codes applicable to structures used for such purposes on a full-time basis as long as such facilities are deemed structurally sound and otherwise safe for the intended use.

§19-36-3. Duties of agritourism businesses and participants.

(a) An agritourism business, or agritourism business employee or volunteer acting under the direction of the agritourism business operator, is not liable for injury or death of a participant, or loss or damage to a participant’s property, as the result of the inherent risks of agritourism activities if such agritourism business has posted the notice in substantially the form as is provided in §19-36-4(b) of this code.

(b) The provisions of §19-36-3(a) of this code shall not prevent or in any way limit the liability of an agritourism business that does any of the following:

(1) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the health and safety of the participant which proximately causes injury, death, loss, or damage to the participant; or

(2) Commits an intentional act or omission which proximately causes injury, death, loss, or damage to the participant.

(c) Any limitation on legal liability afforded by this section to an agritourism business is in addition to any other limitations of legal liability otherwise provided by law.

(d) Participants have a duty to act as a reasonably prudent person when engaging in recreational activities offered by agritourism businesses in this state.

§19-36-2. Definitions.

Unless the context of usage clearly requires otherwise:

“Agritourism” activity means any lawful activity carried out on a farm or ranch that allows members of the general public for recreational, entertainment, or educational purposes to view or enjoy rural activities.

“Agritourism business” means any person, fiduciary, firm, association, partnership, limited liability company, corporation, unit of government, or any other group or entity which is engaged in the business of providing one or more agritourism activities, whether or not for compensation.

“Agritourism professional” means owners, operators, employees, and volunteers working for or under the direction of the operators of an agritourism business.

“Farm” or “ranch” means an area of land used for the production, cultivation, growing, harvesting, or processing of agricultural products.

“Inherent risks of agritourism activity” are those dangers or conditions that are part of an agritourism activity including certain hazards, natural conditions of land and terrain, vegetation, and waters, the behavior of wild or domestic animals, and ordinary dangers of structures or equipment ordinarily used in farming and ranching operations. Inherent risks of agritourism activity also include the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, including failing to follow instructions given by the agritourism professional or failing to exercise reasonable caution while engaging in the agritourism activity.

“Participant” as used in this article means any person, other than the agritourism professional, who engages in an agritourism activity.

ARTICLE 36. AGRITOURISM RESPONSIBILITY ACT.

§19-36-1. Legislative purposes; authority.

Every year, in rapidly increasing numbers, residents and nonresidents of the State of West Virginia are enjoying the recreational value of the state’s many agritourism venues. The tourist trade is of vital importance to the State of West Virginia and the services offered by agritourism significantly contribute to the revenue enterprise and economic development of the state. The Legislature recognizes that there are inherent risks in the recreational activities provided by agritourism which should be understood by each participant. It is essentially impossible for agritourism to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which agritourism is liable for loss, damage, or injury.

The Commissioner of Agriculture is hereby authorized to, and shall devise means of, advancing agritourism in the state, and in the performance of such duty, he or she shall have the authority to call upon any department, division, or officer of the state or county to cooperate with him or her in promoting agritourism in the state.

The Commissioner of Agriculture, in consultation with the Secretary of Commerce, shall promulgate rules in accordance with chapter 29A of this code for the promotion, marketing, and regulation of agritourism business.

§19-11E-3. Department to regulate milk and milk products.

Effective July 1, 2019, the Department of Agriculture shall be responsible for regulating all matters addressed in the Grade "A" Pasteurized Milk Ordinance issued by the federal Food and Drug Administration. This includes, but is not limited to, inspection of milk production facilities, inspection of facilities making single-use containers for dairy products, collection and testing of milk samples, and training and certification of inspectors.

§19-11E-4. Milk producer permits.

(a) A person may not sell milk, milk products, or manufactured dairy products within this state without having a current, valid permit from the Commissioner of Agriculture.

(b) A separate permit shall be obtained for each milk plant, milk producer, milk distributor, receiving station, transfer station, bulk tank unit, and milk tank truck cleaning facility.

(c) Permits are not transferable with respect to persons or locations.

(d) Permits shall be applied for at least 30 days before the date that the current permit expires or within 30 days of the date that the person intends to engage in business. Applications 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 an application fee. A penalty shall be added to all permits that are not applied for or renewed within the time limits set forth in this subsection.

(e) Permits shall be posted prominently at the place of operation.

(f) Within 30 days of receiving a complete application for an initial permit, the commissioner will inspect the applicant’s operation to determine whether it meets the standards set forth by this code and rules promulgated pursuant thereto that would be applicable if the applicant received the permit applied for. If the applicant satisfies those requirements, the commissioner shall issue the permit.

(g) Permits shall be valid for one year.  

§19-11E-5. Licenses.

(a) Licenses shall be issued by the commissioner to certified inspectors of milk production facilities. Licenses are not transferable.

(b) Applications for 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.

(c) Licenses shall expire on June 30 following the date of issue. License renewals shall be applied for at least 15 days previous to the date when the current license expires. The commissioner may assess a penalty for licenses that are not applied for or renewed within this time limit.

§19-11E-6. Labeling.

(a) All packages of milk or milk 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.

§19-11E-7. Adulteration.

Any milk or any milk products are considered adulterated within the meaning of this article if:

(1) They bear or contain any poisonous or deleterious substance or compound in a quantity which may render it injurious to health;

(2) 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;

(3) They are or have been produced, transported, or held under unsanitary conditions;

(4) They contain any substance added thereto so as to make them appear better or of a greater value than they are; or

(5) They meet or have met other conditions of adulteration as established by rule.

§19-11E-8. Authority and duties of the commissioner.

The commissioner has the power and duty to:

(1) Propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code, including adopting with any necessary modifications the Grade "A" Pasteurized Milk Ordinance promulgated by the Food and Drug Administration;

(2) Adopt, promulgate, and enforce other rules for legislative approval in accordance with §29A-3-1 et seq. of this code as necessary to carry out the purpose of this article;

(3) 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;

(4) Inspect and photograph all places where milk is manufactured, packaged, stored, held, transported, or distributed; inspect, audit, and copy records and papers relating to the manufacturing, distribution, sampling, testing, and sale of milk; examine measuring and testing apparatus; and examine equipment used in manufacturing and transportation of milk;

(5) Sample milk, 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 milk or milk product or an ingredient to be used in the manufacture of milk or a milk product for the purpose of inspecting and sampling;

(6) Issue, suspend, revoke, or deny permits;

(7) Collect fees and expend moneys under the terms of this article;

(8) 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 milk or milk products;

(9) Examine the labels and labeling of milk and milk products;

(10) Issue embargoes for any milk or milk 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: Provided, That 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:

(A) 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;

(B) 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;

(C) 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 90 days of notice to the custodian of the product;

(D) The commissioner may 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;

(11) Approve sampling and testing methods, and evaluate and approve official laboratories;

(12) 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;

(13) Conduct hearings as provided by this article; and

(14) 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.

§19-11E-9. Prohibited acts.

No person may:

(1) Have in his or her possession with the intent to sell, transport, or manufacture any milk which is adulterated within the meaning of this article;

(2) Interfere with or prohibit the commissioner from performing the duties of his or her office;

(3) Fail to comply with the provisions of an embargo order issued under this article;

(4) Fail to comply with the provisions of a revocation, suspension, or denial order issued under this article;

(5) While operating in any official capacity, obtain any information under the provisions of this article that would be considered trade secrets regarding the quality, source, and disposition of milk, and use this information for his or her own personal gain;

(6) Sell milk or milk products, where required, without a valid permit as required by the provisions of this article;

(7) Conduct inspections of milk production facilities for the purpose of certifying compliance with this article without a valid inspector license, and perform those duties in a dishonest or incompetent manner, or falsify the records thereof;

(8) 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;

(9) Represent an imitation dairy product to be a milk product;

(10) Conduct a test to determine the identity, quality, purity, grade, or quantity of a dairy product in a manner that is not in accordance with the Pasteurized Milk Ordinance; or

(11) Alter or destroy the results of a test conducted to determine the identity, quality, purity, grade, or quantity of a dairy product.

§19-11E-10. Suspension, revocation, or denial of permits or licenses.

(a) The commissioner may deny any application for a permit, license, or certificate whenever the permit, license, or certificate has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner, the applicant is determined to be not in compliance with or not able to comply with this article, or the applicant has not otherwise satisfied the requirements of 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 or his or her designee 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 10 days before the date set for the hearing. The commissioner shall review the evidence presented at the hearing prior to issuing his or her 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 10 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 may 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.

(d) Whenever the commissioner suspends or revokes any permit, license, or certificate based on a health hazard, he or she shall contact the county health officer, the Bureau for Public Health, and the federal Food and Drug Administration for the county in which the health hazard exists.

§19-11E-11. Hearings and appeals.

(a) Any person aggrieved by any action taken under this article shall have 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 90 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 60 days to the circuit court of the county in which the person’s principal place of business is located.

§19-11E-12. Criminal penalties; civil penalties; negotiated agreements.

(a) 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 $100 nor more than $500 for the first offense, and for the second or subsequent offense shall be fined not less than $500 nor more than $1,000, or confined in jail not more than six months, or both fined and confined. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.

(b) 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.

(1) The commissioner may assess a civil penalty of up to $1,000 for any 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 the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at 10 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 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 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 or her representative to report for prosecution as a result of minor violations of the article when the commissioner believes that the public interest will be best served by a suitable notice of warning in writing.

(e) Upon application by the commissioner, 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) The prosecuting attorney of the county in which the violation occurred shall represent the Department of Agriculture to institute proceedings and to prosecute the person charged with a violation.

§19-11E-13. Payment of fees.

All fees, penalties, or other moneys collected by the commissioner under the provisions of this article shall be paid into the Department of Agriculture’s fees account.

§19-11E-14. Cooperation with other entities.

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 entities in order to carry out the purpose and provisions of this article.

§19-11E-15. Confidentiality of trade secrets.

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.

§19-11E-16. Dairy Advisory Board.

(a) The commissioner shall establish a Dairy Advisory Board within the Department of Agriculture. The purpose of that board is to advise the commissioner with respect to the status of the dairy industry in West Virginia, obstacles to manufacture, processing, and sale of milk and milk products, recommendations with respect to changes in statutes and regulation, changes in technology and processes utilized by the dairy industry, and other hindrances to growth of the industry in West Virginia.

(b) The commissioner shall, by rule, establish minimum requirements and qualifications for the members of the advisory board.

§19-11E-17. Transfer of milk regulation authority from Department of Health and Human Resources to Department of Agriculture.

(a) Effective July 1, 2019, authority for the regulation, including enforcement, of Grade "A" milk is hereby transferred to the commissioner from the Department of Health and Human Resources.

(b) Prior to July 1, 2019, the commissioner and the Department of Health and Human Resources shall enter into an agreement to provide for the orderly transition of regulatory operations from the Department of Health and Human Resources to the commissioner. Said agreement shall provide:

(1) For the transfer of records and equipment related to the milk regulation program to the commissioner;

(2) For the continued provision of services by staff of the Department of Health and Human Resources to the commissioner under the terms of the agreement;

(3) For transition, upon notice to Department of Health and Human Resources, of functions from the Department of Health and Human Resources to the commissioner; and

(4) For the completion of the transfer of all responsibilities from the Department of Health and Human Resources to the commissioner no later than December 31, 2019.

(c) During a period from July 1, 2019, to December 31, 2019, the Department of Health and Human Resources shall cooperate fully with the commissioner to ensure a smooth transition of authority, knowledge, and resources to guarantee that milk regulation in West Virginia suffers no gap or failure in regulation.

(d) All legislative rules issued by the Department of Health and Human Resources pursuant to its authority to regulate milk shall remain in effect until superseded by the commissioner’s regulations.

§19-11E-2. Definitions.

"Adulterated" means milk or the products manufactured from milk meeting one or several of the conditions listed in §19-11E-7 of this code.

"Clean" means the condition where no residue remains on a surface that will, or is likely to, cause adulteration or other contamination.

"Commissioner" means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent.

"Distribute" means the act of transporting, holding for sale, offering for sale, selling, bartering, parceling out, giving, or otherwise disposing of milk.

"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 §19-11E-8 of this code.

"Manufacture" means pasteurizing, ultrapasteurizing, formulating, or compounding milk; or packaging or preparing said product for distribution; or other methods of preparing milk for consumption.

"Milk" means the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy mammals. The term may include the components of milk, including cream. For purposes of this article, the term "milk" does not include raw milk.

"Milk producer" means any person who operates a dairy farm and who provides, sells, or offers milk for sale.

"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.

"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.

"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.

"Transfer station" means any place, premises, or establishment where milk is transferred directly from one transport tank to another.

"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.

ARTICLE 11E. MILK AND MILK PRODUCTS.

§19-11E-1. Purpose and scope.

In 2018, the Legislature created the Joint Task Force on Milk Rules and Regulations in response to concerns about current regulation of the dairy industry in West Virginia. The Joint Task Force heard from, and collected data and other information from, dairy farmers, industry representatives, and regulators from West Virginia, other states, and the federal government. Following its review of the collected information, the Joint Task Force concluded that potential benefits and economies of scale would best be realized by transferring some or all authority to promulgate milk rules and regulations from the Department of Health and Human Resources to the Department of Agriculture.

It is the purpose of this article to establish the authority of the West Virginia Department of Agriculture to regulate milk and milk products within the state. It is the further purpose of this article to ensure that milk and milk products produced, manufactured, or sold in West Virginia are safe, while also ensuring that regulation is done in such a way as to foster the stability and growth of the dairy industry in West Virginia.

It is the intent of the Legislature that this article regulate the production, transportation, and sale of milk and milk products; 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 milk and milk products in interstate and intrastate commerce with a minimum of economic barriers.

§19-35-5. Potentially hazardous foods.

(a) Notwithstanding any provision of §16-1-1 et seq. of this code or any rules or regulations to the contrary, the department shall regulate potentially hazardous foods sold at farmers markets.

(b) A vendor of potentially hazardous foods shall apply for and obtain a farmers market vendor permit as required by §19-35-3a of this code.

(c) A home, farm, community, or commercial kitchen may be used by a potentially hazardous foods vendor, as determined by the department.

(d) The department shall establish by legislative rule the requirements for obtaining a vendor permit for potentially hazardous foods, including acidified foods, and other categories identified and defined by the department.

(e) All potentially hazardous foods sold at farmers markets shall be labeled in compliance with the department’s labeling standards and provide information about its content and sources.

§19-38-2. Definitions.

(a) “Commissioner” means the Commissioner of Agriculture, or his or her designee.

(b) “Department” means the West Virginia Department of Agriculture.

(c) “Fund” means the Agriculture Investment Fund created by this article.

(d) “Program” means the West Virginia Agriculture Investment Program created by this article.

§19-38-3. Agriculture Investment Fund created.

(a) There is hereby created in the State Treasury a special revenue account to be known as the West Virginia Agriculture Investment Fund. The fund shall be administered by the Department of Agriculture. The fund shall consist of all moneys that may be appropriated and designated for the fund by the Legislature, and all interest or other return earned from investment of the fund. The fund may receive any appropriations, gifts, grants, contributions, or other money from any source that is designated for deposit into the fund.

(b) Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of §11B-2-1 et seq. of this code. Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund and be expended as provided by this section.

§19-16-3a. Industrial hemp seed certification program; requirements; fees; rulemaking.

(a) The commissioner may create and administer an industrial hemp seed certification program to obtain and develop varieties of seeds which meet the purposes and provisions of §19-12E-1 et seq. of this code. The program shall be consistent with this article and applicable federal law. This program may include West Virginia landrace cannabis seed varieties. For the purposes of this article, "West Virginia landrace cannabis seed" means seed from the plant cannabis sativa that possesses characteristics of a unique and specialized cannabis seed variety that is present in West Virginia or has been recognized as produced in West Virginia.

(b) Persons or entities, licensed pursuant to §19-12E-1 et seq. of this code, may obtain a license for the development of industrial hemp varieties for certification. The commissioner may assess a fee, consistent with the provisions of §19-12E-7 of this code, to operate and administer the seed certification program. The fees shall be deposited in the Agricultural Fees Fund established by §19-1-4c of this code.

(c) The commissioner may promulgate emergency rules and shall propose rules for legislative approval pursuant to §29A-3-1 et seq. of this code for the purpose of implementing the provisions of this section.

CHAPTER 19. AGRICULTURE.
ARTICLE 1. DEPARTMENT OF AGRICULTURE.

§19-1-1. Department of agriculture.

There shall be a Department of Agriculture under the control and supervision of a commissioner of agriculture.

§19-1-2. Commissioner of Agriculture.

The commissioner of agriculture shall be elected by the qualified voters of the state at the same time and in the same manner as other state officers are elected, and shall hold office for a term of four years and until his or her successor is elected and qualified.

§19-1-3. Employees; itemized statement of expenditures; monthly statement and payment of moneys received by commissioner.

The commissioner shall organize his or her department and may employ a general counsel and other such legal, business, science, and technical professionals, para-professionals, and experts, and employees as may be necessary to perform the duties of the office. He or she shall fix their compensation and may require them to give bond for the faithful performance of their duties.

The commissioner shall certify to the State Auditor, from time to time, an itemized account of all expenditures made by him or her for employee hire and other purposes, whereupon the Auditor shall draw his or her warrant on the State Treasurer 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 10 days after the expiration of each month, submit to the Auditor and Treasurer an itemized statement of all moneys received by him or her during that month, and at the same time pay such money into the State Treasury.

§19-1-4e. Department of Agriculture Capital Improvements Fund.

There is hereby created in the State Treasury a special revenue account to be known as the Department of Agriculture Capital Improvements Fund. The fund shall be administered by the Department of Agriculture. The fund shall consist of all moneys transferred into the fund pursuant to §19-12A-6a of this code, any moneys that may be appropriated and designated for the fund by the Legislature, and all interest or other return earned from investment of the fund.

Expenditures from the fund shall be for the purpose of funding construction and capital improvements to facilities owned or occupied by the Department of Agriculture and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon the fulfillment of the provisions set forth in §11B-2-1 et seq. of this code. Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund and be expended as provided by this section.

§19-1-3a. Marketing and economic development duties.

(a) The department shall establish marketing, promotional, and economic development programs to advance West Virginia agriculture in the domestic and international markets; provide grading, inspection, and market news services to the various elements of the West Virginia agricultural industry; and regulate and license individuals involved in the marketing of agricultural products. Upon request of the commissioner, the Department of Economic Development may coordinate with the Department of Agriculture in the development of such programs.

(b) Any documentary material, data, or other writing made or received by the department in furtherance of its economic development duties and for the purpose of furnishing assistance to a new or existing business shall be exempt from the provisions of §29B-1-1 et seq. of this code.

§19-1-3b. Background checks as condition of employment.

(a) The commissioner may, as a condition of employment, require an applicant for a position to submit to a state and national criminal history record check. This requirement is found not to be against public policy.

(b) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation. The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(1) Submitting fingerprints for the purposes set forth in this subsection; and

(2) Authorizing the board, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for employment.

(c) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check; or

(3) Pursuant to a court order.

(d) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.

(e) The commissioner may not disqualify an applicant for employment because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus to the employment category.   

(f)  The commissioner may not use crimes involving moral turpitude in making employment determinations.

(g) If an applicant is disqualified for employment  because of a criminal conviction that has not been reversed, the commissioner shall afford the applicant the opportunity to reapply for employment  after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time: Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the commissioner by rule.

(h)  An individual with a criminal record who has not previously applied for employment may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining employment. This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction and the specific nature of the conviction. The commissioner shall inform the individual of his or her standing within 60 days of receiving the petition from the applicant.

(i) The commissioner shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section. These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq. of this code within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

§19-1-4. Duties of commissioner.

The Commissioner of Agriculture shall perform the following duties:

(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;

(j) Enter into an agreement with the Secretary of the Department of Veterans’ Assistance to transfer without consideration all or part of the approximately 17 acres of Department of Agriculture property in Beckley, West Virginia, located adjacent to the Jackie Withrow Hospital which was formerly known as Pinecrest Hospital, for construction of a veterans skilled nursing facility;

(k) Propose rules, including regulatory standards, for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code for the purpose of carrying out the requirements of this chapter; and

(l) Cooperate with the State Resiliency Office to the fullest extent practicable to assist that office in fulfilling its duties.

§19-1-4a. Commissioner authorized to accept gifts, etc., and enter into cooperative agreements.

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.

§19-1-4b. Authority of commissioner to increase certain fees by rules or regulations.

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.

§19-1-4c. Agriculture fees fund.

There is hereby created a special revenue account within the state Treasury to be known as "Agricultural Fees Fund". Expenditures from the fund shall be used exclusively by the commissioner of agriculture for the purpose of enforcement and administration of this chapter. Moneys paid into the account shall be from all moneys collected under this chapter, except those designated in article one-a; article two-g; article twenty-one; article twenty-one-a; article twenty-one-b; article twenty-three; article twenty-five; article twenty-six; article twenty-seven; and section twenty-three, article sixteen-a.

§19-1-4d. Farmland preservation fees fund.

There is hereby created a special revenue account within the state Treasury to be known as "Farmland Preservation Fees Fund". Expenditures from the fund shall be used exclusively by the commissioner of agriculture for the purpose of funding farmland preservation boards in any county which has adopted and implemented a farmland protection program pursuant to the farmland preservation act as enacted beginning with section seventy-two, article twenty-four, chapter eight of this code.

§19-1-5. Cooperative statistical work.

The commissioner of agriculture is hereby authorized to conduct cooperative work with the United States Department of Agriculture in gathering and disseminating information concerning agriculture, and it shall be the duty of the commissioner of agriculture and the Tax Commissioner to prepare and supply to the several assessors of the state printed forms, books, blanks, papers and reports, which are hereby required to be printed by the state printer out of the printing fund of the state, to be used in the gathering of such agricultural and other statistics as the commissioner of agriculture may require.

§19-1-6. Duty of assessor to gather statistics.

Commencing on July 1, 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 March 1 next ensuing.

§19-1-7. Shared animal ownership agreement to consume raw milk.

(a) Notwithstanding any other provision of the law to the contrary, a responsible party may enter into a written shared animal ownership agreement to consume raw milk in which he or she:

(1) Acquires a percentage ownership interest in a milk-producing animal;

(2) Agrees to pay another for the percentage ownership interest for the care and boarding of the milk-producing animal at the dairy farm;

(3) Is entitled to receive a fair share of the animal’s raw milk production as a condition of the contractual agreement;

(4) Agrees to sign a written document acknowledging the inherent dangers of consuming raw milk that may contain bacteria, such as Brucella, Campylobacter, Listeria, Salmonella, and E. Coli, that has not been pasteurized to remove bacteria and that is particularly dangerous to children, pregnant women, and those with compromised immunity. The responsible party then agrees to release the herd seller of liability for the inherent dangers of consuming raw milk but not for those dangers that are caused by negligent acts or omissions of the herd seller; and

(5) Agrees not to distribute raw milk. The sale or resale of raw milk obtained from a herd share is strictly prohibited.

(b) The signed and executed shared animal ownership agreement shall be filed by the herd seller with the Commissioner of Agriculture and shall contain the names, addresses, and phone numbers of the herd seller and the responsible party so that either party may be contacted in the event of an illness.

(c) The herd seller shall meet the animal health requirements for milk-producing animals established by the state veterinarian in accordance with state and national standards including the following:

(1) Raw milk from milk-producing animals intended for consumption shall be from a herd that tested negative within the previous 12 months for brucellosis, tuberculosis, and other diseases as required by the state veterinarian. Additions to the herd shall test negative for the diseases within the previous 30 days before introduction into the herd; and

(2) Milk-producing animals producing bloody, stringy, or abnormal milk, but with only slight inflammation of the udder, shall be excluded from the milking herd until reexamination shows that the milk has become normal. Milk-producing animals showing chronic mastitis, whether producing abnormal milk or not, shall be permanently excluded from the milking herd.

(d) Parties to a shared animal ownership agreement and physicians who become aware of an illness directly related to consuming raw milk shall report the illness to the local health department and the Commissioner of Agriculture. Upon receipt of such a report, the Commissioner of Agriculture or his or her designee shall contact and warn other parties consuming raw milk from the same herd seller.

(e) The Commissioner of Agriculture may impose an administrative penalty not to exceed $100 for a person who violates the provisions of this section. Any penalty imposed under this subsection may be contested by the person against whom it is imposed pursuant to §29A-5-1 et seq. of this code.

(f) The Commissioner of Agriculture, in consultation with the Department of Health and Human Resources, may propose rules for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code in compliance with raw milk dairy industry standards.

(g) Notwithstanding any provision of code to the contrary, raw milk may be sold without the parties entering into a written shared animal ownership agreement if the raw milk is to be used:

(1) As an ingredient in the preparation or making of a nonedible product, such as a soap or lotion; or

(2) As feed for another animal: Provided, That the sale of raw milk to be used as animal feed is subject to the provisions of §19-14-1 et seq. of this code.

§19-1-8. Penalty for failure of assessor to perform duties.

Any assessor failing to perform any of the duties required of him in this article shall be guilty of a misdemeanor, and, upon conviction thereof, fined not more than $100.

§19-1-9. Agriculture advisory board.

There shall be a state agriculture advisory board to consist of the Governor, the commissioner of agriculture and the director of the cooperative extension service of West Virginia University, ex officio. It shall be the duty of the members of such board to meet together at the seat of government at least four times each year at regular intervals to consider the conditions and needs of the agricultural interests of the state, and how and in what manner the functions, powers and duties assigned by law to each Department of Agriculture may be most efficiently and economically administered for the benefit of the state so that there may be neither overlapping, duplication nor interference of, by or with the work of the one department with that of the other, and that the department best calculated to exercise and discharge certain powers, duties or functions be thereunto appointed and authorized, and that the other department shall desist from further activities in that behalf.

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.

§19-1-10. Requirement for social security number on applications.

The commissioner shall require every applicant for a license, permit, certificate of registration, or registration under this chapter to place his or her social security number on the application.

§19-1-11. Rural Rehabilitation Loan Program.

(a) The Rural Rehabilitation Loan Program is an important tool for the Commissioner of Agriculture to promote investment in the agricultural industry in the state. Rules are needed for the loan program to remain viable.

(b) The commissioner shall propose emergency and legislative rules for approval in accordance with §29A-3-1 et seq. of this code. The rules shall, at a minimum:

(1) Establish minimum requirements and qualifications for the loan committee, including the addition of public members who have agricultural or business loan experience;

(2) Prohibit department employees and loan committee members, and their immediate family members, from receiving program loans;

(3) Establish minimum financial requirements for receiving a program loan;

(4) Require loans to be used for agricultural or related purposes;

(5) Require collateral sufficient to secure the loan;

(6) Establish policies for the application, applicable interest rates, delinquencies, refinancing, collection proceedings, collateral requirements, and other aspects of the loan program;

(7) Require the department to advertise the loan program to the public, including information on the department’s website and in the department’s market bulletin; and

(8) Transfer the servicing of the program loans to a financial institution via competitive bid or to the State Treasurer’s office or other governmental entity.

(c) The commissioner shall file an annual report to the Joint Committee on Government and Finance regarding the loan program, including information about the loans awarded, loans repaid, loans outstanding, interest rates, delinquency and collections, and other pertinent data.

(d)  The commissioner shall not be required to utilize the services of the State Agency for Surplus Property for the disposition of items purchased by participants in the loan program and subsequently repossessed by the committee to be sold in order to satisfy the balance of an outstanding loan.

§19-1-12. Veterans and Heroes to Agriculture Program and fund.

(a) Legislative findings.

West Virginians have a longstanding tradition of service in the armed forces of the United States. Many veterans suffer from physical and emotional afflictions and are often unable to find gainful employment upon returning from combat. Exploring opportunities to engage West Virginia’s veterans in agriculture is beneficial to the health and welfare of veterans, as well as to the future of West Virginia’s agricultural economy.

(b) Veterans and Heroes to Agriculture Program.

The Department of Agriculture shall develop a Veterans and Heroes to Agriculture Program to integrate veterans into the field of agriculture, and support veterans currently working in agriculture. These programs may include, but are not limited to, using post-mine land for agricultural development, promoting high tunnel crops and production, expanding the apiary industry, developing cottage industries, exploring niche crops, raising more livestock, increasing the aquaculture industry and helping veterans promote their agricultural products through farmers markets and cooperatives. The department may call on the Department of Veterans’ Assistance and the state’s Adjutant General for assistance to recruit and train eligible veterans, and develop and support the program.

(c) Veterans and Heroes to Agriculture Fund. —The Veterans and Warriors to Agriculture Fund is continued, but is renamed the Veterans and Heroes to Agriculture Fund. The fund shall consist of income from leasing the department’s property for the program, surplus funds which may be transferred from the fund created by §19-12A-6a, gifts, grants and donations, and legislative appropriations which may be made to support the program. Expenditures from the fund shall be used exclusively, in accordance with appropriations by the Legislature, to pay costs, fees and expenses necessary to administer the Veterans and Heroes to Agriculture Program.

(d) Notwithstanding any provision in this code to the contrary, should the Department of Agriculture deem it necessary to provide land for activities within this program, it is exempt from the purchasing requirements as they relate to the competitive leasing of state property.

(e) The commissioner may propose emergency or legislative rules for approval in accordance with the provisions of §29A-3-1 et seq. to effectuate the provisions of this section.

(f) Expansion of Veterans and Heroes to Agriculture Program. — The Legislature finds that West Virginians also proudly answers the call to serve domestically in emergency response and law enforcement roles, including as police officers, sheriffs, firefighters, emergency medical technicians, and first responders. The Legislature further finds that farming, including growing corn, is a process that involves more than digging a hole, putting a seed in with dirt on top, and adding water. To that end, the commissioner is hereby authorized to expand the scope of the Veterans and Heroes to Agriculture Program to provide agriculture assistance and training to additional West Virginia heroes that will allow these brave individuals to continue to answer the call of duty by producing and providing fresh, healthy, and local food to their fellow West Virginians.

ARTICLE 1A. DIVISION OF FORESTRY.

§19-1A-1. Legislative findings.

The Legislature finds that West Virginia has extensive forest resources and their continued development and expansion is vital to the economic well-being of the state and its people.

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.

§19-1A-2. Legislative purposes.

The purposes of this article are to provide for promoting West Virginia products; promoting new forest products industries; developing existing forest products industries; promoting coordination of all state forests resources; advising the Governor and Legislature on all aspects of forestry, the management of state forests for conservation and preservation of wildlife, fish, forest species, natural areas, aesthetic and scenic values and to provide developed and undeveloped outdoor recreational opportunities, and hunting and fishing for the citizens of this state and its visitors.

§19-1A-3. Division of Forestry; Division Director; duties, powers, dedication of certain moneys; creation of a special revenue account.

The Division of Forestry heretofore created is hereby continued. And, except as otherwise provided in this article, all powers and duties previously exercised by the Director of Natural Resources under subsection (13), section seven, article one and article three, chapter twenty of this code, except those powers and duties relating solely to wildlife areas as described in section three, article three, chapter twenty of this code, heretofore transferred to the Division of Forestry, are hereby continued in the Division of Forestry, except Kanawha State Forest as hereinafter provided. The Division of Forestry has within its jurisdiction and supervision the state forests, other forests and woodland areas, the protection of forest areas from injury and damage by fire, disease, insects and other pestilences and forces, the management of forest areas for natural resources, conservation and undeveloped recreational activities, administration of the southeastern interstate forest fire protection compact and other compacts and agreements relating to forest management and husbandry, and the administration and enforcement of laws relating to the conservation, development, protection, use and enjoyment of all forest land areas of the state consistent with the provisions of sections one and two of this article. All moneys collected from the sale of timber realized through management of the state-owned forests and the sale of seedlings from the tree nurseries shall be paid into the state Treasury and shall be credited to a special account within the Division of Forestry and used exclusively for the purposes of this article and article three, chapter twenty of this code.

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.

§19-1A-3a. Providing criminal penalties for the illegal possession of uncertified ginseng.

(a) (1) The Legislature finds that ginseng trade must be controlled in order to protect the survival of wild ginseng as evidenced by its listing in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. It is the policy of this state to regulate the commerce in ginseng in a manner that protects the survival of wild ginseng.

(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 whole, sliced or parts of roots of cultivated ginseng, woods grown ginseng, wild simulated ginseng and wild ginseng, excluding manufactured parts, products, and derivatives, such as powders, pills, extracts, tonics, teas and confectionary;

(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 §29A-3-1 et seq. 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 §29B-1-1 et seq. of this code since they disclose information having a significant commercial value.

(b) (1) The digging season for wild ginseng begins on September 1, and ends on November 30, of each year. It is unlawful for a person to dig, collect or gather wild ginseng between December 1, and August 31 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 §30-19-1 et seq. 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 September 1, through November 30, of each year.

(6) It is unlawful for a person to dig, collect or gather wild simulated and woods-grown ginseng between December 1 and August 31.

(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 July 1, 2005, 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 July 1, 2005, 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 July 1, 2005, under this provision after December 31, 2009.

(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, a photocopy of a valid photo identification card issued by the West Virginia Division of Motor Vehicles, any other state, or the federal government, 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 take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested. 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 December 31 of each year for growers and August 31 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 April 1 of the year following harvest: Provided, however, That no ginseng may be certified between January 1 through March 31 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 April 1 through August 31.

(g) The director shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code designed to implement the ginseng certification process.

(h) The division may, by order entered in accordance with the provisions of §29A-5-1 et seq. of this code, 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 $500 nor more than $1,000.

(j) Any person violating a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 for the first offense, and for each subsequent offense, shall be fined not less than $1,000 nor more than $2,000 or confined in jail not more than six months, or both fined and confined. 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.

§19-1A-3b. Timber theft; investigations; criminal and civil penalties.

(a) Timber theft is the misappropriation or taking of timber belonging to another, or proceeds derived from the sale of timber, either taken without the consent of the owner, or by means of fraudulent conduct, practices, or representations, with the intent to deprive the owner permanently of the timber or proceeds derived therefrom.

(b) The Division of Forestry has the primary responsibility for the collection, preparation, and central registry of information relating to timber theft. The division has the authority to investigate and enforce the provisions of this section when violations of the provisions of §61-3-52 of this code occur.

§19-1A-4. Additional duties of the Director of the Division of Forestry generally.

(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.

§19-1A-5. Director of Division of Forestry; appointment; qualifications.

The Director of the Division of Forestry shall be appointed by the Governor, by and with the advice and consent of the Senate, and shall serve at the will and pleasure of the Governor. The director shall be a graduate of a school of forestry accredited by the Society of American Foresters and have a minimum of ten years' experience in forest management. The director shall be paid an annual salary as provided in section two-a, article seven, chapter six of this code: Provided, That the director's salary shall be paid solely from budget appropriations to the division.

§19-1A-6.

Repealed.

Acts, 1994 Reg. Sess., Ch. 119.

ARTICLE 1B. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING OPERATIONS.

§19-1B-1. Short title.

This article shall be known and cited as the "Logging Sediment Control Act."

§19-1B-2. Legislative findings, intent and purpose of article.

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.

§19-1B-3. Definitions.

(a) "Best management practices" means sediment control measures, structural or nonstructural, used singly or in combination, to reduce soil runoff from land disturbances associated with commercial timber harvesting.

(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.

§19-1B-4. Timbering license required; requirement for license; exemption; annual fee; rules.

(a) A person may not conduct timbering operations, purchase timber, or buy logs for resale until he or she has obtained a license and met the requirements of this article.

(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 on behalf of the owner of record has a total gross sales value received by the exemption holder of less than $52,000. 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 has a total gross sales value received by the exemption holder of less than $52,000.

(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 §29A-3-1 et seq. of this code regarding the acquisition, suspension, and revocation of 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 §29A-3-15 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.

§19-1B-5. Compliance orders; suspension of timbering operation license.

(a) Upon a finding by the chief 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 chief shall notify the director of the location of the site, the problem associated with the site, and any suggested corrective action. Upon the failure of the director to take appropriate action within three days of providing notice to the director, the chief may seek relief through the conference panel in accordance with section eleven of this article.

(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.

§19-1B-6. Notification of duration of timbering operations or harvesting of timber for sale; requirements thereof.

(a) In addition to any other requirement of this article, no person may conduct timbering operations and no person may sever trees for sale unless the person notifies the director of the specific location on which the timbering operations or harvesting of timber are to be conducted. The notification shall be made in a manner designated by the director.

(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 §19-1B-4 of this code, 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 §19-1B-4 of this code 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 at least three days before the start 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.

§19-1B-7. Certification of persons supervising timbering operations; timbering operations to be supervised; promulgation of rules.

(a) Any individual supervising any licensed timbering operation, or any individual supervising any timbering operation that is not exempted from the licensing requirements set forth in §19-1B-4 of this code, must be certified pursuant to 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 total of six hours of training every two years prior to recertification. The program for certified loggers shall, at a minimum, 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 §29A-3-1 et seq. 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 §19-1B-4 of this code 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.

§19-1B-8. Timbering operations enforcement fund.

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.

§19-1B-9. Right of entry.

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.

§19-1B-10. Orders of the director.

Notwithstanding the provisions of §19-1B-5 of this code, 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 §19-1B-11 of this code. Any person or entity aggrieved by an order issued under the provisions of §19-1B-5(b) or §19-1B-5(c) of this code may file an appeal under the provisions of §19-1B-11 of this code.

Any persons or entity aggrieved by a suspension or revocation order issued under the provisions of §19-1B-5(e) or §19-1B-5(f) of this code may file an appeal in accordance with the provisions of §29A-5-1 et seq. and §29A-6-1 et seq. of this code.  

§19-1B-11. Creation of conference panels; authority.

(a) Each forestry region in this state shall contain an informal conference panel composed of three persons to decide appeals of the director's orders. One member of the panel shall be selected by the director, one member shall be selected by the chief and one member shall be selected by agreement between the chief and the director. If a vacancy exists on the panel, the vacancy shall be filled by whomever made the initial selection. The members of the panel shall serve without compensation.

(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.

§19-1b-12.

Repealed.

Acts, 2014 Reg. Sess., Ch. 70.

§19-1B-12a. Criminal and civil penalties.

(a) It is illegal for a person to:

(1) Conduct timbering operations, purchase timber, or buy logs for resale in this state without holding a valid license from the Director of the Division of Forestry, as required by §19-1B-4 of this code;

(2) Conduct timbering operations or sever 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 §19-1B-6 of this code;

(3) Conduct 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 §19-1B-7 of this code;

(4) Continue to conduct timbering operations in violation of a suspension or revocation order that has been issued by the Director of the Division of Forestry or a conference panel under §19-1B-5, §19-1B-10, or §19-1B-11 of this code; and

(5) Fail to reclaim the real property in accordance with the best management practices set forth by the Division of Forestry and the committee established in §19-1B-7(h) of this code.

(b) Criminal and civil penalties. — A person who violates any provision of this section is guilty of a misdemeanor and, upon conviction, shall be: (1) Fined not less than $250 nor more than $500 for the first offense; (2) fined not less than $500 nor more than $1,000 for a second offense; (3) fined not less than $1,000 nor more than $5,000, or confined in jail not more than 30 days, or both, for a third or subsequent offense. In addition to fines and costs, a person or entity convicted of a violation of this section shall pay a $500 civil penalty to the division within 60 days. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the State Treasurer for deposit in the Division of Forestry Timber Operations Enforcement Fund (3082) for use in administering the provisions of this article.

(c) Each day that a person is in violation of this section constitutes a separate criminal and civil offense.

(d) In addition to any other law-enforcement agencies that have jurisdiction over criminal violations, the following individuals who, as a part of their official duties, are authorized by the Director of the Division of Forestry to inspect timbering operations are also authorized to issue citations for any of the listed violations in this article that they have witnessed or confirmed through evidence thereof:

(1) Any forester;

(2) Any forest technician;

(3) Any forestry employee who has a two-year or four-year higher education degree in the field of forestry; or

(4) Any forestry employee that is accompanied by a forestry employee with a two-year or four-year higher education degree in forestry.

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 except in the case of a third offense misdemeanor violation as defined in subsection (b) of this section.

§19-1B-13. Cooperation of other state agencies.

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.

§19-1B-14. Effect on other laws.

Nothing in this article relieves any person conducting timbering operations from complying with any other provision of this code.

ARTICLE 1C. CARE OF LIVESTOCK.

§19-1C-1. Legislative findings.

(a) The Legislature finds that the following are important to protect the health and welfare of the citizens of West Virginia:

(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.

§19-1C-2. Definitions.

For the purposes of this article:

(1) “Board” means the Livestock Care Standards Board.

(2) “Commissioner” means the Commissioner of Agriculture.

(3) “Department” means the West Virginia Department of Agriculture.

(4) “Livestock” has the same definition as set out in §19-10B-2(d) of this code.

§19-1C-3. Livestock Care Standards Board.

(a) On July 1, 2010, there is hereby created the Livestock Care Standards Board.

(b) Commencing July 1, 2021, the board consists of the following 13 members, to be appointed by the Governor, by and with the consent of the Senate:

(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 State Veterinarian, 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 who are law-enforcement officers: Provided, That one member shall be appointed for an initial term of two years, and the other shall be appointed for an initial term of five years;

(8) One member selected from a list of three individuals submitted from the largest statewide poultry organization;

(9) One member selected from a list of three individuals submitted by the largest statewide livestock organization; and

(10) Three members, at least two of whom are family farmers, selected from a list of 10 individuals submitted by the largest organization in the state representing farmers.

(c) After the initial appointment terms, the appointment term is five years. Appointed members may be reappointed for additional terms.

(d) All members must be residents of this state during their terms.

(e) 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.

§19-1C-7. Enforcement of livestock care standards.

(a) The commissioner shall administer and enforce the standards established pursuant to this article. This authority may include, but is not limited to:

(1) Coordinating with and providing assistance to law-enforcement officers;

(2) Assisting law-enforcement officers with investigations and other actions taken in response to complaints regarding the care of livestock;

(3) Working with county, municipal, and state authorities to address situations in which a livestock care complaint needs to be reassigned due to a conflict of interest;

(4) Providing training for law-enforcement officers on the livestock care standards and proper animal handling techniques; and

(5) Providing opinions to law-enforcement officers, when such opinions are requested, regarding the application of livestock care standards promulgated pursuant to this article.

(b) State, county, and local law-enforcement officers shall notify the commissioner of all complaints and investigations concerning care of livestock, and may seek the advice and opinion of the commissioner regarding application of the livestock care standards in those cases.

(c) No later than September 1, 2021, the commissioner shall notify state, county, and local law-enforcement officers of the changes made to this article of code during the 2021 Regular Legislative Session.

§19-1C-4. Powers and duties of the board.

(a) The board has the following powers and duties to:

(1) Establish standards governing the care and well-being of livestock;

(2) Maintain food safety;

(3) Encourage locally grown and raised food; and

(4) Protect West Virginia farms and families.

(b) The commissioner, in consultation with the board, is authorized to establish standards by legislative rule, pursuant to the provisions of §29A-3-1 et seq. 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) Procedures for addressing complaints regarding the inhumane treatment of livestock and coordinating efforts with county humane officers: Provided, That documents and communication regarding any investigation thereof, are considered confidential and are exempt from disclosure pursuant to §29B-1-1 et seq. of this code;

(3) Biosecurity, disease prevention, animal morbidity, and mortality data;

(4) Food safety practices; and

(5) The protection of local, affordable food supplies for consumers.

(c) The board shall review any rule proposed by the commissioner for legislative approval pursuant to this section. After reviewing the proposed legislative rule, the board may provide a recommendation to the Legislative Rule-Making Review Committee that the Legislature:

(1) Authorize the promulgation of the legislative rule;

(2) Authorize the promulgation of part of the legislative rule;

(3) Authorize the promulgation of the legislative rule with certain amendments;

(4) Recommend that the proposed rule be withdrawn; or

(5) Reject the proposed rule.

§19-1C-5. Compensation of board members.

(a) The ex officio members of the board may not receive compensation for serving on the board.

(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 West Virginia Department of Agriculture Travel Policy and Procedure.

§19-1C-6. Meetings of the board.

(a) The board shall meet at least annually, and the commissioner may call additional meetings of the board upon the written request of three members.

(b) The commissioner, on behalf of the board, may file an annual report with the Joint Committee on Government and Finance that contains information about the activities of the board and department for the prior year concerning livestock care standards; Provided; That after December 31, 2025, no reports filed on behalf the board may be filed with the Joint Committee on Government and Finance.

ARTICLE 2. MARKETING AGRICULTURAL PRODUCTS.

§19-2-1. Definitions.

For the purpose of this article the following definitions shall prevail:

(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.

§19-2-2. Duties and powers of commissioner.

In order to develop and encourage home industry and to protect and promote the interests of producers and provide consumers with food products of uniform grade and quality at fair and reasonable prices, it shall be the duty of the commissioner and he shall have authority to promote, regulate, coordinate, establish and conduct a system of marketing agricultural products in the State of West Virginia. He shall assist producers and handlers in the grading, classification and standardization of agricultural products at public markets, concentration points, packing, grading and processing plants and other places where agricultural products are assembled for distribution.

§19-2-3. Commissioner to cooperate with federal Department of Agriculture.

In carrying out the provisions of this article the commissioner shall cooperate with the United States Department of Agriculture and its several bureaus and divisions and the departments of the several states. The commissioner shall investigate the methods employed by the United States Department of Agriculture for the promotion of economical and efficient marketing of agricultural products and he shall have authority to establish and publish weights, grades, standards, classifications, and rules and regulations for the production, handling, and distribution of agricultural products in this state, and he shall, so far as the same are applicable and practicable, utilize and apply the rules, regulations, classifications, standards and grades, and official methods of examinations and analysis of the United States Department of Agriculture and its several bureaus and divisions.

§19-2-4. Quarantines.

For the purpose of protecting the health of the state and to prevent the infection, contamination or reduction in the standards of products produced within the state, the commissioner of agriculture may, acting within the police power of the state, inspect and establish quarantines over all agricultural products and the means of their importation. In the establishment of such quarantine or inspection the commissioner shall give notice in writing of such quarantine or inspection area, specify its boundaries, the duration of the inspection, and the purpose thereof, and provide for notification of the proper authorities and the posting of the area.

§19-2-5. Inspection and grading of agricultural products; charges.

The commissioner may comply with the request of any person for official inspection of agricultural products and he or his agents shall have authority to inspect and determine the grade and quality of agricultural products at public markets, concentration points, packing, grading, and processing plants and other places where agricultural products are assembled for distribution; the commissioner shall establish and publish a schedule of charges for such inspection and grading service; and it shall be his duty and he shall have authority to collect such charges for such inspection and grading services, which moneys shall be paid into the state Treasury and reappropriated to the Department of Agriculture for the administration of this article.

§19-2-6. Inspection and quarantine powers of commissioner.

The commissioner or his agents shall during business hours have access to any place, premises, or conveyances where agricultural products are produced, handled, stored, transported, distributed, or sold, and to examine the books and records of any person affected by the provisions of this article. They shall have the power and authority to detain, embargo, or quarantine agricultural products when suspected of or found to be in violation of the provisions of this article, by affixing thereto a tag or other appropriate marking and giving notice thereof in writing. It shall be unlawful for any person to remove or dispose of such detained, embargoed, or quarantined agricultural product by sale or otherwise without the permission of the commissioner or his agent or the courts. When an agricultural product detained, embargoed, or quarantined, as aforesaid, has been found by such agent to be in violation of the provisions of this article, he shall petition any court of competent jurisdiction, for the condemnation or disposal of such product.

§19-2-7. Prohibited sales.

It shall be unlawful for any person to sell, offer, or expose for sale, or exchange or have in his possession with intent to sell, offer or expose for sale or exchange any agricultural product in this state which is:

(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.

§19-2-8. Market bulletins.

It shall be the duty of the commissioner to publish bulletins setting forth the quotations for agricultural products sold in the principal markets of the state. The bulletins shall also contain information concerning the available surplus of the principal agricultural products and the demand for such products in the markets of the state, and other markets where agricultural products are customarily sold. The commissioner may periodically prepare and distribute bulletins containing:

(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.

§19-2-9. Inspectors, graders and assistants.

The commissioner may employ and he shall have authority to certify such inspectors, graders, and assistants as are necessary to enforce the provisions of this article. He shall prescribe their duties and fix their salaries. It shall be unlawful for any person to represent that he is an inspector, grader, or agent of the commissioner unless he is certified by the commissioner.

§19-2-10. Commissioner to enforce article.

The commissioner of agriculture shall be charged with the enforcement of this article and shall have authority to make and enforce rules and regulations for the administration of this article.

§19-2-11. Penalties.

Any person who shall violate any of the provisions of this article, or who shall obstruct or hinder the commissioner or any officer or employee, in the performance of his duties under this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for the first offense, be fined not more than $100, and upon conviction for each subsequent offense be fined not more than $500, and in addition to such fine may be confined in the county jail for not more than ninety days.

ARTICLE 2A. PUBLIC MARKETS.

§19-2A-1. Public market defined.

A public market is (1) any place of business where livestock, poultry, and other agricultural or horticultural products are received and sold at public auction or, (2) any place where livestock is received from producers, assembled and sold, or offered for sale, by any method including, but not limited to, public auction. The term public market shall include all such places where such activities are conducted, whether or not such activities are performed according to a scheduled routine or a historically established pattern of days and times: Provided, That sales totally sponsored, organized and financed by the State of West Virginia or by any state, regional or county agricultural fair or festival, or by any 4-H, FFA or other educational activity, shall not be included in this definition. Annual sales held by nonprofit associations or nonprofit corporations devoted to improving the quality of beef cattle raised in this state where the net proceeds from such sales are used exclusively for the association or corporation conducting such sale, or purebred livestock sales conducted by generally recognized breed associations, shall not be subject to the provisions of sections eight and sixteen-a of this article: Provided, however, That only members in good standing in such nonprofit association or nonprofit corporation or such breed association shall offer cattle for sale at such annual sale and the bylaws of such association or corporation or such breed association shall provide either for a surety bond to be given as provided in this article or that each member offering stock at such sale shall bear any loss in proportion to the value of each member's stock to the total value of all such stock being sold at such sale.

§19-2A-2. Public markets subject to state regulation.

All public markets, as defined in section one, are hereby declared to be affected with a public interest and subject to regulation by the state for the general welfare as in this article provided.

§19-2A-3. Operation of public markets.

No public market shall hereafter be operated in this state by any person, partnership, firm, association, or corporation except in accordance with the provisions of this article.

§19-2A-4. Permits to operate; application and hearing.

It shall be unlawful for any public market to be operated in this state without first having obtained from the commissioner of agriculture of West Virginia a permit therefor. Upon the filing of an application for such permit, the commissioner shall fix a time and place for hearing thereon and, after hearing, if it appear that the public interest require the same and that there is sufficient need for such market in the locality in which it is proposed to be established, shall grant such permit, or deny the same if the contrary appear: Provided, That the commissioner shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

§19-2A-5. Permits for existing markets.

[Repealed]

§19-2A-6. Fee for permits.

All permittees shall pay to the commissioner a fee of $10 on or before July 1 of each year.

§19-2A-7. Revocation or suspension of permits.

The commissioner may at any time, for violations of this article, upon not less than fifteen days' notice to the grantee of such permit and an opportunity to be heard, revoke or suspend any permit theretofore granted.

§19-2A-8. Applicant for permit to furnish surety bond for benefit of consignors; form of surety bond.

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.

§19-2A-9. Appeal from order of commissioner.

Any party feeling aggrieved by the entry of a final order by the commissioner, affecting him or it, may present a petition in writing to the Supreme Court of Appeals, or to a judge thereof in vacation, within thirty days after the entry of such order, praying for the suspension of such final order. The applicant shall deliver a copy of such petition to the commissioner before presenting the same to the court or the judge. The court or judge shall fix a time for the hearing on the application, but such hearing, unless by agreement of the parties, shall not be held, sooner than five days after its presentation; and notice of the time and place of such hearing shall be forthwith delivered to the commissioner, so that the commissioner may be represented at such hearing. If the court or the judge after such hearing be of the opinion that a suspending order should issue, the court or the judge may require bond, upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable. For such hearing the commissioner shall file with the clerk of said court all papers, documents, evidence, and records or certified copies thereof as were before the commissioner at the hearing or investigation resulting in the entry of the order from which the petitioner appeals. The commissioner shall file with the court before the day fixed for the final hearing a written statement of his reasons for the entry of such order, and after arguments by counsel the court shall decide the matter in controversy as may seem to be just and right.

§19-2A-10. Licensing of weighmen and auctioneers; application and fee; sale of livestock by weight.

It shall be unlawful for any person to serve in the capacity of weighman, or auctioneer at any public market without first having secured a license. Applications for such licenses shall be made on forms furnished by the commissioner and shall be accompanied by a fee of $2.50 for either weighman or auctioneer and shall contain such information as may be required.

All livestock sold by weight at any public market shall be sold subject to weight at place of sale on day sold by auctioneer.

§19-2A-11. Approval of grading, classifying or standardizing by licensed person; application for license; fee.

It shall be unlawful for any public market to represent that livestock, poultry, and other agricultural and horticultural products are being sold at such market on grades, classifications, or standards adaptable to such products unless such grading, classifying, or standardizing has been made or approved by a person licensed by the commissioner. Applications for such a license shall be made on forms furnished by the commissioner and shall be accompanied by a fee of $2.50 and shall contain such information as may be required.

§19-2A-12. Duration of licenses; renewals; refusal, revocation or suspension.

All licenses issued in accordance with the provisions of this article shall be for a period of one year and shall expire on June thirtieth next following date of issue. All applications for the renewal of any such licenses shall be made in the same manner as for the original license.

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.

§19-2A-13. Unlawful for licensed weighman, grader or auctioneer to buy or trade at market in which employed; false weights.

It shall be unlawful for any weighman, grader, or auctioneer, licensed in accordance with the provisions of this article, to buy or trade in any livestock or other agricultural and horticultural products, graded, weighed, or auctioned by him either for himself or partnership at any public market in which he is employed, or to misweigh or falsely report any weights or otherwise fraudulently manipulate the scales to produce a weight other than the true and actual weight of any livestock, poultry, or other agricultural and horticultural products consigned to and sold at any public market.

§19-2A-14. Testing and inspection of livestock for infectious diseases; fees; records.

For the purpose of preventing the spread of infectious disease among livestock and poultry when and where the same is sold at a public market the commissioner shall have authority and shall establish and define an area surrounding a public market inside of which area, so defined, it shall be unlawful for any person, firm, association, partnership or corporation to buy or sell to, or exchange with, another, unless such person, firm, association, partnership or corporation shall comply with all the provisions of this article and the rules and regulations as provided in this article.

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, 1931.

The management of such market shall collect a fee of 50¢ per head for cattle when tested for Bang's disease, and 10¢ 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.

§19-2A-15. Annual meetings to establish uniform standards, grades and market practices.

The commissioner shall annually, on or before July 1, call together in public meeting the president and manager, or other officials, of livestock auction markets within the state for the purpose of establishing uniform standards and grades of livestock and uniform market practices and procedures for the operation of livestock auction markets in this state.

§19-2A-16. Record of transactions; inspection by commissioner or agents.

It shall be the duty of, and the officers of a public market are hereby required, to keep complete and accurate records of all transactions at a public market. The commissioner or his agents shall have at all reasonable hours, the right to enter the premises of any public market to examine the books and records of such market, and to make any other inspections necessary, for the purpose of carrying out the provisions of this article.

§19-2A-16a. Separate account required; prompt payment required; penalties.

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.

§19-2A-17. Authority of commissioner to enforce article; conflicts with federal authority.

The commissioner shall be charged with the enforcement of this article. He shall have full authority and power to make and enforce rules and regulations necessary to carry out the provisions of this article, and may employ such agents or other assistants as he may deem necessary for the proper enforcement 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.

§19-2A-18. Fees paid into special fund in State Treasury.

All fees collected by the commissioner by virtue of this article shall be paid into the state Treasury and credited to a special fund to be appropriated as provided by law for the purpose of paying the salaries and expenses of the commissioner's employees in administering this article.

§19-2A-19. Penalties for violation of article or rules and regulations.

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 punished by a fine of not less than $50 nor more than $200 for the first offense, and not less than $400 nor more than $1,000 for the second offense.

ARTICLE 2B. INSPECTION OF MEAT AND POULTRY.

§19-2B-1. Purpose and construction.

Subject to the provisions of section seven of this article, the basic purpose of this article is to provide for the inspection, labeling and disposition of animals, poultry, carcasses, meat products and poultry products which are to be sold or offered for sale through commercial outlets for human consumption, the licensing of commercial slaughterers, custom slaughterers and processors, and the inspection of slaughterhouses and processing plants located in the State of West Virginia. This article, being intended to protect the health of the citizens of West Virginia, shall be liberally construed.

§19-2B-1a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§19-2B-2. Definitions.

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 the animal 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 4, 1907, as amended by the Wholesome Meat Act;

(p) "Federal Poultry Products Inspection Act" means the act of Congress approved August 28,1957, 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 shall be 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 otherwise fit 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 unsafe within 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 been substituted, 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 of the 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 its vitamin, 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.

§19-2B-3. Commissioner to enforce article; rules; cooperation with federal agencies, etc.

(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.

§19-2B-4. License required for commercial slaughterer, custom slaughterer, commercial processor, custom processor or distributor; application for license; fees; refusal, revocation or suspension; suspension of inspection; establishment number or numbers.

(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 June 30 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 $10 or as a custom processor shall be $5 or as a distributor shall be $5.

Average Number of Animals Annual

Class Slaughtered Per Year Fee

Small 1-500 $10.00

Medium 501-1000 $25.00

Large 1001-5000 $50.00

Extra Large Over 5000 $75.00

Average Finished Product Annual

Class Poundage Processed Per Year Fee

Small 1-25,000 $10.00

Medium 25,001-250,000 $25.00

Large 250,001-1,000,000 $50.00

Extra Large Over 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 may suspend 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.

§19-2B-5. Access to establishments, records, etc.

The commissioner may at any time enter upon and inspect any establishment, place, premises or conveyance, either private or public, where animals or poultry are slaughtered or carcasses, meat products or poultry products are processed, handled, stored, transported, distributed, sold or offered for sale, for the purpose of examining such animals or poultry, carcasses, meat products or poultry products. Any person engaged in the business of operating an establishment shall maintain such records as the commissioner may require directly pertaining to the movement, storage and distribution or other disposition of animals or poultry, carcasses, meat products and poultry products, and such records shall be open to inspection by the commissioner at any time during the normal working hours at such establishment.

§19-2B-6. Inspection, marking, labeling, branding, etc.; quarantine; segregation; scheduling of operations; disposition of carcasses, etc.; reinspection; health examination; rejection tags.

(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 the licensees 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. Such devices 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 by a 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 or distributor. 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 reasonable rules 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 appropriate official inspection mark shall be affixed thereto, and no person shall remove the same unless authorized so to do by the commissioner.

§19-2B-7. Exclusion of slaughterhouses and processing plants under the supervision of or approved by the United States Department of Agriculture.

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.

§19-2B-8. Exemptions.

(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.

§19-2B-9. Hearings; judicial review.

(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 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.

§19-2B-10. Additional prohibitions.

In addition to any other prohibitions contained in this article, it shall be unlawful:

(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.

§19-2B-11. Criminal penalties; civil penalties.

(a) Criminal penalties.

(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 $1,000 and upon conviction of each subsequent offense shall be fined not less than $400 nor more than $2,000.

(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 $5,000 nor more than $10,000 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 $500 for a first violation and not more than $1,000 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.

§19-2B-12. Severability.

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.

ARTICLE 2C. AUCTIONEERS.

§19-2C-1. Definitions.

For the purposes of this article:

(a) "Absolute auction" means the sale of real or personal property at auction whereby every item offered from the block is sold to the highest bidder without reserve and without the requirements of a minimum bid or other conditions which limit the sale other than to the highest bidder.

(b) "Auctioneer" means a person who sells goods or real estate at public auction for another on commission or for other compensation.

(c) "Commissioner" means the Commissioner of Agriculture of West Virginia.

(d) "Department" means the West Virginia Department of Agriculture.

(e) "Escrow account" means a separate custodial or trust fund account maintained by the auctioneer.

(f) "Estate auction" means the sale at auction of property of a specified deceased person or the property of a specified living person’s estate. Estate auctions may contain property other than that of the specified living or deceased person. However, the inclusion of additional property must be included in all advertising and auction announcements.

(g) "In this state" means that an auction satisfies one of the following criteria:

(1) The auctioneer performed the auction within the borders of the State of West Virginia;

(2) The auctioneer is selling items for a person located in the State of West Virginia;

(3) The auctioneer is auctioning real or personal property located in the State of West Virginia;

(4) The auctioneer delivers purchased property to a location in the State of West Virginia; or

(5) The auctioneer is otherwise subject to the laws, including taxation authority, of the State of West Virginia.

(h) "Public auction" or "auction" means any public sale of real or personal property in any manner, whether in-person, via written offers or bids, or online, when offers or bids are made by prospective purchasers and the property sold to the highest bidder.

§19-2C-2. License required; exceptions.

(a) Except as provided in subsection (b) of this section, no person shall conduct an auction as an auctioneer in this state unless he or she shall have first obtained from the commissioner a license therefor.

(b) The provisions of this section do not apply to:

(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 the owner and the owner has not personally conducted an auction within the previous 12-month period;

(3) Persons conducting sales pursuant to a deed of trust;

(4) Fiduciaries of estates when selling real or personal property of the estate;

(5) Persons conducting sales without compensation on behalf of charitable, religious, fraternal, or other nonprofit organizations: Provided, That the commissioner shall promulgate rules to limit the number of charitable auctions an exempt person may perform in a 12-month period;

(6) Persons properly licensed pursuant to the provisions in §30-40-1 et seq. 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 the 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 §19-2A-1 et seq. of this code, where the sale is confined solely to livestock, poultry, and other agriculture and horticulture products; and

(7) Persons listing items online for sale via a platform that establishes a fixed time for the conclusion of the sale without extension: Provided, That the commissioner may further define this exemption in legislative rules.

§19-2C-3. Procedure for license; Department of Agriculture as statutory agent for licensees.

(a) An applicant for an auctioneer license shall:

(1) Apply on forms prescribed by the commissioner;

(2) Pay a nonreturnable application fee and a license fee; and, upon successful completion of the application process, a license fee; and

(3) File a bond as required by this article.

(b) The commissioner shall, within 30 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.

(c) If the license is denied, the commissioner shall refund the license fee submitted with the application to the applicant.

(d) All licenses expire on June 30 of each year: Provided, That an auctioneer may continue to perform auctions for up to 30 days after June 30, so long as he or she has submitted the required paperwork to renew his or her auctioneer license: Provided, however, That licenses issued in 2019 shall continue to be active through June 30, 2020. A license may be renewed upon the payment of the annual renewal fee within 60 days of the expiration date. Renewals received more than 60 days after the expiration date are subject to a late renewal fee in addition to the annual renewal fee.

(e) A license that has been expired for more than two years cannot be renewed until the auctioneer or apprentice auctioneer takes the written and oral examination, pays the examination fee and complies with the other requirements of this article.

(f) 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 the fee with the request.

(g) The State Department of Agriculture is the agent for the purpose of service of process on a 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 to the statutory agency.

§19-2C-3a. Rulemaking.

(a) The commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to:

(1) Establish the license requirements for auctioneers and apprentice auctioneers, including the bond requirements;

(2) Set a fee schedule;

(3) Establish the renewal and expiration requirements for licenses;

(4) Establish the continuing education requirements for licensees;

(5) Establish waiver of examination requirements for apprentice auctioneers;

(6) Permit consent agreements or negotiated settlements for the civil penalties; and

(7) Implement the provisions of this article.

(b) The fees in effect on January 1, 2014, shall remain in effect until modified by legislative rule.

§19-2C-3b. Special revenue fund.

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 purpose of administering and enforcing this article, and providing continuing education for auctioneers.

§19-2C-4. Bond required.

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 $10,000 for an auctioneer and in no event less than $5,000 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.

§19-2C-5. Requirements for auctioneer license; duties of licensee.

(a) A person seeking an auctioneer license shall submit satisfactory evidence to the commissioner showing that he or she:

(1) Has successfully completed the written and oral examinations required by this article;

(2) Has a good reputation;

(3) Is of trustworthy character;

(4) Has met the apprenticeship requirements set forth in this article, if applicable;

(5) Is a citizen of the United States; and

(6) Has a general knowledge of the auctioneering profession and the principles involved in conducting an auction.

(b) A licensee shall:

(1) Promptly produce for inspection his or her license at all sales conducted by or participated in by the licensee when requested to do so by any person; and

(2) Keep complete and accurate records of all transactions engaged in for a period of three years from the date on which the sale was completed.

(c) For the purposes of this section, the term "record" includes, but is not limited to:

(1) Copies of signed contracts, including the names of buyers and their addresses;

(2) Clerk sheets showing items sold, including buyers numbers or names, and the selling prices; and

(3) Final settlement papers.

(d) The records of the auctioneer shall be open to inspection by the commissioner or his or her authorized representative.

(e) A person who has an auctioneer license is considered to be a professional in his or her trade.

§19-2C-5a. Examinations of applicants.

(a) Examinations shall be held a minimum of two times each year, at a time and place to be designated by the commissioner or his or her authorized representative.

(b) An individual auctioneer applicant may take the examination for auctioneer or apprentice auctioneer at the regularly scheduled time and place.

(c) The apprentice auctioneer’s examination shall consist of a written examination.

(d) The auctioneer’s examination shall consist of both a written and oral examination. The passing grade for any written or oral examination shall be 70 percent out of 100 percent. The oral portion will be scored by the commissioner or his or her authorized representative.

(e) If the applicant fails either the written or oral portion of the examination, no license will be issued and he or she may not be administered the examination again until the next regularly scheduled examination date.

 (f) Only one notice of the examination will be mailed or emailed to the applicant at the address given on the application. If the applicant fails to appear for an examination, except as provided in this subsection, a new application and a new fee shall be required. No fee will 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 may 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.

 (g) An examination fee and any other fees required by this article, shall be collected from each person taking an 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.

 (h) If the commissioner determines that an applicant does not qualify for a license, he or she shall notify the applicant by certified mail. The notice shall state:

(1) The reason for the refusal to grant a license; and

(2) The applicant’s right to appeal the commissioner’s decision within 20 days of receipt of the notice.

 (i) An examination is not required for the renewal of a license, unless the license has been revoked or suspended, or has expired. If the license was revoked or suspended, then the commissioner may require a person to take and pass a written or oral examination. If a license has been expired for more than two years and was not revoked or suspended, then the applicant is required to take and pass any written and oral examinations required by the commissioner.

§19-2C-5b. Background checks required.

(a) A person applying for a license pursuant to §19-2C-5, §19-2C-6, or §19-2C-6c of this code may be required to submit to a state and national criminal history record check. The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(1) Submitting fingerprints for the purposes set forth in this subsection; and

(2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(c) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check; or

(3) Pursuant to a court order.

(d) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.

(e) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(f) The commissioner may not disqualify an applicant for initial licensure, certification or registration because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.

(g) The commissioner may not use crimes involving moral turpitude in making licensure, certification or registration determinations.

(h) If an applicant is disqualified for licensure, certification or registration because of a criminal conviction that has not been reversed, the commissioner shall afford the applicant the opportunity to reapply for licensure, certification or registration after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time: Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the individual board or licensing authority.

(i) An individual with a criminal record who has not previously applied for licensure, certification or registration may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or other authorization. This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction and the specific nature of the conviction. The commissioner shall inform the individual of his or her standing within 60 days of receiving the petition from the applicant. The licensing authority may charge a fee to recoup its costs for each petition.

(j) Nothing in this section alters the standards and procedures the commissioner uses for evaluating licensure, certification or registration renewals.

(k) The commissioner shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section. These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq. of this code within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

(l) The provisions of this section, enacted during the 2019 Regular Session of the Legislature, shall not apply to current licensees who maintain active licensure, but shall apply to individuals currently holding an apprentice auctioneer license who are applying for an auctioneer license, or to any current license holder whose license lapses and who is required to reapply.

§19-2C-6. Requirements for apprentice auctioneer license.

(a) A person seeking an apprentice auctioneer license shall furnish to the commissioner, on forms provided by the commissioner, satisfactory proof that he or she:

(1) Has a good reputation;

(2) Is a trustworthy character;

(3) Is a citizen of the United States; and

(4) Has taken and passed a written examination relating to the skills and knowledge of the statutes and rules governing auctioneers.

(b) An apprentice auctioneer may take the examination to become an auctioneer after completing one of the following:

(1) Serving a two-year apprenticeship under a licensed auctioneer; or

(2) Attending a nationally accredited graduate school of auctioneering, approved by the commissioner, and serving an apprenticeship of six months.

(c) 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, That the commissioner may not waive apprenticeship requirements for an applicant without the concurrence of the board of review.

(d) When an apprentice auctioneer is discharged or terminates his or her employment with an auctioneer for any reason, the auctioneer shall immediately provide written notification to the commissioner. No discharged or terminated apprentice auctioneer may thereafter perform any acts under the authority of his or her license until the apprentice auctioneer receives a new license bearing the name and address of his or her new employer. No more than one license may be issued to an apprentice auctioneer for the same period of time.

(e) The commissioner may not issue an apprentice auctioneer license until bond has been filed. All apprentice auctioneer licenses expire on June 30 of each year, but are renewable upon the payment of the annual fee: Provided, That an apprentice auctioneer may continue to perform auctions for up to 20 days after June 30, so long as he or she has submitted the required paperwork to renew his or her apprentice auctioneer license: Provided, however, That licenses issued in 2019 shall continue to be active through June 30, 2020.

(f) A person cannot be licensed as an apprentice auctioneer for more than three years without applying for an auctioneer license. Should an apprentice auctioneer allow the three year limit to lapse, then the apprentice auctioneer shall be required to take the apprentice examination and meet all the requirements of this article.

§19-2C-6a. Investigation of complaints; board of review.

(a) 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.

(b) 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 two board members 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. 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.

§19-2C-6b. Duties and responsibilities of an apprentice auctioneer and a sponsoring auctioneer.

(a) A licensed apprentice auctioneer shall only conduct or assist in auctions under the direct supervision of his or her sponsoring auctioneer. A licensed apprentice auctioneer may not enter into a contract to conduct an auction, unless the contract is cosigned by his or her sponsoring auctioneer.

(b) The sponsoring auctioneer is responsible for:

(1) The actions of an apprentice auctioneer to ensure adherence to state law; and

(2) Training the apprentice auctioneer in all aspects of practical business functions and duties related to the auctioneering profession.

(c) Should an apprentice auctioneer fail to pass both the written and oral examinations to become a fully licensed auctioneer in two consecutive testing sessions, the sponsorship will be terminated. The apprentice auctioneer will be permitted one additional opportunity to pass the oral and written auctioneer examinations only after serving another six month apprenticeship under a different sponsoring auctioneer.

(d) A sponsoring auctioneer relieved of his or her sponsorship will not be considered for another sponsorship unless he or she provides a written affidavit to the commissioner that he or she fully understands the responsibilities of a sponsoring auctioneer and gives the details as to what additional training will be provided to a new apprentice auctioneer. If the commissioner or his or her representative approves the presented plan, then an auctioneer may be permitted to sponsor a new apprentice auctioneer.

(e) If an apprentice auctioneer conducts an auction without the consent of his or her sponsoring auctioneer, then only the apprentice auctioneer is subject to the penalties set forth in this article.

§19-2C-6c. Procedure for obtaining reciprocal or nonresident auctioneer’s and apprentice auctioneer’s license.

(a) To qualify for a 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.

(b) 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.

§19-2C-7. Orders of commissioner; hearing; review.

Any order of the commissioner shall be served by him upon all persons affected thereby by registered mail. Within ten days of the 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.

§19-2C-8. Penalties.

(a) Criminal penalties. — Any person, firm, association or corporation violating a provision of this article or the rules, is guilty of a misdemeanor and, upon conviction, shall be fined not less than $250 nor more than $500 for the first offense, and not less than $500 nor more than $1,000 for the second and subsequent offenses. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.

(b) Civil penalties. — Any person violating a provision of this article or the rules, may be assessed a civil penalty by the commissioner.

(1) In determining the amount of the civil penalty, the commissioner shall give due consideration to the history of previous violations by 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. The commissioner may assess a penalty of not more than  $500 for a first offense, and not more than $1,000 for each second and subsequent offense.

(2) In addition to a penalty assessed against an unlicensed auctioneer for practicing without the required license, the commissioner may assess penalties against an unlicensed auctioneer for violations of the provisions of this article that would have applied to the individual’s conduct had he or she held the required license.

(3) The civil penalty is payable to the State of West Virginia and is collectible in any manner provided for collection of debt. If any person liable to pay the civil penalty neglects or refuses to pay the penalty, the amount of the civil penalty, together with interest at 10 percent, is a lien in favor of the State of West Virginia upon the property, both real and personal, of the person after the same 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) 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.

§19-2C-8a. Revocation.

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 or her 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 15 days of conviction;

(f) Violating any other laws related to the conduct of auctions or auctioneering;

(g) Engaging in any conduct of an auctioneer which demonstrates dishonesty or incompetency;

(h) Engaging in any other conduct that constitutes fraudulent or dishonest dealing;

(i) Engaging in any other unethical conduct in the contexts of his or her work as an auctioneer; and

(j) Acting as an attorney for a client.

Any auctioneer or apprentice auctioneer who has had his or her 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.

§19-2C-9. Written contracts.

(a) No person may act as an 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. No apprentice auctioneer may 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.

(b) The written contract shall:

(1) State the terms and conditions upon which the auctioneer receives or accepts the property for sale at auction;

(2) Be between the auctioneer and the seller;

(3) Be made in duplicate;

(4) Be retained by the auctioneer for a period of three years from the date of final settlement;

(5) Be furnished to each person that entered into the contract;

(6) State that an apprentice auctioneer may not contract directly with a client but only through his or her sponsoring auctioneer;

(7) State 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;

(8) Have a prominent statement indicating that the auctioneer is licensed by the Department of Agriculture and is bonded in favor of the State of West Virginia; and

(9) Include the following information:

(A) The name, address and phone number of the owner of the property to be sold or the consignor;

(B) The date of the auction or a termination date of the contract;

(C) The terms and conditions of the auction;

(D) The location of the auction;

(E) The date the owner or consignor is to be paid;

(F) A statement establishing the responsibility for bad checks, debts and unpaid auction items;

(G) A detailed list of all fees to be charged by the auctioneer, including commissions, rentals, advertising and labor;

(H) A statement of the auctioneer’s policy regarding absentee bidding;

(I) A statement above the owner’s signature line: "I have read and accept the terms of the contract"; and

(J) A statement indicating that an explanation of settlement of the auction, or settlement sheet, will be provided to the owner or consignor at the end of the auction.

(c) As a condition of entering into a contract, the auctioneer shall be provided with proof or certificate of ownership for all titled property, or assurances of ownership for all other property. The auctioneer shall have such proof or certificate or ownership with him or her at the time the auction is held.

(d) Notwithstanding the provisions of subsection (a) of this section, an auctioneer may conduct an auction on behalf of an auction house or other business entity without having entered into a contract directly with the seller of the auctioned goods, so long as the following conditions are satisfied:

(1) The auction house or business must have a written contract with both the seller of the goods and the auctioneer;

(2) The contract between the auction house or business entity must satisfy all the requirements set forth in subsection (b) of this section; and

(3) The auction house or business entity must file with the commissioner a bond satisfying the requirements of §19-2C-4 of this code.

(e) By entering into contracts with sellers of property pursuant to this section, the owners and partners of any auction house or business entity agree to submit to the jurisdiction of the commissioner and the Board of Review and are subject to the penalties set forth in §19-2C-8 of this code.

§19-2C-9a. Escrow accounts.

Each auctioneer shall maintain an escrow account and deposit all moneys from each sale from an auction in the escrow account within twenty-four hours of the completion of the sale or on the first business day following the sale, unless the owner or consignor was paid in cash directly at the end of the sale.

§19-2C-10. Advertising.

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 or her 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.

It is unlawful to conduct or advertise that an auction is absolute if minimum opening bids are required or other conditions are placed on the sale that limit the sale other than to the highest bidder.

No property other than the property of a specified deceased person or the property of a specified living person’s estate may be sold at auction if the auction is conducted or advertised only as an estate auction. However, property other than that of the specified estate may be sold at the sale if all advertisements for the sale specify that items will be sold that do not belong to the estate and those items are identified at the sale.

§19-2C-11.

Repealed.

Acts, 1991 Reg. Sess., Ch. 123.

ARTICLE 2D. IMITATION HONEY PRODUCT LAW.

§19-2D-1. Definitions.

"Honey" means the nectar and saccharine exudation of plants as gathered, modified and stored in comb by honeybees.

"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.

§19-2D-2. Labeling.

(a) No person shall manufacture, package, label, sell, keep for sale, expose or offer for sale, any article or product represented to be honey or to contain honey unless the product ingredient is honey, as defined in this article.

(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."

§19-2D-3. Penalties.

Any person who violates any of the provisions of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for the first offense, be fined not more than $100, and upon conviction for each subsequent offense be fined not more than $500.

ARTICLE 2E. HUMANE SLAUGHTER OF LIVESTOCK.

§19-2E-1. Title.

This article shall be known by the short title of "The Humane Slaughter Act of 1982."

§19-2E-2. Declaration of purpose.

The purpose of this article is to restrict the methods used to slaughter cattle, sheep, swine and goats in commercial slaughtering establishments in West Virginia to those approved as humane techniques.

§19-2E-3. Definitions.

As used in this article:

(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.

§19-2E-4. Commissioner to enforce article; rules and regulations; effective date.

The commissioner shall administer and enforce the provisions of this article and shall have authority to issue regulations, after a public hearing, following due notice to all interested persons in conformance with the provisions of the state administrative procedures as set forth in chapter twenty- nine-a of this code, to carry out the provisions of the article. Commercial slaughtering facilities shall be in compliance with the provisions of this article within six months after the effective date of the article.

§19-2E-5. Methods of humane slaughter.

(a) Livestock, before being shackled, hoisted, thrown, cast or cut must be rendered insensible to pain by a single blow, gunshot or by electrical, chemical or other means that is safe, rapid and effective; or

(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.

§19-2E-6. Penalties.

Any person violating any provision of this article or regulations adopted hereunder shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, and for the second offense, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 and shall have the license to do business as a slaughtering establishment, under article two-b, chapter nineteen of the Code of West Virginia, suspended until the facility is in compliance with the provisions of this article.

§19-2E-7. Severability.

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 the article are declared to be severable.

ARTICLE 2F. BEEF INDUSTRY SELF-IMPROVEMENT ASSESSMENT PROGRAM.

§19-2F-1. Purpose.

The purpose of this article is to promote and stimulate, through research, education, advertising and other methods, the increased and efficient production, distribution, sale and use of cattle and beef products by providing a means and procedure for financing a promotional program for the West Virginia cattle industry through activities of the West Virginia Beef Industry Council.

§19-2F-2. Definitions.

As used in this article:

(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.

§19-2F-3. Petition for referendum; public hearing; notice.

(a) Producers may petition the Commissioner to conduct a referendum of West Virginia producers authorizing the levying of an assessment for the purposes set forth in this article: Provided, That no referendum may be held until the provisions of 7 U.S.C. §2901 et seq., the federal beef research and information program, have terminated.

(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.

§19-2F-4. Conduct of referendum.

(a) The Council shall notify producers of the date, hours and polling places for voting in the referendum, along with the amount and duration of the proposed assessment, the manner of collecting the assessment and the general purposes for which the assessment will be expended. The notice must be published no less than three times in two newspapers of general circulation within this state and the Council may give notice of the referendum in other publications and at places the Council considers appropriate.

(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.

§19-2F-5. Subsequent referendums.

(a) In the event that a referendum conducted pursuant to the provisions of this article fails to receive a majority of the affirmative votes cast, the Council is authorized to conduct a subsequent referendum under the provisions of section four of this article no earlier than twelve months after the date on which the last referendum was held without complying with the requirements set forth in section three of this article, so long as the amount and duration of the assessment are not increased.

(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.

§19-2F-6. Beef Industry Council; appointment; terms; qualification of members; removal of members; officers; meetings; expenses.

(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 July 1, 2005, 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.

§19-2F-7. Powers and duties of the Council; rule-making authority.

(a) The Council has the authority to:

(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 January 15, 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.

§19-2F-8. Notice, levy and collection of assessment.

(a) Upon approval of an assessment, the Council shall notify all known livestock markets, packers, buying stations, order buyers, livestock dealers or other persons purchasing cattle, including dairy cattle, that they are required to deduct the amount of the assessment stipulated in the authorizing referendum from the sale settlement beginning on the date designated in the notice.

(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.

§19-2F-9. Refunds.

Any producer against whom an assessment is made and deducted from the proceeds of sale, if dissatisfied with the assessment, has the right to demand and receive from the treasurer of the Council a refund of the total amount of assessment collected from the producer if the demand is made in writing to the Council within thirty days of the date the assessment was deducted from the sale proceeds. The demand for refund must contain the name and address of the producer, the date of purchase, the number of head sold, the amount of the assessment, the name and address of the collecting agent, the date of sale and the invoice number. The refund is made upon determination that the assessment was paid by the producer.

§19-2F-10. Penalties.

When a person required to collect the assessment in accordance with section eight of this article fails to do so or fails to remit it to the treasurer of the Council within thirty days, the Council certifies that fact to the Commissioner. The Commissioner notifies the person in writing that he or she has fifteen days to begin the collection of the assessment, or to remit previously collected assessments to the Council's treasurer or to submit a written justification for the failure to collect or remit the assessment. If the Commissioner determines that person was required to remit the assessment and if payment is not made within the fifteen-day period, the Commissioner may revoke the person's license to engage in cattle purchasing activities in the state. Persons having their license revoked under this section are not eligible for license-reinstatement for a period of three years.

§19-2F-11.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

ARTICLE 2G. TREE FRUIT INDUSTRY SELF-IMPROVEMENT BOARD.

§19-2G-1.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-2.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-3.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-4.

Repealed.

Acts, 1993 Reg. Sess., Ch. 163.

§19-2G-5.

Repealed.

Acts, 1993 Reg. Sess., Ch. 163.

§19-2G-6.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-7.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-8.

Repealed.

Acts, 1993 Reg. Sess., Ch. 163.

§19-2G-9.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

§19-2G-10.

Repealed.

Acts, 2009 Reg. Sess., Ch. 36.

ARTICLE 2H. CAPTIVE CERVID FARMING ACT.

§19-2H-1. Short title; legislative findings.

(a) This article shall be called the Captive Cervid Farming Act.

(b) The Legislature finds that captive cervid farming is primarily an agricultural business and that captive cervids should be regulated like other livestock.

(c) The Legislature further finds that the Department of Agriculture possesses the knowledge, training and expertise to regulate captive cervid farming as an agricultural business and to adequately protect the health and safety of animals and the general public. Matters related to licensure, the sale of venison, animal health and testing, fencing, interstate and intrastate movement, animal identification system, recordkeeping, animal husbandry, equipment and other related matters shall be regulated by the department.

§19-2H-2. Definitions.

As used in this article:

(a) "Biosecurity" means measures, actions or precautions taken to prevent the transmission of disease in, among or between free-ranging and captive cervids.

(b) "Captive cervid" or the plural means a member of the Cervidae family of animals including, but not limited to, fallow deer, red deer, white-tailed deer, axis deer, elk, moose, reindeer and caribou which are domesticated animals under the control of the owner of the animal.

(c) "Captive cervid farming facility", "facility" or the plural means the captive cervids, property, fenced area, operations and equipment regulated and licensed by the department pursuant to this article.

(d) "Commissioner" means the Commissioner of the West Virginia Department of Agriculture.

(e) "Department" means the West Virginia Department of Agriculture.

(f) "Identification system" means a process or procedure that allows an individual cervid to be continuously recognized as a unique animal throughout its lifetime.

(g) "License" means the authorization issued by the department for the operation of a captive cervid farming facility pursuant to this article.

(h) "Owner" means the person who owns or operates a captive cervid farming facility.

(i) "Person" means an individual, corporation, limited liability company, partnership, association, joint venture or other legal entity.

(j) "Release" means to allow a cervid from a licensed captive cervid farming facility to be outside the perimeter fence of that licensed captive cervid farming facility without being under the direct control of the owner or his or her agent.

§19-2H-3. Authority of the department; duties and obligations of the commissioner.

(a) The department is hereby granted authority to regulate captive cervid farming facilities in this state in accordance with this article. Subject to the transition provisions contained in this article, no person may operate a captive cervid farming facility in this state unless that person holds a license issued by the commissioner pursuant to this article.

(b) The commissioner or his or her designees may:

(1) Establish a section and designate staff responsible for the enforcement of this article;

(2) Contract with veterinarians, biologists or other professionals to implement this article;

(3) Enter into contracts or compacts with state agencies or other states to enhance the biosecurity of captive cervid farming facilities in this and other states;

(4) Lease, rent, purchase, construct, maintain, operate, sell, encumber or assign rights of real or personal property to meet the objectives of this article;

(5) Hold hearings, subpoena witnesses, administer oaths, take testimony, require the production of evidence and designate hearing examiners and employees;

(6) Take any other action necessary or incidental to the performance of his or her duties pursuant to this article;

(7) Regulate the movement of captive cervids and require the documentation of the origin and destination of all shipments of captive cervids; and

(8) Prohibit captive cervid facilities in this state from receiving live captive cervids or any byproduct thereof, or captive cervid genetic materials from a captive cervid facility that has had a confirmed chronic wasting disease or tuberculosis positive cervid in the last sixty months.

§19-2H-4. Application for license.

(a) A person desiring to operate a captive cervid farming facility in this state must submit an application for a license to the department. The department shall provide the forms and instructions for the filing of applications.

(b) The application form shall require submission of the following information:

(1) The mailing address of the proposed captive cervid farming facility and the size, location and an adequate legal description of the facility;

(2) The number of each species of cervid to be included in the proposed facility;

(3) The biosecurity measures to be utilized;

(4) The proposed method of flushing wild cervids from the enclosure, if applicable;

(5) The proposed record-keeping system;

(6) The method of verification that all wild cervids have been removed;

(7) The current zoning of the property proposed for the facility; and

(8) Any other information requested by the department.

(c) The application shall be accompanied by the annual license fee as follows:

(1) Class one license. -- For a facility to breed and propagate captive cervids, and create cervid byproducts, for sale to others, $375; or

(2) Class two license. -- For a facility to breed, propagate, harvest or slaughter captive cervids, create cervid byproducts, permit hunting of captive cervids or sell venison to others, $750.

§19-2H-5. Action on applications.

(a) The department shall act on a complete application for a license within sixty days of receipt. The department may issue a provisional license for a proposed facility that has not yet been constructed, but operations shall not begin under a provisional license until the fully constructed facility has been inspected and approved by the department.

(b) The department may not issue a license until the commissioner has determined that the facility meets all of the following criteria:

(1) The facility has been inspected by the department and it meets the requirements of this article and the rules promulgated thereunder;

(2) The applicant has all necessary federal, state and local governmental permits; and

(3) The owner has paid all applicable license fees and all departmental charges for services provided to the facility.

(c) If the department finds a deficiency in the license application, then the owner shall be given at least thirty days to remedy the deficiency before the license application is denied.

(d) If the department finds that the proposed captive cervid farming facility does not comply with the requirements of this article, then the owner shall be given at least thirty days to remedy the deficiency at the facility before the license application is denied.

(e) The applicant may request a hearing, pursuant to article five, chapter twenty-nine-a of this code, to contest the denial of a license or any limitations placed upon the issuance of a license.

(f) The department shall retain the license fee for its services in the event a license is denied.

§19-2H-6. License certificate; renewal; sale or transfer of license.

(a) Once approved, the department shall issue a license certificate to the owner of a captive cervid farming facility containing the following information:

(1) The class of license, the license number and expiration date;

(2) The captive cervid species and number of captive cervids approved for the licensed facility; and

(3) The name, business address and telephone number of the owner and of the captive cervid farming facility.

(b) An application for renewal of a license shall be submitted on forms provided by the department sixty days prior to the expiration of the current license. Each license issued shall be for a period of one year from the date of issuance.

(c) The sale or transfer of ownership of a captive cervid farming facility will not operate to transfer the license. The department may issue a new license to the transferee if all license requirements and fees are satisfied.

§19-2H-7. License modification.

An owner shall apply to the department for a license modification if there is any proposed change in the class of license, cervid species, number of captive cervids or other requirement necessitating an application for modification.

§19-2H-8. Inspection of facility by the department.

The department shall have access at all reasonable hours to any captive cervid farming facility to conduct inspections, secure samples or specimens or determine whether the owner is in compliance with the requirements of this article. Inspections and sampling shall be conducted in a manner which will not unnecessarily jeopardize the health of the captive cervids.

§19-2H-9. Transition to captive cervid farming licenses; statutory conflicts.

(a) A captive cervid farming facility in existence on the effective date of this article may continue operation under its existing authorization until the department acts on its application so long as the facility applies for a license under this article within sixty days after application forms are made available.

(b) Notwithstanding any other provision of the law to the contrary, an owner or an owner's customer harvesting captive cervids from a captive cervid farming facility is not subject to laws regarding possession limits and closed seasons. Further, a facility is not subject to sections thirteen, fourteen and forty-seven, article two, chapter twenty of this code or the rules promulgated thereunder.

§19-2H-10. Administrative penalties; hearing.

(a) Upon finding that a person has violated any requirement or rule promulgated under this article, the commissioner may:

(1) Issue a warning;

(2) Impose a civil penalty of not more than $1,000 plus the costs of investigation for each violation;

(3) Suspend, revoke or modify a license;

(4) Obtain a declaratory judgment that a particular action is a violation of this article; or

(5) Obtain an injunction.

(b) A person aggrieved by an administrative action under this section may request an informal hearing or a hearing pursuant to article five, chapter twenty-nine-a of this code.

§19-2H-11. Prohibited conduct; criminal penalties.

(a) A person may not release or permit the release of any captive cervids from a captive cervid farming facility.

(b) A person may not cause the entry or introduction of wild cervids into a captive cervid farming facility.

(c) An owner may not cease operation of or abandon a captive cervid farming facility without complying with the requirements and rules promulgated under this article.

(d) Any person who violates subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than ninety days, or fined not more than $300, or both fined and confined for a first offense. Any person who violates subsection (a) or (b) of this section for a second or subsequent offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, or fined not more than $1,000, or both fined and confined.

(e) Any person who intentionally or knowingly violates subsection (a), (b) or (c) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than three years, or fined not more than $1,000, or both fined and imprisoned.

(f) A person may not kill, injure, or take any captive cervid that is the property of another. A person who violates this subsection is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than $500 and pay restitution pursuant to sections four and five, article eleven-a, chapter sixty-one of this code.

§19-2H-12. Rulemaking.

(a) The commissioner shall propose legislative rules in accordance with article three, chapter twenty-nine-a of this code to implement and enforce this article. The rules shall be consistent with the rules of the United States Department of Agriculture in so far as practicable. Any rules promulgated by the commissioner before September 1, 2015, may be emergency rules.

(b) The rules shall include, but not be limited to:

(1) Preventing the spread of diseases between captive and wild cervids;

(2) Implementing an identification system that allows individual captive cervids to be recognized and identified throughout the animal's life;

(3) Establishing specifications for fencing necessary to prevent the escape of captive cervids and the infiltration of wild cervids into a captive cervid farming facility;

(4) Specifying record-keeping standards required of captive cervid farming facilities, including standards for documenting purchases, propagation, sales, harvesting, sales of venison and other documentation required to maintain accurate and complete business records;

(5) Establishing animal health testing criteria, inoculation requirements and statistical information to track, discover and prevent the spread of animal diseases, including chronic wasting disease;

(6) Regulating the intrastate and interstate movement of captive cervids and maintaining documentation of the origin and destination of all cervid shipments, disease and identification records and any other requisite documentation;

(7) Creating regulations for the sale and slaughtering of captive cervids for venison;

(8) Establishing a schedule of fees and charges for services provided by the department to captive cervid farming facilities; and

(9) Procedures for captive cervid farming facilities to close and wind down operations.

ARTICLE 3. SALE OF FARM PRODUCTS BY COMMISSION MERCHANTS.

§19-3-1. License required; application and fee.

A person engaged in the business of a commission merchant in this state dealing in the sale, purchase, or consignment of agricultural products shall before carrying on such business procure a license from the commissioner. Application for such license shall be made on forms prescribed by the commissioner and shall be accompanied by a fee of $10. Such license shall be renewed annually on or before July 1,.

§19-3-2. Applicant to furnish surety bond.

Prior to the issuance of a license for commission merchant, 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 consignors who have been wronged or damaged by fraud or fraudulent practices of the commission merchant and so adjudged by a court of competent jurisdiction and who shall have the right of action for damage for compensation against such bond.

§19-3-3. Grounds for refusal or revocation of license.

The commissioner may refuse to grant a license or may revoke a license already granted when he is satisfied that the applicant or licensee has:

(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.

§19-3-4. Suit on bond; limitation on recovery.

A person injured by the failure of a commission merchant to pay over the full amount received on any sale, less commissions and charges may recover on the bond of the commission merchant the amount due him by a suit brought in the name of the State of West Virginia for the use of the injured person. No recovery shall be had on the bond in excess of the penalty thereof. In case of multiple claims in excess of the bond, each claimant shall recover his pro rata share.

§19-3-5. Penalty; moneys collected to be deposited in "general marketing fund."

A commission merchant who violates any of the provisions of this article shall be guilty of a misdemeanor and, upon conviction shall be fined not more than $100 for the first offense, and not less than $100 nor more than $200 for each subsequent offense. Each transaction engaged in by an unlicensed commission merchant shall constitute a separate offense.

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.

ARTICLE 4. COOPERATIVE ASSOCIATIONS.

§19-4-1. Definitions.

As used in this article:

(a) "Agricultural products" means horticultural, viticultural, forestry, dairy, livestock, poultry, bee and any farm products in their natural form or processed.

(b) "Goods and services" means food and beverages, arts and crafts, woodworking and furniture-making, and recycling, composting and repurposing materials.

(c) "Member" means a member of an association without capital stock and a holder of common stock in an association organized with capital stock.

(d) "Cooperative association" or "association" means any corporation organized under this article. Each association shall also comply with the requisite business corporation provisions of chapter thirty-one-d or thirty-one-f of this code, or the nonprofit corporation provisions of chapter thirty-one-e of this code.

Except within a thirty-five mile radius of a facility that has been permitted and classified by the West Virginia Department of Environmental Protection as a mixed waste processing resource recovery facility, a recycling cooperative association may be organized as a nonprofit corporation pursuant to chapter thirty-one-e of this code. Any such recycling cooperative association is limited to owning or using one motor vehicle for the collection and transportation of recyclable goods. The recyclable goods must be generated by members of the recycling cooperative association.

(e) "Qualified person" means a person who is engaged in the producing, preserving, harvesting, drying, processing, manufacturing, canning, packing, grading, storing, handling, utilizing, marketing, financing, selling, distributing, shipping, procuring or providing of agricultural products, or other goods and services, or the by-products thereof.

(f) "Qualified activity" means those engaged in the producing, preserving, harvesting, drying, processing, manufacturing, canning, packing, grading, storing, handling, utilizing, marketing, financing, selling, distributing, shipping, procuring or providing of agricultural products, or other goods and services, or the by-products thereof.

§19-4-2. Who may organize.

Three or more qualified persons engaged in the production of agricultural products or the provision of goods and services may form a cooperative association with or without capital stock. Three or more cooperative associations may form an agricultural credit association, with or without capital stock, under this article and in compliance with the credit union provisions of chapter thirty-one-c of this code.

§19-4-3. Purposes.

A cooperative association may be organized to engage in one or more qualified activities in connection with the marketing or selling of agricultural products or the goods and services of its members or those purchased from other persons; or in connection with the manufacturing, selling or supplying to its members of machinery, equipment or supplies; or in securing and disseminating market information; or in the financing directly, through agricultural credit associations, and/or otherwise, the above-enumerated activities; or in any one or more of the activities specified herein. An agricultural credit association may be organized hereunder to finance qualified persons or to finance any cooperative association, or both, whether formed under the laws of this or any other state.

§19-4-4. Powers.

A cooperative association shall have the following powers:

(a) To engage in any qualified activity in connection with any agricultural products or goods and services provided; 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 associationsany qualified activities. All transactions with nonmembers shall be on terms fixed by the association and 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 not contrary to 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), 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.

§19-4-5. Members.

(a) Under the terms and conditions prescribed in the bylaws adopted by it, a cooperative association may admit as members, or issue common stock to, only qualified persons, employees, volunteers and persons engaged in qualified activities, including the production, sale, creation, distribution, aggregation or cooperative marketing of the agricultural products or the goods and services to be handled by or through the association, and any lessor or landlord who receives as rent all or any part of a crop raised on the leased premises; and under the terms and conditions prescribed in the bylaws adopted by it, an agricultural credit association may admit any person as a member.

(b) If a member of a nonstock association be other than a natural person, the member may be represented by an individual, associate, officer or manager or member thereof, duly authorized in writing.

(c) 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.

§19-4-6. Articles of incorporation.

Each association formed under this article shall prepare and file articles of incorporation, setting forth:

(a) The name of the association, which includes the words "cooperative," "co-operative," or "co-op," and words or abbreviations designating a corporation;

(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 is not less than three, the number of directors which is not less than three and any number in excess of those minimums, or it may be set forth that the number of directors will be fixed by the bylaws;

(f) If organized without capital stock, whether the property rights and interest of each member are equal or unequal; and if unequal, the general rules applicable to the classes of members whose property rights and interest are determined and fixed; and provision for the admission of new members who may be entitled to share in the property of the association with the old members, in accordance with the general rules. This provision of the articles of incorporation may 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 has authority to issue, including: (1) The par value of each of the shares; or (2) a statement that all the shares are to be without par value;

(h) If the association is authorized to issue more than one class of stock, the total number of shares of all classes of stock which the association may issue, including: (1) The number of shares of each class that have a par value and the par value of each share by class; (2) the number of shares that are to be without par value; and (3) a statement of the powers, preferences, rights, qualifications, limitations or restrictions that are permitted by section thirteen of this article in respect to a class of stock fixed by the articles of incorporation or by resolution of the board of directors;

(i) The articles shall be signed and filed in accordance with the provisions of the business or nonprofit corporation laws of this state;

(j) The articles may also contain any provisions managing, defining, limiting or regulating the powers and affairs of the association, the directors, the stockholders or members of the association.

§19-4-7. Amendments to articles of incorporation.

The articles of incorporation may be altered or amended at any regular meeting or any special meeting called for that purpose. An amendment must first be approved by two thirds of the directors and then adopted by a vote representing a majority of all the members of the association. Amendments to the articles of incorporation, when so adopted, shall be filed in accordance with the provisions of the general corporation laws of this state.

§19-4-8. Bylaws.

Each association incorporated under this article, must, within thirty days after its incorporation, adopt for its government and management a code of bylaws, not inconsistent with the powers granted by this article. A majority vote of the members or stockholders, or their written assent, is necessary to adopt such bylaws. Each association, under its bylaws, may provide for any or all of the following matters:

(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.

§19-4-9. General and special meetings.

In its bylaws, each association shall provide for one or more regular meetings annually. The board of directors shall have the right to call a special meeting at any time; and ten percent of the members or stockholders may file a petition stating the specific business to be brought before the association and demand a special meeting at any time. Such meeting must thereupon be called by the directors. Notice of all meetings, together with a statement of the purposes thereof, shall be mailed to each member at least ten days prior to the meeting: Provided, however, That the bylaws may require instead that such notice may be given as provided by this section, namely, as a Class I 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 in which the principal place of business of the association is located.

§19-4-10. Directors.

(a) The affairs of the association shall be managed by a board of not less than three directors, elected by the members or stockholders.

(b) The bylaws may provide that the territory in which the association has members shall be divided into districts and that the directors be elected either directly or by district delegates elected by the members in that district. The bylaws shall specify the number of directors to be elected by each district, the manner of reapportioning the directors and the method of redistricting the territory covered by the association. The bylaws may provide that primary elections shall be held in each district to elect the directors apportioned to the districts and that the results of all the primary elections may be ratified during the next regular meeting of the association or may be considered final.

(c) The bylaws may provide that one or more directors may be appointed by a public official, commission or by the other directors. These public directors shall represent the interest of the general public in the associations. The public directors need not be members or stockholders of the association, but shall have the same powers and rights as other directors. The directors shall not number more than one fifth of the entire number of directors.

(d) 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 or her office, shall be a party to a contract for profit with the association differing from the contractual terms accorded regular members or holders of common stock of the association.

(e) The bylaws may provide that no director, except the president and secretary, shall occupy a position in the association on regular salary or substantially full-time pay.

(f) The bylaws may provide for an executive committee and may allot to the committee all the functions and powers of the board of directors, subject to the general direction and control of the board.

(g) 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 that case the board of directors shall immediately call a special meeting of the members or stockholders in that district to fill the vacancy.

§19-4-11. Officers.

The directors shall elect from their number a president and one or more vice presidents. They shall also elect a secretary and a treasurer, who need not be directors or members of the association; and they may combine the two latter offices and designate the combined office as secretary-treasurer; or unite both functions and titles in one person. The treasurer may be a bank or any depository, and, as such, shall not be considered an officer, but as a function of the board of directors. In such case, the secretary shall perform the usual accounting duties of the treasurer, except that the funds shall be deposited only as and where authorized by the board of directors.

§19-4-12. Officers, employees and agents to be bonded.

Every officer, employee and agent handling funds or negotiable instruments or property of or for any association created hereunder shall be required to execute and deliver adequate bonds for the faithful performance of his duties and obligations.

§19-4-13. Stock; membership certificate; voting; liability; limitations on transfer and ownership.

(a) When a member of an association established without capital stock has paid his or her membership fee in full, he or she shall receive a certificate of membership. An association shall have power to issue one or more classes of stock, or one or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value, with such voting powers, full or limited, or without voting powers and in such series, and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the articles of incorporation, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to authority expressly vested in it by the provisions of the articles of incorporation or of any amendment thereto.

(b) 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.

(c) No member shall be liable for the debts of the association to an amount exceeding the sum remaining unpaid on his or her membership fee or his or her subscription to the capital stock, including any unpaid balance on any promissory notes given in payment thereof.

(d) 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 or her.

(e) 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 who are not qualified persons, or organizations that are not engaged in qualified activities handled by the association, or to persons or organizations that are not members of credit associations financing such products; and such restrictions shall be printed upon every certificate of stock subject thereto.

(f) 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.

(g) 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.

§19-4-14. Removal of officer or director.

Any member may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition signed by five percent of the members, requesting the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association and, by a vote of a majority of the members, the association may remove the officer or director and fill the vacancy. The director or officer against whom such charges have been brought shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses; and the person or persons bringing the charges against him shall have the same opportunity.

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.

§19-4-15. Referendum.

Upon demand of one third of the entire board of directors, made immediately and so recorded, at the same meeting at which the original motion was passed, any matter of policy that has been approved or passed by the board must be referred to the entire membership or the stockholders for decision at the next special or regular meeting; and a special meeting may be called for the purpose.

§19-4-16. Marketing contract.

The association and its members may take and execute marketing contracts, requiring the members to sell, for any period of time, not over twenty years, all or any specified part of their agricultural products, goods and services or specified commodities exclusively to or through the association, or any facilities to be created by the association. If they contract a sale to the association, it shall be conclusively held that title to the products, goods and services passes absolutely and unreservedly, except for recorded liens, to the association upon delivery, or at any other specified time if expressly and definitely agreed in such contract. The contract may provide, among other things, that the association may sell or resell the products, goods and services delivered by its members, with or without taking title thereto, and pay over to its members the resale price, after deducting all necessary selling, overhead and other costs and expenses, including interest or dividends on stock, not exceeding eight percent per annum, and reserves for retiring the stock, if any; and any other proper reserves; or any other deductions.

§19-4-17. Remedies for breach of contract.

The bylaws or the marketing contract may fix, as liquidated damages, specific sums to be paid by the member or stockholder to the association upon the breach by him of any provision of the marketing contract regarding the sale or delivery or withholding of products, and may further provide that the member will pay all costs, premiums for bonds, expenses and fees, in case the association shall prevail in any action brought by it upon the contract; and any such provisions shall be valid and enforceable in the courts of this state; and such clauses providing for liquidated damages shall be enforceable as such and shall not be regarded as penalties.

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.

§19-4-18. Purchasing property of other associations, persons, firms or corporations.

Whenever an association, organized under this article with preferred capital stock, shall purchase the stock of any property, or any interest in any property, or any person, firm or corporation or association, it may discharge the obligations so incurred, wholly or in part, by exchanging for the acquired interest shares of its preferred capital stock to an amount which at par value would equal the fair market value of the stock or interest so purchased, as determined by the board of directors. In that case the transfer to the association of the stock or interest purchased shall be equivalent to payment in cash for the shares of stock issued.

§19-4-19. Annual reports.

Each association formed under this article shall prepare an annual report on forms provided by and filed with the Secretary of State pursuant to the requirements of section two-a, article one, chapter fifty-nine of this code.

§19-4-20. Conflicting laws not to apply; exemptions.

Any provisions of law which are in conflict with this article shall be construed as not applying to the association herein provided for.

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.

§19-4-21. Use of term "cooperative."

(a) A cooperative association formed pursuant to this article shall include the words "cooperative", "co-operative" or "co-op" in the name, and the words or abbreviations designating a corporation.

 (b) A farmers' marketing association for the sale of farm products is prohibited from using the terms identified in subsection (a) of this section as part of its corporate or other business name or title, unless it has complied with this article.

§19-4-22. Interest in other corporations or associations; warehouse receipts as collateral.

(a) An association may organize, form, operate, own, control, have an interest in, own stock of, or be a member of any other corporation or corporations, with or without capital stock, and engaged in qualified activities regarding the agricultural products, goods and services handled by the association, or the by-products thereof.

(b) If such corporations are warehousing corporations, they may issue legal warehouse receipts to the association against the commodities, goods and services 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.

§19-4-23. Contracts and agreements with other associations.

Any association may, upon resolution adopted by its board of directors, enter into all necessary and proper contracts and agreements and make all necessary and proper stipulations, agreements and contracts and arrangements with any other cooperative corporation, association or associations, formed in this or in any other state, for the cooperative and more economical carrying on of its business or any part or parts thereof. Any two or more associations may, by agreement between them, unite in employing and using, or may separately employ and use, the same personnel, methods, means and agencies for carrying on and conducting their respective business.

§19-4-24. Rights and remedies apply to similar associations of other states.

Any corporation or association heretofore or hereafter organized under generally similar laws of another state shall be allowed to carry on any proper activities, operations and functions in this state upon compliance with the general regulations applicable to foreign corporations desiring to do business in this state, and all contracts made by or with such associations, which could be made by any association incorporated hereunder, shall be legal and valid and enforceable in this state with all of the remedies set forth in this article.

§19-4-25. Associations heretofore organized may adopt provisions of article.

Any corporation or association organized in this state under previously existing statutes may, by a majority vote of its stockholders or members, be brought under the provisions of this article by limiting its membership and adopting the other restrictions as provided herein. It shall make out in duplicate a statement signed and sworn to by its directors to the effect that the corporation or association has, by a majority vote of the stockholders or members, decided to accept the benefits and be bound by the provisions of this article and has authorized all changes accordingly. Articles of incorporation shall be filed as required in section six, except that they shall be signed by the members of the then board of directors. The filing fee shall be the same as for filing an amendment to articles of incorporation.

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.

§19-4-26.

Repealed.

Acts, 2013 Reg. Sess., Ch. 1.

§19-4-27. Liability as to delivery of products in violation of marketing agreements.

Any person who solicits, persuades or permits any member of any association organized hereunder to breach his marketing contract with the association or one association with another, by accepting or receiving such member's products for sale or for auction or for display for sale, contrary to the terms of any marketing agreement of which such person has knowledge or notice, shall be liable to the association aggrieved in a civil suit for damages therefor. Courts of equity shall have jurisdiction to enjoin further breaches of such contract.

§19-4-28. Associations to be deemed not in restraint of trade.

No association organized under this article and complying with the terms thereof shall be deemed to be a conspiracy or a combination in restraint of trade or an illegal monopoly or an attempt to lessen competition or to fix prices arbitrarily; nor shall the marketing contract and agreements between the association and its members or any agreements authorized in this article be considered illegal as such or in unlawful restraint of trade or as part of a conspiracy or combination to accomplish an improper or illegal purpose.

§19-4-29. Application of business corporation laws; nonprofit corporation laws.

The provisions of the business corporation laws in chapter thirty-one-d or the nonprofit corporation laws in chapter thirty-one-e of this code and all powers and rights thereunder shall apply to the associations organized under this article and may be used by them, except when the provisions are in conflict with or inconsistent with the express provisions of this article.

§19-4-30.

Repealed.

Acts, 2013 Reg. Sess., Ch. 1.

ARTICLE 5. GRADING AND PACKING OF FRUITS AND VEGETABLES.

§19-5-1. Standard grades for closed packages of fruits and vegetables.

The commissioner of agriculture shall establish and promulgate from time to time official standard grades for all closed packages of fruits and vegetables, by which the quantity, quality and size may be determined, and prescribe and promulgate rules and regulations governing the markings which shall be required upon packages of fruits and vegetables for the purpose of showing the name and address of the producer or packer, the variety, quantity, quality and size of the product.

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.

§19-5-2. Markings on packages.

Whenever such standards for the grade or other classification of fruits and vegetables under this article becomes effective, every closed package containing fruits or vegetables grown and packed in this state and sold, offered or exposed for sale, or packed for sale or transported for sale, by any person, firm, organization or corporation, shall bear conspicuously upon the outside thereof, in plain words and figures, such markings as are prescribed by the commissioner of agriculture of West Virginia under the provisions of this article.

§19-5-3. Enforcement of article.

The commissioner of agriculture of West Virginia shall be charged with the enforcement of the provisions of this article, and for that purpose shall have power:

(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.

§19-5-4. When fruits or vegetables presumed offered or exposed for sale.

When fruits or vegetables in closed packages are delivered to a railroad station or a common carrier for shipment, or delivered to a storage house for storage, such delivery shall be prima facie evidence that the fruits or vegetables are offered or exposed for sale, except in movement of unpacked and unlabelled fruits or vegetables for the purpose of repacking.

§19-5-5. Offenses; penalty.

Any person, firm, organization or corporation, who shall violate any of the provisions of this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than $25 nor more than $500 for each offense.

§19-5-6. Exemption from prosecution.

No person, firm, organization or corporation shall be prosecuted under the provisions of this article:

(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.

§19-5-7. Certificates of inspectors as prima facie evidence.

All certificates issued by inspectors in compliance with the regulations of the secretary of agriculture of the United States governing the inspection of fruits and vegetables pursuant to the act making appropriations for the United States Department of Agriculture, or pursuant to this article, shall be admissible as prima facie evidence in all courts of this state.

§19-5-8. Provisions of article separable.

If any section, subdivision, sentence, clause or phrase of this article is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this article.

ARTICLE 5A. CONTROLLED ATMOSPHERE STORAGE OF FRESH FRUITS AND VEGETABLES.

§19-5A-1. Purpose and construction.

The purpose of this article is to regulate controlled atmosphere storage warehouses, for controlling the condition and maturity of fresh fruits and vegetables, so that upon removal therefrom they may be designated as CA stored.

§19-5A-2. Definitions.

(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 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.

§19-5A-3. Commissioner to enforce article; rules and regulations; cooperation with other authorities.

(a) The commissioner shall administer and enforce the provisions of this article and for this purpose he is hereby authorized and empowered to promulgate rules and regulations 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 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.

§19-5A-4. License required for operation of warehouse; application; fees; term of license; inspections; refusal, suspension or revocation of license.

No person shall engage in the business of operating a controlled atmosphere storage warehouse unless he shall have first obtained a license from the commissioner so to do, which license remains unsuspended and unrevoked. Application for such license shall be made on forms prescribed by the commissioner and shall be accompanied by a fee required in this section. When a person operates two or more CA storage warehouses not on the same premises in this state, a separate license shall be required for each such storage warehouse. Each license shall expire on June 30 next following its issuance, and the annual fee for each such license shall be $25. Before issuing any license required by the provisions of this section, the commissioner shall inspect the applicant's CA storage warehouse and if the commissioner is satisfied that the warehouse is properly equipped and is in conformity with the provisions of this article and any rules and regulations promulgated by the commissioner, he shall issue the license. Each applicant for a license shall specify the name of the person applying for the license, the principal business address, name of the person domiciled in this state authorized to receive and accept service and legal notices of all kinds, the storage capacity of the controlled atmosphere storage warehouse by cubic capacity or volume, kind of fruits or vegetables for which the applicant intends to provide controlled atmosphere storage, and any other information prescribed by the commissioner as necessary in carrying out the provisions 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.

§19-5A-5. Access to warehouses, records, etc.

The commissioner shall have access to and is empowered to enter and make inspections during business hours of all controlled atmosphere storage warehouses licensed by this state. The licensee shall make available on demand to the commissioner all records pertaining to the conduct of said controlled atmosphere storage warehouses.

§19-5A-6. CA warehouse numbers; issuance and use.

The commissioner when issuing a license shall assign a warehouse number which shall be preceded by the letters WV- CA.

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.

§19-5A-7. Oxygen content, time and temperature requirements for classification of fruits or vegetables as controlled atmosphere stored.

The commissioner shall adopt regulations:

(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.

§19-5A-8. Air component determinations; records; forms; contents.

The licensee shall make air component determinations as to the percentage of carbon dioxide, oxygen and temperature at least once each day. A record of such determinations shall be kept on a form prescribed by the commissioner for a period of at least one year and shall include the following:

(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.

§19-5A-9. Minimum condition and maturity standards.

The commissioner shall establish minimum condition and maturity standards for fruits and vegetables which are to be designated as "CA" stored.

§19-5A-10. Subpoena power; production of books, records, etc.; enjoining violation; admissibility of inspection certificates.

The commissioner shall have subpoena power to compel the attendance of witnesses and/or the production of books, records or documents anywhere in the state in a hearing affecting the authority or privilege granted by a license issued under the provisions of this article and may bring an action to enjoin the violation or threatened violation of any provision of this article or of any regulation adopted pursuant to this article in a court of record in the county in which violation occurs or is about to occur, notwithstanding the existence of any other remedy of law. Official inspection certificates issued by the commissioner shall be received in all courts of this state as prima facie evidence as statements of facts contained therein.

§19-5A-11. Unlawful acts; penalties.

It shall be unlawful for any person to sell, offer for sale, hold or transport for sale any fruits or vegetables represented as having been exposed to controlled atmosphere storage or to use any terms or form of words or symbols of similar import unless such fruits and vegetables have been stored in a controlled atmosphere storage which meets the requirements of this article and the regulations adopted hereunder. Any person violating the provisions of this article or the regulations adopted hereunder shall be guilty of a misdemeanor, and, upon conviction thereof, shall for the first offense be fined not less than $50 nor more than $250 and upon conviction of each subsequent offense shall be fined not less than $250 nor more than $500.

§19-5A-12. Article cumulative and nonexclusive; severability.

The provisions of this article shall be cumulative and nonexclusive and shall not affect any other remedy. If any section or provision of this article shall be adjudged invalid or unconstitutional, such adjudication shall not affect the validity of the article as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional.

ARTICLE 6. DEMONSTRATION PACKINGHOUSES AND SIMILAR PLANTS.

§19-6-1. Demonstration fruit packing house.

The demonstration community packing house, heretofore created and established at Inwood, in Berkeley county, West Virginia, shall continue to be operated under the direction and supervision of the cooperative extension service of the college of agriculture of the West Virginia University, for the purpose of demonstrating the most approved methods of picking, sorting, packing, warehousing and storing apples, peaches and other similar fruit, and for the purpose of teaching any citizen of this state approved methods of picking, sorting and packing such fruit in barrels, boxes and other containers, and of warehousing and storing the same.

§19-6-2. Demonstration poultry and egg packing plant.

The demonstration community poultry and egg packing plant, heretofore created and established at Parkersburg, in Wood county, West Virginia, shall continue to be operated under the direction and supervision of the cooperative extension service of the college of agriculture of the West Virginia University, for the purpose of demonstrating the most approved methods of marketing, handling and storing poultry and poultry products, and for the purpose of teaching any citizen of West Virginia approved methods of marketing, grading, handling and packing eggs and of feeding, killing and dressing poultry.

§19-6-3. Demonstration garden products plant.

The demonstration garden products plant, the establishment of which was heretofore authorized by law, shall be continued for the purpose of teaching any citizen of West Virginia, by the demonstration method, how vegetables, berries, fruits or other garden products may be sorted, graded, processed or marketed under methods conforming to consumer demands and economically profitable to the producers. It shall be the duty of the cooperative extension service of the college of agriculture of the West Virginia University to select a location for the aforesaid demonstration plant, and after the necessary buildings and equipment shall have been provided, the demonstration shall be administered under the direction and supervision of said cooperative extension service of the college of agriculture.

§19-6-4. Buildings and equipment.

It shall be the duty of the state commissioner of public institutions to provide necessary buildings and equipment for suitably conducting each of the demonstration plants mentioned in this article.

ARTICLE 7. STATE AID FOR FAIRS.

§19-7-1. Amount of state aid for fairs and festivals.

For the purpose of encouraging agriculture, any agricultural or industrial association, organization or individual conforming to the requirements of this article and the rules promulgated pursuant to this article may receive from the State of West Virginia an amount not to exceed 20,000.

§19-7-2. State aid where more than one fair, festival or event in county.

When more than one association, organization or individual holding a fair, festival or event in a county is eligible to receive the benefits pursuant to this article, the county associations, organizations or individuals are eligible to receive from the state a sum not exceeding in the aggregate $50,000 to be apportioned among the associations, organizations or individuals.

§19-7-3.

Repealed.

Acts, 2001 Reg. Sess., Ch. 129.

§19-7-4. When fairs, festivals and events are entitled to state aid.

(a) Associations, organizations or individuals purchasing or leasing the grounds and buildings of an agricultural or industrial association, organization or individual entitled to the benefits of this article are also entitled to the benefits set forth in this article.

(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.

§19-7-5.

Repealed.

Acts, 2001 Reg. Sess., Ch. 129.

§19-7-6.

Repealed.

Acts, 2001 Reg. Sess., Ch. 129.

§19-7-7.

Repealed.

Acts, 2001 Reg. Sess., Ch. 129.

§19-7-8. Gambling devices and immoral shows prohibited; forfeiture of right to state aid; horse racing exempted.

No association, organization or individual which is the recipient of state aid under this article may operate or permit to be operated in conjunction with the fair, festival or event any gambling device or any indecent or immoral show. Any association, organization or individual violating the provisions of this section shall forfeit all eligibility for state aid for a period of three years. This section, however, may not be construed to prevent horse racing or horse shows at any fair receiving state aid.

§19-7-9. State fair of West Virginia; ex officio members of board of directors; appropriations; authority to propose rules.

(a) The corporation formerly known as "Greenbrier Valley fair" is designated "the state fair of West Virginia"; with the exclusive right to the use of that designation.

(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.

§19-7-10. Appropriations specifically made available for designated exhibitions.

For the purpose of encouraging agriculture, forestry and industries related thereto and the development and progress of the state, and when appropriations are specifically set out in the budget bill by the Legislature for any state, county or local exhibition or community development, when the exhibition or community development is held in the interest of the public and substantially supported financially by an association or corporation not operated for profit, the commissioner of agriculture may expend any moneys for those purposes and nothing contained in this article may be construed or interpreted to prevent the commissioner from paying awards to exhibitors and expenses in connection with the operation of the exhibition.

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.

§19-7-11. Determination of eligibility; legislative rules.

(a) The commissioner shall administer the provisions of this article and shall determine the eligibility of an association, organization or individual to receive state aid described in this article in accordance with the provisions of subsection (b) of this section.

(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.

ARTICLE 8. COOPERATIVE EXTENSION WORKERS.

§19-8-1. County extension service committee; composition; organization; duties and responsibilities; employment and compensation of extension workers.

The county extension service committee shall be composed of (a) the president of the county farm bureau, (b) the president of the county extension homemakers council, (c) the president of the county Four-H leaders' association, (d) a county commissioner designated by the president of the county commission, (e) a member of the county board of education designated by the president of the county board of education, (f) a county representative of the grange, and (g) two members who are residents of the county to be appointed by the board of advisors of West Virginia University for staggered terms of three years each beginning on July 1, and in making these appointments the board of advisors shall appoint one member designated by any other active farm organization in the county not already represented by virtue of this section. If any of the above-named organizations do not exist in the county, the board of advisors of West Virginia University may appoint an additional member for each such vacancy. The committee shall annually elect from its membership a chairperson and a secretary.

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 July 1, 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 July 1, 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 be dependent 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.

§19-8-2. Expenditure of appropriations; compliance with "Smith-Lever Act."

All moneys levied or appropriated by the county court or the county board of education under this article shall be expended upon orders of the county court or Board of Education as other such county funds are expended, and a duplicate of all salary vouchers and expense accounts shall be filed with the cooperative extension service of West Virginia University in such form as will comply with the provisions of the act of Congress approved May 8, 1914, known as the "Smith-Lever Act," or any act of Congress amendatory thereof or supplementary thereto, but no part of any money so appropriated shall be used to compensate any representative of West Virginia University or any other person, except the persons employed under this article.

§19-8-3. Duties of county extension workers; extension service to cooperate with county court and Board of Education.

Under the supervision of the cooperative extension service of West Virginia University, it shall be the duty of each county extension worker to promote, through various educational programs, the improvement and advancement of agriculture, forestry and home economics, and the general economic, cultural and social life of the people in the respective areas to which they are assigned. It shall also be the duty of the cooperative extension service of West Virginia University to cooperate with each county court and each county board of education appropriating money under this article.

§19-8-4.

Repealed.

Acts, 1953 Reg. Sess., Ch. 8.

ARTICLE 9. DISEASES AMONG DOMESTIC ANIMALS.

GENERAL PROVISIONS.

§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.

§19-9-2. Duties and powers of commissioner.

It shall be the duty of the commissioner, and he shall have authority:

(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.

§19-9-3. Consulting veterinarians to assist commissioner.

The commissioner shall have authority to appoint, subject to dismissal by him at any time, such consulting veterinarians as may be necessary from time to time to assist him in discharging the duties imposed upon him by this article. Each consulting veterinarian shall be registered as required by article ten, chapter thirty of this code, and shall receive a per diem, and actual expenses, to be determined by the commissioner, for the time actually engaged in carrying out the directions of the commissioner, which per diem and expenses shall be paid out of the current appropriation made for the enforcement of this article.

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.

§19-9-4. Inspectors of animals.

The commissioner may appoint, at different points in the state, inspectors to examine and inspect any of the animals enumerated in this article which are to be moved to states where the sanitary laws require such examination and inspection, with authority to issue certificates of inspection in the name of the state Department of Agriculture in such form as the commissioner may prescribe. Such inspectors shall be registered veterinarians, and the appointment of any such inspector may, at any time, be revoked by the commissioner.

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.

§19-9-5. Persons authorized to enter premises; powers thereof; refusal to enforce orders of commissioner.

The commissioner, the consulting veterinarians, and their duly appointed and authorized assistants or employees, in the performance of their duties under this article and the rules and regulations adopted by the commissioner, shall have the power to enter any premises, public or private, where they have reason to believe that diseased animals or poultry may be or may have been confined or kept in or on such premises, or for the purpose of making such examination or applying such tests as may be necessary to determine whether any contagious or infectious disease exists there. They shall have the same powers and protection as other peace officers of this state, and shall have power and authority to require all sheriffs and their deputies, constables, mayors of cities and towns, and state and municipal police officers, to assist them in carrying out the provisions of this article and the rules and regulations adopted thereunder. Any officer who fails or refuses to enforce the lawful orders and quarantine of the commissioner or any one acting under him in the proper execution of the powers conferred by this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five nor more than $200.

§19-9-6. Report of communicable diseases by veterinarians and owners; failure to report.

Every veterinarian engaged in the practice of his profession in this state, immediately upon receiving information thereof, shall report to the commissioner each case of any communicable disease, or of any animal reacting to a tuberculosis or mallein test; and every person who has upon his premises or in his possession any domestic animal which is, or which he has good reason to suspect to be, infected with any communicable disease, shall immediately report the same to the commissioner. The reports shall be in writing and shall include a description of each animal affected, with the name and address of the owner or person in charge of the animal, the locality, and the number of susceptible domestic animals that have been exposed to the disease.

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 $100.

§19-9-7. Commissioner may accept federal laws and regulations.

The commissioner shall have authority to accept on behalf of the state the laws, rules and regulations of the United States bureau of animal industry for the prevention, control and eradication of communicable diseases among animals and poultry.

§19-9-7a. National Animal Identification System; rulemaking; exemption.

West Virginia shall be a participating state in the United States Department of Agriculture's National Animal Identification System. The Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the collection of farm premises and animal identification data.

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.

§19-9-8. Powers of federal inspectors.

The inspectors of the bureau of animal industry of the United States shall have the right to inspect, quarantine and condemn animals infected with any communicable disease, or suspected to be so infected, or that have been exposed to any such disease, and for these purposes are hereby authorized and empowered to enter upon any ground or premises. Such inspectors shall have power and authority to require sheriffs, constables or peace officers to assist them in the discharge of their duties in carrying out the provisions of the acts of Congress, approved May twenty-ninth, eighteen hundred and eighty-four, establishing the bureau of animal industry, and all acts amendatory thereof, and shall have the same powers and protection as peace officers while engaged in the discharge of their duties.

§19-9-9. County court may cooperate in control and eradication of communicable diseases.

The county court of any county is hereby authorized to cooperate with the commissioner of agriculture and the United States Department of Agriculture in the control and eradication of bovine tuberculosis, or any other communicable disease of livestock, and in creating modified accredited free areas, and all expenses incurred by such county through this cooperative agreement shall be paid out of the county treasury as other claims against the county.

TESTS FOR DISEASES AND SALE OF DIAGNOSTIC MATERIAL

§19-9-10. Commissioner may prescribe tests for diseases.

The commissioner may prescribe methods of making tests with tuberculin, mallein or other recognized tests for the diagnosis of animal diseases.

§19-9-11. Reports of sales of and tests with diagnostic materials.

Every sale in this state of a biological product intended for diagnostic or therapeutic purposes with animals, and each injection or test made therewith, shall be reported in writing to the commissioner within one week after such sale or test. Each such report shall be signed by the person who made the sale or test. In the case of a sale, the report shall state the name of the purchaser of the biological product, with the amount sold, and the date of sale. In the case of a test, the report shall state the name and address of the owner of the animal tested or treated, the locality where such test or treatment was made, a description of the animal or animals tested or treated, and a complete statement of the actual result of such test or treatment. Any person whose duty it is to make such report, who shall fail or refuse to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $100.

§19-9-12. Unlawful sale of diagnostic materials.

It shall be unlawful for any person to manufacture for sale, or sell or offer for sale, any biological product intended for diagnostic or therapeutic purposes with animals unless such product is officially approved by the bureau of animal industry of the United States.

§19-9-12a. Sale, distribution or administration of unattenuated hog cholera virus.

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

§19-9-13. Quarantine of premises or animals; general and special quarantine defined.

Whenever any communicable disease shall exist anywhere in the state a quarantine of any locality or premises, or of any infected or exposed animals, may be established.

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.

§19-9-14. Establishment of special quarantine.

The commissioner or his authorized agent shall have the power to establish and maintain a special quarantine, whenever any domestic animal shall be affected with or exposed to any communicable disease, or whenever he deems it necessary to have any animal examined or tested. When a special quarantine is established, the commissioner, or his agent, shall post on the building, structure, pen, coop, car, vessel, vehicle, field, or enclosure wherein the animal or animals quarantined are confined or contained, a notice declaring the quarantine and containing a description of the animal or animals and of the premises where quarantined. Such quarantine may continue for such time as the commissioner, or his agent, may deem advisable.

§19-9-15. Establishment of general quarantine.

A general quarantine may be established and maintained whenever any communicable disease of domestic animals shall exist in any locality in the state larger in extent than that which may be included in a special quarantine. A general quarantine shall be established and maintained by order of the commissioner only; but in establishing and maintaining such quarantine the commissioner may act through and by an officer or agent employed by him to whom such power is delegated, and the establishment and maintenance of such quarantine by any officer, agent or employee of the commissioner shall be prima facie the establishment and maintenance of quarantine by the commissioner. Such quarantine shall include such premises, locality or territorial district, and such animals, and shall continue for such time, as may be deemed necessary by the commissioner. Whenever any premises or any locality or territorial district shall be placed under a general quarantine, it shall be the duty of the officer, agent or employee by whom the order of quarantine is executed, to post at least ten notices in the most public places within the premises, locality or territorial district quarantined, declaring the quarantine and the duration thereof, the extent and limits of the premises, locality, or territorial district so quarantined, and the animals subject thereto. A copy of such notice shall be published as a Class I 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 quarantined area. If the quarantine shall be for the purpose of preventing the spread of rabies or hydrophobia, and in the case of other communicable diseases, if the commissioner deems such action necessary, the notice shall require all dogs within the quarantined area to be confined by their owners.

§19-9-16. Unlawful to remove, deface or destroy quarantine notice.

It shall be unlawful for any person, during the continuance of any quarantine, to tear down, deface or destroy any notice of quarantine posted by any officer, agent, or employee of the commissioner, or to remove or destroy any portion of a building or tree or fence whereon the same shall have been posted.

§19-9-17. Care of quarantined animals; expense.

The owner of animals placed in quarantine by the commissioner or his agents shall provide suitable quarters for them and feed and water them. If he fails or refuses to do so, the commissioner or his agents shall provide such quarters and feed and water such animals at the expense of the owner. If such expense shall not be paid within ten days after the lifting of the quarantine, the commissioner may sell or cause to be sold any such animal, at public sale, after ten days' notice thereof, and shall apply the proceeds of such sale, first to the payment of the costs and expenses aforesaid, and the residue to the owner. No animal shall be removed from a quarantined area prior to such sale, except upon payment of such expense.

§19-9-18. Removal of animals, etc., from quarantined area; running at large of dogs in such area.

After the establishment of any quarantine authorized by this article, and the posting of the notices required by law, it shall be unlawful for any person, during the continuance of such quarantine, without a special permit in writing from the commissioner, to remove any animal from or to any premises within the limits of the quarantine, or to remove from any quarantined area or premises any hay, straw, grain, fodder, or other food, or to remove any coop, car, wagon, vehicle, vessel or premises so quarantined, or to sell, exchange, give away, lease, lend or remove, or allow to be removed, any quarantined domestic animal or animals. It shall be unlawful, during the continuance of such quarantine, after notice as aforesaid, for the owner of any dog to permit such dog to run at large in any such quarantined locality, or for any person to remove, or permit to be removed, any dog from such quarantined area. Any dog found running at large in such quarantined area, or known to have been removed from or to have escaped from such area, as aforesaid, may be secured and confined, or may be shot or otherwise destroyed by any person, without liability therefor.

§19-9-19. Domestic animal within quarantined area running at large.

When any quarantine shall be established under this article, it shall be unlawful for the owner of any domestic animal within the limits of the quarantined area to allow such domestic animal to run at large during the continuance of the quarantine. Any animal so found running at large shall be taken up by any constable or deputy sheriff of the county knowing the facts, or by an agent or employee of the commissioner, and kept at the expense of the owner until the lifting of the quarantine. For such service he shall be entitled to $1 for each animal. Each animal shall be kept until such fee and all cost of keeping such animal shall have been paid. If not paid within two weeks after the lifting of the quarantine, the animal may be sold as provided in section seventeen of this article; and after the deduction of all fees, costs and expenses, the residue shall be paid to the owner, if known, and if not known, shall be paid into the State Treasury. This section shall not apply to dogs, or affect the special provisions of this article with reference to dogs.

IMPORTATION OF ANIMALS INTO STATE

§19-9-20. Bringing animals into state; health certificate.

It shall be unlawful for any person or his agents or employees knowingly to drive, cause to be driven, bring or cause to be brought into this state any domestic animal infected with any communicable disease. Every domestic animal being brought into the state for any purpose, by any means of transportation, shall be subject to the restrictions imposed by section twenty-one of this article, unless such animal is accompanied by a certificate of good health issued by the state veterinarian or other accredited authority of the state from which such animal originates, or the certificate of a veterinary inspector of the bureau of animal industry of the United States Department of Agriculture, setting forth that such animal is free from all communicable diseases and does not originate from a district of quarantine or infection, and showing inspection to have been made within a period of thirty days prior to the arrival of such animal: Provided, however, That in the case of bovine animals the duration of such period of test shall be sixty days or such other period as shall conform to the regulations of the United States Department of Agriculture. Such certificate shall be made in triplicate, the original to be retained by the owner or person in charge of such animal, and by him attached to the bill of lading accompanying shipment of the animal, the duplicate to be forwarded to the commissioner, and the triplicate to be retained by the veterinarian making the inspection.

§19-9-21. Animals entering state without health certificate.

It shall be the duty of the owner or owners of any domestic animal, which is to enter this state without a certificate of health, to notify the commissioner in writing stating when, where and how the animal is to be brought into this state. Such notice must reach the commissioner before the animal arrives at the point of destination. Any animal entering the state without a certificate of health may be placed in quarantine by the commissioner under such rules and regulations as he may approve, and held therein at the expense of the owner, and if such animal is found infected with any communicable disease, it shall, at the option of the owner, be killed, without compensation to the owner, or continued in quarantine at the expense of the owner. The expenses incurred in providing such animal or animals with proper quarters, food and water may be recovered by the commissioner from the owner in a suit in the name of the state, as other debts are by law collectible. It shall be unlawful to remove any such domestic animal from quarantine unless it shall have passed a satisfactory examination, and the tuberculin test in the case of bovine animals for dairy or breeding purposes, and unless the charge for the quarters, feed, water and attendance have been paid to the person entitled thereto.

§19-9-22. Unlawful possession of animal brought into state.

When notified by the commissioner, or any of his agents or employees, not to do so, it shall be unlawful for any person to receive, keep or have in his possession any domestic animal imported or brought into this state in violation of any of the provisions of this article, or to allow any such domestic animal to come in contact with any other domestic animal.

§19-9-23. Regulation of imported dairy or breeding animals.

No domestic animal that has been, or is to be, used for dairy or breeding purposes shall be imported or brought into this state except under the following regulations: There shall be provided for each bovine animal a health certificate and a tuberculin test chart, each in triplicate, from a veterinary inspector of the United States bureau of animal industry, or from the state veterinarian, or duly authorized and officially certified veterinarian of the state whence the animal has been transported or moved. The originals of the certificate and of the chart shall be attached to the waybill, when the animal shall be transported by common carrier, and the duplicates sent so as to reach the office of the commissioner before the animal reaches the point of destination, and the triplicates shall be retained by the veterinarian issuing the certificate. If the animal be brought into the state other than by common carrier, the office of the commissioner shall be notified before such animal shall be brought in. The original certificate and chart shall be in the possession of the person who shall bring such animal into the state, and shall be surrendered to any officer or agent of the commissioner on demand. The duplicates thereof shall be sent to the commissioner as aforesaid. Such notice to the commissioner shall state when, where and how the animal is to be brought into the state. Such certificates and chart shall show that the animal is free from Texas fever ticks, and all communicable diseases. The chart must show that an approved preparation of tuberculin has been used, and that an examination and tuberculin test have been carried out in a manner approved by the commissioner: Provided, however, That from herds which are recorded and certified as free from tuberculosis, either by the state veterinarian or other accredited authority of such state as the commissioner may see fit to recognize for this purpose, or may be so recorded and certified by the United States bureau of animal industry, animals may be permitted to enter the state upon such herd certificate in lieu of the tuberculin test chart hereinbefore required.

§19-9-24. Importation of dairy or breeding animal unaccompanied by health certificate and test chart.

Any bovine animal, not accompanied by the health certificate and tuberculin test chart required by section twenty-three of this article, may be brought into this state only under the direct supervision of an officer, or agent of the commissioner, subject to the provisions of section twenty-one of this article and to the following regulations: Each animal shall be held in close quarantine, at the cost and expense of the owner, at such place, under such conditions and during such time as may be prescribed by the commissioner, and during the period of such quarantine shall be submitted to a physical examination and tuberculin test by an agent of the commissioner. The examination and test shall be at the expense of the owner. If the costs and expenses aforesaid are not paid by the owner, they may be recovered by the commissioner as provided in section twenty-one of this article.

§19-9-25. Commissioner may decline to accept health certificate or test chart.

If the commissioner shall suspect the genuineness of any health certificate or tuberculin test chart relating to imported animals or shall question the competency of the person of the state of export who shall have issued such chart or certificate, he may decline to accept the same, and refuse to permit the importation of the animals concerned, unless a certificate and chart be furnished from the proper inspector of the bureau of animal industry of the United States, or upon such other certificate or tests as the commissioner shall determine.

§19-9-26. Animals brought into state for slaughter or for exhibition purposes.

Sections twenty to twenty-five, both inclusive, of this article, shall not apply to animals brought into the state for immediate slaughter, or for temporary exhibition purposes only, if a permit, conditioned as the commissioner may prescribe, for each animal intended for exhibition, shall first have been obtained from him

§19-9-27. Unlawful sale of animals for breeding or dairy purposes.

It shall be unlawful for any person to sell for dairy or breeding purposes any domestic animals brought into the state for immediate slaughter, or to use or permit to be used any such animal for dairy or breeding purposes, unless and until such animals are first subjected to the test required by this article.

SLAUGHTERING OF DISEASED ANIMALS

§19-9-28. Indemnity for euthanizing infected or exposed animals; agreement.

Whenever, to prevent the spread of any communicable disease which cannot be cured or controlled by isolation and adequate or proper veterinary treatment, the commissioner or any of the commissioner's agents find it necessary to euthanize any animal infected with or directly exposed to any infectious, contagious or communicable disease, which cannot be cured or controlled by isolation and adequate or proper veterinary treatment, and if the owner of the animal elects to receive indemnity for it, the commissioner shall require the owner, before the appraisal and death of the animal, to execute an agreement that the owner will thoroughly clean and disinfect all premises that may have been infected by the animal in the manner the commissioner prescribes. If the animal has tuberculosis, the agreement will require the owner to have the entire herd of bovine animals tested with tuberculin by the commissioner or the commissioner's agent, at times the commissioner designates, and the agreement will require that the owner not admit to the herd any bovine animal that has not had a negative reaction to the test. The agreement shall be in duplicate, one copy to be retained by the signer, on a form prescribed by the commissioner, and shall be signed by the owner or the owner's agent. The agreement shall be effective for a period of two years from the date it is executed. All animals for which the owner claims indemnity shall be appraised before being euthanized, and the owner shall be indemnified as hereinafter provided: Provided, That any animal infected with rabies may be euthanized by the owner or any person authorized to do so without an agreement or appraisal, and if the disease is caused by a dog bite, the animal shall be appraised and the owner shall be compensated as provided in article twenty of this chapter.

§19-9-29. When right of indemnity does not exist.

The right of indemnity shall not exist nor shall payment be made in any of the following cases:

(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.

§19-9-30. Appraisal of infected or exposed animals; amount; arbitration; fees of arbitrators.

The commissioner or the commissioner's agent shall act as appraiser and shall appraise each infected or directly exposed animal within five days before euthanizing the animal, basing the amount upon the class and market value of the animal at the time of the appraisal, whether for breeding purposes or for milk or meat production. Animals reacting to any approved test, but not exhibiting any physical evidence of disease, shall be appraised without considering the presence of a diseased condition, but animals exhibiting any physical evidence of disease shall be appraised as infected animals: Provided, That where indemnities are claimed for directly exposed animals euthanized on account of rabies infection, appraisal shall be based on the value of the animal before it became infected. If the amount of appraisal of any animal, as determined by the appraiser, is not satisfactory to the owner of the animal, the owner shall immediately notify the appraiser of this fact, setting forth the reason for complaint. The amount of the appraisal shall then be determined by arbitrators, one to be appointed by the appraiser and one by the owner of the animal. If these arbitrators are not able to agree on the amount of appraisal, a third arbitrator shall be appointed by them, whose decision shall be final. Compensation for the arbitrators appointed by the owner and the appraiser shall be paid by the party appointing the arbitrator, and in case a third arbitrator is chosen, the third arbitrator shall be paid by the party against whom the decision is made.

§19-9-31. Certificate of appraisal.

When the animal is to be euthanized, the commissioner or the commissioner's agent shall deliver to the owner a certificate of appraisal which may cover any number of animals belonging to the same owner, showing the age and description of each animal found to be infected or directly exposed; the name and place of test, if any; the mark or brand signifying an animal with tuberculosis; any other mark or brand which the animal may bear; the date when and the place where the animal is to be euthanized by the veterinarian; the designation of the officer who is to supervise the euthanasia; the appraised value of each animal; the name and address of the owner of the animal; and the fact that the owner has executed the agreement as provided in section twenty-eight of this article.

§19-9-32. Euthanasia of diseased animals; supervision; certificate of euthanasia.

After the agreement described in section twenty-eight of this article has been executed, the appraisal has been made and the certificate of appraisal issued, the commissioner or the commissioner's agent shall have the animal euthanized and the carcass disposed of in accordance with the meat inspection regulations of the United States Department of Agriculture, or in such manner as the commissioner prescribes. The officer supervising the euthanasia shall immediately include in the certificate of appraisal provided for in section thirty-one of this article a certificate of euthanasia stating that the officer has witnessed the euthanasia of each of the animals; identifying the place and date of the euthanasia; certifying that the number, age, description and brand or mark correspond to those in the certificate of appraisal; stating the result of the post-mortem examination; the disposition made of the carcass; and the amount paid to the veterinarian, which amount shall be paid to the owner and credited on the amount of appraisal: Provided, That in case animals are euthanized as having tuberculosis, the appraisal certificate shall be credited in the manner provided in section thirty-six of this article.

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.

§19-9-33. Payment of indemnity.

All claims for indemnity for animals euthanized as having tuberculosis shall be paid in the manner prescribed in section thirty-seven of this article. In all other cases when animals are euthanized as provided in this article the veterinarian shall forthwith forward to the commissioner the certificates of appraisal and euthanasia, together with the owner's claim for indemnity, and the owner's affidavit that the owner has in all respects complied with the agreement provided for in section twenty-eight of this article, and with any other requirements prescribed by the commissioner. If the certificates, claim and affidavit are correct and the claim is not barred by section twenty-nine of this article, the commissioner shall approve and file them. The commissioner shall, at the end of each fiscal year, issue a requisition to the State Auditor for two thirds of the value of the approved certificates: Provided, That in case of an outbreak of foot-and-mouth disease, or any other dangerously contagious or infectious disease among bovine animals, ovine animals, or swine, on account of which such animals are being euthanized by cooperative order of federal and state authority, and for which euthanized animals the federal government pays one half of the indemnity, this state shall pay one half, and only one half, of such indemnity. The State Auditor shall issue a warrant on the state Treasurer, in favor of the claimant, for the amount ordered by the commissioner, which shall be paid out of the current appropriation for administering this article: Provided, however, That in case the amount of the certificates of appraisal, and of those described in section thirty-seven of this article, in any one year, exceeds the current appropriation therefor, the certificates shall be paid pro rata at the end of each fiscal year.

§19-9-34. Disposal of carcass of diseased animal.

(a) Whenever it is necessary to destroy or dispose of the carcass of any animal to prevent the spread of disease, the destruction or disposal shall be made by one of the following methods designed to be protective of human health and the environment:

(1) Complete cremation of the entire carcass with all its parts and products;

(2) Boiling the carcass and all its parts and products in water or heating the same with steam at the temperature of boiling water, continuously during at least two hours;

(3) Disposing of the carcass and all its parts and products in a solid waste landfill permitted and approved by the Department of Environmental Protection;

(4) Burial of the carcass and all its parts and products:

(A) In a place that will not be subjected to overflow from ponds or streams, and which is not less than one hundred feet from any watercourse, well, spring, public highway, house or stable;

(B) Covered with quicklime to a depth of not less than three inches; and

(C) So that the top of the carcass is not within two feet of the surface of the ground when the grave is filled and smoothed to the level of the surrounding surface;

(5) Rendering by a licensed facility;

(6) Composting; and

(7) Any other method the commissioner prescribes.

(b) When an animal infected with a communicable disease dies or is euthanized, the owner of the animal shall destroy or dispose of the carcass in the manner provided in this section. It is unlawful to sell the carcass, any part of it, or any hide or offal from it. If the owner of the animal does not dispose of the carcass within twenty-four hours as provided by law, the commissioner or the commissioner's agent shall destroy or dispose of the carcass according to law, at the cost of the owner. The expense of destruction or disposal may be collected from the owner as debts of like amount are by law collectible.

(c) For purposes of this section and rules promulgated under this section:

"Composting" means a natural process in which beneficial microbes reduce organic waste (poultry mortality) into a biologically safe by-product which is capable of being recycled in the agriculture industry.

"Composter" is a roofed structure with an impervious floor, and with treatment areas made of wood, designed for composting organic materials; or a rotary drum composter designed, constructed and located to prevent the contamination of ground and surface water.

§19-9-34a. Authority of commissioner to promulgate rules regulating disposal of dead animals.

Notwithstanding any other provision of law to the contrary, the Commissioner of Agriculture is authorized to promulgate rules to regulate the disposal of dead animals.

§19-9-35. Tests for bovine tuberculosis; disposition of infected bovine animals.

The commissioner or the commissioner's agent is authorized to test with tuberculin any bovine animal kept within the state, subject to rules prescribed by the commissioner. The tuberculin test shall be applied to bovine animals at times designated by the commissioner for the control and eradication of bovine tuberculosis, and all cows whose milk is sold for human consumption or manufacture, and all uncastrated beef animals, shall be tested with tuberculin to the greatest extent possible.

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.

§19-9-36. Rules for determining amount of indemnity.

The owners of animals euthanized as having tuberculosis shall be indemnified in an amount determined by the results of post-mortem inspection by the officer supervising the euthanasia, and the certificate of appraisal shall be credited according to the following rules: (a) If an animal is found upon post-mortem inspection not to show lesions of tuberculosis, the carcass and other edible portions shall be passed as food, and the veterinarian shall sell them, including all accompanying parts, for the best price obtainable, which shall be paid to the owner and deducted from the amount of appraisal, and any remaining balance shall be paid to the owner; (b) if an animal is found upon post-mortem inspection to be infected with tuberculosis, and the lesions are such that the carcass and parts of the carcass are passed for food, the veterinarian shall sell them, including all accompanying parts, for the best price obtainable, which shall be paid to the owner and deducted from eighty percent of the amount of the appraisal, and any remaining balance shall be paid the owner; (c) if an animal upon post-mortem inspection is condemned for offal, the veterinarian shall sell the hide and offal for the best price obtainable, which price shall be paid to the owner and deducted from forty percent of the appraisal, and any remaining balance shall be paid to the owner.

§19-9-37. Payment of indemnity for animals slaughtered as tuberculous.

After an animal shall have been slaughtered as tuberculous, the veterinarian shall forthwith forward to the commissioner the certificates of appraisal and slaughter, together with the owner's claim for indemnity, and his affidavit that he has, in all respects, complied with the agreement provided for in section twenty-eight of this article and with the requirements of the commissioner in respect thereto. If the commissioner find the same to be correct, he shall approve them and within thirty days file them with the county court of the county in which such animals are owned at the time they were condemned as tuberculous. If the county court, upon examination of the certificates filed as aforesaid and of the affidavit of the claimant and any evidence that may be presented, shall find the claim is regular and not barred by the provisions of section twenty-nine of this article, and the facts therein set up are true, and that the claimant is entitled to indemnity as herein provided, the county court shall make an order allowing the claimant one half of the value of the certificate of appraisal, which shall be paid upon the order of the county court out of the General Funds of the county. The commissioner shall at the end of the fiscal year issue his requisition to the State Auditor for the payment of the remaining one half of the value of the certificate of appraisal, and the Auditor shall issue his warrant upon the state Treasurer, in favor of the claimant, for such amount, which shall be paid out of the current appropriations made for carrying out the provisions of this article: Provided, That in case the amount of such certificates of appraisal and those similarly provided for in section thirty-three of this article in any one year shall exceed the current appropriation therefor, such certificates shall be paid pro rata at the end of each fiscal year: Provided further, That any amount of indemnity paid by the federal government shall be deducted equally from the amounts paid by the county and state, respectively.

TRANSPORTATION OR SALE OF DISEASED ANIMALS

§19-9-38. Transportation of diseased animals.

It shall be unlawful for any person knowingly to drive, move or transport on, across or along any public highway, or in wagons or railroad cars or other vehicles, any animal infected with any communicable disease, except upon express permission in writing from the commissioner or his agents.

§19-9-39. Selling or giving away diseased animal; permitting it to stray.

Without express permission in writing from the commissioner, or his agent, it shall be unlawful for any person to sell or offer for sale, or give away, or allow to stray, any animal infected with any communicable disease or any animal that has reacted to any tuberculin or mallein test, or with such permission to sell, offer for sale, or give away, any such animal, without notifying the purchaser, or any prospective purchaser, or the person to whom the animal shall be sold or given, that the animal is infected or has reacted as aforesaid, or that it has been in a herd infected with a disease within one year, except when for immediate slaughter in accordance with the meat inspection regulations of the United States Department of Agriculture; or to dispose of to another in any manner any animal that may be quarantined until such time as the quarantine shall have been raised by the proper officer, or to dispose of the meat or milk of any animal that may be infected with such communicable disease for use as food or for other purposes except in such manner as shall be provided by the commissioner: Provided, however, That nothing in this section shall be construed as in conflict with or superseding any of the provisions of the state or national pure food or meat inspection laws.

PENALTIES FOR VIOLATIONS

§19-9-40. Penalties.

Any person who shall violate any of the provisions of this article, or who shall obstruct or hinder the commissioner, or any officer or employee, in the performance of his duties under this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for the first offense, be fined not more than $100, and upon conviction for each subsequent offense fined not more than $500, and in addition to such fine may be confined in the county jail for not more than ninety days.

ARTICLE 9A. FEEDING OF UNTREATED GARBAGE TO SWINE.

§19-9A-1. Definitions.

The following words shall have the meanings ascribed to them in this section, unless the context otherwise requires or a different meaning is specifically prescribed.

(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.

§19-9A-2. Permit required for feeding garbage to swine; renewal; exception.

(a) No person shall feed garbage to swine without first securing a permit to do so from the commissioner. Such permits shall be renewed annually.

(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.

§19-9A-3. Application for permit.

Any person desiring to obtain a permit to feed garbage to swine or to renew the same shall make written application therefor to the commissioner on forms provided by the commissioner. The commissioner shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

§19-9A-4. Refusal or revocation of permit.

Upon determination by the commissioner that any person holding such permit, or who has applied for a permit hereunder, has violated or failed to comply with any of the provisions of this article, or any of the rules or regulations promulgated thereunder, the commissioner may revoke such permit or refuse to issue a permit to such applicant.

§19-9A-5. Cooking or other treatment of garbage required.

All garbage, regardless of previous processing, shall, before being fed to swine, be thoroughly heated to at least 212 degrees F for at least thirty minutes, unless treated in some other manner which shall be approved in writing by the commissioner as being equally effective for the protection of public health and control of livestock diseases.

§19-9A-6. Inspection and investigation; maintenance of records.

(a) Any authorized representative of the commissioner shall have the power to enter at reasonable times upon any private or public property for the purpose of inspecting and investigating conditions relating to the treating of garbage to be fed to swine.

(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.

§19-9A-7. Administration and enforcement of article; rules and regulations.

The commissioner is hereby charged with administration and enforcement of the provisions of this article, and is authorized to make and enforce all rules and regulations which the commissioner may deem necessary to carry out the purposes of the article.

§19-9A-8. Penalties; enjoining violation.

Any person who shall violate any of the provisions of, or who fails to perform any duty imposed by, this article, or who violates any rule or regulation promulgated thereunder shall be guilty of a misdemeanor, and, upon conviction thereof, may be punished by a fine of not less than $25 nor more than $300, or by imprisonment for a term of not more than one year, or by both such fine and imprisonment. In addition thereto, such person may be enjoined from continuing such violation. Each day upon which such violation occurs shall constitute a separate violation of this article.

ARTICLE 10. MALE BREEDING ANIMALS.

§19-10-1.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-2.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-3.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-4.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-5.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-6.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-7.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-8.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-9.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-10.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-11.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-12.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

§19-10-13.

Repealed.

Acts, 2009 Reg. Sess., Ch. 37.

ARTICLE 10A. THE WEST VIRGINIA EGG MARKETING LAW OF 1998.

§19-10A-1. Purpose; and short title.

(a) The intent of this article is to protect and promote the public health and general welfare and to prevent fraud and deception in the production, processing, sale and distribution of eggs. This article provides for the registration of business houses engaged in selling, trading or traffic of eggs; establishes standards for the grading, classification and marketing of eggs; provides a penalty for the failure to comply with the provisions of this article; and provides for other purposes. This article shall be known as "The West Virginia Egg Marketing Law of 1998". All provisions of this code in conflict with this article are repealed.

(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.

§19-10A-2. Definitions.

(a) "Ambient temperature" means the atmospheric temperature surrounding or encircling shell eggs.

(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.

§19-10A-3. Permits and registration.

(a) The commissioner shall issue an "Egg Distributor Permit" to every person distributing eggs in West Virginia. Each egg distributor shall apply to the commissioner of agriculture for this permit on forms provided by the commissioner at least thirty days prior to distributing eggs in West Virginia and shall renew his or her permit annually at least thirty days prior to the expiration of his or her current permit.

(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 July 1, and ending June 30 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.

§19-10A-4. Exemptions.

Any person marketing eggs which he or she has produced is exempt from the provisions of section seven of this article except that carton labeling shall be according to legislative rule, cartons shall be clean and free of debris and eggs shall be held under refrigeration according to legislative rule. The commissioner may exempt small producers from portions of this article by legislative rule.

§19-10A-5. Container requirements.

No distributor may market eggs unless there is clearly designated on the container the consumer grade and size or weight class established in accordance with the provisions of this article and the eggs shall conform to the designated grade and size or weight class, except when sold on contract to an agency of the United States government.

§19-10A-6. Prohibited acts.

(a) If an authorized representative of the West Virginia Department of Agriculture determines, after an inspection, that any lot of eggs is in violation of this article, the representative may issue an embargo under the provisions of section ten of this article. An embargo shall specify the reason for its issuance and prohibit the sale, use of or transportation of eggs in any manner until the embargo is released by the commissioner.

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.

§19-10A-7. Labeling.

(a) Any container or subcontainer in which eggs are marketed to consumers shall bear on the exterior of the container the following:

(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.

§19-10A-8. Invoice requirements.

(a) Every person, firm or corporation selling eggs to a retailer or manufacturer shall furnish an invoice showing the size and quality of the eggs according to the standards prescribed by this article together with the name and address of the person by whom the eggs were sold and date of the sale. This invoice shall be retained for one year.

(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.

§19-10A-9. Advertising.

(a) All eggs offered for sale at retail shall be plainly marked as to grade and size with letters not less than three-eighths inch in height.

(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.

§19-10A-10. Powers and duties of the commissioner.

(a) The commissioner shall by legislative rule establish standards for the grading, classification and marketing of shell eggs bought and sold by any person, firm or corporation in the State of West Virginia. These standards shall conform to, on date of the sale to the consumer, the minimum standards promulgated by the U.S. Department of Agriculture as defined in the "United States Standards, Grades and Weight Classes for Shell Eggs", authorized under Section 205, 60 Stat. 1091, Public Law 135, 82nd Congress; 7 U.S.C. 1624, effective July 11, 1952, as amended.

(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.

§19-10A-11. Egg handling facilities, temperature and humidity, sanitation and cleaning.

(a) Any packer or distributor engaged in the assembling, marketing or the processing of eggs for marketing shall maintain egg handling facilities in a manner commensurate with laws governing food establishments.

(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.

§19-10A-12. Access to premises.

(a) The commissioner of agriculture may enter any store, vehicle, market or any other business or place where eggs are bought, stored, processed, packed or offered for sale and to make inspections as needed to determine compliance with this article and rules adopted under the authority of this article. During an inspection the commissioner of agriculture may also candle and weigh eggs to determine if the grades and sizes of the eggs conform to grades and sizes labeled on the exterior of the container.

(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.

§19-10A-13. Penalties.

(a) Criminal penalties. -- Any person violating any provision of this article or any rule adopted under the authority of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 for the first offense, and for the second or subsequent offense, shall be fined not less than $500 nor more than $1,000, or imprisoned 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. -- 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 $1,000 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.

§19-10A-14. Persons punishable as principals.

(a) Whoever commits any act prohibited by any section of this article, or aids, abets, induces or procures its commission, is punishable as a principal.

(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.

§19-10A-15. Cooperation with other entities.

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.

§19-10A-16. Confidentiality of trade secrets.

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 needed 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.

ARTICLE 10B. LIVESTOCK DEALER\'S LICENSING ACT.

§19-10B-1. Short title.

This article shall be known and may be cited as "The West Virginia Livestock Dealer's Licensing Act."

§19-10B-2. Definitions.

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.

§19-10B-3. License required; fee.

It shall be unlawful for any person except a livestock producer to engage in the business of buying, receiving or assembling livestock for resale, or selling livestock in this state without being licensed as a livestock dealer by the commissioner. All applications for a livestock dealer's license or renewal of such license shall be made on forms provided by the commissioner and shall be filed on or before June thirtieth of each year with the commissioner. A fee of $30 shall be remitted with each such application. Any license not renewed by July 1, of any year shall expire.

§19-10B-4. Applicant to furnish bond.

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 $10,000, 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.

§19-10B-5. Records of transactions; inspection by commissioner.

Every licensed livestock dealer shall make and retain for at least two years written livestock sales records in the form and manner prescribed by the commissioner, including, but not limited to, records indicating the identification numbers or letters, sex, brand and approximate weight of all livestock bought, sold, received, exchanged or otherwise transferred, and the names and addresses of all owners, sellers, consignors or buyers with whom he has in any manner exchanged livestock, with the date of such exchanges.

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.

§19-10B-6. Investigation of complaints; board of review; orders of the commissioner; hearing; review.

(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 January 1, 1992, and subsequently thereafter the terms shall expire on January 1, 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.

§19-10B-7. Refusals, suspensions or revocation of licenses.

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.

§19-10B-8. Fees paid into special fund in State Treasury.

All funds collected under this article shall be paid into the state Treasury and credited to a special fund to be appropriated by order of the commissioner for the enforcement of this article.

§19-10B-9. Commissioner to enforce article; rules and regulations.

The commissioner shall administer and enforce the provisions of this article and shall have authority to issue regulations, after a public hearing, following due notice in conformance with the provisions of the state administrative procedures as set forth in chapter twenty-nine-a of this code, to carry out the provisions of this article.

§19-10B-10. Penalties.

(a) Criminal penalties - Any person who shall violate any of the provisions of this article or rule adopted hereunder is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 for the first offense, and upon conviction of each subsequent offense, shall be fined not less than $500 nor more than $5,000. 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, 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 $500 for the first offense, and not less than $500 nor more than $5,000 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.

§19-10B-11. Construction.

The provisions of this article are remedial and shall be liberally construed and applied so as to promote the purposes set out in the various sections of the article.

ARTICLE 11. BULK MILK TRADE LAW.

§19-11-1. Purpose.

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.

§19-11-2. Definitions.

(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.

§19-11-3. Permit for the purchase of milk.

(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 $15. A penalty of $2 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.

§19-11-4. Certificates of proficiency.

(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 $15 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 $15. 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.

§19-11-5. Licenses.

(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 June 30 following date of issue: Provided, That weighers and samplers licenses issued with an expiration date of December 31, 1991, shall be extended, at no additional fee, through June 30, 1992. 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 $10. A penalty of $2 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.

§19-11-6. Purchase of milk.

(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.

§19-11-7. Adulteration.

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.

§19-11-8. Prohibited acts.

(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.

§19-11-9. Powers and duties of commissioner.

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; 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;

(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.

§19-11-10. Suspension, revocation or denial of permits, licenses and certificates of proficiency.

(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.

§19-11-11. Hearings and appeals.

(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.

§19-11-12. Criminal penalties; civil penalties; negotiated agreement.

(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 $100 nor more than $500 for the first offense, and for the second or subsequent offense shall be fined not less than five hundred nor more than $1,000, 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 $1,000 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.

§19-11-13. Payment of fees.

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.

§19-11-14. Cooperation with other entities.

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.

§19-11-15. Confidentiality of trade secrets.

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.

§19-11-16.

Repealed.

Acts, 1991 Reg. Sess., Ch. 7.

§19-11-17.

Repealed.

Acts, 1991 Reg. Sess., Ch. 7.

ARTICLE 11A. DAIRY PRODUCTS AND IMITATION DAIRY PRODUCTS LAW.

§19-11A-1. Purpose.

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.

§19-11A-2. Definitions.

(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 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 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.

§19-11A-3. Permits.

(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 $15. A penalty of $2 shall be added to all permits that are not applied for or renewed within this time limit. Permits shall expire on March 31 following date of issue: Provided, That firms that have a permit with an expiration date of June 30, 1991, on the date of implementation of this article shall be allowed to make application for a dairy products permit for the period of July 1, 1991, through March 31, 1992, at a fee of $10.

(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.

§19-11A-4. Labeling.

(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.

§19-11A-5. Adulteration.

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.

§19-11A-6. Misbranded.

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.

§19-11A-7. Prohibited acts.

(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 with reported 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.

§19-11A-8. Approved sampling and testing methods.

(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.

§19-11A-9. Approved laboratories.

(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.

§19-11A-10. Powers and duties of commissioner.

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.

§19-11A-11. Suspension, revocation or denial of permits.

(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.

§19-11A-12. Hearings and appeals.

(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.

§19-11A-13. Criminal penalties; civil penalties; negotiated agreement.

(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 $100 nor more than $500 for the first offense, and for the second or subsequent offense, shall be fined not less than $500 nor more than $1,000, 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 $1,000 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.

§19-11A-14. Payment of fees.

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.

§19-11A-15. Cooperation with other entities.

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.

§19-11A-16. Confidentiality of trade secrets.

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.

ARTICLE 11B. FROZEN DESSERTS AND IMITATION FROZEN DESSERTS LAW.

§19-11B-1. Purpose.

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.

§19-11B-2. Definitions.

(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 imitation frozen 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.

§19-11B-3. Frozen desserts manufacturer permit.

(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 $20. A penalty of $2 shall be added to all permits that are not applied for or renewed within this time limit. The permits shall expire on March 31 following date of issue: Provided, That firms that have a permit with an expiration date of June 30, 1991, on the date of implementation of this article shall be allowed to make application for a frozen desserts manufacturer permit for the period of July 1, 1991, through the March 31, 1992, at a fee of $10.

(c) Permits shall be posted prominently at the place of operation.

§19-11B-4. Labeling.

(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.

§19-11B-5. Adulteration.

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.

§19-11B-6. Misbranded.

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.

§19-11B-7. Prohibited acts.

(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.

§19-11B-8. Approved sampling and testing methods.

(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.

§19-11B-9. Approved laboratories.

(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.

§19-11B-10. Powers and duties of commissioner.

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 dessert and 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.

§19-11B-11. Suspension, revocation or denial of permits.

(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.

§19-11B-12. Hearings and appeals.

(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.

§19-11B-13. Criminal penalties; civil penalties; negotiated agreement.

(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 $100 nor more than $500 for the first offense, and for the second or subsequent offense, shall be fined not less than $500 nor more than $1,000, 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 $1,000 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.

§19-11B-14. Payment of fees.

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.

§19-11B-15. Cooperation with other entities.

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.

§19-11B-16. Confidentiality of trade secrets.

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.

ARTICLE 11C. SOUTHERN DAIRY COMPACT.

§19-11C-1. Enactment of compact.

The southern dairy compact is hereby entered into on behalf of the State of West Virginia. The southern dairy compact shall become effective when enacted into law by a majority of the states within the compact group of states and when the consent of Congress has been obtained. The full text of the southern dairy compact is as follows:

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 $1.50 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 $1.50 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.

§19-11C-2. Compact administrator.

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.

§19-11C-3. Appointment of delegation.

There shall be five delegates from this state to the compact commission, and these delegates shall be appointed by the commissioner of agriculture. At least one of the delegates shall be a dairy farmer who is engaged in the production of milk at the time of appointment or reappointment, at least one delegate shall be a consumer representative, one delegate shall be a processor, one delegate shall be a retailer representative from a border county and one delegate at large. Delegates shall serve for a term of four years. Vacancies in the state delegation will be filled in the same manner as the appointment of delegates, and shall be for the term of the position vacated.

§19-11C-4. Effective date.

This article shall become effective at such time as a majority of the contiguous states have passed legislation permitting that state to become a participating state and the consent of Congress has been obtained.

ARTICLE 11D. TRADITIONAL CHEESE PRODUCTION.

§19-11D-1. Legislative findings.

The Legislature finds that local production and sale of locally manufactured cheese products is a culturally significant tradition and that the preservation of historic methods of cheese production is in the public interest; that local cheese production is an important part of the economic livelihood of many families and small businesses in this state; and that the unique quality of home and farm-based cheese products cannot be duplicated using manufacturing and food production requirements enforced by local boards of health. Therefore, the Legislature finds that it is in the public interest to exempt certain local cheese production and local cheese products from regulations of the division of health related to food sanitation enforced by local boards of health, and to place the production of certain home and farm-based cheese products under the jurisdiction of the Department of Agriculture.

§19-11D-2. Application of article.

(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.

§19-11D-3. Exemption from regulatory control; authorizing rules by the commissioner of agriculture.

The manufacture of cheese products described in section two of this article is exempt from: (a) Pasteurization, packaging, labeling and all other health related requirements established in this code or rules promulgated by the division of health; and (b) regulatory control by the division of health and county or local health departments or sanitarians. Powers of the commissioner of agriculture set forth in section ten, article eleven-a of this chapter are applicable to the manufacturing of home and farm-based cheese products described in section two of this article. The commissioner of agriculture is authorized to promulgate rules pursuant to article three, chapter twenty-nine-a of this code, considering and promoting traditional methods of cheese production, while providing minimum health and sanitation standards necessary for the protection of the public, including standards for cleanliness, handling, and protection from contamination. Emergency rules for this purpose are authorized.

ARTICLE 12. INSECT PESTS, PLANT DISEASES AND NOXIOUS WEEDS.

§19-12-1. Title.

This article shall be known by the short title of "The Plant Pest Act."

§19-12-2. Definitions.

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 altered or 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 plants and 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 with any 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.

§19-12-3. Commissioner to enforce article; powers and duties generally.

(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.

§19-12-4. Detection and abundance surveys; findings of commissioner; eradication and suppression.

The commissioner shall cause detection and abundance surveys to be made for plant pests or other insects or noxious weeds of a highly injurious nature that may be present in the state to determine the necessity for establishing control practices. When the commissioner determines that a new and dangerous plant pest or other insect or noxious weed exists within the state or that an established pest or weed requires control and the nature of the pest or weed dictates immediate action, he shall proceed with a plan of eradication or suppression.

§19-12-5. Rules and regulations for eradication, etc., of plant pests and other insects and noxious weeds; enjoining violations of article or rules and regulations.

The commissioner may promulgate rules and regulations under which he may proceed to eradicate or suppress and prevent the dissemination of plant pests or other insects or noxious weeds as far as may be practical and such rules and regulations as are necessary to carry out the purpose of this article. Any person violating any of the provisions of this article or any rules or regulations promulgated thereunder may be enjoined from continuing such violation or violations upon proper application to the circuit court of any county, and a judge thereof shall not require a bond as a condition precedent to the issuance of the injunction.

§19-12-6. Quarantines and other orders; plants or plant products entering state.

The commissioner shall have power to establish and maintain quarantines and to adopt other orders and rules and regulations concerning the planting, exposing, sale and transportation of all plants or plant products and regulated articles capable of carrying plant pests of a highly injurious nature in any living stage within this state. The commissioner shall also have the power to prescribe like rules and regulations pertaining to all plants or plant products entering this state. The commissioner shall have the authority to rescind quarantines and other orders when he determines the need or practicability no longer exists.

§19-12-7. Infected or infested nursery stock, articles or materials subject to seizure, etc.

The commissioner is hereby authorized to stop the delivery of, destroy, stop sale, to seize, to treat or to order returned to point of origin, at the owner's expense, any nursery stock or any article or material whatsoever transported or moved within this state or being transported into this state from any place outside thereof, if such nursery stock, article or material is found by him to be infested or infected with any dangerous plant pest or other insect or noxious weed or is in violation of any part of this article whether or not there is attached a valid certificate of inspection.

§19-12-8. Right of entry on premises.

The effectuate the purpose of this article, the commissioner is hereby invested with authority, during reasonable working hours, to enter upon any public or private premises, except private residences, to examine and sample all plants and trees, soil, articles, and substances which are suspected of being infested or infected with dangerous plant pests or other insects or noxious weeds in discharge of the duties prescribed by this article. No person shall obstruct or hinder him in the discharge of his duties.

§19-12-9. Certificate of registration for nurserymen, dealers, etc.; refusal, suspension, etc., of certificates; annual registration fees.

It shall be unlawful for any nurseryman or dealer to expose or offer for sale, sell, deliver or give away any plants or parts of plants commonly known as nursery stock unless such person shall have first secured from the commissioner a certificate of registration. The commissioner may refuse, suspend or cancel any certificate upon satisfactory evidence that any of the provisions of this article or rules governing the sale of nursery stock within the state have been violated. The commissioner shall for each certificate of registration issued and for each renewal thereof, collect an annual registration fee in the amount of $10 for each nurseryman and $20 for each dealer. All certificates or registration shall expire on June 30 next after issue.

§19-12-10. Inspection of nurseries; orders of commissioner as to eradication or control of infestation.

All stock in custody of any dealer or person shall be subject to inspection. It shall be the duty of the commissioner to provide for the annual inspection, or more often if necessary, of all nurseries within the state.

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.

§19-12-11. Nursery stock brought into state to carry inspection certificate.

It shall be unlawful to deliver, transport or ship within this state, nursery stock which has not been inspected in accordance with the provisions of this article and which does not carry an inspection certificate attached to each carload, truckload, box, bale, package or item, or to deliver, ship, send or bring any such nursery stock into this state from any place outside thereof, unless there is attached to each carload, truckload, box, bale, package or item, in a conspicuous place, a valid certificate of inspection issued by the proper official of the state, territory, district or country from which it was shipped, sent or brought, showing that such nursery stock, including soil, was found to be free from plant pests at the time of inspection.

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.

§19-12-12. Disposition of fees collected.

The commissioner shall deposit all fees collected by him under the provisions of this article, into the state Treasury to the credit of a special fund, which funds shall be expended by the commissioner for the enforcement of this article.

§19-12-13. Inspection of plants, etc., by commissioner upon request; certificate stating results of inspection.

Any person growing or possessing any plants or plant products or any other substance, material or thing may apply to the commissioner for a special inspection for the purpose of determining the presence of plant pests or noxious weeds which might prevent the movement or use of same. The expenses incurred in making the inspection shall be paid by the person making such request. The commissioner may comply with such request and shall issue to the person requesting an inspection a certificate stating the results of the inspection.

§19-12-14. Permit required to sell, transport, etc., plant pests or noxious weeds.

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.

§19-12-15. Information to be furnished and inspection allowed upon request of commissioner.

The commissioner may request any person who has plants or plant products or articles or substances suspected of being infested or infected with dangerous pests in his possession to present same for inspection and to give full information as to the origin, number and destination of same, and it shall be a misdemeanor for such person to refuse to give the information upon request or to allow inspection.

§19-12-16. Criminal penalties; civil penalties; duties of the prosecuting attorney.

(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 $100 nor more than $500 for the first offense; and for the second offense, shall be fined not less than $500 nor more than $1,000, 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 $500 for each first offense or nonserious violation, and not more than $1,000 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.

§19-12-17. Severability.

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.

§19-12-18. Confidentiality of trade secrets.

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.

ARTICLE 12A. LAND DIVISION.

§19-12A-1. Legislative findings and declarations.

The Legislature hereby finds and declares that in order to ensure economic and efficient land use, increase and improve agricultural production, and provide food for residents of state operated institutions, state-owned farms should operate under the control of the Commissioner of Agriculture. The Legislature also finds and declares that the operation of all institutional farms under one management system with a single integrated farm plan is the most efficient method of providing the food needs of residents of state-operated institutions and will promote the health and welfare of all citizens of this state.

§19-12A-1a. Farm management commission abolished; property transferred; powers and duties of commissioner of agriculture.

(a) The farm management commission previously established by this article is hereby abolished. The real and personal property held by the commission, including all institutional farms and all easements, mineral rights, appurtenances, farm equipment, agricultural products, inventories and farm facilities, operating revenue funds for those operations, and all employees of the farm management commission, are hereby transferred to the Department of Agriculture. The Commissioner of the Department of Agriculture shall have all those powers, duties and responsibilities previously vested in the farm management commission and the farm management director pursuant to this article.

(b) Not later than January 1, 1995, 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.

§19-12A-2. Definitions.

For the purpose of this article:

"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.

"Commissioner" means the Commissioner of Agriculture, or his or her designee.

"Department" means the Department of Agriculture.

"Farm equipment" means any equipment used for agricultural production.

"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.

"Institution" means any facility operated by the Department of Health and Human Resources or the Division of Corrections and Rehabilitation.

"Institutional farm" means any land which was formerly operated as a farm, is now being operated as a farm, or could be converted to agricultural production.

§19-12A-3

Repealed

Acts, 2019 Reg. Sess., Ch. 6.

§19-12A-4. Transfer of institutional farms, farm equipment, farm facilities, inventories and agricultural products to commission; utility continuance; provisions for uninterrupted operation; transfer of funds.

(a) On July 1, 1976, 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 July 1, 1976, 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 institution affected 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 June 25, 1976, meet and establish a farm management plan. Before June 25, 1976, 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 July 1, 1976, 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 June 30 but no later than July 15, 1976, 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.

§19-12A-5. Powers, duties, and responsibilities of commissioner.

(a) The commissioner shall manage all institutional farms, equipment, and other property to most efficiently produce food products for state institutions, support the department and its activities, advance the agricultural interests of the state, as identified by the commissioner, and otherwise 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 commissioner shall sell, at prevailing wholesale prices, and each of the institutions under the control of the Department of Health and Human Resources and Division of Corrections and Rehabilitation shall purchase, these products based on the dietary needs of each institution: Provided, That if the commissioner cannot sell sufficient food products to each institution to meet the demand created, each institution may purchase such food products from vendors who can supply those food products at the greatest savings to the taxpayers of the state.

(b) If requested by the Commissioner of the Division of Corrections and Rehabilitation, the commissioner may authorize the Division of Corrections and Rehabilitation to operate a farm or other enterprise using inmates as labor on those lands. The Commissioner of the Division of Corrections and Rehabilitation is responsible for the selection, direction, and supervision of the inmates and shall, in consultation with the Commissioner of Agriculture, assign the work to be performed by inmates. The Commissioner of Agriculture may also request inmate labor to perform work on the institutional farms, and if requested, the Commissioner of the Division of Corrections and Rehabilitation shall provide inmate labor, if available.

(c) The commissioner 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, 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.;

(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 §5A-11-4 and §5A-11-5 of this code;

(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 Department of Environmental Protection will increase the beneficial use of such property;

(4) Upon 30 days written notice to the lessee, cancel a lease to which the department is a party and which is for annual consideration of less than $5 per acre: Provided, That such lease must contain a provision authorizing cancellation or impairment by the Legislature; and

(5) Exercise all other powers and duties necessary to effectuate the purposes of this article.

(d) Notwithstanding the provisions of subsection (c) of this section, no timberland may be leased, sold, exchanged, or otherwise disposed of unless there is no commercially salable timber on the timberland, an inventory is provided, and an appraisal of the timber is provided.

(e) The commissioner may promulgate, pursuant to §29-1-1 et seq. of this code, rules and regulations relating to the powers and duties of the commissioner as enumerated in this section.

§19-12A-6. Commissioner’s powers and duties.

The commissioner or his or her designee is responsible for conducting the operations of the farms and shall:

(1) Prepare an annual report of the farming operations, including a listing of all receipts and expenditures and shall present it to the Legislature at the end of each fiscal year.

(2) Prepare the annual budget request for the operation of the institutional farms.

(3) Receive and approve all requisitions for farm supplies and equipment.

(4) Supervise the operation of all canneries and determine what foods are to be canned.

(5) Recruit and approve assistant farm managers to supervise each institutional farm.

(6) Transfer farm supplies, farm equipment, farm facilities, food stuffs, and produce from one institutional farm to another to promote efficiency and improve farm management.

(7) Rent or lease additional land for farm use.

By September 30 each year, each institution under the control of the Department of Health and Human Resources and the Division of Corrections and Rehabilitation shall present to the commissioner 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 commissioner, 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 commissioner may sell the surplus to other state agencies willing to purchase. If any surplus remains after sales to other state agencies, the commissioner may sell the surplus on the open market or turn over any surplus food products to appropriate public, nonprofit agencies.

§19-12A-6a. Special revenue account.

All funds collected by the department pursuant to 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 remaining balance at the end of any fiscal year of the funds so collected and deposited in the special revenue account exceeds $1 million, the department may transfer the excess funds to the Department of Agriculture Capital Improvements Fund established in §19-1-4e of this code.

§19-12A-7

Repealed

Acts, 2019 Reg. Sess., Ch. 6.

§19-12A-8

Repealed

Acts, 2019 Reg. Sess., Ch. 6.

§19-12A-9

Repealed

Acts, 1991 Reg. Sess., Ch. 86.

ARTICLE 12B. INTERSTATE COMPACT ON PEST CONTROL.

§19-12B-1. Enactment of compact.

The pest control compact is hereby enacted into law and entered into with all other jurisdictions legally joining therein in accordance with its terms, in the form substantially as follows:

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 $7 billion 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 not accept 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 compact administrator, 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 the requesting 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 the insurance 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 the insurance 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 severable matters.

§19-12B-2. Appropriations for insurance fund.

Consistent with law and within available appropriations, the departments, agencies and officers of this state may cooperate with the insurance fund established by the pest control compact.

§19-12B-3. Filing of bylaws and amendments.

Pursuant to Article IV (h) of the compact, copies of bylaws and amendments thereto shall be filed with the commissioner and the Department of Agriculture.

§19-12B-4. Compact administrator.

The compact administrator of this state shall be the commissioner of agriculture. The duties of the compact administrator shall be deemed a regular part of the duties of his office.

§19-12B-5. Request for assistance.

Within the meaning of Article VI (b) or VIII (a), a request or application for assistance from the insurance fund may be made by the Governor or the commissioner of agriculture whenever in their judgment the conditions qualifying this state for such assistance exist and it would be in the best interest of this state to make such request.

§19-12B-6. Disposition of compact grants and reimbursements.

The department, agency, or officer expending or becoming liable for an expenditure on account of a control or eradication program undertaken or intensified pursuant to the compact shall have credited to his account in the state Treasury the amount or amounts of any payments made to this state to defray the cost of such program, or any part thereof, or as reimbursement thereof.

§19-12B-7. Executive head.

As used in the compact, with reference to this state, the term "executive head" shall mean the Governor.

ARTICLE 12C. INTERAGENCY COMMITTEE ON PESTICIDES.

§§19-12C-1 to 19-12C-7.

Repealed.

Acts, 1991 Reg. Sess., Ch. 120

ARTICLE 12D. WEST VIRGINIA NOXIOUS WEED ACT.

§19-12D-1. Title.

This article shall be known by the short title of "The West Virginia Noxious Weed Act of 1976."

§19-12D-2. Declaration of purpose; legislative findings.

The purpose of this article is to provide for the suppression or control of noxious weeds which have proven to be or which scientific evidence indicates may become detrimental factors affecting the public health or economy of the state. The Legislature finds that certain plant species may spread to the extent they become detrimental to agricultural crops, other desirable plants, livestock, waterways, land, public health and/or the general economy and that certain noxious weeds, not yet known to occur in West Virginia, may be inadvertently introduced and that procedures for locating and eliminating such infestations need to be established. Therefore, it is deemed necessary, in the public interest, to provide authority for the surveillance of, suppression and control of noxious weeds.

§19-12D-3. Definitions.

As used in this article:

(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.

§19-12D-4. Administration of article; promulgation of regulations.

(a) The commissioner shall administer and enforce the provisions of this article and shall have authority to issue regulations after a public hearing following due notice to all interested persons in conformance with the provisions of the state administrative procedures set forth in chapter twenty-nine- a of this code.

(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.

§19-12D-5. Surveys for noxious weeds; multiflora rose.

(a) The commissioner shall make surveys for noxious weeds and when it is determined that an infestation exists within the state he may, by regulation after public hearing held in accordance with procedures set forth in chapter twenty-nine-a of this code, declare the weed to be noxious.

(b) Multiflora rose, Rosa multiflora, is a detriment to agriculture in West Virginia and is hereby declared to be a noxious weed.

§19-12D-6. Quarantines.

When a plant is declared to be noxious under section five of this article, the commissioner shall, subsequent to the declaration of a quarantine, limit the application of rules and regulations pertinent to such quarantine to the infested portion of the state and appropriate environs, which would be known as the regulated area and may, without further hearing, extend the regulated area to include additional portions of the state upon publication of a notice to that effect in a newspaper distributed in the extended area or by direct written notice to those concerned.

§19-12D-7. Prohibited acts; permits; authority to stop sale or delivery.

(a) No person shall violate any provision of this law or any rule promulgated thereunder.

(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: Provided, That the division shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

(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 or her to be infested with any noxious weed subject to this article.

§19-12D-8. Cooperation with federal and state agencies; drug producing plants declared noxious; establishment of program for eradication of multiflora rose.

(a) The commissioner is authorized to cooperate in any way with any person in order to prevent the establishment of noxious weeds in this state.

(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.

§19-12D-9. Right of entry.

To effectuate the purpose of this article, the commissioner is hereby invested with authority to enter upon any public or private premises, except private residences, and the curtilage thereof, at reasonable times, after reasonable notification to the owner and tenant or agent in order to examine and sample all plants and trees, soil, articles, and substances which are suspected of being infested with a noxious weed in discharge of the duties prescribed by this article.

§19-12D-10. Review of actions of commissioner.

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 enjoined or 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 shall have 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, shall be conclusive.

§19-12D-11. Penalties.

Any person violating any of the provisions of this article, or the rules and regulations adopted thereunder, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $10 nor more than $100.

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.

§19-12D-12. Importation or sale of multiflora rose unlawful.

Notwithstanding any other provisions of this code to the contrary, it is unlawful for any person, firm or corporation to import or otherwise bring or move into this state or sell or offer or expose for sale or have in possession with intent to sell or offer or expose for sale in this state the noxious weed known as multiflora rose, rosa multiflora. Any person, firm or corporation violating the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $1,000, or confined in jail not more than one year or both fined and imprisoned. In addition, the commissioner may obtain injunctive relief, along with a civil penalty of $1,000, for any violation of this section in the circuit court of any county wherein such violation occurs. The commissioner shall not under any circumstances grant any permit for the sale in this state of or importation or other movement into this state of multiflora rose, rosa multiflora. The provisions of this section are in addition to the powers, duties and authority given to the commissioner elsewhere in this article and do not limit or abrogate in any way the powers and authority given the commissioner elsewhere in this article, except that the criminal penalties of this section apply to violations of this section and the penalty provisions of section eleven of this article do not apply thereto.

ARTICLE 12E. INDUSTRIAL HEMP DEVELOPMENT ACT.

§19-12E-1. Short title.

This article is known as the "Industrial Hemp Development Act".

§19-12E-2. Purpose.

The Legislature finds that the development and use of industrial hemp can serve to improve the state's economy and agricultural vitality and that the production of industrial hemp can be regulated so as not to interfere with the strict regulation of controlled substances in this state. The purpose of the industrial hemp development act is to promote the economy and agriculture by permitting the development of a regulated industrial hemp industry while maintaining strict control of marijuana.

§19-12E-3. Definitions.

As used in this article:

(a) "Cannabidiol" or "CBD" means the compound by the same name derived from the hemp variety of the cannabis sativa L. plant;

(b) "Commercial sales" means the sale of products in the stream of commerce, at retail, wholesale, and online;

(c) "Commissioner" means the Commissioner of Agriculture or his or her designee;

(d) "Cultivating" means planting, watering, growing, and harvesting a plant or crop;

(e) "Department" means the West Virginia Department of Agriculture and its employees;

(f) "Handling" means possessing or storing hemp plants for any period of time on premises owned, operated, or controlled by a person licensed to cultivate or process hemp. "Handling" also includes possessing or storing hemp plants in a vehicle for any period of time other than during its actual transport from the premises of one licensed person to cultivate or process industrial hemp to the premises of another licensed person. "Handling" does not mean possessing or storing finished hemp products;

 (g) "Hemp" or "industrial hemp" means all parts and varieties of the plant Cannabis sativa L. and any part of the plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with no greater than 0.3% tetrahydrocannabinol, or the THC concentration for hemp defined in 7 U.S.C. § 5940, whichever is greater;

(h) "Hemp products" means all products derived from, or made by, processing hemp plants or plant parts, that are prepared in a form available for commercial sale;

(i) "Licensee" means an individual or business entity possessing a license issued by the Department to grow, handle, cultivate, or process hemp;

 (j) "Marijuana" means all plant material from the genus cannabis containing more than one percent tetrahydrocannabinol or seeds of the genus capable of germination;

(k) "Processing" means converting an agricultural commodity into a marketable form; and

(l) "THC" means tetrahydrocannabinol. Notwithstanding any other provision of this code to the contrary, the THC found in industrial hemp shall not be considered to be THC for the purposes of qualifying as a controlled substance.

§19-12E-4. Industrial hemp authorized as agricultural crop; license required.

(a) Industrial hemp is considered an agricultural crop in this state if grown for the purposes authorized by the provisions of this article. Upon meeting the requirements of §19-12E-5 of this code, an individual in this state may plant, grow, harvest, possess, process, sell or buy industrial hemp.

(b) A person shall not cultivate, handle, or process industrial hemp in this state unless the person holds an industrial hemp license issued by the department.

§19-12E-5. Industrial hemp – licensing.

(a) A person growing industrial hemp shall apply to the commissioner for a license on a form prescribed by the commissioner.

(b) The application for a license must include the name and address of the applicant and the legal description and global positioning coordinates of the land area to be used for the production of industrial hemp.

(c) The commissioner shall require each first-time applicant, and may establish requirements for other persons involved with the industrial hemp program, to submit to a state and national criminal history record check. The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(1) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints; and

(B) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(2) The results of the state and national criminal history record check may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(C) Pursuant to a court order.

(3) The criminal history record check and related records are not public records for the purposes of §29B-1-1 et seq. of this code.

(4) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(d) If the applicant has completed the application process to the satisfaction of the commissioner, the commissioner shall issue the license, which is valid until December 31 of the year of application: Provided, That an individual applying to renew a current license may continue to operate under an existing license, as long as his or her completed renewal application has been submitted to the department on or before the deadline established by the department.

 (e) Any person seeking to grow, cultivate, or process industrial hemp shall provide to the Department prior written consent allowing the Department, State Police, and other state and local law enforcement agencies to enter onto all premises where industrial hemp is grown, cultivated, processed, or stored to conduct physical inspections or otherwise ensure compliance with the requirements of this code and the legislative rules promulgated pursuant to this code.

(f) Sale of industrial hemp products —

(1) Notwithstanding any provision of the code to the contrary, a person need not obtain a license to possess, handle, transport, or sell hemp products or extracts, including those containing one or more hemp-derived cannabinoids, including CBD.

(2) Hemp-derived cannabinoids, including CBD, are not controlled substances or adulterants.

(3) Products containing one or more hemp-derived cannabinoids, such as CBD, intended for ingestion are to be considered foods, not controlled substances or adulterated products.

(4) Applicable state agencies shall make available any and all customary registrations to the processors and manufacturers of hemp products.

(5) Retail sales of hemp products may be conducted when the products and the hemp used in the products were grown and cultivated legally in another state or jurisdiction and meet the same or substantially the same requirements for processing hemp products or growing hemp under this article and rules promulgated under §19-2E-7 of this code.

(6) Notwithstanding any other provision of this code to the contrary, derivatives of hemp, including hemp-derived cannabidiol, may be added to cosmetics, personal care products, and products intended for animal or human consumption, and the addition is not considered an adulteration of the products.

(7) Hemp and hemp products may be legally transported across state lines, and exported to foreign nations, consistent with U. S. federal law and laws of respective foreign nations.

§19-12E-6. Industrial hemp production – notification.

(a) Every licensee shall file with the commissioner:

(1) Documentation showing that the seeds planted are of a type and variety certified to contain no more than 0.3% tetrahydrocannabinol;

(2) A copy of any contract to grow industrial hemp; and

(3) Any other document required to be submitted by the commissioner.

(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.

§19-12E-7. Rule-making authority.

The commissioner shall propose legislative rules for promulgation in accordance with §29A-3-1 et seq. of this code that include, but are not limited to:

(1) Licensing persons who wish to grow, cultivate, handle, or process industrial hemp;

(2) Sampling and testing of the industrial hemp to determine tetrahydrocannabinol levels;

(3) Supervision of the industrial hemp during its growth and harvest;

(4) Assessment of fees that are commensurate with the costs of the commissioner’s activities in licensing, testing, and supervising industrial hemp production;

(5) The production and sale of industrial hemp;

(6) The production, sale, possession, handling, or transport of hemp products and extracts, including those containing one or more hemp-derived cannabinoids, including CBD; and

(7) Any other rules and procedures necessary to carry out the purposes of this article.

§19-12E-8. Disposition of fees.

All fees assessed as provided for in §19-12E-5 of this code must be deposited with the state treasurer to the credit of the "Agricultural Fees Fund" established by the provisions of §19-1-4c of this code for the use of the commissioner for administering and enforcing the provisions of this article.

§19-12E-10. State regulation of industrial hemp.

(a) The commissioner may submit to the Secretary of the United States Department of Agriculture, for his or her approval, a plan under which this state monitors and regulates the production of industrial hemp. The plan shall comply with the requirements of 7 U.S.C. § 1621 et seq. and any other requirements established by the United States Department of Agriculture.

(b) Nothing in this section prohibits the production of industrial hemp in this state if the commissioner declines to submit a plan, or if a submitted plan is not approved by the United States Department of Agriculture in accordance with other federal laws and regulations.

§19-12E-9. Defense for possession or cultivation of marijuana.

(a) It is a complete defense to a prosecution for the possession or cultivation of marijuana pursuant to the provisions of §60A-4-401 et seq. of this code that defendant was growing industrial hemp pursuant to the provisions of this article.

(b) This section is not a defense to a charge of criminal sale or distribution of marijuana as defined in §60A-1-101 et seq. of this code which does not meet the definition of industrial hemp.

ARTICLE 13. INSPECTION AND PROTECTION OF AGRICULTURE.

§19-13-1. Short title.

This article may be cited as "The West Virginia Apiary Act."

§19-13-2. Definitions.

For the purpose of this article, the term:

(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.

§19-13-3. Commissioner's powers and duties; rule-making authority; apiary education; cooperation with governmental agencies; seizure of infected bees and bee equipment.

(a) The commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code: (1) To effectively eradicate, suppress or control honey bee pests as far as may be practical; (2) to regulate the keeping and maintaining of bees, bee equipment, queen breeding equipment, apiaries and appliances; (3) to regulate treatments, retreatments, and fees for the services; and (4) any other rules necessary to effectuate the enforcement of this article.

(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.

§19-13-4. Registration of bees; identification of apiaries; limitation on liability.

(a) All persons keeping bees in this state shall apply for a certificate of registration for beekeeping from the commissioner, within ten days of the date that bees are acquired, by notifying the commissioner, in writing, of the number and location of colonies they own or rent, or which they keep for someone else, whether the bees are located on their own property or someone else’s property. All apiary certificates of registration expire on June 30 of each year and must be renewed annually.  Apiary certificates of registration issued in 2017 will be valid through June 30, 2018.

(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.

(d) The commissioner shall promulgate legislative rules in accordance with article three, chapter twenty-nine-a of this code regarding the 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.

§19-13-5. Right of entry; apiary inspections; quarantines.

(a) During reasonable working hours, the commissioner may enter upon any premises to access any apiary for the purpose of inspecting or sampling. No person shall obstruct or hinder the commissioner in the discharge of his or her duties.

(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.

§19-13-6. Abandoned apiaries and equipment; notice.

It shall be unlawful for a person to knowingly maintain an abandoned apiary or bee equipment. When the commissioner determines that an apiary or bee equipment has been abandoned, he or she shall notify, in writing, the owner or operator that the apiary or bee equipment has been declared abandoned. The owner or operator has thirty days from the date of notice to enclose, dispose of or destroy the abandoned apiary or bee equipment in a manner approved by the commissioner. If the owner or operator of the abandoned apiary or bee equipment cannot be located after reasonable inquiry, notice shall be provided to the owner of the real property on which the apiary or bee equipment is located. If the apiary or bee equipment continues to be abandoned for a period of thirty days thereafter, the commissioner may seize the apiary or bee equipment and take such action as is necessary to dispose of or to destroy the apiary or bee equipment as conditions warrant.

§19-13-7. Bees brought into state to carry inspection certificate; commissioner to be notified; interstate movement of bees.

(a) It shall be unlawful for any person to transport bees, used bee equipment or used appliances into West Virginia, unless accompanied by a certificate of inspection signed by an authorized state or federal inspection official verifying the actual inspection of the bees, used bee equipment or used appliances within thirty days preceding the date of shipment and certifying the absence of honey bee pests.

(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.

§19-13-8.

Repealed.

Acts, 2003 Reg. Sess., Ch. 8.

§19-13-9. Candy for mailing cages.

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.

§19-13-10.

Repealed.

Acts, 2003 Reg. Sess., Ch. 8.

§19-13-11. Penalties for violations of article; rules.

(a)(1) Criminal penalties. -- Any person violating any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 for the first offense, and for each subsequent offense, shall be fined not less than $500 nor more than $1,000, or imprisoned in the county or regional jail not more than six months, or both. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.

(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 $100 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 $1,000 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.

§19-13-12. Severability.

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.

§19-13-13.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-14.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-15.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-16.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-17.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-18.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-19.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

§19-13-20.

Repealed.

Acts, 1991 Reg. Sess., Ch. 10.

ARTICLE 14. WEST VIRGINIA COMMERCIAL FEED LAW.

§19-14-1. Title.

This article shall be known as the “West Virginia Commercial Feed Law.”

§19-14-2. Definitions.

(a) “Brand name” means any word, name, symbol or device, or any combination thereof, identifying the commercial feed of a distributor, guarantor, or manufacturer and distinguishing it from all others.

(b) “Bulk” refers to commercial feed or feed ingredients distributed in nonpackaged form where a label cannot be attached and accompanied by an invoice or delivery slip.

(c) “Commercial feed” means all materials or combinations of materials which are distributed, or intended for distribution, for use as feed or for mixing in feed for animals, other than humans, except: (1) Unmixed or unprocessed whole seeds when such whole or unprocessed seeds are not chemically changed or adulterated; (2) unprocessed 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 of the commissioner.

(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 that consists of a mixture of commercial feed and/or feed ingredients, each batch of which is manufactured according to the specific instructions of the final purchaser.

(g) “Distribute” means to offer for sale, sell, exchange, or barter commercial feed; or to supply, furnish, or provide commercial feed to a contract feeder.

(h) “Distributor” means any person who distributes a commercial feed.

(i) “Drug” means any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in animals, other than humans; and any substance intended to affect the structure or any function of the animal body.

(j) “Feed” means any material consumed, or intended to be consumed, by animals other than humans, or any element of that material that contributes nutrition, taste, or aroma, or otherwise has a technical effect on the consumed material. The term “feed” includes raw materials, ingredients, and finished product.

(k) “Feed ingredient” means each constituent material making up feed, including individual chemical compounds labeled for use as a feed ingredient.

(l) “Guarantor” means any person whose name appears on a label and who is therefore responsible for the product and its labeling.

(m) “Label” means a display of written, printed, or graphic matter printed upon or otherwise affixed to the container in which commercial feed is distributed; or printed upon or otherwise 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.

(n) “Labeling” means and includes all labels as well as all other written, printed, or graphic matter found: (1) upon a commercial feed or any of its containers or wrappers, or (2) accompanying such commercial feed.

(o) “Manufacture” means to grind, mix, blend, package, pack, repackage, repack, or otherwise process a commercial feed for distribution.

(p) “Medicated feed” means any feed which contains one or more drugs. Antibiotics included in a feed growth promotion and/or efficiency level are drug additives and feeds containing such antibiotics are included in the definition of “medicated feed”.

(q) “Mineral feed” means a commercial feed designed or intended to supply primarily mineral elements or inorganic nutrients.

(r) “Official sample” means any sample of feed taken by the commissioner in accordance with the provisions of this article and rules promulgated hereunder.

(s) “Percent” or “percentage” means percentage by weights.

(t) “Person” means an individual, partnership, association, fiduciary, firm, company, corporation, or any organized group of persons whether incorporated or not.

(u) “Pet” means dog (Canis familiaris) or cat (Felis catus).

(v) “Pet food” means any commercial feed manufactured and distributed for consumption by pets.

(w) “Process” means a method used to prepare, treat, convert, or transform materials into feed or feed ingredients. The word “processed” can be used to further describe an ingredient name, so long as the ingredient is not nutritionally altered from the original form of the ingredient.

(x) “Product name” means the name of the commercial feed which identifies it as to kind, class, or specific use and distinguishes it from all other products bearing the same brand name.

(y) “Quantity statement” means the net weight (mass), liquid measure, or count.

(z) “Repack” or “repackaging” means to pack and label a previously manufactured feed.

(aa) “Specialty pet” means any animal normally maintained in a household, such as rodents, ornamental birds, fish, , reptiles, amphibians, ferrets, hedgehogs, marsupials, and rabbits not raised for food or fur.

(bb) “Specialty pet food” means any commercial feed prepared and distributed for consumption by specialty pets.

(cc) “Ton” means a net weight of two thousand pounds avoirdupois.

§19-14-3. Powers and duties of the commissioner.

The commissioner has the power and authority to:

(1) Enter and inspect, during reasonable hours, any location where commercial feed is manufactured, distributed, transported, or used, and where records relating to the manufacture, distribution, shipment, labeling, or sale of commercial feed are kept. Such inspection may include, but is not limited to, examining, photographing, verifying, copying, and auditing records as necessary to determine compliance with this article; and reviewing labels, consumer complaints, and papers relating to the manufacturing, distribution, sampling, testing, and sale of commercial feeds.

(2) 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.

(3) Issue permits and registrations pursuant to this article.

(4) Refuse, suspend, or revoke permits and registrations as provided in this article.

(5) Issue embargoes as provided in this article.

(6) Condemn and confiscate any product that is not brought into compliance with this article.

(7) Collect fees and penalties, and expend moneys under the terms of this article.

(8) 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 other methods approved by the commissioner by rules.

(9) Conduct hearings as provided by this article.

(10) Assess civil penalties and refer violations to a court of competent jurisdiction.

(11) Obtain court orders directing any person refusing to submit to inspection, sampling, and auditing to submit.

(12) 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 other methods approved by the commissioner by rules.

(13) Be guided by the analytical results of the official sample when determining whether the commercial feed is deficient in any component.

(14) Report the analytical results on all official samples to the guarantor and, in the case of deficient samples, also to the dealer and the purchaser, if known.

(15) Upon request made within 30 days from the date the official sample results are reported, furnish a portion of the official sample to the guarantor.

(16) 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 to carry out the purpose and provisions of this article.

(17) Promulgate rules, in accordance with §29A-3-1 et seq. of this code, dealing with commercial feeds and enforcement of this article.

§19-14-4. Special revenue fund.

Except as otherwise provided in 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.

§19-14-5. Permits; registration.

(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 30 days prior to the expiration of the current permit or registration; or at least 30 days prior to the date that the person intends to engage in the business of selling or marketing commercial feed products in this state. All applications shall be accompanied by the required fee. A penalty 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 from the commissioner, except for persons manufacturing feed for only his/her animals on his/her premises, or those producing pet food. 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 the required application fee. Each permit issued shall expire on December 31, next following the date of issue.

(d) Each person distributing commercial feed in West Virginia must obtain a Commercial Feed Distributor Permit from the commissioner, except: (1) Persons distributing pet food exclusively, (2) persons holding a valid Commercial Feed Manufacturing Permit issued by the commissioner, and (3) persons holding a Commercial Feed Guarantor Permit issued by the commissioner. 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 the required application fee. Each permit issued shall expire on December 31, next following the date of issue.

(e) Each person whose name appears on the label of a commercial feed or customer-formula feed as guarantor must obtain a Commercial Feed Guarantor Permit from the commissioner for each manufacturing facility or location that distributes feed in or into the state, except those facilities or locations for which a Commercial Feed Manufacturing Permit has already been issued by the commissioner. Application forms shall be provided by the commissioner and include such information as established by rules. Each Commercial Feed Guarantor Permit application shall be accompanied by the required application fee. Each permit issued shall expire on December 31, next following the date of issue.

(f) Pet food in packages over 10 pounds or bulk shall be registered annually. Each application for registration shall be accompanied by the required registration fee. Each registration shall expire on August 31 next following the date of issue: Provided, That until June 30, 2027, an additional registration fee of $50 per product shall accompany each application for registration and the additional registration fee shall be deposited into the West Virginia Spay Neuter Assistance Fund for spay and neutering services performed within this state by licensed veterinarians.

(g) Pet food packaged in packages of 10 pounds and under shall be registered annually. Each application for registration shall be accompanied by the required registration fee. Each registration shall expire on December 31, next following the date of issue: Provided, That until June 1, 2027, an additional registration fee of $35 per product shall accompany each application for registration and the additional registration fee shall be deposited into the West Virginia Spay Neuter Assistance Fund for spay and neutering services performed within this state by licensed veterinarians.

(h) Specialty pet food shall be registered annually. Each application for registration shall be accompanied by the required registration fee. Each registration shall expire on December 31, next following the date of issue.

(i) A person is not required to register any brand name or product name of commercial feed which is already registered by another person.

(j) Alteration of a pet food or specialty pet food that changes the label requires a new application for registration be made and approved before distribution.

§19-14-6. Refusal of applications; suspension and revocation of registrations and permits.

The commissioner may refuse to grant, or may suspend or revoke any Commercial Feed Manufacturing Permit; any Commercial Feed Guarantor Permit; any Commercial Feed Distributor Permit; or the registration of any Pet Food or Specialty Pet Food when it is determined that: (1) The applicant, permittee, or guarantor has violated the provisions of this article or any official rule promulgated hereunder; or (2) this article or the rules promulgated hereunder cannot be or will not be complied with: Provided, That the permittee or guarantor shall have the opportunity to be heard prior to the suspension or revocation of the registration or permit.

§19-14-7. Hearings and appeals.

(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.

(b) No registration or permit shall be refused, suspended, or revoked until the guarantor or permittee shall have the opportunity to have a hearing before the commissioner.

(c) Any person adversely affected by an act, order, or ruling made pursuant to the provisions of this article, may bring an action for judicial review in the circuit court of the county in which the violation occurred in accordance with §29A-5-1 et seq. of this code.

§19-14-8. Labeling.

(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 include the following:

(1) The quantity statement.

(2) The product name, including brand name, if any, under which the commercial feed is distributed.

(3) The guaranteed analysis, expressed on an “as is” basis, stating what the commissioner determines by rules is required to advise the user of the composition of the commercial 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 other methods approved by the commissioner.

(4) An ingredient statement, except that an ingredient statement is not required for single standardized ingredient feeds. 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) Feed 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 (revised April 1, 2019) of the Federal Drug and Cosmetic Act as amended August, 1985;

(D) The common or usual name of substances which are so common 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) For all commercial feeds containing drugs and for all other such commercial feeds as the commissioner may require by legislative rules, adequate directions as necessary for their safe and effective use 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; and

(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 and specialty 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 and/or delivery.

(4) The product name and quantity statement of each commercial feed and each other ingredient used in the mixture.

(5) For all customer-formula feeds containing drugs and for all other such customer-formula feeds as the commissioner may require by legislative rules, adequate directions as necessary for their safe and effective use 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; and

(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.

§19-14-9. Tonnage reports; inspection fees.

(a) Each person holding a Commercial Feed Manufacturing Permit or a Commercial Feed Guarantor Permit, except those persons exclusively manufacturing pet food or specialty pet food, 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 previously made by a distributor, manufacturer, or guarantor.

(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 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) Pet food or specialty pet food.

(b) An annual fee for commercial feed which does not meet the minimum inspection fee shall be paid in lieu of the inspection fee as established by legislative rule.

(c) Each person holding a Commercial Feed Manufacturing Permit or a Commercial Feed Guarantor Permit, except those persons exclusively distributing or manufacturing pet food or specialty pet food, shall file a semiannual statement under oath before January 31 and July 31 of each year. The statement shall include the number of net tons of commercial feeds and feed ingredients manufactured or distributed in this state during the preceding six-month period.

(d) Each report shall be accompanied by an inspection fee at the rate established by legislative rule, including a minimum inspection fee, on commercial feed and feed ingredients.

Inspection fees which are due and payable and not remitted to the commissioner within 15 days following the due date shall be assessed a penalty of 10 percent of the amount due, except that semiannual reports with no fees due received 15 days after the due date shall be assessed a penalty in an amount established by legislative rule. The assessment of this penalty fee shall not prevent the commissioner from taking other actions as provided in this chapter.

(e) 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. The commissioner shall have the right to examine such records.

§19-14-10. Adulteration.

Commercial feed or feed ingredients is adulterated:

(1) If it bears or contains any poisonous or deleterious substance, which may render it injurious to health; unless the substance is not an added substance, in which case such commercial feed shall not be considered adulterated under this subsection if the quantity of such substance in such commercial feed does not ordinarily render it injurious to health;

(2) If it bears or contains any added poisonous, added deleterious, or added nonnutritive substance which is unsafe within the meaning of Section 406 of the Federal Food, Drug, and Cosmetic Act (other than one which is: (A) A pesticide chemical in or on a raw commodity; or (B) a food additive;

(3) If it is, or it bears or contains any food additive which is unsafe within the meaning of Section 409 of the Federal Food, Drug, and Cosmetic Act;

(4) If it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of Section 408(a) of the Federal Food, Drug, and Cosmetic Act: Provided, That where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under Section 408 of the Federal Food, Drug, and Cosmetic Act and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating, or milling, the residue of such pesticide chemical remaining in or such processed feed shall not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice and the concentration of such residue in the processed feed is not greater than the tolerance prescribed for the raw agricultural commodity unless the feeding of such processed feed will result or is likely to result in a pesticide residue in the edible product of the animal, which is unsafe within the meaning of Section 408(a) of the Federal Food, Drug, and Cosmetic Act;

(5) If it bears or contains any color additive which is unsafe within the meaning of Section 721 of the Federal Food, Drug, and Cosmetic Act;

(6) If it is, or it bears or contains, any new animal drug which is unsafe within the meaning of Section 512 of the Federal Food, Drug, and Cosmetic Act;

(7) If it consists, in whole or part, of any filth or decomposed substance, or if it is otherwise unfit for feed;

(8) If it has been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health;

(9) If it is, in whole or in part, the product of a diseased animal, or of an animal that has died other than by slaughter that is unsafe within the meaning of Section 401(a)(1) or (a)(2) of the Federal Food, Drug, and Cosmetic Act;

(10) If the container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;

(11) If it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with the regulation or exemption in effect pursuant to Section 409 of the Federal Food, Drug, and Cosmetic Act;

(12) If any valuable constituent has been, in whole or in part, omitted or abstracted therefrom or any less valuable substance substituted therefor;

(13) If its composition falls below or differs from that which it is purported or represented to possess by its labeling; or

(14) If it contains a drug, and the methods used in the facilities or controls used for its manufacture, processing, or packaging do not conform to current good manufacturing practice regulations promulgated by the commissioner to assure that the drug meets the requirements of this law as to safety and has the identity and strength and meets the quality and purity characteristics which it purports or is represented to possess.

§19-14-11. Misbranding.

Commercial feed shall be deemed to be misbranded:

(1) If its label or labeling is false or misleading;

(2) If it is not labeled as required by this article;

(3) 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;

(4) If it purports to be or is represented as a commercial feed, or if it purports to contain or is represented as containing a commercial feed ingredient that does not conform to the definition of identity prescribed by the commissioner by rules;

(5) If any damage or inferiority has been concealed; or

(6) If it is distributed under the name of another commercial feed.

§19-14-12. Embargoes; condemnation and confiscation; injunctions.

(a) Embargo orders.

(1) 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 or 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 lot in any manner until the embargo is released by the commissioner or by court order.

(2) 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 or she has a right to request an immediate hearing.

(3) The commissioner shall release the commercial feed lot so embargoed when said commercial feed has been brought into compliance with this article and its rules.

(4) 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.

(5) 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 90 days of the notice to the custodian.

(b) Condemnation and confiscation.

(1) 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.

(2) 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.

§19-14-13. Confidentiality of trade secrets.

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.

§19-14-14. Prohibited acts.

It shall be unlawful:

(a) To manufacture or distribute 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 pet foods or specialty pet foods.

(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.

(l) To distribute raw milk for use as commercial feed for any species, unless:

(1) It has been decharacterized using a sufficient quantity of food coloring as designated by the commissioner;

(2) It has been decharacterized using food coloring approved by the U.S. Food and Drug Administration, or in the case of raw milk labeled as organic, approved by the U.S. Department of Agriculture;

(3) It has been decharacterized and the nutritive value of the milk has not been adversely affected by the decharacterization;

(4) The packaging of the raw milk does not resemble that used for the packaging of milk for human consumption;

(5) It is not stored at retail with, or in the vicinity of, milk or milk products intended for human consumption; and

(6) It does not otherwise violate this section.

§19-14-15. Penalties.

(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 $100 nor more than $500 for the first offense, and for each subsequent offense, shall be fined not less than $500 nor more than $1,000, 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 $500 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 $1,000 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.

ARTICLE 15. WEST VIRGINIA FERTILIZER LAW.

§19-15-1. Definitions of words and terms.

(a) "Brand" means a term, design or trademark used in connection with one or several grades of regulated product.

(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.

§19-15-2. Registration.

(a) Any person or persons whose name appears upon the label of any regulated product as manufacturer or distributor shall obtain a permit to distribute in the state prior to distributing the regulated product. 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: Provided, That the commissioner shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

(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 June 30 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.

§19-15-3. Labels.

(a) Any regulated product distributed in this state in containers shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the information required by subdivisions (1), (2), (3), (4), (5) and (6), subsection (b), section two of this article. When compost is used as an ingredient, the label shall identify the source of the compost. A label may be in multiple languages, but one language must be English.

(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.

§19-15-4. Inspection fees.

(a) There shall be paid to the commissioner for all fertilizers distributed in this state an inspection fee established by legislative rule: Provided, That sales to manufacturers or exchanges between them are hereby exempted. Fees collected shall be used for the payment of the costs of inspection, sampling and analysis, and other expenses necessary for the administration of this article.

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 September 30, December 31, the thirty-first day of March and June 30, 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.

§19-15-5. Tonnage reports.

The person transacting, distributing or selling fertilizer to a nonregistrant shall furnish the commissioner a report showing the county of the consignee, the amounts (tons) of each grade of fertilizer, and the form in which the fertilizer was distributed (bags, bulk, liquid, etc.). This information shall be reported by one of the following methods: (a) Submitting a summary report approved by the commissioner on or before the fifteenth day of each month covering shipments made during the preceding month; or (b) by electronic transfer using the UFTRS system or other electronic system approved by the commissioner. No information furnished to the commissioner under this section may be disclosed in such a way as to divulge the operation of any person. The commissioner shall assess a late fee established by legislative rule against the registrant who is responsible for reporting if the monthly report is not filed by the due date.

§19-15-6. Inspection, sampling and analysis.

(a) It is the duty of the commissioner, who may act through his or her authorized agent, to sample, inspect, make analyses of, and test regulated products distributed within this state at any time and place and to such an extent as he or she may consider necessary to determine whether such regulated products are in compliance with the provisions of this article. The commissioner individually or through his or her agent is authorized to enter upon any public or private premises or carriers during operating hours in order to have access to regulated products subject to the provisions of this article and the rules pertaining thereto, and to the records relating to their distribution.

(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.

§19-15-7. Deficiencies.

(a) Penalty for nitrogen, available phosphate and soluble potash. -- If the analysis shall show that a fertilizer is deficient in one or more of its guaranteed primary plant nutrients (N-P-K) beyond the "investigational allowances" established by rule, or if the overall index value of the fertilizer is below the level established by rule, a penalty of three times the commercial value of such deficiency shall be assessed.

(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.

§19-15-8. Commercial value.

For the purpose of determining the commercial values to be applied under the provisions of section seven of this article, the commissioner shall determine and publish annually the values per unit of nitrogen, available phosphate and soluble potash in fertilizers in this state. The commissioner shall determine from the registrant's sales invoice the values charged for the soil amending ingredients. If no invoice is available or if the invoice fails to provide sufficient information the commissioner may use other methods to determine values. The value so determined and published shall be used in determining and assessing penalty payments.

§19-15-9. Misbranding.

No person shall distribute misbranded regulated products. A regulated product is considered to be misbranded:

(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).

§19-15-10. Adulteration.

No person may distribute an adulterated regulated product. A regulated product is considered to be adulterated:

(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.

§19-15-11. Publications.

The commissioner shall publish at least annually and in such forms as he or she may consider proper: (a) Information concerning the distribution of regulated products; and (b) results of analysis based on official samples of regulated products distributed within the state as compared with the analysis guaranteed under sections two and three of this article.

§19-15-12. Rules.

The commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. The commissioner may enforce such rules relating to investigational allowances, definitions, records, fees and the distribution of regulated products as may be necessary to carry into effect the full intent and meaning of this article, including protection of the environment.

§19-15-13. Short weight.

If any regulated product in the possession of the distributor or retailer is found by the commissioner to be short in weight, the registrant of the regulated product shall, within thirty days after official notice from the commissioner, pay to the consumer a penalty established by legislative rule.

§19-15-14. Cancellation of registrations.

The commissioner is authorized and empowered to cancel the registration of any brand of regulated product or to refuse to register any brand of regulated product upon satisfactory evidence that the registrant has used fraudulent or deceptive practices in evading or attempting to evade the provisions of this article or any rule promulgated thereunder: Provided, That no registration may be revoked or refused until the registrant is given the opportunity to appear for a hearing conducted by the commissioner.

§19-15-15. Embargo orders.

The commissioner may issue and enforce a written or printed embargo order requiring the owner or custodian of any lot of regulated product to hold it at a designated place, when the commissioner finds the regulated product is being offered or exposed for sale in violation of any of the provisions of this article, until the law has been complied with and the regulated product is released in writing by the commissioner, or until the violation has been otherwise legally disposed of by written authority. The commissioner shall release the regulated product embargoed when the requirements of the provisions of this article have been complied with and all costs and expenses incurred in connection with the embargo have been paid.

§19-15-16. Seizure, condemnation and sale.

Any lot of regulated product not in compliance with the provisions of this article is subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the county or judicial circuit where the product is located. In the event the court finds that the regulated product is in violation of this article and orders its condemnation, the product may be disposed of in any manner consistent with its quality and the laws of the state: Provided, That in no instance may the disposition of the regulated product be ordered by the court without first giving the claimant an opportunity to apply to the court for its release or for permission to process or relabel the regulated product to bring it into compliance with this article.

§19-15-16a. Local legislation prohibited.

No political subdivision may regulate the registration, packaging, labeling, sale, storage, distribution, use and application of fertilizers; and, in addition, no political subdivision may adopt or continue in effect local legislation relating to the registration, packaging, labeling, sale, storage, distribution, use or application of fertilizers.

Local legislation in violation of this section is void and unenforceable.

§19-15-17. Violations.

(a) If it appears from the examination of any regulated product that any of the provisions of this article or the rules issued thereunder have been violated, the commissioner shall cause notice of the violation to be given to the registrant, distributor or possessor from whom the sample was collected. Any person so notified shall be given an opportunity to be heard under legislative rules proposed and promulgated by the commissioner. If it appears after the hearing, either in the presence or absence of the person so notified, that any of the provisions of this article or rules issued thereunder have been violated, the commissioner may prosecute in any court of competent jurisdiction any person violating the provisions of this article.

(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 $100 nor more than $200 for the first offense and not less than $200 nor more than $500 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.

§19-15-18. Exchanges between manufacturers.

Nothing in this article may be construed to restrict or avoid sales or exchanges of regulated products between importers, manufacturers or manipulators who mix regulated materials for sale, or to prevent the free and unrestricted shipment of regulated products to manufacturers or manipulators who have registered their brands as required by the provisions of this article.

§19-15-19. Expenditure of registration, inspection and penalty fees.

All registration, inspection and such penalty fees not paid to the consumer shall be deposited in a special account with the state Treasurer and shall be expended on order of the commissioner.

§19-15-20. Constitutionality.

If any clause, sentence, paragraph or part of this article shall for any reason be judged invalid by any court of competent jurisdiction, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy in which such judgment shall have been rendered.

§19-15-21. Repeal.

All laws and parts of laws in conflict with or inconsistent with the provisions of this article are hereby repealed.

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 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.

§19-15A-2. Registration of brands; registration fees.

(a) Agricultural liming material 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 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.

§19-15A-3. Required labeling; toxic materials prohibited.

(a) A person 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.

(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.

§19-15A-4. Inspection fee; report of tonnage; annual report.

(a) Each sales invoice prepared in normal course of business by either a registrant or distributor shall reflect the amount of the inspection fee and the name of the payor.

(b) Within thirty days following June 30 and December 31, 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.

§19-15A-5. Inspection; sampling; analysis.

(a) The commissioner shall audit, inspect, sample, analyze and test agricultural liming materials used, sold or offered for sale within the state as he or she considers necessary to determine whether the agricultural liming materials are in compliance with the provisions of this article. For this purpose the commissioner 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.

(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.

§19-15A-6. Embargo; suspension or cancellation of registration; seizure of materials.

(a) The commissioner may suspend or cancel the registration of any brand of agricultural liming material and 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 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 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.

§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) 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.

§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 related rule shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $200 nor more than $300 for the first offense and not less than $300 nor more than $1,000 for each subsequent offense.

ARTICLE 16. WEST VIRGINIA SEED LAW.

§19-16-1. Definitions.

“Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this article.

“Agricultural seed” includes forage seeds (grasses and legumes), tobacco, soybeans, cereal, oil, fiber, and other kinds of crop seeds commonly recognized within this state as agricultural seeds, lawn and turf seeds, and combinations of those seeds, and may include noxious weed seeds when the commissioner determines that the seed is being used as agricultural seed.

“Blend” means seed consisting of more than one variety of a kind, each in excess of five percent by weight of the whole.

“Brand” means word/words, name, symbol, number, mark, design, unique design, or any combination which identifies seed of one entity from seed of another.

“Bulk” means seed when loose in vehicles of transportation or in storage, or in retail displays and not in seed bags or other containers.

“Certifying agency” means: (1) An agency authorized under the laws of a state, territory, or possession to officially certify seed and which has standards and procedures approved by the United States Secretary of Agriculture to assure the genetic purity and identity of the seed certified; or (2) an agency of a foreign country determined by the United States Secretary of Agriculture to adhere to procedures and standards for seed certification comparable to those adhered to generally by seed certifying agencies under subdivision (1) of this subsection.

“Coated” means a seed unit covered with any substance which changes the size, shape, or weight of original seed. Seeds coated with ingredients such as, but not limited to, rhizobia, dyes, and pesticides are not considered coated seeds.

“Commissioner” refers to the Commissioner of Agriculture of the State of West Virginia or a duly authorized employee.

“Complete record” means any and all information which relates to the origin, treatment, germination, purity, kind, and variety of each lot of agricultural seed sold in this state, or which relates to the treatment, germination, kind, and variety of each lot of vegetable, or tree and shrub seed sold in this state. The information shall include seed samples and records of declarations, labels, purchases, sales, conditioning, bulking, treatment, handling, storage, analyses, tests, and examinations.

“Conditioning” means drying, cleaning, scarifying, and other operations which may change the purity or germination of the seed and require the seed lot to be retested to determine the label information.

“Dealer” means any person who exclusively sells, exposes for sale, offers for sale, exchanges, or barters seed for sowing purposes within this state to the ultimate consumer.

“Distinct” means that the variety can be differentiated by one or more identifiable morphological, physiological, or other characteristics from all other varieties of public knowledge.

“Distribute” means to offer for sale, sell, expose for sale, exchange, or barter seed for sowing purposes within the state.

“Distributor” means any person who sells, exposes for sale, offers for sale, exchanges, barters, gives, parcels out, allots, shares, or dispenses a seed for sowing purposes within the state.

“Dormant” means viable seed, excluding hard seed, which fails to germinate when provided the specified germination conditions for the kind of seed in question.

“Flower seeds” includes seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts, and commonly known and sold under the name of flower or wildflower seeds in this state.

“Genuine growers declaration” means a statement signed by the grower which gives for each lot of seed the lot number, kind, variety (if known), origin, weight, year of production, date of shipment, and to whom the shipment was made.

“Germination” means the emergence and development from the seed embryo of those essential structures which, for the kind of seed in question, are indicative of the ability to produce a normal plant under favorable conditions.

“Hard seeds” means seeds which remain hard at the end of the prescribed test period because they have not absorbed water due to an impermeable seed coat.

“Hermetically sealed” means a container that is designed and intended to be secure against the entry of microorganisms and thereby to maintain the commercial sterility of its contents after processing.

“Hybrid” means the first generation seed of a cross produced by controlling the pollination and by combining: (1) Two or more inbred lines; (2) one inbred or a single cross with an open-pollinated variety; or (3) two varieties or species, except open-pollinated varieties of corn (Zea mays). The second generation of subsequent generations from the crosses shall not be regarded as hybrids. Hybrid designations shall be treated as variety names.

“Inert matter” means all matter not seed, which includes, but is not limited to, broken seeds, sterile florets, chaff, fungus bodies, and stones, as determined by methods defined by rule.

“Introduced wildflower” means kinds, or the types and varieties derived from those kinds that are not indigenous to North America.

“Kind” means one or more related species or subspecies which singly or collectively is known by one common name, for example, corn, oats, alfalfa, and timothy.

“Labeling” includes a tag or other device attached to or written, stamped, or printed on any container or accompanying any lot of bulk seeds purporting to set forth the information required on the seed label by this act, and it may include any other information relating to the labeled seed.

“Lot” means a definite quantity of seed identified by a lot number, code number, or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear on the label.

“Mixture”, “mix”, or “mixed” means seed consisting of more than one kind or variety, each present in excess of five percent by weight of the whole. A mixture of varieties of a single kind may be labeled as a blend.

“Mulch” means a protective covering of any suitable substance placed with seed which acts to retain sufficient moisture to support seed germination and sustain early seedling growth, and aid in the prevention of the evaporation of soil moisture, the control of weeds, and the prevention of erosion.

“Native wildflower” means kinds or the types and varieties derived from those kinds that are indigenous to North America.

“Noxious weed seeds” includes prohibited noxious weed seeds, restricted noxious weed seeds, and undesirable grass seed.

“Off type” means any seed or plant not a part of the variety in that it deviates in one or more characteristics from the variety as described and may include: A seed or plant of another variety; a seed or plant not necessarily any variety; a seed or plant resulting from cross-pollination by another kind or variety; a seed or plant resulting from uncontrolled self-pollination during production of hybrid seed; or segregates from any of the off types set forth in this subsection.

“Official sample” means any sample of seed taken by the commissioner in accordance with the provisions of this article and rules promulgated under this article.

“Origin”, for an indigenous stand of trees, means the area on which the trees are growing; for a nonindigenous stand, it is the place from which the seeds or plants were originally introduced.

“Other crop seed” means seed of plants grown as crops (other than the kind or variety included in the pure seed) as determined by methods defined by rule.

“Person” means an individual, partnership, corporation, company, association, receiver, trustee, agent, fiduciary, firm, or any group of organized persons, whether incorporated or not.

“Prohibited noxious weed seeds” means those weed seeds which are prohibited from being present in agricultural, vegetable, or tree and shrub seed, and are the seeds of weeds which are highly destructive and difficult to control by good cultural practices and the use of herbicides.

“Pure live seed” means the product of the percent of germination, plus hard or dormant seed, multiplied by the percent of pure seed divided by 100, where the result is expressed as a whole number.

“Pure seed” means seed exclusive of inert matter and all other seeds not of the seed being considered as determined by methods defined by rule.

“Purity” means the name or names of the kind, type, or variety and the percentage or percentages thereof; the percentage of other agricultural seed or crop seed; the percentage of weed seeds, including noxious weed seeds; the percentage of inert matter; and the names of the noxious weed seeds and the rate of occurrence of each.

“Registrant” means any person who registers as a seedsman in order to distribute seed for sowing purposes within the state.

“Restricted noxious weed seeds” means those weed seeds which are objectionable in agricultural crops, lawns, and gardens of this state, but which can be controlled by good cultural practices or the use of herbicides.

“Seed potato” refers to vegetatively propagated tubers used or intended to be used for potato production which must grade equal to or better than the minimum requirements of U.S. No. 1, from the standpoint of physical defects, size, or disease, and must be certified by an official certifying agency.

“Sell-by date” means the last date that the seed may legally be sold in the state.

“Seizure” means a legal process carried out by court order against a definite amount of seed.

“Stable” means that the variety will remain unchanged in its essential and distinctive characteristics and its uniformity when reproduced or reconstituted as required by the different categories of varieties.

“Stop sale or embargo” means an administrative order, provided by this article, restraining the sale, use, disposition, and movement of a definite amount of seed.

“Test date” means the month and year in which the germination test was completed.

“Total viable” means the sum of percentage germination plus dormant plus hard seeds.

“Treated” means that the seed has received an application of a substance, or that it has been subjected to a process for which a claim is made. For label, shall be the commonly accepted coined, chemical (generic), biological, or abbreviated chemical name.

“Tree and shrub seeds” includes seeds of woody plants commonly known and sold as tree and shrub seeds in this state.

“Tree seed collector’s declaration” means a statement, signed by a grower or person having knowledge of the place of collection, giving, for a lot of seed, the lot number, common or scientific name of the species (and subspecies, if appropriate), origin, elevation, and quantity of tree and shrub seed.

“Type” means a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated, except under special conditions.

“Undesirable grass seeds” means seeds of grass species declared to be restricted noxious weed seed when found in lawn and turf seed.

“Uniform” means that the variations in essential and distinctive characteristics are describable.

“Variant” means any seed or plant which: (1) Is distinct within the variety but occurs naturally in the variety; (2) is stable and predictable with a degree of reliability comparable to other varieties of the same kind, within recognized tolerances, when the variety is reproduced or reconstituted; and (3) was originally a part of the variety as released. A variant is not an off-type.

“Variety” means a subdivision of a kind which is distinct, uniform, and stable.

“Vegetable or herb seeds” includes the seeds of those crops which are grown in gardens or on truck farms and are generally known and sold under the name of vegetable or herb seeds in this state.

“Weed seed” means the seeds of all plants generally recognized as weeds within this state, as determined by methods defined by rule, and includes the categories of prohibited noxious weed seeds and restricted noxious weed seeds.

§19-16-2. Label requirements for agricultural crops, lawn and turf, vegetable, tree and shrub, flower seeds, and seed potatoes.

(a) Each container of agricultural, vegetable, or flower seeds which is distributed or transported within this state for sowing purposes shall bear on the container, or have attached to the container in a conspicuous place, a plainly written or printed label or tag in the English language.

(b) For all treated agricultural, vegetable, or flower seeds (for which a separate label may be used) the label shall include the following:

(1) A word or statement indicating that the seed has been treated;

(2) The commonly accepted coined, chemical, biological, or abbreviated chemical (generic) name of the applied substance or description of the process used;

(3) A caution statement, such as “do not use for food, feed, or oil purposes”, if the substance in the amount present with the seed is harmful to humans or other vertebrate animals. The caution for toxic substances shall be a poison statement or symbol, or both a poison statement and symbol; and

(4) The date beyond which the inoculant is not to be considered effective (date of expiration), if the seed is treated with an inoculant.

(c) For agricultural seeds, except for grass seed mixtures, seed sold on a pure live seed basis, or for hybrids which contain less than 95 percent hybrid seed, the label shall include the following:

(1) The commonly accepted name of the kind and variety for each agricultural seed component present in excess of five percent of the whole and the percentage by weight of each in order of its predominance. Hybrids shall be labeled as hybrids;

(2) The lot number or other lot identification;

(3) The origin (state or foreign country), if known, of alfalfa, red clover, and field corn (except hybrid corn). If the origin is unknown, that fact shall be stated;

(4) The percentage by weight of all weed seeds;

(5) The name and rate of occurrence per pound or ounce of each kind of restricted noxious weed seed or undesirable grass seed present. The name and approximate number of each kind of noxious weed seed: (A) Per ounce in Agrostis spp., Poa spp., Rhodes grass, Bermuda grass, timothy, orchard grass, fescues, alsike and white clover, reed canary grass, Dallas grass, ryegrass, foxtail millet, alfalfa, red clover, sweet clovers, lespedezas, smooth brome, crimson clover, Brassica spp., flax, Agropyron spp., and other agricultural seeds of similar size and weight, or mixtures within this group; and (B) per pound in Sudan grass, wheat, oats, rye, barley, buckwheat, sorghums, vetches, and other agricultural seeds of a size and weight similar to or greater than those within this group, or any mixtures within this group;

(6) The percentage by weight of agricultural seeds (which may be designated as “crop seeds”) other than those required to be named on the label;

(7) The percentage by weight of inert matter;

(8) For each named agricultural seed:

(A) The percentage of germination, exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages; and

(D) If the registrant chooses, the “total germination and hard seed”;

(9) The name and address of the person who labeled the seed, or who distributes the seed within this state; and

(10) The total of subdivisions (1), (4), (6), and (7) of this subsection must equal 100 percent.

(d) For grass seed mixtures for lawn or turf purposes the label shall include the following:

(1) The word “mixed”, “mixture”, or “blend” with the name of the mixture or blend;

(2) The heading “Pure Seed” and “Germination”, or “Germ” in the proper places;

(3) The commonly accepted name of kind, or kind and variety of each agricultural seed component in excess of five percent of the whole, and the percentage by weight of pure seed in order of its predominance and in columnar form;

(4) The percentage by weight of agricultural seed other than those required to be named on the label (which shall be designated as “crop seed”);

(5) The percentage by weight of inert matter not to exceed 10 percent by weight, except that 15 percent inert matter is permitted in Kentucky Bluegrass labeled without a variety name. Except for coating material, fertilizer, and mulch, as provided by subdivision three, subsection (e) of this section, foreign material not common to grass seed shall not be added;

(6) The percentage by weight of all weed seeds. Maximum weed seed content may not exceed one half of one percent by weight;

(7) Noxious weed seeds and undesirable grass seed that are required to be labeled by rule and listed under the heading “Noxious Weed Seeds” or “Undesirable Grass Seed”. Undesirable grass seed may not exceed 0.5 percent by weight;

(8) For each agricultural seed named under subdivision (3) of this subsection:

(A) The percentage of germination, exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages. The most recent available chronological test date shall be used; and

(D) When only one test date is listed for the entire mixture, the listed test date shall be the oldest chronological test date of the components;

(9) The name and address of the person who labeled the seed, or who distributes the seed within the state.

(10) The total of subdivisions (3), (4), (5), and (6) of this subsection must total 100 percent.

(e) For agricultural seeds that are coated, the label shall include the following:

(1) The percentage by weight of pure seeds with coating material removed;

(2) The percentage by weight of coating material;

(3) The percentage by weight of inert material exclusive of coating material;

(4) Percentage of germination, to be determined on 400 pellets with or without seeds; and

(5) In addition to the provisions of this subsection, the labeling of coated seed shall comply with the requirements of subsections (b), (c), and (d) of this section.

(f) For vegetable seeds in packets as prepared for use in home gardens or household plantings; or in preplanted containers, mats, tapes, or other planting devices, the label shall include the following:

(1) The name of kind and variety of seed;

(2) The lot number or other lot identification;

(3) One of the following:

(A) The calendar month and year the germination test was completed and the statement “Sell by”, which date may be no more than 12 months from the date of the test, exclusive of the month of the test;

(B) The year for which the seed was packed for sale, noted by the statement “Packed for” or “Sell by” which blank shall be filled by the calendar year; or

(C) The percentage germination and the calendar month and year the test was completed to determine such percentage, provided that the germination test must have been completed within 12 months exclusive of the month of the test; and

(4) The name and address of the person who labeled the seed or who distributes the seed for sale within this state.

(g) For seeds which germinate less than the standard as established by rule promulgated under this article, the label shall include the following:

(1) The percentage of germination, exclusive of hard seed;

(2) The percentage of hard seed, if present; and

(3) The words “Germination Below Standard” in not less than eight-point type.

(h) For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to include the minimum number of seeds in the container.

(i) For vegetable seeds in containers other than packets prepared for use in home gardens or household plantings, and other than preplanted containers, mats, tapes, or other planting devices, the label shall include the following:

(1) The name of each kind and variety present in excess of five percent and the percentage by weight of each in order of its predominance;

(2) The lot number or other lot identification;

(3) For each named vegetable seed:

(A) The percentage germination exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages; and

(D) If the registrant chooses, the “total germination and hard seed”;

(4) The name and address of the person who labeled the seed, or who distributes the seed within this state.

(j) For flower seeds in packets prepared for use in home gardens or household plantings or flower seeds in preplanted containers, mats, tapes, or other planting devices:

(1) For all kinds of flower seeds:

(A) The name of the kind and variety, or a statement of type and performance characteristics as prescribed in the rules and regulations promulgated under the provisions of this article;

(B) One of the following:

(i) The calendar month and year the germination test was completed and the statement “Sell by”, which date may be no more than 12 months from the date of the test, exclusive of the month of the test;

(ii) The year for which the seed was packed for sale, noted by the statement “Packed for” or “Sell by”, which blank shall be filled by the calendar year; or

(iii) The percentage germination and the calendar month and year the test was completed to determine such percentage, provided that the germination test must have been completed within 12 months exclusive of the month of the test; and

(C) The name and address of the person who labeled said seed, or who sells, offers, or exposes said seed for sale within this state.

(2) For seeds of those kinds for which standard testing procedures are prescribed and which germinate less than the germination standard last established under the provisions of this article:

(A) The percentage of germination exclusive of hard seeds;

(B) The percentage of hard or dormant seed, if present; and

(C) The words “Below Standard”, in not less than eight-point type.

(3) For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.

(k) For flower seeds in containers other than those contained in subsection (j) of this section:

(1) The name of the kind and variety or a statement of type and performance characteristics as prescribed in rules and regulations promulgated under the provisions of this article, and for wildflowers, the genus, species, and subspecies, if appropriate.

(2) The lot number or other lot identification.

(3) For wildflower seed only with a pure seed percentage of less than 90 percent:

(A) The percentage by weight of each component listed in order of their predominance;

(B) The percentage by weight of weed seed, if present; and

(C) The percentage by weight of inert matter.

(4) For those kinds of seed for which standard testing procedures are prescribed:

(A) The percentage germination exclusive of hard or dormant seed;

(B) The percentage of hard or dormant seed, if present; and

(C) The calendar month and year that the test was completed to determine such percentages.

(5) For those kinds of seed for which standard testing procedures are not available, the year of production or collection.

(6) The name and address of the person who labeled the seed or who sells, offers, or exposes the seed for sale within this state.

(l) For agricultural seeds sold on a pure live seed basis in accordance with the rules promulgated pursuant to this article, each container must bear a label containing the information required by subsection (c) of this section, except that:

(1) The label need not show:

(A) The percentage by weight of each agricultural seed component, as required by subdivision (1), subsection (c) of this section; or

(B) The percentage by weight of inert matter, as required by subdivision (7), subsection (c) of this section; and

(2) The label must show for each named agricultural seed, instead of the information required by subdivision (8), section (c) of this section:

(A) The percentage of pure live seed determined in accordance with rules; and

(B) The calendar month and year in which the test determining the percentage of live seed was completed.

(m) For agricultural and vegetable hybrid seed which contain less than 95 percent hybrid seed, the label shall include the following:

(1) The kind or variety which must be labeled as “hybrid”;

(2) The percent which is hybrid, labeled parenthetically in direct association following named variety, such as, Comet (85 percent Hybrid); and

(3) Varieties in which the pure seed contain less than 75 percent hybrid seed which shall not be labeled as hybrids.

(n) For combination mulch, seed, and fertilizer products the label shall include the following:

(1) The word “combination” followed by the words “mulch — seed — fertilizer (if appropriate)” on the upper 30 percent of the principal display panel. The word “combination” must be the largest and most conspicuous type on the container, equal to or larger than the product name. The words “mulch — seed — fertilizer” shall be no smaller than one-half the size of the word “combination” and in close proximity to the word “combination”. These products shall contain a minimum of 70 percent mulch; and

(2) For agricultural, lawn, and turf seeds placed in a germination medium, mat, tape, or other device or mixed with mulch:

(A) The product name;

(B) The lot number;

(C) The percentage by weight of pure seed of each kind and variety named which may be less than five percent of the whole;

(D) The percentage by weight of other crop seeds;

(E) The percentage by weight of inert matter which shall not be less than 70 percent;

(F) The percentage by weight of weed seeds;

(G) The name and number of noxious weed seeds per pound or ounce, if present;

(H) The percentage of germination (and hard seed if appropriate) of each kind or kind and variety named and date of test;

(I) The name and address of the person who labeled the seed, or who distributes the seed within this state; and

(J) The totals of paragraphs (C), (D), (E), and (F) of this subdivision must total 100 percent.

(o) The labeling requirements for agricultural, vegetable, and flower seeds shall be considered to have been met if the seed is weighed from a properly labeled bulk container in the presence of the purchaser.

(p) Once a dealer has broken the seal on a container of seed for any reason, the dealer is fully responsible for its contents, including the guarantees for purity, germination rate, and anything else pertaining to the integrity of the opened seed container.

(q) For combination products containing seed and granular fertilizer:

(1) The word “combination” followed by the words “seed-fertilizer” must appear on the upper 30 percent of the principal display panel. The word “combination” must be the largest and most conspicuous type on the container, equal to or larger than the product name. The word “seed-fertilizer” shall be no smaller than one-half the size of the word “combination” and in close proximity to the word “combination”.

(2) On the analysis label, the percentage by weight of the fertilizer in the container shall be listed on a separate line as a component of the inert matter.

(r) Label requirements for tree and shrub seeds:

Each container of tree and shrub seed which is distributed or transported within this state for sowing purposes shall bear on the container or have attached on the container in a conspicuous place a plainly written or printed statement on the label or tag in the English language, giving the information required under this subsection. The statement may not be modified or denied in the labeling or on another label attached to the container — except that labeling of seed supplied under a contractual agreement may be by invoice accompanying the shipment or by an analysis tag attached to the invoice, if each bag or other container is clearly identified by a lot number stenciled on the container, or if the seed is in bulk. Each bag or container that is not identified shall carry complete labeling.

(1) For all treated tree and shrub seeds as defined in this article (for which a separate label may be used):

(A) A word or statement indicating that the seed has been treated;

(B) The commonly accepted coined, chemical, biological, or abbreviated chemical (generic) name of the applied substance or description of the process used;

(C) A caution statement, such as “Do not use for food, feed or oil purposes”, if the substance in the amount present with the seed may be harmful to humans or other vertebrate animals. The caution for mercurials and similarly toxic substances shall be a poison statement and symbol; and

(D) The date beyond which the inoculant is not to be considered effective (date of expiration), if the seed has been treated with an inoculant;

(2) For all tree and shrub seeds subject to the article:

(A) The common name of the species of seed (and subspecies, if appropriate);

(B) The scientific name of the genus and species (and subspecies, if appropriate);

(C) The lot number or other lot identification; and

(D) Their origin:

(i) For seed collected from a predominantly indigenous stand, the area of collection given by latitude and longitude, or geographic description, or political subdivision such as state or county;

(ii) For seed collected from other than a predominantly indigenous stand, the area of collection and the origin of the stand or the statement “Origin not Indigenous”;

(E) The elevation or the upper and lower limits of elevations within which the seed was collected;

(F) The purity as a percentage of pure seed by weight;

(G) For those species for which standard germination testing procedures are prescribed by the commissioner, the following:

(i) Percentage germination exclusive of hard seed;

(ii) Percentage of hard seed, if present;

(iii) The calendar month and year test was completed to determine such percentages; or

(iv) In lieu of subparagraphs (i), (ii), and (iii) of this paragraph, the seed may be labeled “Test is in process, results will be supplied upon request”;

(H) For those species for which standard germination testing procedures have not been prescribed by the commissioner, the calendar year in which the seed was collected;

(I) The name and address of the person who labeled the seed or who distributes the seed within this state.

(s) Label requirements for seed potatoes:

The following information shall appear on each label attached to a bag or container of certified seed potato:

(A) The name of the person or agency certifying such seed potato;

(B) The name of the official state or governmental agency making the inspection upon which the certification is made; and

(C) The name and address or identification number of the grower of such seed potatoes.

(t) Required labeling for interstate shipping. – The full name and address of the interstate shipper shall appear upon the label. If the name and address of the interstate shipper are not shown upon the label, an AMS number identifying the interstate shipper shall be shown, along with the full name and address of the consignee.

§19-16-3. Certificate of registration; seed fees; payment of fees; disposition of funds.

(a) No person may distribute any agricultural, vegetable, tree and shrub, or flower seeds, or seed potatoes without a valid certificate of registration issued by the commissioner. Application forms shall be provided by the commissioner and the application fee shall be set forth in a legislative rule. Each certificate of registration expires on December 31 following the next date of issue. A dealer may not be required to register, if he or she can prove that the person he or she is obtaining the seed from has a valid certificate of registration.

(b) A person shall apply for a certificate of registration at least 15 days prior to the expiration of the current registration; or at least 15 days prior to the date that the person intends to engage in business in this state. Each application shall be accompanied by the required application fee. The commissioner shall add a penalty to the fee for each registration, as set forth in legislative rules, that is not applied for or renewed within the time limit.

(c) Certificates of registration are not transferable with respect to persons or locations.

(d) The commissioner may refuse to grant, or may suspend or revoke, a certificate of registration when it is determined that the applicant or registrant has violated the provisions of this article or any rule promulgated under this article: Provided, That the applicant or registrant may request a hearing prior to the denial of the application or suspension or revocation of the registration.

(e) Each person who holds a valid certificate of registration is required to pay a tonnage fee on seed sold in this state and shall report to the commissioner the net pounds or kilograms of seeds distributed and sold by kind or variety, except for seed potatoes, on a quarterly basis. Each report shall be filed under oath and is due before the last day of January, April, July, and October of each year for the preceding three-month period. He or she shall pay the tonnage fee according to the fee schedule for agriculture, vegetable, tree and shrub, and flower seeds as set by legislative rules. The commissioner may add a penalty, as set forth in legislative rules, to the tonnage fee for each tonnage report that is not filed on time.

(f) Persons distributing vegetable and flower seeds packaged in containers of eight ounces or 226.8 grams or less and sold from display units are exempt from reporting poundage and paying a poundage fee: Provided, That a seed stamp be purchased from the commissioner, at the rate set by legislative rules, and placed in a conspicuous place on each display unit.

(g) Persons first distributing seed potatoes into West Virginia trade channels shall report to the commissioner the net pounds or kilograms of seed potatoes distributed monthly in arrears: Provided, That payments for the previous month shall be made not later than the 15th day of the following month, as set by legislative rules.

(h) A person who holds a valid certificate of registration shall keep accurate records, as may be necessary or required by the commissioner, to indicate the pounds of agricultural, vegetable, tree and shrub, or flower seeds, or seed potatoes distributed in this state.

(i) All fees and penalties collected under the provisions of this article shall be deposited with the State Treasurer in a special revenue account. These moneys shall be expended by the Commissioner of Agriculture for inspection, sampling, analysis, and other expenses necessary for the administration of this article.

§19-16-4. Prohibitions.

(a) It is unlawful for any person to distribute or transport for sale any agricultural, vegetable, tree and shrub, or flower seeds, or seed potatoes within this state:

(1) Which have not been tested to determine germination rates as required under §19-16-2 of this code;

(2) Which is not labeled in accordance with the provisions of this article or has false or misleading labeling;

(3) Which has been the subject of false or misleading advertisement;

(4) Which consists of or contains prohibited noxious weed seeds, subject to tolerances and methods of determination as prescribed by rules promulgated under this article;

(5) Which consists of or contains restricted noxious weed seeds per pound or ounce in excess of the number prescribed by rules promulgated under this article, or in excess of the number declared on the label attached to the container of the seed or associated with seed;

(6) Which contains more than two and one-half percent by weight of all weed seeds;

(7) If any labeling, advertising, or other representation subject to this article represents the seed to be certified seed or any class thereof unless:

(A) It has been determined by a seed certifying agency that the seed conformed to standards of purity and identity as to kind, species (and subspecies, if appropriate), or variety, and also that tree seed was found to be of the origin and elevation claimed, in compliance with the rules of that agency pertaining to the seed; and

(B) That the seed bears an official label issued for that seed by a seed certifying agency certifying that the seed is of a specified class and a specified kind, species (and subspecies, if appropriate), or variety;

(8) Labeled with a variety name but not certified by an official seed certifying agency when it is a variety for which a U. S. certificate of plant variety protection under the Plant Variety Protection Act specifies sale only as a class of certified seed: Provided, That seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety.

(b) It is unlawful for any person within this state:

(1) To detach, alter, deface, or destroy any label provided for in this article or the rules promulgated under this article, or to alter or substitute seed in a manner that may defeat the purpose of this article;

(2) To use relabeling stickers without having both the calendar month and year the germination test was completed, the sell-by date, and the lot number that matches the existing, original lot number: Provided, That relabeling may not occur more than one time;

(3) To disseminate any false or misleading advertisement concerning seeds subject to this article in any manner or by any means;

(4) To interfere with the commissioner’s official duties;

(5) To fail to comply with a “stop sale or embargo” order or to move or otherwise handle or dispose of any lot of seed held under a “stop sale or embargo” order or tags attached to the lot of seed, unless released by the commissioner, and for the purpose specified by the commissioner;

(6) To use the word “trace” or the phrase “contains < 0.01 percent” as a substitute for any statement which is required;

(7) To use the word “type” in any labeling in connection with the name of any agricultural seed variety;

(8) To distribute or knowingly use any agricultural, vegetable, tree and shrub, or flower seed that is misbranded;

(9) To misbrand any agricultural, vegetable, tree and shrub, or flower seed or seed potato. An agricultural, vegetable, flower, or tree and shrub seed, or seed potato is misbranded:

(A) If its label or labeling is false or misleading;

(B) If it is not labeled as required by this article;

(C) If any word, statement or other information required by this article to appear on the label is not prominently and conspicuously placed so that it can be read and understood by the ordinary individual under customary conditions of purchase and use; and

(D) If any damage or inferiority has been concealed;

(10) To distribute or knowingly use any agricultural, vegetable, or tree and shrub seed or seed potato that has not had an accurate statement of poundage reported to the commissioner in the previous reporting period;

(11) To use or imply the name West Virginia Department of Agriculture, or reference any inspection or sample findings made by the West Virginia Department of Agriculture on labels or labeling of agricultural, vegetable, flower, or tree and shrub seed, or seed potatoes; or

(12) To falsify any laboratory reports regarding seed distributed within this state.

§19-16-4a. Local laws prohibited.

(a) No political subdivision may regulate the registration, packaging, labeling, sale, storage, distribution, transportation or any other use of seeds.

(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.

§19-16-5. Exemptions.

(a) The provisions of §19-16-2, §19-16-3, §19-16-4, and §19-16-8 of this code do not apply:

(1) To seed or grain not intended for sowing purposes;

(2) To seed in storage, or seed being transported or consigned to a cleaning or conditioning establishment for cleaning or conditioning: Provided, That the invoice, label or labeling accompanying any shipment of the seed bears the statement “seeds for conditioning”; and that any label or labeling or other representation which may be made with respect to the uncleaned or unconditioned seed is subject to this article; or

(3) To any carrier in respect to any seed transported or delivered for transportation in the ordinary course of its business as a carrier: Provided, That the carrier is not engaged in producing, conditioning, or marketing seeds subject to the provisions of this article.

(b) No person is subject to the penalties of this article for having sold or offered for sale seeds subject to provisions of this article which were incorrectly labeled or represented as to kind, species (and subspecies, if appropriate), variety, type, or origin, elevation, and year of collection (if required), which cannot be identified by examination, unless he or she has failed to obtain an invoice, genuine grower’s or tree seed collector’s declaration, or other labeling information and to take such other precautions as may be reasonable to ensure the identity to be that which is stated. A genuine grower’s declaration of variety shall affirm that the grower holds records of proof concerning parent seed, such as invoice and labels.

(c) The provisions of §19-16-2 and §19-16-3 of this code do not apply to tree seed produced by the consumer.

§19-16-5a. Label, signage, and other requirements for noncommercial seed sharing.

(a) Each container of agricultural, vegetable, and flower seeds distributed for sowing purposes in a noncommercial setting shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, conveying the following information:

(1) The name of the species or commonly accepted name of kind, or kind and variety of each agricultural seed component present. Hybrids shall be labeled as hybrids;

(2) A word or statement indicating if the seed has been treated and, if treated, must be labeled in accordance with applicable state and federal laws;

(3) Some form of reference identification that provides traceability. Retention of posterity file samples are not required;

(4) Name and city or address of the noncommercial seed sharing entity; and

(5) The calendar month and year the seed was donated.

(b) The seed shall be free of foreign material, other than coatings or treatments, including germination medium, mulch, fertilizer, preplanted containers, mats, tapes, or other planting devices.

(c) No distributed container shall hold more than eight ounces of agricultural seed or four ounces of vegetable or flower seed.

(d) Germination and purity analysis is not required, however if a germination or purity percentage is noted on the label, it must be noted whether or not the analysis was performed according to the AOSA rules for testing seed.

(e) At each location involved with noncommercial seed sharing a legible and visible sign shall state that the seeds being distributed may not meet germination or varietal purity standards prescribed by the state seed law. The sign must also state that patented seed or varieties protected by the Plant Variety Protection Act will not be accepted or distributed without permission of the certificate holder.

§19-16-6. Duties and authority of Commissioner of Agriculture.

The commissioner may:

(a) Establish by legislative rule germination standards for agricultural, vegetable, tree and shrub, or flower seeds;

(b) Enter and inspect, during reasonable hours, any location where agricultural, vegetable, tree and shrub, or flower seeds, or seed potatoes for sowing purposes are manufactured, distributed, transported, or used, and where records relating to the manufacture, distribution, shipment, labeling, or sale of seed are kept. This inspection shall include, but is not limited to, examining, photographing, verifying, copying, and auditing records as is necessary to determine compliance with this article, labels, consumer complaints, and papers relating to the manufacturing, distribution, sampling, testing, and sale of agricultural, vegetable, tree and shrub seeds or seed potatoes;

(c) Open, examine, sample, and test agricultural, vegetable, tree and shrub, or flower seed, or seed potatoes, equipment, containers, transport containers, and packages used or intended to be used in the manufacture and distribution of seeds used for sowing purposes;

(d) Issue certificates of registration pursuant to this article;

(e) Refuse applications for registration, or suspend or revoke registrations as provided in this article;

(f) Issue “stop sale or embargo” orders as provided in this article;

(g) Condemn and confiscate any agricultural, vegetable, tree and shrub, or flower seed, or seed potato that is not brought into compliance with this article;

(h) Collect fees and penalties and expend moneys under the terms of this article;

(i) Conduct sampling in accordance with the official methods as established by the Association of American Seed Control Officials, the United States Department of Agriculture, or the Association of Official Seed Analysts;

(j) Conduct hearings as provided by this article;

(k) Assess civil penalties and refer violations to a court of competent jurisdiction;

(l) Obtain court orders directing any person refusing to submit to inspection, sampling and auditing to submit;

(m) Establish and maintain seed testing facilities; establish reasonable fees for the tests; incur expenses; and conduct tests in accordance with the Association of Official Seed Analysts;

(n) Be guided by the analytical results of the official sample when determining whether the agricultural, vegetable, tree and shrub, or flower seed is deficient in any component;

(o) Report the analytical results on all official deficient samples to the registrant, dealer, purchaser if known and or the distributor;

(p) Upon request made within 30 days from the date the official sample results are reported, furnish a portion of the official sample to the registrant;

(q) Publish and distribute annually a composite report containing: (1) The sales of agricultural, vegetable, tree and shrub, or flower seed, and seed potatoes during the preceding period; (2) the results of analysis of official samples as compared with the guarantee on the label; (3) the firms responsible for the product; and (4) such other data the commissioner considers necessary: Provided, That the information on production and use provided does not disclose the operations of any person;

(r) 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;

(s) Establish fees by legislative rule;

(t) Propose rules for promulgation, in accordance with §29A-3-1 et seq. of this code;

(u) Promulgate emergency rules within 90 days of the passage of this bill into law; and

(v) Inspect and approve seed conditioning facilities in the state, issue permits, and establish fees.

§19-16-7. Stop sale orders or embargo; seizure.

(a) Stop sale orders or embargos: When the commissioner has reasonable cause to believe any lot of seed or seed potato is being distributed or used in this State in violation of the provisions of this article or any rule promulgated under this article, then he or she may issue and enforce a written stop sale order or embargo, warning the custodian of the seed not to distribute, use, remove or dispose of the seed in any manner until the stop sale order or embargo is released by the commissioner or by court order:

(1) When the stop sale or embargo order is issued, the commissioner shall affix a tag or other marking to the seed warning that the seed is under a stop sale order and notify the custodian that he or she has a right to request an immediate hearing.

(2) The commissioner shall release the stop sale or embargo order when the seed has been brought into compliance with this article and its rules.

(3) The commissioner has the authority to issue a stop sale or embargo order against a perishable product, even if the result is the involuntary disposal of the product.

(4) The commissioner may take action to seize any seed not brought into compliance with this article and the rules issued under this article, within ninety days of the notice to the custodian.

(b) Seizure: Any lot of seed or seed potato not in compliance with the provisions of this article is subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the locality in which the seed or seed potato is located. In the event the court finds the seed to be in violation of this article and orders the condemnation of the seed or seed potato, it shall be denatured, processed, destroyed, relabeled or otherwise disposed of in compliance with the laws of this State: Provided, That in no instance may the court order the disposition of the seed without first having given the registrant an opportunity to apply to the court for the release of the seed or seed potato or permission to process or relabel it into compliance with this article.

§19-16-8. Penalties and prosecutions.

(a) Criminal penalties. — Any person violating any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars for the first offense, and for each subsequent offense, shall be fined not less than five hundred nor more than one thousand dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.

(b) Civil penalties. —

     (1) Any person violating any of the provisions of this article or the rules adopted under 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 violations of any person; the seriousness of the violation, including any irreparable harm to the environment, and the demonstrated good faith of any person charged in attempting to achieve compliance with this article after written notification of the violation.

     (2) The commissioner may assess a penalty of not more than five hundred dollars for the first offense or nonserious violation, as determined by the commissioner in accordance with the rules promulgated in accordance with the provisions of article three [§§ 29A-3-1 et seq.], 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 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 civil penalty, shall be assessed interest at ten percent per annum from the date the penalty was assessed. The penalty and interest constitute a lien in favor of the State of West Virginia and shall attach on the person’s property when the lien is properly recorded in the county where the property is located. There may be no cost as a condition precedent to recording.

(c) Notwithstanding any other provision of law to the contrary, the commissioner may propose for promulgation and adopt rules which permit consent agreements or negotiated settlements for the civil penalties assessed as a result of a violation of the provisions of this article.

(d) Nothing in this article may be construed as to require the commissioner to report minor violations of this article when the commissioner believes that the public interest will be best served by a written notice.

(e) No state court may allow the recovery of damages for administrative action taken if the court finds that there was probable cause for the action.

ARTICLE 16A. WEST VIRGINIA PESTICIDE CONTROL ACT.

§19-16A-1. Short title.

This article shall be known as the "West Virginia Pesticide Control Act of 1990".

§19-16A-2. Declaration of purpose; legislative finding.

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.

§19-16A-3. Definitions.

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 representation relative 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 in living 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.

§19-16A-4. Powers and duties of the commissioner.

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 July 1, 1995, 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 monitoring indicates 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.

§19-16A-5. Registration of pesticides; fees; confidentiality of trade secrets.

(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 January 1, and ending on December 31, 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 to formulas 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.

§19-16A-6. Refusal or cancellation of registration.

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.

§19-16A-7. Annual pesticide business license.

(a) No person may engage in the application of pesticides for hire at any time without a pesticide application business license issued by the commissioner. The commissioner shall require an annual fee for each pesticide application business license issued as prescribed by rules promulgated under 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.

§19-16A-8. Financial security requirement for licensed pesticide business.

(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.

§19-16A-9. Records of pesticide businesses.

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.

§19-16A-10. Restricted use pesticides.

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.

§19-16A-11. Application of this article to government entities; liability.

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.

§19-16A-12. Private and commercial applicator's license and certificate; registered technician certificate.

(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.

§19-16A-13. Renewals.

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 April 1 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 January 15, 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 February 1 of each year. Persons delinquent after February 1 shall be so notified.

§19-16A-14. Exemptions.

(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.

§19-16A-15. Reexamination or special examinations.

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.

§19-16A-16. Employee training program.

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.

§19-16A-17. Reciprocal agreement.

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.

§19-16A-18. Denial, suspension or revocation of license, permit or certification; civil penalty.

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.

§19-16A-19. Pesticide accidents; incidents or loss.

(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.

§19-16A-20. Legal recourse of aggrieved persons.

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.

§19-16A-21. Violations.

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 the rules 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.

§19-16A-22. Criminal penalties; civil penalties; negotiated agreement.

(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 $100 nor more than $500 for the first offense, and for the second offense, shall be fined not less than $500 nor more than $1,000, 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 $500 for each first offense, nonserious violation, and not more than $1,000 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.

§19-16A-23. Continuation of Pesticide Control Fund in State Treasury; disposition of certain fees to General Revenue Fund.

There is continued a special fund in the state Treasury to be known as Pesticide Control Fund and may be expended on order of the commissioner. All product registration fees, dealer, commercial and private applicator license fees, pesticide application business license fees, nondedicated fees and civil penalties collected under this article shall be placed in the Pesticide Control Fund. The proceeds of the Pesticide Control Fund may be used in carrying out the purpose of this article.

§19-16A-24. Issuance of subpoenas.

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.

§19-16A-25. Right of commissioner to enter and inspect; enforcement of 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.

§19-16A-26. Issuance of stop-sale; use or renewal orders; judicial review.

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.

§19-16A-27. Issuing warnings.

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.

ARTICLE 16B. WEST VIRGINIA PESTICIDE USE AND APPLICATION ACT.

§§19-16B-1 to 19-16B-26.

Repealed.

Acts, 1990 Reg. Sess., Ch. 7.

ARTICLE 17. FENCES.

§19-17-1. Definition of lawful fence.

Every fence of the height and description hereinafter mentioned shall be deemed a lawful fence as to any horses, mules, asses, jennets, cattle, sheep, swine, or goats, which could not creep through the same, that is to say:

(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 pressuretreated 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 pressuretreated 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 pressuretreated 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.

§19-17-2. Rivers and streams as lawful fences; establishment or discontinuance.

All rivers and streams, and parts thereof, within this state, which are lawful fences at the time this code takes effect, under existing laws, shall continue such until otherwise ordered by the county court of the county. The county court of any county, upon the written application of any owner or tenant of lands on any river or stream in such county, or which constitutes a boundary line thereof, may, in its discretion, by order entered of record, declare and establish such river or stream, or any part of either, a lawful fence as to any stock named in section one of this article. Notice of the application shall be given by publishing the same 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 the county. Any person interested may appear and oppose such application.

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.

§19-17-3. Hedge fence.

All hedge fences along public roads, or division hedge fences between farms or on any land or premises, shall be kept trimmed so that their branches shall not extend into the public road, or upon the lands of an adjoining owner, more than eighteen inches over the dividing line. For failure to keep the hedge fence so trimmed, after ten days' notice in writing by the county engineer or supervisor of roads, or by parties owning the adjoining land or premises, the owner shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $1 for each day such fence shall remain untrimmed after the ten days' notice expires.

§19-17-4. Partition fence; liability for trespass of animals.

All partition fences shall be lawful fences, unless otherwise agreed upon by the adjoining owners by a writing executed in duplicate and duly acknowledge, in which case, if such fence be kept in good repair, there shall be the same liability for damages occasioned by trespass of animals owned by said adjoining owners as if such fence were a lawful fence.

§19-17-5. Apportionment of construction and maintenance of partition fence.

Persons owning adjoining lands, both of which are used for agricultural, horticultural, grazing or livestock purposes, shall bear a just proportion of the cost of the constructing, repairing and maintaining a partition fence between such lands.

§19-17-6. Sharing cost of constructed fences.

Where a person has chosen to let his land lie open, if he shall afterwards enclose or use such land, or portion thereof, for agricultural, horticultural, grazing or livestock purposes, he shall refund to the adjoining owner a just proportion of the value of the partition fence adjoining such lands, or portion thereof, enclosed or so used that shall have been made by such adjoining owner, regardless of whether or not such fence at the time is a lawful fence.

§19-17-7. Notice of intention to build or repair partition fence; answer.

Any person desiring to build or to repair a partition fence may give notice in writing to the owner of any adjoining lands, or to his agent, of his intention to build or repair such fence and requiring him to build or repair his just portion thereof, which notice shall state the description and kind of the fence proposed to be built or such repairs as are proposed to be made. The person so served with such notice shall, within ten days thereafter make answer in writing and serve the same upon the person desiring to build or repair such fence, which answer shall state any objections to such notice, and upon failure to do so he shall be liable to the person building or repairing such partition fence for his just proportion of the cost thereof if he shall fail to build or repair his proportion of the same.

§19-17-8. Disputes relating to partition fences.

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.

§19-17-9.

Repealed.

Acts, 1993 Reg. Sess., Ch. 57.

§19-17-10. Liability of owner for refusal to repair fence.

When each of the adjoining owners of a partition fence has been allotted a particular part thereof to maintain, and either owner fails or refuses to keep in good repair the part of such fence so allotted to him he shall be liable in damages to the adjoining owner for all damages occasioned by animals kept by him trespassing on such adjoining premises as the result of such failure or refusal to repair. The adjoining owner may serve written notice on the owner whose duty it is to keep his part of such fence in repair, requiring him to repair the same, and if such owner fails or refuses so to do within ten days after the service of such notice, the adjoining owner may repair such part of the fence, and the owner whose duty it is to keep the same in repair shall be liable to him for all the expenses of such repair.

§19-17-11. Presumptions as to sufficiency of fence.

In any controversy in which the sufficiency of a fence under the provisions of this chapter shall come in question, it shall be presumed that the same was, at the time to which such controversy relates, a lawful fence and in good condition and repair, unless the contrary be proven.

ARTICLE 18. GENERAL STOCK LAW.

§19-18-1. Livestock trespassing on property of another; damages for injuries to person or property; notice to livestock owner; containment of livestock; costs for containment.

(a) If livestock enters the property of a landowner without that landowner's consent, the owner of the livestock is liable for damages for personal injury or property damage in a civil action in magistrate or circuit court.

(b) The landowner must attempt to contact the owner of the trespassing livestock within forty-eight hours of the trespass. If the owner cannot be contacted within forty-eight hours, the landowner shall notify the county sheriff.

(c) The landowner may contain the trespassing livestock on his or her property, but is not required to do so. If the landowner is able to contact the owner of the trespassing livestock pursuant to subsection (a) of this section, he or she shall also inform the owner of the costs of containment.

(d) The owner of the trespassing livestock and the landowner shall attempt to mutually agree upon a fair cost for any containment. A fair cost for containment is an amount which would be allowed for the sheriff for containing similar livestock. If the negotiation fails, or if the landowner is not otherwise reimbursed for the costs for containment, the landowner may seek monetary damages in a civil action for these costs.

§19-18-2. Unclaimed livestock; containment by sheriff; sheriff's sale at public auction.

(a) If the owner of trespassing livestock cannot be determined, or if the trespassing livestock has not been recovered within ten days of notifying the owner, the county sheriff shall take possession of the trespassing livestock.

(b) The county sheriff may return the livestock to its owner and seek reimbursement for containment costs. If attempts to return the livestock to the owner fail, the sheriff may, after publishing notice as a Class I legal advertisement, sell the livestock to the highest bidder at a public livestock auction.

(c) The proceeds of the livestock sale shall be distributed in the following order:

(1) Costs incident to the sale;

(2) Costs of containment incurred by the sheriff and the landowner;

(3) Any remaining amount to the owner of the trespassing livestock; and

(4) If the owner is unknown or does not claim the amount remaining within ninety days, that amount shall be deposited into the county treasury.

§19-18-3. Criminal penalties for trespassing livestock.

(a) While livestock may escape enclosures due to accident or unforeseen circumstances, it is unlawful for the owner of livestock to negligently permit livestock to run at large and trespass on the property of other landowners.

(b) If livestock injures a person or destroys the property of another person while negligently trespassing, the owner of the livestock shall be given an oral or written warning for the first offense. For a second offense within six months of the first, the owner is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $100. For a third or subsequent offense within six months of the second or subsequent offense, the owner is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000.

§19-18-4.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-5.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-6.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-7.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-8.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-9.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-10.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-11.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

§19-18-12.

Repealed.

Acts, 2013 Reg. Sess., Ch. 124.

ARTICLE 19. PRESERVATION OF AGRICULTURAL PRODUCTION.

§19-19-1. Purpose; public policy.

Whereas, Agricultural production of food and fiber is a basic necessity to sustain human life, and essential to the general welfare and stability of this state and the citizens thereof, and the continued conduct of the utilization of land in the conduct of agricultural production, including woodland and forestry production, is a necessity to the welfare and common good of all of the citizens of this state; and,

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.

§19-19-2. Definitions.

For the purposes of this article:

(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, silviculture, horticulture, harvesting of silviculture products, packing, shipping, milling, and marketing of agricultural products conducted by the proprietor of the agricultural operation, or any other legal plant or animal production and all farm practices.

(b) "Agricultural land" shall mean any amount of land and the improvements thereupon, used or usable in the production of food, fiber or woodland products of an annual value of $1,000 or more, by the conduct of the business of agriculture, as defined in subsection (a) of this section.

(c) "Agricultural operation" shall mean any facility utilized for agriculture.

§19-19-3. Temporary change of agricultural operations.

The change of agricultural land use to a differing agricultural use, including rotation or lying fallow from time to time, shall not constitute abandonment as agricultural land or limit the change to any other agricultural use.

§19-19-4. Agriculture not adverse; limitation of actions.

The conduct of agriculture upon agricultural land shall not be deemed adverse to other use or uses of adjoining or neighboring land, whether such other land be used or occupied for residential, commercial, business or for governmental, or any uses other than agricultural. No complaint or right of action shall be maintained in any court of this state against the owner or operator of agricultural lands adverse to the conduct of agriculture upon agricultural lands, unless:

(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.

§19-19-5. Duties of owner or operator maintained.

Nothing in this article shall be construed to excuse or relieve the owner or operator of any agricultural lands from any other right or duty as to any other person or persons, and shall apply only to the right to conduct the practice of agriculture upon his agricultural lands, and the rights and duties of such owner or operator shall be in all other respects maintained as to any other person or persons or entity.

§19-19-6. Liability for damage or destruction of sylvicultural or agricultural field test crop; damages.

(a) Any person or legal entity who willfully and knowingly damages or destroys, or allows an instrumentality within his or her control to damage or destroy a sylvicultural or agricultural field test crop that is grown for personal purposes, commercial purposes, or for testing or research purposes in the context of a product development program in conjunction or coordination with a private research facility or a university or any federal, state or local government agency, shall be liable for twice the market value of the crop damaged or destroyed prior to damage or destruction, as determined by a court of competent jurisdiction, plus interest and reasonable court costs. Where the damaged or destroyed crops are grown for testing or research purposes, damages shall also include twice the actual damages relating to production, research, testing, replacement and crop development costs directly related to the crop that has been damaged or destroyed.

(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.

ARTICLE 20. DOGS AND CATS.

§19-20-1. Dogs subject to taxation; declared to be personal property.

Any dog shall be and is hereby declared to be personal property within the meaning and construction of the laws of this state, and any dog above the age of six months shall be subject to taxation.

§19-20-2. Collection of head tax on dogs; duties of assessor and sheriff; registration of dogs; disposition of head tax; taxes on dogs not collected by assessor.

It shall be the duty of the county assessor and his or her deputies of each county within this state, at the time they are making assessment of the personal property within such county, to assess and collect a head tax of $3 on each dog, male or female; and in addition to the above, the assessor and his or her deputies shall have the further duty of collecting any such head tax on dogs as may be levied by the ordinances of each and every municipality within the county. However, no head tax may be levied against any guide or support dog especially trained for the purpose of serving as a guide, leader, listener or support for a blind person, deaf person or a person who is physically or mentally disabled because of any neurological, muscular, skeletal or psychological disorder that causes weakness or inability to perform any function. Guide or support dogs must be registered as provided by this section. In the event that the owner, keeper or person having in his or her possession or allowing to remain on any premises under his or her control any dog above the age of six months, shall refuse or fail to pay such tax, when the same is assessed or within fifteen days thereafter, to the assessor or deputy assessor, then such assessor or deputy assessor shall certify such tax to the county dog warden; if there be no county dog warden he or she shall certify such tax to the county sheriff, who shall take charge of the dog for which the tax is delinquent and impound the same for a period of fifteen days, for which service he or she shall be allowed a fee of $1.50 to be charged against such delinquent taxpayer in addition to the taxes herein provided for. In case the tax and impounding charge herein provided for shall not have been paid within the period of fifteen days, then the sheriff may sell the impounded dog and deduct the impounding charge and the delinquent tax from the amount received therefor, and return the balance, if any, to the delinquent taxpayer. Should the sheriff fail to sell the dog so impounded within the time specified herein, he or she shall kill such dog and dispose of its body.

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 June 30 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.

§19-20-3. Registration of dog kennels; application; fee; expiration of certificate of registration.

Every owner or operator of a kennel, wherein dogs are bred, kept, boarded or sold as a commercial venture for profit shall annually, between July 1, and September 30, of each year, file with the assessor of the county in which such kennel is located, kept or maintained, an application for the registration of such kennel for the fiscal year. Such application shall state the location of the kennel, the name and address of the person actually in charge of and supervising it, and the name and address of the owner of the kennel. Upon the filing of such application, together with the payment to the assessor of a fee of $10 the assessor shall issue a certificate of registration for such kennel. The registration of a kennel, as herein provided, shall entitle the registrant to register and receive certificates and tags for not more than five dogs without the payment of a separate head tax on such dogs. The head tax provided for in section two of this article shall, on such five or less dogs, be included in and charged against the kennel registration fee herein provided.

Every person upon becoming the owner or operator of a kennel of dogs as herein described after September 30, 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 June 30 of that fiscal year.

§19-20-4. Forms for registration; records; registration tags; loss thereof.

The commissioner of agriculture shall prescribe the form of all applications, certificates of registration, and registration tags required by this article. Certificates of registration and registration tags shall bear identifying numbers.

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 25¢.

§19-20-5. Wearing of registration tag by dog.

Every registered dog shall at all times wear a valid registration tag issued as provided in this article. The failure to have displayed or worn on any dog, at any time, of such valid tag shall be prima facie evidence that such dog is not registered and such dog shall be subject to be, and shall be, impounded, sold, or destroyed as hereinbefore or hereinafter provided.

§19-20-6. County dog warden; rules and regulations for dog control; prosecution and penalties for violation of ordinances.

(a) The county commission of each county may appoint and employ a county dog warden, and such number of deputies, for such time, and at such compensation, as such county commission shall deem reasonable and necessary to enforce the provisions of this code with respect to the control and registration of dogs, the impounding, care and destruction of unlicensed dogs. Such county dog warden may be appointed a deputy assessor for the purpose of collecting the dog tax and registration fees, taking the dog registration and providing the tags authorized by this article. The county dog warden or any deputies may, in the discretion of the county commission, be regularly employed officers or agents of any humane society or society for the prevention of cruelty to animals, organized and operating under the laws of this state and owning, controlling and operating a suitable place within the county for impounding and destroying dogs. In addition to the compensation provided for above, a bounty of 50¢ per dog shall be paid to the county dog warden or deputy who captures an unregistered dog. Such county dog warden and deputy wardens shall each give bond in a sum of not less than $1,000 and not more than $2,000 conditioned on the faithful performance of their duties. Such bonds shall be filed with the county commission by which such persons are appointed.

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 $100. Magistrate courts and circuit courts shall have concurrent jurisdiction with respect to such misdemeanors.

§19-20-6a. Authority of county commission to contract with private society, other county or municipality for the care and control of dogs and cats.

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.

§19-20-7. Dog pound and equipment to be provided by county court [county commission]; exception.

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.

§19-20-8. Impounding and disposition of dogs; costs and fees.

(a) All dogs seized and impounded as provided in this article, except dogs taken into custody under section two of this article, shall be kept housed and fed in the county or municipal shelter for five days after notice of seizure and impounding has been given or posted as required by this article, at the expiration of which time all dogs which have not previously been redeemed by their owners as provided in this article, shall be sold or humanely destroyed. No dog sold as provided in this section may be discharged from the county or municipal shelter until the dog has been registered and provided with a valid registration tag.

(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.

§19-20-8a. Joint ownership, etc., by counties and municipalities of dog pounds; joint employment of dog wardens.

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.

§19-20-9. Failure to register dog or kennel; alteration or forging of registration certificate or tag; penalties.

Any person who owns, keeps, or harbors a dog, or who owns or operates a kennel, subject to registration under the provisions of this article, and who fails, refuses, or neglects to register such dog or kennel, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five nor more than $100.

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 $100 nor more than $500, or by both such fine and imprisonment.

§19-20-9a. Dogs, cats, etc.; rabies observation.

(a) Any person who owns or harbors any dog, cat or other domesticated animal, whether licensed or unlicensed, which bites any person, shall forthwith confine and quarantine the animal for a period of ten days for rabies observation.

(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 $50 or confinement in the county or regional jail for a period of no less than two nor more than three days.

§19-20-10. Dog and kennel fund; disposition thereof.

All registration fees, head taxes, and fees and costs for impounding and disposing of dogs, as provided in this article, and collected thereunder, shall be paid into the county treasury where they shall constitute and be set aside as a special fund to be designated the "dog and kennel fund."

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 15¢ 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.

§19-20-11. Assessment of dogs as personal property.

In addition to the head tax on dogs provided for in this article, the owner of any dog above the age of six months shall be permitted to place a value on such dog and have such dog assessed as personal property in the same manner and at the same rate as other personal property.

§19-20-12. Dogs, other animals and reptiles protected by law; unlawful killing thereof; aggrieved owner's remedy; penalties; penalties for unlawful stealing of companion animals.

(a) Any dog which is registered, kept and controlled as provided in this article or any dog, cat or other animal or any reptile which is owned, kept and maintained as a companion animal by any person, irrespective of age, is protected by law; and, except as otherwise authorized by law, any person who shall intentionally, knowingly or recklessly kill, injure, poison or in any other manner, cause the death or injury of any dog, cat, other animal or any reptile 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 $300 nor more than $500, or both. However, this section does not apply to a dog who is killed while attacking a person, a companion animal or livestock. Any person whose dog, cat, other animal or reptile as specified herein is killed or injured wrongfully or unlawfully by any other person shall have a right of action against the person who shall so kill or injure any dog, cat, animal or reptile.

(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 $300 nor more than $500, 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 $1,000. 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 $50 nor more than $150 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.

§19-20-13. Dog running at large; liability of owner.

Any owner or keeper of any dog who permits such dog to run at large shall be liable for any damages inflicted upon the person or property of another by such dog while so running at large.

§19-20-14. Dog killing, wounding or worrying livestock or poultry -- Recovery of damages.

If any dog has killed or assisted in killing, wounding or worrying any sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry out of the enclosure of the owner of the dog, the owner or keeper of the dog shall be liable for the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry in the amount of the damages sustained, to be recovered in an action before any court or magistrate having jurisdiction of the action. It shall not be necessary to sustain the action to prove that the owner of the dog knew the dog was accustomed to worrying, killing or wounding. A recovery under this section shall bar and preclude the owner of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry from obtaining compensation from the county commission under the provisions of this article. If the person suffering the loss or damage cannot ascertain the owner or keeper of the dog, or if the owner or keeper is not financially responsible, then the person suffering the loss or damage may file his claim with and prove the same before the county commission of the county in which the loss or damage is sustained, in the manner provided in this article, and the commission shall pay the loss or damage out of the fund provided for such purposes and according to the provisions of this article. When compensation is so obtained from the county commission, the county commission is authorized to sue under this section and recover as the owner of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry. The amount so recovered shall be paid into the county treasury; but no suit shall be commenced unless authorized by the county commission.

§19-20-15. Same -- Assessment of damages; appraisers.

Authority is hereby given to magistrates and notaries public within this state, and within their respective jurisdictions, to summon three substantial, upright and worthy bona fide residents, citizens and taxpayers of his county to assess the damages suffered by any person on account of the destruction, loss or injury of any sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry by dogs within the county. The appraisers shall be appointed upon the request of a person suffering damages on account of such destruction, loss or injury. The appraisers shall go upon the ground and investigate fully the extent of the destruction, loss or injury, taking all the evidence deemed necessary to arrive at the facts to be passed upon in arriving at the amount of damage, if any, suffered by the party making the complaint. Before the appraisers may be summoned by the magistrate or notary public, the complainant shall be required to make a sworn complaint before the magistrate or notary public, setting out in plain, easily comprehensible terms the facts concerning his damages to the best of his knowledge. After making a full investigation of the facts involved, the appraisers, with the assistance of the magistrate or notary public, shall make a sworn statement and report the facts ascertained and the damages suffered. The report and statement shall be filed with the county commission or the clerk thereof in vacation. The fees and mileage for services allowed in such cases shall be the same as are allowed magistrates, witnesses and arbitrators in magistrates' courts in this state for similar services. In the event that the appraisers find that the complainant has suffered no damage, then the complainant shall be responsible for and pay all the costs and expenses of the proceeding. In the event that the complainant has suffered damages on account of the destruction, loss or injury of his domestic animals, according to the finding of the appraisers, the owner, keeper or person permitting the dog, or dogs, causing the damage to remain upon the premises under his control shall be liable for all damages sustained by the complainant, including all costs and necessary expenses. All of the damages shall be collectible by an action at law before any court or magistrate having jurisdiction of the matter. All papers in connection with any claim shall be filed and preserved in the office of the clerk of the county commission.

§19-20-16. Same -- When lawful to kill dog.

A person may kill a dog that he may see chasing, worrying, wounding or killing any sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry outside of the enclosure of the owner of the dog, unless the chasing or worrying be done by the direction of the owner of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits or horses and colts or poultry.

§19-20-17. Same -- Unlawful to harbor dog; penalty.

A person who shall harbor or secrete or aid in secreting a dog which he knows or has reasons to believe has worried, chased or killed any sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry not the property of the owner of the dog, out of his enclosure, or knowingly permits the same to be done on any premises under his control, is guilty of a misdemeanor, and, upon conviction thereof, before any court or magistrate having jurisdiction thereof in the county in which the offense is committed, shall be fined not less than $10 nor more than $50, and, at the discretion of the court or magistrate, imprisoned in the county jail not more than thirty days. Each day that the dog is harbored, kept or secreted shall constitute a separate offense.

§19-20-18. Same -- Duty of owner to kill dog; proceeding before magistrate on failure of owner to kill.

The owner or keeper of a dog that has been worrying, wounding, chasing or killing any sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry not the property of the owner or keeper, out of his enclosure, shall, within forty-eight hours, after having received notice thereof in writing from a reliable and trustworthy source, under oath, kill the dog or direct that the dog be killed. If the owner or keeper refuses to kill the dog as hereinbefore provided, the magistrate, upon information, shall summon the owner or keeper of the dog, and, after receiving satisfactory proof that this dog did the mischief, shall issue a warrant on application being made by the owner of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, or colts or poultry killed; and give it into the hands of the sheriff, who shall kill the dog forthwith or dispose of by other available methods. The cost of the proceedings shall be paid by the owner or keeper of the dog so killed, including a fee of 50¢ to the officer killing the dog. The owner or keeper of the dog so killed shall, in addition to the costs, be liable to the owner of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses, colts or poultry or to the county commission for the value of the sheep, lambs, goats, kids, calves, cattle, swine, show or breeding rabbits, horses or colts or poultry so killed or injured.

§19-20-19. Offenses; criminal penalties; jurisdiction.

A person who violates any of the provisions of this article for which no specific penalty is prescribed is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100, or imprisoned in the county jail not more than thirty days, or both fined and imprisoned. Magistrates shall have concurrent jurisdiction with the circuit courts to enforce the penalties prescribed by this article.

§19-20-19a. Dog warden and deputy dog wardens; power to issue citations.

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.

§19-20-20. Keeping vicious dogs; humane officers may kill such dogs.

Except as provided in section twenty-one of this article, no person shall own, keep or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.

§19-20-21. License fee for keeping vicious or dangerous dog.

Any person who keeps a dog which is generally considered to be vicious, for the purpose of protection, shall acquire a special license therefor from the county assessor. The assessor shall charge $10 for such license. Such license shall be required in addition to the license required under section two of this article. The keeper or owner shall properly secure such dog in such a manner so as to prevent injury to a person who lawfully passes through or enters upon the property of the keeper or owner. Nothing contained in this section shall constitute a defense to any action for personal injury, wrongful death or damage to property.

§19-20-22. Confinement of female dogs.

Every person owning or harboring a female dog, whether licensed or unlicensed, shall keep such dog confined in a building or secure enclosure for twenty-five days during the period of estrus.

§19-20-23. Prohibition of the use of impounded dogs and cats.

On and after September 1, 1989, 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 $450 nor more than $2,000.

§19-20-24. Causing death or injury to animals used by law- enforcement officials or by fire prevention or investigation officials; criminal penalties.

Any person who, without justification, and with the unlawful intent to inflict serious physical injury or death, causes the death of 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 felony and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000 and imprisoned in a correctional facility for a definite term of not less than one year nor more than three years.

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.

§19-20-25. Retirement, transfer or disposal of state owned dogs and horses.

(a) Whenever any dog or horse, which is the property of the state, is unable to perform its duties as a service animal, the responsible governmental agency may:

(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.

§19-20-26. Commercial dog-breeding operations.

(a) As used in this section:

(1) "Advertisement" means any media used to promote the sale of dogs including, but not limited to, the Internet, newspapers, flyers, magazines, radio, television, bulletins and signs.

(2) "Commercial dog breeder" means any person who:

(A) Maintains eleven or more unsterilized dogs over the age of one year for the exclusive purpose of actively breeding;

(B) Is engaged in the business of breeding dogs as household pets for direct or indirect sale or for exchange in return for consideration; and

(C) Commercial dog breeder shall not include:

(i) Any person who keeps or breeds dogs exclusively for the purpose of herding or guarding livestock or farm animals, hunting, tracking or exhibiting in dog shows, performance events or field and obedience trials; and

(ii) With respect to greyhound dogs only, any person who holds an occupational permit from, and has registered a greyhound kennel name with, the West Virginia Racing Commission.

(3) "Class I Commercial Dog Breeder" means a commercial dog breeder that possesses eleven to thirty unsterilized dogs over the age of one year at any one time for the exclusive purpose of actively breeding.

(4) "Class II Commercial Dog Breeder" means a commercial dog breeder that possesses more than thirty unsterilized dogs over the age of one year at any time.

(5) "Housing facility" means a structure in which dogs are kept that provides them with shelter, protection from the elements and protection from temperature extremes.

(6) "Primary enclosure" means a structure that restricts a dog's ability to move in a limited amount of space, such as a room, cage or compartment.

(b) No commercial dog breeder may breed dogs without a business registration certificate in accordance with section three, article twelve, chapter eleven of this code and a valid business license issued by the locality in which the dog breeding operation is located, if the locality so requires.

(c) A commercial dog breeder shall:

(1) Obtain a permit annually to operate, as required by the county commission in which the commercial dog breeding operation is located. County commissions are authorized to charge a fee to commercial dog breeders and shall deposit the fees collected in a specially designated account to be used for animal shelters, animal rescue and spay neuter programs administered by county animal shelters or other humane organizations. The fee for a Class I commercial dog-breeding permit shall be an amount determined by the county commission, not to exceed $250 per year. The fee for a Class II commercial dog breeding permit shall be an amount determined by the county commission, not to exceed $500 per year;

(2) Breed female dogs only after the breeder has obtained an annual certification by a licensed veterinarian that the dog is in suitable health for breeding;

(3) Dispose of dogs only by gift, sale, transfer, barter or euthanasia by a licensed veterinarian;

(4) Maintain current, valid rabies certificates for every dog pursuant to article twenty-a of this chapter;

(5) Include the breeder's annual permit number on any advertisement for the sale of a dog;

(6) If selling directly to the public, post a conspicuous notice containing the breeder's name, address and annual permit number on each cage;

(7) Provide for the humane treatment of dogs in accordance with section nineteen, article eight, chapter sixty-one of this code;

(8) Provide dogs with easy and convenient access to adequate amounts of clean food and water. Food and water receptacles must be regularly cleaned and sanitized. All enclosures must contain potable water that is not frozen, is substantially free from debris and is readily accessible to all dogs in the enclosure at all times unless otherwise directed by a veterinarian for the health of the dog;

(9) Provide veterinary care without delay when necessary;

(10) Maintain adequate staffing levels to ensure compliance with this section; and (11) Maintain adequate housing facilities and primary enclosures that meet the following minimum requirements:

(A) Housing facilities and primary enclosures must be kept in a sanitary condition and in good repair; must be sufficiently ventilated at all times to minimize odors, drafts, ammonia levels and to prevent moisture condensation; must have a means of fire suppression, such as functioning fire extinguishers or a sprinkler system on the premises; and must have sufficient lighting to allow for observation of the dogs at any time of day or night;

(B) Housing facilities and primary enclosures must enable all dogs to remain dry and clean;

(C) Housing facilities must provide shelter and protection from extreme temperatures and weather conditions that may be uncomfortable or hazardous to the dogs;

(D) Housing facilities must provide sufficient shade to simultaneously shelter all of the dogs housed therein;

(E) A primary enclosure must have solid floors that are constructed in a manner that protects the dogs' feet and legs from injury;

(F) Primary enclosures must be placed no higher than forty-two inches above the floor and may not be placed over or stacked on top of another cage or primary enclosure;

(G) Feces, hair, dirt, debris and food waste must be removed from primary enclosures and housing facilities at least daily or more often if necessary to prevent accumulation and to reduce disease hazards, insects, pests and odors;

(H) All dogs in the same enclosure at the same time must be compatible, as determined by observation. Breeding females in heat may not be in the same enclosure at the same time with sexually mature males, except for breeding purposes. Breeding females and their litters may not be in the same enclosure at the same time with other adult dogs. Puppies under twelve weeks may not be in the same enclosure at the same time with other adult dogs, other than the dam or foster dam unless under immediate supervision; and

(I) Sick dogs shall be isolated sufficiently so as not to endanger the health of other dogs.

(d) To ensure compliance with state animal care laws and regulations, commercial dog breeding locations are subject to biannual inspections by animal control officers or law-enforcement officers.

(e) It is unlawful for a commercial dog breeder to operate if he or she has been convicted of animal cruelty in any local, state or federal jurisdiction.

(f) Any commercial dog breeder who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 per violation. In any proceeding brought pursuant to the provisions of this section, a circuit judge or magistrate may grant a person accused of violating this section an improvement period not to exceed one year upon such terms and conditions as the judge or magistrate may determine. Upon successful completion of the improvement period the judge or magistrate shall dismiss the charges.

(g) Nothing in this section exempts a facility licensed by the United States Department of Agriculture from compliance.

(h) Nothing in this section prevents any local, state or federal law-enforcement agency from investigating animal cruelty in commercial dog breeding operations.

ARTICLE 20A. VACCINATION OF DOGS AND CATS FOR RABIES.

§19-20A-1. Purpose and policy.

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.

§19-20A-2. Vaccination of dogs and cats.

(a) A person who owns, obtains or possesses a dog or cat within the State of West Virginia shall have the dog or cat properly vaccinated against rabies with a vaccine capable of producing immunity for three years, boostered one year after initial vaccination and every third year thereafter. Dogs and cats need not be vaccinated before the age of three months, but must be vaccinated by the age of six months.

(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.

§19-20A-3. Vaccination record and report.

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.

§19-20A-4. Vaccination tag and certificate.

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.

§19-20A-5. Type of vaccine to be furnished; fee.

It is the duty of the veterinarian, or person vaccinating each animal to furnish vaccine of a type capable of establishing and maintaining immunity for a period of not less than thirty-six months and he or she shall charge and collect a fee of not more than $8 for each animal vaccinated, if done at a clinic established by a county commission or, if vaccinated at any other place, he or she shall charge and collect a reasonable fee for his or her services.

§19-20A-6. Offenses and penalties.

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 $10 nor more than $50, or be confined in the county jail not less than ten days nor more than sixty days, or both.

§19-20A-7. Enforcement of article.

The enforcement of the provisions of this article is in the hands of the sheriff of each county, any of his or her deputies, constables, natural resources police officers, and, if considered necessary, there shall be a special officer to be appointed by the county commission, who is authorized, empowered, and directed to inspect rabies, pick up dogs and cats and dispose of dogs which are not taxable or not vaccinated according to this article. The sheriff of each county can have one or more sittings, if considered necessary, in each district of the county, at which he or she shall be present or have present one of his or her deputies or the special officer above provided for, to take charge of all delinquent dogs and cats and homeless dogs and cats that are not vaccinated. The assessor of each county, or one of his or her deputies, shall accompany the veterinarian, doctor, or the one who administers the vaccine in these sittings for the purpose of collecting taxes on dogs. All dogs which are not vaccinated and for which taxes are unpaid become the responsibility of the sheriff to catch and dispose of as is provided by law.

§19-20A-8. Vaccinated dogs and cats may run at large; confinement may be required by the commissioner of agriculture within the limits of any quarantine area or locality; and ordinances or rules may be promulgated by any county commission or municipality relating to the control and management of dogs within the county; providing limited exemption for hunting and farm dogs from county commission or municipality action.

Dogs or cats vaccinated in compliance with the provisions of this article may run at large in any area or locality: Provided, That the commissioner of agriculture may, pursuant to article nine of this chapter, exercise his discretion to establish a quarantined area or locality and to require all dogs and cats within the limits of any quarantined area or locality to be confined as provided in article nine: Provided, however, That a county commission or a municipality may adopt and enforce ordinances not inconsistent with the provisions of article twenty of this chapter of the code, as it considers necessary or convenient for the control and management of all dogs in the county, or a portion thereof, vaccinated or not, except as further provided herein: Provided further, That any county commission or municipality may not adopt any ordinance which purports to keep any vaccinated dog from running at large while engaged in any lawful hunting activity; from running at large while engaged in any lawful training activity; or from running at large while engaged in any lawful herding or other farm related activity: And provided further, That the provisions of this section shall not exempt any dog from any quarantine established by or any confinement order required by the commissioner relating to the establishment of a quarantine.

ARTICLE 20B. SPAYING OR NEUTERING OF DOGS AND CATS.

§19-20B-1. Short title.

This article may be cited as the "West Virginia Spay/Neuter Act."

§19-20B-2. Requirement for adoption.

(a) No person may adopt a dog or cat from an agency, including, but not limited to, an animal shelter, animal control agency or humane shelter operated by a municipality, county, or other governmental agency within the state, or a private organization operating a shelter from which animals are adopted or reclaimed, unless:

(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.

§19-20B-3. Deposit.

(a) If the dog or cat being adopted has not been spayed or neutered, the agency may require a deposit of not more than $50 from the new owner prior to the adoption to ensure that the dog or cat is spayed or neutered. The new owner shall receive a refund of the deposit from the agency upon providing confirmation of the spaying or neutering.

(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.

§19-20B-4. Petition for compliance.

If a person fails to comply with the provisions of this article, the agency may file a petition with a court of competent jurisdiction seeking compliance or requesting return of the dog or cat to the agency from which it was adopted.

§19-20B-5. Penalty.

A person failing to have a dog or cat spayed or neutered within the time frame established in section two of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $150 nor more than $250.

§19-20B-6. Dogs or cats claimed by owner.

Nothing in this article authorizes an agency to spay or neuter a dog or cat if the dog or cat is claimed by and returned to its lawful owner within five days of being taken into custody by the agency.

ARTICLE 20C. WEST VIRGINIA SPAY NEUTER ASSISTANCE PROGRAM.

§19-20C-1. West Virginia Spay Neuter Assistance Program.

The Department of Agriculture shall establish a spay neuter assistance program that provides grants to nonprofit spay neuter organizations and programs in the state. The purpose of this program is to have more dogs and cats sterilized, thereby reducing shelter populations and costs, euthanasia rates and threats to public health and safety from rabies and other problems posed by the growing population of stray, feral and abandoned dogs and cats.

§19-20C-2. Fund established; acceptance of funds.

(a) There is created in the State Treasury a special revenue account to be designated the West Virginia Spay Neuter Assistance Fund and administered by the Commissioner of Agriculture. Expenditures from the fund are for the purposes set forth in this article and are to be made in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code.

(b) All moneys received and collected pursuant to this article shall be deposited into the fund. The fund may receive any appropriations, gifts, grants, contributions or other money from any source that is designated for deposit into the fund.

(c) Administrative expenses of the department may not exceed ten percent of the funds deposited in any fiscal year. The remainder shall be used exclusively for implementation of the program.

§19-20C-3. Rulemaking; annual report.

(a) The commissioner shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to implement the provisions of this article.

(b) Rules promulgated under this section shall, at a minimum:

(1) Identify the types of nonprofit organizations and programs that qualify for spay neuter grants;

(2) Establish parameters for spay neuter grants;

(3) Establish procedures and requirements for grant applications; and

(4) Establish administration, record-keeping and reporting requirements for nonprofit organizations and programs that receive spay neuter grants.

(c) Beginning the year following the program's inception, the commissioner shall file an annual report with the Joint Committee on Government and Finance regarding the program, funds received and grants awarded, the number of dogs and cats sterilized and other pertinent data.

ARTICLE 20D. PRIVATE CAUSE OF ACTION FOR THE HUMANE DESTRUCTION OF A DOG.

§19-20D-1. Purpose.

The purpose of this article is to protect the public by providing a private cause of action seeking euthanasia of a dog in magistrate court to a person who has been attacked by a dog resulting in personal injuries requiring medical treatment which cost $2,000 or more, or who has been attacked by the dog and the dog had attacked a person causing personal injury which required medical treatment within the previous twelve months.

§19-20D-2. Procedure; petition to magistrate court; elements of action; burden of proof; attorney fees; limitation of action.

(a) A person seeking relief under this article may apply to the magistrate court in the county where the dog owner resides, or the county where the injury occurred, by verified petition setting forth and affirming the following:

(1) That the owner of the dog resides in the county where the petition is filed or the attack giving rise to the action occurred in the county where the petition is filed;

(2) That the petitioner was:

(A) Attacked by the dog and the attack resulted in personal injuries requiring medical treatment in the amount of $2,000 or more; or

(B) Attacked by the dog and the dog had engaged in a separate attack on a person causing personal injury requiring medical treatment within the previous twelve months; and

(3) That the petitioner did nothing to provoke the dog.

(b) The petition and summons shall be served on the respondent in the manner set forth in Rule 4 of the West Virginia Rules of Civil Procedure.

(c) The petitioner must prove the allegations in the petition by clear and convincing evidence.

(d) The prevailing party is entitled to an award of reasonable attorney fees and costs.

(e) The limitations of the cause of action in this article are as follows:

(1) Relief, other than attorney fees and costs in subsection (d) of this section, is limited to an order directing that the owner of the dog have the dog euthanized; and

(2) The cause of action provided by this article does not establish statutory liability nor does it supplant a common law negligence cause of action.

§19-20D-3. Order of the magistrate court.

(a) If the trier of fact finds by clear and convincing evidence that the dog which is the subject of the action under this article has attacked the petitioner and caused personal injuries requiring medical treatment in the amount of $2,000 or more or that the dog attacked the petitioner and within the twelve month period prior to the attack had engaged in a separate attack causing personal injury requiring medical treatment, then the court shall order the owner of the dog to have the dog euthanized.

(b) The magistrate court shall issue and file a written order that sets forth the following:

(1) Findings of fact and conclusions of law; and

(2) If the court orders euthanasia, a specific date upon which the owner of the dog must have the euthanasia performed and a direction that documentation be mailed to the petitioner and filed with the court by a specific date showing that the procedure was performed.

(c) If the court does not order euthanasia, the court shall order that the petition be dismissed with prejudice.

(d) The court may award reasonable attorney fees and costs to the prevailing party.

ARTICLE 21. DRAINAGE DISTRICTS.

§19-21-1. Jurisdiction of circuit courts to organize drainage districts; definition of terms.

Original jurisdiction, power and authority are hereby conferred upon all circuit courts of this state to establish and organize drainage, levee and reclamation districts in this state, and to the end that the public design and intention of this article may be carried into full force and effect, power and authority are hereby conferred upon such courts to provide ways and means consistent with the provisions of this article for the organization, operation and maintenance of drainage, levee and reclamation districts in this state.

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.

§19-21-2. Proceedings under article have precedence over other cases; exceptions; mandamus.

Proceedings under the provisions of this article shall have precedence on the dockets of all circuit courts of this state over all other civil cases, except election cases and special proceedings which heretofore by other laws may have been given precedence on the courts' dockets. If the court does not act promptly in complying with the terms of this article, it may be compelled to do so by mandamus.

§19-21-3. Petition to establish district.

Proceedings to establish and organize a drainage, levee or reclamation district shall be commenced by three or more owners of real property within the proposed district, whose lands will be affected by the proposed improvement, filing a petition in the circuit court, or before the judge thereof in vacation, of the county wherein such lands and other property proposed to be organized into a drainage, levee or reclamation district are situated. Upon the filing of such petition the court, or the judge thereof in vacation, shall require a bond in sufficient penalty to be given and filed, with good and sufficient surety, and conditioned for the payment of all preliminary costs and expenses that may be incurred in case the district is not formed. If the lands to be included in the proposed district are situated in two or more counties, then the petition may be filed in the office of the clerk of the circuit court, or before the judge thereof in vacation, of either of the counties in which such lands are situated, and such court shall retain jurisdiction thereafter regardless of county lines.

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.

§19-21-4. Appointment of engineer; duties and compensation thereof; notice of application to form drainage district.

Immediately after such petition shall have been filed it shall be the duty of the court, or the judge thereof in vacation, to enter upon its records an order appointing an engineer to be selected by the petitioners, provided the engineer whom they select is a qualified and suitable person. If the engineer designated by the petitioners is, in the opinion of the court, not a proper person, the court shall appoint such other engineer as it may deem qualified to perform the duties imposed upon him by this article. Such engineer shall forthwith proceed to ascertain in a general manner the limits of the region which will be benefited by the proposed improvements, and the names of the landowners and the approximate acreage of each landowner's holdings, as nearly as they can be determined without actual survey, and file a report of his findings with the clerk of the circuit court at the earliest date practicable. In his report the engineer shall give a general idea of the improvements required and an approximate estimate of their cost, together with such other suggestions as he may think will be of service to the court in passing on the prayer of the petitioners. For service rendered in this connection the compensation of the engineer shall be fixed by the court.

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.

§19-21-5. Objections to formation of drainage district; action of court; appeal; filing of decree in office of clerk of county court [county commission].

Any owner of real estate or other property in such proposed district who may not have signed the petition and who objects to the organization and formation of the proposed drainage district shall, on or before the first day of the term of court at which the cause is to be heard, file his objection or objections to the organization of such proposed drainage district. Such objection or objections shall be limited to a denial of the statements in the petition and shall be heard by the court in a summary manner without unnecessary delay, and in case all such objections are overruled, if the court shall be of the opinion that the establishment of a drainage district will be to the advantage of the owners of real property therein, or will be conducive to the public health, utility, convenience and public welfare, it shall, without making further inquiry, enter an order establishing a district, which district shall have the power and authority to acquire, hold and convey property, levy taxes and collect the same, and shall have all the powers and authority necessary to carry out the provisions of this article, and may sue and be sued under the name and style of .............. drainage district. Such order shall have all the force and effect of a judgment. If the court finds that the property set out in the petition should not be organized into a drainage district, it shall dismiss such proceedings and adjudge the costs against the signers of the petition in proportion to the acreage represented by each petitioner. Any owner of real property within the district may appeal from the judgment of the court within twenty days after the same has been made, but if no appeal is taken within that time such judgment shall be deemed conclusive and binding upon all the real property within the bounds of the district and upon the owners thereof, and any owner of property in the district may within a like time appeal from an order refusing to establish such district. Such appeals must be accompanied by a bond approved by the court conditioned for the payment of costs if the appeal should be decided against the appellant. If the court orders the drainage district established, a copy of the findings and decree of the court shall be filed in the office of the clerk of the county court in each of the counties having lands and other property in such drainage district where the same shall become a permanent record.

§19-21-6. First meeting of owners; election of board of supervisors.

Within thirty days after any drainage district shall have been organized and established under the provisions of this article the circuit clerk of the court organizing such district shall call a meeting of the owners of real estate or other property situate in such district, at a day and hour specified, in some public place in the county in which the district was organized, for the purpose of electing a board of three supervisors, to be composed of owners of real estate in such district, two of whom at least shall be residents of the county or counties in which such district is situate, or some adjoining counties. Notice of such meeting shall be given by such clerk by causing publication thereof 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 lands of the district are situate. The last publication shall be at least ten days before the day of such meeting. The landowners, when assembled, shall organize by the election of a chairman and a secretary of the meeting who shall conduct the election. At such election each owner shall be entitled to one vote in person or by proxy for every acre of land or mile of right-of-way owned by him in such district, and the three persons receiving the highest number of votes shall be declared elected as supervisors. Such supervisors shall immediately by lot determine the terms of their office, which shall be respectively one, two and three years, and they shall serve until their successors shall have been elected and qualified.

§19-21-7. Annual meeting of owners; election of supervisor.

In the same month of each year after the election of the first board of supervisors, the board of supervisors shall call a meeting of the owners of land and other property herein described in the district by publication, in the same manner as provided for in section six, and such owners shall meet at the time and place fixed by the board of supervisors and elect one supervisor therefor in like manner as prescribed in the preceding section, who shall hold his office for three years or until his successor is elected and qualified; and in case of a vacancy in the office of supervisor, the remaining supervisors may fill such vacancy by appointment until the next annual meeting, when a successor shall be elected for the unexpired term: Provided, That after the report of the appraisers has been confirmed by the court under the provisions of section fifteen, only owners of land and other such property having benefits assessed against it shall be entitled to vote at the annual meetings held under the provisions of this section.

§19-21-8. Oath of supervisor; effect of failure to qualify.

Each supervisor before entering upon his official duties shall take and subscribe to an oath before some officer authorized by law to administer oaths, that he will honestly and impartially perform the duties devolving upon him in office as supervisor of the drainage district in which he was elected, and that he will not neglect any of the duties imposed upon him by this article. Any supervisor-elect who fails to qualify by taking such oath and filing the same in the office of the secretary of the drainage district within ten days after his election shall be deemed to have declined such election, and the vacancy shall be filled as herein provided.

§19-21-9. Organization of board of supervisors; duties and compensation.

The board of supervisors immediately after their election shall choose one of their number president of the board, and elect some suitable person secretary who may or may not be a member of the board. Such board shall adopt a seal with a suitable device, and shall keep a record of all its proceedings, as hereinafter provided, which shall be open to the inspection of all owners of real estate and other property herein described of the district, as well as to all other interested parties. The board shall report to the landowners at the annual meeting held under the provisions of section seven of this article what work has been done, either by the engineers or otherwise. The members of the board shall receive, for attending to business for and in behalf of such district, actual transportation expenses, which shall be audited by the board before payment and each member shall receive $4 dollars per day as compensation for his services while actually engaged in work for the district: Provided, however, That if the secretary be a member of the board, he shall be entitled to compensation as hereinafter provided.

§19-21-10. Appointment, powers and duties of chief engineer; adoption of plan for reclamation.

Within thirty days after organizing, the board of supervisors shall appoint a competent civil and drainage engineer as chief engineer, who may be an individual, copartnership, or corporation. The chief engineer may, by and with the consent of the board of supervisors, consult any eminent engineer or engineers and obtain his or their opinion and advice concerning the reclamation of the lands in the district. He shall have authority to engage such assistants as may be needed. He shall make all necessary surveys of the lands within the boundary lines of such district, as described by the petition, and of all lands adjacent thereto that may or will be improved or reclaimed in part or in whole by any system of drainage or levees that may be outlined and adopted, and such engineer shall make a report in writing to the board of supervisors with maps and profiles of such surveys, which report shall present a plan for draining, leveeing and reclaiming the lands and property described in the petition or adjacent thereto from overflow or damage by water. Such maps and profiles shall also indicate as far as necessary the physical characteristics of the lands and location of any public roads, railroads, other public utilities, and other rights- of-way, roadways, and other property and improvements located on such lands. The chief engineer shall make a report in writing to the board of supervisors, showing the progress that has been made at such times as the board may require. When the final report of the chief engineer is submitted the board of supervisors shall have authority to employ a reputable consulting engineer or engineers to pass on the adequacy of the proposed improvements as covered in the chief engineer's report and plans. When the board is satisfied of the adequacy of the plans it shall adopt the report and plans and thereafter such adopted report shall be the plan for draining, leveeing or reclaiming such lands and other property from overflow or damage by water, and it shall after such adoption be known and designated as "the plan for reclamation," which plan shall be filed with the secretary of the board of supervisors and by him copied into the records of the district.

§19-21-11. Tax levy to pay preliminary expenses; delinquent tax as lien on property; disposition of funds.

For the purpose of paying expenses incurred or to be incurred in organizing such district, making surveys of the same, assessing benefits and damages, and to pay other expenses necessary to be incurred, before the board of supervisors shall be empowered by subsequent provisions of this article to provide funds to pay the total cost of works and improvements of the district, the board of supervisors of any drainage district organized under the provisions of this article shall, as soon as elected and qualified, levy a uniform tax of not more than 50¢ per acre upon each acre of land and each mile of right-of-way within such district, as shown by preliminary report of the engineer required by section four of this article. In case the boundary lines of the district shall be extended under the provisions of a subsequent section of this article so as to include lands and other property not described in the petition, the same uniform tax shall be made on such lands and other property as soon as the same shall have been made and included in the district. In case lands are included in the district and assessed in accordance with this provision which it subsequently develops should not have been included, taxes collected from such lands shall be returned to the owners of such lands. Such tax shall be due and payable as soon as assessed and if not paid within sixty days after the tax has been levied the same shall become delinquent. It shall become a lien on the land and other property against which it has been assessed and the delinquent list shall be certified by the secretary of the district to the sheriff of the county wherein the property so assessed is situated, and the same shall be collected by the sheriff in the same manner as state and county taxes, and bear the same penalty. In case the sum received from such assessment exceeds the total cost of items for which the same has been levied, the surplus shall be placed in the General Fund of the district and used to pay cost of construction: Provided, That if the district be dissolved before the improvements are completed, the amount of the surplus, if there be any, shall be prorated and refunded to the landowners paying such uniform tax.

§19-21-12. Board of appraisers.

After the board of supervisors has adopted the plan for reclamation the secretary of such board shall file a certified copy of same, together with a copy of the order of such board approving "the plan for reclamation," with the clerk of the circuit court in which the district was organized. The court shall then in term time, or the judge in vacation, by an order, appoint a board of three appraisers who are in no way interested in such proceedings, for the purpose of assessing benefits and damages that may result from the making of the improvements described and set forth in "the plan for reclamation" approved by the board of supervisors. The secretary of the board of supervisors shall transmit to such board of appraisers a certified copy of the petition and of "the plan for reclamation," which has been approved by the board of supervisors. The members of the board of appraisers, at a meeting to be held within ten days after their appointment, shall each take and subscribe to an oath before the clerk of the court that they will faithfully and impartially discharge their duties and make a true report of the work done by them. If any person appointed as an appraiser fails to take the oath within the prescribed time, he shall be deemed as having declined the appointment and the court or judge shall make further appointment either in term time or vacation. They shall at the same meeting organize by electing one of their number as chairman. A majority of said board of appraisers shall constitute a quorum and shall control the action of the board on all questions. The secretary of the board of supervisors shall furnish to the board of appraisers a complete list of lands and corporate and other property described in the petition.

§19-21-13. Assessment of benefits and damages; extension of district to include other lands; report of appraisers; compensation.

Within thirty days after qualifying, as provided in the previous section, the appraisers shall begin their duties; and the chief engineer or one of his assistants shall accompany such appraisers at all times and shall render his opinion in writing when called for. The appraisers shall proceed to view the premises and determine the value of all land and other property, within or without the district, to be acquired and used for rights-of-way or other works set out in "the plan for reclamation" and shall assess the amount of benefits, and the amount of damages, if any, that will accrue to each parcel of land, public highway, railroad and other right-of-way, railroad, roadway and other property, from carrying out and putting into effect "the plan for reclamation" heretofore adopted. The appraisers, in assessing the benefits to rights-of-way, railroad, roadway and other rights-of-way, railroad, roadway and other property not traversed by such works and improvements as provided for in "the plan for reclamation," shall not consider what benefits will be derived by such property after other drains, ditches, improvements or other plans for reclamation shall have been constructed, but they shall assess only such benefits as will be derived from the construction of the works and improvements set out in "the plan for reclamation," or as the same may afford protection from overflow to such property. The appraisers shall give due consideration and credit to any other ditch or other systems of reclamation, which may have already been constructed and which afford partial or complete protection to any tract or parcel of land in the new district, and if the appraisers shall find that any drain or other works have been constructed under any general or special law of this state, which can be used in making the drains and improvements herein contemplated, they shall include the same in their report, and thereafter the board of supervisors may order such drains or such works to be used, so far as they extend, for the purpose of the drainage district in which they are situated, and that the district or other owners of such drains or other improvements or persons having an interest therein by virtue of having contributed money, material or labor in the construction of the same, shall be allowed, in proportion to the interest held or owned in said drains or improvements, a compensation which shall not exceed the amount of such drainage district's indebtedness as evidenced by outstanding script, bonds or other evidences of indebtedness. The railroad and other rights-of-way, railroad and other property shall be assessed according to the increased physical efficiency and decreased maintenance cost by reason of the protection to be derived from the proposed works and improvements. The appraisers shall also assess all damages that will accrue to any landowner by reason of the proposed improvement, including all injury to lands taken or damaged; and when they return no such assessment of damages as to any tract of land, it shall be deemed a finding by them that no damage will be sustained.

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 clerk of 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 $5 per day for his services, and necessary expenses in addition thereto.

§19-21-14. Publication of appraisers' report.

Upon the filing of the report of the appraisers, the clerk of such court shall give notice thereof by causing publication of such report to be made 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 each county in the district. Notice shall be in form as follows:

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.

§19-21-15. Exceptions to appraisers' report; action of court thereon; review of assessments.

The drainage district, or any owner of land or other property in such district, may file exception to such report, or to any assessment for either benefits or damages, within ten days after the last day of publication of the notice provided for in the preceding section. All exceptions shall be heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of the district, and if it appears to the satisfaction of the court, after having heard and determined all of such exceptions, that the estimated cost of constructing the improvement contemplated in "the plan for reclamation" is less than the benefits assessed against the land and other property in such district, then the court shall approve and confirm such appraisers' report so modified and amended. The court shall adjudge and apportion the costs incurred by the exceptions filed and shall condemn any land or other property, within or without the boundary lines of the district, that is shown by the report of the appraisers to be needed for rights-of- way, holding basins and other works, or that may be needed for material to be used in constructing such works, following, as nearly as possible, the procedure that is now provided by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights-of-way. The clerk of such circuit court shall transmit a certified copy of the court's decree and a copy of the appraisers' report, as confirmed or amended by the court, to the secretary of the board of supervisors of the district, who shall make and transmit a certified copy of such decree and that part of the report affecting land in each county to the clerk of the county court of each county having lands in the district, or affected by such report, where the same shall become a permanent record. If, after determining the objections made to the appraisers' report, the court shall find that the estimated cost of works and improvements as approved by the board of appraisers, or as amended by the court, exceeds the estimated benefits, the court shall then render its decree declaring the district to be dissolved as soon as all costs incurred, which shall include court costs and all obligations and expenses incurred in behalf of the district by the board of supervisors shall have been paid; and if the uniform tax levied under the provisions of section eleven of this article be found insufficient to pay all such costs, the board of supervisors shall make such additional uniform tax levies as will be necessary to pay such deficiency.

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.

§19-21-16. Assessment of damages by jury.

Any property owner may accept the assessment of damages in his favor made by the appraisers, or acquiesce in their failure to assess damages in his favor, and shall be construed to have done so unless he gives to such board of supervisors, within thirty days after the assessment is filed, notice in writing that he demands an assessment of damages by a jury, in which event the board of supervisors shall institute in the circuit court an action to condemn the lands that must be taken or damaged in the making of such improvement, which action shall be in accordance with the proceedings for condemnation of rights-of-way by railroad, telegraph and telephone companies, with the right of paying into court a sum to be fixed by the circuit court or judge and of proceeding with the work before assessment by the jury. If there is more than one claimant to the lands and to the fund paid into court, all claimants may be made parties defendant in such suit, leaving the claimants to contest in that action their respective rights to the fund.

§19-21-17. Powers of board of supervisors; letting of contracts; persons to whom contract may not be awarded; payments to contractors.

The board of supervi