Enrolled Version - Final Version
House Bill 2663 History
OTHER VERSIONS -
Key: Green = existing Code. Red = new code to be enacted
H. B. 2663
(By Delegates Beach, Stemple, Proudfoot,
Swartzmiller, Williams, Anderson and Schoen)
[Passed April 9, 2005; in effect ninety days from passage.]
to amend and reenact §19-1A-3 and §19-1A-3a of the Code of
West Virginia, 1931, as amended, all relating to digging,
growing, collecting, gathering, possessing and selling
ginseng; defining certain terms; authorizing Division of
Forestry to regulate ginseng; providing rule-making authority;
establishing ginseng harvest seasons; requiring permits to
grow or dig ginseng, or to act as dealer; providing exceptions
to the permit requirement; setting forth other permit
requirements; requiring records be kept; authorizing certain
inspections; requiring ginseng to be certified; providing for
denial, suspension or revocation of permit; and establishing
civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
§19-1A-3 and §19-1A-3a
of the Code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 1A. DIVISION OF FORESTRY.
§19-1A-3. Division of Forestry; Division Director; duties, powers,
dedication of certain moneys; creation of a special
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
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
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
regulate the commerce in ginseng in a manner that
survival of wild ginseng.
(2) For purposes of this section:
(i) "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;
(ii) "Commercial use" means to sell or to use ginseng for
(iii) "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;
(iv) "Dealer" means a person who purchases ginseng for
purposes of commercial use;
(v) "Digger" means a person who digs, collects or gathers wild
ginseng by searching woodlands to find the plants;
(vi) "Director" means the Director of the Division of
(vii) "Division" means the Division of Forestry;
(viii) "Export" means the movement of ginseng from state to
state as well as sending it abroad;
(ix) "Ginseng" means cultivated ginseng, woods grown ginseng,
wild simulated ginseng and wild ginseng;
(x) "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.
(xi) "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;
(xii) "Harvest" means to dig, collect or gather ginseng;
(xiii) "Person" means an individual, corporation, partnership,
firm or association;
(xiv) "Rootlets" means woods grown or wild simulated one to
two-year old ginseng roots commonly sold as transplants to growers;
(xv) "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;
(xvi) "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
(xvii) "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
(3) (i) The Division of Forestry shall regulate the growing,
digging, collecting, gathering, possessing and selling of ginseng.
(ii) The Division may propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this section including the
amount of any permit fee.
(iii) 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. No person may obstruct or hinder the employee in the
discharge of his or her enforcement duties.
(iv) 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.
(v) The site plats required to be submitted to the Division
and other information identifying the specific location of
plants are not open to public inspection pursuant to article one,
chapter twenty-nine-b of this code since they disclose information
having a significant commercial value.
(b) (1) The digging season for wild ginseng begins on the
first day of September and ends on the thirtieth day of November of
each year. It is unlawful for a person to dig, collect, or gather
wild ginseng between the first day of December and the thirty-first
day of August of the following year.
(2) A person digging, collecting, or gathering wild ginseng
upon the enclosed or posted lands of another person shall first obtain written permission from the landowner, tenant or agent, and
shall carry the written permission on his or her person while
digging, collecting or gathering wild ginseng upon the enclosed or
posted lands. It is unlawful to dig, collect, or gather wild
ginseng from the property of another without the written permission
of the landowner.
(3) A person digging, collecting or gathering wild ginseng
shall plant the seeds from the wild ginseng plants at the time and
at the site from which the wild ginseng is harvested. It is
unlawful to remove wild ginseng seeds from the site of collection.
(4) It is unlawful to dig, collect or gather wild ginseng less
than five years old.
(5) No person may 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
(6) It is unlawful to plant ginseng or ginseng seed and to
dig, collect or gather ginseng on West Virginia public lands.
(c) (1) No person may 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:
(i) Submit to the Director
a plat of the exact planting
location prepared by a licensed surveyor or a registered forester
as defined in article nineteen, chapter thirty of this code, along
with information verifying the name of the landowner: Provided,
That if the grower is not the landowner, the grower shall also
submit written permission from the landowner to grow and harvest
cultivated, woods grown or wild simulated ginseng on that property;
(ii) Obtain a written determination from the Director
certifying that the planting area is free from wild ginseng; and
(iii) 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
(i) The origin of ginseng seed, rootlets or plants;
(ii) The location of purposefully planted cultivated, wild
simulated and woods grown ginseng and a site plat of the planting;
(iii) The original of the Director's determination that the
site was free from wild ginseng at the time of planting;
(iv) The date each site was planted;
(v) The number of pounds of seeds planted, or the number and age of rootlets, or both; and
(vi) Other information required by the Division.
(4) A grower may harvest cultivated ginseng on or after the
effective date of this section throughout the year.
(5) A grower may harvest wild simulated and woods grown
ginseng from the first day of September through the thirtieth day
of November of each year.
(6) It is unlawful for a person to dig, collect or gather wild
simulated and woods grown ginseng between the first day of December
and the thirty-first day of August.
(7) It is unlawful to dig, collect and gather wild simulated
and woods grown ginseng less than five years old.
(8) A grower shall comply with the certification procedures
set forth in subdivision (f) of this section.
(d) (1) No person may act as a dealer unless he or she has
obtained a dealer's permit from the Division.
(2) A dealer shall keep accurate and complete records on his
or her ginseng transactions on forms provided by the Division. A
dealer is required to maintain a record of all persons, including
a digger, grower and dealer, involved in each purchase or sale
transaction and shall include the name, address, permit number, and
a copy of each ginseng certification issued by the Division. All
records shall be available for inspection by a Division employee.
A dealer shall maintain records for a period of not less than ten years. In addition, a dealer is required to report the following
information to the Division monthly:
(i) The date of the transaction;
(ii) The type of ginseng, whether wild, cultivated, woods
grown or wild simulated ginseng;
(iii) Whether the ginseng is dried or green at the time of the
(iv) The weight of the ginseng;
(v) The county from which the ginseng was harvested;
(vi) The identification number from the state ginseng
(vii) 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
(4) No dealer may 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-
(e) (1) No person may dig wild ginseng, or act as a grower, or
act as a dealer unless he or she has been issued the appropriate
permit by the Division. A person must obtain a separate permit for
each activity. Permit applications shall be made on forms provided
by the Division. The application for a permit shall be accompanied
by the applicable permit fee. The Division shall assign a permit
number to each person granted a permit and it shall keep records of
the permits issued.
(2) Permits expire on the thirty-first day of December of each
year and 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)(1) All ginseng harvested in this state shall be certified
as to type, whether wild, cultivated, woods grown or wild
simulated, and to its origin, weight and lawful harvest. Other
information may be required for ginseng to be certified by the
Division to comply with the Convention on International Trade in
Endangered Species of Wild Fauna and Flora to allow for its export:
Provided, That live one and two-year old cultivated, woods grown or
wild simulated rootlets sold by growers for propagation purposes within the United States are not regarded as harvested and are
exempt from the certification requirement. All ginseng, except
cultivated ginseng, must be certified or weight receipted by the
first day of April of the year following harvest: Provided, That
no ginseng may be certified between the first day of January
through the thirty-first day of March unless the person requesting
certification displays a valid permit. It is unlawful for a person
to have in his or her possession uncertified wild ginseng from the
first day of April through the thirty-first day of August.
(2) The Director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code designed to implement the ginseng certification process.
(g) (1)The Division may, by order entered in accordance with
the provisions of article five, chapter twenty-nine-a, deny,
suspend or revoke the permit of a grower or dealer and may
invalidate an export certificate completed by a dealer when the
Division finds that a grower or dealer has violated any provision
of this section or a legislatively approved rule.
(2) The Division may assess a civil penalty against a person
who violates any provision of this section or a provision of a
legislatively approved rule. The Division may assess a monetary
penalty of not less than one hundred dollars nor more than five
(h) (1) Any person violating a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than five hundred
dollars for the first offense, and for each subsequent offense,
shall be fined not less than five hundred dollars nor more than one
thousand dollars, or confined in jail not more than six months, or
both. The court, in imposing the sentence of a person convicted of
an offense under this section, shall order the person to forfeit
all ginseng involved in the offense.
(2) 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