ENROLLED
H. B. 4332
(By Delegates Beach and Williams)
[Passed March 12, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact article sixteen, chapter nineteen of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, relating to rewriting the agricultural and
forest seed law and designating the article as the West
Virginia seed law; providing definitions; labeling
requirements for agricultural, vegetable, tree and shrub
seeds and seed potatoes; certificates of registration
requirements, seed fees and use of the fees by the
commissioner of agriculture; prohibiting distributions or
transportations of certain seeds and other acts; exemptions;
power and authority of the commissioner of agriculture;
right of embargo and seizure by commissioner; and providing
civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article sixteen, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 16. WEST VIRGINIA SEED LAW.
§19-16-1. Definitions.
(a) "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.
(b) "Blend" means seed consisting of more than one variety
of a kind, each in excess of five percent by weight of the whole.
(c) "Brand" means a word, name, symbol, number, design or
device, or any combination thereof, identifying the seed of one
person and distinguishing it from all others.
(d) "Bulk" means seed when loose in vehicles of
transportation or in storage, or in retail displays and not in
seed bags or other containers.
(e) "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.
(f) "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.
(g) "Commissioner" refers to the commissioner of agriculture
of the state of West Virginia or a duly authorized employee.
(h) "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.
(i) "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.
(j) "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.
(k) "Distribute" means to offer for sale, sell, expose for
sale, exchange or barter seed for sowing purposes within the
state.
(l) "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.
(m) "Dormant" means viable seed, excluding hard seed, which
fail to germinate when provided the specified germination conditions for the kind of seed in question.
(n) "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.
(o) "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.
(p) "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.
(q) "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.
(r) "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.
(s) "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.
(t) "Label" means a display of written, printed or graphic
matter affixed to the container or package in which seed is
distributed; or affixed to the invoice, delivery slip or other
shipping document which accompanies bulk lots of seed. All
labels shall be legible and in English.
(u) "Labeling" means all written, printed, or graphic matter
or advertisement referencing the seed.
(v) "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.
(w) "Mixture", "mix", or "mixed" means seed consisting of
more than one kind, each in excess of five percent by weight of
the whole.
(x) "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.
(y) Noxious weed seeds are divided into two classes:
"Prohibited noxious weed seeds" and "restricted noxious weed
seeds" as defined in subdivisions (1) and (2) of this subsection:
(1) The term "prohibited noxious weed seeds" are those weed
seeds which are prohibited from being present in agricultural,
vegetable, tree or shrub seed. They are the seeds of weeds which
are highly destructive and difficult to control by good cultural
practices and the use of herbicides;
(2) The term "restricted noxious weed seeds or undesirable
grass seed" are those weed seeds which are objectionable in
agricultural crops, lawns and gardens of this state and which can
be controlled by good cultural practices or the use of
herbicides.
(z) "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.
(aa) "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.
(bb) "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.
(cc) "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.
(dd) "Person" means an individual, partnership, corporation,
company, association, receiver, trustee, agent, fiduciary, firm
or any group of organized persons whether incorporated or not.
(ee) "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.
(ff) "Registrant" means any person who registers as a
seedsman in order to distribute seed for sowing purposes within
the state.
(gg) "Seed potato" refers to the Irish potato (Solanum
tuberosum) 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.
(hh) "Seizure" means a legal process carried out by court
order against a definite amount of seed.
(ii) "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.
(jj) "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.
(kk) "Tree and shrub seeds" includes seeds of woody plants
commonly known and sold as tree and shrub seeds in this state.
(ll) "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.
(mm) "Type" means a group of varieties so nearly similar
that the individual varieties cannot be clearly differentiated except under special conditions.
(nn) "Variant" means any seed or plant which: (A) Is
distinct within the variety but occurs naturally in the variety;
(B) 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
(C) was originally a part of the variety as released. A variant
is not an off-type.
(oo) "Variety" means a subdivision of a kind which is
distinct, uniform and stable.
(1) "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.
(2) "Uniform" means that the variations in essential and
distinctive characteristics are describable.
(3) "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.
(pp) "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.
(qq) "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 seeds and seed potatoes.
Each container of agricultural or vegetable 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.
(a) For all treated agricultural and vegetable 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 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 human 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.
(b) For agricultural seeds, except for grass seed mixtures,
seed sold on a pure live seed basis or for hybrids which contain
less than ninety-five 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:
Provided, That if the variety of
those kinds generally labeled as to variety is not stated, the
label shall show the name of the kind and the words, "Variety Not
Stated." 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.
(c) For grass seed mixtures for lawn or turf purposes the
label shall include the following:
(1) The word "mixed" or "mixture" with the name of the
mixture;
(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
ten percent by weight. Except for coating material, fertilizer and mulch as provided by subdivision (3), subsection (d) 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 that are required to be labeled by
rule and listed under the heading "Noxious Weed Seeds";
(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;
(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; and
(9) The name and address of the person who labeled the seed,
or who distributes the seed within the state.
(d) 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; and
(4) Percentage of germination, to be determined on 400
pellets with or without seeds.
(e) 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) The year for which the seed was packed for sale as
"Packed for _____________" or the percentage germination and the
calendar month and year the test was completed to determine the
percentage; and
(4) The name and address of the person who labeled the seed
or who distributes the seed for sale within this state.
(f) 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.
(g) 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.
(h) 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.
(i) For agricultural and vegetable hybrid seed which contain
less than ninety-five 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
(eighty-five percent Hybrid); and
(3) Varieties in which the pure seed contain less than
seventy-five percent hybrid seed which shall not be labeled as
hybrids.
(j) For agricultural and vegetable seeds, the label may show an expiration date in lieu of:
(1) The calendar month and year of a germination test or
pure live seed test; and
(2) The year for which the seed was packaged.
(k) 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 thirty 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 seventy
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 seventy 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; and
(I) The name and address of the person who labeled the seed,
or who distributes the seed within this state.
(l) The labeling requirements for agricultural, and
vegetable 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.
(m) 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.
(n) 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 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 human 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 paragraphs (i), (ii) and (iii) of this
subparagraph, 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.
(o) 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.
§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 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 the thirty-first day of December
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 fifteen days prior to the expiration of the current
registration; or at least fifteen 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 of two dollars to the fee
for each registration 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 semiannual basis. Each report
shall be filed under oath and is due before the thirty-first day
of January and July of each year for the preceding six-month
period. He or she shall pay the tonnage fee according to the fee
schedule for agriculture, vegetable, tree and shrub seeds as set
by legislative rules.
(f) Persons distributing vegetable 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 during the first
six months of the year. The report and appropriate fee is due by
the thirty-first day of July 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, or tree and shrub 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 seeds or
seed potatoes within this state:
(1) Which have not been tested to determine germination
rates as required under sections three and four of this article;
(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 disseminate any false or misleading advertisement
concerning seeds subject to this article in any manner or by any
means;
(3) To interfere with the commissioner's official duties;
(4) 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;
(5) To use the word "trace" as a substitute for any
statement which is required;
(6) To use the word "type" in any labeling in connection
with the name of any agricultural seed variety;
(7) To distribute or knowingly use any agricultural,
vegetable or tree and shrub seed that is misbranded;
(8) To misbrand any agricultural, vegetable, or tree and
shrub seed or seed potato. An agricultural, vegetable, tree or
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;
(9) 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;
(10) 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, or tree and shrub seed or
seed potatoes; or
(11) To falsify any laboratory reports regarding seed
distributed within this state.
§19-16-5. Exemptions.
(a) The provisions of sections two, three, four and eight of
this article 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 processing establishment for cleaning
or processing:
Provided, That the invoice, label or labeling
accompanying any shipment of the seed bears the statement "seeds
for processing"; and that any label or labeling or other
representation which may be made with respect to the uncleaned or
unprocessed 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, processing 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 sections two and three of this article
do not apply to tree seed produced by the consumer.
§19-16-6.
Duties and authority of commissioner of agriculture.
The commissioner may:
(a) Establish by legislative rule germination standards for
agricultural, forest, vegetable seeds;
(b) Enter and inspect, during reasonable hours, any location
where agricultural, vegetable, tree and shrub 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,
or tree and shrub seeds 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, or
tree and shrub 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 analytical chemists, 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, or
tree and shrub 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 thirty 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 seeds 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
article three, chapter twenty-nine-a of this code; and
(u) Promulgate emergency rules within ninety days of the
passage of this bill into law.
§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, 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.