H. B. 2945
(By Delegates Williams, Stemple and Boggs)
[Introduced March 21, 2001; referred to the
Committee on Agriculture and Natural Resources then the
Judiciary.]
A BILL to amend and reenact section nine, article eleven, chapter
nineteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to requiring the
commissioner of agriculture to set a floor price on milk from
dairy farmers in the state.
Be it enacted by the Legislature of West Virginia:
That section nine, article eleven, 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 11. BULK MILK TRADE LAW.
§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 the 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; and
(q) Propose a legislative rule in accordance with article
three, chapter twenty-nine-a of this code intended to establish a
floor price on the sale of fluid milk (Class I): Provided, That
the commissioner in proposing a rule shall take into consideration
the fluid needs of consumers in this state so that the price paid
to producers accurately reflects a fair price based on the cost of
production of Class I fluid milk. If federal legislation to
establish a dairy compact is enacted the rules become null and
void.
NOTE: The purpose of this bill is to require the commissioner
of agriculture to propose a legislative rule setting a floor price
for the price of milk from milk producers in the state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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