HB4286 S AGR AM #1
The Committee on Agriculture and Rural Development moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-2H-1, §19-2H-2, §19-2H-3, §19-2H-4, §19-2H-5, §19-2H-6, §19-2H-7, §19-2H-8, §19-2H-9, §19-2H-10, §19-2H-11, §19-2H-12, §19-2H-13, §19-2H-14 and §19-2H-15; and that §20-1-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 2H. CAPTIVE CERVID FARMING ACT.
§19-2H-1. Short title; joint regulation.
(a) This article shall be known and may be cited as the Captive Cervid Farming Act.
(b) Captive cervid farming shall be jointly regulated by the Department of Agriculture and the Division of Natural Resources. (c) The department and division shall cooperate to implement the provisions of this article, promulgate rules, draft any Memorandums of Understanding or take other action as may be necessary for the proper and effective enforcement of these provisions.
§19-2H-2. Purpose and legislative findings.
(a) The purpose of this article is to promote this state’s agricultural economy, to preserve family farming opportunities, to encourage agricultural uses of the natural topography of the state’s rural lands and to foster job retention and job creation in the state’s rural areas by providing for comprehensive regulation of captive cervid farming as a viable agricultural business, while also preserving the importance of wildlife management and deer hunting in this state.
(b) The Legislature finds and declares that captive cervid farming is primarily an agricultural pursuit, and that captive cervids may be raised in a manner similar to other livestock. The Commissioner of Agriculture possesses the knowledge, training and experience required to properly regulate captive cervid farms and to adequately protect the health and safety of animals and the general public. The Legislature also finds and declares that matters related to promoting the cervid farming industry, the sale and regulation of cervid meat excluding white-tailed deer and elk meat, animal health, animal identification, record keeping and animal husbandry methods and equipment are best managed and regulated by the department.
(c) The Legislature further finds that the Division of Natural Resources is empowered to regulate and protect the native wildlife of this state, currently issues licenses for captive cervid facilities, and has natural resources police officers to enforce its regulations and permitting requirements. The division has a vested interest in maintaining the health and safety of wildlife as part of its wildlife management objectives, as well as encouraging the long tradition of deer hunting in this state. Fencing, pen size, entrapment of wildlife, interstate movement of captive cervids, escaping captive cervids, and chronic wasting disease management are best managed and regulated by the division.
As used in this article:
(1) “Bio-security” means measures, actions or precautions taken to prevent the transmission of disease in, among or between wild and captive cervids.
(2) “Captive cervid” or “captive cervids” means members 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 that are raised in captivity and under the control of the owner of the animal.
(3) “Captive cervid farm” means the captive cervids, the fenced area and all equipment and components regulated by the department and the division for use as a captive cervid farming operation as provided for in this article.
(4) “Commissioner” means the Commissioner of the West Virginia Department of Agriculture.
(5) “Department” means the West Virginia Department of Agriculture.
(6) “Division” means the Division of Natural Resources.
(7) “Identification system” means a process or procedure that allows an individual cervid to be continuously recognized and monitored as a unique animal throughout its lifetime.
(8) “License” means a Class One or Class Two Captive Cervid Farm License issued by the department for the operation of a captive cervid farm.
(9) “Owner” means the person who owns or operates a licensed captive cervid farm, or his or her agent or operator.
(10) “Permit” means a Captive Cervid Fencing Permit issued by the division for the operation of a captive cervid farm.
(11) “Person” means an individual, corporation, limited liability company, partnership, association, joint venture or other legal entity.
(11) “Release” means to allow a cervid from a licensed captive cervid farm to be outside the perimeter fence of the farm without being under the direct control of the owner.
§19-2H-4. Authority of the Department of Agriculture; rules.
(a) The department is granted the authority to regulate and control captive cervid farm licenses, applications, requirements, record keeping, animal husbandry, identification and tagging, disease prevention, inoculation and testing, fee schedule for services, species commingling, intrastate movement of captive cervids, captive cervid meat inspection and sales excluding white-tailed deer and elk, and inspections of captive cervid farms in this state in accordance with this article. Subject to the transition provisions contained in section twelve of this article, no person may operate a captive cervid farm in this state unless that person holds a license issued by the commissioner pursuant to this article.
(b) The commissioner shall promulgate emergency or legislative rules in accordance with article three, chapter twenty-nine-a of this code to provide for implementation and enforcement of this article.
(c) The rules, insofar as practicable, shall provide for the protection of animal and human health and promotion of bio-security that are consistent with the rules promulgated by the United States Department of Agriculture, Division of Animal and Plant Health Inspection Service.
(d) The rules shall include, but not be limited to, requirements that:
(1) Implement an identification system that allows individual captive cervid to be recognized, tracked and identified throughout the animal’s life;
(2) Specify the record-keeping standards required of licensees, including standards for documentation of purchases, propagation, sales, slaughtering and any other documentation required to maintain accurate and complete records of captive cervid farming operations;
(3) Establish animal health testing criteria to discover and prevent the spread of disease in captive cervids, to conduct testing and inoculations, and to impose quarantines; and
(4) Establish a schedule of fees and charges for services provided by the department to licensed captive cervid farms.
§19-2H-5. Authority of the Division of Natural Resources; rules.
(a) The division is granted the authority to regulate, control and inspect the fencing, pen size, entrapment of wildlife, escape of captive cervids, interstate movement of captive cervids, and management of chronic wasting disease and other diseases affecting cervids in this state in accordance with this article and chapter twenty of this code. Subject to the transition provisions contained in section twelve of this article, no person may operate a captive cervid farm in this state unless that person holds a permit issued by the director pursuant to this article.
(b) The director shall promulgate emergency or legislative rules in accordance with article three, chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of this article.
(c) The rules promulgated under this section shall include, but not be limited to, requirements that:
(1) Establish the specifications for fencing necessary to prevent the escape of captive cervids and the infiltration of wildlife into a licensed captive cervid farm. The fencing regulations shall be reasonable and comport with accepted industry and regulatory standards for captive cervids;
(2) Regulate the interstate movement of captive cervids and provide for maintenance of documentation of the origin and destination of all shipments and any other requisite documentation; and
(3) Maintain chronic wasting disease and other disease statistics, and develop any requisite management criteria for chronic wasting disease and other disease containment zones and intrastate movement of cervids therein to prevent the spread of the disease.
§19-2H-6. Duties of the commissioner and director.
Pursuant to the scope of his or her authority under this article, the commissioner or the director may:
(1) Establish a section and designate staff to implement this article;
(2) Contract with veterinarians, biologists or other animal health professionals to provide scientific expertise, services and testing to implement the provisions of this article;
(3) Enter into interstate contracts with other states to enhance the bio-security of captive cervid farms in this and other states;
(4) Lease, rent, acquire, purchase, own, hold, construct, equip, maintain, operate, sell, encumber and assign rights of any property, real or personal, consistent with the objectives set forth in this article;
(5) Hold hearings, subpoena witnesses, administer oaths, take testimony, require the production of evidence and documentary evidence and designate hearing examiners; and
(6) Take any other action necessary or incidental to the performance of their respective duties and powers under this article.
§19-2H-7. Application for license or permit.
(a) A person applying to operate a captive cervid farm in this state is required to have: 1) A Class One or Class Two Captive Cervid Farm License from the department; and 2) a Captive Cervid Fencing Permit from the division. The department and the division shall provide the forms and instructions for the license and permit applications.
(b) The following information shall be submitted by the person to the department for a license, and the division for a permit:
(1) The mailing address of the proposed captive cervid farm and the size, location and an adequate legal description of the farm;
(2) The number of each species of cervid proposed to be included in the proposed farm;
(3) The bio-security measures to be utilized, including, but not limited to, a description of the fencing and the animal identification system to be used;
(4) The proposed method of flushing wild white-tailed deer from the enclosure, if applicable;
(5) The record-keeping system;
(6) The method of verification that all wild white-tailed deer have been removed;
(7) The current zoning, if any, of the property proposed for the farm;
(8) Any other information considered necessary by the department or division; and
(9) A closure plan for the safe disposition of captive cervids.
(c) The application shall be accompanied by the biennial license and permit fees set forth below. The license and permit fees and classes may be amended by rule, and are as follows:
(1) Class One Captive Cervid Farm License. –- Issued by the department for a farm to be used only to breed and propagate cervids and create byproducts for sale: $500;
(2) Class Two Captive Cervid Farm License. -- Issued by the department for a farm to breed and propagate cervids and create byproducts for sale, and to slaughter and sell captive cervid meat, excluding the sale of white-tailed deer and elk meat: $1,250; and
(3) Captive Cervid Fencing Permit. -- Issued by the division for all captive cervid farms: $500.
§19-2H-8. Department and Division action on applications.
(a) The department shall act on an application for a license, and the division shall act on an application for a permit, within sixty days of receipt. The department may issue a provisional license, and the division a provisional permit, for a proposed farm that has not yet been constructed, but operations shall not begin until the completed farm has been inspected by the department and division, and each has issued a license or permit, respectively.
(b) The department and division may not issue a license or permit until it is determined that the captive cervid farm meets all of the following criteria:
(1) The captive cervid farm has been inspected by the department and division and meets the standards and requirements of this article and the rules promulgated thereunder;
(2) The applicant has all requisite federal, state and local governmental permits; and
(3) The owner has paid all applicable license and permit fees and all charges for services provided to the captive cervid farm.
(c) If the department or division finds a deficiency in the license or permit applications, the owner shall be given at least thirty days to remedy the deficiency before the license or permit application is denied.
(d) If the commissioner determines that the proposed captive cervid farm does not comply with the requirements of this article after the opportunity to remedy deficiencies, the commissioner shall deny the license application and notify the applicant in writing of the reasons for the denial.
(e) If the director determines that the proposed captive cervid farm does not comply with the permit requirements of this article after the opportunity to remedy deficiencies, the director shall deny the permit application and notify the applicant in writing of the reasons for the denial.
(f) The applicant may request a hearing from the commissioner for a license denial, or the director for a permit denial, pursuant to article five, chapter twenty-nine-a of this code to contest the denial of a license or permit, or any limitations placed upon the issuance of a license or permit.
(g) The department and division shall retain the license and permit fees regardless of approval.
§19-2H-9. License and permit certificates; renewal; nontransferable.
(a) Once approved, the department shall issue a license certificate, and the division shall issue a permit certificate, to the owner of the captive cervid farm containing information such as:
(1) The class of license, the license number, the permit number, and expiration dates;
(2) The cervid herd size and species approved for the farm;
(3) The name, business address, physical address and directions, and telephone number of the owner of the farm; and
(4) Emergency response and contact information for the captive cervid farm.
(b) An application for renewal of a license or permit shall be submitted on forms provided by the department or division not later than sixty days before expiration of the current license or permit. Each license or permit issued shall be for a period of two years from the date of issuance.
(c) The sale or transfer of ownership of a captive cervid farm will not operate to transfer the license or permit. The department or division may issue a new license or permit to the transferee if all requirements and fees are satisfied.
§19-2H-10. License and permit modification.
(a) An owner must apply to the department for a license modification if there is any proposed change in the class of license or the species approved for the captive cervid farm.
(b) An owner must apply to the division for a permit modification if there is any proposed change to the captive cervid farm permit.
§19-2H-11. Inspection of farm by the department and division.
The department and division shall have access at all reasonable hours to any licensed or provisional captive cervid farm for the purpose of conducting inspections, securing samples or specimens of any cervid species and determining whether the owner is in compliance with the requirements of this article. Any inspection and sampling shall be conducted in a manner that will foster the bio-security of captive cervid farms, and will not unnecessarily jeopardize the health of the captive cervids.
§19-2H-12. Transition to captive cervid farm license and permit process.
A captive cervid farm in existence on the effective date of this article may continue operation under its existing authorization until the department and division act on its application for a license and permit under this article if the owner of that farm applies for a license and permit within sixty days after application forms are made available to current licensees.
§19-2H-13. Noncompliance with article, standards, orders or rules; suspension, revocation or limitation of license or permit.
(a) The department may suspend, revoke or limit a license if the licensee fails to comply with this article, standards adopted under this article, orders issued by the commissioner as a result of an administrative action or departmental review conducted under this article or rules promulgated under this article.
(b) The division may suspend, revoke or limit a permit if the permittee fails to comply with this article, standards adopted under this article, orders issued by the director as a result of an administrative action or review conducted under this article or rules promulgated pursuant to this article.
§19-2H-14. Prohibited conduct; violation; penalty.
(a) A person may not recklessly release or permit the release of a captive cervid from a captive cervid farm. A person may not intentionally or recklessly allow the entry or introduction of wild white-tailed deer into a captive cervid farm. Any person who violates this subsection is guilty of a misdemeanor and, upon conviction thereof, shall, for a first offense, be confined in jail for not more than ninety days, or fined not less than $50 nor more than $300 or both fined and confined. Any person who violates this subsection 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 less than $500 nor more than $1,000, or both fined and confined.
(b) Any person who intentionally releases captive cervids into the wild, or releases or abandons captive cervids by failing to properly close or wind down a captive cervid farm, 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 less than $2,000 nor more than $5,000, or both fined and imprisoned.
§19-2H-15. Findings of violations; remedies.
(a) The commissioner or director, upon finding that a person has violated a provision this article or the rules promulgated thereunder, may:
(1) Issue a warning; or
(2) Impose a civil penalty of not more than $1,000 per violation, plus the costs of investigation, for each violation, after notice and an opportunity for a hearing. A person aggrieved by an administrative action under this section may request a hearing pursuant to article five, chapter twenty-nine-a of this code.
(b) Notwithstanding any other provisions of this article, the commissioner or director may bring an action to:
(1) Obtain a declaratory judgment that a particular method, activity or practice is a violation of this article; or
(2) Obtain an injunction against a person who is engaging in a method, activity or practice that violates this article.
(c) The remedies under this article are cumulative and use of one remedy does not bar the use of any other remedy.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
As used in this chapter, unless the context clearly requires a different meaning:
(1) "Agency" means any branch, department or unit of the state government, however designated or constituted.
(2) "Alien" means any person not a citizen of the United States.
(3) "Bag limit" or "creel limit" means the maximum number of wildlife which may be taken, caught, killed or possessed by any person.
(4) “Big game” means elk, white-tailed deer, black bears, wild boars and wild turkeys.
(5) "Bona fide resident, tenant or lessee" means a person who permanently resides on the land.
(6) "Citizen" means any native-born citizen of the United States and foreign-born persons who have procured their final naturalization papers.
(7) "Closed season" means the time or period during which it shall be unlawful to take any wildlife as specified and limited by the provisions of this chapter regulation.
(8) "Commission" means the Natural Resources Commission.
(9) "Commissioner" means a member of the advisory commission of the Natural Resources Commission.
(10) "Director" means the Director of the Division of Natural Resources.
(11) "Fishing" or "to fish" means the taking, by any means, of fish, minnows, frogs or other amphibians, aquatic turtles and other forms of aquatic life used as fish bait, whether dead or alive.
(12) "Fur-bearing animals" include:(a) The mink; (b) the weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and civet cat, commonly called polecat; (g) the otter; (h) the red fox; (i) the gray fox; (j) the wildcat, bobcat or bay lynx; (k) the raccoon; and (l) the fisher.
(13) "Game" means big game, game animals, game birds, and game fish and small game as herein defined.
(14) "Game animals" include:(a) The elk; (b) the white-tailed deer; (c) the cottontail rabbits and hares; (d) the fox squirrels, commonly called red squirrels, and gray squirrels and all their color phases - red, gray, black or albino; (e) the raccoon; (f) the black bear; and (g) the wild boar.
(15) "Game birds" include:(a) The anatidae, commonly known as swan, geese, brants and river and sea ducks; (b) the rallidae, commonly known as rails, sora, coots, mudhens and gallinule; (c) the limicolae, commonly known as shorebirds, plover, snipe, woodcock, sandpipers, yellow legs and curlews; (d) the galliformes, commonly known as wild turkey, grouse, pheasants, quails and partridges (both native and foreign species); (e) the columbidae, commonly known as doves; (f) the icteridae, commonly known as blackbirds, redwings and grackle; and (g) the corvidae, commonly known as crows.
(16) "Game fish" include:(a) Brook trout; (b) brown trout; (c) rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f) smallmouth bass; (g) spotted bass; (h) striped bass; (i) chain pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all sunfish species; (r) channel catfish; (s) flathead catfish; (t) blue catfish, (u) sauger; and (v) all game fish hybrids.
(17) "Hunt" means to pursue, chase, catch or take any wild birds or wild animals. Provided, That wildlife. However, the definition of “hunt” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.
(18) "Lands" means land, waters and all other appurtenances connected therewith.
(19) "Migratory birds" means any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States, known as the Migratory Bird Treaty Act, for the protection of migratory birds and game mammals concluded, respectively, August 16, 1916, and February 7, 1936.
(20) "Nonresident" means any person who is a citizen of the United States and who has not been a domiciled resident of the State of West Virginia for a period of thirty consecutive days immediately prior to the date of his or her application for a license or permit except any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition.
(21) "Open season" means the time during which the various species of wildlife may be legally caught, taken, killed or chased in a specified manner and shall include both the first and the last day of the season or period designated by the director.
(22) "Person", except as otherwise defined elsewhere in this chapter, means the plural "persons" and shall include or “persons” mean individuals, partnerships, corporations or other legal entities.
(23) "Preserve" means all duly licensed private game farmlands farms, or private plants, ponds or areas, where hunting or fishing is permitted under special licenses or seasons other than the regular public hunting or fishing seasons. The term “preserve” does not mean a captive cervid farm pursuant to article two-h, chapter nineteen of this code, though a captive cervid farm may also be licensed as a preserve.
(24) "Protected birds" means all wild birds not included within the definition of "game birds" and "unprotected birds".
(25) "Resident" means any person who is a citizen of the United States and who has been a domiciled resident of the State of West Virginia for a period of thirty consecutive days or more immediately prior to the date of his or her application for a license or permit. Provided, That However, a member of the armed forces of the United States who is stationed beyond the territorial limits of this state, but and who was a resident of this state at the time of his or her entry into such the service, and any full-time student of any college or university of this state even though he or she is paying a nonresident tuition, shall be considered a resident under the provisions of this chapter.
(26) "Roadside menagerie" means any place of business, other than a commercial game farm, commercial fish preserve, place or pond, where any wild bird, game bird, unprotected bird, game animal or fur-bearing animal is kept in confinement for the attraction and amusement of the people for commercial purposes.
(27) “Small game” includes all game animals, furbearing animals and game birds except elk, white-tailed deer, black bears, wild boars and wild turkeys.
(28) "Take" means to hunt, shoot, pursue, lure, kill, destroy, catch, capture, keep in captivity, gig, spear, trap, ensnare, wound or injure any wildlife, or attempt to do so. Provided, That However, the definition of “take” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.
(29) "Unprotected birds" shall include:(a) The English sparrow; (b) the European starling; and (c) the cowbird.
(30) "Wild animals" means all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats.
(31) "Wild birds" shall include all birds other than:(a) Domestic poultry - chickens, ducks, geese, guinea fowl, peafowls and turkeys; (b) psittacidae, commonly called parrots and parakeets; and (c) other foreign cage birds such as the common canary, exotic finches and ring dove. All wild birds, either:(i) Those occurring in a natural state in West Virginia; or (ii) those imported foreign game birds, such as waterfowl, pheasants, partridges, quail and grouse, regardless of how long raised or held in captivity, shall remain wild birds under the meaning of this chapter.
(32) "Wildlife" means wild birds, wild animals, game, and fur-bearing animals, fish (including minnows), reptiles, amphibians, mollusks, crustaceans and all forms of aquatic life used as fish bait, whether dead or alive. native to the state of West Virginia unless the context indicates otherwise.
(33) "Wildlife refuge" means any land set aside by action of the director as an inviolate refuge or sanctuary for the protection of designated forms of wildlife.