Senate Bill No. 145
(By Senators Manchin, Anderson, Grubb and Minard)
__________
[Introduced January 31, 1994; referred to the
Committee on Agriculture; and then to the
Committee on the Judiciary.]
__________
A BILL to amend and reenact section one, article nine, chapter
sixty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing the
commissioner of agriculture to promulgate legislative rules
relating to animal disease control.
Be it enacted by the Legislature of West Virginia:
That section one, article nine, chapter sixty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS
TO PROMULGATE LEGISLATIVE RULES.
§64-9-1. Commissioner of agriculture.
(a) The legislative rules filed in the state register on the
sixth day of April, one thousand nine hundred eighty-three,
relating to the commissioner of agriculture (schedule of charges
for inspection services: fruit), are authorized.
(b) The legislative rules filed in the state register on the
third day of August, one thousand nine hundred eighty-three,relating to the commissioner of agriculture (licensing of
auctioneers), are authorized.
(c) The legislative rules filed in the state register on the
eighth day of February, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (conduct of beef
industry self-improvement assessment program referendum), are
authorized.
(d) The legislative rules filed in the state register on the
fourth day of June, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (feeding untreated
garbage to swine), are authorized.
(e) The legislative rules filed in the state register on the
fourth day of June, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (registration,
taxation and control of dogs), are authorized.
(f) The legislative rules filed in the state register on the
first day of November, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (public markets), are
authorized.
(g) The legislative rules filed in the state register on the
tenth day of September, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (noxious weed rules),
are authorized.
(h) The legislative rules filed in the state register on the
fourth day of June, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (animal disease
control), are authorized.
(i) The legislative rules filed in the state register on the
fifth day of January, one thousand nine hundred eighty-four,
relating to the commissioner of agriculture (use of certain
picloram products), are authorized.
(j) The legislative rules filed in the state register on the
eighth day of March, one thousand nine hundred eighty-five,
relating to the commissioner of agriculture (increasing certain
fees by rules and regulations), are authorized.
(k) The legislative rules filed in the state register on the
thirteenth day of January, one thousand nine hundred eighty-six,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirty-first day of January,
one thousand nine hundred eighty-six, relating to the
commissioner of agriculture (licensing of livestock dealers), are
authorized.
(l) The legislative rules filed in the state register on the
eighteenth day of June, one thousand nine hundred eighty-six,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the fifth day of January, one
thousand nine hundred eighty-seven, relating to the commissioner
of agriculture (West Virginia pesticide use and application act),
are authorized.
(m) The legislative rules filed in the state register on the
eighteenth day of August, one thousand nine hundred eighty-six,
modified by the director of the division of forestry of thedepartment of agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the fifth day of January, one thousand nine hundred
eighty-seven, relating to the director of the division of
forestry of the department of agriculture (ginseng), are
authorized.
(n) The legislative rules filed in the state register on the
tenth day of April, one thousand nine hundred eighty-seven,
relating to the commissioner of agriculture (schedule of charges
for inspection services: fruit), are authorized.
(o) The legislative rules filed in the state register on the
thirteenth day of August, one thousand nine hundred eighty-seven,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the eighth day of September, one
thousand nine hundred eighty-seven, relating to the commissioner
of agriculture (animal disease control), are authorized.
(p) The legislative rules filed in the state register on the
fifteenth day of September, one thousand nine hundred eighty-
eight, relating to the commissioner of agriculture (sale and
distribution of commercial fertilizer), are authorized.
(q) The legislative rules filed in the state register on the
fifteenth day of September, one thousand nine hundred eighty-
eight, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of October,
one thousand nine hundred eighty-eight, relating to thecommissioner of agriculture (animal disease control), are
authorized.
(r) The legislative rules filed in the state register on the
fifteenth day of May, one thousand nine hundred eighty-nine,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-first day of August,
one thousand nine hundred eighty-nine, relating to the
commissioner of agriculture (production of milk and cream for
manufacturing purposes), are authorized.
(s) The legislative rules filed in the state register on the
seventh day of August, one thousand nine hundred eighty-nine,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-third day of October,
one thousand nine hundred eighty-nine, relating to the
commissioner of agriculture (animal disease control), are
authorized.
(t) The legislative rules filed in the state register on the
tenth day of August, one thousand nine hundred ninety, modified
by the commissioner of agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the fifth day of October, one thousand nine hundred
ninety, relating to the commissioner of agriculture (meat
inspection), are authorized.
(u) The legislative rules filed in the state register on the
tenth day of August, one thousand nine hundred ninety, modifiedby the commissioner of agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the third day of October, one thousand nine hundred
ninety, relating to the commissioner of agriculture (agricultural
liming materials), are authorized.
(v) The legislative rules filed in the state register on the
tenth day of August, one thousand nine hundred ninety, modified
by the commissioner of agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the third day of October, one thousand nine hundred
ninety, relating to the commissioner of agriculture (public
markets), are authorized.
(w) The legislative rules filed in the state register on the
nineteenth day of September, one thousand nine hundred ninety,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the ninth day of November, one
thousand nine hundred ninety, relating to the commissioner of
agriculture (animal disease control), are authorized.
(x) The legislative rules filed in the state register on the
eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (commercial feed), are authorized
with the amendments set forth below:
On page two, after subsection 3.3., by adding a new
subsection, designated subsection 3.4., to read as follows:
"3.4. The commissioner will not assess a tonnage fee on any
commercial feed or feed ingredients used in the manufacture of
poultry contract feed.";
On page five, after subsection 4.3.m., by adding a new
subsection, designated subsection 4.3.n., to read as follows:
"4.3.n. The commissioner will consider poultry contract
feed to be customer-formula feed.";
And,
On page eight, after subsection 5.5., by adding a new
subsection, designated subsection 5.6., to read as follows:
"5.6. Poultry contract feed labels shall conform to the
requirements of W. Va. Code §19-14-8(d), except that:
5.6.a. The name of the grower or feeder will substitute for
the requirements for the name of the purchaser; and,
5.6.b. The net weight (avoir dupois) of the commercial feed
and each feed ingredient used in the feed shall not be required
to be listed."
(y) The legislative rules filed in the state register on the
fourth day of June, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the second day of August, one
thousand nine hundred ninety-one, relating to the commissioner of
agriculture (wood destroying insect treatment standards), are
authorized.
(z) The legislative rules filed in the state register on the
twentieth day of December, one thousand nine hundred ninety,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirtieth day of April, one
thousand nine hundred ninety-one, relating to the commissioner of
agriculture (fee structure for the pesticide control act of
1990), are authorized.
(aa) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twelfth day of November, one
thousand nine hundred ninety-one, relating to the commissioner of
agriculture (animal disease control), are authorized.
(bb) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the tenth day of September, one
thousand nine hundred ninety-one, relating to the commissioner of
agriculture (West Virginia plant pest act), are authorized.
(cc) The legislative rules filed in the state register on
the twenty-sixth day of July, one thousand nine hundred
ninety-one, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the sixteenth day ofOctober, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (licensing of pesticide businesses),
are authorized.
(dd) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the second day of October, one
thousand nine hundred ninety-one, relating to the commissioner of
agriculture (certified pesticide applicators), are authorized.
(ee) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (assessment of civil penalties and
procedures for consent agreements and negotiated settlements),
are authorized.
(ff) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (aerial application of herbicides to
rights-of-way), are authorized.
(gg) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (frozen desserts and imitation frozen
desserts), are authorized, with the amendment set forth below:
On page twelve, by striking out all of section 15 and
substituting a new section 15, to read as follows:
"61-4B-15. Enforcement policy.
15.1. The commissioner may assess a violation of W. Va.
Code §19-11B-1 et seq. or of these rules against the manufacturer
of product and/or the distributor of the mix used to manufacture
the product.
15.2. The commissioner will assess any violations of W. Va.
Code §19-11B-1 et seq. or of this rule to the distributor for mix
sampled from unopened containers. The company will not be
assessed additional cumulative notices of violations until the
commissioner has determined that the firm has had adequate notice
of the previous notice, generally 10 days from the mailing of the
notice of violation.
15.3. Whenever one of the last five consecutive official
product sample(s) taken on separate days within a one year period
are found to be adulterated or misbranded, the commissioner shall
send a written "First Notice" to the manufacturer or distributor
whichever is appropriate. This notice shall notify themanufacturer or distributor of the violation of W. Va. Code §19-
11B-1 et seq. or of these rules and the enforcement policy
established by this section of the rule.
15.4. Whenever two of the last five consecutive official
product sample(s) taken on separate days within a one year period
are found to be adulterated or misbranded the commissioner shall
send a written "Second Notice" to the manufacturer or distributor
whichever is appropriate.
15.4.a. The commissioner shall collect additional official
product sample(s) within 21 days of the sending of a Second
Notice to the manufacturer or distributor, but shall not collect
product samples before the lapse of 7 days from the sending of a
Second Notice.
15.5. Whenever three of the last five consecutive official
product sample(s) taken on separate days within a one year period
are found to be adulterated or misbranded the commissioner shall
send a written "Third Notice" to the manufacturer or distributor
whichever is appropriate.
15.5.a. The commissioner shall collect additional official
product sample(s) within 21 days of the sending of the Third
Notice to the manufacturer or distributor, but shall not collect
additional product samples before the lapse of 7 days from the
date of sending of the notice.
15.6. The commissioner will issue a "Shut-down Order" for
a period of 24 hours to a manufacturer or distributor when the
record of the firm indicates that effective action has not been
taken to correct the causes of the violations, for instance whenthree out of the last five samples from the same machine are
violative. The "Shut-down Order" will normally be issued with
the "Third Notice". The "Shut-down Order" will give the reasons
for the order, state the portion of the manufacturing or
distributing operation that is prohibited from operating while
the order is in effect, give conditions of the order, state the
length of time that the Shut-down Order will be in effect and
specify a time and place for a hearing to be held in this matter.
Except that in the case where the public health, safety or
welfare is at risk, the commissioner will issue an immediate
Shut-down Order and give notice to the manufacturer or
distributor under the provisions of subdivision 15.6.a. of this
rule.
15.6.a. The commissioner will issue an immediate Shut-down
Order without giving the manufacturer or distributor the
opportunity to be heard where there is a hazard to the public
health, safety or welfare. In these cases, the manufacturer or
distributor will be given the opportunity to request a hearing
before the commissioner after the notification of the order is
received by the manufacturer or distributor. All Shut-down
Orders issued due to noncompliance with subdivisions 8.1.c.,
8.1.d. or 8.1.g. of this rule are considered to involve a risk to
the public health, safety or welfare.
15.6.b. The manufacturer or distributor will be responsible
for causing all operations covered by the Shut-down Order to
cease and follow all other conditions of the order. At the end
of the period of the order, the manufacturer or distributor mayresume operations without further action by the commissioner.
15.7. If after a Shut-down Order has been issued the
commissioner finds that effective corrective action has not been
taken, he may issue a suspension of the Frozen Desserts
Manufacturer Permit. The suspension shall state the time that
the suspension will become effective, give the reasons for the
suspension and specify a time and place for a hearing to be held
in this matter. Except that in the case of a summary suspension
the commissioner will give the manufacturer the opportunity to
request a hearing in this matter subsequent to the notification
of the suspension.
15.7.a. All suspensions due to nonconformance to
subdivisions 8.1.c., 8.1.d. or 8.1.g. of this rule are summary
suspensions.
15.7.b. A suspension of the Frozen Desserts Manufacturer
Permit remains in effect until the manufacturer submits and the
commissioner accepts a written plan of correction and a request
for a reinstatement of the permit.
15.7.c. The commissioner has seven days from the date of
receipt of this application to respond to a suspension in the
case of violations of subdivisions 8.1.c., 8.1.d. or 8.1.g. of
this rule and fourteen days to respond for all other violations
of W. Va. Code §19-11B-1 et seq. or these rules. The
commissioner will accept or deny the application for a
reinstatement of the permit and will give the terms and
conditions under which the permit will be reinstated.
15.8. If the commissioner finds that after the firm hasresumed production following a suspension of their Frozen
Desserts Manufacturer Permit that effective corrective action
has not been taken, then the commissioner will hold a hearing to
determine if the Frozen Desserts Manufacturer Permit should be
revoked.
15.9. Persons who manufacture a product on an intermittent
or infrequent basis, so that the standard enforcement policy
cannot apply, will enter into a consent agreement with the
commissioner for correction of all items found to be not in
conformance with W. Va. Code §19-11B-1 et seq. or these rules.
15.10. Whenever an antibiotic or pesticide residue test is
found to be above tolerance, the commissioner shall notify the
manufacturer and/or distributor immediately of this fact and
shall begin an investigation to determine the cause of the
residue. The commissioner shall require that any person found to
be responsible for the residue shall correct the cause of the
residue prior to the resumption of the manufacturing or
distribution of the product.
15.11. A person who performs a recall by voluntarily
removing product from sale and distribution in an effective
manner so as to limit the potential harm to the health and well-
being of the public may be eligible for exemptions from the
normal enforcement policy. The commissioner shall consider the
facts of each case when making a decision on an exemption.
15.12. The commissioner may apply the enforcement policy in
a liberal manner in cases where all official product sample
results that involve a product in the form actually sold to thepublic have been found to be in conformance with W. Va. Code §19-
11B-1 et seq. or these rules.
15.13. The commissioner may suspend the standard
enforcement policy in cases where such action is necessary to
protect the public health, safety or welfare.
15.14. Resamples will only be taken from machines that were
shown to be producing violative product the previous visit,
except for resamples needed to check that the nonviolative status
is being maintained according to the following schedule:
15.14.a. After a first notice and one nonviolative sample,
resamples will be taken between 5 to 6 months after the
nonviolative sample.
15.14.b. After a second notice and one nonviolative sample,
resamples will be taken between 3-4 months after the nonviolative
sample.
15.14.c. Other resamples may be considered necessary to
determine that the nonviolative status is being maintained."
(hh) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (West Virginia apiary law of 1991),
are authorized.
(ii) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (disposal of dead poultry), are
authorized with the amendments set forth below:
On page two, section two, by adding a new subsection to read
as follows:
"2.8 "Disposal pit" means an opening dug in the ground to
a minimum depth of six feet, containing a minimum capacity of 150
cubic fee, covered with a minimum of 12 inches of dirt, and
provided with one or more openings for the introduction of
poultry. The openings shall be a minimum size of eight inches
square and equipped with tight lids. A disposal pit shall be
located in a site which will prevent contamination of the
groundwater or the surface water. This site should conform to
the standards established in this rule."
On page two, subsection 3.1 after the word "incinerator," by
adding the words "disposal pit,"
And,
On page two, by adding a new section, designated section 4,
to read as follows:
"§61-1C-4. Standards for Site Location for Disposal Pits.
4.1 No part of a disposal pit system shall be located in a
poorly drained or filled area, or in any area where seasonal
flooding occurs.
4.2 No part of a disposal pit system shall be locatedwithin 10 feet of a building, foundation or property line.
4.3 No part of a disposal pit system shall be located
within 50 feet of a public water supply line or within 10 feet of
a private water supply system.
4.4 A disposal pit shall be located at least 50 feet from
a private well or groundwater supply.
4.5 There shall be a minimum of three feet between the
bottom of a disposal pit and seasonal groundwater or rock, shale
or any other impermeable layer.
4.6 The evaluation of the site for installation of a
disposal pit shall be based upon percolation test results.
Percolation tests shall be performed in the following manner:
4.6.1 Location - At least two holes shall be placed over
the selected site. The results of these two test holes will be
averaged.
4.6.2 Holes shall be dug or bored from six to eight inches
in diameter at the site where the disposal pit will be installed.
The holes should be at least 24 inches in depth.
4.6.3 The bottom and sides of the holes shall be scratched
with a sharp pointed instrument or wire brush to remove any
smeared soil surfaces which interfere with the absorption of
water into the soil.
4.6.4 Loose dirt shall be removed from the bottom of the
test holes and two inches of coarse sand or fine gravel shall be
placed into the holes to prevent sealing.
4.6.5 An eight or ten penny nail shall be placed in the
wall of each hole exactly six inches above the level of sand orgravel.
4.6.6 The test hole shall be completely filled with water
to ground level. Water in the hole shall be kept to a depth of
at least 12 inches for a minimum period of four hours before
beginning the percolation rate measurement.
4.7 Percolation rate measurement - Upon completion of the
above, the water depth in the holes shall be adjusted to the
level of the nail. The number of minutes it takes for this six
inches of water (all the water) to be absorbed into the soil
shall be accurately determined. This time in minutes, divided by
six, gives the rate of fall per inch. The average rate of fall
must be between five minutes and 60 minutes."
(jj) The legislative rules filed in the state register on
the eighth day of August, one thousand nine hundred ninety-one,
modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of
September, one thousand nine hundred ninety-one, relating to the
commissioner of agriculture (licensing of livestock dealers), are
authorized.
(kk) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the eighteenth day of
November, one thousand nine hundred ninety-two, relating to the
commissioner of agriculture (commercial feed), are authorized.
(ll) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the nineteenth day of
February, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (general groundwater protection rules
for fertilizers and manures), are authorized.
(mm) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the nineteenth day of
February, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (primary and secondary containment of
fertilizers), are authorized with the amendments set forth below:
"On page five, by striking out all of subsection 5.5 and
inserting in lieu thereof a new subsection 5.5 to read as
follows: 'The operator or his licensed representative shall sign
and date each application under oath.'; and
On page eighteen, by striking out all of subsection 14.1 and
inserting in lieu thereof a new subsection 14.1 to read as
follows:
'All moneys for the purpose of the enforcement and
administration of this rule shall come from general revenue funds
appropriated by the legislature for that purpose. The net
proceeds of civil penalties collected pursuant to W. Va. Code §20-5M-10a or any civil administrative penalties collected
pursuant to W. Va. Code §20-5M-10c will be deposited in the
groundwater remediation fund established in W. Va. Code §20-5M-1.
et seq.'".
(nn) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the nineteenth day of
February, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (general groundwater protection rules
for pesticides), are authorized.
(oo) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the nineteenth day of
February, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (bulk pesticide operational rules),
are authorized.
(pp) The legislative rules filed in the state register on
the fifteenth day of September, one thousand nine hundred
ninety-two, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the nineteenth day of
February, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (non-bulk pesticide rules forpermanent operational areas), are authorized.
(qq) The legislative rules filed in the state register on
the sixteenth day of April, one thousand nine hundred
ninety-three, modified by the commissioner of agriculture to meet
the objections of the legislative rule-making review committee
and refiled in the state register on the twenty-sixth day of
July, one thousand nine hundred ninety-three, relating to the
commissioner of agriculture (animal disease control), are
authorized.
_____
(NOTE: The purpose of this bill is to authorize the
Commissioner of Agriculture to promulgate legislative rules
relating to animal disease control.)
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