title-61•Title 61 W. Va. C.S.R.
Agriculture Agriculture
Series 01 Animal Disease Control
W. Va. Code R. § 61-1-1 General
1.1. Scope. -- This legislative rule establishes general operating rules and procedures in the Animal Health Division which are established to prevent, suppress, control and eradicate communicable diseases of livestock and poultry.
1.2. Authority. -- W. Va. Code §19-9-2, §19-9-4.
1.3. Filing Date. -- April 13, 2021
1.4. Effective Date. -- May 3, 2021
1.5. Sunset Provisions. -- This rule shall terminate and have no further force or effect on August 1, 2031.
W. Va. Code R. § 61-1-2 Incorporation by Reference
2.1. 9 C.F.R. §79 (“Scrapie in Sheep and Goats”) is incorporated by reference.
2.2. 9 C.F.R. §71.19 (“Identification of swine in interstate commerce”) is incorporated by reference.
2.3. 9 C.F.R. §86 (“Animal Disease Traceability”, defined by the United States Department of Agriculture/Veterinary Services) is incorporated by reference.
2.4. 9 C.F.R. §101-124 (“Viruses, Serums, Toxins, and Analogous Products; Organisms and Vectors”, defined by the United States Department of Agriculture/Veterinary Services) is incorporated by reference.
2.5. 9 C.F.R. §166 (“Swine health Protection” defined by the United States Department of Agriculture/Veterinary Services) is incorporated by reference.
W. Va. Code R. § 61-1-3 Definitions
3.1. “Accredited Veterinarian” means any veterinarian accredited by APHIS and approved by the Animal Health Official of the state where the veterinarian is doing business.
3.2. “Animal” means a bird, fish, reptile, or mammal other than man.
3.3. “APHIS” means the Animal and Plant Health Inspection Service or its successor agency of the United States Department of Agriculture.
3.4. “Approved E.I.A. and/or Pseudorabies Laboratory” means any United States Department of Agriculture laboratory approved for conducting an official E.I.A. (Coggins') test and/or an official pseudorabies test.
3.5. “Approved Livestock Market” means a livestock market with an Accredited Veterinarian or Animal Health Official on site to monitor the health of livestock offered for sale to the general public. The market shall not require a CVI for arriving interstate livestock.
3.6. “Biologicals” mean products intended for diagnostic or therapeutic purposes in animals other than man.
3.7. “Boar” means any male swine used for or intended to be used for breeding purposes.
3.8. “Brucellosis or Bang's Disease” means an infectious disease in bovine animals caused by any member of the Genus Brucella. Any animal is considered infected with brucellosis if it has a positive reaction to any APHIS approved test for brucellosis, or if any member of the Genus Brucella has been found in the body or its secretions or discharges, or if it has been treated with a live culture of Brucella.
3.9. “Calves” mean bovine animals which have not reached the usual age of maturity for the particular breed.
3.10. “Camelids” means llama, alpaca or camel of any age.
3.11. “Cattle” means bison or bovine animals of any age.
3.12. “Certificate of Veterinary Inspection (CVI)” means an official form issued by an accredited veterinarian in the state of origin and approved by the Animal Health Official of the state of origin listing all animals (with an accurate description and official identification) covered by the certificate that have been examined by the person issuing the form, stating the nature of the examination and the findings of the health of the animals covered by the certificate. In addition, the CVI shall contain the names and address of the consignor and the consignee of the animals, the vaccinations that the animals may have received and the dates that the vaccinations occurred. The CVI is void thirty (30) days after issuance.
3.13. “Certified Brucellosis Free Herd” means a herd which is certified as free from brucellosis by the Commissioner and APHIS.
3.14. “Cervidae” means a deer or elk of any age.
3.15. “Commissioner” means the Commissioner of the West Virginia Department of Agriculture or his or her agent. Employees of the Veterinary Services of APHIS have the authority to act as agents of the commissioner.
3.16. “Communicable disease” means all the diseases listed in W. Va. Code §19-9-1(e) and the diseases avian influenza, Exotic Newcastle Disease, Scrapie and any disease defined by USDA/APHIS.
3.17. “Equine” means an animal that is a member of the Equine genus including horses, ponies, mules, asses, donkeys, and zebras.
3.18. “E.I.A. Reactor” means an equine one (1) year of age or older who has had two (2) consecutive positive tests for E.I.A. performed in an approved E.I.A. laboratory and one (1) additional positive test performed in a United States Department of Agriculture. The animal may not show clinical signs of the disease.
3.19. “Exposed E.I.A. Animal” means any equine that is or has been stabled or commingling within 200 yards of any other equine that has had a positive E.I.A. (Coggins') test and may include an animal which has had the same handler as the equine that has had the positive E.I.A. (Coggins') test.
3.20. “Farm” means a contiguous parcel of land operated as a unit. Parcels of land owned by a farmer, but separated by other farms are considered separate farms.
3.21. “Feeder pig” means any immature swine used for or intended to be used exclusively for feeding for slaughter.
3.22. “Feral swine” means populations or individuals of swine that are unrestrained and have adapted to living in the wild or are free-roaming in the environment, excluding wild boar.
3.23. “Fur bearing animal” means a mink, weasel, muskrat, beaver, opossum, skunk, civet cat (commonly called polecat), otter, red fox, gray fox, wildcat, bobcat, bay lynx, raccoon or fisher.
3.24. “Histopathology service” means the preparation and staining tissue for microscopic viewing for the detection of abnormalities which may be indicative of a disease or condition.
3.25. “Honor Flock” means a flock of breeding sheep for which the owner has completed required online or mail-in certification via the State Veterinarian’s offices, or that has been inspected on the farm by WVDA Animal Health personnel or an accredited veterinarian and found to be free of communicable diseases, specifically sore mouth and foot rot. This certificate is good for one (1) year from the date of issuance. Honor flock sheep must pass inspection at entrance to exhibitions and may be rejected from the event if there are signs of communicable disease, parasitism, injury, or other conditions perceived detrimental for animal health and welfare.
3.26. “Honor herd” means a herd of breeding goats for which the owner has completed required online or mail-in certification via the State Veterinarian’s offices, or that has been inspected on a farm by WVDA Animal Health personnel or an accredited veterinarian and found to be free of communicable diseases, specifically sore mouth and foot rot. This certificate is good for one year from the date of issuance. Honor herd goats must pass inspection at entrance to exhibitions and may be rejected from the event if there are signs of communicable disease, parasitism, injury, or other conditions perceived detrimental for animal health and welfare.
3.27. “Immediate slaughter” means movement to a slaughter facility for humane processing no longer than thirty days (30) after importation into the state or entering slaughter-only channels at an approved livestock market.
3.28. “Indemnity” means money paid by the commissioner to the owner of an animal found to be a reactor for a communicable disease which cannot be cured or controlled by isolation and adequate or proper veterinary treatment. The amount of the indemnity will be the difference between the sale price of the animal and the value of the animal in the certificate of appraisal.
3.29. “Laboratory services” means those procedures done in the laboratory.
3.30 “National Poultry Improvement Plan (NPIP)” means a cooperative federal-state-industry mechanism for controlling certain poultry diseases as set forth in the National Poultry Improvement Plan and Auxiliary Provisions set forth in Title (44) of the Code of Federal Regulations Parts 145 through 147 and part 56 published March 22, 2011.
3.31. ”Non-reactor” means an animal showing a negative reaction noted by a specific titer to a test.
3.32. “Official pseudorabies serologic test” means an official pseudorabies test conducted on swine serum to detect the presence or absence of pseudorabies antibodies.
3.33. “Official Pseudorabies Test” means any test for the diagnosis of pseudorabies approved by the United States Department of Agriculture and conducted in an approved laboratory.
3.34. “PCR” means Polymerace Chain Reaction.
3.35. “Person” means any individual, partnership, association, fiduciary, firm, company, corporation or any organized group of persons whether incorporated or not. The term extends to the agents, servants, officers and employees of the person.
3.36. “Poultry” means domesticated fowl, including chickens, turkeys, ostriches, emus, rheas, cassowaries, waterfowl, and game birds (except doves and pigeons) that are bred primarily to produce eggs and meat.
3.37. “Poultry sale” means a sale of various poultry breeds by lot or individual at a location where comingling of poultry takes place.
3.38. “Pseudorabies or Aujesky's disease (“mad itch”) means an infectious and contagious disease of swine and certain other warm-blooded animals.
3.39. “Quarantine Pen” means a partitioned-off space within the livestock sale facility where animals can be placed at the discretion of the State Veterinarian or his or her designee and have no direct contact with any other non-diseased or affected animals.
3.40. “Ratite” means any group of flightless birds having a flat breastbone without the keel-like prominence characteristic of most flying birds. This includes, but is not limited to the emu, ostrich, and rhea.
3.41. “Reactor” means any animal that responds to a test for a particular disease showing a positive titer above that which is considered a negative or suspect reaction for a particular disease.
3.42. ”Restricted vaccines” means vaccines containing live, modified-live or infectious agents for any disease known to be a public health hazard, or that is for diseases not yet known to occur in this State or are capable of causing harm to man or animals when misused.
3.43. “Sow” means any female swine used for or intended to be used for breeding purposes.
3.44. “Stocker cattle” means sexually intact cattle not consigned to slaughter.
3.45. “Suspect” means an animal that shows a titer to a particular test that makes it uncertain whether the animal has been exposed or has the particular disease.
3.46. “Test” means an examination made to determine the presence or absence of antibodies to a disease or an incriminating reaction to an antigen or other activities to determine whether or not an animal has a particular disease.
3.47. “Trichomoniasis” means a venereal disease of cattle caused by the organism Tritrichomonas foetus.
3.48. “Tuberculosis” means an infectious disease caused by Mycobacterium bovis, commonly known as the tubercle bacillus.
3.49. “User fees” means those fees collected from users of the laboratory’s services.
3.50. “Vaccine” means any biological that is a preparation of live, modified-live or killed infectious agents or a preparation of tissue that is administered to produce or artificially increase immunity to a particular disease.
3.51. “Vaccination” means the inoculation of an animal with a vaccine.
3.52. “Veterinarian” means any veterinarian employed by a state or federal agency, any veterinarian in this state that is recognized by the West Virginia Veterinary Medical Association, any licensed veterinarian, or any livestock technician employed by the commissioner.
3.53. “Virgin Bull” means sexually intact male cattle which have not serviced a cow and which are not more than eighteen (18) months of age as determined by the presence of the two permanent central incisors in wear or by the birth date on breed registry papers certified by the breeder; or not more than 30 months of age and certified by both the breeder based on the birth date and confirmed by a veterinarian that the bull facility is sufficient to prevent contact with female cattle. The certification by the breeder is valid for 60 days and may be transferred within that timeframe with an original signature of the consignor.
3.54. “Wild animal” means any mammal native to the State of West Virginia, occurring either in a natural state or in captivity. The term does not include mice and rats.
3.55. “Wild bird” means any bird native to the state, or migrating through this state and includes any imported foreign game bird, such as a pheasant, partridge, quail, grouse or waterfowl regardless of whether the birds are held in captivity or not. The term does not include a chicken, duck, goose, guinea fowl, peafowl, turkeys, common canary, exotic finches, ring doves or psittacidae.
3.56. “Wildlife” means any wild bird, wild animal, game animal, fur-bearing animal, fish (including minnows), amphibians, aquatic turtles or any aquatic animal used as fish bait, whether dead or alive.
W. Va. Code R. § 61-1-4 Biologicals
4.1. The Commissioner shall publish a list of the restricted vaccines on January 1 of each year. This list shall be provided to any person upon request.
4.2. A person shall not manufacture, offer for sale, or sell any biological in this state without a valid permit for the sale of biologicals issued by the commissioner.
W. Va. Code R. § 61-1-5 Transporting and possessing of live feral swine
5.1. It is prohibited to release into the wild any domestic livestock or pets, captive wildlife used for agriculture farming purposes, and any captive wildlife species non-native to West Virginia, except as prescribed under West Virginia Code.
5.2. Transporting and possessing of live feral swine is prohibited. Intentional release of domesticated swine for the purposes of establishing a feral swine population is prohibited. Chronic neglect of fencing for domestic swine that could result in the establishment of a population of feral swine is considered an intentional release. The intentional feeding of feral swine is prohibited.
W. Va. Code R. § 61-1-6 Quarantines
6.1. The Commissioner may place a special or a general quarantine on any animal or animals as provided by W. Va. Code §§19-9-13,14 and 15 and by this rule, when any animal is found to be infected with any contagious or infectious disease, when he or she suspects that any animal is infected with any contagious or infectious disease, or when the animal has been imported into this state in violation of the provisions of W. Va. Code §19-9-1 et seq. or this rule.
6.2. The Commissioner may extend the special or general quarantine to the premises where the animal is or has been located when the premises is suspected of being capable of transmitting the disease to other animals or humans, or the animal needs to be segregated from other animals so as not to transmit the disease to other animals or humans.
6.3. The Commissioner may extend the special or general quarantine to the meat or milk products of any animal found to be, or suspected of having, any contagious or infectious disease and to any equipment used in the collection, transportation, processing or manufacturing of the meat or milk products of the animal.
6.4. A person shall not move any animal or article under quarantine from the area specified in the quarantine while the quarantine is in effect, except when the Commissioner gives written permission for this movement to take place.
6.5. The Commissioner will release quarantine when the animal, product or location under quarantine is found to be free of disease or not capable of causing the transmission of disease to other animals or man.
6.6. The Commissioner shall allow those animals that were released from quarantine when found to be free of disease to enter commerce free from any restraint caused by the quarantine.
W. Va. Code R. § 61-1-7 Tuberculosis or Brucellosis in Cattle
7.1. No person other than an accredited veterinarian, a qualified official of the United States Department of Agriculture or agents of the Commissioner may perform any activity for the control or eradication of brucellosis or tuberculosis.
7.2. Each laboratory performing tests for brucellosis or tuberculosis shall report, in writing, to the Commissioner, the results on all tests for brucellosis and tuberculosis as soon as the test results are received. Each report shall contain a description of the animal including the animal’s tattoo or ear tag number and any other marks of identification, the sex, the age, the breed, the complete test results, the name and address of the owner of the animal, the place where the animal was located when tested, and the name and address of the person testing the animal.
7.3. The test results for brucellosis will be evaluated with other factors such as the age of the animal, the vaccination status, if any, and the herd conditions when the Commissioner is determining if an animal is a reactor. An animal tested at a public market may be considered a reactor when both the buffered plate antigen at a 1/25 dilution of serum and the standard card test results are positive.
7.4. The Commissioner may quarantine any female animal who has not had a calf when found to be a progeny of a cow that is a reactor to brucellosis until the animal has had a calf and a subsequent negative test for brucellosis.
7.5. The Commissioner shall quarantine any nursing bull calf found in this state that is a progeny of a cow that is a reactor to brucellosis until that animal has been castrated or the Commissioner gives a special permit for the movement of that animal.
7.6. The Commissioner shall mark any animal found to be infected with tuberculosis or brucellosis by placing an ear tag supplied by APHIS in the left ear of the animal and branding the animal high on the left hip near the tail head with the capital letter "B" for brucellosis or the capital letter "T" for tuberculosis in letters not less than 2 inches high and 12 inches wide. The Commissioner may accept the use of hot brands for this purpose.
7.7. Any person owning any animal infected with or exposed to tuberculosis or brucellosis that is under quarantine may apply to the Commissioner for a permit to move the animal to slaughter. The application shall include the complete description of the animal, the place where the owner wishes to have the animal slaughtered and any other information that the Commissioner may require to determine if he or she should grant a permit.
7.7.a. If the Commissioner grants a permit to move to slaughter and issues a VS FORM 1-27 for this purpose, the permit shall specify all conditions for movement under which the permit is approved, including the requirement that the slaughter take place under the supervision of an authorized Federal or State meat plant veterinarian. The Commissioner shall require the authorized Federal or State meat plant veterinarian supervising the slaughter to provide him or her immediately with a post-mortem report on the animal in the case where the animal was found to be a reactor to tuberculosis.
7.8. The Commissioner shall pay an indemnity to the owner of any bison or bovine animal that has been found to be infected with either brucellosis or tuberculosis or to be a reactor to these diseases under the following conditions:
7.8.a. Funds for the payment of indemnities are available to the Commissioner;
7.8.b. The animal was located in this state when it was when found to be infected or when found to be a reactor;
7.8.c. The animal was tested for brucellosis using an APHIS approved test by veterinarians employed by APHIS or by the Commissioner or for tuberculosis using an APHIS approved test by an accredited veterinarian;
7.8.d. The animal had been vaccinated for brucellosis within the age limits prescribed by the Commissioner, as specified in section 9 of this rule, and the animal was at least 20 months of age, if it was a dairy type breed, or at least 24 months of age, if it was a beef type breed when found to be infected or when found to be a reactor;
7.8.e. The animal was not vaccinated for brucellosis as an adult nor maintained in a herd where vaccination for brucellosis of any animal in the herd has occurred at an age other than that specified in section 9 of this rule;
7.8.f. The animal has been quarantined, branded, issued a certificate of appraisal by the Commissioner and slaughtered under the supervision of a Federal or State meat plant veterinarian;
7.8.g. The owner of the animal has allowed a quarantine to be placed on all the animals remaining under his or her ownership, signed an agreement with the Commissioner listing all cattle owned by him or her and agreed to testing for brucellosis or tuberculosis on all cattle listed in the agreement. The owner has further agreed to destroy any animal found to be infected within 15 days of the date that the Commissioner issues a certificate of appraisal for any animal found to be infected;
7.8.h. The owner of the animal has agreed to comply with W. Va. Code §§19-9-28 through 19-37 and with the provisions of this rule;
7.8.i. The owner of the animal has agreed to make any further additions to the herd in compliance with the provisions of W. Va. Code §19-9-1 et seq. and with section 6 of this rule;
7.8.j. The owner of the animal has cleaned and disinfected all premises where the animal was located while it was infected;
7.8.k. The owner has not been negligent nor carelessly exposed any animals under his or her care to brucellosis or tuberculosis, and the owner has not purchased any animal that he or she knew or had reason to believe that had a communicable disease;
7.8.l. The owner of the animal is not any governmental agency or a political sub-division of this state;
7.8.m. The owner of the animal or his or her agent has not been previously found to have engaged in any fraudulent attempt to obtain an indemnity for any animal; and
7.8.n. The owner of the animal has sold the animal at the highest possible price.
7.9. The Commissioner will issue a certificate of appraisal based on the purebred value of the animal only when the purebred registration certificate is submitted to the Commissioner prior to making the appraisal. If the animal is less than three (3) years of age, the Commissioner may amend the appraisal within 30 days after the original certificate was issued when the breed association submits the registration certificate for the animal. All other certificates of appraisal shall appraise the cattle at a value of a non-purebred, or grade, animal.
7.10. The Commissioner shall require that any herd that has been released from a brucellosis quarantine after the reactor animals in the herd have been removed, be retested for brucellosis at 9 and at 12 months after the quarantine is lifted.
W. Va. Code R. § 61-1-8 Animal Importation
8.1. A person shall not import any animal into this state in violation of the provisions of W. Va. Code §19-9-1 et seq. or this rule. Any animal that is imported into this state in violation of W. Va. Code §19-9-1 et seq. or this rule is subject to quarantine at the expense of the owner of the animal. Animals imported into this state for the sole purpose of exhibition at a fair or festival or for sale at a purebred consignment sale are subject to the provisions of section 8 of this rule in addition to those of this section.
8.2. Except for the provisions of this section, no person may import any animal into this state that is infected with a communicable disease, that has recently been exposed to a communicable disease, or that is from an area under a state or federal quarantine.
8.3. A person shall not import any animal into this state for breeding purposes or that is to be included in a dairy herd without a valid CVI.
8.4. The Commissioner may require that an animal that is imported into this state for sale at a public market or for exhibition at a fair or festival in this state have a valid CVI issued by an accredited veterinarian when the protection of the public and/or animal health of this state warrants this requirement.
8.5. The animal health official of the state of origin of the animal to be imported into this state should forward the CVI to the Commissioner, in care of the Animal Health Division, prior to the importation of the animal.
8.5.a. The Commissioner will not accept an CVI unless the name of the consignor and the consignee of the animal, an accurate description or identity of the animal, the general health status and any other information that is required by the provisions of this rule are listed on the certificate.
8.6. The Commissioner may decline to accept the CVI of any animal, and thus prevent the importation of the animal, under the provisions of W. Va. Code §19-9-25.
8.7. The Commissioner may require that an animal have a special permit issued by him or her prior to importation into this state as specified by this section.
8.7.a. When the Commissioner requires that the animal to be imported have a special permit, the owner or cosigner of the animal shall apply to the Commissioner for the permit. The application shall state the name of the owner, the description of the animal, the place of origin and the destination of the animal. The application may cover the importation of more than one animal if the origin and the destination are the same.
8.7.b. A person shall not import an animal that requires a special permit for entry without a valid special permit and may not import an animal in any manner that is contrary to the provisions of the permit issued.
8.7.c. The Commissioner will not issue a special permit for any animal that is not consigned to a legal resident of this state.
8.7.d. The Commissioner will issue a special permit for a period not to exceed fifteen (15) days after the date of issue.
8.8. The Commissioner may allow any animal that does not have, or that has not been exposed to a communicable disease, to be imported into this state for immediate slaughter without an CVI. The commissioner will allow an animal to be imported into this state for immediate slaughter when that animal has a communicable disease or has been exposed to a communicable disease only under the provisions of this section.
8.9. Nursing animals may be imported into this state on the dam's test or status, except where otherwise specified.
8.10. Any person in possession of any animal that is imported into this state shall maintain the CVI on the waybill that shall accompany the animal at all times.
8.11. All owners and operators of common carriers, railway cars, trucks and any other conveyance may not move livestock into this state or through this state unless the common carrier, railway car, truck or other conveyance:
8.11.a. is maintained in a sanitary condition, or
8.11.b. has been thoroughly cleaned and sanitized after use for the transportation of any animal that has been exposed to or that has any communicable disease. In the case where any animal that has been exposed to or has tuberculosis, the owner or operator of that conveyance shall maintain proof with the waybill that the cleaning and sanitizing of the conveyance has occurred under official supervision.
8.12. Cattle.
8.12.a. A person shall not import into this state any bison or bovine animal that is affected with or has been exposed to scabies.
8.12.b. The Commissioner may require bison or bovine animals that are not capable of reproducing to have had a tuberculosis test prior to entry.
8.12.c. The Commissioner shall allow any bison or bovine animal infected with brucellosis or tuberculosis to enter this state only for slaughter and only when a VS FORM 1-27 has been issued for that animal.
8.12.d. A person shall not import any bison or bovine animal into this state that has been infected with or has been exposed to brucellosis or tuberculosis without a valid special permit issued by the commissioner.
8.12.d.1. The special permit that the commissioner issues for an animal exposed to brucellosis or tuberculosis shall require that the animal be quarantined for not less than ninety (90) days after importation and shall be retested after that time at the owner's expense to determine that the animal is not infected with, or a reactor to, brucellosis or tuberculosis.
8.12.e. A person shall not import any bovine into this state that is from a herd that has been under quarantine for tuberculosis during the 12 months previous to the importation unless that animal has had a negative tuberculosis test no more than 2 months prior to importation into this state.
8.12.f. The Commissioner may allow any bison or bovine animal imported for breeding purposes or for use in a dairy herd to be imported into this state with an CVI and:
8.12.f.1. may enter without a tuberculosis test on the animal when that animal comes from a herd that has been completely tested for tuberculosis and found to contain no reactors within 12 months prior to the importation, or when the animal comes from a herd that is accredited as Tuberculosis Free by APHIS, or from a state designated as being tuberculosis free by APHIS, or
8.12.f.2. with a negative tuberculosis test no more than 2 months prior to importation into this state.
8.12.g. The Commissioner may require that any female animal that has not had a calf, but that has been vaccinated for brucellosis and comes from a herd of unknown brucellosis status, may not be imported into this state until a special permit has been issued. The special permit shall require that the animal be quarantined until after the animal's first parturition and a subsequent negative test result for the presence of brucellosis.
8.12.h. The Commissioner may allow any bovine to be imported for immediate slaughter, or to a public stockyard without a CVI or a special permit. However, the Commissioner shall require any bovine that has been vaccinated for brucellosis at an age older than 240 days be issued a VS FORM 1-27 prior to the importation of the animal for the purpose of immediate slaughter.
8.12.i. A person shall not import for feeding purposes any bison or bovine animal that has been infected with tuberculosis or brucellosis.
8.12.i.1. The Commissioner shall require that any bison or bovine animal that has been infected with tuberculosis or brucellosis be imported into this state only with a valid VS FORM 1-27 issued by APHIS and only for movement directly to slaughter.
8.12.j. The Commissioner may prohibit any person from importing any bovine into this state for breeding or milking purposes from any state that is designated a "Free" or "Class A”or equivalent state as designated by the United States Department of Agriculture unless the following conditions are met:
8.12.j.1. The animal is:
8.12.j.1.A. verifiable progeny of a herd that is a United States Department of Agriculture Certified Brucellosis Free Herd. The latest complete herd test date and results shall be noted on the CVI; or
8.12.j.1.B. from a "Free" state and has been tested and found to be free of brucellosis within 1 (1) month of importation into this state. Officially vaccinated dairy type animals less than 20 months of age and officially vaccinated beef type animals less than 24 months of age are exempt from the test required; or
8.12.j.1.C. testing may be waived if originating from a brucellosis-free state, or
8.12.j.1.D. from a "Class A" state or equivalent and shall be:
8.12.j.1.D.1. from a herd that has had a complete herd test for brucellosis not more than 12 months and not less than 3 (3) months prior to the importation; or
8.12.j.1.D.2. from a herd that has had a negative milk ring test not more than 6 (6) months and not less than 180 days prior to entry; and
8.12.j.1.D.3. each individual animal shall have had a negative brucellosis test no more than 30 days prior to entry, except for official vaccinates of dairy breeds that are less than 20 months of age, or for official vaccinates of beef breeds that are less than 24 months of age where the brucellosis test is not required.
8.12.k. A person shall not import into this state any bovine under 18 months of age that is capable of reproducing for feeding purposes without a CVI, some form of permanent identification, and without allowing the Commissioner to place the animal under quarantine until it is slaughtered or moved out of this state. The Commissioner shall require any animal that is capable of reproducing that is over 18 months of age that is imported into this state, to meet all the requirements of cattle imported for breeding cattle.
8.12.l. All bulls imported for breeding purposes must be PCR negative for trichomoniasis within 60 days of importation. Virgin bulls are exempt per definition.
8.13. Goats.
8.13.a. A person shall not import any goat into this state that has been infected with or has been exposed to brucellosis or tuberculosis without a valid special permit issued by the Commissioner.
8.13.b. The Commissioner may prohibit any person from importing any goat into this state for breeding or milking purposes unless that animal has a valid CVI showing that the animal has had a negative tuberculosis test within 2 months prior to entry into this state or that the animal has been maintained in a herd that is a United States Department of Agriculture Accredited Tuberculosis Free Herd.
8.13.c. The Commissioner may prohibit any person from importing any goat into this state for breeding or milking purposes without a valid CVI showing that the animal has had a negative brucellosis test within 1 (1) month prior to entry into this state or that the animal has been maintained in a herd that is a United States Department of Agriculture Certified Brucellosis Free Herd.
8.14. Equines.
8.14.a. A person shall not import any equine, for any purpose, except for sale at an approved public market, without a valid CVI. All equines going through an approved public market must show the results of a negative approved APHIS test for Equine Infectious Anemia. The Commissioner shall accept the test result from another state if the test was conducted within 12 months prior to importation into this state.
8.15. Sheep and lambs.
8.15.a. A person shall not import any sheep or lambs into this state for any purpose other than immediate slaughter without a valid CVI showing the that flock of origin was fully examined not more than 30 days prior to entry into this state and found to be free of scabies, contagious ecthyma (sore mouth), foot rot, or any other contagious or communicable disease.
8.15.b. The Commissioner shall prohibit the importation of any sheep or lambs into this state that have a condition that can be treated with full immersion in a pesticidal solution, unless that animal has been treated within 10 days prior to entry into this state.
8.16. Swine.
8.16.a. A person shall not import into this state any swine that has been vaccinated for pseudorabies.
8.16.b. A person shall not import into this state any swine that does not have a valid CVI that identifies the animal and states that the animal is free of any infectious or contagious disease. A health certificate and individual identification may, at the discretion of the Commissioner, be the minimum requirements if the swine are consigned to slaughter.
8.16.c. A person shall not import into this state any swine that are to be used for breeding purposes without an CVI showing that the animal has been:
8.16.c.1. tested negative to an official brucellosis test within 1 month prior to importation if the animal is not from a herd that has a certification from the United States Department of Agriculture as a validated brucellosis free herd and the CVI shows the date of the last brucellosis test on that herd; and
8.16.c.2. tested negative to an official pseudorabies serologic test or other official pseudorabies test within 1 month prior to importation, if the animal is not from a herd that has a certification as a qualified pseudorabies negative herd. The date of the last pseudorabies test shall be listed on the health certificate.
8.16.d. Swine shall not be imported into this State that have been fed or have had access to uncooked garbage. All persons, firms, corporations, partnerships or associations, or employees of the same, who operate a public market, concentration point, pickup station or any other kind of business where livestock is bought, sold, traded or received for resale, whether licensed by the Commissioner or not, shall not receive for resale, buy, sell or trade in any manner whatsoever any swine that they have reasons to believe have been fed or have had access to uncooked garbage.
8.17. Wildlife.
8.17.a. The Commissioner will not allow the importation of any wildlife into this state without a valid CVI and without evidence that the animal has been issued a valid "Wildlife Importation Permit" by the Division of Natural Resources, unless that animal is not required to obtain that permit by the Department of Natural Resources.
8.17.b. Cervidae and Elk.
8.17.b.1. A person shall not import any animal of the Cervidae genus, except for animals that are consigned directly to slaughter, without a valid CVI issued by an accredited veterinarian and a special permit from the Commissioner. The CVI shall indicate that the animal:
8.17.b.1.A. is from a herd that has had no tuberculosis reactors found during a complete herd test for tuberculosis on all animals 6 months of age and older within the 12 months prior to the importation; and,
8.17.b.1.B. is an animal that has had a negative tuberculosis test within 2 months prior to the importation of the animal; and
8.17.b.1.C. has had a negative brucellosis test within 1 month prior to the importation of the animal.
8.17.b.2. For purposes of this section, the complete herd test for tuberculosis shall use the single cervical test as prescribed by the United States Department of Agriculture on December 31, 1990.or equivalent approved test (DPP Test Dual Path Platform Test April 2014), approved by USDA APHIS Veterinary Services.
8.17.b.3. A person shall not import any animal of the Cervidae genus consigned directly to slaughter without an CVI and may only import an animal that has been exposed to tuberculosis or brucellosis with a VS FORM 1-27 issued by APHIS accompanying the animal.
8.17.c. No person may import any animal into West Virginia that is to be placed in a zoo, or is of a species likely to be found in a zoo, without a valid CVI issued by an accredited veterinarian. The CVI shall state that the animal has been examined within 1 month prior to entry and found to be free of any communicable disease not known to have been exposed to any communicable disease.
8.18. Dogs and Cats.
8.18.a. A person shall not import any dog or cat into this state that is over 2 months of age without a valid CVI stating that the animal over 6 months of age has had a rabies vaccination within the 12 months prior (unless the animal is between 6 and 18 months of age) to the importation. Dogs and cats must be vaccinated for rabies by 6 months of age.
8.19. Birds Other than ratites.
8.19.a. A person shall not import any bird that is from a flock that is known to be infected with pullorum/typhoid or that is from an area under quarantine for Avian Influenza or Viscerotropic Velogenic Newcastle Disease.
8.19.b. The Commissioner requires that any bird that is imported into this state be accompanied by:
8.19.b.1. a statement completed and signed by the owner of the bird upon entry into this state that the bird has been free from disease for the 30 days prior to the importation of the bird and did not originate from a flock known to be infected with pullorum/typhoid; and
8.19.b.2. a United States Department of Agriculture Form 9-2 from the tester stating that the birds have been tested for pullorum/typhoid within 3 months prior to the date of the importation; or
8.19.b.3.a United States Department of Agriculture Form 9-3 from the tester indicating that the bird has originated from a flock that is not infected with pullorum/typhoid; and
8.19.b.4. a United States Department of Agriculture Form 9-3 stating that a minimum of 20 birds per flock or the entire flock of 20 birds or less has a negative test for Avian Influenza within 10 days prior to import and this applies to breeder flocks/egg production; or be a participant in the National Poultry Improvement Avian Influenza Program. The test shall be a NPIP approved procedure.
8.19.c. All other birds, except those identified below, shall be tested for pullorum/typhoid/Avian Influenza and shown to be free of disease by a tester within ten days prior to the time of importation or exhibition. The following birds are exempted from Avian Influenza and Pullorum import testing requirements, providing they originate from a state not affected by Virulent Newcastle Disease (VND) or Avian Influenza (AI):
8.19.c.1. Individual exotic pet birds;
8.19.c.2. Non-Gallinaceous birds held in collections by accredited zoos; and
8.19.c.3. Other birds not defined as poultry.
8.19.d. Imported animals not meeting the requirements of this subsection shall be placed under quarantine at the discretion of the Commissioner, until completion of required testing.
8.19.e. Birds imported into West Virginia for immediate/direct slaughter that are classified as non-commercial according to the National Poultry Improvement Plan (NPIP) are required to show that a minimum of 20 birds per flock or the entire flock of 20 birds or less has a negative test for Avian Influenza within 14 days prior to import for slaughter. Poultry imported into West Virginia for slaughter must originate from flocks participating in the NPIP or be tested negative for pullorum/typhoid with 90 days of entry for slaughter.
8.20. Ratites.
8.20.a. A person shall not import any ratite that is from a flock or farm known to be infected with any communicable disease.
8.20.b. The Commissioner requires that any ratite imported into this state be accompanied by:
8.20.b.1. an approved health certificate issued by an accredited veterinarian;
8.20.b.2. a negative AGID test for avian influenza in a federal approved laboratory within 14 days prior to shipment with test date and results listed on the health certificate;
8.20.b.3. permanent identification listed on the health certificate; and
8.20.b.4. a permit issued by the West Virginia Department of Agriculture, with the permit number listed on the interstate health certificate.
8.21. Camelids.
8.21.a. A person shall not import any camelid that is from a farm known to be infected with any communicable disease.
8.21.b. The Commissioner requires that any camelid imported into this state be accompanied by an approved health certificate issued by an accredited veterinarian.
W. Va. Code R. § 61-1-9 Rules for Livestock Sales
9.1. The Commissioner may test all bovine animals that are over 18 months of age and sexually intact, for the presence of brucellosis except for:
9.1.a. any male animal that is considered to be too dangerous to test; and
9.1.b. any official vaccinate that is under 20 months of age for animals of dairy-type breeds and under 24 months of age for animals of beef-type breeds.
9.2. The Commissioner shall require that any animal considered to be too dangerous to test for brucellosis be consigned directly to slaughter.
9.3. The Commissioner may require that any animal, including female nursing calves of a reactor, found to be a reactor for brucellosis at a public sale be issued a VS FORM 1-27 and be permanently identified as a brucellosis reactor by the Commissioner’s agent at the sale and be consigned directly to a slaughterhouse from the public sale. However, male nursing calves may be returned to the owner after castration.
9.4. The Commissioner shall allow animals at a public sale that are found to be commingled with positive brucellosis-tested animals, as well as the animals that are positive to the buffered plate antigen at 1/25 dilution of serum and the standard card test, to be:
9.4.a. returned to the owner in this State. The animals and the herd of origin will be placed under quarantine and the animals shall not be returned to commerce until the herd is tested clean; or
9.4.b. returned to the owner in a state other than West Virginia after agreement of the commissioner, the United States Department of Agriculture and the animal health official of the state of origin.
9.5. The Commissioner shall require that any animal found to be diseased, down, drugged or dying be placed in the quarantine pen and disposed of at the discretion of the State Veterinarian or his or her designee.
9.6. Any sheep or goat involved in an intrastate or interstate transfer of ownership shall have identification consistent with the Official USDA Scrapie Identification Program.
9.7. Any swine involved in intrastate transfer of ownership shall have identification consistent with 9 CFR 71.19.
9.8. Equine.
All equine going through an approved public market must show the results of a negative approved APHIS test for E.I.A. The Commissioner shall accept the test result if the test was conducted within 12 months.
W. Va. Code R. § 61-1-10 Requirements for West Virginia Fairs, Festivals and Purebred Consignment Sales
10.1. General.
10.1.a. A person shall not import any animal into the state of West Virginia for showing at a fair, festival, show or sale without a valid CVI that has been received by the Commissioner at least 5 days prior to the importation of the animal.
10.1.b. The Commissioner shall permit a nursing animal to be moved based on the test status of the dam.
10.2. Cattle.
10.2.a. A person shall not import an animal into this state for the purpose of exhibition without a valid CVI.
10.2.b. A person shall not import an animal into this state for the purpose of exhibition without a special permit when the Commissioner requires that a special permit be issued due to a disease outbreak in the state of origin.
10.2.c. The Commissioner recommends that no bovine or bison animal that is affected with warts, pinkeye, or ringworm be exhibited in this state.
10.2.d. Tuberculosis.
10.2.d.1. The Commissioner may prohibit any person from showing any bovine or bison originating within this state unless the animal:
10.2.d.1.A. is from a United States Department of Agriculture Accredited Tuberculosis Free Herd;
10.2.d.1.B. is from a herd that has had a complete negative tuberculosis herd test within the 12 months prior to the show;
10.2.d.1.C. will not be sold at the show and is less than 24 months of age;
10.2.d.1.D. has had a negative tuberculosis test within the calendar year of the exhibition but prior to the date of exhibition; or
10.2.d.1.E. will be shown in a slaughter class.
10.2.d.2. The Commissioner may prohibit any person from showing any bovine or bison originating from without this state unless the animal meets all the requirements of paragraph 9.2.d.1. of this rule except that:
10.2.d.2.A. the animal has had a negative tuberculosis test within 3 months prior to the date of exhibition, when a test is required; and,
10.2.d.2.B. animals shown in slaughter classes must have an individual test and meet the requirements of subdivisions 7.12.e. and 7.12.f. of this rule, except that the negative tuberculosis test must be within 3 months prior to importation into this state.
10.2.d.3. A person shall not offer any bovine or bison for sale at a purebred consignment sale or exhibit at shows, fairs, and festivals unless that animal meets the requirements set forth in subdivisions 8.12.e., 8.12.f. and 18.12.f. of this rule.
10.2.e. Brucellosis.
10.2.e.1. A person shall not exhibit any animal, except steers, at a fair, festival or show that originates from a herd that is under quarantine for brucellosis.
10.2.e.2. A person shall not exhibit an animal at a fair, festival or show that requires a CVI when that certificate does not show the animal to be a verifiable progeny of a particular herd.
10.2.e.3. The Commissioner may prohibit any person from exhibiting an animal at a fair, festival or show unless that animal originates from a herd:
10.2.e.3.A. that is a United States Department of Agriculture Certified Brucellosis Free Herd;
10.2.e.3.B. that is from a United States Department of Agriculture Certified Brucellosis Free State.
10.2.e.3.C. that has had a complete negative brucellosis test within the 12 months prior to the exhibition of that animal;
10.2.e.3.D. in West Virginia and has had a negative brucellosis test within the calendar year of the exhibition but prior to the exhibition. No individual test is required for official vaccinates that are less than 20 months of age for dairy type breeds, or 24 months of age for beef type breeds; or
10.2.e.3.E. from a state other than West Virginia and has had a negative brucellosis test within 1 month prior to the exhibition except for official vaccinates that are less than 20 months of age for dairy type breeds, or 24 months of age for beef type breeds, in which case no individual test is required.
10.2.e.4. A person shall not offer any bovine or bison for sale at a purebred consignment sale or exhibit at a show, fair or festival unless that animal meets the requirements of subdivision 7.12.j. of this rule.
10.3. Goat.
10.3.a. A person shall not import any goat for the purpose of showing at an exhibition without a valid CVI and the Official USDA Scrapie Identification.
10.3.b. A person shall not import an animal into this state for the purpose of exhibition without a special permit when the commissioner requires that a special permit be issued due to a disease outbreak in the state of origin.
10.3.c. A person shall not import any goat showing signs of caseous lymphadenitis.
10.3.d. The Commissioner may require that any goat being imported into this state follow the same rules for tuberculosis and brucellosis as set forth in subdivision 9.2.d. and 9.2.e. of this rule for cattle.
10.3.e. The Commissioner recommends that no goat be exhibited in this state that is affected with warts, pinkeye, or ringworm.
10.3.f. A person may not exhibit any goat, which is capable of breeding, that does not have a valid Certificate of Veterinary Inspection (CVI) issued within 30 days of event entry or that is not certified from an Honor Herd as designated by the Commissioner.
10.4. Equine.
10.4.a. A person shall not exhibit any equine from any band that is under quarantine for any communicable disease.
10.4.b. A person shall not exhibit any equine showing signs of any infectious or communicable disease.
10.4.c. The officials of the exhibition are responsible to see that all equines shown meet the requirements of this subsection.
10.4.d. A person shall not exhibit any equine originating from outside this state without a valid CVI that shows the test results for an E.I.A. test.
10.4.e. A person shall not exhibit any equine originating from this State or another state without a negative approved APHIS E.I.A. test within 12 months prior to the exhibition. All tests shall be performed according to USDA standards.
10.4.e.1. For purposes of this section the negative E.I.A. test must have been performed in an approved United States Department of Agriculture laboratory.
10.4.f. Equine Interstate Event Permit.
10.4.f.1. This document is a signed Memorandum of Agreement between West Virginia and certain other states, whose numbers may vary, that allows the unencumbered interstate movement of equines between those states that are a signatory to said document. The permit shall contain, at a minimum, the following information:
10.4.f.1.A. Name of the Commissioner of Agriculture and the State Veterinarian and the appropriate phone number; title of permit; permit number; owner’s name, address and phone number; West Virginia interstate health certificate number and date; date permit was issued and expires; equine’s name, breed, sex, color, and age; EIA negative test date, lab name that performed the test, and accession number; three (3) digital color photos showing front and each side view of equine or other means of permanent identification, as may be required by the Commissioner.
10.4.f.1.B. Permits will expire six (6) months from the date it is written.
10.4.f.1.C. Enforcement: Permit holders are subject to the laws of West Virginia as well as the laws of those other states who are a signatory to this Memorandum of Agreement.
10.4.f.1.D. Permit holders are required to keep the permit and a log of all events attended by the equine that is described on the permit, in their possession during all equine activities, shows or sales.
10.4.f.1.E. Certain states that are signatories to this agreement may have certain exceptions that are not the same in all states.
10.5. Sheep and Lambs.
10.5.a. A person shall not exhibit any sheep or lamb that is capable of breeding that does not have a valid Certificate of Veterinary Inspection (CVI) issued within 30 days of event entry, or that does not have a certificate that the animal originates from an Honor Flock as designated by the Commissioner.
10.5.b. The Commissioner shall inspect all sheep or lambs in the market class for the presence of any infectious disease when the animal is exhibited. The Commissioner may refuse to allow an animal to be shown based on the results of the examination.
10.6. Swine.
10.6.a. Certificates of veterinary inspection are required for all swine entering the State. The Commissioner may require any out-of-state swine entering and exhibiting in West Virginia to be from an APHIS declared Pseudorabies-free state, a Pseudorabies monitored herd or have been tested negative for Pseudorabies within 30 days prior to entry when applicable. The qualified Pseudorabies negative number and test dates must appear on the health certificate. Swine from West Virginia may move freely within the State without Pseudorabies testing.
10.6.b. The Commissioner may prohibit any person from exhibiting any swine originating within this state that is capable of breeding, that has not had an examination by a veterinarian within 5 days prior to the exhibition, and has been found to be free from any symptoms of infectious disease.
10.6.b.1. For purposes of this section, the commissioner shall accept a serum neutralization test or other pseudorabies test approved by APHIS.
10.6.c. The Commissioner may require a statement from the animal health official of the state of origin that the animal did not originate from an area where pseudorabies is known to be present.
10.7. Birds.
10.7.a. The provisions of subsection 8.19 of this rule apply to the exhibition of both resident and imported birds in this state.
10.7.b. The management of the exhibit shall maintain records of the documents required by this section including the names and addresses of all exhibitors and the number of birds exhibited by those persons for a period of 2 years after the show and shall provide the records to the Commissioner upon request.
10.7.c. The management of the exhibit shall deny entry to all birds of a particular owner when any one of the birds of that owner tests positive for any disease determined by the National Poultry Improvement Plan to be detrimental to poultry health.
10.7.d. The owner of any bird found to test positive for any disease that the National Poultry Improvement Plan determines to be detrimental to poultry health shall submit the bird to the commissioner who will necropsy the bird and sample the tissues for recovery of the organism.
W. Va. Code R. § 61-1-11 Official Vaccinates
11.1. Official vaccinates are calves that have been vaccinated for brucellosis between the ages of 120 days and 365 days by an accredited veterinarian who:
11.1.a. marks the calf at the time of vaccination with a legible tattoo consisting of the letter “R”, a "V-shield" and the last number in the current year in the right ear of any calf and securely fastens official calf hood vaccination tag in the right ear of any calf that does not already have a legible purebred registration tattoo; and
11.1.b. completes a Calfhood Vaccination Report on the animal using forms supplied by the commissioner. The completed report shall contain the name and address of the owner of the calf, the county where the animal was located when vaccinated, the date of the vaccination, the manufacturer and serial number of the vaccine, the number of the ear tag or the purebred animal tattoo, a stamp of the tattoo, the breed, a designation of purebred or grade, the sex of the animal, the date of birth, and the name and address of the person completing the report.
11.2. The accredited veterinarian shall forward the original and one copy of the Calfhood Vaccination Report to the Commissioner, in care of the Animal Health Division and one copy to the owner of the calf no later than five (5) days following the vaccination. The accredited veterinarian shall keep one copy of the report for ten (10) years following the vaccination.
11.3. A person shall not classify any official vaccinate as a reactor or suspect for brucellosis, even though the test results may indicate a reactor or suspect, until the animal has been tested after they have reached 20 months of age for animals of the dairy breeds or 24 months of age for animals of the beef breeds.
11.4. The Commissioner shall classify vaccinated calves or adults from herds containing reactors to brucellosis as reactors when they reach the age of 20 months for animals of dairy type breeds or 24 months for animals of beef type breeds, only if they have a titer of a reactor.
W. Va. Code R. § 61-1-12 Establishment and Maintenance of a Certified Brucellosis Free Herd
12.1. For the purpose of this section, the term “herd” means one (1) or more cattle six (6) months of age or older that are cows or bulls. No steers or spayed heifers or official vaccinates that are less than 20 months of age for dairy animals or 24 months of age for beef animals shall be considered to be part of a herd. A herd shall be located on a farm and may consist of animals located in separate fields of a farm. The animals in a herd may have several owners.
12.2. Establishment of Herd Status.
12.2.a. The owner, or owners, of the herd must sign an agreement with the Commissioner that they will comply with W. Va. Code §§19-9-20 through 24 and with the provisions of this rule.
12.2.b. The Commissioner and the United States Department of Agriculture shall certify the herd as brucellosis free after two (2) series of tests for brucellosis between 10 and 14 months apart show that all animals in the herd are free from brucellosis.
12.2.c. The Commissioner and the United States Department of Agriculture shall then issue a certificate for the Certified Brucellosis Free herd. The certificate is valid for 1 year unless revoked by the commissioner for non-compliance with the provisions of W. Va. Code §§19-9-20 through 24 or with the provisions of this rule.
12.3. Maintenance of Herd Status.
12.3.a. The Commissioner and the United States Department of Agriculture shall renew a certificate for a Certified Brucellosis Free Herd for the period of one (1) year when the herd has shown no reactors after a complete herd test.
12.3.b. The owner, or owners, of the herd shall cause any animal in a certified herd that is suspected of having brucellosis to be segregated from the herd. The animal shall be retested between 30 and 60 days after the initial test. If the animal tests negative to the retest, it can be returned to the herd and the animal will not be the cause for non-renewal of the certified herd certificate. The Commissioner recommends that all animals in the herd be tested at 180 days under these conditions.
12.3.b.1. If the suspect animal tests as a reactor during the subsequent test, then all animals in the herd shall be tested again for brucellosis.
12.3.c. If more than one (1) reactor is found in a herd, the Commissioner shall refuse to renew, and shall revoke the certificate and the owner of the herd must reapply for herd status.
12.3.c.1. The Commissioner shall quarantine the herd until brucellosis testing has been performed to establish the status of the herd and the animals in the herd.
12.3.d. Addition of animals.
12.3.d.1. The owner, or owners, of the herd may add animals to the herd during the period of establishment of herd status or while the herd is certified under the following conditions:
12.3.d.1.A. The animal is from a herd that is certified as free of brucellosis. The Commissioner will not require the animal to have had a test for brucellosis prior to entry; or
12.3.d.1.B. The animal is over 6 months of age and is from a herd that is in the process of establishing brucellosis certification. The animal must have a negative brucellosis test within 30 days of importation into the herd. The animal must be separated from other animals in the herd until they show a negative brucellosis test at 60 days after importation into the herd and segregation.
W. Va. Code R. § 61-1-13 Equine Infectious Anemia
13.1. The Commissioner shall immediately quarantine any equine that is found to be an E.I.A. reactor. The quarantine shall extend to all exposed E.I.A. Animals and to any place or location that the commissioner considers necessary to protect the health of the equines of this state.
13.1.a. The Commissioner may consider all racehorses handled by the same trainer as exposed E.I.A. Animals.
13.1.b. The Commissioner may consider all other equines that have been housed in the same shed row or stall area as exposed E.I.A. Animals.
13.1.c. If the E.I.A. reactor has a foal, the foal should be isolated from the reactor by the owner as soon as possible after birth and E.I.A. tested. Any foal that is found to be an E.I.A. reactor shall be placed under quarantine by the Commissioner. If the foal is tested at 12 months of age and found to be an E.I.A. reactor at that time, then the quarantine remains in effect and the Commissioner shall brand the animal.
13.2. Under terms of the quarantine the Commissioner shall require the E.I.A. reactor to be isolated from all equines by stabling or pasturing at least 200 yards from all other equines.
13.3. The commissioner shall identify all E.I.A. reactors with a visible freeze brand under the mane on the left side of the equine. The brand shall start with "54 A" and end with a number that the commissioner assigns to the equine.
13.4. The Commissioner shall allow the E.I.A. reactor to be removed from the quarantine area only upon written permission.
13.5. The quarantine remains in effect for all exposed E.I.A. Animals after the E.I.A. reactor has been removed.
13.6. The Commissioner shall not release the quarantine for exposed E.I.A. Animals until all exposed E.I.A. animals have been determined to be non-E.I.A. reactors at least 30 days after the E.I.A. reactor has been removed from the band.
13.7. The Commissioner shall perform testing for Equine Infectious Anemia on any other equine that the E.I.A. reactor has been in contact with during the past 12 months, within the limits of his or her resources.
13.8. The Commissioner shall not pay an indemnity for any E.I.A. reactor that must be destroyed.
W. Va. Code R. § 61-1-14 Pseudorabies in Swine
14.1. A person shall not perform a test for pseudorabies on any swine without placing an eartag on each animal that is not previously identified with ear notches for their purebred registry. The Commissioner shall allow only an USDA approved eartags be used for identification of feeder pigs, when eartags are used. The person performing the test shall record the sex, age, breed and the identification of the animal by the eartag number and shall record the purebred registry earnotches.
14.2. The Commissioner may prohibit any person from selling, lending, leasing, or trading any feeder or breeder swine in this state, or importing into this state or exporting out of this state any feeder pig unless that animal:
14.2.a. originates from a pseudorabies monitored herd or a qualified pseudorabies negative herd from within this state, or from a herd that meets or exceeds the requirements of these herds provided by this section; or
14.2.b. has been tested and found to be free of pseudorabies within 1 month prior to the movement of the animal or the date of the sale; or
14.2.c. originates from a Stage V-(Free) state.
14.2.d. The Commissioner may deny any swine entrance into the state that have not met the pseudorabies requirements of the West Virginia Department of Agriculture.
14.3. Pseudorabies Monitored Herds.
14.3.a. The owner of a swine breeding herd may establish their status as a pseudorabies monitored herd after all the animals required by this subsection to be tested have been found to be free of pseudorabies. All boars shall be tested. All sows shall be tested in herds of 10 sows or fewer. Ten randomly selected sows shall be tested in herds containing 11 to 35 sows. Thirty percent of the sows, or 30 randomly selected sows, whichever is fewer, shall be tested in herds containing 36 or more sows.
14.3.b. The owner of a swine breeding herd may maintain their status as a pseudorabies monitored herd by testing the animals every twelve months as prescribed by subdivision 13.3.a. of this section plus all the boars, and thirty (30) percent of the sows added to the herd since the previous herd test.
14.4. Qualified Pseudorabies Negative Herds.
14.4.a. A swine breeding herd may establish their status as a qualified pseudorabies negative herd after the provisions of Title 9, Part 85.1 of the Code of Federal Regulations have been met; and
14.4.a.1. All swine over 6 months of age, plus a number of progeny equal to 20% of the breeding swine population of the herd have been found to be free of disease when tested using an official pseudorabies serologic test, the herd is not known to have been exposed to the disease within the month previous to the test, and at least ninety (90) percent of the animals in the herd have been in the herd and on the premises for at least 2 (2) months prior to the test or have entered the herd directly from another qualified pseudorabies negative herd. Progeny less than 6 months of age shall be randomly selected from the older swine in the herd.
14.4.b. A swine breeding herd may maintain their status as a qualified pseudorabies negative herd after:
14.4.b.1. all swine over 6 months of age, and their progeny as described in Paragraph 13.4.a.1. of this rule have been found to be free of disease when tested using an official pseudorabies serologic test; and
14.4.b.2. twenty-five (25) percent of all swine over 6 months of age and their progeny as described in Paragraph 12.4.a.1. of this rule have been found to be free of disease when tested every 80-105 days using an official pseudorabies serologic test. No animal shall be tested more often than once every 12 months; or
14.4.b.3. ten (10) percent of all swine over 6 months of age and their progeny as described in Paragraph 13.4.a.1. of this rule have been found to be free of disease when tested every month using an official pseudorabies serologic test. No animal shall be tested more often that once every 10 months.
14.5. The Commissioner shall accept a valid Swine Herd Health Certificate issued by the state veterinarian as proof that any animal is part of a Pseudorabies Negative Herd.
14.6. The Commissioner shall accept an official pseudorabies test chart indicating that the animal has been tested and found free of pseudorabies within the past month and identifying the individual feeder pig tested as proof that the animal is free of pseudorabies.
14.7. The Commissioner shall quarantine any swine herd when any animal is found to be a reactor to an official pseudorabies test. The quarantine may be released only after the provisions of Title 9 Part 85.1 of the Code of Federal Regulations has been met including:
14.7.a. depopulation of all animals that have found to be reactors and all exposed swine, followed by cleaning and disinfecting the location of the herd by a method that has been approved by the commissioner; or
14.7.b. removal of all swine that have been found to be reactors, cleaning and disinfecting the premises as directed by the Commissioner, followed by the testing schedule as follows:
14.7.b.1. after 1 month, testing all swine, except for nursing animals and finding all animals to test negative to pseudorabies, then
14.7.b.2. after an additional 1 to 2 months, testing all swine over 6 months of age and finding all animals to test negative to pseudorabies.
W. Va. Code R. § 61-1-15 Rules for Hatcheries, Growers and Contractors Pertaining to Poultry Disease Control and Eradication
15.1. General.
15.1.a. For the purposes of this section a flock means a group of poultry that are characteristic of the breed, variety, cross or other combination which they are stated to represent.
15.1.b. The owners of any flock shall test all poultry on the premises, except for wild birds or unmated and segregated birds held for laying purposes, for pullorum-typhoid.
15.1.c. A person shall not maintain a flock containing any birds testing positive for pullorum-typhoid without complying with the provisions of this section of this rule.
15.1.d. The Commissioner intends for the provisions of this section of the rule to supplement, and not supersede, the regulations set forth in the National Poultry Improvement Plan and Auxiliary Provisions set forth in Title 44 of the Code of Federal Regulations Parts 145 through 147 (March 22, 2011).
15.1.e. Any person owning a hatchery or a flock is responsible for furnishing transportation on the premises and necessary labor needed for handling birds at no expense to the Commissioner or the tester when needed by the tester to perform his duties under this section of the rule.
15.1.f. The Commissioner requires that all birds found to be reactors or suspected of being a reactor to any disease be removed from the flock and destroyed within 10 days after the test was reported. The owner of the birds must certify to the Commissioner that the birds were destroyed within 10 days of test results in a manner approved by the Commissioner.
15.2. Testing.
15.2.a. The Commissioner shall accept only official test results. The Commissioner shall accept tests performed by inspectors certified by the Commissioner and performed according to the provisions of this section of the rule and the National Poultry Improvement Plan and Auxiliary Provisions as official tests.
15.2.b. A person shall not use any chicken for breeding purposes without having that bird tested and found negative for the presence of pullorum-typhoid when the bird reaches 5 months of age and prior to being used for breeding.
15.2.c. A person shall not use any turkey for breeding purposes without having that bird tested and found negative for the presence of pullorum-typhoid when the bird reaches 4 months of age, and prior to being used for breeding.
15.2.d. The Commissioner shall not accept any test performed with any lot of pullorum-typhoid antigen that was not approved by the United States Department of Agriculture.
15.2.e. The Commissioner shall not accept any test performed with pullorum-typhoid antigen on any animal that has had a previous test with any Salmonella antigen within 21 days of the pullorum-typhoid test.
15.2.f. The Commissioner shall set the fee for testing and inspection at a rate to reflect the actual costs of doing the testing and inspection for the Commissioner's employees. The costs for testing and inspection for the Commissioner's employees is the standard state rate for all travel and $18 per hour for the time for travel, testing and inspection. The owner of the birds tested shall pay the fee to the West Virginia Department of Agriculture within 10 days of billing by the Commissioner.
15.2.g. The owner of birds may contract with independent certified testers to perform official testing and inspection. The fees charged by the independent certified tester are not bound by the fees charged by the Commissioner.
15.2.h. The tester shall identify each bird that has been officially tested with an officially sealed and numbered leg or wing band.
15.3. Reporting.
15.3.a. All persons owning hatcheries shall report the total number of eggs set and the total number of chicks and poults hatched on a weekly basis to the Federal-State Crop and Livestock Reporting Service, United States Department of Agriculture, Capitol Building/Guthrie Center, Charleston, West Virginia 25305.
15.3.b. The tester shall mail all official test records within seven days of the completion of the test on the flock to the Commissioner, in care of the Animal Health Division, Charleston, WV. The official test records shall include the name and address of the owner of the birds, the date of test, the number of the leg or wing band attached to the bird, the test results and the total number of birds tested in the flock.
15.3.c. Any dealer in baby chicks and broiler contractors shall keep records of the number of shipments of chicks and poults into this state for a period of 5 years and shall provide them to the Commissioner upon request.
15.4. Classification of a flock.
15.4.a. The provisions of the National Poultry Improvement Plan and Auxiliary Provisions shall determine the classification of a flock.
15.4.b. The Commissioner shall not consider the test results of any bird for the purposes of classifying the flock that was found to be a reactor using antigen and subsequently found to be not infected upon necropsy and subsequent bacterial examination.
W. Va. Code R. § 61-1-16 . Laboratory Services and User Fees
16.1. General.
16.1.a. For the purpose of this section only a licensed veterinarian, government-employed animal health technician or a person or persons as designated by the Department as being duly qualified to submit the samples may submit samples to the laboratory.
16.1.b. The laboratory is prepared to accept only submissions for tests and services that are performed by personnel of the West Virginia Department of Agriculture. If the laboratory receives other submissions, it shall forward them to the proper destination. The user is responsible for the costs of services requested and subject to administrative costs of forwarding the sample.
16.1.c. The Commissioner of Agriculture may waive all fees and requirements under extenuating circumstances.
16.2. Schedule of User Fees.
16.2.a. The fees due the Department for the specific tests are as follows:
TEST CHARGE TEST CHARGE
Avian Influenza AGID $0.50 PCR $22.00 Mycoplasma gallisepticum plate $0.50 GCMS $48.00 Mycoplasma mealeagridis plate $0.60 Mycoplasma spp. HI $1.30 ELISA $5.00 Mycoplasma synoviae (plate) $0.50 Mycoplasma MM ELISA $2.00 Mycoplasma MS/MG combo ELISA $2.00 Necropsy 1-6 birds or 1 animal $20.00 ovine progressive pneumonia AGID $2.00 Poultry Dissection (1-6 birds) $20.00 Field Necropsy $50.00 Salmonella pullorum-typhoid Culture samples $12.00 Screen $0.50 sensitivity $7.00 Titer $0.50 Equine infectious anemia $8.00 Johne’s disease ELISA $5.00 Fecal floatation $4.00 Salmonella typhimurium:
Plate $0.50 Titer micro $0.50 Leptospirosis spp. $15.00 Accession Fee $5.00 Brucellosis Testing $1.50 STAT $10.00
16.3. Procedure for payment.
16.3.a. Following the last day of each month, the Animal Health Division shall submit an invoice to the appropriate persons or companies for the amount of charges for the previous month.
16.3.b. All payments shall be made to West Virginia Department of Agriculture, Administrative Services Division, Fiscal Management Office, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305-0173 within thirty (30) days.
Series 01A Feeding of Untreated Garbage to Swine
W. Va. Code R. § 61-1A-1 General
1.1. Scope. -- These legislative regulations establish general operating rules and procedures in the Animal Disease Control Division and are established to prevent, suppress, control and eradicate communicable diseases of swine.
1.2. Authority. -- W. Va. Code §19-9A-1 et seq.
1.3. Filing Date. -- April 15, 2022
1.4. Effective Date. -- April 18, 2022
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect August 1, 2032.
W. Va. Code R. § 61-1A-2 Permit For Feeding Garbage To Swine
2.1. A person shall not feed garbage to swine until a permit has been secured from the Commissioner and properly posted on the swine feeding premises.
2.2. There is no fee for a swine garbage feeding permit.
2.3. A permit to feed cooked garbage to swine is not transferrable.
2.4. The Commissioner, after receiving an application for a permit to feed cooked garbage to swine or to renew the permit, may cause an investigation to be made of the garbage feeding premises of the applicant, and all the equipment used for heating and treating garbage, to ascertain whether or not the premises and equipment are suitable and adequate. If it is found that the premises or equipment are inadequate for the heating, treating or feeding of garbage to swine, the Commissioner shall withhold until the applicant has provided adequate facilities.
2.5. The permitee shall keep all premises and equipment that are used for cooking and feeding garbage in a sanitary condition.
W. Va. Code R. § 61-1A-3 Interstate Movement Of Swine Fed Uncooked Garbage
3.1. Swine shall not be imported into this State that have been fed or have had access to uncooked garbage. All persons, firms, corporations, partnerships or associations, or employees of the same, who operate a public market, concentration point, pickup station or any other kind of business where livestock is bought, sold, traded or received for resale, whether licensed by the Commissioner or not, shall not receive for resale, buy, sell or trade in any manner whatsoever any swine that they have reason to believe have been fed or have had access to uncooked garbage.
61CSR1A
Series 01B Registration Forms and Tags For Registration, Taxation And Control of Dogs
W. Va. Code R. § 61-1B-1 General
1.1. Scope. -- These legislative regulations establish general operating rules and procedures in the Animal Disease Control Division and are established to prevent, suppress, control and eradicate communicable diseases of dogs.
1.2. Authority. -- W. Va. Code '19-20-4.
1.3. Filing Date. -- May 14, 2026.
1.4. Effective Date. -- May 14, 2026.
1.5. Sunset Date. -- This rule shall expire and have no further force or effect August 1, 2031.
W. Va. Code R. § 61-1B-2 Certificate Of Registration
2.1. The Certificate of Registration shall contain the following information:
2.1.1. Year for which tax is paid;
2.1.2. Serial number of Certificate of Registration;
2.1.3. Registration tag number;
2.1.4. Date;
2.1.5. Name of owner (keeper or harborer);
2.1.6. Address;
2.1.7. District;
2.1.8. Description of dog;
2.1.9. Head tax - required fee three dollars ($3.00);
2.1.10. Amount collected.
W. Va. Code R. § 61-1B-3 Record Of Registration
3.1. The Certificate of Registration forms shall be numbered serially and retained.
3.2. Each dog shall be issued a registration tag when the Certificate of Registration is issued.
W. Va. Code R. § 61-1B-4 Registration Tags
4.1. Registration tags shall be manufactured of metal or some other suitable substance of a permanent nature and designed with a hole in each end one sixteenth (1/16) of an inch in diameter, so that it can be safely and securely attached to the animal's collar. The tag shall bear the imprint "West Virginia Dog Tax," the county, year and serial number: Dogs shall wear a valid registration tag at all times.
4.2. The registration tag number shall be recorded on the Certificate of Registration.
4.3. Municipalities may prescribe their own registration tags for dogs, but they must be clearly distinguishable from those issued by the Commissioner.
61CSR1B
Series 01C Disposal Of Dead Poultry
W. Va. Code R. § 61-1C-1 General
1.1. Scope. -- This rule regulates the disposal of poultry mortality by persons, firms or corporations engaged in growing poultry for commercial purposes.
1.2. Authority. -- W. Va. Code §19-9-34A.
1.3. Filing Date. -- May 7, 2009.
1.4. Effective Date. -- July 1, 2009.
1.5. Repeal of Former Rule -- This legislative rule repeals and replaces W.Va. §61CSR1C “West Virginia Disposal of Dead Poultry” filed April 23, 1992, and effective April 27, 1992.
W. Va. Code R. § 61-1C-2 Definitions
2.1. “Backyard poultry flocks” means a group of poultry, in numbers less than 3000 at one time, for the purpose of sale of the poultry or the eggs produced from the poultry, or the raising or keeping of gamebirds. The disposal of poultry mortality from backyard flocks due to flock depopulation, abnormal death losses, or a catastrophic disease outbreak shall conform to this rule.
2.2. “Burial” means interment of mortality below the natural surface of the ground. The West Virginia Department of Agriculture, USDA Natural Resources Conservation Service and the West Virginia Department of Environmental Protection shall approve the criteria and the burial site for poultry mortality. The burial site location shall be situated to prevent the contamination of ground and surface waters.
2.3. A “Composter” is a roofed structure with an impervious floor, and with treatment areas made of wood, designed for composting organic materials.
2.4. "Composting" means a natural process in which beneficial microbes reduce organic waste (poultry mortality) into a biologically safe by-product which is capable of being recycled in the agriculture industry.
2.5. "Dead poultry" and “poultry mortality” means all poultry, excluding those intentionally slaughtered, which die as a result of disease, injury or of natural causes.
2.6. “Emergency Situations” means situations which involve mass mortality due to flock depopulation, abnormal death losses or a catastrophic disease outbreak.
2.7. "Incinerator" means a firebox constructed of masonry or metal in which poultry mortality is completely burned to ashes by the use of fuel.
2.8. "Person" means any individual, firm, partnership, corporation, or institution which engages in the raising or keeping of poultry for commercial purposes. A person is further defined as the grower of the poultry regardless of the ownership of the poultry.
2.9. “Poultry” means all chickens, ducks, turkeys, or other domestic fowl.
2.10. "Raising or keeping of poultry for commercial purposes" means the growing of a flock of 3000 or more poultry at one time for the purpose of sale of the poultry or the eggs produced from the poultry.
2.11. "Rendering" means the treatment of poultry mortality by steam treatment or by cooking at a commercial rendering plant, for a sufficient time to effectively destroy the product for human food purposes and to preclude dissemination of disease through consumption by animals.
2.12. “Sanitary Landfill” means a solid waste disposal site permitted or approved by the West Virginia Department of Environmental Protection. Poultry mortality intended for disposal in a sanitary landfill shall be delivered to the landfill within 24 hours of death or be refrigerated below 40 degrees Fahrenheit pending delivery. All persons shall hold all poultry mortality in a container that is leak proof, fly proof, and pet and wild animal proof.
W. Va. Code R. § 61-1C-3 Rules Pertaining to the Disposal of Poultry Mortality
3.1. It is unlawful for any person to dispose of, or cause to be disposed of, poultry mortality in any manner other than by incinerator, composting, burial in a sanitary landfill, burial on private property, or rendering as defined in section 2 of this rule.
3.2. The West Virginia Department of Agriculture shall permit burial of mass poultry mortality during emergency situations for the protection of the public and animal health as defined in section 8 of this rule.
3.3. A person shall not transport poultry mortality that is the result of a disease outbreak or depopulation to an off-farm disposal site without prior approval, granted on a case-by-case basis by the Commissioner of Agriculture or his or her representative.
3.4. Facilities designed for the purpose of disposal of poultry mortality constructed prior to the effective date of this rule are exempt from section 6.2 of this rule.
W. Va. Code R. § 61-1C-4 Standards for Incineration
4.1. Poultry mortality may be disposed of by using a commercial incinerator.
4.2. West Virginia Department of Environmental Protection shall approve the incinerator and the methods used to dispose of poultry mortality. Incinerators shall be registered with the West Virginia Department of Environmental Protection Division of Air Quality.
4.3. The incinerator operation shall be in accordance with the owner’s manual and shall result in minimal smoke or odor.
4.3.a. Homemade incinerators that do not meet air pollution control standards are not an acceptable means of incineration. Poultry mortality must be reduced to ashes.
4.4. Incineration shall be accomplished by use of a basic incinerator, which may be mobile, or permanent, an air curtain burner or a gasification unit.
W. Va. Code R. § 61-1C-5 Standards for Rendering
5.1. Rendering of poultry mortality shall be picked up or delivered to the rendering plant within 24 hours of death unless the poultry mortality is frozen or refrigerated below 40 degrees Fahrenheit pending pickup or delivery and shall be delivered in covered leak-proof containers. All persons shall hold all poultry mortality in a container that is leak proof, fly proof, and pet and wild animal proof.
5.1.a. The Commissioner of Agriculture or his or her representative may approve alternative requirements during emergency situations.
5.2. Vehicles used for transporting poultry mortality to a commercial rendering facility shall be constructed and maintained prior to receiving into the vehicle, so that no liquid or fluid from the poultry mortality drips or seeps from the vehicle during transport.
5.3. The use of a refrigeration unit or freezer for cold storage of poultry mortality is necessary unless delivered on a daily basis to the rendering plant. The refrigeration units or freezers shall be animal and vermin proof.
W. Va. Code R. § 61-1C-6 Standards for Composting
6.1. Composting requires a covered structure consisting of a roof with an overhang and a concrete or otherwise impervious floor to prevent rainwater from reaching the composted material. The composter shall be designed and constructed to prevent the contamination of ground and surface water.
6.2. The composter shall be located 100 feet from surface water, drainage ditches, and wet lands. The composter should be located as far from residences and public roads as possible, but at least 150 feet from the property line. A typical unit will contain two treatment areas. A primary treatment area may consist of one or more compartments. The secondary treatment area will be one compartment that will receive partially composted material from the primary treatment areas. Material in the primary treatment area is moved to the secondary area when it has reached a peak temperature of 140 to 160 degrees Fahrenheit after seven to ten days. The composting process is complete when the temperature in the secondary treatment area has reached peak temperature of 140 to 160 degrees Fahrenheit after seven to ten days.
6.3. Growers shall not attempt to compost large numbers of poultry mortality without assistance and approval from the West Virginia Department of Agriculture in consultation with the USDA Natural Resources Conservation Services and the West Virginia Department of Environmental Protection.
6.4. Composting may be used for the disposal of mass mortality during an emergency situation. Mass mortality composting may be accomplished in the poultry house or at an outside location. In-house composting involves placing the poultry mortality and carbon materials in windrows inside the poultry house, and allowing the poultry mortality to go through the first heating cycle in these windrows. For the second heating cycle the windrows may be turned over and restacked in the poultry house, or the compost may be removed from the poultry house and restacked at an outdoor location. This location shall be situated to prevent the contamination of ground and surface water. The West Virginia Department of Agriculture in consultation with the USDA Natural Resources Conservation Service and the West Virginia Department of Environmental Protection shall select the site for composting in an outdoor location.
W. Va. Code R. § 61-1C-7 Standards for Landfill Disposal
7.1. Arrangements shall be made with a city, county, regional, or private landfill official, representing the landfill, for the disposal of poultry mortality in an approved sanitary landfill.
7.2. Vehicles used for transporting poultry mortality to a sanitary landfill facility shall be constructed and maintained prior to receiving poultry mortality into the vehicle, so that no liquid or fluid from the poultry mortality drips or seeps from the vehicle during transport.
7.3. The use of a refrigeration unit or freezer for cold storage of poultry mortality is necessary unless delivered on a daily basis to the sanitary landfill. The refrigeration units and freezers shall be animal and vermin proof.
7.3.a. The Commissioner of Agriculture or his or her representative may approve alternative requirements during emergency situations.
W. Va. Code R. § 61-1C-8 Standards for Burial
8.1. During emergency situations, burial of mass poultry mortality may be permitted. USDA Natural Resources Conservation Service and the West Virginia Department of Environmental Protection shall be consulted on the site selection for mass poultry mortality burial.
8.1.a. The burial site location must be situated to prevent the contamination of ground and surface water.
61CSR1C
61CSR1C
Series 01D List Of Restricted Live, Modified Live And Killed Vaccines For Animals
W. Va. Code R. § 61-1D-1 General
1.1. Scope. -- These procedural regulations establish the annual list of restricted use of live, modified live and killed vaccines for animals.
1.2. Authority. -- W. Va. Code §19-9-2.
1.3. Filing Date. -- May 16, 2005.
1.4. Effective Date. -- May 16, 2005.
W. Va. Code R. § 61-1D-2 Restricted Animal Vaccine List
2.1. Brucella vaccine may be used only by licensed and accredited veterinarians.
2.2. Vaccines for Johne’s disease, pseudorabies, bluetongue, avian influenza, laryngotracheitis (poultry) and anthrax shall not be used by anyone unless or until written authority for such use is granted by the Commissioner.
2.3. No person may sell rabies vaccine to other than a licensed veterinarian or person authorized by county commission to conduct rabies clinics or an establishment that legally sells such vaccines to such persons licensed or authorized to use such preparations.
61CSR1D
61CSR1D
61CSR1D
61CSR1D
Series 02 West Virginia Apiary Rule
W. Va. Code R. § 61-2-1 General
Scope. -- This legislative rule establishes general operating rules and procedures for the inspection of apiaries, control of bee diseases, and limitation of liability for beekeepers.
Authority. -- W. Va. Code §19-13-3, §19-13-4 Filing Date. -- April 24, 2023 Effective Date. – May 1, 2023 Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-2-2 Definitions
2.1. “Africanized Honey Bee (AHB)” means hybrids of the African Honey Bee with various European honey bees and which are far more aggressive than the European subspecies.
2.2. “Apiarist or beekeeper” means a person keeping bees.
2.3. “Apiculture or beekeeping” means the management of beehives.
2.4. “Bee Sting” means an injury sustained and inflicted by a worker honey bee.
2.5. “Beehive” means a removable framed housing for a honey bee colony.
2.6. “Caution sign” means a standardized sign with black print on yellow background for posting on or near an apiary as a precaution that honey bees are in the area.
2.7. “Drawn comb” means cells which have been drawn out into three dimensional hexagonal shapes using beeswax manufactured by honey bees and used to store resources or raise brood in a colony.
2.8. “Flight path” means the distinct route taken by many bees leaving from or returning to their hive.
2.9. “Honey extraction” means the removal of honey from combs.
2.10. “Honey flow” means the gathering of nectar from flora by honey bees.
2.11. “Honeycomb” means removable frames, containing wax cells which house honey, pollen, or brood (eggs, larvae, pupae).
2.12. “Inspector” means a West Virginia Department of Agriculture inspector or personnel who is authorized to conduct official inspections on behalf of the Department.
2.13. “Pollination” means the transfer of pollen by honey bees from anthers to stigmas of flowers for the purpose of plant fertilization.
2.14. “Queen” means an adult, mated female that lives in a honey bee colony or hive.
2.15. “Robbing” means bees attempting to access honey stored or spilled in another hive.
2.16. “Staging area” means a collection site for holding colonies prior to shipment.
2.17. “Swarm” means a cluster or flying mass of Honey Bees including workers, queen, and drones.
2.18. “Undeveloped property” means any idle land that has no structures or facilities intended for human use or occupancy. Property used exclusively for streets, highways, or commercial agriculture is to be considered undeveloped property for the purpose of the West Virginia Honey Bee Best Management Practices (HBBMP).
2.19. “Water supply” means any available source bees could use for water such as, but not limited to, water taps, hoses, pools, hot tubs, streams, ponds, puddles, etc.
W. Va. Code R. § 61-2-3 Registration of bees; Identification of apiaries
3.1. The Commissioner shall furnish an application for registration of bees to all person known to keep bees. The Commissioner shall mail the applications during the month of June to all persons who have registered their bees during the previous year. Upon receipt of a properly executed bee registration application, the Commissioner shall issue a certificate of registration which will be based upon the information provided on the application.
3.2. All apiary certificates of registration expire on June 30 of each year, and shall be renewed annually. The Commissioner shall prepare renewal applications and make them available no later than June 1 of each year.
3.3. Any person who plans to import bees on drawn comb shall request a permit for entry from the Commissioner at least ten (10) days prior to the arrival of the bees. A valid certificate of inspection from the state of origin identifying any bee diseases that are affecting the bees and the extent of the bee diseases, if any, must accompany the request.
3.3.a. Any person who plans to import vacant used bee equipment into the state shall request a permit for entry from the Commissioner at least ten (10) days prior to the arrival of the bee equipment. A valid certificate of the inspection from the state of origin identifying any bee diseases in the bees that were in the equipment, and stating that the treatment has been made, if any, to the vacated equipment shall accompany the request.
3.4. Any person who keeps bees and who has registered them is required to report to the Commissioner additional colonies obtained as packaged bees and any honey bee queens imported from any state, province or territory within 10 days of acquisition.
3.4.a. Any person who keeps bees and who has registered his or her bees who obtains additional colonies from capturing swarms, colony divisions or any other source from within this state, shall report the additional colonies to the Commissioner during the designated annual registration period.
W. Va. Code R. § 61-2-4 Limits on Liability
4.1. A beekeeper may obtain limits on liability when he or she:
4.1.a. Signs a Honey Bee Best Management Practices compliance agreement to be kept on file at the West Virginia Department of Agriculture headquarters; and
4.1.b. Voluntarily conforms with Honey Bee Best Management Practices contained in subsection 4.2. of this rule.
4.2. West Virginia Honey Bee Best Management Practices (HBBMP) are as follows:
4.2.a. West Virginia Beekeepers shall post a honey bee caution sign in or near the apiary.
4.2.b. West Virginia Beekeepers shall limit the number of hives in relation to property lot size in accordance with the following:
4.2.b.1. Less than ½ acre – 4 colonies (1/2 acre = 21,780 sq. ft., roughly 100 ft. x 218 ft.)
4.2.b.2. More than 1/2 acre, less than 1 acre – 6 colonies (1 acre = 43,560 sq. ft., roughly 150 ft. x 290 ft.); and
4.2.b.3. 1 acre or more – 8 colonies (1 acre = 43,560 sq. ft., roughly 150 ft. x 290 ft.)
4.2.c. Regardless of lot size: If all hives are situated at least 200 feet in any direction from all property lines of the lot on which the apiary is situated, or as long as all adjoining property that falls within a 200-foot radius of any hive is undeveloped property, there are no limit on the number of hives.
4.2.d. West Virginia beekeepers:
4.2.d.1. Shall have hive entrances face away from neighboring property and in such a direction that bees fly across the beekeeper’s property a sufficient distance to gain a height of six feet. If bordering property is within a distance of 50 feet, the beekeeper shall use barriers (hedges, shrubs or fencing six feet high) to redirect the bees’ flight pathway and establish bee flight pathways above head height;
4.2.d.2. Shall maintain a water source near the colonies at a distance less than the nearest unnatural water supply;
4.2.d.3. Shall not keep an apiary within 50 feet of an established animal that is tethered, kenneled or otherwise prevented from escaping a stinging incident;
4.2.d.4. Should avoid opening colonies for inspection or manipulation when neighbors are present or in the immediate vicinity.
4.2.d.5. Should avoid purchasing queens and honey bees from areas that are documented as having been designated as an established Africanized Honey Bee (AHB) zone;
4.2.d.6. Shall manage all colonies to minimize swarming;
4.2.d.7. Shall replace queens in colonies exhibiting defensive behavior that may be injurious to the general public or domesticated animals as determined by Department’s apiary staff.
4.2.e. A collection site for holding colonies prior to shipment, or a staging area, shall have undeveloped property surrounded by a natural barrier and shall be marked with a honey bee caution sign.
4.2.f. Anyone transporting colonies shall secure the load and screen entrances or place a net over the colonies to prevent bees from escaping.
4.2.g. West Virginia Beekeepers shall properly discard all pesticides and other control agents after use according to label directions.
4.2.h. Honey Bees used for public demonstrations, entertainment or educational purposes shall be enclosed so as to avoid the release of honey bees to the public.
4.2.i. In the even that Africanized Honey Bee (AHB) infestation is determined to be established in West Virginia by the Department, additional rules promulgated by the Commissioner of Agriculture will be followed.
W. Va. Code R. § 61-2-5 Right of entry; Apiary inspections; Quarantines
5.1. An inspector shall inspect a colony of bees by removing three (3) or more frames containing developing brood from the hive and examining both sides for evidence of bee disease.
5.2. A person shall not keep or maintain bees in any hive or receptacle which does not permit the thorough examination of the brood combs.
5.2.a. Whenever and wherever an inspector finds that the inspection of bees is impossible due to the keeping of bees in hives or other receptacles not equipped to permit the examination of brood combs, the inspector shall inform the beekeeper in writing of the condition, provided that no transmissible bee disease is found in the environs of the hives or other receptacles. The beekeeper has twelve (12) months from the initial date of notification to correct the condition. Whenever or wherever these conditions are not corrected within 12 months from the date of notification of the beekeeper, the Commissioner shall quarantine the colonies until the condition is corrected.
5.2.b. If a transmissible bee disease is confirmed by laboratory analysis in the Department’s laboratory or by the United States Department of Agriculture – Agricultural Research Service in the environs of an apiary equipped with hives or receptacles which do not permit the thorough examination of the brood combs, the colonies contained in the hives or receptacles shall be considered affected with the confirmed bee diseases and shall be destroyed or sterilized. In order to protect the beekeeping industry, the Commissioner shall require immediate destruction of the hives or receptacles.
5.3. After inspecting or handling any disease infected bee equipment or appliances, and before proceeding to any other apiary, the inspector and every assistant, whether a beekeeper or inspector, shall thoroughly disinfect and/or de-contaminate every portion of their person and clothing, and any appliances that may have been in contact with infected materials.
5.4. The Commissioner shall quarantine all apiaries that are confirmed by laboratory analysis in the Department’s laboratory or by the United States Department of Agriculture – Agricultural Research Service as infected with a transmissible bee disease. The inspector will submit to the apiary owner, or person in charge of the apiary, a written document stating the nature of the disease and a statement whether the disease may be successfully treated or not. In addition, the inspector shall include in the document recommendations for treatment, if any, and a statement of policy. Upon receipt of the documents, the apiary owner, or person in charge, shall, by signed agreement, willingly acknowledge and accept full responsibility for compliance with the quarantine and the treatment. The apiary owner shall treat, or cause to treat the quarantined colonies as soon as possible, but no later than fourteen days from the notification.
5.4.a. If the incidence of the bee disease is such that, in the judgment of the inspector, chemical control treatment may be successful, the apiary owner shall treat the affected colonies, as prescribed by the inspector.
5.4.b. If the incidence of the bee disease is such that, in the judgment of the inspector, no treatment may be successful, as in the case of infection with American foulbrood, then the inspector shall notify the apiary owner that the affected colonies must be destroyed. The inspector shall be present during the destruction of the colonies and destruction or sterilization of the bee equipment.
5.5. The apiary owner may sterilize, at his or her own expense and by any appropriate method specified by the inspector and approved by the commissioner, any vacant bee equipment that may have been directly or indirectly exposed to contagious bee disease. Any equipment not so sterilized must be destroyed.
5.6. The Commissioner shall not quarantine any colonies confirmed infected with any non-transmissible parasitic infestation or bee disease. The apiary owner shall, however, be encouraged to treat the colonies according to the written specifications provided by the inspector.
5.7. The Commissioner shall not bring additional regulatory action against any apiary owner who is complying or attempting to comply with the terms of quarantine.
5.8. The Commissioner shall review any violation of a quarantine and, depending upon the severity of the violation, shall assess other penalties as provided by West Virginia Code §19-13-1 et seq.
Series 02A Labeling Of Imported Honey, Honey Products Or Honey Bee By-Products, Adulterated Honey, Honey Products Or Honey Bee By-Products Rule
W. Va. Code R. § 61-2A-1 General
1.1. Scope. -- This legislative rule establishes guidelines for the labeling of imported or adulterated honey, honey products and honey bee by-products packaged for sale in West Virginia.
1.2. Authority. -- W. Va. Code §19-1-4(j).
1.3. Filing Date. -- April 13, 2012.
1.4. Effective Date. -- July 1, 2012.
1.5. Enforcement. -- The Department of Agriculture is responsible for enforcing the provisions of this rule.
W. Va. Code R. § 61-2A-2 Definitions
2.1. “Adulteration of a honey product” means any honey product whose principal ingredient is honey and which has undergone alteration, introduction of additives or processing so as to make the product appear or misconstrued to be in its pure, unadulterated form. Any honey product is considered adulterated if the adulteration of the honey product is economically motivated with the intent to achieve economic gain by misleading prospective consumers through deceptive labeling or other false representation of its actual content or origin.
2.2. “Bee pollen” is a food supplement consisting of pollen that has been packed by worker honey bees into granules, with added honey or nectar.
2.3. “Country of origin” means the country where a product originates.
2.4. “Fructose”, or fruit sugar, is a simple monosaccharide found in many foods and is the most water-soluble of all the sugars. Honey, tree fruits, berries, melons, and some root vegetables contain significant amounts of molecular fructose, usually in combination with glucose.
2.5. “Glucose” is a simple monosaccharide and carbohydrate that cells use as the primary source of energy.
2.6. “Honey bee by-product” is a product that directly results from the honey bee manufacture of foodstuff for the nutrition and development of honey bees.
2.7. “Honey product” is any product that contains honey as an ingredient or whose label indicates honey as an ingredient.
2.8. “Imported” means brought into the United States from another country.
2.9. “Invert sugar syrup” is a mixture of simple monosaccharide sugars of glucose and fructose.
2.10. “Maltose” is the disaccharide produced when the enzyme amylase catalyzes the breakdown of starch into sugars and is often referred to as malt sugar.
2.11. “Monosaccharides” are basic units of carbohydrates and are the simplest form of sugar.
2.12. “Oligosaccharides” is a saccharide polymer containing a small number of component sugars, also known as simple sugars (monosaccharides).
2.13. “Principal ingredient” means the ingredient is the predominant ingredient by weight when other ingredients are present.
2.14. “Royal jelly” is a honey bee secretion that is used in the nutrition of larvae, as well as adult queens.
2.15. “Stable Carbon Isotope Ratio Analysis or SCIRA” for a honey test measures the carbon-13 content of the whole honey, according to Association of Official Analytical Chemists (AOAC) methods. These methods can detect the adulteration of expensive honey with cheap high-fructose corn syrup (HFCS) and cane sugar.
2.16. “Sucrose” is the organic compound commonly known as table sugar whose molecules are a disaccharide derived from glucose and fructose.
2.17. “Vendor” is a person offering something for sale.
W. Va. Code R. § 61-2A-3 Country of Origin Labeling -- Honey, Honey Products, Honey Bee By-products
3.1. Label marking permitted; removal prohibited.
3.1.a. All producers, growers and shippers of bee pollen, royal jelly and honey in this state may mark each individual package of bee pollen, royal jelly or package of honey on the principal display panel in a conspicuous place as legibly, indelibly and permanently as possible to indicate to an ultimate purchaser that the product was produced in West Virginia. A vendor shall mark individually, any package of bee pollen, royal jelly or package of honey, including any package containing imported honey blended with domestic honey offered for sale in West Virginia in a conspicuous place as legibly, indelibly and permanently as possible by the vendor of the product to indicate to an ultimate purchaser the country or countries of origin.
3.1.b. Any vendor engaged in the business of the vending of bee pollen, royal jelly or honey who is engaged in the business of selling products labeled or identified as to origin shall not willfully and knowingly remove the labels or identifying marks.
W. Va. Code R. § 61-2A-4 Adulteration of Honey and Honey Products
4.1. The following conditions are prima facie evidence of “adulteration of honey or honey product” sold or offered for sale as honey and the honey product is subject to the provisions of W. Va. Code §19-2D-1 et seq. Imitation Honey Product Law.
4.1.a. The product has a maltose content in excess of 10%;
4.1.b. The product contains oligosaccharides indicative of invert syrup;
4.1.c. The absolute value of Stable Carbon Isotope Ratio Analysis (SCIRA) is not more negative than -20.0 for the product; and
4.1.d. The product has a protein value minus honey value more negative than -1.0 by the SCIRA Standard.
4.2. The Commissioner may order other tests for standard of identity for honey endorsed by the United States Department of Agriculture or the National Honey Board as considered necessary by the Commissioner of Agriculture.
W. Va. Code R. § 61-2A-5 Penalties
5.1. If the Commissioner finds evidence that a vendor is in violation of this rule, the Commissioner may quarantine all honey products from which the sample is taken and shall assess the penalties as provided in W. Va. Code §19-2-11, shall charge the vendor a penalty to recover the costs of testing and may assess other penalties provided by W. Va. Code §19-2D-3.
5.1.a. Upon receipt of documentation from the vendor that fulfills packaging and labeling requirements adopted by the State of West Virginia, the Food and Drug Administration and the Federal Trade Commission, pursuant to the Fair Packaging and Labeling Act, 15 United States Code §§ 1451-1461 et seq. and fulfills requirements as set forth in 3.1.a. and W. Va. Code §19-2D-2, Imitation Honey Product Law, Labeling, the Commissioner may lift the quarantine.
5.1.b. In order to protect the beekeeping industry, the Commissioner shall require destruction of the honey product from which the sample is taken if the documentation set forth in subdivision 5.1.a. of this rule is not received within 90 days from notice to the vendor when the sample is taken.
61CSR2A
61CSR2A
Series 04 Traditional Cheese Production
W. Va. Code R. § 61-4-1 General
1.1. Scope. -- This legislative rule establishes operating rules and procedures for traditional cheese production.
1.2. Authority. -- W. Va. Code '19-11D-3.
1.3. Filing Date. -- May 23, 2001.
1.4. Effective Date. -- July 1, 2001.
W. Va. Code R. § 61-4-2 Definitions
2.1. ACommissioner@ means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent.
2.2. AAcceptable Milk@ means milk, or cream from the milk, which meets the requirements as to sight and odor, sediments, bacterial content, inhibitory substances, and which has been produced in compliance with the provisions set forth in this Rule.
2.3. ABarnyard@ means an enclosed or unenclosed area adjacent to the milking barn which may include housing areas and feedlots in which the animals may congregate.
2.4. ACheese Kitchen@ means a facility for the handling and cooling of milk, processing, aging, and packaging of cheese, and for washing, handling, and storing cheese making utensils and equipment.
2.5. ADairy farm@ or Afarm@ means a place or premises where one or more milking animals are kept, a part or all of the milk produced on the farm being used in the production of cheese by the incorporation of traditional methods
2.6. AInspection@ means the inspection of the dairy farm premises, buildings, animals, equipment, utensils, water supply, and facilities and procedures used in the production of milk and/or cream for cheese production purposes.
2.7. AInspector@ means a qualified, trained person employed by the West Virginia Department of Agriculture or any person designated by the Commissioner to inspect dairy farms and cheese production by traditional methods.
2.8. AInhibitory Substances@ include antibiotics and pesticides not registered for use on lactating dairy animals, and other substances as determined by the Commissioner.
2.9. AMilk@ means the normal lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.
2.10. AMilkhouse or Milkroom@ means a room at the facility for handling and cooling milk and for washing and storing milking equipment and utensils.
2.11. APerson@ means any individual, firm, co-partnership, corporation, cooperative association, cooperative corporation or unincorporated association.
2.12. AProducer@ means the person or persons who exercise control over the production of cow=s milk on a West Virginia dairy farm, where the milk or the cream from the milk is used to manufacture cheese through the use of traditional methods.
2.13. ATraditional Method@ means cheese production techniques which have been handed down to the producer=s family and/or community through several generations of cheese makers. The production of this cheese is, in part, for the preservation of the heritage of the producer=s family and/or community.
W. Va. Code R. § 61-4-3 Minimum Quality Standards
3.1. Acceptable milk for the manufacture of cheese by traditional methods shall meet the following methods:
3.1.1. Sight and odor. The milk shall be free from visible foreign matter. It shall not be curdled, ropy, bloody, or mastitic as indicated by sight or odor. It shall be free from feed odors or other objectionable odors;
3.1.2. Temperature. Milk shall be cooled to 45 degrees Fahrenheit or lower within two hours after milking and shall be maintained at 45 degrees Fahrenheit or lower until used to manufacture cheese by traditional methods;
3.1.3. Bacterial limits. Milk from an individual producer shall not exceed 1,000,000 bacterial count per milliliter as determined by standard plate count;
3.1.4. Inhibitory substances. No inhibitory substances are permitted in milk; and
3.1.5. Sediment. Milk should not have more than 1.5 mg of sediment as determined by the Standard Methods for the Examination of Dairy Products.
W. Va. Code R. § 61-4-4 Minimum Testing Requirements
4.1. At least once each month at irregular intervals the producer shall take samples of the milk. The samples shall be tested for compliance with the standards set forth in this Rule and are subject to the abnormal milk provisions of this Rule. Additional samples may also be collected by the inspector.
4.2. Samples shall be analyzed at an approved official or officially designated laboratory. All sampling procedures and required laboratory examinations shall be in substantial compliance with the current edition of AStandard Methods for the Examination of Dairy Products@ published by the American Public Health Association, 1015 Eighteenth Street, N. W., Washington, D. C. 20036 and/or the current edition of AOfficial Methods of Analysis of the Association of Official Analytical Chemists@ published by the Association of Official Analytical Chemists, Suite 400, 2200 Wilson Boulevard, Arlington, Virginia 22201.
4.3. The inspector should arrange to visit each producer who continually does not meet the requirements for acceptable milk, for the purpose of inspecting equipment, utensils, and facilities at the farm and to offer constructive assistance for improvement in the quality of the milk.
4.4. Concurrent with all test results made to a producer regarding bacteria counts, sediment, or inhibited substances, the laboratory shall send a copy of the results to the designated representative of the Commissioner.
W. Va. Code R. § 61-4-5 Inhibitory Substances
5.1. The milk from a dairy farm containing an inhibitory substance, the producer shall not use any more milk produced by such farm for at least two days following the test to manufacture cheese. The producer shall not use any more milk until the production from the farm has been found to be free of inhibitory substances. The two-day exclusionary provisions cited shall be increased to three days for a repeat violation within six months, and shall be increased to four days for subsequent violations within that period.
W. Va. Code R. § 61-4-6 Abnormal Milk
6.1. A producer shall not use milk for cheese manufacturing which is found to be abnormal by sight or odor, which is from animals that show evidence of the secretion of abnormal milk in one or more quarters, or which is from animals that have consumed chemical, medicinal, or radioactive agents that may be secreted in the milk. Equipment, containers, and utensils used to handle abnormal milk shall be cleaned and sanitized by the producer before they are used for milk for manufacturing purposes. The equipment shall meet the construction requirements set forth in this Rule. Milk from animals treated with or exposed to pesticides not approved for use on dairy animals by the U. S. Environmental Protection Agency shall not be used for manufacturing purposes until the milk has been tested and found acceptable by the Commissioner.
6.2. When a confirmatory test on a routine sample indicates a somatic cell count above 1,000,000 cells per milliliter, the Commissioner shall send written notification of the unsatisfactory cell count to the producer.
6.3. When two out of the last four routine samples have a somatic cell count above 1,000,000 cells per milliliter, the Commissioner shall send a written notice of the counts to the producer and a representative of the Commissioner shall contact the producer to endeavor to determine and eliminate the source of the violative cell count.
W. Va. Code R. § 61-4-7 Adulteration
7.1. The producer shall not use milk for traditional methods if it is adulterated. Milk is considered to be adulterated if it contains any poisonous or deleterious substances, does not meet the quality standards set forth in this Rule, has been produced, processed, or held under unsanitary conditions, contains added water, is from a species other than cows, or contains bacteria in excess of those standards set forth in this Rule.
W. Va. Code R. § 61-4-8 Milkhouse B Construction and Facilities
8.1. The producer may provide a milkhouse conveniently located and properly constructed, lighted, and ventilated for handling and cooling milk and for washing, handling, and storing the equipment and utensils. Other products which would be likely to contaminate milk, or otherwise create a public health hazard, shall not be handled in the milkhouse.
8.2. If the farm has a milkhouse it shall meet the following construction requirements:
8.2.1. The milkhouse shall be equipped with wash and rinse vats and a utensil rack, and have an adequate supply of hot and cold water available for cleaning milking equipment. If the milkhouse is part of the barn or other building, it shall be partitioned, screened, and sealed to prevent the entrance of dust, flies, or other contamination. A milking parlor used strictly as a milking facility in combination with a milkhouse, when properly equipped, arranged and maintained, need not be partitioned.
8.2.2. Concentrates and feed, if stored in the building, shall be kept in a tightly covered box or bin.
8.2.3. The floor of the building shall be of concrete or other impervious material. The floor slopes shall drain so that there are no pools of standing water. The joints between the floor and the walls shall be water tight;
8.2.4. The liquid wastes shall be disposed of in a sanitary manner. All floor drains shall be accessible and shall be trapped if connected to a sanitary sewer;
8.2.5. Walls and ceilings shall be constructed of smooth dressed lumber or similar material, be well painted with a light colored washable paint, and be in good repair. Surfaces and joints shall be tight and smooth. Sheet metal, tiles, cement block, brick, concrete, cement plaster, or similar materials of light color may be used as long as the surfaces and joints are smooth and easily cleaned;
8.2.6. Windows and solid doors shall be closed during dusty weather, otherwise, windows and doors shall be properly screened. All outside doors shall open outward and be self closing, unless they are equipped with tight fitting screen doors that open outward or unless other effective means are provided to prevent the entrance of flies;
8.2.7. The milkhouse shall be adequately ventilated to minimize odors and condensation on floors, walls, ceilings, and clean utensils;
8.2.8. Vents and light fixtures shall be installed in a manner to preclude the contamination of milk and clean utensils;
8.2.9. There shall be no direct opening into any barn, stable, or room used for domestic purposes; except that an opening between the milkhouse and milking parlor, is permitted when a tight fitting self-closing solid door, hinged to be single or double acting, is provided; and
8.2.10. The milkhouse shall be equipped with a wash and rinse vat having at least two compartments. Each compartment shall be of sufficient size to accommodate the largest utensil or container used.
W. Va. Code R. § 61-4-9 Milkhouse B Cleanliness
9.1. If the farm has a milkhouse, the producer shall meet the following requirements;
9.1.1. The milkhouse structure, equipment, and other milkhouse facilities used in its operation shall be kept clean at all times;
9.1.2. The milkhouse and its appurtenances shall be free of trash, animals, and fowl;
9.1.3. Pesticides or unapproved antibiotics shall not be stored in this room and when they are used they shall be used in accordance with label instructions so as to prevent contamination of the milk.
W. Va. Code R. § 61-4-10 Milking Barn or Parlor Construction and Maintenance
10.1. Each farm shall have a milking barn or milking parlor of adequate size and arrangement to permit normal sanitary milking operations. It shall be well lighted and ventilated, and the floors and gutters in the milking area shall be constructed of concrete or other impervious material.
10.2. The facility shall be kept clean, with the manure removed daily and stored to prevent access of animals to the accumulation of the manure; and no swine or fowl shall be permitted in any part of the milking area.
10.3. If milk is exposed during straining or transferring in the milking areas it shall be protected from falling particles from areas above the milking facility.
W. Va. Code R. § 61-4-11 Milking Barn or Parlor Cleanliness
11.1. The interior of the milking barn or parlor shall meet the following standards of cleanliness:
11.1.1. The interior of the facilities shall be kept clean;
11.1.2. Leftover feed in feed mangers shall be fresh and shall not be wet or soggy;
11.1.3. The bedding material, if used, shall not contain more manure than that which has accumulated since the previous milking;
11.1.4. The gutter shall be kept reasonably clean, with manure removed daily; and
11.1.5. All pens and stalls, if not separated from the milking barn or parlor shall be kept clean.
W. Va. Code R. § 61-4-12 Barnyard
12.1. A barnyard shall meet the following requirements;
12.1.1. The barnyard shall be graded and drained. Depressions and soggy areas shall be filled and lanes shall be reasonably dry;
12.1.2. Approaches to the barn door and the surroundings of stock watering and feeding stations shall be solid to the footing of the animals;
12.1.3. Wastes from the barn or milkhouse shall not be allowed to pool in the barnyard. Barnyards which are muddy due to recent rains do not violate this Section;
12.1.4. Manure, soiled bedding, and waste feed shall not be stored or permitted to accumulate in the barnyard in such a manner as to permit the soiling of udders and flanks. Housing areas (stables without stanchions, such as loose-housing stables, pen stables, resting barns, holding barns, loafing sheds, wandering sheds, free-stall housing) are considered a part of the barnyard. Manure packs shall be solid to the footing of the animal;
12.1.5. Barnyards shall be kept reasonably free of droppings. Droppings shall not be allowed to accumulate in piles that are accessible to the animals; and
12.1.6. The yard or loafing area shall be of ample size to prevent overcrowding.
W. Va. Code R. § 61-4-13 Water Supply
13.1. The dairy farm water supply shall be properly located, protected, and operated. It shall be easily accessible, ample, and of safe sanitary quality for the cleaning of dairy utensils and equipment. The water supply shall come from an approved public source or from a spring, dug well, driven well, bored well, or drilled well, that complies with the standards of the West Virginia Department of Health and Humans Resources.
W. Va. Code R. § 61-4-14 Toilet Facilities
14.1. Every dairy farm shall have one or more toilets, conveniently located and properly constructed, operated, and maintained in a sanitary manner. The waste shall be inaccessible to flies and shall not pollute the soil surface or contaminate any water supply;
W. Va. Code R. § 61-4-15 Milking Utensils and Equipment - Construction, Cleaning, Storage, and Handling
15.1. Construction of utensils and equipment shall meet the following requirements:
15.1.1. All multiuse utensils, equipment, and containers which are exposed to milk or cheese products, shall be made of smooth impervious, nonabsorbent, safe materials of the following types:
15.1.1.a. Stainless steel of the AISI (American Iron and Steel Institute) 300 series;
15.1.1.b. Equally corrosion resistant nontoxic metal;
15.1.1.c. Heat resistant glass; or
15.1.1.d. Plastic or rubber and rubber like materials which are relatively inert, resistant to scratching, scoring, decomposition crazing, chipping, and distortion under normal use conditions. The materials shall be nontoxic, fat resistant, relatively nonabsorbent, relatively insoluble, and may not release component chemicals or impart flavor or odor to the product. The materials shall maintain their original properties under repeated use conditions;
15.1.2. Single-service articles shall be manufactured, packaged, transported, and handled in a sanitary manner;
15.1.3. Articles intended for single-service use shall not be reused;
15.1.4. All containers, equipment, and utensils shall be free of breaks and corrosion;
15.1.5. All joints in the containers, equipment, and utensils shall be smooth and free from pits, cracks, and inclusions;
15.1.6. Strainers shall be of perforated metal design, or constructed to utilize single-service strainer media; and
15.1.7. All milking machines, including heads, milk claws, milk tubing, and other milk contact surfaces shall be easily cleaned and inspected.
15.2. Utensils and equipment shall meet the following cleanliness requirements:
15.2.1. The contact surfaces of all multiuse containers, equipment, and utensils used in the handling, storage, or transportation of milk or cheese products shall be cleaned after each use; and
15.2.2. The contact surfaces of all multiuse containers, equipment, and utensils shall be sanitized immediately prior to use for the handling, storage, or transportation of milk or cheese products.
15.3. Utensils and equipment shall be stored in the following manner:
15.3.1. All milk containers, utensils, and equipment, including milking machine vacuum hoses, shall be stored in a sanitizing solution or on racks until used;
15.3.2. All milk containers, utensils and equipment shall be stored in a clean and properly ventilated area;
15.3.3. Equipment shall be stored to drain completely;
15.3.4. Strainer pads, gaskets, and similar single-service articles shall be stored in a suitable container or cabinet and protected against contamination.
15.4. Utensils and equipment handling shall meet the following requirements:
15.4.1. After sanitation, all containers, utensils and equipment shall be handled in such a manner as to prevent contamination of any product contact surface;
15.4.2. Sanitized product contact surfaces shall be protected against contact with unsanitized equipment and utensils, hands, clothing, splash, condensation, and other sources of contamination; and
15.4.3. Any sanitized product contact surface, which has been otherwise exposed to contamination, shall be cleaned and sanitized again prior to being used.
W. Va. Code R. § 61-4-16 Milking - Flanks, Udders, and Teats
16.1. Milking practices shall meet the following requirements:
16.1.1. Milking shall be done in a milking barn or parlor;
16.1.2. The cows flanks, bellies, tails, and udders, shall be clipped as often as necessary to facilitate cleaning of those areas and shall be free from dirt. The hair on the udders shall be of such length that it is not incorporated with the teat in the inflation during milking;
16.1.3. Udders and teats of all milking animals shall be cleaned and treated with a sanitizing solution and shall be relatively dry just prior to milking; and
16.1.4. Wet hand milking shall be prohibited.
W. Va. Code R. § 61-4-17 Milking - Surcingles, Milk Stools, and Anti-kickers
17.1. Surcingles, milk stools, and anti-kickers shall be kept clean and shall be stored above the floor in a clean place in the milking barn, stable, parlor, or milkhouse when not in use.
W. Va. Code R. § 61-4-18 Protection From Contamination
18.1. Protection from contamination requires compliance with the following:
18.1.1. Equipment and operations shall be located within the milking barn and milkhouse to prevent overcrowding and contamination of cleaned and sanitized containers, equipment, and utensils by splash, condensation, or manual contact;
18.1.2. All milk which has overflowed, leaked, spilled, or been improperly handled shall be discarded;
18.1.3. All product contact surfaces of containers, equipment, and utensils shall be covered or otherwise protected to prevent the access of insects, dust, condensation, and other contamination;
18.1.4. When milk is poured or strained in the milking barn, the receiving receptacle shall be raised above the floor (as on a dolly or cart), or placed at a distance from the animals to protect it from manure or splash. The receptacle shall have a tight fitting cover which shall be closed except when milk is being poured;
18.1.5. Each pail or container of milk shall be transferred immediately from the milking barn to the refrigerated storage facility;
18.1.6. Pails, cans, and other equipment containing milk shall be properly covered during transfer and storage; and
18.1.7. Antibiotics and medicines shall be stored in such a manner that they cannot contaminate the milk or milk product contact surfaces of the equipment, containers, or utensils.
W. Va. Code R. § 61-4-19 Personnel - Hand Washing Facilities
19.1. The following hand washing facilities for personnel are required:
19.1.1. Hand washing facilities shall be located convenient to the milking barn, parlor, or flush toilet;
19.1.2. Hand washing facilities shall include soap or detergent, water, and towels; and
19.1.3. The facilities shall be kept in good repair, clean, and shall not be used for storage.
W. Va. Code R. § 61-4-20 Personnel - Cleanliness
20.1. All persons shall comply with the following:
20.1.1. Hands shall be washed clean and dried with a sanitary towel immediately before milking, before performing any milkhouse function, and immediately after the interruption of any of these activities; and
20.1.2. Milkers shall wear clean outer garments while milking or handling milk, milk containers, equipment or utensils.
W. Va. Code R. § 61-4-21 Personnel - Health
21.1. No person affected with any disease in a communicable form, or while a carrier of the disease, shall work at any dairy farm or cheese making facility in any capacity which brings him or her into contact with the production, handling, storage, or transportation of milk, cheese, containers, equipment, or utensils. No dairy farm operator or cheese maker shall employ in any capacity any person having or suspected of having a disease in a communicable form, or being a carrier of the disease. Any producer who suspects that any employee or family member has contracted any disease in a communicable form, or has become a carrier of the disease, shall notify the Commissioner immediately.
21.2. When reasonable cause exists to suspect the possibility of transmission of infection from any person handling milk or cheese, the Commissioner may require any or all of the following measures:
21.2.1. The immediate exclusion of that person from milk or cheese handling;
21.2.2. The immediate exclusion of the milk or cheese supply concerned from distribution and use;
21.2.3. Adequate medical and bacteriological examination of the person, and of his or her associates.
W. Va. Code R. § 61-4-22 Animal Health
22.1. All cows milk for processing cheese through traditional methods shall be from herds under a brucellosis eradication program which meets one of the following conditions:
22.1.1. The herd is located in a Certified Brucellosis-Free Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
22.1.2. The herd is located in a Modified Certified Brucellosis Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
22.1.3. The herd meets United States Department of Agriculture requirements for an individually certified herd;
22.1.4. The herd is participating in a milk ring testing program which is conducted on a continuing basis at intervals of not less than every three (3) months or more than every six (6) months with individual blood tests on all animals in herds showing suspicious reactions to the milk ring test; or
22.1.5. The herd has an individual blood agglutination test annually with an allowable maximum grace period not exceeding two (2) months.
22.2. All cows milk for manufacturing or processing cheese shall be from herds which are located in a Modified Accredited Tuberculosis Area as determined by the United States Department of Agriculture. A Modified Accredited Tuberculosis Area shall be interpreted as requiring all dairy herds to be tested every six (6) years with an allowable maximum grace period of two (2) months. Herds located in an area that fails to maintain accredited status shall be accredited by the United State Department of Agriculture as tuberculosis free, or shall pass an annual tuberculosis test.
22.3. For diseases other than brucellosis and tuberculosis the Commissioner may require any physical, bacteriological, or chemical tests he or she determines necessary. The diagnosis of other diseases in dairy animals shall be based upon the findings of a licensed veterinarian or a veterinarian in the employee of the Commissioner. Any producer owning a diseased animal disclosed by the test, shall dispose of the animal as the Commissioner directs.
W. Va. Code R. § 61-4-23 Insect and Rodent Control
23.1. Effective measures shall be taken to prevent the contamination of milk, cheese, containers, equipment, and utensils by insects or rodents, and by chemicals used to control the vermin.
23.1.1. Manure packs in loafing areas, stables without stanchions, pen stables, resting barns, wandering sheds and free stall housing shall be properly bedded and managed to prevent fly breeding.
23.1.2. Milkhouses and cheese kitchens shall be kept free of insects and rodents.
23.1.3. Milkhouses and cheese kitchens shall be effectively screened or otherwise protected against the entrance of vermin.
23.1.4. Insecticides not approved for use in a milkhouse or cheese kitchens shall not be stored in those facilities.
23.1.5. Only insecticides and rodenticide approved for use by the Commissioner and registered with the United States Environmental Protection Agency shall be used for insect and rodent control.
23.1.6. Insecticides and rodenticide shall be used only in accordance with the manufacturer=s label directions so as to prevent the contamination of milk, cheese, containers, equipment, utensils, feed and water.
W. Va. Code R. § 61-4-24 Farm Inspection
24.1. Each farm and cheese manufacturing facility shall be inspected for compliance with this rule at least two (2) times during each twelve (12) month interval with approximately six (6) months between the routine inspections. Inspections shall be conducted more frequently if necessary to achieve compliance with the provisions of this Rule.
W. Va. Code R. § 61-4-25 Cheese Kitchen B Construction and Facilities
25.1. The cheese kitchen shall meet the following construction and facility requirements:
25.1.1. A cheese kitchen shall be conveniently located and properly constructed, lighted, and ventilated.
25.1.2. Products which would be likely to contaminate milk or cheese or otherwise create a health hazard shall not be handled in the cheese kitchen;
25.1.3. The cheese kitchen shall be equipped to provide for the washing and sanitizing of equipment and utensils with an adequate supply of hot and cold water;
25.1.4. The liquid wastes shall be disposed of in a sanitary manner. All drains shall be trapped if connected to a sanitary sewer;
25.1.5. The cheese kitchen shall be constructed in a manner which will provide for adequate cleaning of ceilings, walls, and floors;
25.1.6. The cheese kitchen shall have doors and windows which will provide adequate protection from dust, insects, and rodents; and
25.1.7. Cheese cupboards shall be screened to prevent the entrance of flies.
25.1.8. Cheese aging areas shall be clean and sanitary. They shall be free of insects and rodents. Access to these areas by fowl or other animals shall not be permitted. Doors from these areas to the outside shall be kept closed at all times.
W. Va. Code R. § 61-4-26 Cheese Kitchen - Utensils and Equipment
26.1. All multiuse containers, equipment, and utensils which are exposed to milk or cheese shall be made of smooth nonabsorbent, safe materials.
26.2. Single service articles shall be stored and handled in a safe and sanitary manner. Articles intended for single service use shall not be reused.
26.3. All containers, equipment, and utensils shall be free of breaks and corrosion. They shall have joints that are smooth and free from pits, cracks, or inclusions.
26.4. The product contact surfaces of all multi use containers, equipment, and utensils used in the handling, storage, or transportation of cheese shall be cleaned after each use. Cheese presses and cheese cupboards shall be kept clean and sanitary.
26.5. All containers, equipment, and utensils shall be stored in a manner which will protect it from contamination.
W. Va. Code R. § 61-4-27 Farm Exclusion
27.1. No firm shall process cheese using raw milk from a dairy farm that is not in compliance with the provisions of this Rule.
27.2. In the event of noncompliance with this Rule or in the event of a refusal by a producer to allow an inspection of the dairy farm by an inspector of the West Virginia Department of Agriculture, the milk from the dairy farm shall not be used to process cheese until such time as the farm is found to be in compliance and/or access to inspect the dairy farm is permitted.
W. Va. Code R. § 61-4-28 Permit To Operate
28.1. It is unlawful for any person who does not possess a permit from the Department of Agriculture to operate a dairy farm which produces and offers for sale cheese which is processed using traditional methods as covered under the provisions of this Rule.
28.2. The producer shall apply for a permit on forms prescribed and furnished by the Commissioner. No application fee is required for this permit. All permits expire June 30 (thirtieth) of each year.
61CSR4
Series 04A Production Of Milk And Cream For Manufacturing Purposes
W. Va. Code R. § 61-4A-1 General
1.1. Scope. -- These legislative regulations establish general operating rules and procedures for the production of milk and cream for manufacturing purposes.
1.2. Authority. -- W. Va. Code '19-11.
1.3. Filing Date. -- April 10, 1990.
1.4. Effective Date. -- April 10, 1990.
W. Va. Code R. § 61-4A-2 Definitions
2.1. For the purposes of the Rule, the following terms have the following meanings:
2.1.1. "Commissioner" means the Commissioner of Agriculture of the State of West Virginia.
2.1.2. "Person" means any individual, firm, co-partnership, corporation, cooperative association, cooperative corporation or unincorporated association.
2.1.3. "Producer" means the person or persons who exercise control over the production of milk on a dairy farm, which milk or the cream therefrom is offered for sale at a plant for manufacture into milk products. This term includes all producers located within West Virginia and selling milk and/or cream for manufacture in or outside of West Virginia and all producers located outside of West Virginia selling milk and/or cream in West Virginia for manufacture.
2.1.4. "Plant" means any building, place, premises, rooms or other establishment where milk, cream, or dairy products are received for eventual use in dairy products. This shall include plants located outside of West Virginia receiving milk and/or cream from West Virginia sources and plants located in West Virginia receiving milk and/or cream from sources outside of West Virginia.
2.1.5. "Dairy products" means butter, cheese of all kinds, dry whole milk, non-fat dry milk, dried buttermilk, dried whey, evaporated or condensed whole or skimmed milk (plain or sweetened), frozen desserts or other products made principally from milk or its ingredients, and which are for human consumption.
2.1.6. "New producer" means a producer who has not heretofore produced milk or cream for manufacture into dairy products.
2.1.7. "Transfer producer" means a producer who has delivered milk and/or cream to a plant and who changes his delivery to another plant.
2.1.8. "Acceptable milk" means milk, or cream therefrom, which meets the requirements as to sight and odor, sediments, bacterial content, inhibitory substances, and which has been produced in compliance with the provision set forth in this Rule.
2.1.9. "Rejectable milk" means milk or cream therefrom, which does not meet the definitions of acceptable milk set forth in Section 2.1.8 of this rule.
2.1.10. "Excluded milk" means milk or cream therefrom which has been rejected by the operator of a plant because it does not meet the standards for acceptable milk, and milk produced on a farm which has been excluded from delivery to a plant.
2.1.11. "Inspection" means the inspection of the dairy farm premises, buildings, animal, equipment, utensils, water supply and facilities and procedures used in the production of milk and/or cream for manufacturing purposes.
2.1.12. "Score sheet" means the form, provided pursuant to this Rule, for evaluating the farm and its facilities at the time of inspection.
2.1.13. "Source" means producers and plants from which milk and/or cream are received.
2.1.14. "Fieldman" means a person qualified and trained in the sanitary methods of production and handling of milk as set forth herein, and generally employed by a processing or manufacturing plant for the purpose of making dairy farm surveys and doing quality control work.
2.1.15. "Inspector" means a qualified, trained person employed by the West Virginia Department of Agriculture or any person designated by the Commissioner to perform dairy farm inspections and raw milk grading.
2.1.16. "Dairy farm" or "farm" means a place or premise where one or more milking animals are kept, a part of all of the milk produced thereon being delivered, sold, or offered for sale to a plant for manufacturing purposes.
2.1.17. "Milk" means the normal lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy animals which shall include but not be limited to cows and goats. The word "milk" used herein includes only milk for manufacturing purposes.
2.1.17.1. Goat milk is the lacteal secretion practically free from colostrum obtained by the complete milking of one or more healthy goats. Goat milk shall only be used to manufacture dairy products that are recognized as non-standardized traditional products normally manufactured from goats milk.
2.1.17.2. For milk from animals other than cows and goats, the Commissioner may develop special criteria under this definition.
2.1.18. "Milk for manufacturing purposes" means milk produced for processing and manufacturing into products for human consumption but not subject to Grade A or comparable requirements.
2.1.19. "Inhibitory substances" include antibiotics and pesticides not registered for use on lactating dairy animals and other substances so classified by the Commissioner.
W. Va. Code R. § 61-4A-3 Minimum Quality Standards
3.1. Acceptable milk for manufacturing purposes shall meet the following requirements:
3.1.1. Sight and odor. The milk shall be free from visible foreign matter. It shall not be curdled, ropy, bloody, or mastitic as indicated by sight or odor. It shall be free from feed or other objectionable odors.
3.1.2. Temperature. Milk in farm tanks shall be cooled to 45 degrees Farenheit or lower within two hours after milking and shall be maintained at 45 degrees Farenheit or lower until transferred to the bulk tank truck.
3.1.3. Bacterial Limits. Commingled milk shall not exceed 3,000,000 bacterial count per ml at the time of delivery. Individual producer milk shall not exceed 1,000,000 bacterial count per ml at the time of delivery.
3.1.4. Inhibitory Substances. No inhibitory substances shall be permitted in milk.
3.1.5. Sediment. Milk should not have more than 1.5 mg (sediment) as determined by the Standard Methods for the Examination of Dairy Products.
3.1.6. Water. The milk from each producer shall be tested for the presence of extraneous water as often as the plant or commissioner determines necessary using the Cryoscopic test according to the current edition of the "Standards Methods for Examination of Dairy Products" or other tests accepted by the commissioner. Evidence of adulteration by water shall constitute cause for exclusion of the producer until the plant is satisfied the condition has been corrected.
W. Va. Code R. § 61-4A-4 Minimum Testing Requirements
4.1. Frequency of testing. At least once each month at irregular intervals samples shall be taken by the plant operator from each dairy farm source. Such samples shall be tested for compliance with the standards set forth in Section 3 of this Rule and shall be subject to the abnormal milk provisions of Section 7 of this Rule. Additional samples may also be taken by an inspector.
4.2. Samples shall be analyzed at an approved official or officially designated laboratory. All sampling procedures and required laboratory examinations shall be in substantial compliance with the current edition of "Standard Methods for the Examination of Dairy Products" and/or the current edition of "Official Methods of Analysis of the Association of Official Analytical Chemists".
4.3. All samples taken pursuant to this Section, as a result of follow up procedure on milk with excessive bacteria count, shall be by a plant operator.
4.3.1. The fieldman should arrange to promptly visit each producer shipping milk which does not meet the requirements for acceptable milk, for the purpose of inspecting the equipment, utensils, and facilities at the farm and to offer constructive assistance for improvement in the quality of the milk. The fieldman should visit each producer as often as practicable to assist in and encourage the production of high quality milk.
4.4. Notification to the Commissioner. Concurrent with all notices made to a producer regarding excessive bacteria counts, a copy of such notification shall be sent to the designated representative of the commissioner.
4.5. Commingled milk. It shall be the responsibility for each receiving and/or manufacturing plant to arrange for samples of routinely received commingled milk to be analyzed monthly. All occasional receipts of milk shall be analyzed for compliance with standards set forth in this Rule. Results of such analyses shall be recorded in a manner acceptable to the Commissioner.
W. Va. Code R. § 61-4A-5 Inhibitory Substances
5.1. The plant operator who receives milk found to contain inhibitory substances shall:
5.1.1. Test all milk from individual producers which was a part of a commingled load of milk found to contain inhibitory substances.
5.1.2. Investigate each dairy farm from which milk containing an inhibitory substance was received and cause corrective action to be taken.
5.1.3. Take an additional sample and test it and receive no more milk from that producer until the results meet the standards.
5.1.4. If the milk from a dairy farm contains an inhibitory substance, no more milk produced by such farm for the following two days shall be received by any plant operator and no more milk shall be received until the production of milk from such farm has been found to be free of inhibitory substances. The two day exclusionary provisions cited above shall be increased to three days for a repeat violation within six months, and shall be increased to four days for subsequent violation within such period.
W. Va. Code R. § 61-4A-6 Sediment
6.1. The follow up procedure for sediment shall be in accordance with the provisions in Section 4 of this Rule.
W. Va. Code R. § 61-4A-7 Abnormal Milk
7.1. Milk which is found to be abnormal by sight or odor shall not be offered for sale or sold for manufacturing purposes. Milk, from animals, which shows evidence of the secretion of abnormal milk in one or more quarters, based on bacteriological, chemical, or physical examination and milk which has been treated with or from animals which have consumed chemical, medicinal, or radioactive agents which may be capable of being secreted in the milk and may be deleterious to health in the Commissioner's opinion, shall be milked last or with separate equipment and such milk shall not be offered for sale or sold for manufacturing purposes. Equipment, utensils and containers used to handle abnormal milk shall be cleaned and sanitized before being used for milk to be sold. Such equipment shall meet the construction requirements set forth in the Rule. Milk from animals treated with or exposed to pesticides not approved for use on dairy animals by the U.S. Environmental Protection agency shall not be offered for sale until such milk has been tested and found acceptable by the Commissioner.
7.2. Acceptable Detection Tests. The Wisconsin Mastitis Test (WMT) or the California Mastitis Test (CMT) may be used as a screening test. A WMT of 19 mm or higher or a CMT or weak positive (1+) indicates abnormal milk and requires confirmation. Confirmation shall be made by the Direct Microscopic Somatic Cell Count method or an electronic counting method approved by the Commissioner. The commissioner may periodically approve additional testing methods or make changes in screening test results requiring confirmation based upon further research.
7.3. Compliance requirements. The plant operator and each producer shall follow the procedures below as applicable:
7.3.1. The plant operator shall cause the milk shipped by each producer to be tested for abnormalities on a monthly basis and the results of such examination shall be sent to each producer and posted by the producer in his milkhouse. The samples shall be examined by an acceptable screening test and when required, re-examined by an acceptable confirmatory test. A screening test may be omitted if a producer's milk samples are routinely examined by an acceptable confirmatory method.
7.3.2. When a confirmatory test on a routine sample indicates a somatic cell count above 1,000,000 cells per ml, a written notice shall be sent to the producer of such unsatisfactory cell count and a recheck sample shall be collected within 21 days but not prior to 5 days after said notice has been sent. The recheck samples shall be examined by an acceptable confirmatory method.
7.3.3. When two out of the last four routine samples have a somatic cell count above 1,000,000 per ml, written notification shall be sent to the producer and the producer shall be notified that another sample with a somatic cell count above 1,000,000 per ml shall require exclusion until an acceptable somatic cell count is obtained. The follow up procedure shall be in accordance with the provisions in Section 4 of this Rule, Minimum Testing Requirements.
7.3.4. When two out of the last four routine samples have a somatic cell count above 1,000,000 per ml, an additional sample shall be taken within 21 days, but not before five days after the notice described in Section 7.3.2 of this Rule above has been sent to the producer. If the somatic cell count of this sample exceeds 1,000,000 per ml the producer shall be excluded until a subsequent sample indicates the somatic cell count has been reduced to below 1,000,000 per ml. The producer record must show a loss of the production of at least one milking during this period before reinstatement.
7.3.5. During the 21 days following reinstatement, a total of four samples shall be examined for somatic cell count at a rate not to exceed two samples per week. The first such sample shall be collected within one week after reinstatement. If the somatic cell count of these samples is 1,000,000 or less, the producer shall be returned to routine sample collection frequency. After reinstatement, the producer begins a new quality control record for abnormal milk. If any of the four samples collected during the 21 day period exceeds 1,000,000 cells per ml, follow up action shall be repeated, as described in Section 7.3.2 of this Rule and subsequent steps of this Rule.
W. Va. Code R. § 61-4A-8 Milking Barn, Stable, or Parlor - Construction and Maintenance
8.1. A milking barn or milking parlor of adequate size and arrangement shall be provided to permit normal sanitary milking operations. It shall be well lighted and ventilated, and the floors and gutters in the milking area shall be constructed of concrete or other impervious material. The facility shall be kept clean, the manure removed daily and stored to prevent access of animals to accumulation thereof; and no swine or fowl shall be permitted in any part of the milking area.
8.2. If milk is exposed during straining or transferring in the milking areas it shall be protected from falling particules from areas above the milk facility.
8.3. The yard or loafing area shall be of ample size to prevent overcrowding; shall be drained to prevent forming of standing water pools, insofar as practicable, and shall be kept clean.
W. Va. Code R. § 61-4A-9 Milking Barn, Stable, or Parlor - Cleanliness
9.1. The interior of the milking barn, stable, or parlor shall meet the following standards of cleanliness.
9.1.1. The interior of such facilities shall be kept clean.
9.1.2. Leftover feed in feed mangers shall be fresh and shall not be wet or soggy.
9.1.3. The bedding material, if used, shall not contain more manure than has accumulated since the previous milking.
9.1.4. Outside surfaces of pipeline systems located in the milking barn, stable, or parlor shall be kept reasonably clean.
9.1.5. Gutter shall be kept reasonably clean with manure removed on a daily basis.
9.1.6. All pens and stalls, if not separated from the milking barn, stable, or parlor, shall be kept clean.
W. Va. Code R. § 61-4A-10 Barnyard
10.1. Barnyards shall meet the following requirements:
10.1.1. The barnyard, which is the enclosed or unenclosed area adjacent to the milking barn, in which the animals may congregate, including housing areas and feed lots, shall be graded and drained; depressions and soggy areas shall be filled; lanes be reasonably dry.
10.1.2. Approaches to the barn door and the surroundings of stock watering and feeding stations shall be solid to the footing of the animal.
10.1.3. Wastes from the barn or milkhouse shall not be allowed to pool in the barnyard. Barnyards which are muddy due to recent rains should not be considered as violating this Section.
10.1.4. Manure, soiled bedding, and waste feed shall not be store or permitted to accumulate in the barnyard in such a manner as to permit the soiling of udders and flanks. Housing areas (stables without stanchions, such as loose-housing stables, pen stables, resting barns, holding barns, loafing sheds, wandering sheds, free-stall housing) shall be considered a part of the barnyard. Manure packs shall be solid to the footing of the animal.
10.1.5. Barnyards shall be kept reasonably free of droppings. Droppings shall not be allowed to accumulate in piles that are accessible to the animals.
W. Va. Code R. § 61-4A-11 Milkhouse or Milkroom - Construction and Facilities
11.1. The milkhouse or milkroom shall meet the following construction requirements:
11.1.1. A milkhouse or milkroom conveniently located and properly constructed, lighted, and ventilated shall be provided for handling and cooling milk and for washing, handling, and storing the utensils and equipment. Other products shall not be handled in the milkroom which would be likely to contaminate milk, or otherwise create a public health hazard.
11.1.2. The milkhouse or milkroom shall be equipped with wash and rinse vat, utensil rack, bulk milk tank and have an adequate supply of hot and cold water available for cleaning milking equipment. If a part of the barn or other building, it shall be partitioned, screened, and sealed to prevent the entrance of dust, flies, or other contamination. A milking parlor used strictly as a milking facility in combination with a milkhouse or milkroom, when properly equipped, arranged and maintained, need not be partitioned. Concentrates and feed, if stored in the building, shall be kept in a tightly covered box or bin. The floor of the building shall be of concrete or other impervious material and grade to provide proper drainage. The walls and ceiling shall be constructed a smooth easily cleaned material. All outside doors shall open outward and be self-closing, unless they are provided with tight-fitting screen doors that open outward or unless other effective means are provided to prevent the entrance of flies.
11.1.3. The farm bulk tank shall be properly located in the milkhouse or milkroom for access to all area for cleaning and servicing. It shall not be located over a floor drain or under a ventilator.
11.1.4. A small platform or slab constructed of concrete or other impervious material shall be provided outside the milkhouse, properly centered under a suitable port opening in the wall for milkhouse connections. The opening shall be fitted with a tight, self-closing door. The truck approach to the milkhouse or milkroom shall be properly graded and surfaced to prevent mud or pooling of water at point of loading.
11.1.5. The floor slopes shall drain so that there are no pools of standing water. The joints between the floor and the walls shall be water tight.
11.1.6. The liquid wastes shall be disposed of in a sanitary manner; all floor drains shall be accessible and shall be trapped if connected to a sanitary sewer.
11.1.7. Walls and ceilings shall be constructed of smooth dressed lumber or similar material, well painted with a light-colored washable paint, and in good repair. Surfaces and joints shall be tight and smooth. Sheet metal, tiles, cement block, brick, concrete, cement plaster, or similar materials of light color may be used; the surfaces and joints shall be smooth.
11.1.8. Windows and solid doors shall be closed during dusty weather.
11.1.9. The milkhouse shall be adequately ventilated to minimize odors and condensation on floors, walls, ceilings, and clean utensils.
11.1.10. Vents, if installed, and light fixtures shall be installed in a manner to preclude the contamination of bulk milk tanks or clean utensil storage areas.
11.1.11. There shall be no direct opening into any barn, stable, or room used for domestic purposes; except that an opening between the milkhouse and milking barn, stable or parlor is permitted when a tight-fitting self-closing solid door(s) hinged to be single or double acting is provided.
11.1.12. The milkhouse shall be equipped with a wash and rinse vat having at least two compartments. Each compartment shall be of sufficient size to accomodate the largest utensil or container used. The cleaning-in-place vat for milk pipelines and milk machines may be accepted as one part of the two-compartment vat: Provided, that the cleaning-in-place station rack is not on the vat and the milking machines inflations and appurtenances are completely removed from the vat during the washing, rinsing, and/or sanitizing of other utensils and equipment.
W. Va. Code R. § 61-4A-12 Milkhouse or Room - Cleanliness
12.1. The milkhouse or room shall meet the following cleanliness requirements:
12.1.1. The milkroom structure, equipment, and other milkroom facilities used in its operation or maintenance shall be kept clean at all times.
12.1.2. Every dairy farm shall be provided with one or more toilets, conveniently located and properly constructed, operated, or maintained in a sanitary manner. The waste shall be inaccessible to flies and shall not pollute the soil surface or contaminate any water supply.
12.1.3. Incidental articles such as desks, refrigerators, and storage cabinets may be in the milkroom provided they are kept clean and ample space is available to conduct the normal operations in the milkroom and will not cause contamination of the milk.
12.1.4. The milkhouse or milkroom and appurtenances shall be kept clean and free of trash, animals, and fowl. Pesticides or unapproved antibiotics shall not be stored in this room and when used shall be used in accordance with label instruction so as to prevent contamination on the milk.
12.1.5. Vestibules, if provided, shall be kept clean.
12.1.6. Animals and fowl shall be kept out of the milkroom.
W. Va. Code R. § 61-4A-13 Water Supply
13.1. The dairy farm water supply shall be properly located, protected, and operated, and shall be easily accessible, ample, and of safe, sanitary quality for the cleaning of dairy utensils and equipment. The water supply shall come from a source which is approved by the State Health Department; or from a spring, dug well, driven well, bored well, or drilled well, the water from which complies with the standards of the State Health Department.
W. Va. Code R. § 61-4A-14 Utensils and Equipment - Construction
14.1. Construction of utensils and equipment shall meet the following requirements:
14.1.1. All multiuse containers, equipments, and utensils which are exposed to milk or milk products, or from which liquids may drip, drain, or be drawn into milk or milk products shall be made of smooth impervious, nonabsorbent, safe materials of the following types:
14.1.1.1. Stainless steel of the AISI (American Iron and Steel Institute) 300 series; or
14.1.1.2. Equally corrosion-resistant, nontoxic metal; or
14.1.1.3. Heat-resistant glass; or
14.1.1.4. Plastic or rubber and rubberlike materials which are relatively inert, resistant to scratching, scoring, decomposition, crazing, chipping, and distortion, under normal use conditions; and are nontoxic, fat resistant, relatively nonabsorbent, relatively insoluble, do not release component chemicals or impart flavor or odor to the product, and which maintain their original properties under repeated-use conditions.
14.1.2. Single-service articles shall be manufactured, packaged, transported and handled in a sanitary manner.
14.1.3. Articles intended for single-service use shall not be reused.
14.1.4. All containers, equipment, and utensils shall be free of breaks and corrosion.
14.1.5. All joints in such containers, equipment, and utensils shall be smooth and free from pits, cracks, or inclusions.
14.1.6. Cleaned-in-place milk pipelines and return-solution lines shall be self-draining. If gaskets are used, they shall be self-positioning and of material meeting specifications described in Section 14.1.1.4 of this Rule, and shall be of such design, finish, and application as to form a smooth, flush interior surface. If gaskets are not used, all fittings shall have self-positioning faces designed to form a smooth flush interior surface. All interior surfaces of welded joints in pipelines shall be smooth and free of pits, cracks, and protrusions.
14.1.7. Strainers, if used, shall be of perforated metal design, or so constructed as to utilize single-service strainer media.
14.1.8. All milking machines, including heads, milk claws, milk tubing, and other milk-contact surfaces shall be easily cleaned and inspected.
14.1.9. No milk cans shall be used to store milk for resale.
W. Va. Code R. § 61-4A-15 Utensils and Equipment - Cleaning
15.1. Utensils and equipment shall meet the following cleaning requirements:
15.1.1. The product-contact surfaces of all multiuse containers, equipment, and utensils used in the handling, storage, or transportation of milk shall be cleaned after each usage.
15.1.2. Bulk tanks shall be cleaned when emptied and shall be emptied at least once every 72 hours.
W. Va. Code R. § 61-4A-16 Utensils and Equipment - Storage
16.1. Utensils and equipment shall meet the following storage requirements:
16.1.1. All milk containers, utensils, and equipment, including milking machine vacuum hoses, shall be stored in the milkhouse in a sanitizing solution, or on racks, until used. Milk pipelines and pipeline milking equipment such as milker claws, inflations, weigh jars, meters, milk hoses, milk receivers and milk pumps which are designed for mechanical cleaning may be mechanically cleaned, sanitized and stored in the milking barn or parlor provided this equipment is designed, installed and operated to protect the product-and-solution-contact surface from contamination at all times. Factors to be considered in determining protection include proper location of equipment, proper drainage of equipment and adequate and properly located lighting and ventilation. The milking barn or parlor must be used only for milking.
16.1.2. Means shall be provided to effect complete drainage of equipment when such equipment cannot be stored to drain freely.
16.1.3. Strainer pads, gaskets, and similar single-service articles shall be stored in a suitable container or cabinet and protected against contamination.
W. Va. Code R. § 61-4A-17 Utensils and Equipment - Handling
17.1. Utensils and equipment handling shall meet the following requirements:
After sanitation, all containers, utensils, and equipment shall be handled in such a manner as to prevent contamination of any product contact surface.
17.1.1. Sanitized product-contact surfaces, including farm cooling tank openings and outlets, shall be protected against contact with unsanitized equipment and utensils, hands, clothing, splash, condensation, and other sources of contamination.
17.1.2. Any sanitized product-contact surface, which has been otherwise exposed to contamination, shall be cleaned and sanitized again before being used.
W. Va. Code R. § 61-4A-18 Milking - Flanks, Udders and Teats
18.1. Milking practices shall meet the following requirements:
18.1.1. Milking shall be done in a milking barn, stable, or parlor.
18.1.2. Flanks, bellies, tails, and udders shall be clipped as often as necessary to facilitate cleaning of these areas and shall be free from dirt. The hair on the udders shall be of such length that it is not incorporated with the teat in the inflation during milking.
18.1.3. Udders and teats of all milking animals shall be cleaned and treated with a sanitizing solution and shall be relatively dry just prior to milking.
18.1.4. Wet hand milking shall be prohibited.
W. Va. Code R. § 61-4A-19 Milking - Surcingles, Milk Stools, and Antikickers
19.1. Milk stools, surcingles, and antikickers shall be kept clean and shall be stored above the floor in a clean place in the milking barn, stable, parlor, or milkhouse, when not in use.
W. Va. Code R. § 61-4A-20 Protection From Contamination
20.1. Protection from contamination requires compliance with the following:
20.1.1. Equipment and operations shall be so located within the milking barn and milkhouse as to prevent overcrowding and contamination of cleaned and sanitized containers, equipment, and utensils by splash, condensation, or manual contact.
20.1.2. All milk which has overflowed, leaked, been spilled, or improperly handled shall be discarded.
20.1.3. All product-contact surfaces of containers, equipment, and utensils shall be covered or otherwise protected to prevent the access of insects, dust, condensation, and other contamination. All openings, including valves and piping attached to milk storage and transport tanks, pumps, or vats, shall be capped or otherwise properly protected.
20.1.4. The receiving receptacle shall be raised above the floor (as on a dolly or cart), or placed at a distance from the animal to protect it against manure and splash when milk is poured and/or strained in the milking barn. Such receptacle shall have a tight-fitting cover which shall be closed except when milk is being poured.
20.1.5. Each pail or container of milk shall be transferred immediately from the milking barn, stable or parlor to the milkhouse.
20.1.6. Pails, cans, and other equipment containing milk shall be properly covered during transfer and storage.
20.1.7. Antibiotics and medicines shall be stored in such a manner that they cannot contaminate the milk or milk product-contact surfaces of the equipment, containers or utensils.
W. Va. Code R. § 61-4A-21 Personnel - Hand Washing Facilities
21.1. The following hand-washing facilities are required:
21.1.1. Handwashing facilities shall be located in the milkhouse or convenient to the milking barn, stable, parlor, or flush toilet.
21.1.2. Hand-washing facilities include soap or detergent, water and towels.
21.1.3. Such facilities shall be kept in good repair, clean and shall not be used for storage.
W. Va. Code R. § 61-4A-22 Personnel - Cleanliness
22.1. All persons shall comply with the following requirements:
22.1.1. Hands shall be washed clean and dried with an individual sanitary towel immediately before milking, before performing any milkhouse function, and immediately after the interruption of any of these activities.
22.1.2. Milkers and milk haulers shall wear clean outer garments while milking or handling milk, milk containers, utensils, or equipment.
W. Va. Code R. § 61-4A-23 Insect and Rodent Control
23.1. Effective measures shall be taken to prevent the contamination of milk, containers, equipment, and utensils by insects, rodents, and by chemicals used to control such vermin:
23.1.1. Manure packs in loafing areas, stables without stanchions, pen stables, resting barns, wandering sheds, and free-stall housing shall be properly bedded and managed to prevent fly breeding.
23.1.2. Milkrooms shall be kept free of insects and rodents.
23.1.3. Milkrooms shall be effectively screened or otherwise protected against the entrance of vermin.
23.1.4. Outer milkhouse doors shall be kept tight and self-closing.
23.1.5. Insecticides and rodenticide not approved for use in the milkhouse shall not be stored in the milkhouse.
23.1.6. Only insecticides and rodenticide approved for use by the Commissioner and registered with the U.S. Environmental Protection Agency shall be used for insect and rodent control.
23.1.7. Insecticides and rodenticide shall be used only in accordance with manufacturer's label directions so as to prevent the contamination of milk, milk containers, equipment, utensils, feed, and water.
W. Va. Code R. § 61-4A-24 Farm Inspection
24.1. Each new dairy farm and each transfer farm from which milk or cream is received shall be inspected and found to be in compliance by an inspector prior to such receipt. The Commissioner shall be notified by the plant operator at least 96 hours prior to the anticipated receipt of milk from each new and each transfer farm. At the discretion of the Commissioner, a fieldman may conduct both routine inspections and reinspection, as well as excessive bacteria count investigations. Inspections shall be for the purpose of ascertaining compliance with the provisions of this Rule.
24.2. Frequency of inspection - Each farm shall be inspected at least 2 times during each 12-month interval with approximately 6 months between such routine inspections. Inspections shall be conducted more frequently if necessary to achieve compliance with the provisions of this Rule. A copy of the score sheet shall be posted in the milkhouse or milk room.
W. Va. Code R. § 61-4A-25 Farm Exclusion
25.1. No plant shall receive raw milk from a dairy farm unless the farm is in compliance with the provisions of this Rule.
25.2. In the event of noncompliance with this Rule or in the event of a refusal by a producer to allow an inspection of the dairy farm by an inspector or fieldman, such representative shall have the authority to exclude the producer's dairy farm. The milk from such dairy farm shall remain excluded until such time when it is found to be in compliance and/or access to an inspection of the dairy farm is permitted.
W. Va. Code R. § 61-4A-26 Rejected and Excluded Milk
26.1. Containers of all rejected milk and/or cream shall bear a tag stating the reason for rejection.
26.2. Disposal of Rejected Milk - Milk and/or cream which has been rejected pursuant to this Rule shall not be sold or used as food or an ingredient in a food product for human consumption except that it may be used by the producer of such milk at the farm on which it was produced.
W. Va. Code R. § 61-4A-27 Animal Health
27.1. All cows milk for manufacturing or processing shall be from herds under a brucellosis eradication program which meets one of the following conditions:
27.1.1. The herd is located in a Certified Brucellosis-Free Area as defined by the United States Department of Agriculture and enrolled in the testing program for such areas; or
27.1.2. The herd is located in a Modified Certified Brucellosis Area as defined by the United States Department of Agriculture and enrolled in the testing program for such areas; or
27.1.3. The herd meets United States Department of Agriculture requirements for an individually certified herd; or
27.1.4. The herd participating in a milk ring testing program which is conducted on a continuing basis at intervals of not less than every three (3) months or more then every six (6) months with individual blood tests on all animals in herds showing suspicious reactions to the milk ring test; or
27.1.5. The herd has an individual blood agglutination test annually with an allowable maximum grace period not exceeding two (2) months.
27.2. All cows milk for manufacturing or processing shall be from herds which are located in a Modified Accredited Tuberculosis Area as determined by the United States Department of Agriculture. A Modified Accredited Tuberculosis Area shall be interpreted as requiring all dairy herds to be tested every six years with an allowable maximum grace period of two (2) months. Provided, that herds located in an area that fails to maintain such accredited status shall have been accredited by said department as tuberculosis free, or shall have passed an annual tuberculosis test.
27.3. For diseases other than brucellosis and tuberculosis, the commissioner may require such physical, chemical, or bacteriological tests as he deems necessary. The diagnosis of other diseases in dairy animals shall be based upon the findings of a licensed veterinarian or a veterinarian in the employ of the commissioner. Any diseased animal disclosed by such test(s) shall be disposed of as the Commissioner directs.
W. Va. Code R. § 61-4A-28 Personnel Health
28.1. No person affected with any disease in a communicable form, or while a carrier of such disease, shall work at any dairy farm or milk plant in any capacity which brings him into contact with the production, handling, storage, or transportation of milk, milk products, containers, equipment and utensils; and no dairy farm or milk plant operator shall employ in any such capacity any such person, or any person suspected of having any disease in a communicable form, or of being a carrier of such disease. Any producer or distributor of milk or milk products, upon whose dairy farm or in whose milk plant any communicable disease occurs, or who suspects that any employees has contracted any disease in a communicable form, or has become a carrier of such disease, shall notify the Commissioner immediately.
28.2. When reasonable cause exists to suspect the possibility of transmission of infection from any person concerned with the handling of milk and/or milk products, the Commissioner is authorized to require any or all of the following measures:
28.2.1. The immediate exclusion of that person from milk handling;
28.2.2. The immediate exclusion of the milk supply concerned from distribution and use; and
28.2.3. Adequate medical and bacteriological examination of the person, of his associates, and of his and their body discharges.
W. Va. Code R. § 61-4A-29 Permit To Operate
29.1. It shall be unlawful for any person who does not possess a permit from the Department of Agriculture to operate a dairy farm which produces and offers for sale milk covered under the provisions of this Rule. Application(s) for such permit(s) shall be made to the Commissioner on a form prescribed and furnished by the State Department of Agriculture.
61CSR4A
Series 04C Dairy Products And Imitation Dairy Products
W. Va. Code R. § 61-4C-1 General
1.1. Scope. -- This legislative rule establishes the requirements governing the manufacture and distribution of dairy products and imitation dairy products. Frozen desserts, as defined by W. Va. Code, §§19-11A-1 et seq., will be enforced by W. Va. Code, §§19-11b-1 et seq., and legislative rules promulgated under that article.
1.2. Authority -- W. Va. Code §19-11A-10.
1.3. Filing Date -- April 30, 2004.
1.4. Effective Date -- July 1, 2004.
W. Va. Code R. § 61-4C-2 Incorporation by Reference
2.1. The following documents are adopted in their entirety:
2.1.a. Title 21 Code of Federal Regulations (April 1, 2003).
2.1.b. Title 40 Code of Federal Regulations (July 1, 2002).
2.1.c. 16th edition of the "Standard Methods for the Examination of Dairy Products" published by the American Public Health Association, 1015 Fifteenth Street, N.W., Washington, D.C 20005.
2.1.d. 17th Edition and supplements to the Official Methods of Analysis of AOAC International (formerly known as the Association of Official Analytical Chemists), published by AOAC International, 481 North Frederick Avenue, Suite 500, Gaithersburg, Maryland 20877-2417.
2.1.e. 8th Edition and supplements to the “U.S. Food and Drug Administration Bacteriological Analytical Manual” published by AOAC International, 481 North Frederick Avenue, suite 500, Gaithersburg, Maryland 20877-2417.
2.1.f. Grade “A” Pasteurized Milk Ordinance, 2001, published by the Food and Drug Administration, 200 “C” Street, SW, Washington, DC 20204.
W. Va. Code R. § 61-4C-3 Definitions and Standards of Identity
3.1. The provisions of 21 CFR Part 131 establish standards of identity for milk and cream, which include milk, acidified milk, cultured milk, cultured buttermilk, concentrated milk, condensed milk, sweetened condensed milk, sweetened condensed skimmed milk, lowfat dry milk, nonfat dry milk, nonfat dry milk fortified with vitamins A and D, evaporated milk, evaporated skimmed milk, lowfat milk, acidified lowfat milk, cultured lowfat milk, cultured lowfat buttermilk, skim milk, nonfat milk, acidified skim milk, acidified nonfat milk, cultured skim milk, cultured nonfat milk, dry whole milk, dry cream, heavy cream, heavy whipping cream, light cream, coffee cream, table cream, light whipping cream, whipping cream, sour cream, cultured sour cream, acidified sour cream, eggnog, half-and-half, sour half-and-half, cultured sour half-and-half, acidified sour half-and-half, yogurt, lowfat yogurt and nonfat yogurt.
3.2. "Milk products" includes products made from the milk products from a cow, goat or sheep.
3.3. The provisions of 21 CFR Part 133 establish standards of identity for cheese and related cheese products, which include asiago fresh, asiago soft, asiago medium, asiago old, blue, brick, caciocavallo siciliano, cheddar, colby, cook or koch kaese, cottage, dry curd cottage, lowfat cottage, cream, edam, gammelost, gorgonzola, gouda, gruyere, limburger, monterey, monterey jack, high moisture jack, mozzarella, scamorza, part-skim mozzarella, part-skim scamorza, muenster, munster, neufchatel, nuworld, parmesan, provolone, reggiano, romano, roquefort, samsoe, sap sago, swiss, emmentaler, sheep's milk blue-mold, blue-mold cheese from sheep's milk, swiss, emmentaler, cold-pack, and pasteurized blended cheese.
3.4. The provisions of 21 CFR Part 135 establish standards of identity for ice cream, frozen custard, french ice cream, french custard ice cream, goat's milk ice cream, goat's milk frozen custard, goat's milk french ice cream, mellorine, fruit sherbet and non-fruit sherbet.
3.5. Goat milk is the normal lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy goats. Goat milk sold in retail packages shall contain not less than 2.5 percent milkfat and not less than 7.5 percent milk solids not fat.
3.6. Butter is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter, and containing not less than 80 percent by weight of milkfat, all tolerances having been allowed for.
3.7. The provisions of 21 CFR Part 166 establish the standard of identity for margarine and oleomargarine.
3.8. A dairy product or imitation dairy product for which no standard of identity exists may be defined by the Commissioner according to current acceptable industry and government standards and practices.
W. Va. Code R. § 61-4C-4 Permits
4.1. Permits are not transferable with respect to persons or locations.
4.2. An applicant for a permit shall complete forms supplied by the commissioner and shall provide any information considered necessary by the commissioner.
4.3. A permittee shall post his or her permit prominently at the place of operation.
4.4. The Commissioner shall issue a dairy products distributors permit to each person distributing dairy products in this state, even if there is no permanent location maintained in this state. A person maintaining multiple permanent locations in this state or distributing into this state from several locations shall obtain a permit for each location. A person shall apply for a permit at least fifteen days before the date that the current permit expires or within fifteen days of the date that the person intends to engage in business. The application shall be accompanied by a fee of $75.00. The Commissioner shall add a penalty of $100.00 to all permits that are not applied for or renewed within this time limit. Permits expire on the thirty-first day of March following date of issue.
4.5. Persons interested in distributing a dairy product which is not covered by a standard of identity shall obtain a temporary marketing permit prior to the distribution.
4.6. Persons interested in obtaining a temporary marketing permit for a dairy product shall apply by letter to the commissioner. A label for each product shall be submitted with the letter.
4.7. The commissioner has thirty days to review the information in the letter and either issue or deny a temporary marketing permit.
4.8. The commissioner shall issue temporary marketing permits valid for a one-year period from the date of issue; however, the commissioner may request information supporting the continued approval of the dairy product in the interim.
4.9. If no standard of identity exists at the time of the permit's expiration date, a person may reapply for a temporary marketing permit for the same dairy products.
4.10. The commissioner may suspend the temporary marketing permit at any time when he or she finds that the person or the dairy product is not in compliance with W. Va. Code, §§19-11A-1 et seq. or this rule. A dairy product listed on the suspended temporary marketing permit must be removed from distribution in this State by the permittee.
4.11. Individuals, churches, fraternal organizations and other organizations distributing or manufacturing product for members of their group or their guests on an intermittent and infrequent basis are exempt from the permitting requirements of W. Va. Code, §19-11A-3.
W. Va. Code R. § 61-4C-5 Labeling
5.1. Each dairy product or imitation dairy product for which no standard of identity exists must have a label attached with the following information, except as provided in subsection 5.5 of this rule:
5.1.a. The brand name, if any, and the product name. The product name is the name that accurately identifies and describes the product. The name shall not be so similar to the name of any other food so as to be confusing to the average consumer.
5.1.b. The quantity of the product in the container shall be expressed in pounds, ounces, gallons, pints, quarts or fluid ounces. A combination of numerical count and weight may be used for multi-unit packages. In addition to these units, metric declarations may be used. All statements of quantity shall be accurate with reasonable variations due to packaging allowed.
5.1.c. The name and address of the manufacturer, packer or distributor. The address shall include the city, state and zip code. A street address is required to identify the company when there are several companies of that name in that city or if the street address is not available through a city or telephone directory. When the product is not manufactured by the company whose name appears on the label, the name shall be qualified by a phrase that reveals the company's connection with the food, such as "Manufactured for ________", or "Distributed by ________"; and
5.1.d. A lot designation or code date to provide identification of the product. In addition, if the name on the label is not the manufacturer, the lot designation or code date shall identify the manufacturer.
5.2. If ingredient statements or nutritional claims are made on the product label or in labeling, the requirements of 21 CFR Part 101, as incorporated by reference in section 2 of this rule, must be met.
5.3. No person may use a product name on a menu, sign or any other advertising unless that name clearly reflects the accurate name of the product.
5.4. Products labeled as requiring refrigeration must be maintained under refrigeration throughout distribution and while on retail display.
5.5. A manufacturer or distributor shall not distribute any package, of whatever form, without a complete label attached except for:
5.5.a. product sold at the place of manufacturing in any package that is not completely closed when offered for sale or that is closed at the time of sale. This product is exempt from the label requirements of W. Va. Code, §19-11A-4 and of this section for quantity and for the name and address of the manufacturer, packer or distributor;
5.5.b. product sold at the place of manufacturing that is placed in a package after the customer orders the product. This product is exempt from all labeling requirements of W. Va. Code, §19-11A-4 and of this section of the rule.
5.5.c. product sold in a container from which product is dipped, and commonly known as a "bulk container", and where the product is not offered for sale to the ultimate consumer in the bulk container. This product is exempt from the label requirements of W. Va. Code, §19-11A-4 and of this section for the name and address of the packer, manufacturer or distributor, provided that the product label identifies the manufacturing location by means of a plant number or other means. The product is also exempt from the label requirements of W. Va. Code, §19-11A-4 for the product name and quantity of the contents, provided that the quantity of contents of the size container(s) sold and the product name(s) are clearly indicated on the invoice; and
5.5.d. product packaged in units sold in a multi-unit container, provided that each individual unit remains within the multi-unit container during distribution and the multi-unit container is labeled according to the requirements of W. Va. Code, §19-11A-4 and of this section of the rule.
5.6. Any dairy product or imitation dairy product being shipped in interstate commerce must meet the labeling requirements of the U.S. Food and Drug Administration. If any portion of this section is found to be in conflict with the federal labeling requirements for products shipped in interstate commerce, the federal requirements take precedence.
5.7. The label shall meet the minimum labeling requirements for 21 CFR Part 101 Nutritional Labeling”.
W. Va. Code R. § 61-4C-6 Misbranded
6.1. Any product referred to in W. Va. Code, §§19-11A-1 et seq. or this rule is misbranded if:
6.1.a. its container is so made, formed or filled as to be misleading;
6.1.b. it purports to be or is represented as a food for which a definition or standard of identity has been prescribed in section 3 of this rule and its quality does not meet the requirements of the definition or standard of identity; or
6.1.c. it does not meet minimum labeling requirements of 21 CFR Part 101.
W. Va. Code R. § 61-4C-7 Adulteration
7.1. A dairy product or imitation dairy product is adulterated if:
7.1.a. any substance has been added to the product or mixed or packed with the product so as to make it appear of greater value than it is, and the substance is not clearly noted in the ingredient statement or by other means on the label;
7.1.b. the bacterial counts, except for sterile hermetically sealed products, exceed a count of fifty thousand (50,000) per gram for the standard plate count and/or ten (10) per gram for the coliform group count;
7.1.c. the bacterial counts for sterile hermetically sealed product exceed <1 per gram for standard plate count and/or <1 per gram for the coliform count;
7.1.d. any bactericidal substance has been added to the product, such as a sanitizer, preservative or any other chemical with bactericidal properties. A product is not adulterated due to the presence of any sanitizer residue where the residue is caused as a normal consequence of sanitizing the equipment while using standard industry practices;
7.1.e. pathogenic bacteria are in the product;
7.1.f. its quality does not meet the requirements of the definition or standard of identity as outlined in section 3 of this rule; or
7.1.g. its quality does not meet the requirements for currently accepted standards by industry and government. defined by the Commissioner.
7.2. Tolerances for the presence of pesticide residues, antibiotics, and unavoidable poisonous or deleterious substances are those tolerances designated in 40 CFR Part 180, as adopted by reference in section 2 of this rule.
W. Va. Code R. § 61-4C-8 Prohibited Acts
8.1. A person may not use non-pasteurized eggs or egg products in any product unless the product is pasteurized subsequent to the addition of the eggs or egg products.
8.2. A person may not produce any product in equipment that has not been cleaned and sanitized.
8.3. A person may not use any spilled, overflowed and/or leaked products in manufacturing any other product.
8.4. A person may not use steel wool or metal sponges for cleaning equipment and utensils used for manufacturing.
8.5. A person may not use any method for sanitizing that adversely affects the equipment, dairy product or the health of the consumers consuming the product. However, the commissioner will not prohibit the use of chemicals commonly used in the industry for cleaning and sanitizing dairy equipment using normal industry practices due to the causing of corrosion of the equipment as long as the corrosion caused by such use is minimal.
8.6. A person may not offer for sale, transport or distribute frozen product that has been allowed to exceed a temperature of 0ºF.
W. Va. Code R. § 61-4C-9 Animal Health
9.1. All products shall be made from milk products or milk-derived ingredients from herds which are located in a Modified Accredited Tuberculosis Area , Modified Accredited Advanced Tuberculosis Area or a Tuberculosis Free Area as determined by the U.S. Department of Agriculture, Provided, that herds located in an area that fails to maintain accredited status shall have been accredited by the U.S. Department of Agriculture as tuberculosis free, or shall have passed an annual tuberculosis test that is performed by a veterinarian accredited by the United States Department of Agriculture, Animal and Plant Health Inspection Service.
9.2. All products shall be made from milk products or milk-derived ingredients from herds which are under a brucellosis eradication program which meets one of the following conditions:
9.2.a. the herd is located in a Certified Brucellosis-free Area as defined by the U.S. Department of Agriculture and enrolled in the testing program for that area;
9.2.b. the herd meets the U.S. Department of Agriculture requirements for an individually Certified Brucellosis-Free Herd;
9.2.c. the herd is participating in a milk ring testing program at least four times per year at approximately ninety (90) day intervals, and any herd where any animal has a positive milk ring test shall have all animals that are producing milk, or that have recently produced milk, tested with the milk ring test within thirty (30) days from the date of the laboratory ring tests; or
9.2.d. the herd has had an individual blood agglutination test annually with an allowable maximum grace period not exceeding 2 months.
W. Va. Code R. § 61-4C-10 Powers and Duties of the Commissioner
10.1. The commissioner shall inspect and sample product from all dairy products and imitation dairy products distributors within the limits of his or her resources.
10.2. The commissioner recommends that each dairy products and imitation dairy products distributor supplement the sampling performed by the commissioner with tests by an independent laboratory.
10.3. All products from dairy products and imitation dairy products distributors taken by the commissioner for testing are considered official product samples; except that,
10.3.a. The commissioner may have service samples taken of dairy products or imitation dairy products, which would be considered unofficial.
10.4. Only official samples will be considered when applying the enforcement policy.
W. Va. Code R. § 61-4C-11 Approved Sampling and Testing Methods
11.1. Procedures for the collection and holding of official product samples, the selection and preparation of apparatus, media and reagents, and the analytical procedures, incubation, reading and reporting of results, shall be in compliance with the standards set forth in the Standard Methods for the Examination of Dairy Products; the Official Methods of Analysis of AOAC International; procedures referenced in 21 CFR Parts 131, 133, 135, or 166; or other methods as approved by the commissioner, whichever method is applicable to the product being tested.
11.2. The Roese-Gottlieb Fat Extraction Method of testing for milkfat is adopted as the approved method for determining the milkfat content of product and is approved for all milkfat testing.
11.2.a. Milkfat tolerances for lowfat and nonfat products are (.15%). Tolerances for the method will be added to this tolerance.
11.3. Aseptically processed products packaged in hermetically sealed containers shall be opened in accordance with procedures published in the U.S. Food and Drug Administration Bacteriological Analytical Manual, as adopted by reference in section 2 of this rule.
11.4. The testing of products for drug residues shall include any of those residues listed in 21 CFR Part 556, and shall use methods adopted by reference in section 2 of this rule.
W. Va. Code R. § 61-4C-12 Enforcement Policy
12.1. The commissioner may assess a violation of W. Va. Code, §§9-11A-1 et seq. or of this rule against the manufacturer, distributor and/or retailer of a dairy product or an imitation dairy product. Violations may be assessed cumulatively by standard of identity, standard of identity and container size, sampling location or by distributor depending upon the sampling scenario.
12.2. Whenever one of the last five consecutive official product samples 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, distributor or retailer, whichever is appropriate. This notice shall notify the manufacturer, distributor or retailer of the violation of W. Va. Code, §§19-11A-1 et seq. or of this rule and the enforcement policy established by this section of the rule.
12.2.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of a First Notice to the manufacturer, distributor or retailer, but shall not collect product samples before the lapse of 7 days from the sending of a First Notice.
12.3. Whenever two of the last five (5) consecutive official product samples 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, distributor or retailer, whichever is appropriate.
12.3.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of a Second Notice to the manufacturer, distributor or retailer, but shall not collect product samples before the lapse of seven (7) days from the sending of a Second Notice.
12.4. Whenever three of the last five (5) consecutive official product samples 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, distributor or retailer, whichever is appropriate.
12.4.a. The commissioner shall collect additional official product samples within twenty-one (21) days of the sending of the Third Notice to the manufacturer, distributor or retailer, but shall not collect additional product samples before the lapse of seven (7) days from the date of sending of the Third Notice.
12.5. 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.
12.6. 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.
12.7. 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 the public have been found to be in conformance with W. Va. Code, §§19-11A-1 et seq. or this rule.
12.8. The commissioner may suspend the standard enforcement policy in cases where such action is necessary to protect the public's health, safety or welfare.
12.9. The commissioner may consider resamples necessary to determine that the non-violative status is being maintained.
12.10. The commissioner may take other action as considered necessary in order to carry out the provisions of W. Va. Code §§19-11A-1 et seq. and these rules.
W. Va. Code R. § 61-4C-13 Suspensions, Embargo Orders
13.1. If the commissioner finds that effective corrective action has not been taken by the distributor, he or she may issue a suspension of the Dairy Products Distributor Permit required in W. Va. Code §19-11A-3. 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 distributor the opportunity to request a hearing in this matter subsequent to the notification of the suspension.
13.1.a. All suspensions due to non-conformance to subdivisions 7.1.b., 7.1.c. and 7.1.e. of this rule are summary suspensions.
13.1.b. A suspension of the Dairy Products Distributor Permit remains in effect until the distributor submits and the commissioner accepts a written plan of correction and a request for a reinstatement of the permit.
13.1.c. The commissioner has seven days from the date of receipt of this plan of correction to respond to a suspension in the case of violations of subdivisions 7.1.b., 7.1.c. and 7.1.e. of this rule and fourteen days to respond for all other violations of W. Va. Code, §§19-11A-1 et seq. or this rule. 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.
13.2. If the commissioner finds that after the distributor has resumed distribution following a suspension of their Dairy Products Distributor Permit that effective corrective action has not been taken, then the commissioner will hold a hearing to determine if the permit should be revoked.
13.3. If the commissioner finds that effective corrective action has not been taken by the manufacturer, distributor and/or retailer, he or she may issue an embargo order for any dairy product or imitation dairy product which is not in compliance with W. Va. Code, §§19-11A-1 et seq. or this rule and may also cause the manufacturing and distributing of any dairy or imitation dairy product to cease by authority of W. Va. Code, §§19-11A-10(i).
61CSR4C
61CSR4C
Series 04D Labeling Of Dairy Products For rBST Or rBGH
W. Va. Code R. § 61-4D-1 General
1.1. Scope. -- This rule establishes mandatory label and labeling guidelines for persons wishing to differentiate their dairy products or frozen dessert products as having come from cows not treated with rBST. This rule is voluntary only from the respect that persons are not required to differentiate their products as coming from cows not treated with rBST.
1.2. Authority. -- W. Va. Code ''19-11A-10(a) and 19-11B-10(a).
1.3. Filing Date. -- March 31, 1995.
1.4. Effective Date. -- June 15, 1995.
1.5. This is a new legislative rule.
W. Va. Code R. § 61-4D-2 Definitions
2.1. All definitions are identical to those found in W. Va. Code ''19-11A-2 and 19-11B-2.
2.2. "Bovine somatotropin" if the term is not otherwise modified, means a growth hormone that is produced naturally in the pituitary glands of cows.
2.3. "rBST" or recombinant bovine somatotropin means a fabricated form of bovine somatotropin and for simplicity includes the synonymous term rBGH or recombinant bovine growth hormone.
W. Va. Code R. § 61-4D-3 General Program and Policy
3.1. Differentiating Dairy Products or Frozen Desserts through a label or labeling material as coming from cows treated or not treated with rBST is not mandatory. Labeling finished products as coming from cows treated with rBST is not required due to the FDA's findings that milk from rBST treated cows is safe for human consumption. However, persons wishing to label their products as coming from cows not treated with rBST must follow the guidelines outlined in this rule.
W. Va. Code R. § 61-4D-4 Labeling Statement Guidelines
4.1. Persons wishing to differentiate their frozen desserts or dairy products through a product's label or labeling by indicating that they are made with or consist of milk coming from cows not treated with rBST must use both of the following statements or something similar as long as it is not false or misleading in any particular:
4.1.a. "From cows not treated with rBST"; and,
4.1.b. "No significant difference has been shown between milk derived from rBST-treated and non-rBST-treated cows."
4.2. All labeling information as outlined in subsection 4.1 of this section must receive written approval from the Commissioner of Agriculture or his or her designee prior to it's use.
W. Va. Code R. § 61-4D-5 Prohibited Acts
5.1. The following list of labeling statements are prohibited due to the fact that they are either false or they may imply a compositional difference and are therefore misleading:
5.1.a. "BST Free";
5.1.b. "rBST Free"; or,
5.1.c. "From cows not treated with rBST" when this statement is used alone and not in conjunction with the statement in W. Va. Code '61-4D-4.1.b.
5.2. The list of examples in subsection 5.1 of this section is not meant to be an exhaustive list of prohibited statements. Other statements not passing the false and misleading criteria shall be declared as prohibited by the Commissioner and will not receive approval as required in section 4.2 of this rule.
W. Va. Code R. § 61-4D-6 Substantiation of Labeling Claims
6.1. Since there are currently no means of differentiating analytically between naturally occurring BST and recombinant BST and since there are no measurable compositional differences, the following requirements are hereby imposed on any person wishing to label frozen desserts or dairy products according to section 4 of this rule. Each person shall:
6.1.a. Maintain verifiable written documentation of herds participating in the non-rBST-supplementation program to verify this fact. The documentation must include signed certification from the manager of each herd to verify the absence of supplemental rBST use.
6.1.a.1. The documentation must include a tracking system for all herds that produced the milk as well as the milk derived ingredients which are used to make the product for which the claim is made; and
6.1.b. Maintain certifications that all milk from non-rBST herds has been physically segregated from other milk during the time of herd milking, transportation, processing and final packaging with the appropriate labeling. In facilities handling milk from both rBST treated and non-rBST treated cows, records must indicate a complete wash up cycle was accomplished between the use of equipment to process milk from rBST treated cows and the subsequent use of the same equipment to process milk from non-rBST treated cows. Written documentation to verify this fact must be maintained by the person wishing to label their product as coming from cows not treated with rBST.
6.2. All records required under this section must be made available to the Commissioner of Agriculture or his or her designated representative within 24 hours of a request.
W. Va. Code R. § 61-4D-7 Enforcement Policy
7.1. The Commissioner may assess a violation of W. Va. Code ''19-11A-1 et seq., 19-11B-1 et seq. or of this rule against any person believed to be responsible for the violation.
7.2. The West Virginia Bureau of Public Health will assist the Commissioner of Agriculture in enforcing this rule as it applies to milk production and processing areas for which the Bureau of Public Health is responsible under West Virginia Code.
7.3. The Commissioner may take any enforcement action outlined in W. Va. Code ''19-11A-13 or 19-11B-13.
7.4. Any product not labeled in compliance with this rule is considered misbranded and consequently prohibited from sale and subject to enforcement action.
7.4.a. However, the Commissioner may provide a 30 day exemption in order to allow a person to correct the violation.
7.4.b. At the end of those 30 days the Commissioner shall embargo any product found in violation of this rule and proceed with further enforcement action as he or she considers necessary.
61CSR4D
Series 05 Commercial Feed
W. Va. Code R. § 61-5-1 General
1.1. Scope. -- This rule establishes guidelines for permits and registrations, label format and good manufacturing practices for commercial feeds.
1.2. Authority. -- W. Va. Code §19-14-3.
1.3. Filing Date. -- April 25, 2022
1.4. Effective Date. -- April 25, 2022
1.5. Sunset Date. --This rule shall terminate and have no further force or effect on August 1, 2032.
W. Va. Code R. § 61-5-2 Incorporation by Reference
2.1. The following documents are adopted in their entirety:
2.1.a. Except where otherwise provided, the terms and definitions adopted by the Association of American Feed Control Officials in the 2021 edition of the annual Official Publication of the Association of American Feed Control Officials, Incorporated;
2.1.b. Official Pet Food Regulations as published in the 2021 edition of the Official Publication of the Association of American Feed Control Officials, Incorporated;
2.1.c. Title 21 Code of Federal Regulations Section 589.2000, Animal proteins prohibited in ruminant feed; Title 21 Code of Federal Regulations Section 589.2001 Cattle materials prohibited in animal food or feed to prevent the transmission of bovine spongiform encephalopathy.
2.1.d. Federal Food, Drug, and Cosmetic Act (August 1985), Sections 360(b), 406, 408(a), 409, 501(a)(2)(B) and 501(a)(6), 504, 512(a)(2), 701, 704, 706, also known as 21 United States Code;
2.1.e. Title 21 Code of Federal Regulations, Parts 1.20-1.23, Subpart L (1.500-1.514, Subpart M (1.600-1.695), and Subpart O (1.900-1.934), 7.1-7.13, 7.40-7.59, 70.20-70.25, 73.1-73.615, 74.101-74.706, 81, 82.3-82.706, 225, 226, 500.23, 500.24, 500.29, 500.45, 500.50, 500.80-500.92, , 501, 507, 509, 510, 558, 570, 573, 579, 582, 584, and 589 et seq. (April 1, 1990) adopted pursuant to the Federal Food, Drug, and Cosmetic Act (August 1985);
2.1.f. Title 40 Code of Federal Regulations Parts 185 and 186 et seq. (July 1, 1990) adopted pursuant to the Federal Food, Drug, and Cosmetic Act (August 1985); and
2.1.g. Federal Virus, Serum and Toxins Act of 1913 as amended December 23, 1985, also known as 21 United States Code 151- 159.
W. Va. Code R. § 61-5-3 Definitions and Terms
3.1. “Electronic Announcements” means computer internet, telephone, facsimile, television and or radio advertisement sales.
3.2. “Unofficial Sample” means a sample that has not been collected by the commissioner via the agency's policy and procedures. These samples typically serve as informational only and can help to determine or eliminate a suspected cause of adulteration, injury, or death.
W. Va. Code R. § 61-5-4 Policy
4.1. All persons distributing or using commercial feed, including retailers, wholesalers, jobbers and brokers are equally responsible for full compliance with the provisions of W. Va. Code §19- 14-1 et seq. Any person who has in his or her possession any unlawful commercial feed is responsible for complying with the law, including registering the commercial feed, paying the tonnage fee, labeling the commercial feed and complying with any other legal requirement, if not met by another person.
4.2. The following persons shall also comply with all provisions of W. Va. Code §19-14-1 et seq. and this rule:
4.2.a. Each person who sells or intends to sell commercial feed directly to a purchaser located within this state via mail-order catalog or electronic announcements used in promoting the sale of feed;
4.2.b. Each person who travels out of this state to purchase commercial feed for distribution or resale within this state; and
4.2.c. Each person who contacts a final purchaser located within this state, either verbally or in writing, to sell commercial feed.
4.3. All human food, stale human food or garbage used as feed is subject to the registration, labeling and inspection fee provisions of W. Va. Code §19-14-5, 8 and 9 and are subject to the inspection, sampling and analysis provisions of W. Va. Code §19-14-3.
4.4. The commissioner shall not assess a tonnage fee on any commercial feed or feed ingredients used in the manufacture of poultry contract feed.
W. Va. Code R. § 61-5-5 Permits; Registration
5.1. Commercial Feed Manufacturing Permit.
5.1.a. Each manufacturer of commercial feed, including customer-formula feed, within the state, subject to the provisions of W. Va. Code §19-14-5(c), shall complete a “Commercial Feed Manufacturing Permit” application with the following information: the corporate or company name; its location; the mailing address; the phone number; the manager’s name; the owner’s name; and any other information relevant to the manufacture of any commercial feed requested by the commissioner in order to carry out the provisions of W. Va. Code §19-14-1 et seq. or this rule. The manufacturer or his or her authorized representative shall sign and date the “Commercial Feed Manufacturing Permit” application under sworn statement. The application shall be accompanied by the fee set forth in Appendix Number 1 – Fees of This Rule.
5.1.b. The fee paid by a manufacturer/guarantor is nonrefundable except if the commissioner refuses the application for a Commercial Feed Manufacturing Permit.
5.2. Commercial Feed Distributor Permit.
5.2.a. Each distributor subject to the provisions of W. Va. Code §19-14-5(d) shall complete a “Commercial Feed Distributor Permit” application with the following information: the corporate or company name; its locations; the mailing address; the phone number; the contact person; the owner’s name and any other information relevant to the distribution of any commercial feed requested by the commissioner in order to carry out the provisions of W. Va. Code §19-14-1 et seq. or this rule. The distributor or his or her authorized representative shall sign and date the “Commercial Feed Distributor Permit” application under sworn statement. The application shall be accompanied by the fee set forth in Appendix Number 1 – Fees of this rule.
5.2.b. The fee paid by a distributor is nonrefundable except when the commissioner refuses the application for a “Commercial Feed Distributor Permit”.
5.3. Commercial Feed Guarantor Permit.
5.3.a. Each person whose name appears on the label of commercial feed or customer-formula feed as the guarantor subject to the provisions of W. Va. Code §19-14-5(e), shall complete a “Commercial Feed Guarantor Permit” application for each manufacturing facility or location distributing feed in or into the state, except those persons that have obtained a “Commercial Feed Manufacturing Permit.” The application shall include: the corporate or company name; its location; the mailing address; the phone number; the contact person; the owner’s name; and any other information relevant to the manufacture of any commercial feed requested by the commissioner in order to carry out the provisions of W. Va. Code §19-14-1 et seq. or this rule. The guarantor or his or her authorized representative shall sign and date the “Commercial Feed Guarantor Permit” application under sworn statement. The application shall be accompanied by the fee set forth in Appendix Number 1 – Fees of This Rule.
5.3.b. The fee paid by a guarantor or his or her authorized representative is nonrefundable except when the commissioner refuses the application for a “Commercial Feed Guarantor Permit”.
5.4. Pet Food and/or Specialty Pet Food Product Registration.
5.4.a. Each person registering a pet food and/or specialty pet food product shall complete a Pet Food and/or Specialty Pet Food Product Registration application with the following information: the corporate or company name; its location; the mailing address; the phone number; the contact person; the owner’s name; and the brand and product name of each feed to be registered. The commissioner may request additional information in order to carry out the provisions of W. Va. Code §19-14-1 et seq. or this rule. The application shall be accompanied by the fee set forth in Appendix Number 2 1– Fees of This Rule. Pet food and/or specialty pet food products shall be registered annually.
5.4.a.1. A label for each product shall accompany the Pet Food and/or Specialty Pet Food Product Registration application.
5.4.a.2. The guarantor or his or her authorized representative shall sign and date the Pet Food and/or Specialty Pet Food Product Registration application under sworn statement.
5.4.b. The commissioner shall not consider commercial feeds generally manufactured for and categorized for non-pet use (i.e., horses, pigs, sheep, goats, trout, duck and others) or for wild animal use (i.e., wild bird food) as pet food. The commissioner shall determine the category of other products as pet food or non-pet food on a case-by-case basis.
5.4.c. An individual pet food and/or specialty pet food product registration is required for each pet food biscuit or rawhide chew manufactured in different sizes, such as small, medium, large, or a pet food and/or specialty pet food product manufactured in different forms, such as pellets, crumbles or mash. The guarantor shall provide labels for each product when applying for registration.
5.4.d. The fee paid by a guarantor is nonrefundable except when the commissioner refuses the application for a pet food and/or specialty pet food product registration in whole or in part.
5.4.e. The guarantor shall notify the commissioner when a product is discontinued or removed from distribution in this state. The guarantor shall maintain registration for a product no longer distributed in this state for one additional registration period to allow for the sale or removal of the product on the shelves or the guarantor shall immediately withdraw the product from distribution. After that period, the commissioner may hold the guarantor, the distributor or the person offering the product for sale responsible for complying with W. Va. Code §19-14-5(e) and this rule.
5.4.f. Prior to approval of a registration application or approval of a label for a pet food and/or specialty pet food product which contains additives (including drugs, other special purpose additives, or non-nutritive additives), the commissioner may require the guarantor to submit evidence to prove the safety and efficacy of the commercial feed when used according to the directions furnished on the label.
5.4.g. If a pet food or specialty pet food product requires minor label revisions to conform to labeling requirements, the commissioner shall register the product conditionally for the current registration period. However, if a label requires major revisions, the commissioner shall withhold the product from registration pending revision of the labeling. The commissioner shall offer an applicant adversely affected by the Commissioner’s decision an opportunity for a hearing in this matter pursuant to W. Va. Code §19-14-7.
5.4.g.1. Minor revisions are those items that are necessary to conform to W. Va. Code §19-14-8, but, without correction, are not likely to cause the purchaser of the product to be misinformed, such as the guaranteed analysis being listed out of order.
5.4.g.2. Major revisions may include, but are not limited to, misleading and/or contradictory claims on the label, a misleading product name or other revisions that may mislead or misinform a purchaser.
5.4.h. When pet food or specialty pet food labels are changed by the manufacturer of its own accord, the guarantor shall submit a new application for a revision to the registration. The commissioner shall waive the application fee for any label revision that involves a change in the net weight or a change in the list of ingredients.
5.4.i. The commissioner shall not require registration of any pet chew, bone, toy or exerciser (of any shape or size) made of rawhide, wood or man-made material, whether flavor-coated or unflavored, unless the guarantor makes a claim on the product label or labeling that the product is intended for use as an animal food, or that the product provides anything of nutritional value to the animal.
5.5. The penalty set forth in Appendix Number 2 1 – Fees Of This Rule shall be added to the fee for all permits or registrations that are not applied for or renewed within the time limit.
W. Va. Code R. § 61-5-6 Tonnage Reports and Inspection Fees
6.1. Each person required in W. Va. Code §19-14-9(a) to file semi-annual tonnage reports, shall file the reports accompanied by an inspection fee at the rate of thirty-five cents per ton on commercial feed and feed ingredients with a minimum inspection fee of twenty-five dollars for each semi-annual statement, whichever is greater.
6.2. Inspection fees due but not remitted to the commissioner within fifteen calendar days following the due date of each semi-annual tonnage report shall be assessed a penalty of ten percent of the inspection fee due, in addition to the inspection fee due.
W. Va. Code R. § 61-5-7 Labeling
7.1. The following information must appear in its entirety on one side of commercial feed labels, except customer-formula feeds, or on one side of the container of any commercial feed. Examples of labeling for a few animal classes are set forth in Appendices 3, 5, 7, 9, 11, and 14 of this rule.
7.1.a. The quantity statement;
7.1.b. The product name, including brand name, if any, under which the commercial feed is distributed;
7.1.b.1. The guarantor shall use a brand or product name that is appropriate for the intended use of the feed and that is not misleading. If the name indicates the feed is made for a specific use, the character of the feed shall conform with the specific use. A commercial feed for a particular animal class shall be suitable for that purpose. A commercial feed labeled “Dairy Feed,” for example, shall be suitable for that purpose.
7.1.b.2. The guarantor shall not use a commercial, registered brand or trade name in any guarantee or ingredient listings but may use a commercial, registered brand or trade name in the product name of feeds produced by or for the firm holding the rights to the name.
7.1.b.3. The guarantor shall not derive the name of a commercial feed from one or more ingredients of a mixture to the exclusion of other ingredients. The name of a commercial feed shall not be one representing any components of a mixture unless all components are included in the name: Provided, That if any ingredient or combination of ingredients is intended to impart a distinctive characteristic to the product which is of significance to the purchaser, the name of that ingredient or combination of ingredients may be used as a part of the brand name or product name if the ingredients or combination of ingredients is quantitatively guaranteed in the guaranteed analysis, and the brand or product name is not otherwise false or misleading.
7.1.b.4. The guarantor shall not use the word “protein” in the product name of a feed that contains added non-protein nitrogen.
7.1.b.5. When the name carries a percentage value, it shall be understood to signify protein and/or equivalent protein content only, even though it may not explicitly modify the percentage with the word “protein”: Provided, That the guarantor may use other percentage values if they are followed by the proper description and conform to good labeling practice. In no case shall the guarantor use numbers in the name of the product in a manner that is misleading or confusing to the customer.
7.1.b.6. The guarantor shall use a name for a single ingredient feed that is in accordance with the name of the product designated in the Official Names and Definition of Feed Ingredients, as incorporated by reference in section 2 of this rule, unless the commissioner allows otherwise.
7.1.b.7. The guarantor may use the word “vitamin,” or a contraction thereof, or any word suggesting a vitamin only in the name of a commercial feed which is represented to be a vitamin supplement, and which is labeled with the minimum content of each vitamin declared, as specified in subsection 8.3 of this rule.
7.1.b.8. The guarantor may not use the term “mineralized” in the name of a feed except for its use in the phrase “TRACE MINERALIZED SALT.” When this phrase is used, the product must contain significant amounts of trace minerals which are recognized as essential for animal nutrition.
7.1.b.9. The guarantor shall qualify the terms “meat” and “meat by-products” to designate the animal from which the meat and meat by-products are derived unless the meat and meat by-products are made from cattle, swine, sheep or goats;
7.1.b.10. If the commercial feed consists of raw milk, the words, “Raw (blank) Milk” shall appear conspicuously on the principal display panel. (The blank space is to be completed by using the species of animal from which the raw milk is collected.)
7.1.c. The guaranteed analysis stating what the commissioner determines by rules is required to advise the user of the composition of the feed and any other necessary information to support claims made on the label. The substances or elements guaranteed shall be determinable by laboratory methods published by the association of official analytical chemists or by an acceptable method supplied by the guarantor.
7.1.c.1. When a guarantee is stated, the nutritional guarantee shall be in the following sequence – Crude Protein, Equivalent Crude Protein from Non-Protein Nitrogen, Amino Acids, Crude Fat, Crude Fiber, Acid Detergent Fiber, Neutral Detergent Fiber, Calcium, Phosphorus, Salt and Sodium. Other required and voluntary guarantees should follow in a general format so that the units of measure used to express guarantees (percentage, parts per million, International Units, etc.) are listed in a sequence that provides a consistent grouping of the units of measure. The required and voluntary guarantees for various animal classes or species are set forth in Appendices 2, 4, 6, 8, 10, 12, 13, 15, 16, 17, and 18 of this rule, in consideration of the following exemptions:
7.1.c.1.A. A mineral guarantee for feed, excluding those feeds manufactured as complete feeds and for feed supplements intended to be mixed with grain to produce a complete feed for swine, poultry, fish, and veal and herd milk replacers, is not required when:
7.1.c.1.A.1. The feed or feed ingredient is not intended or represented or does not serve as a principal source of that mineral to the animal; or
7.1.c.1.A.2. The feed or feed ingredient is intended for non-food producing animals and contains less than 6.5% total mineral.
7.1.c.1.B. Guarantees for vitamins are not required when the commercial feed is neither formulated for nor represented in any manner as a vitamin supplement.
7.1.c.1.C. Guarantees for crude protein, crude fat, and crude fiber are not required when the commercial feed is intended for purposes other than to furnish these substances or they are of minor significance relating to the primary purpose of the product, such as drug premixes, mineral or vitamin supplements, and molasses.
7.1.c.1.D. Guarantees for microorganisms are not required when the commercial feed is intended for a purpose other than to furnish these substances or they are of minor significance relating to the primary purpose of the product, and no specific label claims are made.
7.1.c.1.E. The indication for animal class(es) and species is not required on single ingredient products if the ingredient is not intended, represented, or defined for a specific animal class(es) or species;
7.1.d. An ingredient statement, except that an ingredient statement is not required for single standardized ingredient feeds or when the statement is not in the interest of consumers. An ingredient statement shall include:
7.1.d.1. The common or usual name of each ingredient as officially defined in the current Official Publication of the Association of American Feed Control Officials;
7.1.d.2. Collective terms as defined in the annual Official Publication of the Association of American Feed Control Officials;
7.1.d.3. The common or usual name of substances generally recognized as safe (GRAS) as authorized by 21 Code of Federal Regulations 570.30 revised April 1,2019 of the Federal Drug and Cosmetic Act as amended August, 1985;
7.1.d.4. The common or usual name of substances which are so common that they do not need a definition, have a substantially safe history, and no safety hazard is known to exist after consumption by a significant number of animals, including, but not limited to, salt and sugar; and
7.1.d.5. Other ingredients or additives that the commissioner, by rules, determines necessary.
7.1.d.5.A. Feed ingredients, collective terms for the grouping of feed ingredients, or appropriate statements as provided under the provisions of W. Va. Code §19-14-8(b)(4) shall include:
7.1.d.5.A.1. The name of each ingredient as defined in the Official Publication of the Association of American Feed Control Officials, by its common or usual name, or one approved by the Commissioner; and
7.1.d.5.A.2. Collective terms for the grouping of feed ingredients as defined in the Official Definitions of Feed Ingredients published in the Official publication of the Association of American Feed Control Officials in lieu of the individual ingredients; Provided that:
7.1.d.5.A.2.a. When a collective term for a group of ingredients is used on the label, individual ingredients within that group shall not be listed on the label; and
7.1.d.5.A.2.b. The manufacturer shall provide the feed control official, upon request, with a list of individual ingredients, within a defined group, that are or have been used at manufacturing facilities distributing in or into the state;
7.1.e. The name and principal mailing address of the manufacturer or the distributor;
7.1.f. Adequate directions and precautionary statements for safe and effective use; and
7.1.g. If a drug or drug containing product is used, the label shall contain the following:
7.1.g.1. The established name of each active drug ingredient;
7.1.g.2. The level of each drug used in the final mixture;
7.1.g.3. The purpose of the medication (claim statement);
7.1.g.4. Appropriate cautions and warnings on the use of the commercial feed;
7.1.g.5. Withdrawal statements, if applicable; and
7.1.g.6. The word "medicated" directly following and below the product name in type size no smaller than one-half the type size of the product name.
7.2. Pet food labels, excluding specialty pet foods, shall conform to the Official Pet Food Regulations, incorporated by reference in section 2 of this rule.
7.3. Specialty pet food labels shall conform to the requirements of W. Va. Code §19-14-8.
7.4. The guarantor shall provide information to substantiate claims of improvement or newness (i.e., new, improved, introducing, better tasting, more taste than before) when required by the commissioner. The guarantor shall limit the use of these claims to six months’ production of the feed and shall submit a revised label within six months of original registration. The commissioner shall not require an additional application fee for the submission of a revised label under these circumstances during the current registration period.
7.5. If a manufacturer or distributor sells customer-formula feed in bags, rather than unpackaged feed (bulk), then he or she is not required to label each bag, Provided that an invoice, which supplies all the information required by W. Va. Code §19-14-8(d), accompanies the customer-formula feed at all times that the feed is distributed.
7.6. Poultry contract feed labels shall conform to the requirements of W. Va. Code §19-14-8d, except that:
7.6.a. the name of the grower or feeder shall substitute for the requirements for the name of the purchaser; and,
7.6.b. the quantity statement of the commercial feed and each feed ingredient used in the feed are not required to be listed.
7.7. A Purpose Statement shall be included as part of the label;
7.7.a. The statement of purpose shall contain the specific species and animal classes for which the feed is intended as defined in paragraph 7.1.c.1 of this rule.
7.7.b. The manufacturer has flexibility in describing in more specific and common language the defined animal class, species and purpose while being consistent with the category of animal class defined in paragraph 7.1.c.1 of this rule which may include, but is not limited to weight ranges, sex, or ages of the animals for which the feed is manufactured.
7.7.c. The purpose statement may be excluded from the label if the product name includes a description of the species and animal classes for which the product is intended.
7.7.d. The purpose statement of a premix for the manufacture of feed may exclude the animal class and species and state “For Further Manufacture of Feed” if the nutrients contained in the premix are guaranteed and sufficient for formulation into various animal species feeds and premix specifications are provided by the end user of the premix. This applies to commercial feeds regulated under Appendix 18.b.10 of this rule.
7.7.e. The purpose statement of a single purpose ingredient blend, such as a blend of animal protein products, milk products, fat products, roughage products or molasses products may exclude the animal class and species and state “For Further Manufacture of Feed” if the label guarantees of the nutrients contained in the single purpose nutrient blend are sufficient to provide for formulation into various animal species feeds. This applies to commercial feeds regulated under Appendix 18.b.10 of this rule.
7.7.f. The purpose statement of a product shall include a statement of enzyme functionality if enzymatic activity is represented in any manner.
7.7.g. The statement of purpose for single ingredient feeds shall be stated as “Single Ingredient Feed” or “Feed Ingredient.” The manufacturer of a single ingredient feed or feed ingredient shall have flexibility in describing in more specific and common language the intended use of the feed ingredient dependent on species and class.
7.8. The guarantor shall not subordinate or obscure the information required by this section by other statements or designs.
W. Va. Code R. § 61-5-8 Expression of Guarantees
8.1. The guarantees for crude protein, equivalent crude protein from non-protein nitrogen, lysine, methionine, other amino acids, crude fat, crude fiber and other fiber indicators shall be in terms of percentage.
8.2. Mineral Guarantees shall be included as part of the label;
8.2.a. When calcium, salt, and sodium guarantees are given in the guaranteed analysis they shall be stated and conform to the following:
8.2.a.1. When the minimum is below 2.5%, the maximum shall not exceed the minimum by more than 0.5 percentage point;
8.2.a.2. When the minimum is 2.5 % but less than 5.0%, the maximum shall not exceed the minimum by more than one percentage point; and
8.2.a.3. When the minimum is above 5.0% or greater the maximum shall not exceed the minimum by more than 20% of the minimum and in no case shall the maximum exceed the minimum by more than five percentage points.
8.2.b. When stated, guarantees for minimum and maximum total sodium and salt, minimum potassium, magnesium, sulfur, phosphorus and maximum fluorine shall be in terms of percentage. Other minimum mineral guarantees shall be stated in parts per million (ppm) when the concentration is less than 10,000 ppm and in percentage when the concentration is 10,000 ppm (1%) or greater.
8.2.c. Products labeled with a quantity statement (e.g., tablets, capsules, granules, or liquid) may state mineral guarantees in milligrams (mg) per unit (e.g. tablets, capsules granules, or liquids) consistent with the quantity statement and directions for use.
8.3. Guarantees for minimum vitamin content of commercial feeds shall be listed in the order specified and shall be stated in mg/lb or in units consistent with those employed for the quantity statement unless otherwise specified:
8.3.a. Vitamin A, other than precursors of vitamin A, in International Units per pound;
8.3.b. Vitamins D-3 in products offered for poultry feeding, in International Chick units per pound;
8.3.c. Vitamin D for other uses, in International Units per pound;
8.3.d. Vitamin E, in International Units per pound;
8.3.e. Concentrated oils and feed additive premixes containing vitamins A, D and/or E may, at the option of the distributor be stated in units per gram instead of units per pound; and
8.3.f. Vitamin B-12, in milligrams or micrograms per pound.
8.3.g. All other vitamin guarantees shall express the vitamin activity in milligrams per pound in terms of the following: menadione; riboflavin; d-pantothenic acid; thiamine; niacin; vitamin B-6; folic acid; choline; biotin; inositol; p-amino benzoic acid; ascorbic acid; and carotene.
8.3.h. Products labeled with a quantity statement (e.g., tablets, capsules, granules, or liquid) may state vitamin guarantees in milligrams per unit (e.g., tablets, capsules, granules, or liquids) consistent with the quantity statement and directions for use.
8.4. Guarantees for drugs shall be stated in terms of percent by weight, except:
8.4.a. Antibiotics, present at less than 2,000 grams per ton (total) of commercial feed shall be stated in grams per ton of commercial feed;
8.4.b. Antibiotics present at 2,000 or more grams per ton (total) of commercial feed, shall be stated in grams per pound of commercial feed;
8.4.c. Labels for commercial feeds containing growth promotion and /or feed efficiency levels of antibiotics, which are to be fed continuously as the sole ration, are not required to make quantitative guarantees except as specially noted in the Federal Food Additive regulations for certain antibiotics, for which quantitative guarantees are required regardless of the level or purpose of the antibiotic; and
8.4.d. The term “milligrams per pound” may be used for drugs or antibiotics in those cases where a dosage is given in “milligrams” in the feeding directions.
8.5. Commercial feeds containing any added non-protein nitrogen shall be labeled as follows:
8.5.a. For ruminants:
8.5.a.1. Complete feeds, supplements, and concentrates containing added non-protein nitrogen and containing more than 5 % protein from natural sources shall be guaranteed as follows:
Crude Protein, minimum, _______% (This includes not more than _____% equivalent crude protein from non-protein nitrogen).
8.5.a.2. Mixed feed concentrates and supplements containing less than 5 % protein from natural sources may be guaranteed as follows:
Equivalent Crude Protein from Non-Protein Nitrogen, minimum, _________%
8.5.a.3. Ingredient sources of non-protein such as Urea, Diammonium Phosphate, Ammonium Polyphosphate Solution, Ammoniated Rice Hulls, or other basic non-protein nitrogen ingredients defined by the Association of American Feed Control Officials shall be guaranteed as follows:
Nitrogen, minimum, ________% Equivalent Crude Protein from Non-Protein Nitrogen, minimum, ________%
8.5.b. For non-ruminants:
8.5.b.1. Complete feeds, supplements and concentrates containing crude protein from all forms of non-protein nitrogen, added as such, shall be labeled as follows:
Crude protein, minimum _________% (This includes not more than ______% equivalent crude protein which is not nutritionally available to (species of animal for which feed is intended).
8.5.b.2. Premixes, concentrates or supplements intended for non-ruminants containing more than 1.25% equivalent crude protein from all forms of non-protein nitrogen, added as such, shall contain adequate directions for use and a prominent statement:
WARNING: This feed must be used only in accordance with directions furnished on the label.
8.6. Mineral phosphatic materials for feeding purposes shall be labeled with the guarantee for minimum and maximum percentage of calcium (when present) the minimum percentage of phosphorus, and the maximum percentage of fluorine.
8.7. Guarantees for microorganisms shall be stated in colony forming units per gram (CFU/g) when directions are for using the product in grams, or in colony forming units per pound (CFU/lb) when directions are for using the product in pounds, or CFU per product unit (e.g., tablets, capsules, liquids) consistent with directions for use and the quantity statement. A parenthetical statement following the guarantee shall list each species in order of predominance.
8.8. Guarantee for enzymes shall be stated in units of enzymatic activity per unit weight or volume, consistent with label directions, or Units of enzymatic activity per product unit (e.g., tablets, capsules) consistent with the directions for use and the quantity statement . The source organism for each type of enzymatic activity shall be specified, such as: Protease (Bacillus subtilis) 5.5 mg amino acids liberated/min./milligram. If two or more sources have the same type of activity, they shall be listed in order of predominance based on the amount of enzymatic activity provided.
8.9. Guarantees for dietary starch, sugars, and fructans for Commercial Feeds, other than customer-formula feed, Pet Food, and Specialty Pet Food Products:
8.9.a. A commercial feed which bears on its labeling a claim in any manner for levels of “dietary starch”, “sugars”, “fructans”, or words of similar designation, shall include on the label:
8.9.a.1. Guarantees for maximum percentage of dietary starch and maximum percentage sugars, in the Guaranteed Analysis section immediately following the last fiber guarantee.
8.9.a.2. A maximum percentage guarantee for fructans immediately following sugars, if the feed contains forage products.
8.9.b. When guarantees for dietary starch, sugars, or fructans for commercial feeds appear on the label, feeding directions shall indicate the proper use of the feed product and a recommendation to consult with a veterinarian or nutritionist for a recommended diet.
W. Va. Code R. § 61-5-9 Substantiation of Nutritional Suitability
9.1. A commercial feed, other than a customer-formula feed, shall be nutritionally suitable for its intended purpose as represented by its labeling.
9.2. If the commissioner has reasonable cause to believe a commercial feed is not nutritionally suitable, the commissioner may request the feed manufacturer to either submit an “Affidavit of Suitability” or an alternative procedure acceptable to the commissioner, certifying the nutritional adequacy of the feed. The Affidavit of Suitability or alternative procedure of suitability shall serve as substantiation of the suitability of the feed.
9.3. If an Affidavit of Suitability, or alternative procedure acceptable to the commissioner is not submitted by the feed manufacturer within 30 days of written notification, the commissioner may consider the feed adulterated under W. Va. Code §19-14-10 and order the feed removed from the marketplace.
9.4. The Affidavit of Suitability shall contain the following information:
9.4.a. The feed company’s name;
9.4.b. The feed’s product name;
9.4.c. The name and title of the affiant submitting the document;
9.4.d. A statement that the affiant has knowledge of the nutritional content of the feed and based on valid scientific evidence the feed is nutritionally adequate for its intended purpose;
9.4.e. The date of submission; and
9.4.f. The signature of the affiant notarized by a certified Notary Public.
9.5. An acceptable example of the Affidavit of Suitability is set forth in Appendix Number 19 of this rule.
W. Va. Code R. § 61-5-10 Ingredients
10.1. The name of each ingredient or collective term for the grouping of ingredients, when required to be listed, shall be the name as defined in the Official Definitions of Feed Ingredients as published in the Official Publication of the Association of American Feed Control Officials, the common or usual name, or one approved by the commissioner.
10.2. The name of each ingredient shall be shown in letters or type of the same size.
10.3. No reference to quality or grade of an ingredient shall appear in the ingredient statement of a feed.
10.4. The term “dehydrated” may precede the name of any product that has been artificially dried.
10.5. A single ingredient product defined by the Association of American Feed Control Officials is not required to have an ingredient statement.
10.6. Tentative definitions for ingredients shall not be used until adopted as official in the Official Publication of the Association of American Feed Control Officials, Incorporated, unless no official definition exists or the ingredient has a common accepted name that requires no definition, (i.e.sugar).
10.7. When the word “iodized” is used in connection with a feed ingredient, the feed ingredient shall contain not less than 0.007% iodine, uniformly distributed.
10.8. Each carrier shall be listed in the ingredient statement on the label unless it meets the criteria for an incidental ingredient, as that term is defined in 21 CFR 501.100(a)(3).
W. Va. Code R. § 61-5-11 Directions for Use and Precautionary Statements
11.1. Directions for use and precautionary statements on the labeling of all commercial feeds and customer-formula feeds containing additives (including drugs, special purpose additives, or non-nutritive additives) shall:
11.1.a. Be adequate to enable safe and effective use for the intended purposes by users with no special knowledge of the purpose and use of such articles; and,
11.1.b. Include, but not be limited to, all information described by all applicable regulations under the Federal Food, Drug and Cosmetic Act.
11.2. Adequate directions for use and precautionary statements are required for feeds containing non-protein as specified in section 12 of this rule.
11.3. Adequate directions for safe and precautionary statements necessary for safe and effective use are required on commercial feeds distributed to supply particular dietary needs or for supplementing or fortifying the usual diet or ration with any vitamin, mineral, or other dietary nutrient or compound.
11.4 Raw milk distributed as a commercial feed shall bear the following statement: “WARNING; NOT FOR HUMAN CONSUMPTION- THIS PRODUCT HAS NOT BEEN PASTEURIZED AND MAY CONTAIN HARMFUL BACTERIA.” This statement shall be displayed in a conspicuous manner and shall not be smaller than the height of the minimum font required by the Federal Fair Packaging and Labeling Act for the quantity statement as shown in the following table: _____________________________________________________________________________________ Panel Size Minimum Warning Statement Type Size _____________________________________________________________________________________ ≤ 5 in.2 1/16 in. ≥-25 in.2 1/8 in. > 25-100 in.2 3/16 in. >100≤400 in.2 ¼ in. >400 in.2 ½ in.
W. Va. Code R. § 61-5-12 Non-Protein Nitrogen
12.1. Urea and other non-protein nitrogen products defined in the Official Publication of the Association of American Feed Control Officials are acceptable ingredients only in commercial feeds for ruminant animals as a source of equivalent crude protein. If the commercial feed contains more than 8.75% of equivalent crude protein from all forms of non-protein nitrogen, added as such, or if the equivalent crude protein from all forms of non-protein nitrogen, added as such, exceeds one third of the total crude protein, the label shall bear adequate directions for the safe use of feeds and a precautionary statement: “CAUTION: USE AS DIRECTED.” The directions for use and the precautionary statement shall be in type of such size so placed on the label that they will be read and understood by an ordinary person under customary conditions of purchase and use.
12.2. Non-protein nitrogen defined in the Official Publication of the Association of American Feed Control Officials, when indicated, are acceptable ingredients in commercial feeds distributed to non-ruminant animals as a source of nutrients other than equivalent crude protein. The maximum equivalent crude protein from non-protein nitrogen sources when used in non-ruminant rations shall not exceed 1.25% of the total daily ration.
12.3. On labels, such as those for medicated feeds which bear adequate feeding directions and/or warning statements, the presence of added non-protein nitrogen shall not require a duplication of the feeding directions or the precautionary statements as long as those statements include sufficient information to ensure the safe and effective use of the product due to the presence of non-protein nitrogen.
12.4. Feeding or use directions for those feeds in which more than 50% of the protein content is derived from non-protein nitrogen sources should include recommendations as to providing adequate supplies of drinking water, sources of energy, forages being fed, minerals, adaptation (“warm-up") periods and stress conditions when necessary.
W. Va. Code R. § 61-5-13 Drug and Feed Additives
13.1. The Commissioner may require a distributor to submit evidence to prove the safety and efficacy of a commercial feed when used according to the directions furnished on the label, before granting approval of a registration application and/or approval of a label for commercial feed which contain additives (including drugs, other special purpose additives, or non-nutritive additives).
13.2. Satisfactory evidence of safety and efficacy of a commercial feed may be:
13.2.a. When the commercial feed contains additives, the use of which conforms to the requirements of the applicable regulation in the Code of Federal Regulations, Title 21, or which are “prior sanctioned” or “informal review sanctioned” or “generally recognized as safe” for that use;
13.2.b. When the commercial feed is itself a drug defined in W. Va. Code §19-14-2(j) and is generally recognized as safe and effective for the labeled use or is marketed subject to an application approved by the Food and Drug Administration under Title 21 U.S.C. 360 b;
13.2.c. When one of the purposes for feeding a commercial feed is to impart immunity (that is to act through some immunological process) the constituents imparting immunity have been approved for the purpose through the Federal Virus, Serum and Toxin Act of 1913, as amended;
13.2.d. When the commercial feed is a direct fed microbial product and:
13.2.d.1. The product meets the particular fermentation product definition;
13.2.d.2. The microbial content statement, as expressed in the labeling, is limited to the following: “Contains a source of live (viable) naturally occurring microorganisms.” This statement shall appear on the label; and
13.2.d.3. The source is stated with a corresponding guarantee expressed in accordance with subsection 8.7 of this rule; and
13.2.e. When the commercial feed is an enzyme product and;
13.2.e.1. The product meets the particular enzyme definition defined by the Association of American Feed Control Officials; and
13.2.e.2. The enzyme is stated with a corresponding guarantee expressed in accordance with subsection 8.8 of this rule.
W. Va. Code R. § 61-5-14 Adulteration
14.1. A commercial feed is adulterated:
14.1.a. If it bears or contains any poisonous or deleterious substance which may render it injurious to animal or human health; but in the case where the substance is not an added substance, the commercial feed is not considered adulterated under this subsection if the quantity of the substance in the commercial feed does not ordinarily render it injurious to health;
14.1.b. For the purpose of W. Va. Code §19-14-10, the terms “poisonous” or “deleterious” substances include but are not limited to the following:
14.1.b.1. Fluorine and any mineral or mineral mixture which is to be used directly for the feeding of domestic animals and in which the fluorine exceeds 0.20% for breeding and dairy cattle; 0.30% for slaughter cattle; 0.30% for sheep; 0.35% for lambs; 0.45% for swine; and 0.60% for poultry;
14.1.b.2. Fluorine bearing ingredients when used in such amounts that they raise the fluorine content of the total ration (exclusive of roughage) above the following amounts: 0.004% for breeding and dairy cattle; 0.009% for slaughter cattle; 0.006% for sheep; 0.01% for lambs; 0.015% for swine and 0.03% for poultry;
14.1.b.3. Fluorine bearing ingredients incorporated in any feed that is fed directly to cattle, sheep or goats consuming roughage (with or without) limited amounts of grain, that results in a daily fluorine intake in excess of 50 milligrams of Fluorine per 100 pounds of body weight;
14.1.b.4. Soybean meal, flakes or pellets or other vegetable meals, flakes or pellets which have been extracted with trichlorethylene or other chlorinated solvents;
14.1.b.5. Sulfur dioxide, Sulfurous acid, and salts of Sulfurous acid when used in or on feeds or feed ingredients which are considered or reported to be a significant source of vitamin B1 (Thiamine); and
14.1.b.6. Raw leather residue from tanning or leather manufacturing.
14.1.c. If it contains any viable weed seeds in screenings or by-products of grains and seeds containing weed seeds when the product is used in commercial feed or sold as a single ingredient feed. Products containing viable weed seed shall be ground fine enough or otherwise treated to destroy the viability of weed seeds prior to distribution.; or
14.1.d. If it contains a drug and the methods used in or the facilities or controls used for its manufacture, processing, or packaging do not conform to current good manufacturing practices to assure the drug meets the requirements of W. Va. Code §19-14-10 and of this section as to safety and has the identity and strength and meets the quality and purity characteristics which it purports or is represented to possess.
14.2. Tolerances for pesticide residues in commercial feed are those specified in 40 CFR Parts 185 and 186, as incorporated by reference in section 2 of this rule.
W. Va. Code R. § 61-5-15 Laboratory Services
15.1. The commissioner shall make available laboratory facilities for the analysis of feed, hay, grass or silage samples for interested persons on a non-official basis.
15.2. Charges for non-official tests are set forth by the commissioner.
15.3. The commissioner shall not charge a person for an official sample taken by the commissioner in the course of carrying out the powers and duties under W. Va. Code §19-14-3 of this rule.
W. Va. Code R. § 61-5-16 Powers and Duties of the Commissioner
16.1. When sample collection by the commissioner destroys the salability of the product (for example, when an entire package must be collected for analysis), the commissioner shall offer to pay the retailer an amount not more than the wholesale cost of that product to that retailer.
W. Va. Code R. § 61-5-17 Enforcement Policy
17.1. First Notice -- If a commercial feed sample does not conform to W. Va. Code §19-14-1 et seq. or this rule, the commissioner shall issue a first notice to the guarantor of the commercial feed.
17.2. Second Notice -- If a commercial feed sample does not conform to W. Va. Code §19-14-1 et seq. or this rule, subsequent to the assessment of a first notice, the commissioner shall issue a second notice to the guarantor of the commercial feed.
17.3. Third Notice -- If a commercial feed sample does not conform to W. Va. Code §19-14-1 et seq. or this rule, subsequent to the assessment of a second notice, the commissioner shall issue a third notice to the guarantor of the commercial feed. The commissioner shall also issue a general embargo order to the registrant that shall require him or her to remove all lots of that commercial feed from sale and distribution within the state until the embargo is released.
17.4. If a resample indicates that the commercial feed is in compliance with W. Va. Code §19-14-1 et seq. and this rule, then the Commissioner shall cancel all previous notices of violations for that commercial feed.
17.5. The commissioner may take other action as considered necessary in order to carry out the provisions of W. Va. Code §19-14-1 et seq. and this rule.
W. Va. Code R. § 61-5-18 Good Manufacturing Practices
18.1. For the purposes of enforcement of W. Va. Code §19-14-10 and of section 14 of this rule, the commissioner adopts the following regulations as current good manufacturing practices:
18.1.a. The regulations prescribing good manufacturing practices for Type B and Type C medicated feeds as published in the Code of Federal Regulations, Title 21, Part 225, Sections 225.1-225.202 (2014); and
18.1.b. The regulations prescribing good manufacturing practices for Type A Medicated Articles as published in the Code of Federal Regulations, Title, 21, Part 226, Sections 226.1-226.115 (2007).
18.1.c. The re-use of bags or totes used for commercial feeds (including customer-formula feed) is permitted if bags or totes are appropriately cleaned, as approved by the WVDA, so that the re-use of the bags or totes shall not cause adulteration of the feed. A feed manufacturer that intends to re-use bags or totes shall document its cleanout procedures.
W. Va. Code R. § 61-5-19 Certain Mammalian Proteins Prohibited in Ruminant Feed
19.1. Pursuant to W. Va. Code §19-14-10(a), the commissioner adopts the requirements of Title 21, Code of Federal Regulations, 589.2001 (2016).
W. Va. Code R. § 61-5-20 Penalties for Violative Samples
20.1. The commissioner shall assess a penalty each time a lot of commercial feed is found to be in violation of this rule.
20.2. The amount of the penalty for each violation shall be 10% of the retail value of the lot of commercial feed.
20.3. The minimum penalty under any of the foregoing provisions shall be twenty-five dollars ($25.00).
20.4. Violative Penalty fees due but not remitted to the commissioner within fifteen calendar days following the due date shall be assessed a late penalty of ten percent of the violative penalty fee in addition to that fee.
APPENDIX NUMBER 1
FEES OF THIS RULE
TYPE OF FEE
SECTION
REFERENCE
FEE REGISTRATION
Commercial Feed Manufacturing Permit
5.1 $50.00 ANNUAL RENEWAL – Expires December 31 next, following issue Commercial Feed Distributor Permit
5.2 $30.00 ANNUAL RENEWAL – Expires December 31 next, following issue Commercial Feed Guarantor Permit
5.3 $500.00 ANNUAL RENEWEL – Expires December 31 next, following issue Registration - Pet food, in packages over ten pounds or bulk.
5.4 $50.00 + $50.00 Spay Neuter Total $100 REGISTERED ANNUALLY Expires August 31 next, following issue. Fee is per each product. $50.00 will be added for the WV Spay Neuter Assistance Fund until June 30, 2027.
Registration - Pet food in packages of ten pounds and under.
5.4 $40.00 + $35.00 Spay Neuter Total $75.00 REGISTERED ANNUALLY Expires December 31 next, following issue. Fee is per each product. $35.00 will be added for the WV Spay Neuter Assistance Fund until June 30, 2027 Registration - Specialty pet food.
5.4 $40.00 REGISTERED ANNUALLY
Expires December 31 next, following issue. Fee is per each product.
Late Penalty
5.4.5 $100.00 Added to the fee for all permits or registrations that are not applied for or renewed within the time limit.
Tonnage Fees
6.1 $25.00 or $0.35/tonwhichever is greater Each person required in W.Va. Code §19-14-9 (c) to file semi-annual tonnage reports Inspection Fees Late Penalty
6.2 10% of inspection fee due Inspection fees due but not remitted to the commissioner within fifteen calendar days following the due date of each semi-annual tonnage report Violative Penalty on Samples
20.2 &
20.3 10% of retail value of the lot or $25 whichever is larger The amount of the penalty for each violation shall be 10% of the retail value of the lot of commercial feed.
The minimum penalty under any of the foregoing provisions shall be twenty-five dollars ($25.00).
Late Penalty on Violative Penalty Fees
20.4 10% of penalty due Violative Penalty fees due but not remitted to the commissioner within fifteen calendar days following the due date shall be assessed a late penalty of ten percent of the violative penalty fee in addition to the original penalty fee.
Appendix Number 2 Required guarantees for swine formula feeds Animal Classes (1) Pre-Starter – 2 to 11 pounds (2) Starter – 11 to 44 pounds (3) Grower – 44 to 110 pounds (4) Finisher – 110 to market weight (5) Gilts, Sows and Adult Boars (6) Lactating Gilts and Sows Guaranteed Analysis for Swine Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Minimum percentage of Lysine (3) Minimum percentage of Crude Fat (4) Maximum percentage of Crude Fiber (5) Minimum and maximum percentage of Calcium (6) Minimum percentage of Phosphorus (7) Minimum and maximum percentage of Salt (if added)
(8) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (9) Minimum Selenium in parts per million (ppm)
Appendix Number 43 Swine Complete and Supplement Feeds (Non-Medicated and Medicated)
BLUE BIRD SUPER PIG FEED
For Starter Pigs Weighting 11 to 44 Pounds Crude Protein (Min) 20.0% Lysine (Min) 1.2% Crude Fat (Min) 4.0% Crude Fiber (Max) 4.0% Calcium (Min) 0.8% Calcium (Max) 1.3% Phosphorus (Min) 0.65% Salt (Min) 0.35% Salt (Max) 0.5% Selenium (Min)…..................................................0.3 ppm Zinc (Min)….........................................................150 ppm Grain Products, Plant Protein Products, Processed Grain By-Products, Dried Whey, Calcium Lignin Sulfonate, Animal Fat, Vitamin A Supplement, D-Activated Animal Sterol (source of Vitamin D), L-Lysine, Riboflavin Supplement, Choline Chloride, Biotin, Thiamine Mononitrate, Pyridoxine Hydrochloride, Vitamin E Supplement, Menadione Sodium Bisulfite Complex (source of Vitamin K Activity), Folic Acid, Ethoxyquin (a preservative), Ground Limestone, Dicalcium Phosphate, Salt, Copper Sulfate, Manganous Oxide, Zinc Oxide, Iron Sulfate, Cobalt Carbonate, Calcium Iodate, Sodium Selenite.
Feed as the complete ration to starter pigs weighing 11 to 44 pounds.
BLUE BIRD SUPER PIG FEED
MEDICATED
For Starter Pigs Weighing 11 to 44 Pounds.
Administer to swine in a complete feed for reduction of the incidence of cervical abscesses; treatment of bacterial enteritis (salmonellosis or necrotic enteritis caused by salmonella chloreaesuis and vibrionic dysentery); maintenance of weight gains in the presence of atrophic rhinitis; increased rate of weight gain and improved feed efficiency up to six weeks post-weaning.
Active Drug Ingredients Chlortetracycline...................................................100. G/T Sulfathiazole..........................................................0.011% Penicillin (from Procaine Penicillin)….................50. G/T Crude Protein (Min)…............................20.0% Lysine (Min)…..........................................1.2% Crude Fat (Min)….....................................4.0% Crude Fiber (Max)….................................4.0% Calcium (Min)….......................................0.8% Calcium (Max)….......................................1.3% Phosphorus (Min)…...................................0.65% Salt (Min)…................................................0.35% Salt (Max)…................................................0.5% Selenium (Min)….....................................0.3 ppm Zinc (Min)…............................................150 ppm Grain Products, Plant Protein Products, Processed Gain By-Products, Dried Whey, Calcium Lignin Sulfonate, Animal Fat, Vitamin A Supplement, D-Activated Animal Sterol (source of Vitamin D), L-Lysine, Riboflavin Supplement, Choline Chloride, Biotin, Thiamine Mononitrate, Pyridoxine Hydrochloride, Vitamin E Supplement, Menadione Sodium Bisulfite Complex (source of Vitamin K Activity), Folic Acid, Ethoxyquin (a preservative), Ground Limestone, Dicalcium Phosphate, Salt, Copper Sulfate, Manganous Oxide, Zinc Oxide, Iron Sulfate, Cobalt Carbonate, Calcium Iodate, Sodium Selenite.
Feed as the complete ration to starter pigs weighing 11 to 44 pounds.
Warning: Withdraw 7 days prior to slaughter.
Appendix Number 4 Required guarantees for Formula Poultry Feeds (Broilers, Layers and Turkeys)
(a) Animal Classes (1) Layer – Chickens that are grown to Produce eggs for food, e.g. , table eggs (a) Starting/Growing – From day of hatch to approximately 10 weeks of age.
(b) Finisher – From approximately 10 weeks of age to time first egg is produced. (Approximately 20 weeks of age)
(c) Laying – From time first egg is laid throughout the time of egg production.
(d) Breeders – Chickens that produce fertile eggs for hatch replacement layers to produce eggs for food, table eggs, from time first egg is laid throughout their productive cycle.
(2) Broilers – Chickens that are grown for human food.
(a) Starting/growing – From day of hatch to approximately 5 weeks of age.
(b) Finisher – From approximately 5 weeks of age to market, (42 to 52 days).
(c) Breeders – Hybrid strains of chickens whose offspring are grown for human food, (broilers), any age and either sex.
(3) Broilers, Breeders – Chickens whose offspring are grown for human food (broilers).
(a) Starting/Growing – From day of hatch until approximately 10 weeks of age.
(b) Finishing – From approximately 10 weeks of age to time first egg is produced, approximately 20 weeks of age.
(c) Laying – Fertile egg producing chickens (broilers/roasters) from day of first egg throughout the time fertile eggs are produced.
(4) Turkeys (a) Starting/Growing – Turkeys that are grown for human food from day of hatch to approximately 13 weeks of age (females) and 16 weeks of age (males).
(b) Finisher – Turkeys that are grown for human food, females from approximately 13 weeks of age to approximately 17 weeks of age; males from 16 weeks of age to 20 weeks of age, (or desired market weight).
(c) Laying – Female turkeys that are producing eggs; from time first egg is produced, throughout the time they are producing eggs.
(d) Breeder – Turkeys that are grown to produce fertile eggs, from day of hatch to time first egg is produced (approximately 30 weeks of age), both sexes.
(b) Guaranteed Analysis for Poultry Complete feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Minimum percentage of Lysine (3) Minimum percentage of Methionine (4) Minimum percentage of Crude Fat (5) Maximum percentage of Crude Fiber (6) Minimum and maximum percentage of Calcium (7) Minimum percentage of Phosphorus (8) Minimum and maximum percentage of Salt (if added)
(9) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee
Appendix Number 5 Poultry Complete & Supplement Feeds BLUE BIRD LAYER FEED Complete Feed for Laying Chickens Crude Protein (Min)…..........................................................15.0% Lysine (Min)..........................................................................0.65% Methionine (Min)…...... …....................................................0.35% Crude Fat (Min)…........ …......................................................3.0% Crude Fiber (Max)….... …......................................................3.5% Calcium (Min)…........... …......................................................3.4% Calcium (Max).............. …......................................................4.4% Phosphorus (Min)…...... …......................................................0.6% Salt (Min)...................... ….....................................................0.35% Salt (Max)..................... …......................................................0.50% Grain Products, Plant Protein Products, Processed Grain By-Products, Animal Protein Products, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Riboflavin Supplement, Niacin Supplement, Calcium Pantothenate, Choline Chloride, Folic Acid, Menadione Sodium Bisulfite Complex (source of Vitamin K Activity), Methionine Supplement, Potassium Sulfate, Calcium Carbonate, Salt, Manganous Oxide, Ferrous Sulfate, Copper Sulfate, Zinc Oxide, Ethylenediamine Dihydriodide, Sodium Selenite.
This is a complete and balanced ration. Feed Blue Bird Layer Feed from time first egg is laid throughout the time of egg production. Always provide plenty of fresh water.
Appendix Number 6 Required Guarantees for Beef Cattle Formula feeds.
a. Animal Classes (1) Calves (birth to weaning)
(2) Cattle on Pasture (may be specific as to production stage; e.g. stocker, feeder, replacement heifers, brood cows, bulls, etc.)
(3) Feedlot Cattle b. Guaranteed analysis for Beef Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Maximum percentage of equivalent crude protein from Non-Protein Nitrogen (NPN) when added (3) Minimum percentage of Crude Fat (4) Maximum percentage of Crude Fiber (5) Minimum and maximum percentage of Calcium (6) Minimum percentage of Phosphorus (7) Minimum and maximum percentage of Salt (if added)
(8) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (9) Minimum percentage of Potassium (10) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound c. Guaranteed analysis for Beef Mineral Feeds (if added)
(1) Minimum and maximum percentage of Calcium (2) Minimum percentage of Phosphorus (3) Minimum and maximum percentage of Salt (4) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (5) Minimum percentage of Magnesium (6) Minimum percentage of Potassium (7) Minimum Copper in parts per million (ppm)
(8) Minimum Selenium in parts per million (ppm)
(9) Minimum Zinc in parts per million (ppm)
(10) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound
Appendix Number 7 Beef Complete and Supplement Feeds / Beef Mineral BLUE BIRD BEEF FEED Pasture Extender for Beef Cattle Crude Protein (Min) 12.0% (This includes not more than 2.9% equivalent crude protein from non-protein nitrogen)
Crude Fat (Min) 2.0% Crude Fiber (Max) 10.0% Calcium (Min) 0.5% Calcium (Max) 1.0% Phosphorus (Min) 0.65% Salt (Min) 11.0% Salt (Max) 13.2% Potassium (Min) 0.4% Vitamin A (Min)….............................10,000. IU/lb Grain Products, Plant Protein Products, Molasses Products, Processed Grain By-Products, Urea, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Calcium Carbonate, Monocalcium Phosphate, Salt, Manganous Oxide, Ferrous Sulfate, Copper Oxide, Magnesium Oxide, Zinc Oxide, Cobalt Carbonate, Ethylenediamine Dihydriodide, Potassium Chloride.
Self-feed to beef cattle on pasture. Feed 4 to 6 pounds per head per day as a pasture extender. Provide plenty of fresh, clean water at all times.
Caution: Use as directed. Observe cattle daily and monitor intake. Do not feed additional salt.
Manufactured By BLUE BIRD BEEF MINERAL A Mineral Supplement for Beef Cattle on Pasture Calcium (Min) 11.0% Calcium (Max) 13.0% Phosphorus (Min) 6.0% Salt (Min) 20.0% Salt (Max) 22.0% Magnesium (Min) 1.0% Potassium (Min) 2.0% Copper (Min)…........................................460. ppm Selenium (Min)…......................................0.2. ppm Zinc (Min)…...........................................2,300 ppm Vitamin A (Min)…...........................100,000. IU/lb Dicalcium Phosphate, Monocalcium Phosphate, Salt, Calcium Carbonate, Potassium Chloride, Distillers Dried Grains with Solubles, Can\ Molasses, Manganous Oxide, Ferrous Sulfate, Copper Sulfate, Magnesium Oxide, Zinc Oxide, Ethylenediamine Dihydriodide, Cobalt Carbonate, Iron Oxide, Sodium Selenite, Animal Fat, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Manganese Sulfate, Mineral Oil.
This mineral should be fed in dry, rain-protected feeder. Place near a water source where animals gather.
Provide fresh, clean water at all times. Do not feed additional salt.
Feed to beef cattle on fescue pasture at the rate of 4 oz./head/day.
Appendix Number 8 Required Guarantees for Dairy Formula Feeds a. Animal Classes Veal Milk Replacer Herd Milk Replacer Starter Non-Lactating Dairy Cattle: Replacement Dairy Heifers, Dairy Bulls and Dairy Calves Lactating Dairy Calves Dry Dairy Cows b. Guaranteed Analysis for Veal and Herd Replacement Milk Replacer Minimum percentage Crude Protein Minimum percentage Crude Fat Maximum percentage of Crude Fiber Minimum and Maximum percentage Calcium Minimum percentage of Phosphorus Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound (if added)
c. Guaranteed Analysis for Dairy Cattle Complete Feeds and Supplements (1) Minimum percentage of Crude Protein (2) Maximum percentage of Equivalent Crude Protein from Non-Protein Nitrogen (NPN) when added (3) Minimum percentage of Crude Fat (4) Maximum percentage if Crude Fiber (5) Maximum percentage of Acid Detergent Fiber (ADF)
(6) Minimum and Maximum percentage of Calcium (7) Minimum percentage of Phosphorus (8) Minimum Selenium in parts per million (ppm)
(9) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound (if added)
d. Required Guaranteed Analysis for Dairy Mixing and Pasture Mineral (if added)
(1) Minimum and Maximum percentage of Calcium (2) Minimum percentage of Phosphorus (3) Minimum and maximum percentage of Salt (4) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (5) Minimum percentage of Magnesium (6) Minimum percentage of Potassium (7) Minimum Selenium in parts per million (ppm)
(8) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound
Appendix Number 9 Dairy Complete and Supplement Feeds / Dairy Mineral BLUE BIRD DAIRY FEED Concentrate Ration for Lactating Dairy Cattle Crude Protein (Min) 16.0% (This includes not more than 3.5% equivalent crude protein from non-protein nitrogen)
Crude Fat (Min) 2.5% Crude Fiber (Max) 8.0% Acid Detergent Fiber (ADF) (Max) 14.0% Calcium (Min) 1.0% Calcium (Max) 1.5% Phosphorus (Min) 0.75% Selenium (Min)…........................................0.2 ppm Vitamin A (Min)….................................7,000 IU/lb Grain Products, Plant Protein Products, Processed Grain By-Products, Animal Protein Products, Forage Products, Molasses Products, Dicalcium Phosphate, Urea, Mineral Oil, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Ethoxyquin (a preservative), Hemicellulose Extract, Methionine Supplement, Calcium Carbonate, Salt, Manganous Oxide, Magnesium Oxide, Ferrous Sulfate, Copper Sulfate, Zinc Oxide, Potassium Chloride, Calcium Sulfate, Ethylenediamine Dihydriodide, Potassium Sulfate, Sodium Selenite, Natural and Artificial Flavors.
Feed 16 pounds per head per day to a 1,200 pound cow. Feed 18.6 pounds per head per day to a 1,400 pound cow. Do not exceed 50% of the total dry matter intake from this feed.
BLUE BIRD DAIRY MINERAL
Mixing Mineral for Lactating Dairy Cattle Calcium (Min) 16.5% Calcium (Max) 17.0% Phosphorus (Min) 4.5% Salt (Min) 5.5% Salt (Max) 6.5% Sodium (min)………………………..………12.0% Sodium (max)…………………………..…...14.0% Magnesium (Min) 5.5% Potassium (Min) 6.6% Selenium (Min) 3. ppm Vitamin A (Min)….............................115,000. IU/lb Dicalcium Phosphate, Monocalcium Phosphate, Calcium Carbonate, Sodium Bicarbonate, Potassium Chloride, Salt, Cane Molasses, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Vitamin B12 Supplement, Riboflavin Supplement, Niacin Supplement, Choline Chloride, Folic Acid, Ethoxyquin (a preservative), Calcium Pantothenate, Menadione Sodium Bisulfite Complex, Zinc Oxide, Manganous Oxide, Magnesium Oxide, Potassium Chloride, Iron Oxide, Copper Oxide, Ferrous Sulfate, Cobalt Carbonate, Ethylenediamine Dihydriodide, Sodium Selenite, Yeast Culture, Natural and Artificial Flavors.
Mix this product with grains, sources of protein, and other concentrates to prepare complete concentrated mixes for lactating dairy cows. Feed approximately 1.5 lb. of Dairy Mineral on a daily basis. Provide plain white stock salt on a free-choice basis.
Appendix Number 10 Required Guarantees for Equine Formula Feeds a. Animal Classes (1) Growing (2) Broodmare (3) Performance (Including Stallions)
(4) Maintenance b. Guaranteed Analysis for Equine Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Minimum percentage of Crude Fat (3) Maximum percentage of Crude Fiber (4) Maximum percentage of Acid Detergent Fiber (ADF)
(5) Maximum percentage of Neutral Detergent Fiber (NDF)
(6) Minimum and maximum percentage of Calcium (7) Minimum percentage of Phosphorus (8) Minimum Copper in parts per million (ppm)
(9) Minimum Selenium in parts per million (ppm)
(10) Minimum Zinc in parts per million (ppm)
(11) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound c. Guaranteed Analysis for Equine Mineral Feeds (all animal classes)
(1) Minimum and maximum percentage of Calcium (2) Minimum percentage of Phosphorus (3) Minimum and maximum percentage of Salt (if added)
(4) Minimum and maximum percentage of total Sodium (5) Minimum Copper in parts per million (ppm) (if added)
(6) Minimum Selenium in parts per million (ppm)
(7) Minimum Zinc in parts per million (ppm)
(8) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound
Appendix Number 11 Equine Complete and Supplement Feeds BLUE BIRD 12% TEXTURED HORSE FEED For Maintenance of Mature Horses Crude Protein (Min) 12.0% Crude Fat (Min) 3.0% Crude Fiber (Max) 12.0% Calcium (Min)... 1.0% Calcium (Max) …...................................................................................................1.5% Phosphorus (Min) 1.0% Copper (Min)…....................................................................................................20 ppm Selenium (Min) ….............................................................................................0.20 ppm Zinc (Min)…........................................................................................................40.ppm Vitamin A (Min)…....................................................................................2,000. IU/lb Grain Products, Plant Protein Products, Processed Grain By-Products, Molasses Products, Roughage Products, Vitamin A Supplement, Vitamin D3 Supplement, Vitamin E Supplement, Vitamin B12 Supplement, Riboflavin Supplement, Pyridoxine Hydrochloride, Folic Acid, Biotin, Thiamine, Calcium Carbonate, Salt, Dicalcium Phosphate, Manganous Oxide, Ferrous Sulfate, Copper Sulfate, Magnesium Oxide, Zinc Oxide, Ethylenediamine Dihydriodide, Cobalt Carbonate, Potassium Chloride, Sodium Selenite.
Feed ½ to 1 lb. of feed per 100 lbs. of body weight for the maintenance of mature horses. Feed good quality hay at the rate of 1 to 2 lbs. per 100 lbs. body weight daily. Provide fresh, clean water at all times.
Important: Feed hay along with this ration, as per directions.
Appendix Number 12 Required guarantees for Goats Formula Feeds Animal Classes Starter Grower Finisher Breeder Lactating Guaranteed Analysis for Goat Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Maximum percentage of equivalent crude protein from Non-Protein Nitrogen (NPN) when added (3) Minimum percentage of Crude Fat (4) Maximum percentage of Crude Fiber (5) Maximum percentage of Acid Detergent Fiber (ADF)
(6) Minimum and Maximum percentage of Calcium (7) Minimum percentage of Phosphorus (8) Minimum and maximum percentage of Salt (if added)
(9) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (10) Minimum and maximum Copper in parts per million (ppm) (if added)
(11) Minimum Selenium in parts per million (ppm)
(12) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound
Appendix Number 13 Required Guarantees for Sheep Formula Feeds Animal Classes Starter Grower Finisher Breeder (5) Lactating Guaranteed Analysis for Sheep Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Maximum percentage of equivalent crude protein from Non-Protein Nitrogen (NPN) when added (3) Minimum percentage of Crude Fat (4) Maximum percentage of Crude Fiber (5) Minimum and Maximum percentage of Calcium (6) Minimum percentage of Phosphorus (7) Minimum and maximum percentage of Salt (if added)
(8) Minimum and maximum percentage of total Sodium shall be guaranteed only when the total Sodium exceeds that furnished by the maximum salt guarantee (9) Minimum and maximum Copper in parts per million (ppm) (if added, or if total copper exceeds 20 ppm)
(10) Minimum Selenium in parts per million (ppm)
(11) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound (if added)
Appendix 14 Sheep Complete Feed and Supplements YOUR SHEEP FEED For breeding ewes Crude Protein (Min) 15.0% (This includes not more than 1.0% equivalent crude protein from non-protein nitrogen)
Crude Fat (Min) 2.0% Crude Fiber (Max)….....................................................................20.0% Calcium (Min)... 0.8% Calcium (Max)…............................................................................1.3% Phosphorus (Min) 0.35% Salt (min) …..................................................................................0.35% Salt (max) …..................................................................................0.85% Copper (Min)….............................................................................5.0 ppm Copper (Max) …..........................................................................10.0 ppm Selenium (Min) ............................................................................0.3 ppm Vitamin A (Min)…........................................................................2,000 IU/lb Grain Products, Plant Protein Products, Processed Grain By-Products, Roughage Products, Ammonium Chloride, Vitamin A Supplement, Cholecalciferol (source of Vitamin D3), Choline Chloride, Biotin, Thiamine Mononitrate, Pyridoxine Hydrochloride, Vitamin E Supplement, Copper Sulfate, Folic Acid, Ethoxyquin (a preservative), Calcium Carbonate, Dicalcium Phosphate, Monocalcium Phosphate, Manganous Oxide, Zinc Oxide, Ferrous Sulfate, Cobalt Carbonate, Potassium Chloride, Sodium Selenite.
Feed as sole source of grain to breeding ewes at the rate of 2 to 3 pounds per head per day.
Caution: Use as directed. For sheep Only.
Your Name Feed Mill
Appendix Number 15 Required Guarantees for Duck and Geese Formula Feeds.
a. Animal Classes (1) Ducks (a) Starter – 0 to 3 weeks of age (b) Grower – 3 to 6 weeks of age (c) Finisher – 6 weeks to market (d) Breeder Developer – 8 to 19 weeks of age (e) Breeder – 22 weeks to end of lay (2) Geese (a) Starter – 0 to 4 weeks of age (b) Grower – 4 to 8 weeks of age (c) Finisher – 8 weeks to market (d) Breeder Developer – 10 to 22 weeks of age (e) Breeder – 22 weeks to end of lay b. Guaranteed Analysis for Duck and Geese Complete Feeds and Supplements (for all animal classes)
(1) Minimum percentage of Crude Protein (2) Minimum percentage of Crude Fat (3) Maximum percentage of Crude Fiber (4) Minimum and maximum percentage of Calcium (5) Minimum percentage of Phosphorus (6) Minimum and maximum percentage of Salt (if added)
(7) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee
Appendix Number 16 Required Guarantees for Fish Complete Feeds and Supplements a. Animal Species shall be declared in lieu of animal class (1) Trout (2) Catfish (3) Species other than trout or catfish b. Guaranteed analysis for all Fish Complete Feeds and Supplements (1) Minimum percentage of Crude Protein (2) Minimum percentage of Crude Fat (3) Maximum percentage of Crude Fiber (4) Minimum percentage of Phosphorus
Appendix Number 17 Required Guarantees for Rabbit Complete Feeds and Supplements a. Animal Classes (1) Grower – 4 to 12 weeks of age (2) Breeder – 12 weeks of age and over b. Guaranteed analysis for Rabbit Complete Feeds and Supplements (all animal classes)
(1) Minimum percentage of Crude Protein (2) Minimum percentage of Crude Fat (3) Minimum and maximum percentage of Crude Fiber (the maximum crude fiber shall not exceed the minimum by more than 5.0 units)
(4) Minimum and maximum percentage of Calcium (5) Minimum percentage of Phosphorus (6) Minimum and maximum percentage of Salt (if added)
(7) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (8) Minimum Vitamin A, other than precursors of Vitamin A, in International Units per pound
Appendix Number 18 The required guarantees of grain mixtures with or without molasses and feeds other than those described in Appendices 2, 4, 6, 8, 10, 12, 13, 15, 16, and 17, shall include the following items, unless exempted in Part 7.1.c.1. in the order listed:
a. Animal class(es) and species for which the product is intended.
b. Guaranteed analysis (1) Minimum percentage of Crude Protein (2) Maximum or minimum percentage of equivalent Crude Protein from Non-Protein Nitrogen as required in Section 8.5.
(3) Minimum percentage of Crude Fat (4) Maximum percentage of Crude Fiber (5) Minerals in formula feeds, to include in the following order:
(a) Minimum and maximum percentage of Calcium (b) Minimum percentage of Phosphorus (c) Minimum and maximum percentage of Salt (if added)
(d) Minimum and maximum percentage of total Sodium shall be guaranteed only when total Sodium exceeds that furnished by the maximum salt guarantee (e) Other Minerals (6) Minerals in feed ingredients – as specified by the official definitions of the Association of American Feed Control Officials (7) Vitamins in such terms as specified in Section 8.3.
(8) Total sugars as invert on dried molasses products or products being sold primarily for their sugar content (9) Viable lactic acid producing microorganisms for use in silages in terms specified in Section 8.7.
(10) A commercial feed (e.g. vitamin/mineral premix, base mix, etc.) intended to provide a specialized nutritional source for use in the manufacture of other feeds, must state its intended purpose and guarantee those nutrients relevant to such stated purpose. Article II of AAFCO’s “Criteria for Labeling Nutritional Indicators” is not applicable to the label guarantees for these specialized commercial feeds.
Appendix Number AFFIDAVIT Affidavit of Suitability ________________________________ ________________________________________ (Company Name) (Product Name & Code Number)
-
Affidavit is the ___________________of ______________________________________ (Title) (Name of Company) and is duly authorized to make and execute this Affidavit for and on behalf of said company.
-
Affiant has knowledge of the nutritional content of the above listed feed product and is familiar with the nutritional requirements for the animal species and animal class(es) for which the feed product is intended.
-
Affiant has knowledge of valid scientific evidence that supports the suitability of the product for the intended animal species and animal class for which this feed is intended. A copy of the product label is attached to this affidavit. __________________________________________ By ____________________________________ (Name of Company) (Name) _________________________________________ (Title)
Subscribed and sworn to before me this ___________ day of _________________________ , 20_______ __________________________________________ (Notary Public)
Series 06 Sale And Distribution Of Commercial Fertilizer
W. Va. Code R. § 61-6-1 General
1.1. Scope. -- This legislative rule provides for regulation of fertilizer and fertilizer materials, soil amendments, and horticultural growing media; provides for registration of firms who formulate blends according to consumer specifications and establishes registration fees; provides for labeling requirements; provides for dissemination of sampling and analysis data; provides for guarantees of minor or trace elements; establishes commercial values for plant food ingredients; establishes investigational allowances for secondary and micronutrient element guarantees and requires conformity to terms and definitions as commonly accepted by the Association of American Plant Food Control Officials.
1.2. Authority. -- W. Va. Code §19-15-12.
1.3. Filing Date. -- May 14, 2001.
1.4. Effective Date. -- June 1, 2001.
W. Va. Code R. § 61-6-2 Administrative
2.1. W. Va. Code §19-15-1 et seq. places enforcement of the West Virginia Fertilizer Law with the West Virginia Commissioner of Agriculture and provides that he or she may act through his or her duly authorized agent.
2.2. All persons offering or exposing regulated product for sale, including retailers, wholesalers, jobbers and brokers are equally responsible for full compliance with the fertilizer law and any person who has in his or her possession any unlawful regulated product is responsible for compliance even to registration, payment of the tonnage fee, labeling and any other legal requirements.
2.3. Terms and definitions as used in regard to this rule shall have the impact and meaning as defined in the current publication of the Association of American Plant Food Control Officials.
W. Va. Code R. § 61-6-3 Permits, Inspection, Tonnage Reports, and Registration
3.1. The manufacturer or distributor shall register each brand and grade of fertilizer before it is distributed in this state. The application for registration shall be accompanied by the fee listed in Appendix Number 1 – Fees Of This Rule.
3.2. The manufacturer or distributor shall register each brand of soil amendment, compost, and horticultural growing media before it is distributed in this state. The application for registration shall be accompanied by the fee listed in Appendix Number 1 – Fees Of This Rule.
3.3. Any person who mixes, manipulates or compounds plant food ingredients according to consumer specifications shall apply to the Commissioner for a Fertilizer Formulation Permit. The application shall be accompanied by the fee listed in Appendix Number 1 – Fees Of This Rule. The Fertilizer Formulation Permit expires on the thirtieth day of June of the following year.
3.3.a. Each distributor shall calculate the grade of the consumer formulated fertilizer and shall guarantee the calculated analysis.
3.3.b. The distributor shall clearly indicate the grade of any consumer formulated bulk fertilizer on the invoice and shall include a breakdown of ingredients used in the formulation. The invoice constitutes the distributors guarantee.
3.4. After notification of non-registration of regulated product or manufacturer or distributor of consumer specified regulated product, a person failing to register within the grace period shall pay to the commissioner the penalty fee listed in Appendix Number 1 – Fees Of This Rule.
3.5. An application for registration of any industry by-product as a fertilizer, soil amendment, or horticultural growing media shall be accompanied by laboratory tests and field trial data proving that the product has use and value as a regulated product. Test results from the product shall prove that it presents no hazard to beneficial plant life, animals, humans, aquatic life, soil or water.
3.6. The manufacturer or distributor shall pay to the commissioner for all fertilizers distributed in this state the inspection fee listed in Appendix Number 1 – Fees Of This Rule. Where a person sells the same brand and grade of fertilizer in bulk or packages over ten pounds and in packages ten pounds or less, the inspection fees are paid respectively in each category.
3.6.a. If the manufacturer or distributor fails to file a quarterly tonnage report and pay inspection fees within thirty days after the end of the quarter, the commissioner shall assess the collection fee listed in Appendix Number 1 – Fees Of This Rule, against the registrant, and the amount of fees due the commissioner constitute a debt and become the basis of a judgment against the manufacturer or distributor.
3.7. If any regulated product in the possession of the distributor or retailer is found by the commissioner to be short in weight, the registrant of the regulated product shall within thirty days after official notice from the commissioner pay to the consumer the penalty listed in Appendix Number 1 – Fees Of This Rule. If the consumers cannot be found, the amount of penalty shall be paid to the commissioner and deposited in the department of agriculture’s fees account.
W. Va. Code R. § 61-6-4 Labeling Requirements
4.1. The label for fertilizer, soil amendment, compost, or horticultural growing medium shall include the following information:
4.1.a. The quantity statement;
4.1.b. The brand and/or grade;
4.1.c. The purpose of the product;
4.1.d. Directions for application; and
4.1.e. The name and address of the registrant.
4.2. Additional labeling for fertilizer shall include guaranteed analysis as follows; except zero (0) guarantees should not be made and shall not appear in statement except in nutrient guarantee breakdowns.
4.2.a.
Total Nitrogen (N) ……__________ %.
If chemical forms of N are claimed or required, the form shall be shown.
No implied order of the forms of nitrogen is intended. % Ammoniacal Nitrogen % Nitrate Nitrogen % Water Insoluble Nitrogen % Urea Nitrogen % (Other recognized and determinable forms of N)
4.2.b.
Available Phosphate (P2O5)…..__________%
4.2.c.
Soluble Potash (K2O)………..__________%
4.2.d.
Other nutrients, elemental basis as prescribed by subsection 5.2 of this rule…__________%
4.2.e. Sources of nutrients, when shown on the label, shall be listed below the completed guaranteed analysis statement.
4.2.f. Directions for use for fertilizer distributed to the end user:
4.2.f.1. For specialty fertilizer, minimum directions for use shall include:
4.2.f.1.a. Recommended application rate or rates in units of weight or volume per unit of area coverage (where application rates are given in volume, the label shall provide sufficient information to calculate the application rates by weight;
4.2.f.1.b. Application timing and minimum intervals to apply the product when plants can utilize nutrients; and
4.2.f.1.c. The statement “Apply Only As Directed” or a statement of similar designation.
4.2.f.2. For all other fertilizers, minimum directions for use shall include at least one of the following;
4.2.f.2.a. A statement such as:
Use in accordance with recommendations of a qualified individual or institution, such as, but not limited to, a certified crop advisor, agronomist, or university crop extension publication, or apply according to recommendations in your approved nutrient management plan; or
4.2.f.2.b. Detailed directions for a specific use.
4.3. Additional labeling for soil amendments shall include the following:
4.3.a. Soil amending ingredients;
4.3.b.
“Name of ingredient”………….____%, identify and list all ingredients;
4.3.c.
Total Other Ingredients………____%
4.4. Additional labeling for horticultural growing medium shall include:
4.4.a. Physical components, identify and list all components;
4.4.a.1. A listing of all physical components, whether organic or inorganic, shall be listed in order of decreasing amount by volume, if they comprise at least three per cent (3%) or more of total volume of the product;
4.4.b. Physical properties; and
4.4.c. Medium nutrient analysis.
4.5. Slowly Released Plant Nutrients.
4.5.a. No fertilizer label shall bear a statement that connotes or implies that certain plant nutrients contained in a fertilizer are released slowly over a period of time, unless the slow release components are identified and guaranteed at a level of at least 15% of the total guarantee for those nutrients.
4.5.b. Types of products with slow release properties recognized are (1) water insoluble, such as natural organics, ureaform materials, urea-formaldehyde products, isobutylidene diurea, oxamide, etc., (2) coated slow release, such as sulfur coated urea and other encapsulated soluble fertilizers, (3) occluded slow release, where fertilizers or fertilizer materials are mixed with waxes, resins, or other inert materials and formed into particles and (4) products containing water soluble nitrogen such as ureaform materials, urea-formaldehyde products, methylenediurea (MDU), dimethylenetriurea (DMTU), dicyanodiamide (DCD), etc. The terms, “water insoluble”, “coated slow release”, “slow release”, “controlled release”, “slowly available water soluble”, and “occluded slow release” are accepted as descriptive of these products, provided the manufacturer can show a testing program substantiating the claim (testing under guidance of Experiment Station personnel or a recognized reputable researcher acceptable to the commissioner). A laboratory procedure, acceptable to the commissioner for evaluating the release characteristics of the products shall also be provided by the manufacturer.
W. Va. Code R. § 61-6-5 Secondary And Micronutrient Elements
5.1. The basicity or acidity of a fertilizer expressed in terms of calcium carbonate equivalent in multiples of one hundred (100) pounds per ton, or percent in multiples of five percent (5%), may be shown on the application for registration and on the label.
5.2. The manufacturer or distributor shall register and guarantee additional plant nutrients besides nitrogen, phosphorus and potassium, when mentioned or claimed on the label or container. Guarantees shall be made on the elemental basis. Source of the elements guaranteed shall be provided to the Commissioner on request. Except guarantees for those water soluble nutrients labeled for hydroponic or continuous liquid feeding programs, when claims for the nutrients are made on the label, container or application for registration, the minimum percentages which shall be accepted for registration are as follows:
ELEMENT PERCENT
Calcium (Ca) 1.0000 Magnesium (Mg) 0.5000 Sulfur (S) 1.0000 Boron (B) 0.0200 Chlorine (Cl) 0.1000 Cobalt (Co) 0.0005 Copper (Cu) 0.0500 Iron (Fe) 0.1000 Manganese (Mn) 0.0500 Molybdenum (Mo) 0.0005 Sodium (Na) 0.1000 Zinc (Zn) 0.0500
5.3. Manufacturer or distributor guarantees or claims for the additional plant nutrients in subsection 5.2 of this section are the only ones which will be accepted. Proposed labels and directions for use of the fertilizer shall be furnished to the Commissioner with the application for registration upon request.
5.4. Warning or caution statements are required on the label of any product which contains 0.03 percent or more of Boron in a water soluble form, or 0.001 percent or more of Molybdenum. Any of the elements listed in subsection 5.2 of this section which are guaranteed shall appear in the order listed immediately following guarantees for the primary nutrients: nitrogen, available phosphate, and soluble potash.
5.5. Tolerances for determining deficiencies in secondary and micronutrient elements are those recommended by the Association of American Plant Food Control Officials.
W. Va. Code R. § 61-6-6 Additional Information Required On Mixed Fertilizers
6.1. Chlorine content of fertilizers branded for tobacco.
6.1.a. The maximum chlorine in tobacco plant bed fertilizer shall be not more than one percent (1.00%).
6.1.b. The maximum chlorine in regular field crop tobacco fertilizer shall be not more than three percent (3.00%).
6.1.c. The maximum chlorine in tobacco top dresser shall be not more than 5.00%.
6.1.d. All applications for the registration of tobacco fertilizer shall show the maximum percent of chlorine and this information may also be shown on the label.
6.2. Pesticides in fertilizers.
6.2.a. Only pesticides which have prior approval by the United States Environmental Protection Agency and the West Virginia Commissioner of Agriculture may be incorporated into fertilizers.
6.2.b. Directions for proper use shall be shown on the label.
6.2.c. The amount of pesticide present in a fertilizer when used according to directions shall be in a quantity that provides adequate amounts of pesticide to control the pest or pests for which it applies, but shall not be in excessive amounts which would present a hazard to plant life, animals, humans, aquatic life, soil or water when used according to directions.
6.3. Specialty Fertilizer Claims
6.3.a. When claims are made for qualities other than for plant foods and pesticides in specialty fertilizers, experimental evidence shall be submitted with the application for registration substantiating the claim and if requested, a method of analysis to determine the quality claimed shall also be submitted with the application for registration.
6.4. Requirements for 18% or less plant food.
6.4.a. Each application for registration of a mixed fertilizer which has a total of eighteen percent (18%) or less plant food shall show the percentage of nitrogen derived from water insoluble form of plant or animal origin, and the percentage shall be stated on the label.
W. Va. Code R. § 61-6-7 Safe Use of Regulated Product
7.1. The consumer shall use all regulated products in a safe manner which follows any written label directions the manufacturer establishes, and which will prevent the products from becoming injurious to beneficial plant life, animals, humans, aquatic life, soil or water.
7.2. The use of the regulated products shall conform to the provisions of The Clean Water Act, approved Nutrient Management Plans, General Groundwater Protection Rules For Fertilizer And Manures, Best Management Practices For Fertilizer And Manures, and other provisions as established by state or federal laws.
7.3. All provisions of the West Virginia Primary and Secondary Containment of Fertilizers Rule 61CSR6B shall be followed by all persons storing dry and/or fluid fertilizer at their storage facility. §61-6- 8. Methods Of Analysis And Publication Of Results.
8.1. The Commissioner shall use methods of analysis approved by the Association of Official Analytical Chemists, AOAC International. When no official method has been published by AOAC International, the method of analysis shall be one approved by the Commissioner.
8.2. When the Commissioner finds a fertilizer to be deficient and subject to penalty, he or she shall notify the registrant of the deficiency ten (10) days prior to reporting the results to other levels of distribution or use.
8.3. The Commissioner shall, at least annually, publish a summary of the results of sampling and analysis of commercial fertilizers sold in this state and may include data relating to volume and use.
W. Va. Code R. § 61-6-9 Sampling, Analysis Investigational Allowances And Index Value
9.1. The commissioner shall use investigational allowances and overall index values as printed in the current publication of the Association of American Plant Food Control Officials in determining fertilizer deficiencies and overall index value. A commercial fertilizer shall be considered deficient if the analysis of any nutrient is below the guarantee by an amount exceeding the values in the following schedule, or if the overall index value of the fertilizer is below 98%.
Guarantee, percent Nitrogen (N)
Avail. Phosphate (P2O5)
Sol. Potash (K2O)
Investigational Allowance, percent 04 or less
0.49
0.67
0.41
0.51
0.67
0.43
0.52
0.67
0.47
0.54
0.68
0.53
0.55
0.68
0.60
0.57
0.68
0.65
0.58
0.69
0.70
0.61
0.69
0.79
0.63
0.70
0.87
0.67
0.70
0.94
0.70
0.71
1.01
0.73
0.72
1.08
0.75
0.72
1.15
0.78
0.73
1.21
0.81
0.73
1.27
0.83
0.74
1.33
0.86
0.75
1.39 32 or more [*]
0.88
0.76
1.44 [*For DAP and MAP the investigational Allowance for Available Phosphate shall be: 0.70; For TSP the Investigational Allowance shall be: 1.53]
For guarantees not listed, calculate the appropriate value by interpolation.
The overall index value is calculated by comparing the commercial value guaranteed with the commercial value found. The values for commercial fertilizer nutrients are derived from the average retail value from a state-wide survey of bulk fertilizer blenders.
Secondary and minor elements shall be considered deficient if any element is below the guarantee by an amount exceeding the values in the following schedule:
Element Investigational Allowance Calcium ) 0.2 unit + 5% of guarantee Magnesium ) 0.2 unit + 5% of guarantee Sulfur ) 0.2 unit + 5% of guarantee Boron ) 0.003 unit + 15% of guarantee Cobalt ) 0.0001 unit + 30% of guarantee Chlorine ) 0.005 unit + 10% of guarantee Copper ) 0.005 unit + 10% of guarantee Iron ) 0.005 unit + 10% of guarantee Manganese ) 0.005 unit + 10% of guarantee Molybdenum ) 0.0001unit + 30% of guarantee Sodium ) 0.005 unit + 10% of guarantee Zinc ) 0.005 unit + 10% of guarantee The maximum allowance when calculated in accordance to the above shall be 1 unit (1%).
9.2. The methods of collecting samples and analysis shall be those methods recommended by the Association of American Plant Food Control Officials and the AOAC International respectively.
W. Va. Code R. § 61-6-10 Methods For Determining Deficiencies For Soil Amendments and Horticultural Growing Media
10.1. For the purpose of determining commercial values to be applied under the provisions of this section, the commissioner shall determine from the registrant’s sales invoice the values charged for the soil amending ingredients. If no invoice is available or if the invoice fails to provide sufficient information the commissioner may use other methods to determine values. The determined values shall be used in determining and assessing penalties.
10.2. The Commissioner shall penalize the registrant for any deficiencies beyond investigational allowances according to the schedule as published in the AAPFCO Official Publication.
W. Va. Code R. § 61-6-11 Deficiency Penalties
11.1. Penalty for nitrogen, available phosphate and soluble potash. -- If the analysis shows that a fertilizer is deficient in one or more of its guaranteed primary plant nutrients (N-P-K) beyond the "investigational allowances" as established by this rule, or if the overall index value of the fertilizer is below the level established by rule, the Commissioner shall assess a penalty of three times the commercial value of the deficiency.
11.2. Penalty for soil amendment. If the analysis shows that any soil amendment falls short of the guaranteed analysis in any one soil amending ingredient or in total soil amending ingredients, the Commissioner shall assess a penalty. A penalty of three times the value of the total soil amending ingredient deficiency shall be assessed when the total deficiency is more than 2% under the calculated total soil amending ingredient guarantee.
11.3. Penalty for secondary and minor elements. If the analysis shows that any secondary and minor element falls short of the guaranteed analysis in one or more secondary and minor elements, the Commissioner shall assess a penalty. A penalty of three times the value of the total secondary and minor element deficiency shall be assessed when the total deficiency exceeds investigational allowances as established by this rule.
11.4. Penalty for excessive chlorine in tobacco fertilizers. If the analysis shows chlorine exceeds the guaranteed analysis, the Commissioner shall assess a penalty of three times the value of the chlorine excess when the excess exceeds investigational allowances as established by this rule.
W. Va. Code R. § 61-6-12 Commercial Value
12.1. For the purpose of determining the commercial values to be applied under the provisions of this section of this rule, the commissioner shall determine and publish annually the values per unit of nitrogen, available phosphate and soluble potash in fertilizers in this state.
12.2. The value per pound of nitrogen, available phosphate and soluble potash for specialty fertilizers shall be based upon the retail price of the fertilizer. The relative value of nitrogen, phosphoric acid and potash shall be in the following ratio:
Nitrogen (water soluble) 2 Nitrogen (water insoluble) 6 Phosphoric Acid 1 Potash 1
12.3. The commissioner shall determine from the registrant’s sales invoice the values charged for the soil amending ingredients. If no invoice is available or if the invoice fails to provide sufficient information the commissioner may use other methods to determine values. The determined and published value shall be used in determining and assessing penalty payments.
12.4. When a manufacturer wishes to return to his or her plant a lot of regulated product which has been found deficient, the manufacturer shall, within thirty (30) days of the notice of deficiency, give written notice to the Commissioner to that effect, and shall furnish the Commissioner with reasonable evidence that the regulated product was returned to the plant.
W. Va. Code R. § 61-6-13 Hearings, Penalties and Prosecutions
13.1. Any person, registrant, distributor, or possessor from whom a violative sample was collected has the right to a hearing within fifteen (15) days from the date of receipt of certified mail of the sample report.
13.2. Criminal penalties. – Any person violating any of the provisions of this rule is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than two hundred dollars for the first offense, and for each subsequent offense, shall be fined not less than two hundred nor more than five hundred 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.
13.3. Not withstanding 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.
13.4. Nothing in this rule 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.
13.5. 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.
APPENDIX NUMBER 1
FEES OF THIS RULE
TYPE OF FEE
SECTION REFERENCE
FEE DESCRIPTION
Fertilizer Registration
3.1 $ 4.00 Per brand & grade; bulk, or packages >10# Fertilizer Registration
3.1 $30.00 Per brand & grade; packages 10# or less Soil Amendment Registration
3.2 $75.00 Per brand Compost Registration
3.2 $75.00 Per brand Horticultural Growing Media Registration
3.2 $75.00 Per brand Fertilizer Formulation Permit
3.3 $35.00 Per year & location Late Registration Penalty Fee
3.4 $100.00 Per year and in addition to registration fee Fertilizer Inspection Fee
3.6 $ 0.40 Per ton per quarter; bulk, or packages >10# Fertilizer Inspection Fee
3.6 $ 15.00 Per brand & grade;
Packages 10# or less Late Tonnage Report/Inspection Fee Collection Fee
3.6.a 10% Additional to Inspection Fee Short In Weight
3.7 4 times Value of shortage 61CSR6 61CSR6
Series 06A West Virginia Agricultural Liming Materials Law Regulations
W. Va. Code R. § 61-6A-1 General
1.1. Scope. -- This legislative rule establishes values for neutralizing qualities and fineness, define deficiencies and establish tolerances, set standards for neutralizing qualities and fineness and establish methods for assessing penalties.
1.2. Authority. -- W. Va. Code §19-15A-1 et seq.
1.3. Filing Date. -- April 9, 2007.
1.4. Effective Date. -- July 1, 2007.
W. Va. Code R. § 61-6A-2 Calcium Carbonate Equivalent Standards
2.1. The minimum calcium carbonate equivalent standards for the following types of agricultural liming materials shall be for:
2.1.1. Burnt Lime: Not less than 140%.
2.1.2. Hydrated Lime: Not less than 110%.
2.1.3. Marl: Not less than 80%.
2.1.4. Limestone: Not less than 80%.
2.1.5. Slag: Not less than 80%.
2.1.6. Shells: Not less than 80%.
W. Va. Code R. § 61-6A-3 Fineness Standards
3.1. The minimum sieve size standards for agricultural liming materials shall be:
3.1.1. Pulverized.
3.1.1.a. 100% passing a US Standard 20 Mesh Sieve.
3.1.1.b. 70% passing a US Standard 100 Mesh Sieve.
3.1.2. Ground.
3.1.2.a. 90% passing a US Standard 20 Mesh Sieve.
3.1.2.b. 50% passing a US Standard 60 Mesh Sieve.
3.1.2.c. 35% passing a US Standard 100 Mesh Sieve.
3.1.3. Coarse Ground.
3.1.3.a. 90% passing a US Standard 10 Mesh Sieve.
3.1.3.b. 40% passing a US Standard 60 Mesh Sieve.
W. Va. Code R. § 61-6A-4 Blends
4.1. Blends are products containing a mixture of different agricultural liming materials or containing a component of agricultural liming material and fertilizer, seed, and/or inert material.
4.2. Blends of agricultural liming materials shall be considered as products requiring separate registration under their own brand name.
4.3. Any blend claiming to have a component of agricultural liming material shall comply with the law and rules.
4.3.1. Any blend shall be labeled as to the total percentage of agricultural liming materials in addition to the labeling requirements of the law set forth in W. Va. Code §19-15A-3.
W. Va. Code R. § 61-6A-5 Low-grade Agricultural Liming Materials
5.1. Low-grade liming materials are agricultural liming materials that do not meet the standards set in Subsections 2.1 and 3.1 of this rule but still have value as a product to neutralize soil acidity.
5.2. The Commissioner may accept registration of agricultural liming materials that do not meet the minimum calcium carbonate equivalent and/or minimum fineness classification standards set by Sections 2 and 3 of this rule. The Commissioner shall consider the chemical and fineness components of the low-grade agricultural liming material when reviewing the application for registration.
5.3. Labels of low-grade agricultural liming materials shall meet all the requirements of the W. Va. Code §19-15A-1 et. seq. and shall include the following additional statement:
5.3.1. The words "Low-grade Liming Material" placed prominently at the top of the label,
5.3.2. The words "Does not meet the minimum standard for calcium carbonate equivalent" where applicable; and
5.3.3. The words "Does not meet the minimum standard for fineness classification" where applicable.
5.4. If the low-grade agricultural liming material does not meet the minimum fineness classification for coarse ground, then the fineness classification shall be designated as "Very coarse ground".
W. Va. Code R. § 61-6A-6 Labels
6.1. Labels of all agricultural liming materials shall accompany the application for registration.
6.2. The commissioner may not accept a registration if the label for the agricultural liming material conflicts with the information on the application for registration.
6.3. No agricultural liming materials shall be used, sold, or offered for sale if the label differs in any respect from the label submitted with the application for registration.
W. Va. Code R. § 61-6A-7 Registration
7.1. Any changes permitted in the guaranteed analysis for calcium carbonate equivalent or fineness classification for a registered product requires a new registration.
7.2. The registrant of each agricultural liming material shall register each product before it its sold, offered for sale, or exposed for sale in the state. The application for registration shall be accompanied by the fee listed in Appendix Number 1- Fees of this Rule.
7.3. The commissioner shall collect a registration fee from all distributors of agricultural liming materials. The application for registration shall be accompanied by the fee listed in Appendix Number 1- Fees of this Rule.
W. Va. Code R. § 61-6A-8 Inspection Fee; Report Tonnage; Annual Report
8.1. The registrant of agricultural liming materials shall pay to the commissioner the inspection fee listed in Appendix Number 1- Fees of this Rule. If the tonnage, or portion thereof, has been paid by another person; documentation by invoice must accompany the report.
8.2. The commissioner shall assess a penalty to a registrant or distributor whose report is not received by the fifteenth day of August and the fifteenth day of February each calendar year as listed in Appendix Number 1- Fees of this Rule.
W. Va. Code R. § 61-6A-9 Deficiency Assessment, Tolerances, and Payment
9.1. When the calcium carbonate equivalent is found to be over five percent deficient from the stated guarantee, the registrant shall pay a deficiency assessment equal to two times the actual cash value of the deficiency based on the retail price per ton at the distribution point where the official sample was collected. The cash value of the deficiency is calculated by multiplying the actual percent deficiency, less the five percent taken, times the retail price per ton, times the tons in the lot sampled. The minimum assessed penalty is listed in Appendix Number 1- Fees of this Rule.
9.2. When the product is found to be over five percent deficient from the stated guarantee in one or more of the guarantees for fineness, a penalty shall be paid as listed in Appendix Number 1- Fees of this Rule.
9.3. When the product is found to be over ten percent deficient from the stated guarantee for one or more of the following guarantees: Calcium oxide, magnesium oxide, calcium carbonate, magnesium carbonate, a penalty shall be paid as listed in Appendix Number 1- Fees of this Rule.
9.4. If any deficiency assessment has not been paid within sixty days of the notice of the assessment, then a late payment penalty shall be paid as listed in Appendix Number 1- Fees of this Rule.
APPENDIX NUMBER 1
FEES OF THIS RULE
Type of Fee
Section Fee Description Reference Agricultural Liming
7.2 $50 Per Product Registered Material Distributor's Permit
7.3 $25 Per Distributor Inspection Fee
8.1 $0.25 Per ton Distributed Minimum Semi-
8.1 $10 Waived if total is Annual Payment less than $2 Late Tonnage Report
8.2 $100 or 10% of fees whichever is greater In addition to Inspection Fee Collection Fee CCE Greater than 5%
9.1 Twice the cash Retail Price per ton, Deficiency Penalty value of deficiency twice value of shortage or minimum of $0.50 per ton Fineness Standards greater than 5% in one
9.2 $1 per ton Per ton in lot sampled or more standards Over 10% deficient in one or more of
9.3 $1 per ton Per ton in lot sampled CaO, CaCO3, MgO, MgCO3 Late Deficiency 10% of Payment
9.4 original deficiency Each 180 days unpaid 61CSR6A 61CSR6A
Series 06B Primary And Secondary Containment Of Fertilizers
W. Va. Code R. § 61-6B-1 General
1.1. Scope. -- These rules establish primary and secondary containment standards for fertilizers for the purpose of protecting the groundwater resources of the state of West Virginia.
1.2. Authority. -- W. Va. Code '22-12-5(c).
1.3. Filing Date. -- June 24,1993.
1.4. Effective Date. -- July 1, 1993.
1.5. This is a new legislative rule.
W. Va. Code R. § 61-6B-2 Definitions
2.1. "Abandoned container" means a storage container or other container used at a storage facility to hold fluid bulk fertilizer or fertilizer rinsate that has been out of service for more than six (6) months because of a weakness or leak, or has been out of service for any reason for more than two (2) years and no integrity test has been performed.
2.2. "Approved" means approval by the commissioner except where otherwise stated.
2.3. "Aqua ammonia" means an aqueous solution of anhydrous ammonia generally containing from eighteen (18%) to thirty (30%) percent of ammonia (NH3) by weight and having a vapor pressure usually varying from 0 to 10 psig at 104 degrees F.
2.4. "Commissioner" means the Commissioner of the West Virginia Department of Agriculture or his appointed agent.
2.5. "Discharge" means a release outside the secondary containment area of fluid fertilizer in a quantity exceeding fifty-five (55) U.S. gallons and/or of dry bulk fertilizer in a quantity exceeding two hundred (200) pounds, unless otherwise specified in The Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 9601, Title III Emergency Planning and Community Right-to-Know provisions. The term discharge does not include the normal loading and transportation of fertilizers from the facility or the lawful distribution use, disposal or application of fertilizers.
2.6. "Dry bulk fertilizer" means nonfluid fertilizer in nonpackaged form.
2.7. "Elephant ring" means a storage container with open top serving as a secondary containment vessel into which a smaller primary storage container(s) is placed.
2.8. "Fertilizer" means any substance containing one or more recognized plant nutrients which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes, gypsum and other products exempted by regulation of the commissioner.
2.9. "Field operations" means the application of fertilizer to soil or plants in the course of normal agricultural or horticultural practice.
2.10. "Fluid bulk fertilizer" means fluid fertilizer in an undivided quantity exceeding fifty-five (55) gallons.
2.11. "Fluid fertilizer" means fertilizer in fluid form, and includes solutions, emulsions, suspensions and slurries. "Fluid fertilizer" does not include anhydrous ammonia.
2.12. "Load or loading" means the transfer of bulk fertilizer from the storage facility to transport vehicles, application equipment, or mobile containers, unless the use of the word in the context means otherwise.
2.13. "Low pressure nitrogen solutions" means an aqueous solution of ammonium nitrate and/or urea and/or other nitrogen carriers, containing various quantities of free ammonia exceeding two percent (2%) by weight. Aqua ammonia and non-pressure nitrogen solutions commonly referred to as twenty-eight (28%),thirty (30%), or thirty-two (32%) percent nitrogen solutions are excluded from this definition.
2.14. "Operational area" means an area or areas at a fertilizer storage facility where fertilizers are transferred, loaded, unloaded, mixed, or where fertilizers are cleaned or washed from application equipment, storage containers, or transportation equipment.
2.15. "Operational area containment" means any structure or system designed and constructed to intercept and contain operational spills, including container or equipment wash water and rainwater, and to prevent runoff or leaching from a storage facility.
2.16. "Operator" means any person who is responsible for the transferring, loading, unloading, mixing and/or storing of fertilizers and may include an owner, operator or manager.
2.17. "Person" means an individual, partnership, association, firm or corporation.
2.18. "Primary containment" means the storage of fluid or dry bulk fertilizer in storage containers at a storage facility.
2.19. "Roofed" means protected from precipitation and any subsequent drainage.
2.20. "Secondary containment" means any structure used to contain product spills from primary storage containers and prevent runoff or leaching.
2.21. "Storage container" means:
2.21.1. a container used for the storage of fluid or dry bulk fertilizer; or
2.21.2. a rail car, nurse tank, or other mobile container used for the storage of fluid bulk or dry fertilizer; but does not include a. a mobile container storing fluid bulk or dry fertilizer at a storage facility for less than fifteen (15) days, if this storage is incidental to the loading or unloading of a storage container at the storage facility, b. a mobile container located on property not owned, operated or controlled by an operator of a storage facility, nor c. a container used solely for short-term emergency storage of leaking fertilizer containers.
2.22. "Storage facility" means a location at which fluid bulk fertilizer in undivided quantities in excess of five thousand (5,000) U.S. gallons or dry bulk fertilizer in undivided quantities exceeding twenty five (25) tons is held in storage where the total quantity of the product at the firm may be divided into more than one storage container and still be considered "undivided"; and where that storage occurs for more than a total of thirty (30) days during a twelve (12) month period.
2.23. "Unload or unloading" means the transfer of bulk fertilizer in an unaltered state from the transport vehicle to the storage facility.
W. Va. Code R. § 61-6B-3 General program and policy
3.1. Every operator of a storage facility should utilize the services of a competent engineer for planning any construction or alterations to their operational area and that the publications "Environmental Handbook for Fertilizer and Agrichemical Dealers" published by the Tennessee Valley Authority, TVA Technical Library, P.O.Box 1010, Muscle Shoals, AL 35660-1010 and "Designing Facilities for Pesticide and Fertilizer Containment" published by Midwest Plan Service, 122 Davidson Hall, Iowa State University, Ames, Iowa 50011-3080 be used to assist in the development of the planning and construction of operational areas.
3.2. Every operator of a storage facility should remove or mitigate existing contamination under the site of the proposed operational area that has the potential to contaminate groundwater prior to any construction or alteration to the operational area.
3.3. The operator shall be responsible for maintenance of the operational area to comply with these rules and in a manner adequate to minimize the risk of a discharge.
W. Va. Code R. § 61-6B-4 Powers and duties of the commissioner
4.1. The commissioner:
4.1.1. may enter and inspect, during reasonable hours, any location where fertilizers are, or may be, stored in such quantities so as to come under these rules;
4.1.2. may take samples to determine compliance with these rules;
4.1.3. shall review design plans where appropriate to determine compliance with these rules;
4.1.4. may audit records of shipments of fertilizers, inspections, and maintenance;
4.1.5. shall promote the protection of groundwater through educational programs for operators;
4.1.6. shall collect and expend monies under the terms of this rule;
4.1.7. shall issue permits or deny permit applications;
4.1.8. may conduct hearings, assess civil administrative penalties, seek injunctive relief or issue orders in accordance with W. Va. Code '22-12-10.
4.1.9. shall promulgate additional regulations as necessary to protect groundwater within the statutory mandates that may include but not limited to licensing and certification, operational management, closure, remediation and monitoring for water quality.
W. Va. Code R. § 61-6B-5 Permits and Design Plans
5.1. All operators of a storage facility shall obtain and post a valid Fertilizer Storage Facility Permit prominently at the local office of the storage facility. One permit may apply to a storage facility that stores both dry bulk and fluid fertilizer.
5.2. Prior to the construction of primary or secondary storage, all persons shall obtain a Fertilizer Storage Facility Permit from the commissioner. The application shall be made at least thirty (30) days prior to the beginning of construction of the facility for firms that are not in operation on the effective date of this rule or within six (6) months of the effective date of this rule for any person operating a storage facility on the effective date of this rule.
5.3 Any person seeking to renew the Fertilizer Storage Facility Permit shall apply for a renewal within fifteen (15) days of the expiration date of the permit.
5.4. The commissioner shall furnish application forms containing the following information: the corporate or company name; the location; the mailing address; the phone number; the operator's name; the owner's name; and any other information relevant to the containment of bulk fertilizers.
5.5. The operator or his licensed representative shall sign and date each application under oath.
5.6. The commissioner shall issue a non-transferable Fertilizer Storage Facility Permit to each person meeting the requirements of this section. Each permit shall expire on June 30 following the date of issue.
5.7. The commissioner may deny any application for a Fertilizer Storage Facility Permit whenever the permit has been applied for fraudulently, the applicant has grossly interfered with the duties of the commissioner or the applicant is determined to be not in compliance with, or not able to comply with these rules.
5.8. The commissioner may suspend or revoke a Fertilizer Storage Facility Permit whenever the commissioner finds that a hazard to the environment exists, the permit has been obtained fraudulently, the holder has grossly interfered with the duties of the commissioner or the permit holder has been dishonest, deceitful, incompetent or has not complied with or is unable to comply with the provisions of this rule. Any person whose Fertilizer Storage Facility Permit has been suspended or revoked shall immediately discontinue all operations covered under the permit.
5.8.1. The permit holder may resume operations covered by the Fertilizer Storage Facility Permit without reapplication for a permit at the end of the suspension period.
5.8.2. The permit holder must reapply for a permit following a revocation.
5.9. All persons with Fertilizer Storage Facility Permits shall submit design plans and specifications for construction to the commissioner thirty (30) days prior to the start of construction. All persons operating a storage facility on the effective date of this rule shall (within twelve (12) months of the effective date of this rule) submit a description of the current facility and plans to bring the facility into compliance.
5.9.1. The commissioner may allow deviation from these specifications when they are clearly indicated on the design plans and a registered engineer certifies that the design plans and specifications will not reduce the effectiveness of the facility to protect groundwater.
5.9.2. The commissioner shall review all design plans and specifications and notify the person promptly when the plans do not comply with these rules. The review of these plans by the commissioner does not eliminate the responsibility of the operator for constructing and maintaining a facility that will protect the groundwater of this state.
5.10. Any person submitting design plans and specifications shall notify the commissioner promptly of any change to the design plans and specifications before proceeding with construction in accordance with the change.
W. Va. Code R. § 61-6B-6 Inspection, Maintenance and Record Keeping Requirements
6.1. The operator of the storage facility shall inspect the facility frequently enough to minimize the risk of discharge but not less than once a week during operational periods and not less than once a month during non-operational periods. The operator shall make a written record of the inspection made on the day of that inspection. All written records shall be maintained as follows:
6.1.1. a weekly record of the condition of valves for storage containers for fluid fertilizers when the containers are used for storage;
6.1.2. a weekly record of the condition of loading and unloading pads and catch basins during operational periods, or at least monthly during periods of non-use;
6.1.3. a monthly record of the fluid fertilizer levels in each storage container when in use and a comparison of the measured level versus the calculated level based on shipments in and out of the container;
6.1.4. a monthly record of the condition of primary containers and elephant rings;
6.1.5. a semi-annual inventory reconciliation, showing the amount of fluid bulk fertilizer and dry bulk fertilizer from each storage container which is lost or unaccounted for at the end of each semi-annual period; and
6.1.6. other inspection records pertaining to the condition of storage containers, appurtenances, operational area containment, and secondary containment facilities.
6.2. The operator shall take immediate action when inspections determine non-compliance with these rules, or that a greater than minimal risk of a discharge exists. The operator shall create and maintain a written record of any maintenance the same day the maintenance is performed.
6.3. The operator of a storage facility shall maintain the records required by this rule for a minimum of five (5) years at each storage facility or at the nearest local office administering the storage facility. All records required by this rule shall be produced to the commissioner within twenty-four (24) hours of any request.
W. Va. Code R. § 61-6B-7 Discharge Response Plan
7.1. The operator of a storage facility shall prepare a written Discharge Response Plan for the storage facility. The plan shall include:
7.1.1. the identity and telephone number of the persons or agencies who are to be contacted in the event of a discharge, including persons responsible for the stored fertilizer;
7.1.2. for each bulk fertilizer stored at the facility, a complete copy of the labeling required by W. Va. Code '19-15-1 et seq. (except for the net weight);
7.1.3. an identification, by location, of every storage container located at the storage facility, and the type of fertilizer stored in each storage container;
7.1.4. for each type of bulk fertilizer stored at the facility, the procedures to be used in controlling and recovering, or otherwise responding to a discharge; and
7.1.5. procedures to be followed in using or disposing of a recovered discharge.
7.2. The operator shall keep the Discharge Response Plan current at all times.
7.3. The operator shall keep a copy of the Discharge Response Plan readily available at the storage facility or at the nearest local office from which the storage facility is administered, and shall make the plan available for inspection and copying by the commissioner.
7.4. The commissioner shall require the operator of each facility existing on the effective date of this rule complete a Discharge Response Plan within two (2) years of the effective date of this rule.
W. Va. Code R. § 61-6B-8 Storage and Handling of Dry Bulk Fertilizer
8.1. All dry bulk fertilizer in undivided quantities exceeding twenty-five (25) tons shall be stored inside operational area containment structure(s) consisting of a sound structure or device having a cover or roof top, sidewalls, and a base sufficient to prevent contact with precipitation and surface waters.
8.2. Except for those procedures performed in the field of application, all persons loading, unloading, mixing or handling dry bulk fertilizer shall use a containment method, device, or structure suitable to prevent or minimize groundwater contamination. The containment method, device, or structure shall be of a size and design that contains the fertilizer and minimizes emission of dust and/or vapors beyond the facility boundaries. Any collected material shall be applied at agronomic fertilizer rates or otherwise recycled.
8.3. All operators shall promptly recover any dry bulk fertilizer which is spilled while being loaded to or from storage when the spillage would exceed a quantity greater than two hundred (200) pounds.
8.4. Containment devices, structures, or methods include, but are not limited to:
8.4.1. paving and curbing of outdoor handling areas with materials which allow for collection and recycling of the spilled products;
8.4.2. enclosing conveyors and equipping conveyors with dust control boots. Manually extendible boots may be adaptable to upright and auger type conveyors;
8.4.3. collection and recycling of product dust from rooftops of roof-filled storage structures; or
8.4.4. daily cleanup of the non-roofed areas each day when in use.
8.5. No person may store dry bulk fertilizer without a complete label, as required by W. Va. Code '19-15-1 et seq. (except for the net weight) posted on the storage container.
8.6. No person may construct an operational area for dry bulk fertilizer storage in undivided quantities exceeding twenty-five (25) tons closer than one hundred (100) feet from a wellhead, unless that operation is in use on the effective date of this rule.
8.7. No person may store dry bulk fertilizer on land with a reasonable expectation of having a flood event from a twenty-five (25) year - twenty-four (24) hour frequency storm, as defined by the National Weather Service, during the storage period unless the storage area is adequately protected from inundation by flooding.
8.8. All storage facilities for dry bulk fertilizer operating on the effective date of this rule are permitted five (5) years to fully comply with this rule as long as the operator submits a plan for full compliance with this rule within two (2) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility.
W. Va. Code R. § 61-6B-9 Primary Containment: Storage Containers and Appurtenances for Fluid Fertilizer
9.1. All fluid fertilizer shall be stored in storage containers and appurtenances that are:
9.1.1. constructed, installed and maintained to prevent the discharge of fluid fertilizer;
9.1.2. constructed of materials that are resistant to corrosion, puncture or cracking;
9.1.3. made or repaired with materials that do not react chemically or electrolytically with stored fluid fertilizer in a way which may weaken the storage container or appurtenances, or create a risk of discharge;
9.1.4. made with metals used for valves, fittings and repairs on metal containers that are compatible with the metals used in the construction of the storage container, so that the combination of metals does not cause or increase corrosion which may weaken the storage container or its appurtenances, or create a risk of discharge;
9.1.5. equipped with supports for pipes and fittings that are adequate to prevent sagging and breakage in the ordinary course of operations;
9.1.6. are protected against the risk of damage by trucks and other moving vehicles while loading or unloading fluid bulk fertilizer;
9.1.7. designed to handle all operating stresses including static head, pressure buildup from pumps and compressors, and any other mechanical stresses to which the storage containers and appurtenances may be subject;
9.1.8. anchored to prevent flotation or instability caused by liquid accumulations within a secondary containment facility; and
9.1.9. equipped with a liquid level gauging device which shall be secured in a manner to protect against breakage or vandalism whereby the level of fluid in the storage container can be readily and safely determined;
a. this gauge is not required when the level of fluid in a storage container can be readily and reliably measured by another equally reliable and readily accessible means;
b. this gauge may be an external sight gauge only when the gauge is securely attached against the container wall and provided with a manually operated shut off valve which is locked in the shut off position when the level of fluid is not being determined.
9.2. No person may store fluid fertilizer in an underground or lined pit storage container, except for:
9.2.1. a watertight catch basin used for the temporary collection of runoff or rinsate from transfer, loading and unloading areas, and expeditiously emptied following use;or
9.2.2. a 316 or 317 stainless steel storage container; or
9.2.3. in another container approved by the commissioner prior to it's initial use, if the storage container is enclosed within an approved liner and an approved program of groundwater monitoring to detect leakage is established.
9.3. No person may store fertilizer in storage containers and appurtenances
9.3.1. that are constructed of copper, brass, zinc, or copper base alloys;
9.3.2. used for the storage of fluid fertilizers containing phosphates (>0.1%) or chlorides that are constructed of aluminum or aluminum alloys;
9.3.3. used for the storage of low ph (<5) fluid fertilizers that are constructed of ferrous materials other than stainless steel except when the materials are coated or treated with protective substances which are adequate to inhibit corrosion;
9.3.4. used for the storage of low pressure nitrogen solutions that are constructed of mild steel, fiberglass, polyolefins or plastic;
9.3.5. used for the storage of phosphoric acid that are constructed of ferrous materials other than 316 or 317 (or superior) stainless steel except when container is lined with a suitable substance to prevent corrosion; or
9.3.6. used for the storage of fluid fertilizers containing potassium chloride (muriate of potash) that are constructed of ferrous materials other than stainless steel, except when:
a. the containers and appurtenances are coated or treated with protective substances that inhibit corrosion; or b. the container or appurtenance is used for storage periods of not more than six (6) months, is completely emptied between storage periods, and is cleaned and inspected for leaks prior to being refilled for any subsequent period.
9.4. All fluid fertilizers shall be stored such that:
9.4.1. storage containers and appurtenances are fenced or otherwise secured to provide protection from wildlife, vandalism and unauthorized access which may result in a discharge;
9.4.2. valves on storage containers containing fluid fertilizers are locked or otherwise secured except when persons responsible for facility security are present at the facility; and
9.4.3. valves on rail cars, nurse tanks, and other mobile fertilizer containers containing fluid fertilizer parked overnight at a storage facility are locked or secured except when persons responsible for facility security are present at the facility.
9.5. No person may fill storage containers beyond the capacity for which they are designed, taking into account the density of the fluid being stored and thermal expansion during storage.
9.6. No person may store fluid fertilizer in a storage container without a clear and prominent label identifying the contents of the storage container with the requirements of W. Va. Code '19-15-1 et seq. (except for the net weight).
9.7. No person may store fluid fertilizers on land that has a reasonable expectation of having a flood event resulting from a twenty-five (25) year - twenty-four (24) hour frequency storm, as defined by the National Weather Service, during the storage period unless the storage area is adequately protected from inundation by flooding.
9.8. No person may construct an operational area for fluid fertilizers closer than one hundred (100) feet from a wellhead, unless that operation is in use on the effective date of this rule.
9.9. Any person owning an abandoned underground container, or abandoned underground catch basin shall thoroughly clean and remove it from the ground or thoroughly clean and fill it with an inert solid and shall maintain a permanent record of size, location, and method of closing at the storage facility or at the nearest office from which the storage facility is administered.
9.10. Any person owning an abandoned container or abandoned catch basin, whether underground or not, shall disconnect and seal all connections and vents and secure all hatches and sever and/or seal all valves and connections.
9.11. A secondary containment facility is not abandoned merely because there have been no operational spills into the secondary containment facility.
9.12. All facilities that are in operation on the effective date of this rule shall be permitted three (3) years to fully comply with this section of the rule when the operator submits a plan for full compliance with this section of the rule within two (2) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility.
W. Va. Code R. § 61-6B-10 Operational Area Containment for Fluid Fertilizer
10.1. All fluid fertilizer shall be stored such that all loading and unloading of fluid bulk fertilizer shall be on an area which is curbed and paved with asphalt or concrete. The curbed and paved area shall provide an impervious surface and
10.1.1. be of sufficient size to hold the entire mobile container during loading and unloading; and
10.1.2. be designed, constructed and maintained to handle all loading conditions to which it is exposed; and
10.1.3. be maintained by keeping all cracks and seams sealed and be impervious to leakage from any spillage.
10.2. Materials other than asphalt and concrete may be used only after they have been approved by the commissioner.
10.3. This section shall not apply to mobile containers used to nurse field operations when at a field unloading site.
10.4. All operational area containments shall have a curbed and paved surface that drains into a liquid-tight catch basin
10.4.1. that is of adequate design and size to contain a minimum of one thousand five hundred (1,500) gallons of an operational spill when at least one person is available during the entire loading and unloading process that is capable of stopping the loading or unloading process in the case of an operational spill; when no person is available to monitor the loading and unloading, the design and size shall be adequate to contain a total of one hundred ten percent (110%) of the volume of the largest vehicle to be loaded or unloaded; and
10.4.2. which may include a sump and an above-ground container, only when a pump is installed for transfers of the contents into the above-ground container.
10.5. All operators shall promptly recover any operational spill from the operational area containment so that the capacity required in this section is available at all times.
10.6. All operators shall maintain the operational containment area free of debris and foreign matter.
10.7. All facilities that are in operation on the effective date of this rule shall be permitted three (3) years to fully comply with this section of the rule as long as the operator submits a plan for full compliance with this section of the rule within two (2) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility.
W. Va. Code R. § 61-6B-11 Secondary Containment of Fluid Bulk Fertilizer - Dikes and Elephant Rings
11.1. All primary storage of fluid bulk fertilizers shall be located within a diked area constructed with a base, perimeter wall and sloped floor drain or within an elephant ring as provided by this section.
11.2. No person may use the diked area for storage of products other than fluid bulk fertilizers and equipment used in the operational area. Adjoining secondary containment areas may share common walls.
11.3. All operators must maintain the minimum capacity requirement at all times. The minimum capacity requirement for the diked area for containment shall contain, below the height of the dike, one hundred twenty-five percent (125%) of the volume of the largest storage container within the diked area plus the submerged portions of all other storage containers, fixtures, and materials in the area. (The minimum capacity when the diked area is covered to prevent the accumulation of rainfall is a capacity equal to 100% of the volume of the largest container.)
11.4. Except where used as a method of monitoring the integrity of a secondary containment system, drainage tile within or underlying the area to be diked shall be eliminated.
11.5. All dikes providing secondary containment shall meet the following requirements:
11.5.1. the walls of a secondary containment facility shall be constructed of earth, steel, concrete or solid masonry, or other material specifically approved by the commissioner, and be designed to withstand a full hydrostatic head of any discharged fluid and weight load of material used in construction;
11.5.2. cracks and seams shall be sealed to prevent leakage;
11.5.3. walls constructed of earth or other permeable materials shall be lined as provided in this section;
11.5.4. earthen walls shall have a horizontal-to-vertical slope of at least three (3) to one (1), unless a steeper slope is consistent with good engineering practice, and shall be packed and protected from erosion;
11.5.5. the top of earthen walls shall be no less than two and one half (2.5) feet wide;
11.5.6. walls may exceed 6 (six) feet in height above interior grade only when provisions are made for normal access and necessary emergency access to tanks, valves and other equipment, and for safe exit from the secondary containment facility;
11.5.7. walls constructed of concrete or solid masonry shall rest upon a floating base of concrete prepared as in this section or upon suitable concrete footings which extend below the average frost depth to provide structural integrity;
11.5.8. the base of a secondary containment facility, and any earthen walls of the facility shall be lined with asphalt, concrete, an approved synthetic liner, or a clay soil liner designed to limit permeability of the base and walls. Liners shall meet the following requirements.
a. Asphalt or concrete liners shall be designed to withstand any loading conditions, including a full hydrostatic head of discharged fluid and static loads of storage containers, including appurtenances, equipment, and contents. Cracks and seams shall be sealed to prevent leakage.
b. Synthetic liners and installation plans shall be approved by the commissioner. All requests for approval shall include a written confirmation from the manufacturer of suitability including compatibility with the stored materials, and a written estimate of the life of the liner. Synthetic liners shall have a minimum thickness of thirty (30) mils (0.8 millimeters); and shall be installed under the supervision of a qualified representative of the manufacturer or a professional engineer. All field constructed seams shall be tested, and repaired if necessary, in accordance with the manufacturer's recommendations.
c. Soil liners shall be constructed by sealing the surface of the soil, including the berm of an earthen dike with a sealing agent such as sodium bentonite, attapulgite or a similar clay material. The soil liner shall be constructed in accordance with civil engineering practices, to achieve a coefficient of permeability not to exceed 1.0 x 10-6 cm/sec, with a thickness of not less than six (6) inches. The floor of the containment area within the soil liner shall be protected with a layer of gravel or crushed stone at least six (6) inches thick placed on top of the clay liner.
11.6. A liner need not be installed directly under a storage container having a capacity of one hundred thousand (100,000) U.S. gallons or more which has been constructed on site and put into use prior to the effective date of this rule when an official of the company which owns the storage container certifies in writing to the commissioner that one of the following alternative procedures has been complied with.
11.6.1. Alternative 1: The original bottom of the storage container shall be tested for leaks before the sand layer and second bottom are installed. A second bottom made of steel shall be constructed for the storage container. The second bottom shall be placed over the original bottom and a layer of smooth, fine gravel or coarse sand having a minimum thickness of three (3) inches. The newly constructed bottom shall be tested for leaks before any fluid fertilizer is stored on the newly constructed bottom. A record of all tests shall be filed at the storage facility, or at the nearest local office from which the storage facility is administered.
11.6.2. Alternative 2: The container shall be emptied, cleaned, and tested for leaks. The walls and floor of the container shall be tested to assure that welds and thickness of steel plates are sound and adequate to contain the fertilizers. A record of the inspection, test results, and of any repairs made shall be submitted to the control official and maintained by the operator. The interior floor and wall areas of the container shall be coated with a liner to inhibit corrosion. A record of this procedure shall be submitted to the commissioner and maintained by the operator. A test for leaks and liner deterioration shall be conducted every five (5) years thereafter. A record of the test findings and of indicated repairs and maintenance shall be maintained by the operator.
11.6.3. Alternative 3: Monitoring devices shall be installed in angled borings under each tank. These monitoring devices shall constitute a leak detection system for each tank in advance of the point at which any leak would reach groundwater. The number, length, and depth of each boring shall be determined on the basis of site characteristics. The array of monitoring devices under each tank shall constitute the best practical early warning detection system for tank leakage. Each monitoring plan under this alternative shall be implemented only upon review and approval of the commissioner.
11.7. Rail cars that are periodically moved into and out of the storage facility shall not be required to have secondary containment structures.
11.8. Individual storage containers not exceeding three thousand (3,000) gallons may be contained within an "elephant ring" in lieu of a diked secondary containment area only when:
11.8.1. both the primary storage container and the elephant ring are fabricated of material compatible with each other and with the fertilizer being stored;
11.8.2. provisions are made to prevent corrosion when dissimilar metals are used that may contribute to electrolytic corrosion between the primary storage container and the elephant ring;
11.8.3. the height of the elephant ring wall does not exceed four (4) feet unless provisions are made for escape should flooding occur;
11.8.4. the volume contained within the secondary storage walls of the elephant ring up to the working height of the elephant ring is sufficient to contain a volume fifteen percent (15%) greater than the volume contained in the primary storage container plus the volume displaced by the footings of any equipment (i.e. pumps, meters, etc.) placed within the secondary containment vessel;
11.8.5. the elephant ring is maintained free of leaks and structural defects at all times;
11.8.6. the base is protected from corrosion, both from inside and outside the ring, and is underlain by a concrete pad or with eight (8) inches of compacted gravel beneath four inches of compacted sand, or clay, or as recommended by the manufacturer of the elephant ring and approved by the commissioner;
11.8.7. all piping connections to the primary storage container are made over the wall of the elephant ring and are adequately supported and braced;
11.8.8. there is a sump pump within the elephant ring or an exterior portable pump available for removing operational discharges; and
11.8.9. pumps and other fixtures, if located within the elephant ring containment structure, are placed on an elevated platform above the top of the elephant ring or otherwise protected from flooding.
11.9. All facilities that are in operation on the effective date of this rule shall be permitted three (3) years to fully comply with this section of the rule as long as the operator submits a plan for full compliance with this section of the rule within two (2) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility.
W. Va. Code R. § 61-6B-12 Drainage from Secondary Containment Areas
12.1. No person may operate a diked secondary containment area with a relief outlet and valve.
12.2. All diked earthen or prefabricated secondary containment areas shall have a base that slopes to a collecting spot where storm water can be discharged by a manually-operated pump over the berm for use in the blending process or for proper disposal in accordance with local requirements for disposal of storm water.
12.3. All asphalt or concrete lined secondary containment areas shall
12.3.1. have a recessed catch drain running through the center of the base; or
12.3.2. have a sump located within the containment area, that shall have no valve plumbed into the sump unless that sump is a part of a permanent recessed catch drain as specified in this section.
12.4. Storm water or other drainage may be removed from the secondary containment area when it is used for makeup water in fertilizer mixes or disposed of in accordance with local requirements when the water is free of chemical residues that could contaminate groundwater.
12.5. No operator may use a collection tank as a storage area.
12.6. All operators shall remove operational spills from the secondary containment area promptly.
W. Va. Code R. § 61-6B-13 Hearings, penalties, orders and injunctive relief
13.1. The commissioner may conduct hearings, assess civil administrative penalties, seek injunctive relief and issue orders in accordance with W. Va. Code ''22-12-10 and 22-12-11.
W. Va. Code R. § 61-6B-14 Special revenue account and Groundwater remediation fund
14.1. All monies 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 '22-12-10a or any civil administrative penalties collected pursuant to W. Va. Code '22-12-10c will be deposited in the groundwater remediation fund established in W. Va. Code '22-12-1 et seq.
61CSR6B
Series 06D Nutrient Management Certification
W. Va. Code R. § 61-6D-1 General
1.1. Scope. -- This legislative rule describes the West Virginia Department of Agricultures certification program for persons that prepare and update nutrient management plans. When a nutrient management plan is prepared for a farm, it indicates how essential primary nutrients, that is, nitrogen, phosphorus, and potassium, are to be annually managed on farm fields for crop or forage production and for the protection of water quality. Plans contain recommendations to farmers based on expected crop yield, existing nutrient levels in the soil, organic residuals, recommend stored manures, bio-solids and compost, optimum timing and placement of nutrients, environmental protection and normal farming practices such as liming, tillage, equipment calibration and crop rotation. The Department shall certify qualified persons to prepare these plans.
1.2. Authority. -- W. Va. Code 19-15-12.
1.3. Filing Date. -- April 19, 2012.
1.4. Effective Date. -- July 1, 2012.
W. Va. Code R. § 61-6D-2 Definitions
2.1. Certified nutrient management planner means a person certified by the Department under this subtitle to prepare and update a nutrient management plan.
2.2. Field identification number means a number used by a farmer or operator to distinguish or pinpoint the location of a field or management unit on a farm.
2.3. Nutrient content means the percentage of any primary nutrients such as N (Nitrogen), P (Phosphorus), K (Potassium) and secondary nutrients such as Ca (Calcium), or Mg (Magnesium) in any type of source of plant nutrients.
2.4. Nutrient management plan or plan means a plan prepared by a certified nutrient management planner to manage the amount, form, placement, timing, and application of commercial fertilizers, animal manures, bio-solids, or other plant nutrients in order to prevent pollution and to maintain soil productivity.
2.5. Primary crop nutrient needs mean the primary nutrient requirements of a crop determined as pounds of nitrogen (N), available phosphate (P205) and soluble potash (K20) and approved liming materials required for production of a crop yield unit such as a bushel of corn or a ton of hay.
2.6. Watershed code means the USGS numeric code used by the State to identify a hydrologic unit area.
W. Va. Code R. § 61-6D-3 Certification Requirement
3.1. Unless certified by the Department, under this rule a person shall not act as a certified nutrient management planner.
W. Va. Code R. § 61-6D-4 Certification Application and Examination Requirement
4.1. To apply for the examination to be certified as a nutrient management planner, an applicant shall file the following with the Department at least thirty (30) days prior any announced examination:
4.1.a. A completed application on forms provided by the Department;
4.1.b. Proof of meeting one of the following:
4.1.b.1. Five (5) years of nutrient management practical experience working with farmers and an unrelated degree or no degree;
4.1.b.2. Three (3) years of practical experience and a two (2) year associates degree in an agricultural related field; or
4.1.b.3. One (1) year of experience and a baccalaureate degree in an agricultural related field (Agriculture or Natural Resources);
4.1.c. Current or former employers who supervised the applicants nutrient management activities shall provide verification on Department forms. Nutrient management experience will be listed as a percentage of the time the individual performed actual nutrient management activities.
W. Va. Code R. § 61-6D-5 Examination
5.1. The Department shall offer a certification examination for nutrient management planners once a year on the first Friday of February. The Department may add additional certification examination dates at its discretion. The Department shall give sixty (60) days public notice of the time and place for each examination.
5.2. The Department may provide required prepatory training or a list of study materials before any examination is given.
5.3. The Department shall allow a candidate who fails a certification examination to make application to take the exam at the next scheduled exam date.
W. Va. Code R. § 61-6D-6 Certification
6.1. The Department shall certify any person as a nutrient management planner who:
6.1.a. Meets the requirements of this rule;
6.1.b. Passes the Department certification examination.
W. Va. Code R. § 61-6D-7 Certification Renewal
7.1. The Department shall issue nutrient management certificate for two (2) years and may renew it at the end of the second year if the certificate holder meets the requirements of this section. However, the Department shall revoke a nutrient management certification after the first year if the certificate holder does not submit an annual activity report as described in 7.1.c of this section.
7.1.a. The certificate holder shall submit a renewal application on the form provided by the Department which provides proof of the satisfactory completion within the past two (2) years of at least twelve (12) hours of continuing education, workshops, or other training programs that have been pre-approved by the Department. To facilitate certificate holders to gain the twelve (12) hours of training the Department shall provide a minimum of six (6) hours continuing education training annually.
7.1.b. The certificate holder shall submit, on the form required by the Department, an annual activity report on nutrient management plans by December 31. The annual report shall include but is not limited to:
7.1.b.1. The name and certification number of the certificate holder;
7.1.b.2. The USGS 12 digit Watershed Code of the nutrient management plan;
7.1.b.3. County Name in which the nutrient management plan was written;
7.1.b.4. The number of acres in the nutrient management plan, animal units, and amount of nutrients under improved management.
W. Va. Code R. § 61-6D-8 Revocation of Nutrient Management Certification
8.1 The Department shall revoke a nutrient management certificate if the certificate holder has:
8.1.a. Not submitted the annual report required by 7.1.b of this rule;
8.1.b. Not submitted renewal form as required by 7.1.a of this rule;
8.1.c. Not met the continuing education criteria as outlined in 7.1.a of this rule;
8.1.d. Falsified any document related to the Nutrient Management Program;
8.1.e. Misrepresented certification; or
8.1.f. Violated any applicable federal or state laws and rules.
Series 07A Marketing Of Eggs Regulations
W. Va. Code R. § 61-7A-1 General
1.1. Scope. -- This rule establishes standards for internal and external egg quality, size and weight classifications for shell eggs. The intent of this legislative rule is to protect and promote the public health and general welfare and to prevent fraud and deception in the production, processing, sale and distribution of eggs.
1.2. Authority. -- W. Va. Code '19-10A-10.
1.3. Filing Date. B April 10, 2000.
1.4 -- Effective Date. -- June 1, 2000.
1.5 Incorporation by Reference. -- The following documents are incorporated in this rule by reference in their entirety.
1.5.a. United States Standards for Quality of Individual Shell Eggs and United States Consumer Grades and Weight Classes for Shell Eggs as provided for origin and destination tolerances.
W. Va. Code R. § 61-7A-2 Permits and Inspection Fees
2.1. The Department shall issue an AEgg Distributor Permit@ to every person distributing eggs in West Virginia. Permits shall be issued for each place of operation and are not transferable with respect to persons or locations. An inspection fee will be paid by the distributor or producer first delivering eggs into West Virginia or proof will be provided that the inspection fee has been paid. Certificates are renewable and shall be posted in a conspicuous location in holder=s place of business. The Commissioner may revoke or suspend the certificate of any person who fails to comply with the provisions of this rule and shall refuse to issue a certificate to willful violators.
2.2. Application for certificates shall be made on forms supplied by the Commissioner and provide any information that is considered necessary by the Commissioner. Permits shall be applied for at least thirty (30) days prior to the expiration of the current permit or within thirty (30) days of the date that the person intends to engage in business. The certificate shall expire on the thirtieth (30th) day of June following date of issue.
2.3. The annual permit fee of ten dollars ($10.00) shall accompany the application for the certificate. A penalty of ten dollars ($10.00) is added to all certificates that are not applied for or renewed within this time limit.
2.4. The Commissioner shall assess an inspection fee of $0.08 per thirty (30) dozen case to any person processing and/or distributing eggs in West Virginia. The processor or distributor shall submit a quarterly (March, June, September, December) report on forms supplied by the Commissioner. Payment of the inspection fee is due by the fifteenth (15th) day of the following respective quarter. The Commissioner shall assess a penalty of ten percent (10%) on inspection fees which are due and payable but which have not been remitted to the Commissioner within thirty (30) days following the due date. Additionally, the Commissioner shall assess a processor or distributor who is not required to pay inspection fees a ten dollar ($10.00) penalty for reports not received within thirty (30) days following the due date.
W. Va. Code R. § 61-7A-3 Exemptions For Small Producers
3.1. A small producer is any person marketing one hundred fifty (150) dozen of eggs or less per week of his or her own production. Any person marketing one hundred fifty (150) dozen or less per week of his or her own production shall register with the West Virginia Department of Agriculture on forms provided by the Commissioner but is exempt from paying permit or inspection fees as set forth in Section 2 of this rule. Small producers will label their cartons with:
3.1.a. The name and address of the responsible person or business producing and selling the eggs;
3.1.b. The date the eggs are packed; and,
3.1.c. The words AUngraded Eggs@ in print of at least five-eighths (5/8) inch .
3.2. Eggs shall be washed in an acceptable and sanitary method prior to packing.
3.3. All eggs being transported, stored or displayed for sale shall be maintained above freezing at forty five degrees Fahrenheit (451F) or less ambient temperature; Provided that, refrigeration is not required for transportation of eggs when the period of transport is less than three (3) hours.
3.4. Small producers are permitted to pack in marked cartons when the distributor=s name, address, expiration date, size and grade are marked out and replaced with the labeling required for small producers.
3.5. Cartons shall be clean and free of odor or debris.
3.6. The term Afresh@ may only be used when the eggs meet minimum requirements of Grade A or higher according to the standards set forth by the United States Department of Agriculture.
3.7. Eggs shall not be below AU. S. Consumer Grade B@.
W. Va. Code R. § 61-7A-4 Prohibited Acts
4.1. No person, firm or corporation shall sell, traffic in or deliver to the retail or consuming trade any shell eggs that are:
4.1.a. Labeled with descriptive terminology to describe eggs that have not been graded and sized according to the standards set forth by the United States Standards for Quality of Individual Shell Eggs and United States Consumer Grades and Weight Classes for Shell Eggs as provided for origin and destination tolerances.
4.1.b. No person may use descriptive terminology such as Afresh@ or represent eggs to be Afresh@ except those eggs that meet the minimum requirements of Grade A or higher according to the standards set forth by the United States Standards for Quality of Individual Shell Eggs and United States Consumer Grades and Weight Classes for Shell Eggs as provided for origin and destination tolerances.
4.2. No person, retailer or distributor shall be permitted to repack eggs.
W. Va. Code R. § 61-7A-5 Embargo Orders
5.1. An embargo may be issued when eggs offered or intended for sale do not comply with the provisions of this rule. An embargo shall specify the reason for its issuance and shall detail the character of the violation.
5.2. An embargo shall prohibit the sale, use, or transportation of eggs in any manner until the embargo is released by the Commissioner.
5.3. In order to ensure the quality of eggs in the state, the Commissioner may at his or her discretion:
5.3.a. Issue a general embargo to a distributor, processor, packer or retail outlet should eggs being marketed in West Virginia do not comply with the provisions of this rule; and
5.3.b. Order an Administrative Hearing to determine whether or not the AEgg Distributor Permit@ should be revoked.
W. Va. Code R. § 61-7A-6 Labeling Requirements
6.1. Any container or sub-container in which eggs are marketed shall label the exterior portion of the container, at a minimum, as required by W. Va. Code '19-10A-7. The following additional labeling is required:
6.2. A person may distribute, offer for sale, or sell loose eggs only if that person places a placard on or near the eggs that plainly and conspicuously displays their grade, size, name of packer or distributor and their address. The grade and size may not be abbreviated. The placard shall be of legible print in block letters not less than three eighths (3/8) inch in height. The minimum size of this placard shall be four and one half by six (4 2 x 6) inches.
6.3. Eggs that are packed for breaking plants shall be labeled according to USDA requirements.
6.4. Eggs that are packed in retail breakaway cartons that can be divided by the consumer or retailer into smaller units for the purpose of selling lesser amounts of eggs, each half or portion of the container shall list full information labeling as required in the WV Code '19-10A-7.
6.5. Egg producers who own three thousand birds or less shall denote the expiration date of the eggs on the outside container in which the egg cards are transported or on an invoice provided to the retailer.
W. Va. Code R. § 61-7A-7 Advertising
7.1. All eggs advertised or displayed for sale for human food at a given price shall designate the correct grade and size, and that designation shall also appear on the exterior of the container in which eggs are offered for sale. The grade and size designations may not be abbreviated.
7.2. Restaurants, hotels, delicatessens and other eating places using eggs below AA@ quality shall display, in a location where it can easily be seen by the customers a placard on heavy cardboard of not less than eight (8) by eleven (11) inches, stating the quality and weight of the eggs used by the establishment. In lieu of a placard the establishment may place this information on the menu.
7.3. No eggs being advertised or labeled with claims of unusual interior quality or superiority shall be sold until a statement of proof is submitted to the Commissioner and/or an inspection confirms the claim.
W. Va. Code R. § 61-7A-8 Egg Handling Facilities, Temperature and Humidity, Sanitation and Cleaning
8.1. Any person, packer, distributor, wholesaler, retailer, restaurant or institution engaged in the assembling, marketing, transporting or the processing of eggs for marketing shall:
8.1.a. Maintain the eggs above freezing at forty-five (451F) degrees Fahrenheit ambient temperature or less;
8.1.b. Maintain a relative humidity that will minimize shrinkage;
8.1.c. Store egg cartons in a clean and sanitary area, free of foreign odor;
8.1.d. Keep cartons clean and free of foreign odor and debris; and
8.1.e. Wash eggs in an acceptable and sanitary method prior to packing.
61CSR7A
Series 08 West Virginia Grades and Standards for Apples
W. Va. Code R. § 61-8-1 General
Scope. -- These legislative regulations establish West Virginia State Grades and Standards for Apples.
Authority. -- W. Va. Code §19-5 Filing Date. -- May 14, 2026.
Effective Date. -- May 14, 2026.
Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2031.
W. Va. Code R. § 61-8-2 Red, partial red and blushed varieties
2.1. West Virginia Extra Fancy or West Virginia First Grade. – West Virginia Extra Fancy or West Virginia First Grade consists of apples of one (1) variety which are mature but not overripe, hand picked, clean, fairly well formed, free from decay, internal browning, internal breakdown, bitter pit, Jonathan spot, scald, freezing injury, broken skins, bruises (except those incident to proper handling and packing), and visible water core, and free from damage caused by russeting, sunburn or spray burn, limb rubs, hail, drought spots, scars, stem or calyx cracks, other diseases, insects, mechanical or other means.
2.2. West Virginia Fancy or West Virginia Second Grade. -- West Virginia Fancy or West Virginia Second Grade consists of apples of one (1) variety which are mature but not overripe, hand picked, not seriously deformed, free from decay, internal browning, internal breakdown, scald, and freezing injury and free from serious damage caused by dirt, foreign matter, broken skins, bruises, russeting, sunburn, limb rubs, hail, drought spots, scars, stem or calyx cracks, visible water core, diseases, insects, mechanical or other means.
2.3. West Virginia C Grade or West Virginia Hail Grade. -- West Virginia C Grade or West Virginia Hail Grade consists of apples of one (1) variety which are mature, hand picked, clean, not badly misshapen, sound and free from serious damage caused by hail or punctures.
W. Va. Code R. § 61-8-3 Green or yellow varieties
3.1. West Virginia Extra Fancy or West Virginia First Grade. -- West Virginia Extra Fancy or West Virginia First Grade consists of apples of one (1) variety which are mature, hand picked, clean, well formed, and sound, free from bruises, russeting, spray burn, sunburn, limb rubs, drought spots, hail marks, visible water core, broken skin, apple scab, disease, insect injury and stings, except slight blemishes shall be permitted in this grade.
3.2. West Virginia Fancy or West Virginia Second Grade. West Virginia Fancy or West Virginia Second Grade consists of apples of one (1) variety which are mature, hand picked, clean, fairly well formed, and sound, free from visible water core, broken skin, and damage caused by bruises, limb rubs, spray burn, sunburn, russeting, drought spots, hail marks, apple scab, disease and insect injury.
3.3. West Virginia C Grade or West Virginia Third Grade. -- West Virginia C Grade or West Virginia Third Grade consists of apples of ne (1) variety which are mature, hand picked, clean, not badly misshapen, and sound, free from serious damage caused by sunburn, spray burn, limb rubs, russeting, growth cracks, visible water core, hail marks, drought spots, disease, insect injury, soft bruises and broken skin except that apples having Fancy or better color for variety may contain punctures not exceeding ¼ inch in diameter.
3.4. West Virginia Hail Grade. -- West Virginia Hail Grade consists of apples which meet the grade and color requirements of West Virginia Combination Extra Fancy and West Virginia Fancy, except hail marks where the skin has not been broken and well healed hail marks where the skin has been broken shall be permitted provided the apples are fairly well formed.
3.5. In addition, each apple in the preceding grades shall have the amount of color specified in 5.1. of these rules for the variety and grade.
3.6. West Virginia Early designation. -- The term “early” may be used in conjunction with 3.1. and 3.2. of these rules, or combination thereof, to describe lots of apples normally packed and marketed during the summer months. Apples shall meet the requirements of the grade as marked except they need to be mature, there is no color requirement and they are not less than 2 inches in diameter. The term “Early” shall next follow the grade statement and not be abbreviated. Early grades apply to those varieties listed in USDA Standards under No. 1 Early and shall include Summer Rambo and Northwestern Greenings.
W. Va. Code R. § 61-8-4 Combination grades
4.1. Combination West Virginia Extra Fancy and West Virginia Fancy. -- West Virginia Extra Fancy and West Virginia Fancy apples are packed together, the boxes may be marked “Combination West Virginia Extra Fancy and West Virginia Fancy” and shall contain at least eighty percent (80%) Extra Fancy apples, except Newtowns, which shall contain at least twenty-seven percent (27%) Extra Fancy apples.
4.2. Combination West Virginia Fancy and West Virginia C Grade. -- When West Virginia Fancy and West Virginia C Grade. – West Virginia Fancy and West Virginia C Grade are packed together, the boxes may be marked “Combination West Virginia Fancy and West Virginia C Grade” and shall contain at least eighty percent (80%) Fancy apples, except Newtowns which shall contain at least twenty-five percent (25%) Fancy apples.
4.3. West Virginia Economy Grade. -- West Virginia Economy Grade consists of apples of one (1) variety which may be hand picked or drops, free from dirt or foreign material, shall contain not more than two percent (2%) Soft Rot or be otherwise seriously damaged to cause a loss over twenty percent (20%) by weight of an individual apple over normal loss occurring during customary preparation if the apple were sound. Five percent (5%) tolerance shall be allowed to cover variations incident to proper grading and handling. Five percent (5%) may be below the minimum size stated on the container.
W. Va. Code R. § 61-8-5 Color requirements
5.1. Percentage of color. -- In addition to the requirement specified for the grades set forth in 2.1. and 3.4. of these rules, apples of these grades shall have the percentage of color specified for the variety in Table 1 ( Appendix1) appearing in this section. For the solid red varieties, the percentage stated refers to the area of the surface which must be covered with a good shade of solid red characteristic of the variety: Provided, That the apple having color of a lighter shade of solid red or striped red than that considered as a good shade of red characteristic of the variety may be admitted to a grade provided it has sufficient additional are covered so that the apple has a good appearance as on with the minimum percentage of good red characteristic of the variety required for the grade. For the striped red varieties, the percentage stated refers to the area of the surface in which the stripes of a good shade of red characteristic of the variety shall predominate over stripes of lighter red, green or yellow. However, an apple having color of a lighter shade than that considered as a good shade of red characteristic of the variety may be admitted to a grade. Provided, it has sufficient additional area covered so that the apple has a good appearance as on with the minimum percentage of stripes of a good red characteristic of the variety required for the grade. Faded brown stripes shall not b considered as color except in the case of the Gray Baldwin variety. (See Appendix 1).
W. Va. Code R. § 61-8-6 Tolerances
6.1. Grading and Handling. -- In order to allow for variations incident to proper grading and handling, not more than a total of ten percent (10%) of the apples in the container may be below the requirements of the grade: Provided, That not more than five percent (5%) shall be seriously damaged by insects, not more than one tenth (1/10) of this amount, or one percent (1%) shall be allowed for decay and/or internal breakdown. Slight imperfections which are not discernible in good commercial sorting practices shall not be considered defects or grades.
6.2. In addition, a ten percent (10%) tolerance shall be allowed for boxes which fail to meet standard pack requirements.
6.3. When applying the foregoing tolerances to the combination grades, no part of any tolerance shall be used to reduce the percentage of apples of the higher grade required in the combination.
6.4. Application of tolerance. -- The contents of individual packages in the lot are subject to the following limitations: Provided, That the average for the entire lot are within the tolerances specified for the grade. For a specified tolerance of ten percent (10%), not more than one and one-half (1 ½) times the tolerance shall be allowed in any one (1) package. For specified tolerances of five percent (5%) or less, not more than double the tolerance shall be allowed in any one (1) package.
6.5. After fruit has been placed in storage or in transit, scald, breakdown, decay, bitter pit or physical injury affecting keeping quality which may have developed or may only have become evident after apples are packed are considered affecting conditions rather than grade.
W. Va. Code R. § 61-8-7 Packing requirements
7.1. Tray packed or cell packed. -- Apples tray packed or cell packed in cartons shall be arranged according to approved and recognized methods. Packs shall be at least fairly tight or fairly well filled.
7.2. Closed cartons. -- Closed cartons containing apples not tray or cell packed shall be fairly well filled or pack shall be sufficiently tight to prevent any appreciable movement of the apples.
7.3. Wooden boxes or baskets. -- Packs in wooden boxes or baskets shall be sufficiently tight to prevent any appreciable movement of apples within containers when the packages are closed. Each wrapped apple shall be completely enclosed by its individual wrapper.
7.4. Apples to be representative. -- Apples on the shown face of any container shall be reasonably representative in size, color and quality of the contents.
7.5. Tolerances. -- In order to allow for variations incident to proper packing, not more than ten percent (10%) of the containers in any lot may fail to meet these requirements.
7.5.1. “Fairly tight” means that apples are of the proper size for molds or cell compartments in which they are packed, and that molds or cells are filled in such a way that no more than slight movement of apples within molds or cells is possible. The top layer of apples, or any pad or space filler over the top lay of apples shall not be more than three -fourths (3/4) inch below the top edge of the carton.
7.5.2. “Fairly well filled” means that the net weight of apples in containers ranging from two thousand one hundred (2,100) to two thousand nine hundred (2,900) cubic inch capacity is not less than thirty seven (37) pounds for Cortland, Gravenstein, Jonathan, McIntosh and Golden Delicious varieties and not less than forty (40) pounds for all other varieties.
W. Va. Code R. § 61-8-8 Definition of terms – general
8.1. “Mature” means that the apples have reached the stage of growth which will ensure the proper completion of the ripening process. Before a mature apple becomes overripe, it will show varying degrees of firmness depending upon the stage of the ripening process. The following terms are used for describing these different stages of firmness:
8.1.1. “Hard” means apples with a tenacious flesh and starchy flavor.
8.1.2. “Firm” means apples with a tenacious flesh but which are becoming crisp with a slight starch flavor (except the Delicious variety).
8.1.3. “Firm Ripe” means apples with crisp flesh except that the flesh of the apples of the Gano, Ben Davis and Rome Beauty varieties may be slightly mealy.
8.1.4. “Ripe” means apples with mealy flesh and soon to become soft for the variety.
8.2. “Overripe” means apples which are dead ripe, with flesh very mealy or soft, and past commercial utility.
8.3. “Hand picked” means that the apples do not show evidence of rough handling or of having been on the ground.
8.4. “Clean” means that the apples are free from excessive dirt, dust, spray residue or other foreign material.
8.5. “Damage” means any defect, or combination of injury or defect, which materially affects the appearance or the edible or shipping quality of the apples.
8.6. “Serious damage” means any injury or defect, or any combination of injuries and/or defect which seriously detract from the appearance or shipping quality of the apples.
8.7. “Aggregate Area” means all extents of the defect under consideration may be assembled into one (1) area to determine the maximum extent specified.
8.8. “Not Badly Misshapen” means that an apple may be more irregularly shaped than “Fairly Well Formed” but shall not be deformed to the extent of materially affecting its culinary value or its general appearance.
W. Va. Code R. § 61-8-9 Definition of terms: red, partially red and blushed varieties
9.1. “Fairly Well Formed” means that the apple may be slightly abnormal in shape but not to an extent which detracts materially from its appearance.
9.2. “Damage Defects”:
9.2.1. Russeting in the stem cavity or calyx basin which cannot be seen when the apple is placed stem end or calyx end down on a flat surface shall not be considered in determining whether or not an apple is damaged by russeting, except that excessively rough or bark-like russeting in the stem cavity or calyx basin shall be considered as damage when the appearance of the apple is materially affected. The following types and amounts of russeting outside the stem cavity or calyx basin shall be considered as damage.
9.2.1.1. Russeting which is extensively rough on Roxbury Russet and other similar varieties.
9.2.1.2. Smooth net like russeting, when an aggregate area of more than fifteen percent (15%) of the surface is covered, and the color of the russeting shows no very pronounced contrast with the background color of the apple, or lesser amounts of more conspicuous net like russeting when the appearance is affected to the greater extent than the above amount permitted.
9.2.1.3. Smooth solid russeting when an aggregate area of more than five percent (5%) of the surface is covered, and the pattern and color of the russeting shows no very pronounced contrast with the background color of the apple, or lesser amounts of more conspicuous sold russeting when the appearance is affected to a greater extent than the above amount permitted.
9.2.1.4. Slightly rough russeting which covers an aggregate area of more than ½ inch in diameter.
9.2.1.5. Rough russeting which exceed ¼ inch in diameter unless it is well within the stem cavity or calyx basin and is not readily apparent.
9.2.2. Any of the following defects or any combination thereof, the seriousness of which exceeds the maximum allowed for any ne (1) defect, shall be considered damage:
9.2.2.1. Sunburn or spray burn which has caused blistering or cracking of the skin, or when the discolored area does not blend into the normal color of the fruit unless the injury can be classed as russeting.
9.2.2.2. Limb rubs which affect a total area of more than ½ inch in diameter, except that light brown limb rubs of a russet character shall be considered under the definition of damage by russeting.
9.2.2.3. Hail marks, drought spots or other similar depressions or scars which are not superficial or when such injury affects a total area of more than ½ inch in diameter.
9.2.2.4. Stem or calyx cracks which are not well healed, or well healed stem or calyx cracks which exceed an aggregate length of ¼ inch.
9.2.2.5. Diseases:
9.2.2.5.a. Scab spots which affect a total area of mor than ¼ inch in diameter.
9.2.2.5.b. Cedar rust infect which affects total area of more than ¼ inch in diameter.
9.2.2.5.c. Sooty blotch or fly speck which is thinly scattered over more than one tenth (1/10) of the surface, or dark heavily concentrated spots which affect an area of more than ½ inch in diameter.
9.2.2.5.d. Red skins spots which are thinly scattered over more than 1/10 of the surface, or dark, heavily concentrated spots which affect an area of more than ½ inch in diameter.
9.2.2.6. Insects:
9.2.2.6.a. Any healed sting or healed sitings which affect a total area of more than 3/16 encircling discolored rings.
9.2.2.6.b. Worm holes.
9.2.2.7. “Seriously deformed” means that the apple is so badly misshapen that its appearance is seriously affected.
9.2.2.8. The following types and amounts of russeting shall be considered as serious damage:
9.2.2.8.a. Smooth solid russeting, when more than one half of the surface in aggregate is covered, including any russeting in the stem cavity or calyx basin or slightly rough, or excessively rough or bark-like russeting which detracts from appearance of the fruit to a greater extent than the amount of smooth solid russeting permitted: Provided, That any amount of russeting shall be permitted on Roxbury Russet and other similar varieties.
9.2.3. Any one (1) of the following defects, or any combination thereof, the seriousness of which exceeds the maximum allowed for any one (1) defect, shall be considered as serious damage:
9.2.3.1. Sunburn or spray burn which seriously detracts from the appearance of the fruit.
9.2.3.2. Limb rubs which affect more than one tenth of the surface in the aggregate.
9.2.3.3. Hail marks, drought spots or scars if they materially deform or disfigure the fruit, or if such defect affect more than one tenth of the surface in the aggregate: Provided, That no hail marks which are unhealed shall be permitted and not more than an aggregate area of ½ inch shall be allowed for well-healed hail marks where the skin has been broken.
9.2.2.4. Stem or calyx cracks which are not well healed, or well healed stem or calyx cracks which exceed an aggregate length of ½ inch.
9.2.2.5. Visible water core which affects an area of more than ½ inch in diameter.
9.2.4. Diseases:
9.2.4.1. Scab spots which affect a total are of more than ¾ inch in diameter.
9.2.4.2. Cedar rust infection which affects a total area of more than ¾ inch in diameter.
9.2.4.3. Sooty blotch or fly speck which affect more than one third of the surface.
9.2.4.4. Red skin spots which affect more than one third of the surface.
9.2.4.5. Bitter pit and Jonathan spot which is thinly scattered over more than one tenth of the surface and does not materially deform or disfigure the fruit.
9.2.5. Insects:
9.2.5.1. Healed stings which affect a total area of more than ¼ inch in diameter including any encircling discolored rings.
9.2.5.2. Worm holes.
9.2.6. In West Virginia C Grade or West Virginia Hail Grade, punctures not exceeding ½ inch in diameter and healed hail marks shall not be considered as serious damage: Provided, That the apples otherwise meet the requirements of West Virginia Fancy Grade.
W. Va. Code R. § 61-8-10 Definitions of terms: green or yellow varieties
10.1. “Well Formed” means having the normal shape characteristic of the variety except the shape may be slightly irregular: Provided, That it does not detract from the general appearance of the apple.
10.2. “Fairly Well Formed” means the apple shall have the normal shape characteristic of the variety except one half of the apple may deviate slightly or the apple may be slightly flattened as by frost injury.
10.3. “Sound” means apples that at the time of packing are free from visible defects such as decay, breakdown, scald, bitter pit or physical injury affecting quality.
10.4. “Slight Blemishes” means defects not in excess of the following:
10.4.1. Slight handling bruises and box bruises such as are incident to good commercial handling in the preparation of a tight pack.
10.4.2. Smooth russeting shall be permitted at the stem end: Provided, That such russeting is not visible for more than ½ inch when the apple is placed stem end down on a flat surface, except in the Newton variety characteristic russet beginning at the stem end shall be permitted as long as it is continuous from the stem bowl and not extending beyond the center of the apple.
10.4.3. Smooth net-like russeting which does not extend over an aggregate area of more than five percent (5%) of the surface of the apple.
10.4.4. Sunburn or spray burn when slight and when the normal color of the apple is but slightly changed and the affected area does not exceed five percent (4%) of the surface of the apple.
10.4.5. Smooth solid russeting, light limb rubs, hail marks or spray burn of a russet character shall be permitted when the aggregate area affected does not exceed that of a circle ¼ inch in diameter.
10.4.6. Slight hail marks or other depressions when there is no discoloration, when the indentations are very shallow and no individual indentation exceeds 1/8 inch in diameter and the aggregate area affected does not exceed ¼ inch (refers to area of a circle).
10.4.7. Thrips marks not to exceed three (3) in number shall be permitted.
10.4.8. Any healed sting or healed stings which affect a total area of more than 1/8 inch in diameter, including any encircling discolored rings.
10.5. “Damage” means defects which are in excess of the following:
10.5.1. Slight handling bruises and box bruises such as are incident to commercial handling and packing.
10.5.2. Limb rubs not to exceed ½ inch in aggregate area.
10.5.3. Spray burn which has altered or discolored natural pigment when the normal color of the apples is not seriously affected, when there is no blistering or cracking of the skin. Spray burn of a russet nature shall be governed by the definition covering solid russeting.
10.5.4. Sunburn when the normal color of the apple is not seriously affected, there is no blistering or cracking of the skin, and the discolored area blends into the normal color or the fruit.
10.5.5. Slight rough russeting which does not cover an area of more than ½ inch in diameter it is not continuous with the russeting in the stem basin or calyx cavity.
10.5.6. Smooth russeting shall be permitted at the stem or calyx and Provided, That such russeting is not visible for more than ½ inch when the apple is placed with the russet end down on a flat surface, except in the Newtown variety characteristic russet beginning at the stem or calyx end and not exceeding beyond the center of the apple shall be permitted as long as it is continuous from the stem or calyx bow.
10.5.7. Smooth net-like russeting which does not extend over an aggregate area of more than twenty percent (20%) of the surface.
10.5.8. Solida russeting, such as in character of frost, spray burn, hail and certain insect and disease injury affecting a total aggregate are not to exceed ½ inch.
10.5.9. Hail marks, drought spots or other depressions when the injury is slight, the skin is not broken and the depressions do not exceed an aggregate area of ½ inch in diameter or detract seriously from the appearance of the fruit.
10.5.10. Apple scab spots affecting a total area of not more than ¼ inch in diameter.
10.5.11. Four (4) stings, each having an encircling hard ring, usually green, or a slight depression: Provided, That stings do not exceed 1/8 inch in diameter exclusive of any encircling ring.
10.5.12. Slight aphis signs or thrips marks which do not roughen or pebble the surface of the apple.
10.6. Combination of defects. – An apple may show any one (1) or a combination of the following defects if the aggregate area does not exceed the specified tolerance for the defects and the aggregate of the combination does not exceed ½ inch. The defects are: Scab, hail marks, drought spots, solid russeting and limb rubs.
10.7. “Serious Damage” means defects which are in excess of the following:
10.7.1. Sunburn or spray burn which does not serious detract from the appearance of the fruit.
10.7.2. Limb rubs which affect not more than one tenth of the surface of the aggregate.
10.7.3. Smooth solid russeting which affects not more than ½ the surface in the aggregate, including any russeting in the stem basin or rough or bark like russeting which does not detract from the appearance of the fruit to a greater extent than the smooth solid russeting permitted.
10.7.4. Growth cracks, such as occur in Stayman, shall be permitted when no crack exceed ½ inch in length.
10.7.5. Visible water core which does not affect an area of more than ½ inch in diameter.
10.7.6. Hail marks, drought spots or other depressions, when the injury is s light, the skin is not broken and the depressions do not exceed an aggregate area often percent (10%) of the surface in red or partial red varieties or more than twenty percent (20%) of the surface in green or yellow varieties.
10.7.7. Scab spots affecting an aggregate area of not to exceed ½ inch in diameter.
10.7.8. Five (5) stings, each having an encircling hard ring, usually green, or a slight depression: Provided, That stings do not exceed 1/8 inch in diameter exclusive or any encircling ring.
10.7.9. Aphis pebbling or thrips marks not seriously detracting from the appearance of the apple.
W. Va. Code R. § 61-8-11 West Virginia state condition standards
11.1. Maturity. -- Not more than an average of five percent (5%) of the apples in any lot, with more than ten percent (10%) in any one (1) sample shall be further advanced in maturity than firm ripe.
11.2. Damage. -- Not more than a total of five percent (5%) of the apples in any lot, with not more than ten percent (10%) in any one (1) sample shall be damaged by bitter pit, Jonathan spot, common scald, visible water core, freezing or other such condition factors, excluding delayed sunburn.
11.3. Affected apples. -- Not more than any average of two percent (2%) each in any lot, with not more than eight percent (8%) in any sample shall be allowed for apples affected by decay, visible breakdown, or by soft scald, except that after March 1 not more than an average of three percent (3%) each in any lot with not more than ten percent (10%) in any sample shall be allowed for apples affected by decay, visible breakdown or by soft scald.
W. Va. Code R. § 61-8-12 Official certificates
12.1. On request, when qualified, official certificates will bear the statement “Meets West Virginia State Condition Standards”.
APPENDIX I
Table 1 Color Requirements for Specified West Virginia Grades of Apples by Variety _____________________________________________________________________________________ Ex. Fancy Fancy C Grade % % % Solid Red:
Red Delicious 65 25 15 Arkansas Black 50 25 15 Winesap 50 25 15 King David 50 25 15 Red Sport Varieties 50 25 15 Striped or Partially Red:
Delicious 50 25 15 Stayman 40 25 10 York 40 25 10 Black Twig 40 25 10 Jonathan 40 25 10 McIntosh 40 25 10 Rome 40 25 10 Other Similar Varieties 40 25 10 Red Cheeked or Blushed:
Winter Banana Some color 0 0 Green & Yellow Varieties Golden Delicious 75** 75** 33 1/3** No Color:
Dutchess, Gravenstein, King, Wolf River Twenty Ounce, Grimes (Golden), Ortley, Newtown, White Winter Pearmain, Yellow Transparent *When sports varieties are marked as such, they shall meet the color requirements of Red Sports Varieties. **Refers to characteristic color. In the Golden Delicious variety when the white or light green color predominates over the green color, it shall be considered the minimum characteristic color.
Series 08B Schedule of Charges for Inspection Services: Fruit
W. Va. Code R. § 61-8B-1 General
1.1. Scope. -- This legislative Rule establishes charges for Federal-State Inspection Service for Fruit.
1.2. Authority. -- W. Va. Code §19-2-5, §19-1-4(k).
1.3. Filing Date. -- April 13, 2023
1.4. Effective Date. -- May 1, 2023
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-8B-2 Declaration of Policy
2.1. Fees for Inspection Services. -- W. Va. Code §19-2-5, provides that the Commissioner of Agriculture may, upon request, inspect and issue Federal-State Inspection Certificates, certify the quality, or condition for fruit produced, sold traded, exchanged, transported through the trade channels of West Virginia.
2.2. Schedule of Fees -- For the purpose of defraying the cost of inspection, the following schedule of fees apply:
2.2.1. Fruit Inspection For Processors:
Contract - Weekly Rate 40 hours per week Monday through Friday $640.00 Hourly Rate (1 hour minimum) $25.00 Overtime per hour $37.50
2.2.2. GAP.GHP/Audits:
As required by WVDA’s cooperative agreement with USDA, WVDA will charge the hourly rate for GAP.GHP audits that is established by USDA’s Agricultural Marketing Service.
2.2.3. Fruit Inspection For Quality:
Contract - Weekly Rate 40 hours per week Monday through Friday $500.00 Hourly rate (1 hour minimum) $25.00 Overtime per hour $37.50 Plus Current Mileage Rate
2.2.4. Fruit Inspection Package Rate:
Per box, basket, carton 25 lbs or less $ 0.08 Per box, basket, carton 26 lbs or more $ 0.10 Hourly rate (1 hour minimum) $25.00 Overtime per hour $37.50
2.2.5. FVQ Form 294 (State Sanitary Inspection)
No charge if performed in conjunction with other inspections otherwise $ 0.05 per carton Hourly rate (1 hour minimum) $25.00 Overtime per hour $37.50 Plus Current Mileage Rate
2.2.6. Expenses:
The Department may bill all necessary expenses and mileage at the WV Department of Agriculture standard rate.
2.2.7. Overtime:
The Department shall charge at the overtime rate per hour for any time in excess of eight (8) hours any single day (Monday through Friday,) or forty (40) hours any single week, or for Saturday, Sunday and holidays.
2.2.8. Special Work:
The Department shall assess fees for irregular size container or special work on the basis of the fee schedule set forth in this rule as closely as practical.
Series 08D Standards For Multiplication Plot - Seed Potatoes
W. Va. Code R. § 61-8D-1 General
1.1. Scope. -- These legislative regulations establish general operating rules and procedures in the Fruit and Vegetable Division.
1.2. Authority. -- W. Va. Code '19-16.
1.3. Filing Date. -- April 22, 1946.
1.4. Effective Date. -- May 10, 1946.
W. Va. Code R. § 61-8D-2 Definitions
2.1. A multiplication plot is a field of potatoes planted in tuber units for the purpose of increasing a particularly desirable strain of potatoes or to produce seed suitable to be used as foundation stock for a field to be certified.
2.2. Application for inspection must be made as for certified seed.
2.3. Procedure. -- The requirements for certified seed must be met with the following additions:
2.3.1. The field must be planted in tuber units or be planted from the progeny of a single tuber grown in a tuber unit in previous years and qualified as foundation stock each year. Tuber units consist of cutting each tuber into four or more pieces and planting them consecutively in a row, each unit of four or more pieces being separated by twice the distance separating each piece in the unit. Any tuber showing internal discoloration as a browning or blackening at the stem end, just under the skin or in the flesh of the potato, must be discarded.
2.3.2. The field must be at least 400 feet from other potato fields showing more than five percent (5%) virus diseases.
2.3.3. Ordinary certified seed may be used as stock the first year the applicant has requested inspection but thereafter must be planted with foundation stock, tuber indexed stock or potatoes selected from a field certified or planted in tuber units the previous year. The grower should use the very best seed available for the multiplication unit.
2.3.4. The percent of visible diseases should not exceed, at any inspection, the following specifications: (See Table 61-8DA).
2.3.5. Whenever a plant is detected as being diseased all the companion plants of that unit must also be removed.
2.3.6. The plot must be rogued five (5) times:
2.3.6.1. Just prior to the first inspection;
2.3.6.2. Immediately after the first inspection;
2.3.6.3. One (1) week after the first inspection;
2.3.6.4. After the second inspection; and
2.3.6.5. After the third inspection.
2.3.7. Potatoes produced in multiplication plots may be sold as certified seed but, when so sold, all fees incidental to the production of certified seed must be paid.
TABLE 61-8DA 1st % 2nd % 3rd % Bin % Leaf Roll 1.00 0.50 Mosaic 1.00 0.50 Spindle tuber 1.00 0.50 Total all virus diseases 2.00 1.00 0.20 0.50 Fusarium wilt ** 1.00 0.50 0.50 0.50 Total all diseases 3.00 1.50 1.00 1.00 Giant hill None Weak hills 1.00 None Varietal mixture 0.25 None None Purple top 0.50 0.50 0.50 Ring rot None None Stem end discoloration 2.00 ** Fusarium solani var eumartii 61CSR8D
Series 08E Controlled Atmosphere Storage Of Apples
W. Va. Code R. § 61-8E-1 General
1.1. Scope. -- These legislative regulations establish standards for controlled atmosphere storage conditions and sets forth procedures for keeping CA records.
1.2. Authority. -- W. Va. Code §§19-5A-3, 7, 8, and 9.
1.3. Filing Date. -- June 21, 2002.
1.4. Effective Date. -- June 21, 2002.
W. Va. Code R. § 61-8E-2 Administrative
2.1. This rule is for the purpose of implementing W. Va. Code §19-5a-1 et. seq. pertaining to the Controlled Atmosphere Storage of Apples.
2.2. Inspections made and certificates issued by inspectors of the West Virginia Department of Agriculture or comparable inspections of cooperating government inspectors shall be prima facie evidence of compliance or noncompliance with the provision of this article.
2.3. The WV-CA number and state lot number shall be shown in letters and numbers not less than one-fourth (1/4) inch in height and shall appear on all master cartons or shipping containers. Such numbers may be shown but are not required on primary consumer containers. Bulk bins and field crates may be identified by means of labels attached to each container when shipped in commerce for repacking as CA fruit, such shipping and repacking must be done under the supervision of a state inspector. Cost of such supervision shall be borne by the applicant.
2.4. Any person who owns or operates a controlled atmosphere room or storage building located outside of West Virginia or who engages at a place outside of this State in the business of packing or repacking apples which have been held in controlled atmosphere storage and who intends to or who does market in the State of West Virginia apples so treated and represented as having been exposed to “Controlled Atmosphere Storage’t shall be subject to the sane requirements as any person located within this State: Provided, That where such person has registered with the proper authorities in the state of origin and has been licensed and assigned a registration or CA number under the authority of laws or regulations of such state, and such laws are comparable to article five-a, Code of West Virginia, he may engage in West Virginia commerce on the basis of such registration:
Provided, That he shall have been issued a federal, federal-state or state certificate certifying compliance with that comparable state law and regulations and that all container markings are consistent with the provisions of the West Virginia CA Law.
2.5. Any person selling or placing in transit for first shipment of delivery any apples designated or identified as CA stored shall furnish an invoice or bill of lading showing the assigned CA number, a state lot number and the number and date of the official certificate certifying the compliance of same.
2.6. A licensee shall submit to the commissioner within thirty (30) days after the CA room is filled and sealed, a report showing the quantity, lot or sublot identify by variety of the apples held and the date of sealing. If any apples other than samples are removed prior to the expiration of the minimum holding period or final opening he shall notify the commissioner in writing within three (3) days stating the quantity and identity of the apples removed.
W. Va. Code R. § 61-8E-3 Controlled Atmosphere Components And Time Limits
3.1. The maximum amount of oxygen retained in a sealed CA storage shall not exceed five percent (5%) by volume.
3.2. The maximum amount of time in which the oxygen content shall have been reduced to the above amount shall not exceed twenty (20) cumulative calendar days.
3.3. The fruit temperature in a CA storage room shall be maintained without significant deviation in a range of temperature as recommended by recognized research authorities as normal for the variety.
3.4. A storage period of not less than sixty (60) calendar days shall be attained before fruit may be classed as CA stored. Maximum storage time shall not exceed ten (10) months, but in no case, later than August first of the year following harvest.
3.4.1. The time lapse between harvest date of the fruit to be CA stored and the sealing of the Controlled Atmosphere Room shall not be longer than thirty (30) consecutive calendar days which time the fruit shall be held under normal refrigeration.
W. Va. Code R. § 61-8E-4 Forms
4.1. The Commissioner may accept forms for recording air component determinations such as are used by established storage firms: Provided, That such forms clearly show the information required in section eight of the law and which form has been submitted to the Commissioner for approval. In addition to the requirements of section eight, a licensee shall maintain in his daily record which shall begin on the date of filling the room begins:
4.1.1. The quantity of fill by variety and lot identification.
4.1.2. The dates of any entry or resealing of the CA room.
4.1.3. The percentage of relative humidity.
W. Va. Code R. § 61-8E-5 Minimum Condition Standards
5.1. The minimum condition and maturity standards for apples to be classed as CA shall be the United States Condition Standards for Export as amended from time to time.
61CSR8E
61CSR8E
61CSR8E
61CSR8E
Series 09 West Virginia Seed Law
W. Va. Code R. § 61-9-1 General
1.1. Scope. -- This legislative rule declares those seeds that are noxious seeds, establishes germination test dates, germination standards, specifies additional labeling for tree and shrub seeds, defines what corn may be sold as "Certified Hybrid," specifies white sweet clover labeling requirements, specifies seed labeling requirements for distribution to wholesalers, obtaining registration forms, defines sampler or display units and where fee stamps are to be displayed and reporting of pounds sold, establishes an assessment of penalty fees, provides laboratory service to individuals, farmers and dealers and sets fees, defines hermetically sealed seed requirements, defines growers declaration, establishes program for analysis of hold-over seed, specifies relabeling requirements, establishes a seed certification agency, establishes labeling requirements for seeds for sprouting, and sets requirements for treated seed.
1.2. Authority. -- W. Va. Code §19-16-6.
1.3. Filing Date. -- April 13, 2021
1.4. Effective Date. -- May 3, 2021
1.5. Sunset Provision. – This rule shall expire and have no further force and effect August 1, 2031.
W. Va. Code R. § 61-9-2 Policy
2.1. All persons distributing agricultural, forest and shrub, flower, and vegetable seeds in the state of West Virginia, are equally responsible for full compliance with the provisions of W. Va. Code, §§19-16-1 et seq. All persons are responsible for complying with the law, obtaining a certificate of registration, paying appropriate poundage and reporting fees, labeling the seed or any other legal requirement if not met by another person.
2.2. The documents of the following organizations are incorporated in their entirety by reference;
2.2.1. Association of American Seed Control Officials - Handbook for Seed Inspectors;
2.2.2. United States Department of Agriculture, Title I - V Federal Seed Act; Federal Seed Act Regulations Part 201-202;
2.2.3. United States Standards for Grades of Seed Potatoes § 51, Effective March 6, 1987.
2.2.4. Association of Official Seed Analysts, Rules for Testing Seeds, Volumes 1 – 4.
2.2.5. Association of Official Seed Analysts, Seed Vigor Testing Handbook.
2.2.6. Association of Official Seed Analysts, Seed Moisture Testing Handbook.
2.2.7 Association of Official Seed Analysts, Cultivar Purity Handbook.
2.2.8 Association of Official Seed Analysts, Tetrazolium Testing Handbook.
W. Va. Code R. § 61-9-3 Germination Standards
3.1. The following germination test dates apply to seeds packaged in containers as indicated:
3.1.1. Seeds packed in regular containers: Twelve (12) months excluding the month in which the test was completed; and
3.1.2. Seeds packed in "Hermetically" sealed containers: Thirty-six (36) months excluding the month in which the test was completed. The percentage of moisture shall not exceed percentages established in Appendix Number 2, Hermetically Sealed Seed.
3.1.3. For cool season lawn and turf grasses including Kentucky bluegrass, red fescue, chewings fescue, hard fescue, tall fescue, perennial ryegrass, intermediate ryegrass, annual ryegrass, colonial bentgrass, creeping bentgrass, and mixtures thereof: Fifteen (15) months excluding the month in which the test was completed.
3.2. The labels on all seeds germinating less than these standards shall show, in addition to other required information, the words "germination below standard" in eight (8) point bold face type.
3.3. The minimum germination standards for the various kinds of seed are contained in the appendix at the end of this rule as follows: Appendix 1, Germination Standard for Agricultural Seeds; Appendix 3, Germination Standard for Vegetable Seeds; and Appendix 5, Germination Standard for Flower Seed.
W. Va. Code R. § 61-9-4 Additional Tree and Shrub Seed Labeling Requirements
In addition to the label requirements established by law, the following data shall be shown on the analysis tag and invoice for all seeds listed in Appendix 4, Kind of Tree and Shrub Seeds Subject to Germination Labeling:
4.1. Seed Origin:
4.1.1. For seed collected from a predominantly indigenous (natural) stand, the area of collection given by latitude and longitude or geographic description or political subdivision such as state or county.
4.1.2. For seed collected from other than predominantly indigenous stand (plantation), the identity of the area of collection and the origin of the stand or the statement "Origin Not Indigenous.";
4.2. The upper and lower elevations within which seed was collected;
4.3. The common name and scientific or genetic name;
4.4. The year in which the collection was made as required by W. Va. Code, §19-16-2(r)(2)(H); and
4.5. Seed Germination:
4.5.1. Germination shall be shown in percentage and percentage of firm ungerminated seed or hard seed; or
4.5.2. As required by W. Va. Code, §19-16-2(r)(2)(G)(iv), when the seed is transported or delivered for transportation within the calendar year collected or within six (6) months following the calendar year of collection the seed may bear the statement "Test in Progress"; or
4.5.3. When the seed is being transported to a consumer, the name of the consumer and the statement "Contract seed not for resale and subject to test to be arranged."
W. Va. Code R. § 61-9-5 Hybrid Seed Corn
5.1. Only seed of field corn hybrids that has been certified by an officially recognized certifying agency in the state, province or county in which the seed is grown may be labeled or advertised as "Certified Hybrid Seed Corn."
W. Va. Code R. § 61-9-6 White Sweet Clover
6.1. Sweet clover seed containing more than five (5) percent of yellow sweet clover seed when tested (or more than 1.25 percent mottled seeds as identified during a visual examination) may not be labeled white sweet clover. Such seed must be labeled as sweet clover or as a mixture.
W. Va. Code R. § 61-9-7 Certificate Of Registration
7.1. Application forms may be obtained for certificate of registration from the West Virginia Department of Agriculture, Charleston, West Virginia.
W. Va. Code R. § 61-9-8 Sampler Or Display Unit - Reporting of Pounds Seed Sold
8.1. A sampler or display unit means a display collection of garden, vegetable, or flower seeds commonly known as "Packet Seeds" originally packed in primary consumer containers of eight (8) ounces (226.8 grams) or less by the person, firm or corporation who has registered to sell the seeds.
8.2. For sampler or display units, stamps shall be attached by the Dealer in a conspicuous place on the front of the display unit. The appropriate fees are listed in Appendix 6 - Registration and Poundage Fees.
8.3. For seeds requiring a sworn statement of pounds sold, the total poundage of each kind sold shall be reported by the Dealer/Distributor on a form supplied by the Commissioner and the fee paid at the rate prescribed - Appendix 6 - Registration and Poundage Fees.
8.4. For seed potatoes: The number, variety and size of containers bought, offered or exposed for sale shall be reported by the person first entering the seed potatoes into West Virginia trade channels on forms provided by the Commissioner. The person first offering seed potatoes for sale within the State of West Virginia shall pay the required fee and shall furnish to his or her customers an invoice bearing the statement "West Virginia Seed Fee Paid". The statement may also be used by wholesale dealers on an arrears basis to accommodate their bookkeeping systems: Provided, that arrears payments shall be not later than the fifteenth day of the following month for the previous reporting period. Any person having in his or her custody any lot of seed potatoes and who is unable to produce evidence that he or she paid the seed fee is liable for payment of the fee.
W. Va. Code R. § 61-9-9 Laboratory Service To Individuals, Farmers and Dealers
9.1. Seed testing facilities are available for making purity, noxious weed, vigor, moisture, seed identification, and germination analyses for interested persons.
9.2. The charges for these tests are specified in Appendix 7 - Testing Fees.
W. Va. Code R. § 61-9-10 Hold Over Seed
10.1. Seeds bearing germination test dates older than those specified in Subsection 3.1 of this rule shall be retested and relabeled or removed from sale.
W. Va. Code R. § 61-9-11 Establishment of Certifying Agency
11.1. The West Virginia Associated Crop Growers is hereby designated as an official certifying agency for the seeds, other than industrial hemp, grown in West Virginia.
11.2 The West Virginia Department of Agriculture is hereby designated as an official certifying agency for all seeds, including industrial hemp, grown in West Virginia.
W. Va. Code R. § 61-9-12 Treated Seed
12.1. For all seeds named and treated as defined in this Rule (for which a separate label may be used) the following is required:
12.1.1. A word or statement indicating that the seed has been treated;
12.1.2. The commonly accepted coined, biological, chemical or abbreviated chemical (generic) name of the applied substance or description of the process used; and
12.1.3. If the substance in the amount present with the seed is harmful to humans or other vertebrate animals, a caution statement such as "Do not use for food or feed or oil purposes; and
12.1.4. If the seed is treated with an inoculant, the date beyond which the inoculant is not to be considered effective (date of expiration).
W. Va. Code R. § 61-9-13 Noxious Weed Seeds
13.1. Noxious weed seeds are divided into three classes – “Prohibited Noxious Weed Seeds”, “Restricted Noxious Weed Seeds”, and “Undesirable Grass Seeds”.
13.1.1. Prohibited Noxious Weed Seeds. Prohibited noxious weed seeds in this state are the seeds or bulblets of Autumn Olive (Elaeagnus umbellate), Balloonvine (Cardiospermum halicacabum), Bindweed, Field (Convolvulus arvensis), Bindweed, Hedge (Calystegia sepium), Japanese Barberry (Berberis thunbergil DC.), Japanese Knotweed (Polygonum cuspidatum), Japanese Stiltgrass (Microstegium vimineum), Jimsonweed (Datura stramonium), Johnsongrass (Sorghum halepense), Kudzu (Pueraria thunbergiana (S & Z) Benth.), Loosestrife, Purple (Lythrum salicaria), Mile-a-minute (Polygonum perfoliatum), Morrow’s Honeysuckle (Lonicera morrowii), Poison Hemlock (Conium maculatum), Quackgrass (Elytrigia repens), Rose, Multiflora (Rosa multiflora), Shattercane (Sorghum bicolor), Sicklepod (Senna obtusifolia), Sowthistle, Perennial (Sonchus arvensis), Tartarian Honeysuckle (Lonicera tartarica), Thistle, Canada (Cirsium arvense), Thistle; Plumeless, Musk, and Curled (Carduus spp.), Tree of Heaven (Ailanthus altissima), and Tussock, Serrated (Nassella trichotoma).
13.1.2. Restricted Noxious Weed Seeds. Restricted noxious weed seeds in this state are the seed or bulblet of Anoda, Spurred (Anoda cristata), Bedstraw (Galium spp.), Bermudagrass (Cynodon dactylon), Carrot, Wild (Daucus carota), Cocklebur (Xanthium strumarium), Corncockle (Agrostemma githago), Daisy, Oxeye (Leucanthemum vulgare), Dock, Curly (Rumex crispus), Dodder (Cuscuta spp.), Foxtail, Giant (Setaria faberi), Garlic or Onion, Wild (Allium spp.), Hawkweed (Hieracum spp.), Horsenettle (Solanum carolinense), Morning Glory, Wild (Ipomoea purpurea), Mustard, India (Brassica juncea), Mustard, Wild (Brassica arvensis), Pennycress, Field (Thlaspi arvense), Peppergrass, Field (Lepidium campestre), Plantain, Buckhorn (Plantago lanceolate), and Thistle, Bull (Cirsium vulgare).
13.1.3. Undesirable Grass Seed. Restricted noxious weed seed in lawn and turf seed and mixtures - except as provided in subdivision 13.1.2 of this section, seed of the following plants are restricted noxious weed seed and shall be listed on the tag or label under the heading “Noxious Weed Seed” or “Undesirable Grass Seed” by name and number per pound or ounce when present in bentgrass, Kentucky bluegrass, Chewing fescue, hard fescue, red fescue, varieties of named turf-type tall fescue, varieties of perennial ryegrass, or a mixture containing any of these grasses: Bentgrass - creeping , colonial, velvet - (Agrostis spp.); Bermudagrass, (Cynodon dactylon); Annual bluegrass (Poa annua); Rough bluegrass (Poa trivialis); Meadow fescue (Festuca pratensis); Tall fescue (Festuca arundinacea); Orchardgrass (Dactylis glomerata); Redtop (Agrostis gigantea); Timothy (Phleum pratense); Velvetgrass (Holcus lanatus).
13.1.4. The amount of restricted noxious weed seeds set forth in subdivision 13.1.3, of this section shall not exceed 0.5 percent of the total weight of sample.
13.1.5. If included on the tag or label, seed designated as noxious weed seed in other states shall be listed under the heading “Noxious Weed Seed” or “Undesirable Grass Seed”.
13.1.6. The restricted noxious weed seed set forth in subdivision 13.1.3, of this section shall not apply to grasses or mixtures clearly labeled for: Pasture, Forage, Hay, Conservation or Spoil bank reclamation usage.
13.1.7. The restricted noxious weed seeds set forth in subdivision 13.1.3, of this rule shall not apply when seeds are present in excess of 5.0% of the whole and the label contains the information required by W. Va. Code, §19-16-2 (d)(3) relating to labeling of lawn or turf grasses and mixtures.
13.1.8. It is unlawful to sell or offer for sale agricultural, lawn and turf, vegetable, and flower seed which contains restricted noxious weed seeds, set forth in subdivision 13.1.2 of this section, in excess of one seed or bulblet, singly or collectively, in each 5 grams (approximately 5 seeds per ounce) of seeds listed in 19-16-2(c)(5)(A) and in each 100 grams (approximately 5 seeds per pound) of seeds listed in 19-16-2(c)(5)(B).
W. Va. Code R. § 61-9-14 Certified Seed Potatoes
14.1. As required by W. Va. Code §19-16-2 (s) only “certified seed potatoes” shall be sold in the state of West Virginia.
W. Va. Code R. § 61-9-15 Relabeling
15.1. The following information shall appear on a label for relabeling seeds in their original containers:
15.1.1. The calendar month and year the test was completed to determine such percentage.
15.1.2. The same lot designation as on the original labels.
15.1.3. The identity of the labeling person if different from original labeler.
W. Va. Code R. § 61-9-16 Labeling of Seed Distributed to Wholesalers
16.1. After seed has been conditioned, it must be labeled before distribution to any person including a wholesaler. Each bag or bulk lot must be completely labeled when supplied to a retailer or consumer.
16.2. Labeling of seed supplied to a wholesaler, one whose predominant business is to supply seed to other distributors rather than to consumers of seed, may be by 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 so identified must carry complete labeling.
W. Va. Code R. § 61-9-17 Seeds for Sprouting
17.1 The following information shall be indicated on all labels of seeds sold for sprouting for salad or culinary purposes.
17.1.1. Commonly accepted name of kind or kinds.
17.1.2. Lot number.
17.1.3. Percentage by weight of each pure seed component in excess of 5% of the whole, other crop seeds, inert matter and weed seeds if occurring.
17.1.4. Percentage of germination of each pure seed component.
17.1.5. Percentage of hard seed, if present.
17.1.6. The calendar month and year the test was completed to determine such percentages.
W. Va. Code R. § 61-9-18 Hermetically-Sealed Seed
18.1. The following standards, requirements and conditions must be met before seed is considered to be hermetically-sealed under the provisions of this Act:
18.1.1. The seed was packaged within 9 months after harvest.
18.1.2. The container used does not allow water vapor penetration through any wall, including the seals, greater than 0.05 grams of water per 24 hours per 100 square inches of surface at 100- F. with a relative humidity on one side of 90 percent and on the other side 0 percent. Water vapor penetration or WVP is measured by the standards of the U.S. Bureau of Standards as: gm.H20/24 hr./100 sq. in./100....F./90% RHV.0% RH.
18.1.3. The seed in the container does not exceed the percentage of moisture, on a wet weight basis, as listed in Appendix 2 – Hermetically Sealed Seed.
W. Va. Code R. § 61-9-19 Labeling Kind and Variety or Type and Performance Characteristic of Flower Seeds
19.1. The requirements of Chapter 19 Article 16 Section 2 specifying that flower seeds shall be labeled with, "the name of the kind and variety or a statement of type and performance characteristics as prescribed in the rules and regulations promulgated under the provisions of this Act", shall be met as follows:
19.1.1. For seeds of plants grown primarily for their blooms –
19.1.1.a. If the seeds are of a single names variety, the kind and variety shall be stated, for example - "Marigold, Butterball".
19.1.1.b. If the seeds are of a single type and color for which there is no specific variety name, the type of plant (if significant), and the type and color of bloom shall be indicated, for example, - "Scabiosa, Tall, Large Flowered, Double, Pink".
19.1.1.c. If the seeds consist of an assortment or mixture of colors or varieties of a single kind, the kind name, the type of plant (if significant) and the type or types of bloom shall be indicated. In addition, it shall be clearly indicated that the seed is mixed or assorted. An example of labeling such a mixture or assortment is -"Marigold, Dwarf Double French, Mixed Colors".
19.1.1.d. If the seeds consist of an assortment or mixture of kinds or kinds and varieties, it shall be clearly indicated that the seed is assorted or mixed and the specific use of the assortment or mixture shall be indicated, for example - "Cut Flower Mixture", or "Rock Garden Mixture". Such statements as "General Purpose Mixture", Wonder Mixture", or any other statement which fails to indicate the specific use of the seed shall not be considered as meeting the requirements of this provision unless the specific use of the mixture is also stated. Containers with over 3 grams of seed shall list the kind or kind and variety names of each component present in excess of 5.0% of the whole in the order of their predominance giving the percentage by weight of each. Components of 5.0% or less shall be listed but need not be in order or predominance. A single percentage by weight shall be given for these components. If no component of a mixture exceeds 5% of the whole, the statement "No component in excess of 5%" may be used. Containers with 3 grams of seed or less shall list the components without giving percentage by weight and need not be in order of predominance.
19.1.2. For seeds of plants grown for ornamental purposes other than their blooms, the kind and variety shall be stated, or the kind shall be stated together with a descriptive statement concerning the ornamental part of the plant, for example - "Ornamental Gourds, Small Fruited, Mixed".
W. Va. Code R. § 61-9-20 Flower Seeds Subject to Germination Labeling Requirement
20.1. The flower seeds listed in Appendix 5 - Germination Standard for Flower Seed, are those for which standard testing procedures have been prescribed and which are therefore required to be labeled in accordance with the germination labeling provisions of W. Va. Code §19-16-2. The percentage listed opposite each kind is the germination standard for that kind. For the kinds marked with an asterisk, the percentage is the total of percentage germination and percentage hard seed. For other kinds, it is the percentage germination.
W. Va. Code R. § 61-9-21 Assessment of Penalties
21.1. A penalty shall be assessed each time a lot of seed is found to be deficient in any of the following areas.
21.1.1. When it fails for any component of the purity analysis.
21.1.2. When it fails for the germination analysis.
21.1.3. When it is found to contain excess weed seed.
21.1.4. When it fails for the noxious weed seed examination.
21.1.5. When no analysis tag is attached.
21.1.6. When it is found to be mislabeled.
21.2. The amount of the penalty for each deficiency shall be 20% of the selling price of the lot of seed. The selling price shall be calculated by multiplying the selling price per container and the total number of containers in the lot.
W. Va. Code R. § 61-9-22 Seed Conditioning
22.1. Upon application for a permit to condition certified seed, the department shall inspect the seed conditioning facilities of the applicant to determine that genetic purity and identity of seed conditioned can be maintained.
22.2. Upon approval, the department shall issue a seed conditioning permit, for each regular place of business, which shall be conspicuously displayed in the office of such business.
22.3. The permit shall remain in effect for one calendar year.
22.4. The applicant is responsible for paying all necessary fees (Appendix 6 – Registration & Poundage Fees).
22.5. All screenings, removed in the cleaning or conditioning of seeds, which contain prohibited or restricted noxious weed seeds shall be removed from the seed conditioning plant only under conditions that will prevent weed seeds from being dispersed into the environment.
APPENDIX NUMBER 1
Germination Standard for Agricultural Seeds The germination standard for all other agricultural seed, for which a standard has not been established, shall be 70%.
Kind Percent Kind Percent Alfalfa Fescue Barley Lespedeza Bentgrass Millet Bluegrass Oat Buckwheat Orchardgrass Clover, Alike Rye Clover, Crimson Ryegrass Clover, Ladino Sorghum Clover, Red Soybean Clover, Sweet Sudangrass Clover, White Timothy Cowpea Vetch Corn, Field Wheat
APPENDIX NUMBER 2
Hermetically Sealed Seed The seed in the container does not exceed the percentage of moisture, on a wet weight basis as listed:
Agricultural Seeds Percent Beet, Field 7.5 Beet, Sugar 7.5 Bluegrass, Kentucky 6.0 Clover, Crimson 8.0 Fescue, Red 8.0 Ryegrass, Annual 8.0 Ryegrass, Perennial 8.0 All others 6.0 Mixtures of Above 8.0 Bean, Garden 7.0 Bean, Lima 7.0 Beet 7.5 Broccoli 5.0 Brussels Sprouts 5.0 Cabbage 5.0 Carrot 7.0 Cauliflower 5.0 Celeriac 7.0 Celery 7.0 Chard, Swiss 7.5 Chinese Cabbage 5.0 Chives 6.5 Collards 5.0 Corn, Sweet 8.0 Agricultural Seeds Percent Cucumber 6.0 Eggplant 6.0 Kale 5.0 Kohlrabi 5.0 Leek 6.5 Lettuce 5.5 Muskmelon 6.0 Mustard, India 5.0 Onion 6.5 Onion, Welsh 6.5 Parsley 6.5 Parsnip 6.0 Pea 7.0 Pepper 4.5 Pumpkin 6.0 Radish 5.0 Rutabaga 5.0 Spinach 8.0 Squash 6.0 Tomato 5.5 Turnip 5.0 Watermelon 6.5 All Others 6.0
APPENDIX NUMBER 3
Germination Standard for Vegetable Seeds The germination standards for all other vegetable and herb seed, for which a standard has not been established, shall be 50%.
Kind Percent Anise 50 Artichoke 60 Asparagus 70 Asparagusbean 75 Basil, Sweet 70 Bean, garden 70 Bean, Lima 70 Bean, Runner 75 Beet 65 Broadbean 75 Broccoli 75 Brussel Sprouts 70 Burdock, Great 60 Cabbage 75 Cabbage Tronchuda 70 Cantaloupe (see Muskmelon)
Caraway 55 Cardoon 60 Carrot 55 Cauliflower 75 Celeraic 55 Celery 55 Chard, Swiss 65 Chervil, Salad 65 Chicory 65 Chinese Cabbage 75 Chives 50 Collards 80 Citron 65 Coriander 70 Corn, Pop 75 Corn, Sweet 75 Cornsalad 70 Cowpea 75 Cress, Garden 75 Cress, Upland 60 Cress, Water 40 Cucumber 80 Dandelion 60 Eggplant 60 Endive 70 Fennel, Florence 60 Fennel, Sweet 50 Kale 75 Kale, Chinese 75 Kale, Siberian 75 Kohlrabi 75 Leek 60 Lettuce 80 Muskmelon 75 Marjoram, Sweet 50 Mustard 75 Mustard, Spinach 75 Okra 50 Onion 70 Onion, Welsh 70 Oregano 60 Pak-Choi 75 Parsley 60 Parsnip 60 Pea 80 Peanut 80 Pepper 60 Pumpkin 75 Radish 75 Rhubarb 60 Roquette 60 Rosemary 30 Rutabaga 75 Sage 60 Salsify 75 Savory, Summer 55 Sorrel 65 Soybean 75 Spinach 60 Spinach, New Zealand 40 Squash 75 Thyme 50 Tomato 75 Tomato, Husk 50 Turnip 80 Watermelon 70
APPENDIX NUMBER 4
Kind of Tree and Shrub Seeds Subject to Germination Labeling Abies amabilis (Dougl.) Forbes - Pacific Silver Fir Abies balsamea (L.) Mill. - Balsam Fir Abies concolor (Gord. Glend.) Lindl. - White Fir Abies fraseri (Pursh.) Poir - Fraser Fir Abies grandis (Dougl.) Lindl. - Grand Fir Abies homolepis Sieb Zucc. - Nikko Fir Abies lasiocarpa (Hook) Nutt. - Subalpine Fir Abies magnifica A. Murr. - California Red Fir Abies magnifica var. shastensis Lemm. - Shasta Red Fire Abies procera Rehd. - Nobel Fir Abies veitchii (Lindl.) - Veitch Fir Acer ginnala Maxim. - Amur Maple Acer macrophyllum Pursh. - Bigleaf Maple Acer negundo L. - Boxelder Acer pensylvanicum L. - Striped Maple Acer platanoides L. - Norway Maple Acer pseudoplatanus L. - Sycamore Maple Acer rubrum L. - Red Maple Acer saccharinum L. - Silver Maple Acer saccharum Marsh, - Sugar Maple Acer spicatum Lam. - Mountain Maple Aesculus pavia L. - Red Buckeye Berberis vulgaris L. - European Barberry Betula lenta L. - Sweet Birch Betula alleghaniensis Britton - Yellow Birch Betula nigra L. - River Birch Betula papyrifera Marsh. - Paper Birch Betula pendula Roth. - European White Birch Betula populifolian Marsh. - Gray Birch Carya illinoensis (Wang.) K. Koch - Pecan Carya ovata (Mill) K. Koch - Shagbark hickory Casuarina spp. - Beefwood Catalpa bignonioides Walt. - Southern Catalpa Catalpa speciosa Warder. - Northern Caralpa Cedrus atlantica Manetti - Atlas Cedar Cedrus deodara (Roxb.) Loud. - Deodar Cedar Cedrus libani (Loud.) - Cedar of Lebanon Celastrus orbiculata Thunb. - Oriental Bittersweet Chamaecyparis lawsoniana (A. Murr.) Parl - Port Oxford Cedar Chamaecyparis nootkatensis (D. Don.) Spach. - Alaska Cedar Clastrus scandens L. - American Bittersweet Cornus florida L. - Flowering dogwood Cornus stolonifera Michx. - Red-osier dogwood Crataegus mollis - Downy hawthorn Cupressus arizonica Greene - Arizona Cypress Eucalyptus deglupta Eucalyptus gradis Fraxinus americana L. - Whi'e Ash Fraxinus excelsior L. - European Ash Fraxinus latifolia Benth. - Oregon Ash Fraxinus nigra Marsh. - Black Ash Fraxinus pensylvanica Marsh. - Green Ash Fraxinus pensylvanica var. lanceolata (Borkh.) Sarg. - Green Ash Gleditsia triacanthos L. - Honey Locust Grevillea robusta - Silk-oak Larix decidua Mill - European Larch Larix eurolepis Henry - Dunkfeld Larch Larix leptolepis (Sieb. Zucc.) Gord. - Japanese Larch Larix occidentalis Nutt. - Western Larch Larix sibirica Ledeb. - Siberian Larch Libocedrus decurrens - incense-cedar Liquidambar styraciflua L. - Sweetgum Liriodendron tulipifera L. - yellow-poplar Magnolia grandiflora - Southern magnolia Malus spp. - Apple Malus spp. - Crabapple Nyssa aquatica L. - Water tupelo Nyssa sylvatica var. sylvatica - Black tupelo Picea abies (L.) Karst. - Norway Spruce Picea engelmanni Parry - Engelmann Spruce Picea glauca (Moench.) Voss - White Spruce Picea glauca var. albertiana (S. Brown) Sarg. - Western White Spruce, Alberta White Spruce Picea glehnii (Fr. Schmidt) Mast. - Sakhalin Spruce Picea jezoensis (Sieb. Zucc.) Carr - Yeddo Spruce Picea koyamai Shiras. - Koyama Spruce Picea mariana (Mill.) B.S.P. - Black Spruce Picea omorika (Pancic.) Purkyne - Serbian Spruce Picea orientalis (L.) Link. - Oriental Spruce Picea polita (Sieb. Zucc.) Carr - Tigertail Spruce Picea pungens Engelm. - Blue Spruce, Colorado Spruce Picea pungens var. glauca Reg. - Colorado Blue Spruce Picea rubens Sarg. - Red Spruce Picea sitchensis (Bong.) Carr - Sitka Spruce Pinus albicaulis Engelm. - Whitebark Pine Pinus aristata Engelm. - Bristlecone Pine Pinus banksiana Lamb. - Jack Pine Pinus canariensis C. Smith - Canary Pine Pinus caribaea - Caribbean Pine Pinus cembroides Zucc. - Mexican Pinyon Pine Pinus clausa - Sand Pine Pinus conorta Dougl. - Lodgepole Pine Pinus contorta var. latifolia Engelm. - Lodgepole Pine Pinus coulteri D. Don. - Coulter Pine, Bigcone Pine Pinus densiflora Sieb. Zucc. - Japanese Red Pine Pinus echinata Mill. - Shortleaf Pine Pinus elliottii Engelm. - Slash Pine Pinus flexilis James - Limber Pine Pinus glabra Walt. - Spruce Pine Pinus griffithi McClelland - Himalayan Pine Pinus halepensis Mill. - Aleppo Pine Pinus jeffreyi Grev. Balf. - Jeffrey Pine Pinus khasya Royle - Khasia Pine Pinus lambertiana Dougl. - Sugar Pine Pinus heldreichii var. leucodermis (Ant.) Markgraf ex Fitschen - Balkan Pine, Bosnian Pine Pinus markusii DeVriese - Markus Pine Pinus monticola Dougl. - Western White Pine Pinus mugo Turra. - Mountain Pine Pinus mugo var. mughus (Scop.) Zenari - Mugo Swiss Mountain Pine Pinus muricata D. Don. - Bishoppine Pinus nigra Arnold - Austrian Pine Pinus nigra poiretiana (Ant.) Aschers Graebn. - Corsican Pine Pinus palustris Mill. - Longleaf Pine Pinus parviflora Sieb. Zucc. - Japanese White Pine Pinus patula Schl. Cham. - Jelecote Pine Pinus pinaster Sol. - Cluster Pine Pinus pinea L. - Italian Stone Pine Pinus ponderosa Laws. - Ponderosa Pine, Western Yellow Pine Pinus radiata D. Don. - Monterey Pine Pinus resinosa Ait. - Red Pine, Norway Pine Pinus rigida Mill. - Pitch Pine Pinus serotina Michx. - Pond Pine Pinus strobus L. - Eastern White Pine Pinus sylvestris L. - Scotch Pine Pinus taeda L. - Loblolly Pine Pinus taiwanensis Hayata - Formosa Pine Pinus thunbergii Parl. - Japanese Black Pine Pinus virginiana Mill. - Virginia Pine, Scrub Pine Platanus occidentalis L. - American Sycamore Populus spp. - Poplars Prunus armeriaca L. - Apricot Prunus avium (L.) L. - Cherry Prunus domestica L. - Plum, Prune Prunus persica Batsch. – Peach Pseudotsuga menziesii var. glauca (Beissn.) Franco - Blue Douglas Fir Pseudotsuga menziesii var. caesia (Beissn.) Franco - Gray Douglas Fir Pseudotsuga menziesii var. viridis - Green Douglas Fir Pyrus communis L. - Pear Quercus spp. - (Red or black oak group)
Quercus alba L. - White oak Quercus muehlenbergii Engelm. - Chinkapin oak Quercus virginiana Mill. - Live Oak Rhododendron spp. – Rhododendron Robinia pseudoacacia L. - Black Locust Rosa multiflora Thunb. - Japanese Rose Sequoia gigantea (Lindl.) Decne. - Giant Sequoia Sequoia sempervirens (D. Don.) Engl. - Redwod Syringa vulgaris L. - Common Lilac Thuja occidentalis L. - Northern White Cedar, Eastern Arborvitae Thuja orientalis L. - Oriental Arborvitae, Chinese Arborvitae Thuja plicata Donn. - Western Red Cedar - Giant Arborvitae Tsuga canadensis (L.) Carr. - Eastern Hemlock, Canada Hemlock Tsuga heterophylla (Raf.) Sarg. - Western Hemlock, Pacific Hemlock Ulmus americana L. - American Elm Ulmus parvifolia Jacq. - Chinese Elm Ulmus pumila L. - Siberian Elm Vitis vulpina L. - Riverbank Grape
APPENDIX NUMBER 5
Germination Standard for Flower Seed.
The kinds of flower seeds listed below are those for which standard testing procedures have been prescribed and which are therefore required to be labeled in accordance with the germination labeling provisions of Section 2 of the (state seed law). The percentage listed opposite each kind is the germination standard for that kind. For the kinds marked with an asterisk, the percentage is the total of percentage germination and percentage hard seed. For other kinds, it is the percentage germination.
Seed Kind Percent Archillea (The Pearl) - Achillea ptarmica 50 African Daisy Dimorphothecaurantiaca 55 African Violet- Saintpaulia spp 30 Ageratum- Ageratum mexicanum 60 Agrostemma (rose campion) – Agrostemma coronaria 65 Alyssum- Alyssum compactum, A.
Maritumum, A. procumbens, A. saxatile 60 Amaranthus- Amaranthus spp 65 Anagalis (primpernel) - Anagalis arvensis, Anagalis coerulia, Anagalis grandiflora 60 Anemone- Anemone coronaria, A.pulsatilla 55 Angel’s Trumpet- Datura arborea 60 Arabis- Arabis alpine 60 Arctotis- (African lilac daisy)- Arctotis grandis 45 Armeria- Armeria Formosa 55 Asparagus, fern- Asparagus plumosus 50 Asparagus, sprenger, Asparagus sprengeri 55 Aster, China- Callistephus chinensis; Except Pompon, Powderpuff, and Princess types 55 Aster, China- Callistephus chinensis;
Pompon, Powderpuff, and Princess types 50 Aubretia - Aubretia deltoids 45 Baby Smilax - Aparagus asparagoides 25 Balsam - Impatiens balsamina 70 Begonia - (Begonia fibrous rooted) 60 Begonia - (Begonia tuberous rooted) 50 Bells of Ireland - Molucella laevis 60 Brachycome (swan river daisy) – Brachycome iberidifolia 60 Browallia - Browallia elata and B. speciose 65 Bupthalum (sunwheel) – Buphthalum salicifolium 60 Seed Kind Percent Calceolaria - Calceolaria spp 60 Calendula - Calendula officinalis 65 California Poppy - Eschscholtzia californica 60 Calliopsis - Coreopsis bicolor, C. drummondi, C. elegans Campanula 65 Canterbury Bells - Campanula medium 60 Cup and Saucer Bellflower – Campanula medium calycanthema. 60 Carpathian Bellflower - Campanula carpatica 50 Peach Bellflower -Campanula persicifolia 50 Candytuft, Annual - Iberis amara, I.umbellate 65 Candytuft, Perennial - Iberis gibraltarica, I. sempervirens 55 Castor Bean - Ricinus communis 60 Cathedral Bells - Cobaea scandens 65 Celosia - Celosia argentea 65 Centaurea: Basket Flower – Centaurea Americana 65 Cornflower - C. cyanus, Dusy Miller - C. candidissima, Royal Centaurea,C. imperialis Sweet Sultan – C. moschata, Velvet Centaurea C. gymnocarpa 60 Cerasium (snow-in-summer)
Cerastium biebersteini andC. Tomentosum 65 Chinese Forget-me-not – Cynoglossum amabile 55 Chrysanthemum, Annual - Chrysanthemum carinatum C.coronarium, C. segetum 50 Cineraria – Senecio cruentus 60 Clarkia - Clarkia elegans 65 Cleome - Cleome gigantean 65 Coleus - Coleus blumei 65 Columbine - Aquilegia spp 50 Coral Bells - Heuchera sanguinea 55 Coreopsis, Perennial - Coreopsis lanceolata 40 Corn, ornamental - Zea mays 75 Cosmos: Sensation, Mammoth and Crested types – Cosmos bipinnatus;
Klondyke type - C . sulphureau 65 Crossandra - Crossandra infundibuliformis 50 Dahlia - Dahlia spp 55 Daylily - Hemerocallis spp 45 Delphinium, Perennial- Belladonna and Bellamosum types Cardinal Larkspur - Delphinium cardinale; Chinensis types; Pacific Giant, Gold Medal and other hybrids of D. elatum 55 Dianthus:
Carnation - Dianthus caryophyllus 60 China Pinks - Dianthus chinensis, heddewigi 70 Heddensis 60 Grass Pinks - Dianthus plumarius 60 Maiden Pinks - Dianthus deltoids 70 Sweet William - Dianthus barbatus 60 Sweet Wivelsfield - Dianthus allwoodi 60 Didiscus - (blue lace flower) – Didiscus coerulea 65 Doronicum (leopard's bane) - Doronicum caucasicum 60 Dracaena - Dracaena indivisa 55 Dragon Tree - Dracaena draco 40 English Daisy - Bellis perennis 55 Flowering Maple - Abutilon spp 35 Flax - Golden flax (Linum flavum);
Flowering flax L. randiflorum; Perennial flax, L. perenne 60 Foxglove - Digitalis spp 60 Gaillardia, Annual - Gaillardia pulchella;
G. picta; Perennial - G. grandiflora 45 Gerbera (transvaal daisy) - Gerbera jamesoni 60 Geum - Geum spp 55 Gilia - Gilia spp 65 Gloriosa daisy (rudbeckia) – Echinacea purpurea and Rudbeckia hirta 60 Gloxinia - Sinningia speciose 40 Godetia - Godetia amoena, G. grandiflora 65 Gourds: Yellow Flowered - Cucurbita pepo;
White Flowered – Lagenaria sisceraria;
Dishcloth - Luffa cylindrical 70 Gypsophila: Annual Baby's Breath – Gypsophlla elegans;
Perennial Baby's Breath - G. paniculata, G. pacifica; G. Repens 70 Helenium - Helenium autumnale 40 Helichrysum - Helichrysum monstrosum 60 Heliopsis - Heliopsis scabra 55 Heliotrope - Heliotropium spp. 35 Helipterum (Acroclinium) Helipterum roseum 60 Hesperis (sweet rocket) -Hesperis matronalis 65 *Hollyhock - Althea rosea 65 Hunnemania (mexican tulip poppy) – Hunnemania Fumariaefolia 60 Hyacinh bean - Dolichos lablab 70 Impatiens - Impatiens hostii, I. sultani 55 *Ipomea - Cypress Vine - Ipomea quamoclit; Moonflower – I. noctiflora; Morning Glories, Cardinal Climber, Hearts and Honey Vine – Ipomea spp 75 Jerusulem cross (maltese cross) - Lychnis chalcedonica 70 Job's Tears - Coix lacrymajobi 70 Kochia - Kochia childsi 55 Larkspur, Annual - Delphinium ajacis 60 Lantana - Lantana camara, L. hybrid 35 Lilium (regal lily) - Lilium regale 50 Linaria - Linaria spp 65 Lobelia, Annual - Lobelia erinus 65 Lunaria, Annual - Lunaria annua 65 *Lupine - Lupinus spp 65 Marigold - Tagetes spp 65 Marvel of Peru - Mirabilis jalapa 60 Matricaria (feverfew) - Matricaria spp 60 Mignonette - Reseda odorata 55 Myosotis - Myosotis alpestris, M. oblongata, M. palustris 50 Nasturtium - Tropaeolum spp 60 Nemesia - Nemesia spp 65 Nemophila - Nemophila insignis 70 Nemophila, spotted - Nemophila maculate 60 Nicotiana - Nicotiana affinis, N. sanderae, N. sylvestris 65 Nierembergia - Nierembergia spp 55 Nigella - Nigella damascene 55 Pansy - Viola tricolor 60 Penstemon - Penstemon barbatus, P. grandflorus, P. laevigatus, P. pubescens. 60 Petunia - Petunia spp 45 Phacelia - Phacelia campanularia, P. minor, P. tanacetifolia 65 Phox, Annual - Phlox drummondi all types and varieties 55 Physalis - Physalis spp 60 Platycodon (balloon flower) - Platycodon grandiflorum 60 Plumbago, cape - Plumbago capensis 50 Ponytail - Beaucarnea recurvate 40 Poppy: Shirley Poppy - Papaver rhoeas; Iceland Poppy - P. nudicaule; Oriental Poppy – P. orientale; Tulip Poppy - P. glaucum 60 Portulace - Portulaca grandiflora 55 Primula (primrose) - Primula spp 50 Pyrethrum (painted daisy) – Pyrethrum coccineum 60 Salpiglossis - Salpiglossis gloxinaeflora, S. sinuate 60 Salvia - Scarlet Sage - Salvia splendens;
Mealycup Sage (blue bedder) – Salvia farinacea 50 Saponaria - Saponaria ocymoides, S. vaccaria 60 Scabiosa, Annual - Scabiosa atropurpurea 50 Scabiosa, Perennial - Scabiosa caucasica 40 Schizanthus - Schizanthus spp 60 *Sensitive pant (mimosa) - Mimosa pudica 65 Shasta Daisy - Chrysanthemum maximum C. Leucanthemum 65 Silk Oak - Grevillea robusta 25 Snapdragon - Antirrhinum spp 55 Solanum - Solanum spp 60 Statice - Statice sinuata, S. suworonii (flower heads) 50 Stocks: Common - Mathiola incana Evening Scented - Mathiola bicornis 65 Sunflower - Helianthus spp 70 Sunrose - Helianthemum spp 30 *Sweet Pea, Annual and Perennial other than dwarf bush - Lathyrus odoratus, L latifolius 75 *Sweet Pea, dwarf bush - Lathyrus odoratus 65 Tahoka daisy - Machaeanthera tanacetifolia 60 Thunbergia - Thunbergia alata 60 Torch Flower - Tithonia speciose 70 Torenia (wishbone flower) - Torenia fournieri 70 Tritoma - Kniphofia spp 65 Verbena, Annual - Verbena hybrid 35 Vinca - Vinca rosea 60 Viola - Viola cornuta 55 Virginian stocks - Malcolmia maritime 65 Wallflower - Cheiranthus allioni 65 Yucca (Adam's needle) - Yucca filamentosa 50 Zinna (except Linearis and Creeping) - Zinnia angustifolia, Z. elegans, Z. grandiflora, Z. gracillima, Z. haegeana, Z. multiflora, Z. pumila 65 Zinnia, Linearis and Creeping - Zinnia linearis, Sanvitalia procumbens 50 All other kinds 50 A mixture of kinds of flower seeds will be considered to be below the standard if the germination of any kind or combination of kinds constituting 25 percent or more of the mixture by number is below standard for the kind or kinds involved.
APPENDIX NUMBER 6
REGISTRATION AND POUNDAGE FEES
(1) Registration of Seedsman $125.00 (2) Packet Display Stamps $10.00 each (3) Poundage Fee for Forest and Forage Seeds - $0.50 per 100 weight (4) Poundage Fee for Agriculture Crop Seeds - $0.50 per 100 weight (5) Seed Potatoes - $0.35 per 100 weight (6) Registration Late Fee Penalty $100.00 (7) Tonnage Late Fee Penalty $100.00 (8) Seed Conditioning Facility Inspection $100.00 (9) Seed Conditioner Permit $125.00
APPENDIX NUMBER 7
Testing Fees Kind of Seed Germination Purity & West Virginia Noxious Weed Seed Examinations Complete Test* Bulk Examination Vegetables Lawn, Forage, & Native Grasses $25 Grains $17 Clovers, Alfalfas, Lespedezas, & Similar Seeds $17 Flowers $25 Trees & Shrubs $20 $20 $25 $20 *A Complete Test consists of purity, germination, and West Virginia noxious weed seed examination.
Miscellaneous Tests All States Noxious Weed Seed Examination $35 Seed Count Moisture Content Miscellaneous Charges Washing of Coated, Pelleted, or Treated Seed
Series 10 Fresh Food Act
W. Va. Code R. § 61-10-1 General
1.1. Scope. -- The purpose of this law is to establish rules and regulations for enforcement and administration of the West Virginia Fresh Food Act, with a goal of increasing the availability of locally-grown foods, developing a market for locally-grown foods, encouraging state-funded institutions to engage in agricultural activities, and spurring self-sufficiency and economic independence.
1.2. Authority. -- West Virginia Code §19-37-3
1.3. Filing Date. – April 15, 2022
1.4. Effective Date. – April 18, 2022
1.5. Sunset Provision. -- This rule shall terminate and have no further force and effect August 1, 2032.
W. Va. Code R. § 61-10-2 Definitions
2.1. “Commissioner” means the West Virginia Commissioner of Agriculture, or his or her designee.
2.2. “Department” means the West Virginia Department of Agriculture.
2.3. “Fiscal year” means the period from July 1 to June 30 of each year, and corresponds to the time of the state budget adopted by the West Virginia Legislature.
2.4. “Fresh Food Act” or “Act” means the West Virginia Fresh Food Act, codified at W. Va. Code §§19-37-1 et seq.
2.5. “Meat” means beef, sheep, goat, venison, fish or other farm-raised animal, other than poultry.
2.6. “Milk or other dairy products” means and includes fluid milk produced by one or more healthy hooved lactating mammals and all products produced from milk with a standard of identity provided for in 21 CFR Part 131. For purposes of this rule, cheese and other related cheese products shall be included as a milk product.
2.7. “Minimal Processing” means modifications of raw agricultural products that do not change the fundamental characteristics of the product. Examples include, but are not limited to, refrigerating, freezing, peeling, slicing, dicing, cutting, chopping, shucking, grinding, forming ground products into patties without any additives or fillers, drying, dehydrating, washing, packaging, vacuum packing and bagging, adding ascorbic acid or other preservatives to prevent oxidation, butchering livestock and poultry and cleaning fish.
2.8. “Poultry” means any farm-raised bird.
2.9. “Processing” means washing, cleaning, milling, cutting, chopping, heating, pasteurizing, blanching, cooking, canning, freezing, drying, dehydrating, mixing, packaging or other procedures that alter the food from its natural state. This may include the addition of other ingredients to the food, such as preservatives, flavors, nutrients and other food additives or substances approved for use in food products, such as salt, sugars and fats. The term “processing” does not include “minimal processing” for purposes of qualifying as a West Virginia food or West Virginia product.
2.10. “Produce” means minimally processed fruits, vegetables, nuts, legumes or similar products.
2.11. “State-funded Institutions” means facilities, ventures or organizations, such as, but not limited to, schools, colleges, correctional facilities, governmental agencies and state parks, that receive state funding. For purposes of this rule, each department, division, agency, board, commission, or other unit or sub-unit of government is considered to be a separate state-funded institution.
2.12. “West Virginia food distributor” means an individual or business entity with a legal presence in West Virginia that transports, aggregates or resells West Virginia produce, meat or poultry.
2.13. “West Virginia foods” means food products, including but not limited to meat, poultry, produce, milk, or other dairy products, that are either totally grown, produced, or processed in West Virginia, or which have at least 50% of the total value added in West Virginia by in-state producers. Products that have been certified as part of the Department’s West Virginia Grown program are presumed to qualify for this designation.
2.14. “West Virginia Producer” means an individual, farm or business entity that produces or processes West Virginia foods within the state of West Virginia.
W. Va. Code R. § 61-10-3 State-Funded Institution Liaisons
3.1. No later than September 1, 2019, each state-funded institution shall appoint an individual to serve as primary liaison to the Department for purposes of providing information to monitor and ensure compliance with the Fresh Food Act.
3.1.a. An individual may serve as the primary liaison for one or more state-funded institutions, so long as he or she has access to the required information to perform the functions of the role.
3.1.b. Each state-funded institution shall annually review and, if necessary, update its primary liaison with the Department.
3.1.c. Compliance with this registration requirement is a prerequisite for a state-funded institution to obtain a phase-in waiver from full compliance with the requirements of the Act for Fiscal Year 2020, as provided in section 6.2 below.
3.2. A state-funded institution is exempt from this requirement only if the state-funded institution has not purchased, either directly or indirectly, food in the immediately preceding ten years.
3.2.a. To qualify for this exemption, the state-funded institution must notify the Department of their claimed eligibility no later than September 1, 2019.
3.2.b. The Department retains final authority to determine whether a state-funded institution is eligible for this exemption.
W. Va. Code R. § 61-10-4 Initial Submission of Information
4.1. No later than January 1, 2020, each state-funded institution shall submit to the Department all contracts or agreements for food, or for which food was an element (such as a conference agreement or other service agreement) entered into by the state-funded institution in the preceding three completed fiscal years.
4.2. No later than March 31, 2020, each state-funded institution shall submit, in a form provided by the Department, the following analysis of the contracts and agreements submitted pursuant to section 4.1:
4.2.a. A calculation detailing the percentage of West Virginia foods that were purchased annually over the preceding three years;
4.2.b. The types of West Virginia foods that were purchased as part of those contracts or agreements;
4.2.c. Any efforts taken to solicit or obtain West Virginia foods as part of those contracts or agreements; and
4.2.d. Contact information for each entity with which a contract or agreement was made.
W. Va. Code R. § 61-10-5 Requirements for State-funded Institutions
5.1. Beginning July 1, 2019, all state-funded institutions are required to purchase a minimum of five percent of its food from in-state producers.
5.2. No later than August 31, 2020, and by August 31 of each year thereafter, each state-funded institution shall submit to the Department a food purchasing report, on a form provided by WVDA, the following information for the prior fiscal year:
5.2.a. The total amount spent, either directly or indirectly, on the purchase of food;
5.2.b. The quantity, and reasonable cash value, of the produce, meat, and poultry grown or raised by the institution which shall count toward its required purchase percentage of West Virginia foods;
5.2.c. The percentage, as a share of dollars spent, of food purchased over the past fiscal year that satisfied the West Virginia foods requirement;
5.2.d. Prior fiscal year documentation detailing expenditures on all food purchased; and
5.2.e. Any other information requested by the Commissioner.
5.3. A state-funded institution that qualifies for a phase-in waiver, as provided by section 6.2 of this rule, shall be eligible to phase in its compliance with the requirements of the Fresh Food Act on the following schedule:
5.3.a. For Fiscal Year 2021 beginning on July 1, 2020, each state-funded institution shall purchase at least one percent (1%) West Virginia food.
5.3.b. For Fiscal Year 2022 beginning on July 1, 2021, each state-funded institution shall purchase at least two percent (2%) West Virginia food.
5.3.c. For Fiscal Year 2023 beginning on July 1, 2022, each state-funded institution shall purchase at least three percent (3%) West Virginia food.
5.3.d. For Fiscal Year 2024 beginning on July 1, 2023, each state-funded Institution shall purchase at least four percent (4%) West Virginia food.
5.3.e. For Fiscal Year 2025 beginning on July 1, 2024, each state-funded Institution shall purchase at least five percent (5%) West Virginia food.
W. Va. Code R. § 61-10-6 Waiver Applications
6.1. The Commissioner shall have the sole authority to grant waivers to institutions in certain circumstances. Two types of waivers are recognized:
6.1.a. Phase-in waivers, which will authorize a state-funded institution to gradually increase its purchase of West Virginia food, as provided in section 5.3 of this rule; and
6.1.b. Waivers from the annual purchase requirements, which will authorize a state-funded institution to obtain a retroactive waiver from the requirements of the Fresh Food Act.
6.2. A state-funded institution shall be eligible for a phase-in waiver if the following requirements are met:
6.2.a. A primary liaison is identified, and regularly updated, as required by section 3.1;
6.2.b. All information is submitted as required by sections 4.1 and 4.2; and
6.2.c. Annual reports required by section 5.2 are submitted timely.
6.3. A state-funded institution shall be eligible for a waiver from the annual purchase requirements for a particular year.
6.3.a. The following circumstances may qualify a state-funded institution for a waiver:
6.3.a.1. The state-funded institution has made a good faith effort to increase the percentage of West Virginia Food it purchases;
6.3.a.2. The state-funded institution cannot secure an adequate supply of food from West Virginia producers after making diligent efforts to do so; or
6.3.a.3. Other extenuating circumstances, as determined by the Commissioner, prevent the state-funded institution from meeting the local purchasing requirements.
6.3.b. To be eligible for a waiver, the state-funded institution must submit the following information, on or before July 31 following the fiscal year for which the waiver is sought:
6.3.b.1. The purchasing report form required by section 5.2 of this rule;
6.3.b.2. A description of the circumstances that give rise to the request for a waiver;
6.3.b.3. An explanation of the efforts taken by the state-funded institution to comply with the requirements of the Fresh Food Act;
6.3.b.4. A plan to increase the percentage of West Virginia food purchased in the next fiscal year;
6.3.b.5. Documentation supporting the waiver application; and
6.3.b.6. Any additional information requested by the Commissioner.
6.3.c. No state-funded institution shall be eligible for a fiscal year waiver if it has not satisfied all the requirements set forth in section 6.2 of this rule for the phase-in waiver.
6.4. A state-funded institution seeking a waiver pursuant to this section shall petition the Commissioner, on a form provided by the Department, submit information necessary to demonstrate its eligibility, along with any additional information or documentation required by the Commissioner.
6.4.a. Upon receipt of a petition from a state-funded institution, the Commissioner shall review the request and provide a written response within sixty (60) days of receipt.
6.4.b. A state-funded institution that receives an adverse determination from the Commissioner shall have the right to request a second review of its application, either in writing or via a hearing before the Commissioner or his or her designee, to reconsider the decision. Such request must be received within fifteen (15) days of the adverse determination.
6.4.c. The decision of the Commissioner, either after the expiration of the time to petition for a second review or following the final decision following a second review, shall be considered final. State-funded institutions are not eligible for administrative appeals as set forth in W. Va. Code §29A-5-1 et seq.
6.5. A state-funded institution that has qualified for a waiver pursuant to section 6.3 of this rule shall be required, during the next fiscal year immediately following the year for which the waiver was granted, to cooperate and collaborate with the Department in an effort to improve the state-funded institution’s ability to increase its purchase of West Virginia food. Application for, and granting of, a waiver is expressly conditioned upon agreement to this requirement.
W. Va. Code R. § 61-10-7 Enforcement of the Fresh Food Act with State-Funded Institutions
7.1. The Commissioner has authority to enforce the provisions of this rule and the Fresh Food Act.
7.2. If a state-funded institution is determined to be in violation of the requirements of the Fresh Food Act and has not obtained a waiver from the Commissioner, the Commissioner has the authority to require a state-funded institution to:
7.2.a. Submit to additional and ongoing oversight by the Department;
7.2.b. Obtain Department approval prior to entering into any contracts that involve the purchase of food;
7.2.c. Pay a fine commensurate with the good faith, or lack thereof, demonstrated by the state-funded institution in attempting to comply with the requirements of the Fresh Food Act; or
7.2.d. Engage in any other conduct reasonably believed by the Commissioner to improve the ability of the state-funded institution to comply with the requirements of the Fresh Food Act in future years.
7.3. State-funded institutions determined by the Commissioner have insufficient reason to be granted a waiver pursuant to section 6 of this rule shall be considered to be in violation of the Act.
7.4. The Department may prepare and provide to the West Virginia Legislature an annual report on the implementation of the Fresh Food Act, including:
7.4.a. A list of state-funded institutions in violation of the Act;
7.4.b. A list of waivers provided, and the reason such waivers were granted;
7.4.c. A list of waiver applications that were denied or refused; and
7.4.d. Any other information deemed relevant by the Commissioner of Agriculture.
W. Va. Code R. § 61-10-8 Enforcement Against West Virginia Producers and Sellers of West Virginia Foods
8.1. The Commissioner has authority to review purchases and investigate the eligibility of products identified as qualifying as West Virginia foods.
8.2. Any seller who fraudulently misrepresents the geographical source of food sold to a state-funded institution, or otherwise engages in deception or other disqualifying practices, shall be barred from participating in the West Virginia Fresh Food Act and its enforcement.
8.3. Upon a conclusion that a producer has violated the provisions of section 5.2, the Commissioner shall make products sold by that producer ineligible to be considered West Virginia foods.
8.3.a. The period of ineligibility shall be for a minimum of one year from the date on which the order is issued.
8.3.b. Upon the conclusion of the ineligibility period, the producer may petition the Commissioner for reinstatement into the program.
8.3.c. The Commissioner shall have the sole discretion to effect reinstatement or to continue to bar a seller that has engaged in fraud.
8.3.d. The Commissioner may consider the totality of the circumstances in using his or her discretion to grant or deny the petition for reinstatement into the West Virginia Fresh Food Program.
8.4. Upon disqualification of products from a producer, or upon the end of their period of disqualification, the Commissioner shall notify the producer liaisons for each state-funded institution to advise them of the action.
8.5. A producer aggrieved by the decision of the Commissioner may petition for reconsideration of the decision, either through a written submission or via a hearing before the Commissioner or his or her designee.
8.5.a. Such request must be received within fifteen (15) days of receipt of the Commissioner’s adverse determination.
8.5.b. The decision of the Commissioner, either after the expiration of the time to petition for a second review or following the final decision following a second review, shall be considered final. State-funded institutions are not eligible for administrative appeals as set forth in W. Va. Code §29A-5-1 et seq.
W. Va. Code R. § 61-10-9 Construction of Rules to Further Public Policy
9.1. These rules shall be construed broadly to further the public policy set forth in the Fresh Food Act. In the event of question of eligibility or any form of ambiguity, the Commissioner of Agriculture has the authority to decide if identifying the proposed food as a West Virginia food will benefit the West Virginia agricultural economy.
9.2. These rules shall not be construed to allow West Virginia entities to resell products produced or grown outside of West Virginia’s borders that have been subject to only minimal processing in order to satisfy the provisions of the Fresh Food Act.
9.3. These rules shall not be construed to prevent producers from purchasing agricultural inputs from out-of-state vendors. Inputs may include but are not limited to feed, seed, fertilizer, plugs, seedlings, chicks, livestock, or other inputs for West Virginia foods.
9.4. Any contract for the purchase of food entered into by a state institution must contain a provision requiring five percent of the food purchased be West Virginia foods.
9.4.a. If a state entity has qualified for the phase-in waiver established in section 6.2, the contract may also include such phase-in.
9.4.b. Inclusion of phase-in language by a state institution that has not qualified for the phase-in waiver will constitute a violation of the Act.
9.5. Any state institution or contractor providing food to a state institution may seek assistance or guidance from the Department concerning whether certain foods or products qualify as West Virginia foods.
9.5.a. In the event of question of eligibility or any form of ambiguity, the Commissioner has the authority to decide if the proposed products is of benefit to the West Virginia agricultural economy.
9.5.b. State institutions and contracting entities may solicit the assistance of the Department with sourcing West Virginia foods. Requesting assistance does not obligate the Department to identify food sources, nor does it relieve the state institution of the obligation to comply with the Act.
9.5.c. The Department may assess state institutions or contracting entities a fee based on Department time and resources spent assisting the state institution or contracting entity.
9.6. These rules do not relieve in-state producers from any other requirements mandated by the West Virginia Tax Department, the West Virginia Secretary of State, the State Purchasing Division, or any other applicable legal authority.
Series 11 Regulations Governing Public Markets
W. Va. Code R. § 61-11-1 General
1.1. Scope. -- These regulations establish general operating procedures for public markets.
1.2. Authority. -- W. Va. Code ''19-1-4B, 19-2 and 2A.
1.3. Filing Date. -- May 14, 2026.
1.4. Effective Date. -- May 14, 2026.
1.5. Sunset Date. -- This rule shall expire and have no further force or effect August 1, 2031.
W. Va. Code R. § 61-11-2 Incorporation by Reference
2.1. USDA-Aphis LBMS Uniform Program Standards
2.2. USDA-FSIS Standards for Slaughter and Meat Processing.
W. Va. Code R. § 61-11-3 Definitions
3.1. "Bond" means a bond conditioned as the commissioner may require and acceptable to him, payable to the State of West Virginia, for the benefit of the consignors at a public market of livestock, poultry, and other agricultural and horticultural products, who have been wronged or damaged by any fraud or fraudulent practices of the market and so adjudged by a court of competent jurisdiction and who shall have the right of action for damage for compensation against such bond.
The form of the bond shall be approved by the commissioner and may include, at the option of the applicant, surety bonding, collateral bonding (including costs and securities), establishment of an escrow account or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia; or other states, and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. It shall be the duty of the applicant to ensure the market value of such bonds are sufficient. The commissioner shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the treasurer of the State of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The applicant making the deposit is made when the permit is issued. The applicant making the deposit shall be entitled from time to time to receive from the state treasurer, upon the written approval of the commissioner, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him in lieu therefore, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.
3.2. "Commissioner," as defined in the law, is the Commissioner of Agriculture of the State of West Virginia or his authorized agent.
3.3. "Department" means the West Virginia Department of Agriculture.
3.4. "Feeding and Breeding Purposes" means any livestock received, sold, offered or exposed for sale for purposes other than immediate slaughter.
3.5. "Grade" means the standards used to grade and classify livestock in West Virginia shall be the same as those established by the United States Department of Agriculture or that might be established by the Commissioner.
3.6. "Immediate Slaughter" means livestock purchased by persons, firms or corporations engaged in shipping direct from the market to terminal markets or slaughtering places. Livestock purchased for immediate slaughter shall not be returned to farms.
3.7. “Live Bird Market System” means live bird markets and their production and processing systems.
3.8. "Livestock Technician" means a livestock inspector or other person in the employ of the department and approved by the Commissioner to carry out the provisions of this rule.
3.9. “National Poultry Improvement Plan” or (NPIP) means a cooperative federal-state-industry mechanism for controlling certain poultry diseases as set forth in the National Poultry Improvement Plan and Auxiliary Provisions set forth in Title (44) of the Code of Federal Regulations Parts 145 through 147 and part 56 published March 22, 2011.
3.10. "Person," as defined in the law, includes any individual, partnership, corporation or association.
3.11. "Product" means any livestock, poultry and other agricultural or horticultural products.
3.12. "Public Market" as defined in the law is: (1) Any place of business where livestock, poultry or other agricultural or horticultural products are received and sold at public auction or, (2) any place where livestock is received from producers, assembled and sold or offered for sale, including but not limited to stockyards, buying stations, consignment, or by any public auction. The term public market shall include all such places where such activities are conducted, whether or not such activities are performed according to a scheduled routine or a historically established pattern of days and times: Provided, That sales totally sponsored, organized and financed by the State of West Virginia or by any state, regional or county agricultural fair or festival, or by any 4-H, FFA or other educational activity, shall not be included in this definition. Annual sales held by nonprofit associations or nonprofit corporations devoted to improving the quality of beef cattle or other livestock raised in this state where the net proceeds from such sales are used exclusively for the association or corporation conducting such sale, or purebred livestock sales conducted by generally recognized breed associations, shall not be subject to the provisions of sections §61CSR11-8 and §61CSR11-16a of this article: Provided, however, That only members in good standing in such nonprofit associations or nonprofit corporations or such breed associations shall offer cattle for sale at such annual sale and the bylaws of such association or corporation or such breed association shall provide either for a bond to be given as provided in this article or that each member offering stock at such sale shall bear any loss in proportion to the value of each member's stock to the total value of such stock being sold at such sale.
3.13. "Veterinarian" means the State Veterinarian, any accredited veterinarian employed by the Commissioner, and/or any individual designated as an agent of the veterinarian.
3.14. “West Virginia Live Bird Market” means any facility that sells live poultry for customer selection and immediate onsite slaughter.
W. Va. Code R. § 61-11-4 Permits
4.1. Permit -- All persons desiring to operate a public market shall obtain a permit from the Commissioner.
4.2. Application for permit. -- All persons applying for a permit to operate a public market shall make application to the Commissioner on forms furnished by him/her. The application shall contain the following:
4.2.1. Proposed location of such market;
4.2.2. Type of ownership: Individual, partnership, corporation or association;
4.2.3. Principal owners and their addresses;
4.2.4. How financed;
4.2.5. A fee of twenty dollars ($20.00);
4.2.6. A plat showing the location and the amount of land, including its elevations, in relation to highways or railroads and general accessibility to the public;
4.2.7. Blueprints which show the details of construction of all barns, buildings and other facilities.
4.2.8. Before a permit shall be issued by the Commissioner, the applicant shall furnish a bond payable to the State of West Virginia for the benefit of consignors, who may be wronged or damaged by any fraud or fraudulent practices of the market, in the amount prescribed by the Commissioner, but in no case shall the bond be less than the average bond maintained by all other public markets in the state that have been in operation more than twelve (12) months.
4.3. Permit renewal. -- Persons operating a public market shall renew their permit annually. Applications for renewal of the permit shall be made on forms furnished by the Commissioner. The application shall be presented on or before the first day of July of each year and shall be accompanied by a bond payable to the State of West Virginia in the amount not to exceed one hundred twenty percent (120%) of the average of its sales during the preceding calendar year. A check or money order in the amount of twenty dollars ($20.00) shall accompany the application.
4.3.1. The Commissioner shall require a bond in an amount fixed by him when a public market has not operated for one (1) year previous to the date of application; however, in no case shall the bond be less than the average bond maintained by all other public markets in the state that have been in operation more than twelve (12) months.
4.4. Transfer of permit. -- No person holding a permit to operate a public market shall sell or otherwise transfer such permit.
4.5. The license of a public market may be suspended or revoked by the Commissioner upon not less than fifteen (15) days notice to the licensee for his failure to grade and classify according to the standards established by the United States Department of Agriculture upon the written request of the licensee, the Commissioner shall hold a hearing on the suspension or revocation in accordance with W. Va. Code '19-2A-14.
W. Va. Code R. § 61-11-5 Facilities
5.1. Scales, type and location. -- Persons operating a public market shall install a sufficient number of scales to accommodate the minimum volume of business of the market at any time. All scales shall be equipped with a dial and printer or adjustable indicator, type-registering beams, and be located where easily accessible to the docks.
5.2. Pens for holding and testing cattle. -- All persons operating a public market where cattle will be offered for sale shall provide two (2) holding pens to be used for the purpose of testing and examining cattle. These holding pens shall be constructed so that cattle may be safely worked from one through a catching chute into the other. The catching chute, gates and working area shall be constructed and maintained for maximum safety and efficiency.
5.3. Pens for holding swine for feeding and breeding purposes. -- All persons operating a public market where swine will be offered for sale shall construct or allocate, under roof, a sufficient number of pens to be used exclusively for the purpose of examining and administering medication to swine received and offered for sale for feeding and breeding purposes. These pens shall be constructed with floors of impervious material, shall be well lighted and shall be properly cleaned after each sale.
5.4. Pens for holding sheep for feeding and breeding purposes. -- All persons operating a public market where sheep and lambs will be offered for sale shall construct, under roof, a sufficient number of pens to be used for sheep and lambs offered for sale for feeding and breeding purposes. These pens shall be well lighted and shall be properly cleaned after each sale.
5.5. Pens (grading). -- All persons operating a public market where livestock and poultry will be offered for sale shall provide pens for grading and classifying livestock and poultry. All pens shall be located under roof and shall be properly cleaned after each sale.
5.6. Watering facilities. -- All persons operating a public market where livestock are offered for sale shall have fresh potable water available to all livestock.
5.7. Public facilities. -- All persons operating a public market shall provide: toilet and hand washing facilities for the public and such facilities shall be maintained in a clean and sanitary condition in accordance with the requirements of the State Health Department.
5.8. Opening hour of sale. -- A public market shall keep the public informed as to the starting time of all sales and shall begin all sales no later than 30 minutes past the approved sale time.
5.9. Weighed on day of sale. -- All products sold by weight at any public market shall be weighed at the market on the day of the sale.
5.10. Scales, maintenance. -- A public market shall maintain its scales so as to ensure accurate weights, and shall have the scale tested at least once every twelve (12) months or more often if required by the Commissioner of Labor.
W. Va. Code R. § 61-11-6 Weighmen, Graders and Auctioneers
6.1. Weighman, grader, auctioneer, employment of. -- A public market shall utilize a licensed weighman, a licensed grader and a licensed auctioneer at every sale where weighed and graded products are sold at auction.
6.2. Grades, classifications, standards. -- A public market representing or advertising that agricultural or horticultural products are being sold on grades, classifications or standards adaptable to such products, shall utilize a licensed grader to sort, grade and classify such products. Such grades or standards shall conform to the grades, classifications or standards established by the United States Department of Agriculture or that might be established by the Commissioner.
6.3. Licenses: Weighman, grader, auctioneer. -- Application for weighman or grader's license shall be filed with the Commissioner on forms provided by him/her and shall be accompanied by check or money order in the amount of five dollars ($5.00). Application for auctioneer's license shall be filed with the Commissioner as provided in W. Va. Code §19-2C and the regulations promulgated thereunder.
6.4. License Renewal: Auctioneer, Weighman, Grader - Any weighman or grader desiring to renew his license shall make application for such renewal on application forms provided by the Commissioner, on or before the first day of July of each year. Such application shall be accompanied by a check or money order made payable to the West Virginia Department of Agriculture in the sum of five dollars ($5.00). Any auctioneer desiring to renew his license shall make application to the Commissioner for such renewal as provided in Chapter 19, Article 2C and the regulations promulgated thereunder.
6.5. Grader, application and duties. -- The applicant is required to qualify in accordance with the standard rules for grading livestock and other agricultural or horticultural products established by the United States Department of Agriculture and any special requirements established by the Commissioner.
6.5.1. The grader shall grade or classify all products in conformity with grades, classifications and standards established by the United States Department of Agriculture or that might be established by the Commissioner.
6.5.2. A grader is authorized to settle disputes on grades and classifications and his/her decision shall be final unless appealed to the Commissioner.
6.5.3. At the end of each sale, a report showing the kinds of products graded or classified, the number in each grade or classification, and any other information required by the Commissioner. Such reports shall be in triplicate, the original to be forwarded to the Commissioner not later than the day following the sale, one (1) copy to be given to the public market and one (1) copy to be retained by the grader.
6.5.4. A public market shall employ sufficient help to assist the grader in grading and classifying the products. Such employees shall be available to the grader at all times while grading is being conducted.
6.6. Weighman, application and duties. -- An applicant for weighman license shall be a person trained and proficient in weighing the products being offered for sale.
6.6.1. The weighman shall have complete and unmolested charge of the scale at all times he/she is engaged in weighing;
6.6.2. Shall record the true and accurate weight of all products weighed;
6.6.3. Shall record the weight by typed impression after all other information has been entered and recorded on the ticket;
6.6.4. Shall show on the scale ticket the amount of dockage, if any, on livestock and live poultry in addition to the information required to be on the scale ticket;
6.6.5. Shall make a certified copy of scale ticket when requested by the owner or consignor of the product;
6.6.6. In the case of an error in preparing the scale ticket, the weighman shall make a corrected scale ticket after reweighing of the product. The correction ticket shall be attached to the original ticket and shall show on its face that it is a corrected ticket. A weighman is authorized to settle disputes on weights and scale records, or other matters pertaining to weights, and his/her decision shall be final unless appealed to the Commissioner.
6.7. Auctioneer, application and duties. -- Auctioneers shall be licensed as required under W. Va. Code §19-2C.
6.7.1. In case of a dispute between bidders, the auctioneer is authorized to settle such dispute by reopening the bid and reselling to the highest bidder.
6.7.2. An auctioneer, when offering livestock for sale at any public market for immediate slaughter, shall publicly announce that such livestock may be purchased for immediate slaughter only.
6.7.3. An auctioneer, when selling livestock received, entered and/or offered for sale by any public market for feeding and breeding purposes, shall publicly announce that such livestock may be purchased for feeding or breeding purposes.
6.7.4. An auctioneer, when selling livestock by weight, shall announce the weight of such livestock before same is sold. When any livestock is sold he/she shall announce the name of the person or firm buying said livestock. When livestock is sold to a person representing himself/herself as agent or order buyer for another person, the auctioneer shall announce the name of the agent or order buyer, and, if possible, the name of the person for whom such livestock was purchased. The auctioneer shall also announce the price at which said livestock was sold. Such announcements shall be in an audible voice that can be heard throughout the sale arena by persons of average hearing.
W. Va. Code R. § 61-11-7 Operations
7.1. Clerk shall record price and purchaser - A public market clerk shall record the name of the buyer and the price at which the products are sold as announced by the auctioneer.
7.2. Animals, identification of. -- It shall be the responsibility of each public market to individually identify by numbered tag each animal consigned to said market. Such tag number shall be recorded on the scale ticket in the space provided.
7.2.1. The consignor shall bear the responsibility for delivering correctly paired cows and calves to the market.
7.3. Agents, order buyers, purchases by. -- When purchases are made at a public market by a person representing himself as agent or order buyer for another person, such public market shall record on the manifest, invoice and other records the name of the agent or order buyer, and for what person such was purchased.
7.3.1. West Virginia Live Bird Markets shall source poultry from West Virginia participants registered in the National Poultry Improvement Plan (NPIP), or NPIP participants from other states if imported birds are sold. Birds sourced from other states must meet West Virginia import requirements, including testing requirements. All birds not selected and custom-slaughtered for customers will be processed weekly under state and federal meat inspection to be provided for storefront sales in registered West Virginia establishments. All held birds shall be maintained in caging and provided care to standards set forth for slaughter facilities by USDA-FSIS for meat processing facilities. Received live birds shall only be moved offsite under special permit and not out-of-state.
7.4. Scale tickets. -- A public market shall use scale tickets made in quadruplicate, or triplicate where manifest sheets are used, numbered serially, and shall contain the following information: (refer to Appendix A)
7.4.1. A public market shall record in spaces provided on the scale ticket all required information. The weighman shall record the true and actual weight of livestock, poultry and other agricultural or horticultural products entered and recorded for sale by the pound. A public market shall deliver one (1) copy of the scale ticket to the consignor, one (1) copy to the purchaser, if requested, one (1) copy to the Commissioner of Agriculture or his agent, and retain one (1) copy for permanent record.
7.4.2. In case of a dispute over any weights, a public market official shall, upon request of either the consignor or buyer, reweigh any livestock, poultry, agricultural or horticultural product in question. Disputes arising from such reweighing may be appealed to the Agriculture Commissioner or his duly authorized agent.
7.4.3. Organizations exempted under the definition of a public market when selling agricultural or horticultural products by weight shall deliver to each consignor, at time of consignment, a scale ticket indicating the correct weight of the product(s) consigned.
7.5. Records and account. -- A public market shall keep a complete and accurate record of all transactions. The Commissioner or his duly authorized agents shall have the right to enter the premises of any public market, at all reasonable hours, to examine the books and records of such market and to make any other inspection deemed necessary.
7.6. Reports, statistical. -- A public market, when requested, shall make and furnish reports or other statistical information to the Commissioner on forms furnished by the Commissioner. The Department will assemble an annual report of the public markets identified in this section of code summarizing the data required via this section of code.
7.7. Inspection and test certificates. -- A public market shall complete test or inspection certificates issued by the veterinarian covering livestock tested or inspected by writing in the name and address of the purchaser in the blank spaces provided for same.
7.8. Records, disposition of. -- A public market shall keep any and all books, records, documents or other papers which contain or explain transactions of its business for a period of at least five (5) years.
7.9. Proceeds of sale, prompt accounting. -- All moneys received from the sale of agricultural or horticultural products by a public market are hereby declared to be the property of the consignor. A public market shall be responsible to a consignor for the full market value of all agricultural or horticultural products received or entered for sale. A public market shall within seventy-two (72) hours following the conclusion of the daily activities of such market, transmit or deliver by check to the consignors or the consignor's duly authorized agent, or by mail, the net proceeds received from the sale of the consignor's products, and a true written account of such sale showing the number, weight and price of each kind of livestock, poultry, agricultural or horticultural product sold, the name of the purchaser, the purchaser's agent or order buyer, if any, the date of the sale, the commission, yardage and any other lawful charges, and any other facts as may be necessary to complete the account.
7.10. Market zone establishment. -- The Commissioner shall establish and define an area surrounding each public market as the market zone for such public market and shall enter the boundaries of such market zone upon the records of the Department and cause such boundaries to be posted. All agricultural and horticultural products entering a market zone shall be handled and sold through the market and shall be subject to all the rules and regulations governing a public market.
7.11. Veterinarian, Authority of. -- Accredited veterinarians or Agent of the Commissioner shall have the right to enter any public market or premises, public or private, within such market or market zone, where they have reason to believe that diseased animals or poultry may have been confined or kept in or on such premises, make examinations or apply such tests as may be necessary to determine whether or not any contagious or infectious disease exists.
7.12. Livestock, inspected or tested, disposition of. -- A public market shall not permit the removal of any livestock or poultry inspected or subject to inspection, or tested or subject to test for any communicable or infectious disease affecting livestock or poultry, unless and until released by the veterinarian or Agent of the Commissioner.
7.13. Veterinary biological, furnished by, disposition of. -- A public market shall furnish all necessary veterinary biologicals for testing livestock. Such veterinary biological products shall be approved by the Commissioner, shall be administered by an accredited veterinarian or an agent under his supervision, and shall be used exclusively for testing livestock received, sold or offered for sale through the public market.
7.14. Veterinary assistant, employed by. -- A public market shall employ sufficient help to assist the veterinarian or his agent in testing livestock at the market. Such employees shall be available to the veterinarian or his agent at all times on the day of the sale.
7.15. Diseased animals, disposition of. -- Livestock received by a public market which show symptoms of contagious, infectious or communicable disease, may be held in quarantine, on the premises of such public market, at the expense of the owner.
7.16. Swine, responsibility for penning, identification and inspection. -- A public market shall place all swine to be offered for sale for feeding or breeding purposes in swine pens, for identification and inspection by methods approved by the Commissioner. All pens allotted for swine received, offered, sold or exposed for sale for feeding and/or breeding purposes shall be thoroughly cleaned and disinfected after each sale by the public market.
7.17. Reports false and misleading. -- A public market shall not issue or circulate any false or misleading reports, records or representations concerning market conditions or the price of any products.
7.18. Market responsibility to purchaser. -- A public market shall be responsible to the purchaser of any product until the responsibility for such is signed for by the purchaser or his authorized agent.
7.19. Settlements, based on weights. -- When livestock or live poultry is bought and/or sold by weight, settlement therefor shall be on the basis of the weight shown on the original scale ticket or corrected scale ticket.
Shrinkage deductions in weight of livestock must be shown in writing on all copies of the scale ticket and the consignor's sale invoice.
7.20. Products to be sold on own merits to highest bidder. -- A public market shall offer all products consigned for sale at auction and shall sell such products to the highest bidder.
7.21. Livestock intermingling. -- A public market shall not pen livestock entered or received to be sold for immediate slaughter, with cattle entered or received to be sold for feeding and/or breeding purposes.
7.22. Livestock, condition of. -- Public market officials shall cause the condition of any obviously sick, injured or otherwise unhealthy animals to be noted on the scale ticket and such condition must be announced by the auctioneer prior to the sale of such animal.
7.23. Price guarantees prohibited. -- No public market, in soliciting consignment of products, shall guarantee to the owner or others thereof that such products will be sold at a specific price or prices if consigned to its market.
7.24. Market manager prohibited from buying, selling or trading in livestock in the market. -- A public market shall not permit its manager to engage in buying, selling or otherwise trading in livestock for himself, his agent or partner at said markets.
7.24.1. Licensed weighmen, graders and auctioneers employed as such at a public market shall not buy or trade in agricultural or horticultural products at the public markets at which they are employed as weighmen, graders or auctioneers.
7.24.2. When it appears to the manager of a public market that the product being offered for sale is selling below a reasonable market price, the manager may buy said product in the name of the public market at which he is employed. He shall have the right to sell such product purchased by the market to anyone other than himself, and if there be a loss on the sale of such product, the public market shall absorb such loss. On such purchases and sales, the public market shall set up a special account on which all such transactions are to be recorded, and shall make an itemized report to the commissioner on forms furnished by him, when requested.
7.25. Schedule of rate and charges for Public Markets. Each public market shall file with the Commissioner, a signed copy of all schedules of rates and charges, supplements and amendments thereto. The schedules, supplements and amendments must be conspicuously posted for public inspection at the public markets and filed with the Commissioner at least ten (10) days before their effective dates. Each schedule, supplement and amendment shall set forth its effective date, a description of the services rendered, the public market at which it applies, the name and address of the public market owner, the kind of products covered by the schedule and any rules and regulations which effect any rate or charge contained therein.
7.25.1. The rate schedule may be based on either a base rate or a percentage rate. The rates for special sales for unusual services, such as are included in purebred or dispersal sales, shall be determined under special arrangements agreed to between the parties prior to such sales. Such tariff rate schedules shall be forwarded to the U.S. Department of Agriculture, Packers and Stockyards Administration for their consideration at least ten (10) days prior to their effective date with a copy of such correspondence provided to the Commissioner.
7.26. Sales, regular and special. -- All public markets shall continue to operate on the same day of the week on which they are holding regular sales as of the effective date of these regulations. A public market desiring to make a change in its regular sale day shall file an application at least sixty (60) days prior to the date of such contemplated change with the Commissioner. A public market shall not advertise and hold special livestock sales on days other than their regular sale day, until such public market has been given permission by the Commissioner to hold such sale. When a public market desires to hold a special sale, it shall make application in writing at least thirty (30) days prior to the date it contemplates holding such sale, to the Commissioner, and shall include all information pertaining to the character of the sale.
7.26.1. A public market that discontinues a regular sale day or the operation of the market for a period of time during the year shall notify the Commissioner, in writing, at least fourteen (14) days in advance of such discontinuance, and shall again notify the Commissioner at least fourteen (14) days in advance, in writing, of the scheduled reopening of the market.
7.26.2. Livestock and poultry sold at special sales by public markets are subject to the same health requirements as regular scheduled sales.
7.26.3. Sales totally sponsored, organized and financed by the State of West Virginia or by any state, regional or county agricultural fair or festival, or by any 4-H, FFA or other educational activity shall file their reasons, in writing, for exemption from the definition of a public market with the Commissioner at least thirty (30) days prior to the event This shall be sent to the West Virginia Department of Agriculture, Executive Division, 1900 Kanawha Boulevard, East, Charleston, WV 25305.
7.26.4. Nonprofit associations, nonprofit corporations and breed associations planning livestock sales within the state shall file in writing with the Commissioner annually the place and date of all such sales if an annual event, or at least thirty (30) days prior to the event if it is held irregularly or is being held for the first time. This shall be sent to the West Virginia Department of Agriculture, Executive Division, 1900 Kanawha Boulevard, East, Charleston, WV 25305.
7.26.5. Nonprofit associations, nonprofit corporations and breed associations planning sales in West Virginia shall file with the Commissioner at least thirty (30) days prior to the sale a bond in the amount no less than the average of all other public markets that have been in operation more than twelve (12) months or shall file a certified copy of the bylaws of the corporation or association with the Commissioner advising him that the members offering stock at the sale shall bear any loss in proportion to the total value of such stock being sold at such sale. This shall be sent to the West Virginia Department of Agriculture, Executive Division, 1900 Kanawha Boulevard, East, Charleston, WV 25305.
7.26.6. At the conclusion of each nonprofit association, nonprofit corporation or breed association sale, each organization conducting such sale shall certify to the Commissioner in writing that only active members in good standing sold livestock at such sale. Such reports must state that all proceeds due consignors have been paid in full. Any deficiencies in payment from purchases must be reported immediately to the Commissioner and shall include the name, address and phone number of such purchaser and the amount of the deficiency. This shall be sent to the West Virginia Department of Agriculture, Executive Division, 1900 Kanawha Boulevard, East, Charleston, WV 25305.
7.27. Clerk shall record price and purchaser. -- A public market clerk shall record the name of the buyer and the price at which agricultural or horticultural products are sold as announced by the auctioneer.
Title 61-11
APPENDIX A
SCALE TICKET
(Printed) (Printed)
(No. Serially) (Name of Market)Public Market 19 Received from ________________ Address________ ___________________________________________ HOGS CATTLE CALVES LAMBS SHEEP HORSES POULTRY Tag and/or Mark________________ Pen. No_______________ Buyer______________________ Price_______________ Remarks_________________ Amount__________________ Weighman__________________________ 61CSR11
Series 11B Auctioneers
W. Va. Code R. § 61-11B-1 General
1.1. Scope. -- This legislative rule establishes general procedures for the licensing of auctioneers.
1.2. Authority. -- W. Va. Code §19-2C-3a, §19-2C-5.
1.3. Filing Date. -- April 25, 2022
1.4. Effective Date. -- April 25, 2022
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2032.
W. Va. Code R. § 61-11B-2 Definitions
2.1. “Absolute auction” means the sale of real or personal property at auction whereby every item offered from the block is sold to the highest bidder without reserve and without the requirements of a minimum bid or other conditions which limit the sale other than to the highest bidder.
2.2. “Apprentice auctioneer” means an auctioneer who is in training and is operating under the supervision of a licensed auctioneer.
2.3. “Auction house” or “auction firm” means and includes any person or entity that contracts with one or more individuals or entities to provide for the auctioning of goods, but does not auction the goods itself, and must retain the services of a licensed auctioneer to perform the auction.
2.4. “Auctioneer” means a person who sells goods or real estate at public auction for another on commission or for other compensation.
2.5. “Bid rigging” means any action in which two or more people conspire to restrain trade by artificially “fixing” or influencing bids in an auction. This can occur when bidders agree not to bid against one another so as to depress selling prices, or when an auctioneer and one or more others agree to try and artificially increase selling prices.
2.6. “Commissioner” means the Commissioner of Agriculture of West Virginia.
2.7. “Department” means the West Virginia Department of Agriculture.
2.8. “Escrow account” means a separate custodial or trust fund account maintained by the auctioneer.
2.9. “Estate auction” means the sale at auction of property of a specified deceased person or the property of a specified living person’s estate.
2.10. “In this state” means a that an auction satisfies one of the following criteria:
2.10.a. The auctioneer performed the auction within the borders of the State of West Virginia;
2.10.b. The auctioneer is selling items for a person located in the State of West Virginia;
2.10.c. The auctioneer is auctioning is real or personal property located in the State of West Virginia;
2.10.d. The auctioneer delivers purchased property to a location in the State of West Virginia; or
2.10.e. The auctioneer is otherwise subject to the laws, including taxation authority, of the State of West Virginia.
2.11. “License year” means the twelve-month period for which an auctioneer or apprentice auctioneer’s license is valid. For purposes of licenses issued in 2019, “license year” means the eighteen-month period for which that license is valid.
2.12. “Public auction” or “auction” means any public sale of real or personal property in any manner, whether in-person, via written offers or bids, or online, when offers or bids are made by prospective purchaser and the property is sold to the highest bidder.
2.13. “Reserve” means the minimum bid a seller has indicated he or she will accept at the auction.
W. Va. Code R. § 61-11B-3 Application
3.1. An individual wishing to apply to be an auctioneer or an apprentice auctioneer shall submit an application to the Commissioner, on a form provided by the Commissioner.
3.2. The application shall contain sufficient information to allow the Commissioner to determine the applicant’s eligibility for an auctioneer or apprentice auctioneer license and shall include a statement by two (2) individuals testifying to the applicant’s character.
3.3. An applicant for an apprentice license or auctioneer license shall be at least 18 years of age.
3.4. An applicant for an auctioneer or apprentice auctioneer license shall present a photo I.D. before participating in examinations.
3.5. Each applicant for an auctioneer or apprentice auctioneer license shall comply with the following background check requirements:
3.5.a. Each first-time applicant shall file a set of the applicant’s fingerprints, taken by a law-enforcement officer, and any other information necessary to complete a statewide and nationwide criminal history check with the Criminal Investigation Bureau of the Department of Justice for state processing and with the Federal Bureau of Investigation for federal processing.
3.5.b. The applicant shall pay all costs associated with the criminal history checks.
3.5.c. Criminal history records provided to the Department are confidential.
3.6. The Commissioner shall, within thirty (30) days after receipt of an application, notify the applicant of his or her eligibility to be examined.
3.6.a. The thirty (30)-day period for action by the Commissioner shall not commence until all necessary information has been submitted by the applicant.
3.6.b. The thirty (30)-day period for action by the Commissioner may be extended if the Commissioner has not yet received the required background checks.
3.7. All auctioneers licensed by the Department are required to maintain up-to-date contact information with the Department, including mailing address, telephone number, and email address.
W. Va. Code R. § 61-11B-4 Bond Requirements
The amount of bond required is no less than five thousand dollars ($5,000) for an apprentice auctioneer and no less than twenty-five thousand dollars ($25,000) for an auctioneer or auction house. Corporate surety bonds shall be on forms provided by the Commissioner. A bond in an amount higher than these minimums may be imposed by the Commissioner upon recommendation of the Board of Review, as set forth in section 15.2.
4.2. All corporate surety bonds shall be executed by a company authorized to do business in the State of West Virginia as determined by the Secretary of State.
4.3. An apprentice auctioneer applicant is not required to have a bond in place prior to testing; however, they shall submit a properly executed bond to West Virginia Department of Agriculture before the Department will issue the license.
W. Va. Code R. § 61-11B-5 License
5.1. The license numbers issued under W. Va. Code §19-2C-1 et seq. are permanent, subject to annual renewal. A license number issued to an individual cannot be reissued to another auctioneer if that license lapses or is otherwise revoked.
5.2. All licenses issued under W. Va. Code §19-2C-1 et seq. expire on June 30 of each year, unless revoked or suspended.
5.2.a. An auctioneer who has submitted all the necessary paperwork to renew his or her license may continue to operate under his or her license for up to thirty (30) days after June 30.
5.2.b. An apprentice auctioneer who has all the necessary paperwork to renew his or her license may continue to operate under his or her license for up to twenty (20) days after June 30.
5.3. The Department shall consider licenses issued at the successful completion of the examination held in the second half of the license year as licensure for the upcoming license year and shall not collect an additional fee for that year.
W. Va. Code R. § 61-11B-6 License Renewal
6.1. An applicant shall submit all materials required by the Commissioner to the Department of Agriculture before the Commissioner may renew a license. Requests which do not contain all necessary information may result in delays in the issuance of the license.
6.2. An auctioneer shall provide the Commissioner with proof of completion of at least six (6) hours of continuing education within the previous license year.
6.2.a. An auctioneer shall complete six (6) hours of continuing education each subsequent year in order to qualify for license renewal.
6.2.b. The Commissioner or his or her designee must approve all continuing education programs as to subject matter before credit will be granted.
6.2.c. Requests for approval shall include: the name of course, the course provider, the date of instruction, an outline of the course, the instructor or sponsor and his or her qualifications for teaching the class, the instructor or sponsor's address and the number of hours of instruction.
6.2.d. Curricula must be approved in advance, and in the case of group instruction, the instructor or course provider shall provide a certified list of those persons completing the course. Failure of the provider to seek and be given approval in advance may result in the denial of continuing education credit.
6.2.e. Continuing education may include, but is not limited to, seminars, correspondence courses, certified home study and formal course work offered through vocational programs, extension programs, colleges and universities, or certified auction schools.
6.3. An auctioneer shall complete six (6) hours of continuing education each year in order to qualify to renew his or her license for the next year.
6.3.a. Only classes taught by course providers approved by the Commissioner or his or her designee qualify for credit.
6.3.b. At least three (3) hours of the required six (6) hours of class shall be from core subjects. Core subjects are:
6.3.b.1. West Virginia statutes and rules governing auctioneering;
6.3.b.2. Federal statutes and rules governing auctioneering;
6.3.b.3. Auctioneering ethics;
6.3.b.4. Escrow, trust and custodial accounts;
6.3.b.5. Advertising;
6.3.b.6. Contracts; and
6.3.b.7. Other subjects approved by the Commissioner.
6.4. An apprentice auctioneer shall complete three (3) hours of continuing education set forth in section 6.3 each licensed year in order to qualify to renew his or her license for the next year.
6.5. An auctioneer who wishes to place his or her license on inactive status may do so, provided that he or she satisfy the following requirements:
6.5.a. The auctioneer notifies the Commissioner, on a form provided for that purpose, prior to the conclusion of the license year.
6.5.b. The auctioneer pays the annual license fee of fifty dollars.
6.5.c. The auctioneer does not conduct any auctions during the period of inactivity.
6.6. If the auctioneer does wish to reactivate his license, he or she must provide notice, on a form provided by the Commissioner, to the Commissioner at least thirty (30) days before the auctioneer wishes to perform auctions.
6.6.a. The notice must contain sufficient information to satisfy the Commissioner that the auctioneer has complied with all annual requirements, including continuing education requirements, for active licensure for the year for which the license will be active.
6.6.b. The notice must include a required reactivation fee of fifty dollars.
W. Va. Code R. § 61-11B-7 Receipts
7.1. Each auctioneer shall provide a buyer or purchaser with a receipt that includes:
7.1.a. The date of the sale;
7.1.b. A description of the item or lot;
7.1.c. The price paid for the item or lot purchased; and
7.1.d. The name, license number and permanent address of the auctioneer. This information shall be provided to each buyer or purchaser only once.
7.2. The auctioneer shall retain a copy of issued receipts for his or her records for a minimum of three (3) years.
W. Va. Code R. § 61-11B-8 Examination of Applicants
8.1. The written examination shall test the applicant's knowledge of the West Virginia Auctioneer Law, W. Va. Code §19-2C-1 et seq., rules promulgated under the law and other fundamentals of the auctioneering profession.
8.2. The oral examination shall test the auctioneer's competency in conducting an auction, and his or her knowledge of all applicable laws, both state and federal.
W. Va. Code R. § 61-11B-9 Accredited Auctioneering Schools
9.1. The Commissioner shall annually issue a list of accredited auctioneering schools.
9.2. Any school wishing to be included on the list of accredited auctioneering schools shall submit to the Commissioner a complete curriculum, a course schedule, a list of the instructors, credentials of the instructors, the location of the school, the cost and any other information considered necessary by the Commissioner for a decision on the qualifications of the school to be accredited in West Virginia.
W. Va. Code R. § 61-11B-10 Suspension, Revocation, Expiration or Termination of Supervising Auctioneer's License
10.1. The suspension, revocation, expiration or termination of a supervising auctioneer's license shall automatically suspend the license of any apprentice auctioneer sponsored or employed by the suspended auctioneer.
10.2. An apprentice auctioneer may retain an apprentice by transferring to the sponsorship of another licensed auctioneer: Provided, that the request for the transfer is made in writing and according to the procedures outlined in W. Va. Code §19-2C-6, and approved by the Commissioner or his or her designee.
W. Va. Code R. § 61-11B-11 Reciprocity
11.1. Any holder of a valid auctioneer's license from another state may be granted a West Virginia license. Provided, that the state in which he or she is licensed provides similar recognition to a licensee of this State, and that the licensing requirements of the reciprocal state are at least equal to those of the State of West Virginia. The Commissioner shall annually issue a list of states with whom reciprocity has been formally approved.
11.2. Any auctioneer who has practiced in a state that has no licensing law for auctioneers and wishes to obtain a West Virginia license shall submit all information required for the Commissioner to determine that he or she has been a practicing auctioneer for a period of two years preceding the date of the application.
11.3. Once an individual has received a West Virginia auctioneer’s license pursuant to the provisions of this section, he or she becomes subject to all other licensure requirements of this rule, including those relating to expired, revoked, or lapsed license. An individual who has once obtained a license through reciprocity may not obtain another license in the same manner.
W. Va. Code R. § 61-11B-12 Waiver of Apprenticeship
12.1. The Commissioner may, with the concurrence of the Auctioneer Board of Review, grant a wavier of the apprenticeship requirements. For an applicant to be granted a wavier, he or she shall petition the Commissioner for a waiver and provide certified documentation as to the qualifications of the candidate to be an auctioneer without serving an apprenticeship. This documentation shall include formal training in the profession, exceptional practical training such as verification of conducting charity or other types of auctions which are exempt from the licensing requirements, and any other information to assist the Commissioner in making a ruling. The Commissioner may grant a waiver only under exceptional circumstances, after receiving concurrence from the Auctioneer Board of Review, and shall not consider them a routine matter. Under no circumstances shall the Commissioner grant a wavier if it is determined that experience in the profession has been gained as a result of auctioneering which was not in compliance with the laws and rules of the State of West Virginia or the State where the experience was gained.
12.2. To be a sponsoring auctioneer of an apprentice, the auctioneer must have held an auctioneer’s license for at least two (2) consecutive years and can sponsor no more than two (2) apprentice auctioneers at any time.
12.3. If an applicant seeks a waiver of apprenticeship based on his or her inability to find a sponsoring auctioneer, the Commissioner may assign an auctioneer in good standing with the Department to serve as sponsoring auctioneer for the applicant.
W. Va. Code R. § 61-11B-13 Advertising
13.1. Any circular or other printed material advertising a sale shall contain the name and license number of the auctioneer conducting the sale, the name and license number of any apprentice auctioneer assisting with the sale, and the date, place and exact time of the auction.
13.1.a. An advertisement for an auction for which the auctioneer has not yet been selected, such as an auction advertised by a firm with multiple auctioneers, shall contain the name and license number of the auctioneer in charge.
13.1.b. An auctioneer performing an auction shall announce his or her name and license number at the beginning of his or her sale, or otherwise display that information when he or she is performing an auction.
13.2. Absolute and estate auctions must satisfy the advertising requirements set forth in W. Va. Code §19-2C-10.
W. Va. Code R. § 61-11B-14 Contracts
14.1. All contracts between an auctioneer and a seller shall meet, at a minimum, the requirements set forth in W. Va. Code §19-2C-9, including the following guidelines:
14.1.a. The contract shall be executed in duplicate;
14.1.b. The contract shall specifically state the amount of time to settle the account with the consignors, which is within fourteen (14) calendar days of the sale unless otherwise stated in the contract.
14.2. An apprentice auctioneer may not contract directly with a client.
14.3. All auction house contracts for the sale of property must comply with the requirements set forth in W. Va. Code §19-2C-9 and this rule. All auction house contracts with auctioneers must be in writing.
14.4. All contracts must be retained by the auctioneer and/or auction house for a period of three years following the date on which the sale was completed, and are subject to inspection by the Commissioner upon request.
W. Va. Code R. § 61-11B-15 Board of Review
15.1. The Board of Review shall meet at the call of the Commissioner or his or her designee to review the findings of an investigation resulting from a verified complaint received by the Department or an investigation initiated by the Department’s own actions.
15.2. The Board of Review shall review these findings, all of the material related to the investigation, and any other material considered by the Board to be appropriate. The Board of review shall make a recommendation, in writing, to the Commissioner as to the course of action for the Commissioner on the complaint. Such recommendation may include a recommendation for the Commissioner to impose an increased bond amount, pursuant to section 4.1. Board decisions shall be majority decisions of those members present. A quorum of two (2) members is required for Board action.
15.3. When considered appropriate by the Commissioner, or his or her designee, the Board may meet via telephone conference call, but shall only provide a recommendation after receiving and reviewing hard copies of the material pertinent to the complaint.
15.4. A member of the staff of the Department, appointed by the Commissioner, shall serve as staff for the Board and shall be responsible for the presentation of each complaint. The staff member shall not participate in the discussions beyond the reasonable explanation of the facts of the complaint.
W. Va. Code R. § 61-11B-16 Licensing and Fees
16.1. Any person who wishes to conduct an auction as an auctioneer may apply for a license on forms prescribed by the commissioner. A nonreturnable fifty dollar ($50) application fee and hundred dollar ($100) license fee shall accompany each application.
16.2. The approved applicant shall take an examination to become a licensed auctioneer or apprentice auctioneer at the regularly scheduled time and place designated. The examination fee is fifty dollars ($50), in addition to any other required fees.
16.2.a. An applicant, who has previously paid the examination fee and successfully completed the apprentice auctioneer’s examination, is not required to pay an additional fee for the auctioneer exam.
16.3. A license expires June 30 of each year. The fee for the annual renewal of the auctioneer or apprentice auctioneer’s license is one hundred dollars ($100).
16.3.a. Renewals received more than thirty (30) days after the expiration date are subject to a late renewal fee of twenty-five dollars ($25), in addition to the annual renewal fee.
16.3.b. Renewals received more than sixty (60) days after the expiration date are subject to a late renewal fee of fifty dollars ($50), in addition to the annual renewal fee.
16.3.c. Renewals received more than ninety (90) days after the expiration date are subject to a late renewal fee of seventy-five dollars ($75), in addition to the annual renewal fee.
16.3.d. Renewals received more than one hundred and twenty (120) days after the expiration date are subject to a late renewal fee of one hundred dollars ($100), in addition to the annual renewal fee.
16.3.e. For purposes of the assessment of late fees, a renewal application must be complete and contain all necessary information and documentation to process the renewal before it is considered received by the Department.
16.3.d. A member of the military on active duty is exempt from renewal late fees upon submission of proof of service with the renewal application. The member shall meet all other license requirements.
16.4. If a duplicate or replacement license or license reflecting a change in information is required, the auctioneer or apprentice auctioneer shall submit with the request a fee of five dollars ($5).
16.5. The fee for the transfer of the license of an apprentice auctioneer to a new employer auctioneer is fifteen dollars ($15).
16.6. To obtain an auctioneer license by reciprocity, the applicant must meet the qualifications required in W.Va. Code 19-2C and submit a nonreturnable fifty dollar ($50) application fee and one hundred dollars ($100) license fee with each application.
16.7. The fee for an auction house to register with the Department is one hundred dollars ($100) annually.
W. Va. Code R. § 61-11B-17 Auctioneering Exemptions
17.1. A person who does not have a West Virginia auctioneer license may conduct an auction on behalf of a charitable organization, provided the person conducting the auction:
17.1.a. Receives no monetary compensation for his or her services, or for any services associated with the charitable event.
17.1.b. Does not engage in any activities related to the sale, such as soliciting items, setting minimum bids, or other traditional auctioneering activities, other than volunteer auction services; and
17.1.c. Records charitable auctions on forms prescribed by the commissioner.
17.1.d. An unlicensed auctioneer may only conduct four (4) charitable auctions in a 12-month period. Special requests to allow for more than four (4) charitable auctions per licensed year may be submitted to the Commissioner in writing, detailing specific reasons to exceed the charitable auction limit and justification for not acquiring West Virginia auctioneer license.
17.2. Any person listing goods for sale at public auction or auction on the Internet which includes live, real-time, extended, or any similar such event as may be devised with the development of technology or any combination of such and increases in bid increments, is subject to the rules and regulations set forth therein and W.Va. Code 19-2C.
17.2.a. The provisions of this section do not apply to e-commerce corporations or marketplaces that facilitate or provide consumer-to-consumer or business-to-consumer sales through its website and provide internal buyer and seller protections to its participants, e.g., eBay or similar auction-based websites.
17.2.b. Auctions that are held utilizing a platform owned or operated by the person offering the items for sale at public auction or auction are not subject to this exemption, and the individual operating such a website or software must hold a license to conduct those auctions.
W. Va. Code R. § 61-11B-18 Auction Houses
18.1. Any individual or business entity operating as an auction house is required to register with the Commissioner, on a form to be prescribed by the Commissioner.
18.1.a. Each auction house shall be required to pay the registration fee set forth in section sixteen of this rule.
18.1.b. The registration shall also include a verification stating that, by engaging in auction house activities, it is subject to the oversight of the Commissioner, the Board of Review, and the requirements of §19-2C-1 et seq.
18.2. An auction house or auction firm shall, at the time it submits its registration, file the surety bond required by section four of this rule.
18.3. Auction house registrations shall expire on June 30 of each year. Each auction house must annually renew its registration.
61CSR11B
61CSR11B
Series 11D Licensing Of Livestock Dealers
W. Va. Code R. § 61-11D-1 General
1.1. Scope. -- These legislative rules are promulgated to establish the general procedures for the licensing of livestock dealers under the provisions of "The West Virginia Livestock Dealer's Licensing Act," W. Va. Code '19-10B-1, et seq.
1.2. Authority. -- W. Va. Code '19-10B-9.
1.3. Filing Date. -- April 23, 1992.
1.4. Effective Date. -- April 27, 1992.
W. Va. Code R. § 61-11D-2 Definitions
2.1. For the purposes of these rules, unless the context clearly indicates otherwise:
2.1.a. "Livestock Producer" means a person selling livestock which he has raised, or livestock which he has purchased and summered or wintered. A person is considered to have raised an animal, regardless of its age, if he has owned it since its birth. A person is considered to have purchased and summered or wintered an animal if he acquired such animal after its birth and has held ownership of such animal for a continuous period of sixty (60) days or more.
2.1.b. "Livestock Transaction" means a transaction whereby livestock is bought, sold, received, exchanged or otherwise transferred to or from a livestock dealer.
W. Va. Code R. § 61-11D-3 License Applications And Fee
3.1. The applicant for a livestock dealer's license shall submit his application on forms provided by the commissioner.
3.2. The applicant shall file an application with the commissioner on or before the thirtieth day of June of a given year for an annual license to be issued for the period commencing the first day of July of such year and ending on the thirtieth day of June of the following year.
3.3. The applicant shall remit a fee of thirty dollars ($30.00) with each application.
W. Va. Code R. § 61-11D-4 Bond Requirements
4.1. Each applicant for a livestock dealer's license under the provisions of this rule shall file with the commissioner either of the following:
4.1.a. A properly attested sworn statement that he is maintaining a valid surety bond pursuant to the requirements of the United States Department of Agriculture, Packers and Stockyards Act of 1921, as amended; or
4.1.b. A fully executed bond pursuant to the requirements of W. Va. Code '19-10B-4 in an amount of not less than $10,000.
4.2. The bond shall guarantee that the applicant shall faithfully fulfill the terms of the contract of purchase and guarantee payment of the purchase price of all livestock purchased by the applicant. The applicant shall cause the bond to be made payable to the commissioner for the benefit of the seller resulting from the livestock dealer's nonpayment of the purchase price or his failure to fulfill the terms of the contract of purchase.
4.3. The commissioner may require a bond in excess of ten thousand dollars ($10,000) when evidence shows that the volume of business of the livestock dealer creates a potential liability in excess of ten thousand dollars.
W. Va. Code R. § 61-11D-5 Maintenance Of Records Of Transactions
5.1. Except as otherwise provided in subsection 5.2 of this rule, every person licensed as a livestock dealer under the provisions of W. Va. Code '19-10B-1 et seq. shall maintain a record of livestock transactions in an official transactions record book provided by the commissioner. Any such transactions record book shall be and remain the property of the department, and the delivery of such transactions record book or books to the licensed livestock dealer shall in no way affect the ownership of such transactions record book by the department. As a condition of receiving a license to function as a livestock dealer, each applicant shall agree to use reasonable care and diligence to preserve and protect the transactions record book assigned to him. Upon the request of the licensed livestock dealer, the commissioner shall provide such additional transactions record book or books as he may deem necessary for the licensed livestock dealer to comply with the provisions of this rule.
5.2. The commissioner may authorize a licensed livestock dealer to maintain a record of livestock transactions in an alternate record book, ledger or automated data storage and retrieval system, instead of the transactions record book prescribed in subsection 5.1 of this rule, if:
5.2.a. The commissioner determines that such alternative record book, ledger or automated data storage and retrieval system will permit the recording of information in such a manner that the commissioner can, by examining such alternative record book ledger or a printout of an automated data storage and retrieval system, readily obtain the same information which would otherwise be required to be provided through the use of the official transactions record book of the department;
5.2.b. The commissioner determines that such alternative method of record keeping will allow for the correction of records and the notation of the correction of records in accordance with the provisions of subsection 5.3 of this rule; and
5.2.c. The licensed livestock dealer demonstrates to the commissioner that such alternative method of record keeping is a normal function of his business operations and, by eliminating duplicating work, will result in a significant reduction in the administrative costs of doing business.
5.3. Each livestock transaction in which a licensed livestock dealer is a party, either for his own account or that of another person, shall immediately be entered in the transactions record book provided by the department or in such alternative record as may be authorized by the commissioner pursuant to the provisions of Subsection 5.2. of this rule. The information relating to such livestock transaction shall be accurate and legible as to each detail hereinafter required, and shall not be altered, obliterated, defaced or erased, except that a notation may be added to refer to a later entry appearing in the record which corrects information which has been entered concerning the livestock transaction. Once information has been entered relative to a livestock transaction, if it is found that the information so recorded is incorrect, the correct information shall be reentered in the next available space in the record, and a notation shall be added which refers to the prior livestock transaction which is the subject of correction.
W. Va. Code R. § 61-11D-6 Information To Be Recorded By Licensed Livestock Dealers
6.1. The licensed livestock dealer shall record the following information for each animal involved in a livestock transaction, as of the time of the livestock transaction:
6.1.a. All ear tag numbers or letters and any other identifying numbers or letters affixed to the animal;
6.1.b. Identifying tattoo numbers, except for vaccination tattoos;
6.1.c. In the case of purebred livestock, the registration number assigned to the animal;
6.1.d. The breed and sex of the animal;
6.1.e. The approximate weight of the animal;
6.1.f. The date of the transaction; and
6.1.g. The names and addresses of all owners, sellers, consignors or buyers who are party to the transaction with the licensed livestock dealer.
6.2. The licensed livestock dealer shall retain the records required to be kept under the provisions of this section of the rule for at least two (2) years. After two years the licensed livestock dealer shall retain the records or may deliver them to the commissioner who may retain or dispose of such records as he sees fit.
6.3. The licensed livestock dealer shall forthwith deliver to the commissioner all records required to be maintained by W. Va. Code '19-10B-5 and by this rule upon the suspension of his business or upon the suspension or revocation of his livestock dealer's license.
61CSR11D
Series 11H Licensing of Livestock Dealers
W. Va. Code R. § 61-11H-1 General
1.1. Scope. -- These legislative regulations are promulgated to establish the general procedures for the licensing of livestock dealers under the provisions of “The West Virginia Livestock Dealer’s Licensing Act”, W.Va. Code §19-10B-1.
1.2. Authority. -- W. Va. Code §19-10B-9.
1.3. Filing Date. – May 14, 2026.
1.4. Effective Date. – May 14, 2026.
1.5. Sunset Date. -- This rule shall expire and have or further force or effect on August 1, 2031.
W. Va. Code R. § 61-11H-2 Definitions
2.1. For the purposes of this regulation, unless the context clearly indicates otherwise:
2.1.1. “Bond” means a written instrument issued or executed by a surety or an insurance company licensed to do business in this state, guaranteeing that the person bonded shall faithfully fulfill the terms of the contract of purchase and guarantee payment of the purchase price of all livestock purchased by him, made payable to the commissioner for the benefit of persons sustaining loss resulting form the nonpayment of the purchase price or failure to fulfill the terms of the contract of purchase.
2.1.2. “Commissioner” means the commissioner of agriculture of the state of West Virginia and his duly authorized representatives.
2.1.3. “Department” means the department of agriculture of the state of West Virginia.
2.1.4. “Livestock” means cattle, horses, swine, sheep, goats, or any other animal of the bovine, equine, porcine, ovine or caprine specie and domestic poultry.
2.1.5. “Livestock Dealer” means a person, other than a livestock producer, who buys, receives or assembles livestock for resale, either for his own account or that of another person.
2.1.6. “Livestock Producer” means a person selling livestock which he has raised, or livestock which he has purchased and summered or wintered. A person is deemed to have raised an animal, regardless of its age, if he has owned it since its birth. A person is deemed to have purchased and summered or wintered an animal if he acquired such animal after its birth and has held ownership of such animal for a continuous period of sixty days or more.
2.1.7. “Livestock Transaction” means a transaction whereby livestock is bought, sold, received, exchanged, or otherwise transferred to or from a livestock dealer.
2.1.8. “Person” means an individual, partnership, corporation, association, or other legal entity.
W. Va. Code R. § 61-11H-3 Surety Bond Requirements
3.1. An applicant for a livestock dealer’s license shall submit his application on forms provided by the commissioner.
3.2. Each application shall be filed with the commissioner on or before the thirtieth day of June of a given year for an annual license to be issued for the period commencing the first day of July of such year and ending on the thirtieth day of June of the following year.
3.3. A fee of thirty dollars (30) shall be remitted with each application which is filed.
W. Va. Code R. § 61-11H-4 Surety Bond Requirements
4.1. Each applicant for a livestock dealer’s license under the provisions of this regulation shall file with the commissioner either of the following:
4.1.1. A properly attested sworn statement that he or she is maintaining a valid surety bond pursuant to the requirements of The Federal Packers and Stockyards Act of 1921, as amended; or
4.1.2. A fully executed surety bond, executed by a company authorized to do business in the state of West Virginia, in the amount of $10,000.
4.1.2.1. Guaranteeing that the applicant shall faithfully fulfill the terms of the contract of purchase and guarantee payment of the purchase price of all livestock purchased by him, made payable to the commissioner for the benefit of persons sustaining loss resulting from the nonpayment of the purchase price or the failure to fulfill the terms of the contract of purchase, and
4.1.2.2. Guaranteeing that a seller of livestock who is adjusted by a court of competent jurisdiction to have been wronged or damaged by any fraud or fraudulent practices of the applicant shall have a right of action for his damages for compensation against such bond.
W. Va. Code R. § 61-11H-5 Maintenance of Records of Transactions
5.1. Except as otherwise provided in subsection 5.2 of this section, every person licensed as a livestock dealer under the provisions of this regulation shall maintain a record of livestock transactions in an official transactions record book provided by the commissioner. Any such transactions record book shall be and remain the property of the department, and the delivery of such transactions record book or books to the licensed livestock dealer shall in no way affect the ownership of such transactions record book by the department. As a condition of receiving a license to function as a livestock dealer, each licensee shall agree to use reasonable care and diligence to preserve and protect the transactions record book assigned to such licensee. Upon the request of the licensee, the commissioner shall provide such additional transactions record book or books as he may deem necessary for the licensee to comply with the provisions of this regulation.
5.2. The commissioner may authorize a licensee to maintain a record of livestock transactions in an alternate record book, ledger, or automated data storage and retrieval system, instead of the transactions records book prescribed in subsection 5.1 of this section, if:
5.2.1. The commissioner determines that such alternative record book, ledger or automated data storage and retrieval system will permit the recording of information in such a manner that the commissioner can, by examining such alternative record book ledger or a printout of an automated data storage and retrieval system, readily obtain the same information which would otherwise be required to be provided through the use of the official transactions record book of the department.
5.2.2. The commissioner determines that such alternative method or record keeping will allow for the correction of records and the notion of the correction of records in accordance with the provisions of subsection 5.3 of this section; and
5.2.3. The licensee demonstrates to the commissioner that such alternative method of record keeping is a normal function of his business operations and, by eliminating duplicative work, will result in a significant reduction in the licensee’s administrative costs of doing business.
5.3. Each livestock transaction in which a licensee is a party, either for his own account or that of another person, shall immediately be entered in the transactions record book provided by the department or in such alternative record as may be authorized by the commissioner pursuant to the provisions of subdivision 5.2.2 of this section. The information relating to such livestock transaction shall be accurate and legible as to each detail hereinafter required, and shall not be altered, obliterated, defaced or erased, except that a notation may be added to refer to a later entry appearing in the record which corrects information which has been entered concerning the livestock transactions. Once information has been entered relative to a livestock transaction, if it is found that the information so recorded is incorrect, the correct information shall be re-entered in the next available space in the record, and a notation shall be added which refers to the prior livestock transaction which is the subject of correction.
W. Va. Code R. § 61-11H-6 Information To Be Recorded By Licensees
6.1. The licensee’s method of record keeping shall provide for the recordation of the following information for each animal involved in a livestock transaction, as of the time of the livestock transaction:
6.1.1. All ear tag numbers or letters and any other identifying numbers or letters affixed to the animal;
6.1.2. Identifying tattoo numbers, except for vaccination tattoos;
6.1.3. In the case of purebred livestock, the registration numbers assigned to the animal;
6.1.4. The breed and sex of the animal;
6.1.5. The approximate weight of the animal;
6.1.6. The date of the transaction;
6.1.7. The names and addresses of all owners, sellers, consignors or buyers who are party to the transaction with the licensee.
6.2. The records required to be kept under the provisions of this section shall be retained for at least two (2) years by the licensee, after which such records may be retained by the licensee or turned over to the commissioner for such retention or disposition as he sees fit.
6.3. The records required to be kept under the provision of this section shall be kept and retained by a livestock dealer only during the period during which he is licensed. In the event a licensee’s license is suspended or revoked, or expires upon a failure to renew, the licensee shall forthwith deliver the records to the commissioner.
Series 12 Fee Structure for the Pesticide Control Act of 1990
W. Va. Code R. § 61-12-1 General
1.1. Scope. -- This legislative rule establishes the fee structure to be used under the Pesticide Control Act of 1990.
1.2. Authority. -- W. Va. Code ' 19-16A-4.
1.3. Filing Date. -- April 21, 2015
1.4. Effective Date. -- July 1, 2015.
W. Va. Code R. § 61-12-2 Examinations
2.1. The Commissioner shall assess each person taking an examination for a license, certification or certificate a fee of $20.00 per examination session. This fee is for one or more examinations taken at the same time. This examination fee shall be used to help defray the costs of training materials, postage and processing of licenses, certification and certificates.
W. Va. Code R. § 61-12-3 Classification and Fees of Pesticide Business Licenses
3.1. Pesticide application business - The Commissioner shall assess an annual fee of $60.00 for each pesticide application business engaged in the business of applying pesticides upon the lands of another. A pesticide application business making non solicited recommendations of pesticide products, made in the course of normal business practices, is exempt from a consultant license and fee.
3.2. Pesticide consultant - The Commissioner shall assess an annual fee of $60.00 for each pesticide application business engaged in the business of soliciting or offering services for hire to recommend the use of pesticide on the lands of others.
3.3. Pesticide dealer - The Commissioner shall assess an annual fee of $60.00 for each person who sells, wholesales, distributes, offers or exposes for sale, exchanges or gives away any restricted use pesticide within or into this State. Commercial delivery services are not considered distributors of pesticides.
W. Va. Code R. § 61-12-4 Classification and Fees of Applicator Certificates
4.1. Commercial applicator - The Commissioner shall assess an annual fee of $20.00 for each person who uses or supervises the use of any pesticide which is classified for restricted use for any
purpose or on any property other than as a private applicator.
4.2. Private applicator - The Commissioner shall assess a fee of $10.00 every three years for each person to maintain certification as a private applicator. A private_applicator is a person who applies restricted use pesticides for the purpose of producing any agricultural commodity on property owned or rented by his or her employer or who applies restricted use pesticides without compensation, other than the trading of personal services between producers of agricultural commodities on the property of another person.
4.3. Registered technician - The Commissioner shall assess an annual fee of $20.00 for each person qualifying as a registered technician.
W. Va. Code R. § 61-12-5 Product Registration
5.1. The Commissioner shall assess an annual registration fee of $150.00_per product for each pesticide which is manufactured, distributed, sold or offered for sale, delivered for transportation or transported in intrastate commerce of or between points within this State through any point outside this State.
5.2. Pesticide products used or offered for use within the State under a bonafide experimental research permit issued by the United States environmental protection agency shall be registered but are exempt from the annual registration fee, provided the products are offered at no charge to cooperators and a copy of the experimental research permit is submitted with registration as an experimental use product with the State.
Series 12A Certified Pesticide Applicator Rules
W. Va. Code R. § 61-12A-1 General
1.1. Scope. -- This legislative rule establishes the requirements governing the certification and training, record keeping and general operation of equipment for certified pesticide applicators.
1.2. Authority. -- W. Va. Code §19-16A-4.
1.3. Filing Date. – April 8, 2024.
1.4. Effective Date. – April 15, 2024.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-12A-2 Definitions
2.1. The term “Act” means the West Virginia Pesticide Control Act (W. Va. §19-16A-1 et seq.).
2.2. The term “competent” means properly qualified to perform the functions associated with pesticide application, the degree of capability required being directly related to the nature of the activity and the associated responsibility.
2.3. The term “fumigant” means a gaseous or readily volatilizable chemical (as sulfuryl fluoride or methyl bromide) used as a disinfectant or pesticide.
2.4. The term “fumigation” means the application of a fumigant to one or more rooms in a structure, or to the entire structure, or to a localized space within a structure or outside of a structure, such as a box car, aircraft, truck, ship or any object which is sealed or covered.
2.5. The term “regulated pest” means a specific organism considered by the State or by a federal agency to be a pest requiring regulatory restrictions, regulations, or control procedures in order to protect the host, man or the environment.
2.6. The term “regulated pesticide application business” means a pesticide business commercially applying pesticides not for hire.
2.7. The term “immediate family member” means familial relationships limited to the spouse, parents, stepparents, foster parents, father-in-law, mother-in-law, children, stepchildren, foster children, sons-in-law, daughters-in-law, grandparents, grandchildren, brothers, sisters, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. “First cousin” means the child of a parent's sibling, i.e., the child of an aunt or uncle.
W. Va. Code R. § 61-12A-3 Certification of Pesticide Applicators
3.1. The commissioner may not certify a person as a pesticide applicator unless he or she has passed an examination approved by the commissioner or he or she qualifies through the reciprocity requirements as contained in section 10 of this rule or qualifies as a federal employee under section 11 of this rule.
3.2. The certification of individuals, employees, or representatives of governmental agencies (including but not limited to federal employees under 40 CFR Part 171) who use or supervise the use of pesticides in the performance of their official duties shall meet the requirements of this rule and be certified as certified public applicators pursuant to this rule. The certification of such individuals, employees or representatives is valid only when applying or supervising the application of pesticides in the performance of their official duties.
3.3. Determination of Competency
3.3.a. The commissioner shall determine competence in the use and handling of pesticides based on experience and/or education, and a written examination based upon the standards set forth in Section 6 of this Rule.
3.3.b. The commissioner shall require each applicant for examination to show proof of one year of experience, education, or training by one of the following:
3.3.b.A. Experience as a full-time registered technician engaged in those categories in which the applicant seeks to be certified. Proof of experience may include notarized affidavits from former employers or certification/licensure from other states or the federal government;
3.3.b.B. Education, training, or experience in a field such as, but not limited to, biology, chemistry, or forestry; or
3.3.b.C. A combination of education and experience.
3.3.c. Employees of regulated pesticide application businesses, as defined in section 2 of this rule, are exempt from the provisions of this section related to pre-exam requirements for experience, education, or training.
3.3.d. The commissioner shall give written examinations at such time and places as he or she may direct. An applicant must correctly answer 70% or more of the examination questions to be considered competent.
3.3.e. Applicants who fail to achieve a passing score on their first attempt at examination are eligible to be reexamined in the same category after 28 days from the date of the first examination. Applicants who fail on the second attempt or any subsequent attempt must wait 56 days from the date of the last examination for reexamination.
3.4. Any person applying for certification as a commercial applicator, certified public applicator or private applicator shall submit a completed application form accompanied by the appropriate fee established in West Virginia Department of Agriculture Rule, Fee Structure for the Pesticide Control Act of 1990, 61 CSR 12. The application form shall contain all the information required by the Act and any other information considered necessary by the commissioner to carry out the purpose of the Act.
3.4.a. All examinations will be proctored by an individual not seeking certification and as designated by the commissioner.
3.4.b. All candidates for initial certification (exam or training) and recertification by examination shall present a valid government-issued photo identification as proof of identity and age.
3.4.c. Candidates will be monitored throughout the examination period.
3.4.d. Candidates will be instructed in examination procedures before beginning the examination.
3.4.e. Examination materials shall be kept secure at all times relevant (before, during, and after) the examination period to ensure that only proper candidates have access to the examination and that such access takes place in the presence of a proctor.
3.4.f. Candidates may not have verbal or non-verbal communication with anyone other than the proctor during the examination period.
3.4.g. No portion of the examination or any associated reference materials described in subdivision 3.4.h of this rule may be copied or retained by any person other than a person authorized by the commissioner to copy or retain the examination or any associated reference materials described in subdivision 3.4.h of this rule.
3.4.h. Reference materials used during an examination shall be those which are approved by the commissioner and those which are provided and subsequently collected by the proctor.
3.4.i. Reference materials provided to examinees are reviewed after the examination is complete to ensure that no portion of the reference material has been removed, altered, or destroyed.
3.4.j. The proctor reports to the commissioner any examination administration inconsistencies or irregularities, including but not limited to cheating, use of unauthorized materials, and attempts to copy or retain the examination.
3.4.k. The examination shall be conducted in accordance with any other requirements related to examination administration as set forth by the commissioner.
3.4.l. The commissioner will notify each candidate of the results of his or her examination by written notification.
3.5. Persons shall be at least 18 years old to be certified as a commercial or private applicator. Persons shall be at least 18 years old to qualify as a non-certified applicator using restricted use pesticides (hereinafter, “RUPs”) under the direct supervision of a commercial or private applicator.
3.5.a. Non-certified applicators shall be at least 18 years old, except that a non-certified applicator may be at least 16 years old if the following requirements are met:
3.5.a.1. The non-certified applicator is using the RUP under the direct supervision of a private applicator who is an immediate family member.
3.5.a.2. The RUP is not a fumigant, sodium cyanide, or sodium fluoroacetate.
3.5.a.3. The non-certified applicator is not applying the RUP aerially.
3.6. Exceptions. The requirements in sections 3.1-3.4 do not apply to the following persons:
3.6.a. Persons conducting laboratory research involving RUPs.
3.6.b. Doctor(s) of Medicine and Doctor(s) of Veterinary Medicine applying RUPs to patients during the ordinary practice of those professions.
W. Va. Code R. § 61-12A-4 Categorization of Commercial Applicators
4.1. Commercial pesticide applicators who are required to be certified applicators are classified in the categories and subcategories set forth in this section. Public employees required to be certified applicators in the categories and subcategories listed in this section are categorized as commercial applicators with respect to the application of RUPs.
4.2. Commercial Applicator Categories
4.2.a. Agricultural Plant Pest Control. This category includes commercial applicators using or supervising the use of RUPs in the production of agricultural crops, including but not limited to tobacco, peanuts, cotton, feed grains, soybeans, and forage; vegetables; small fruits; and tree fruits and nuts; as well as on grasslands and non-crop agricultural lands.
4.2.b. Agricultural Animal Pest Control. This category includes commercial applicators using or supervising the use of RUPs on animals, including but not limited to beef cattle, dairy cattle, swine, sheep, horses, goats, poultry, and livestock, and to places on or in which animals are confined. Certification in this category alone is not sufficient to authorize the purchase, use, or supervision of use of products for predator control listed in subdivision 4.2.m of this rule.
4.2.c. Forest Pest Control. This category includes commercial applicators using or supervising the use of RUPs in forests, forest nurseries and forest seed producing areas.
4.2.d. Ornamental and Turf. This category includes commercial applicators using or supervising the use of RUPs to control pests in the maintenance and production of ornamental trees, shrubs, flowers, and turf.
4.2.e. Seed Treatment. This category includes commercial applicators using or supervising the use of RUPs on seeds.
4.2.f. Aquatic Pest Control. This category includes commercial applicators using or supervising the use of any RUP purposefully applied to standing or running water and excludes public health applicators as defined in sub-division 4.2.i of this rule.
4.2.g. Right-of-Way/Industrial Weed Control. This category includes commercial applicators using or supervising the use of RUPs in the maintenance of public roads, electric power lines, pipelines, railway rights-of-way, fence lines, structural perimeters, or other similar areas.
4.2.h. Industrial, Institutional, Structural and Health Related Pest Control. Commercial applicators in this category are subcategorized as follows:
4.2.h.A. General. This subcategory includes commercial applicators using or supervising the use of RUPs in and around residential, commercial, institutional, or industrial facilities, including food preparation areas such as kitchens, cafeterias, or snack shops. When requested, persons certified in this subcategory may perform incidental treatment to indoor plants in small areas not to exceed 10 square feet.
4.2.h.B. Structural. This subcategory includes commercial applicators using or supervising the use of RUPs to control wood destroying pests in structures.
4.2.h.C. General Fumigation. This subcategory includes commercial applicators using or supervising the use of RUPs, in gaseous form, within enclosed gas tight spaces such as tarps, tents, structures, vehicles or vessels, or for soil fumigation for a wide range of commodities and conditions.
4.2.h.D. Wood Preservation and Wood Product Treatment. This subcategory includes commercial applicators using or supervising the use of RUPs, at treating plants and sawmills, for preservative treatment of wood by pressure, dipping, soaking and diffusion processes to produce a commodity for sale and/or installation. This subcategory also includes the handling and topical application and injection of wood preservatives, for operations such as, groundline pole treatment, waterproofing, millwork cutoffs, or supplemental field treatment.
4.2.h.E. Urban Integrated Pest Management. This subcategory includes commercial applicators using or supervising the use of RUPs in integrated pest management programs in and around commercial, institutional, or industrial facilities, including food preparation areas such as kitchens, cafeterias, or snack shops.
4.2.i. Public Health. This category includes certified public applicators using or supervising the use of RUPs for federal, state, or other governmental units in public health programs for the management and control of pests having medical and public health importance.
4.2.j. Regulatory. This category includes commercial applicators using or supervising the use of RUPs for federal, state, or other governmental units in the control of regulated pests. Certification in this category does not authorize the purchase, use, or supervision of use of products for predator control listed in subdivision 4.2.m of this rule.
4.2.k. Demonstration and Research. This category includes commercial applicators who demonstrate to the public the proper use and techniques of application of RUPs or supervise the demonstrations. Examples of such persons are extension specialists and county agents, commercial representatives demonstrating pesticide products, and individuals demonstrating methods used in public programs. Also included in this category are commercial applicators conducting field research who use or supervise the use of RUPs. Examples of such persons are state, federal, and others conducting field research utilizing RUPs.
4.2.l. Pesticide Storage and Distribution (Excluding application). This category includes those persons who store, display, and distribute RUPs in the operation of a business selling or distributing pesticides. Certification in this category does not permit the application of pesticides for hire.
4.2.m. Predator Control. This category applies to United States Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services certified public applicators who use sodium cyanide in a mechanical ejection device to control regulated predators or who use sodium fluoroacetate in a protective collar to control regulated predators.
4.2.n. Aerial Pest Control. This category applies to commercial applicators who use or supervise the use of RUPs applied by fixed or rotary wing aircraft. In addition to demonstrating a knowledge of the specific standards for the applicable categories or subcategories in subdivisions 6.3.a through 6.3.k of this rule, persons desiring to apply pesticides by aircraft shall hold a valid Agricultural Applicator Certification from the Federal Aviation Administration.
4.2.o. Sewer root control. This category includes commercial applicators using or supervising the use of metam sodium to control roots in sewer lines.
W. Va. Code R. § 61-12A-5 Categorization of Private Applicators
5.1. Agricultural Pest Control. This category includes private applicators using or supervising the use of RUPs in the production of agricultural commodities, including but not limited to tobacco, peanuts, cotton, feed grains, soybeans, and forage; vegetables; small fruits; tree fruits and nuts; as well as on grasslands and non-crop agricultural lands. This category also includes private applicators using or supervising the use of RUPs on animals and places on or in which animals are confined. Examples of such animals include, but are not limited to beef cattle, dairy cattle, swine, sheep, horses, goats, poultry and livestock.
5.2. General Fumigation. This category includes private applicators who use or supervise the use of a restricted pesticide to fumigate soil or anything other than soil.
W. Va. Code R. § 61-12A-6 Certification Standards for Pesticide Applicators
6.1. General Standards for private and commercial applicators. All applicators shall demonstrate a practical knowledge of the principles and practices of pest control and safety in the use of pesticides. The commissioner shall base a determination of competency on an examination addressing the following areas:
6.1.a. Label and labeling comprehension. Familiarity with pesticide labels and labeling and their functions, including the following:
6.1.a.A. the general format and terminology of labels and labeling;
6.1.a.B. understanding instructions warnings, terms, symbols, and other information commonly appearing on pesticide labels and labeling;
6.1.a.C. understanding that it is a violation of federal law to use any registered pesticide in a manner inconsistent with its labeling;
6.1.a.D. understanding when a certified applicator must be physically present at the site of the application based on labeling requirements;
6.1.a.E. understanding labeling requirements for supervising non-certified applicators working under the direct supervision of a certified applicator;
6.1.a.F. understanding that applicators shall comply with all use restrictions and directions for use contained in pesticide labels and labeling, including being certified in the certification category appropriate to the type and site of the application;
6.1.a.G. understanding the meaning of product classification as either general or restricted use and that a product may be unclassified;
6.1.a.H. understanding and complying with product-specific notification requirements; and
6.1.a.I. recognizing and understanding the difference between mandatory and advisory labeling language.
6.1.b. Safety Measures to avoid or minimize adverse health effects, including the following:
6.1.b.A. understanding the different natures of the risks of acute toxicity and chronic toxicity, as well as the long-term effects of pesticides;
6.1.b.B. an understanding that a pesticide's risk is a function of exposure and the pesticide's toxicity;
6.1.b.C. recognition of likely ways in which dermal, inhalation, and oral exposure may occur;
6.1.b.D. common types and causes of pesticide mishaps;
6.1.b.E. precautions to prevent injury to applicators and other individuals in or near treated areas;
6.1.b.F. need for, and proper use of, protective clothing and personal protective equipment;
6.1.b.G. symptoms of pesticide poisoning;
6.1.b.H. first aid and other procedures to be followed in case of a pesticide mishap; and
6.1.b.I. proper identification, storage, transport, handling, mixing procedures, and disposal methods for pesticides and used pesticide containers, including precautions to be taken to prevent children from having access to pesticides and pesticide containers.
6.1.c. Environment. The potential environmental consequences of the use and misuse of pesticides, including the influence of the following:
6.1.c.A. weather and other indoor and outdoor climatic conditions;
6.1.c.B. types of terrain, soil, or other substrate;
6.1.c.C. presence of fish, wildlife, and other non-target organisms; and
6.1.c.D. drainage patterns;
6.1.d. Pests. the proper identification and effective control of pests, including the following:
6.1.d.A. the importance of correctly identifying target pests and selecting the proper pesticide product(s) for effective pest control; and
6.1.d.B. verifying that the labeling does not prohibit the use of the product to control the target pest(s);
6.1.e. Pesticides Characteristics of pesticides, including the following:
6.1.e.A. types of pesticides,
6.1.e.B. types of formulations,
6.1.e.C. compatibility, interaction, persistence, and animal and plant toxicity of the formulations.
6.1.e.D. hazards and residues associated with use;
6.1.e.E. factors that influence effectiveness or lead to problems such as pesticide resistance; and
6.1.e.F. dilution procedures.
6.1.f. Equipment. Application equipment, including the following:
6.1.f.A. types of equipment and advantages and limitations of each type; and
6.1.f.B. use, maintenance, and calibration procedures.
6.1.g. Application methods. Selecting appropriate application methods, including the following:
6.1.g.A. methods used to apply various forms and formulations of pesticides;
6.1.g.B. knowledge of which application method to use in a given situation and that use of a fumigant requires additional certification;
6.1.g.C. how selection of application method and use of a pesticide may result in proper use, unnecessary or ineffective use, and misuse; and
6.1.g.D. prevention of drift and pesticide loss into the environment.
6.1.h. Laws and regulations. Knowledge of all applicable State, Tribal, and Federal laws and regulations, including understanding the Worker Protection Standard 40 CFR part 170 and the circumstances where compliance is required.
6.1.i. Responsibilities of supervisors of non-certified applicators. Knowledge of the responsibilities of certified applicators supervising non-certified applicators, including the following:
6.1.i.A. understanding and complying with requirements in Section 8 of this rule for certified commercial applicators who supervise non-certified applicators using RUPs;
6.1.i.B. the recordkeeping requirements of pesticide safety training for non-certified applicators who use RUPs under the direct supervision of a certified applicator;
6.1.i.C. providing use-specific instructions to non-certified applicators using RUPs under the direct supervision of a certified applicator; and
6.1.i.D. explaining pertinent state, tribal, and federal laws and regulations to non-certified applicators who use RUPs under the direct supervision of a certified applicator.
6.1.j. Stewardship and Professionalism. Understanding the importance of the following:
6.1.j.A. maintaining chemical security for RUPs;
6.1.j.B. how to communicate information about pesticide exposures and risks with customers and the public, workers and handlers and other persons; and
6.1.j.C. appropriate product stewardship for certified applicators.
6.2. Specific Standards of Private Applicator. Private applicators shall demonstrate by written examination the skills and knowledge specific to their category of certification. The importance of the demonstration is amplified by the use of pesticides on extensive areas, the quantities of pesticide needed and the ultimate use of many agricultural commodities as food and fuel.
6.2.a. Agricultural Pest Control. As a minimum requirement a private applicator in this category must demonstrate by written examination a practical knowledge of the pest problems and pest control practices associated with his or her agricultural operation and his or her related legal responsibility. This demonstration of knowledge shall include:
6.2.a.A. the recognition of the common pests to be controlled and damage caused by them;
6.2.a.B. the ability to read and understand the pesticide label and labeling information - including the common name of pesticides he or she applies; the pests to be controlled; the timing and methods of application; safety precautions; any preharvest or reentry restrictions; and specific disposal procedures;
6.2.a.C. the ability to apply pesticides in accordance with label instructions and warnings, including the ability to prepare the proper concentration of pesticide to be used under particular circumstances taking into account such factors as the area to be covered, the speed at which application equipment will be driven and the quantity dispersed in a given period of operation;
6.2.a.D. the ability to recognize local environmental situations that must be considered during pesticide application to avoid contaminations;
6.2.a.E. the ability to recognize poisoning symptoms and the procedures to follow in case of a pesticide accident; and
6.2.a.F. a practical knowledge concerning relevant soil and water problems, preharvest intervals, reentry intervals, phytotoxicity, pesticide toxicity, residue potential and the potential for environmental contamination and non-target injury.
6.2.a.G. the ability to understand specific pesticide toxicity and residue potential when pesticides are applied to animal or animal product agricultural commodities.
6.2.a.H. practical knowledge of the relative hazards associated with using pesticides on animals or places in which animals are confined based on formulation, application technique, age of animal, stress, and extent of treatment.
6.2.b. General Fumigation. Applicators shall demonstrate practical knowledge of General Fumigation for commercial applicators as outlined in paragraph 6.3.h.C of this rule (“General Fumigation”).
6.3. Specific standards for commercial applicators. All commercial applicators shall demonstrate skills and knowledge specific to their desired category of certification in addition to the general requirements set forth in subsection 6.1 of this rule. The specific standards set forth in this section are applicable to the commercial applicator categories and subcategories of certification specified in sub-section 4.2 of this rule.
6.3.a. Agricultural Plant Pest Control. Applicators shall demonstrate practical knowledge of crops, grasslands, and non-crop agricultural lands and the specific pests of those areas on which they may be using RUPs. The importance of such competency is amplified by the extensive areas involved, the quantities of pesticides needed, and the ultimate use of many commodities as food and feed. The required knowledge includes pre-harvest intervals, restricted entry intervals, phytotoxicity, potential for environmental contamination such as soil and water problems, non-target injury, and other problems resulting from the use of RUPs in agricultural areas. The required knowledge also includes the potential for phytotoxicity due to a wide variety of plants to be protected, for drift, for persistence beyond the intended period of pest control, and for non-target exposures.
6.3.b. Agricultural Animal Pest Control. Applicators applying pesticides directly to animals shall demonstrate a practical knowledge of the animals in this State and their associated pests. An applicator must also have a practical knowledge concerning specific pesticide toxicity and residue potential, since host animals will frequently be used for food. Further, the applicator must know the relative hazards associated with such factors as formulation, application techniques, the age of the animal, stress and the extent of treatment.
6.3.c. Forest Pest Control. Applicators shall demonstrate a practical knowledge of the types of forests, forest nurseries and seed production in this State and the pests involved. They shall possess a practical knowledge of the cyclic occurrence of certain pests and specific population dynamics as a basis for programming pesticide applications. An applicator must have a practical knowledge of the relative biotic agents and their vulnerability to the pesticides to be applied. The applicator shall demonstrate a practical knowledge of secondary problems such as unintended effects on wildlife. An applicator must demonstrate the proper use of specialized equipment especially as it may relate to meteorological factors and adjacent land use. The required knowledge also includes the potential for phytotoxicity due to a wide variety of plants to be protected, for drift, for persistence beyond the intended period of pest control, and for non-target exposures.
6.3.d. Ornamental and Turf Pest Control. Applicators shall demonstrate practical knowledge of pesticide problems associated with the production and maintenance of ornamental plants and turf. The required knowledge includes the potential for phytotoxicity due to a wide variety of plants to be protected, for drift, for persistence beyond the intended period of pest control, and for non-target exposures. Because of the frequent proximity of human habitations to application activities, applicators in this category shall demonstrate practical knowledge of application methods that will minimize or prevent hazards to humans, pets, and other domestic animals.
6.3.e. Seed Treatment. Applicators shall demonstrate practical knowledge including recognizing types of seeds to be treated, the effects of carriers and surface-active agents on pesticide binding and germination, the hazards associated with handling, sorting and mixing, and misuse of treated seed, the importance of proper application techniques to avoid harm to non-target organisms, and the proper disposal of unused treated seeds.
6.3.f. Aquatic Pest Control. Applicators shall demonstrate a practical knowledge of the types of secondary effects which can be caused by improper application rates, incorrect formulations, and the faulty application of RUPs used in this category. They shall demonstrate a practical knowledge of various water use situations and the potential of downstream effects of pesticides on plants, fish, birds, beneficial insects, and other organisms which may be present in aquatic environments. These applicators shall demonstrate a practical knowledge of the principles of limited area application.
6.3.g. Right-of-Way/Industrial Weed Control. Applicators shall demonstrate a practical knowledge of a wide variety of environments, since rights-of-way can traverse many different terrains, including waterways. They shall demonstrate a practical knowledge of problems of runoff, drift and excessive foliage destruction and the ability to recognize target organisms. They shall also demonstrate a practical knowledge of the mode of action of herbicides and the need for containment of these pesticides within the right-of-way area, and the impact of their application activities in the adjacent areas and communities. The required knowledge also includes the potential for phytotoxicity due to a wide variety of plants and pests to be controlled, and for persistence beyond the intended period of pest control.
6.3.h. Industrial, Institutional, Structural and Health Related Pest Control.
6.3.h.A. General. Applicators shall demonstrate a practical knowledge of the control of pests in and around structures excluding fumigation and wood destroying pests. Applicators shall demonstrate a practical knowledge of household type pests, such as cockroaches, ants, silverfish, spiders, food and fabric insects, rats, bats, and other occasional invaders, that infest structures, stored products and food preparation areas, such as kitchens, cafeterias or snack bars. They shall demonstrate a knowledge of conditions conducive to pest infestations and the selection of appropriate control procedures for each situation. Applicators shall demonstrate a knowledge of the hazards involved with pesticide usage.
6.3.h.B. Structural. Applicators shall demonstrate a practical knowledge of wood destroying organisms, such as beetles, termites, and fungi in and around structures, including recognizing those pests and signs of their presence, their habitats, their life cycles, biology, and behavior as it may be relevant to problem identification and control. Applicators shall demonstrate practical knowledge of types of formulations appropriate for control of these pests, and methods of application that avoid contamination of food, minimize damage to and contamination of areas treated, minimize acute and chronic exposure of people and pets, and minimize environmental impacts of outdoor applications.
6.3.h.C. General Fumigation. Applicators shall demonstrate practical knowledge of the pest problems and pest control practices associated with performing soil and non-soil fumigation applications, including the following:
6.3.h.C.1. Label and labeling comprehension. Familiarity with the pesticide labels and labeling for products used to perform soil and non-soil fumigation, including the following:
6.3.h.C.1.a. Labeling requirements specific to soil and non-soil fumigants.
6.3.h.C.1.b. Requirements for certified applicators of fumigants, fumigant handlers and permitted fumigant handler activities, and the safety information that certified applicators shall provide to non-certified applicators using fumigants under the direct supervision of certified applicators.
6.3.h.C.1.c. Entry-restricted periods for tarped and untarped field application scenarios.
6.3.h.C.1.d. Recordkeeping requirements.
6.3.h.C.1.e. Labeling provisions unique to fumigant products containing certain active ingredients.
6.3.h.C.1.f. Labeling requirements for fumigant management plans (FMP), such as when a FMP shall be in effect, how long it shall be kept on file, where it shall be kept during the application, and who shall have access to it; the elements of a FMP and resources available to assist the applicator in preparing a FMP is accurate; and the elements, purpose and content of a post-application summary, who shall prepare it and when it shall be completed.
6.3.h.C.2. Safety. Measures to minimize adverse health effects, including the following:
6.3.h.C.2.a. Understanding how certified applicators, non-certified applicators using fumigants under direct supervision of certified applicators, field workers, handlers, and bystanders can become exposed to fumigants.
6.3.h.C.2.b. Common problems and mistakes that can result in direct exposure to fumigants.
6.3.h.C.2.c. Signs and symptoms of human exposure to fumigants.
6.3.h.C.2.d. Air concentrations of a fumigant that require that applicators or handlers wear respirators or exit the work area entirely.
6.3.h.C.2.e. Steps to take if a fumigant applicator or person using a fumigant experiences sensory irritation.
6.3.h.C.2.f. Understanding air monitoring, when it is required, and where and when to take samples.
6.3.h.C.2.g. Buffer zones, including procedures for buffer zone monitoring and who is permitted to be in a buffer zone.
6.3.h.C.2.h. First aid measures to take in the event of exposure to a soil or non-soil fumigant.
6.3.h.C.2.i. Labeling requirements for transportation, storage, spill clean up, and emergency response for soil and non-soil fumigants, including safe disposal of containers and contaminated materials (including soil), and management of empty containers.
6.3.h.C.3. Soil and non-soil fumigant chemical characteristics. Characteristics of soil and non-soil fumigants, including the following:
6.3.h.C.3.a. Chemical characteristics of soil and non-soil fumigants.
6.3.h.C.3.b. Specific human exposure concerns for soil and non-soil fumigants.
6.3.h.C.3.c. How soil and non-soil fumigants change from a liquid or solid to a gas.
6.3.h.C.3.d. How soil and non-soil fumigants disperse in the application zone.
6.3.h.C.3.e. Compatibility concerns for tanks, hoses, tubing, and other equipment.
6.3.h.C.4. Application. Selecting appropriate application methods and timing, including the following:
6.3.h.C.4.a. Application methods, including but not limited to water-run and non-water-run applications, and equipment commonly used for each soil and non-soil fumigant.
6.3.h.C.4.b. Site characteristics that influence fumigant exposure.
6.3.h.C.4.c. Understanding temperature inversions and their impact on soil fumigant application.
6.3.h.C.4.d. Weather conditions that could impact timing of soil and non-soil fumigant application, such as air stability, air temperature, humidity, and wind currents, and labeling statements limiting applications during specific weather conditions.
6.3.h.C.4.e. Conducting pre-application inspection of application equipment and site to be fumigated.
6.3.h.C.4.f. Understanding the purpose and methods of sealing site (soil and non-soil) to be fumigated, including the factors that determine which sealing method to use.
6.3.h.C.4.g. Understanding the use of tarps, including the range of tarps available, how to seal tarps, and labeling requirements for tarp removal, tarp perforation, and tarp repair.
6.3.h.C.4.h. Calculating the amount of product required for a specific treatment area.
6.3.h.C.4.i. Understanding the basic techniques for calibrating soil and non-soil fumigant application equipment.
6.3.h.C.4.j. Understanding when to conduct air monitoring, how to conduct air monitoring and when air monitoring is required.
6.3.h.C.5. Soil and pest factors. Soil and pest factors that influence fumigant activity, including the following:
6.3.h.C.5.a. Influence of soil factors on fumigant volatility and movement within the soil profile.
6.3.h.C.5.b. Influence of pest factors on fumigant volatility.
6.3.h.C.5.c. Factors that influence gaseous movement through the area being fumigated (including the soil profile) and into the air.
6.3.h.C.5.d. Soil characteristics, including how soil characteristics affect the success of a soil fumigant application, assessing soil moisture, and correcting for soil characteristics that could hinder a successful soil fumigant application.
6.3.h.C.5.e. Identifying pests causing the damage and verifying they can be controlled with soil or non-soil fumigation.
6.3.h.C.5.f. Understanding the relationship between pest density and application rate.
6.3.h.C.5.g. The importance of proper application depth, application rate and timing.
6.3.h.C.6. Personal protective equipment. Understanding what personal protective equipment is necessary and how to use it properly, including the following:
6.3.h.C.6.a. Following labeling directions for required personal protective equipment.
6.3.h.C.6.b. Selecting, inspecting, using, caring for, replacing, and disposing of personal protective equipment.
6.3.h.C.6.c. Understanding the types of respirators required when using specific soil and non-soil fumigants and how to use them properly, including medical evaluation, fit testing, and required replacement of cartridges and canisters.
6.3.h.C.6.d. Labeling requirements and other laws applicable to medical evaluation for respirator use, fit tests, training, and recordkeeping.
6.3.h.C.7. Fumigant management plans and post-application summaries. Information about fumigant management plans can be found at https://www.epa.gov/soil-fumigants/introduction-soil-fumigant-management-plans.
6.3.h.C.8. Buffer zones and posting requirements. Understanding buffer zones and posting requirements, including the following:
6.3.h.C.8.a. Buffer zones and the buffer zone period.
6.3.h.C.8.b. Identifying who is allowed in a buffer zone during the buffer zone period and who is prohibited from being in a buffer zone during the buffer zone period.
6.3.h.C.8.c. Understanding who is allowed in a non-soil area being fumigated or after fumigation and who is prohibited from being in a non-soil area being fumigated or after fumigation.
6.3.h.C.8.d. Using the buffer zone table from the labeling to determine the size of the buffer zone.
6.3.h.C.8.e. Factors that determine the buffer zone credits for application scenarios and calculating buffer zones using credits.
6.3.h.C.8.f. Distinguishing buffer zone posting, and soil fumigant treated area posting, including the pre-application and post-application posting timeframes for each.
6.3.h.C.8.g. Distinguishing fumigant labeling-required posting and treated area posting, including the pre-application timeframes for labeling-required posting, pre-application posting timeframes for treated area posting, the post-application timeframes for fumigant labeling-required posting, and the post-application timeframes for treated area posting.
6.3.h.C.8.h. Proper choice and proper placement of warning signs.
6.3.h.D. Wood Preservation and Wood Product Treatment. Applicators shall demonstrate a practical knowledge of the conditions for which a preservative treatment of wood is used. Applicators shall demonstrate a knowledge of the health and environmental hazards associated with wood treating procedures, and the need for informing purchasers of precautions for handling, use and disposal of treated wood products. They shall demonstrate a knowledge of all applicable treating and testing equipment. Applicators in this subcategory shall also demonstrate a knowledge of the handling and local injection of specially labeled liquid or solid wood fumigants into infested wood, such as poles, piling and railroad crossties. Applicators shall demonstrate a knowledge of the hazards involved with the handling and use of these pesticides and the appropriate application equipment to be used.
6.3.h.E. Urban Integrated Pest Management. Applicators shall demonstrate a practical knowledge of the principles of integrated pest management for pests in and around structures. Applicators shall demonstrate a practical knowledge of urban pests such as cockroaches, ants, silverfish, spiders, food and fabric insects, rats, bats, and other occasional invaders that infest structures, stored products, and food preparation areas such as kitchens, cafeterias or snack bars. They shall demonstrate a knowledge of site evaluation, inspection, and monitoring; the relationship between pest biology and pest management methods; the concept of threshold levels; the use of pest preventive methods; the use of mechanical and physical pest management techniques; the use of least hazardous pest control methods; and the use of recordkeeping to evaluate the effectiveness of pest management programs.
6.3.i. Public Health Pest Control. Applicators shall demonstrate practical knowledge of pests that are important vectors of disease, including recognizing the pests and signs of their presence, their habitats, their life cycles, biology, and behavior as it may be relevant to problem identification and control. The required knowledge also includes how to minimize damage to and contamination of areas treated, acute and chronic exposure of people and pets, and non-target exposures.
6.3.j. Regulatory Pest Control. Applicators shall demonstrate a practical knowledge of regulated pests, including the applicable laws relating to quarantine and other regulation of pests and the potential impact on the environment of RUPs used in suppression and eradication programs. They shall demonstrate a knowledge of the factors influencing introduction, spread and population dynamics of relevant pests. Their knowledge shall extend beyond that required by their immediate duties, since their services are frequently required in other areas of the country where emergency measures are invoked to control regulated pests and where individual judgements are made in new situations.
6.3.k. Demonstration and Research Pest Control. Persons demonstrating the safe and effective use of pesticides to other applicators and the public shall demonstrate a practical knowledge of comprehensive standards reflecting a broad spectrum of pesticide uses. Many different pest problem situations will be encountered during activities associated with the demonstration and an applicator must have a practical knowledge of problems, pests and population levels occurring in each demonstration situation. Further, they shall demonstrate an understanding of pesticide-organism interaction and the importance of integrating pesticide use with other control methods. Applicators doing demonstration pest control work shall possess knowledge of all standards detailed under sub-section 6.1 of this rule. In addition, they shall meet the specific standards required in sub-division 6.3.a through 6.3.h of this rule as may be applicable to their activity in this State. Persons conducting field research or method improvement work with RUPs shall know the general standards detailed in subsection 6.1 of this rule. In addition, they shall know the specific standards required in sub-division 6.3.a through 6.3.j of this rule as may be applicable to their activity in this state.
6.3.l. Pesticide Storage and Distribution.
6.3.l.A. Persons in this category store, display and distribute RUPs. Applicants in this category shall demonstrate a knowledge and understanding of the safe and acceptable methods of handling, storing, displaying, and distributing RUPs; the potential for environmental hazards; the containment of spills; the disposal of pesticide related hazardous waste and an understanding of State and Federal pesticide laws.
6.3.l.B. Persons operating as dealers of RUPs shall also demonstrate a practical knowledge of the types of pesticides he or she sells, including but not limited to: labels and label comprehension; the classification of pesticides and the necessity for use consistent with the label; safety, including safe use and safe environment; the symptoms of pesticide poisoning; the types of pesticides and pesticide formulations; and the dilution procedures and application techniques.
6.3.m. Predator Control. Applicators shall demonstrate a practical knowledge of the use of sodium cyanide in a mechanical injection device and sodium fluoroacetate in a protective collar to control regulated predators including the following:
6.3.m.1. Applicators shall demonstrate practical knowledge of mammalian predator pests, including recognizing those pests and signs of their presence, their habitats, their life cycles, biology, and behavior as it may be relevant to pest identification and control.
6.3.m.2. Applicators shall demonstrate comprehension of all laws and regulations applicable to the use of sodium fluoroacetate products and mechanical ejection devices for sodium cyanide, including the restrictions on the use of sodium fluoroacetate products and sodium cyanide products ordered by the EPA Administrator.
6.3.m.3. Applicators shall also demonstrate practical knowledge and understanding of all of the specific use restrictions for sodium cyanide devices, including safe handling and proper placement of the capsules and device, proper use of the antidote kit, notification to medical personnel before use of the device, conditions of and restrictions on when and where devices can be used, requirements to consult U.S. Fish and Wildlife Service maps before use to avoid affecting endangered species, maximum density of devices, provisions for supervising and monitoring applicators, required information exchange in locations where more than one entity is authorized to place devices, and specific requirements for recordkeeping, monitoring, field posting, proper storage, and disposal of damaged or used sodium cyanide capsules.
6.3.m.4. Applicators shall also demonstrate practical knowledge and understanding of the specific use restrictions for sodium fluoroacetate in the livestock protection collar, including where and when sodium fluoroacetate products can be used, safe handling and placement of collars, and practical treatment of sodium fluoroacetate poisoning in humans and domestic animals.
6.3.m.5. Applicators shall also demonstrate practical knowledge and understanding of specific requirements for field posting, monitoring, recordkeeping, proper storage of collars, disposal of punctured or leaking collars, disposal of contaminated animal remains, vegetation, soil, and clothing, and reporting of suspected and actual poisoning, mishap, or injury to threatened or endangered species, humans, domestic animals, or non-target wild animals.
6.3.n. Aerial. In addition to demonstrating a knowledge of the specific standards for the applicable categories or subcategories in subdivisions 6.3.a. through 6.3.k. of this rule, persons desiring to apply pesticides by aircraft must hold a valid Agricultural Applicator Certification from the Federal Aviation Administration. and shall demonstrate practical knowledge of the pest problems and pest control practices associated with performing aerial application of RUPs, including the following:
6.3.n.1. Labeling. Labeling requirements and restrictions specific to aerial application of pesticides including:
6.3.n.1.a. Spray volumes.
6.3.n.1.b. Buffers and no-spray zones.
6.3.n.1.c. Weather conditions specific to wind and inversions.
6.3.n.2. Application equipment. Understand how to choose and maintain aerial application equipment, including the following:
6.3.n.2.a. The importance of inspecting application equipment to ensure it is in proper operating condition prior to beginning an application.
6.3.n.2.b. Selecting proper nozzles to ensure appropriate pesticide dispersal and to minimize drift. 6.3.n.2.c.. Knowledge of the components of an aerial pesticide application system, including pesticide hoppers, tanks, pumps, and types of nozzles.
6.3.n.2.d. Interpreting a nozzle flow rate chart.
6.3.n.2.e. Determining the number of nozzles for intended pesticide output using nozzle flow rate chart, aircraft speed, and swath width.
6.3.n.2.f. How to ensure nozzles are placed to compensate for uneven dispersal due to uneven airflow from wingtip vortices, helicopter rotor turbulence, and aircraft propeller turbulence.
6.3.n.2.g. Where to place nozzles to produce the appropriate droplet size.
6.3.n.2.h. How to maintain the application system in good repair, including pressure gauge accuracy, filter cleaning according to schedule, and checking nozzles for excessive wear.
6.3.n.2.i. How to calculate required and actual flow rates.
6.3.n.2.j. How to verify flow rate using fixed timing, open timing, known distance, or a flow meter.
6.3.n.2.k. When to adjust and calibrate application equipment.
6.3.n.3. Application considerations. The applicator shall demonstrate knowledge of factors to consider before and during application, including the following:
6.3.n.3.a. Weather conditions that could impact application by affecting aircraft engine power, take-off distance, and climb rate, or by promoting spray droplet evaporation.
6.3.n.3.b. How to determine wind velocity, direction, and air density at the application site.
6.3.n.3.c. The potential impact of thermals and temperature inversions on aerial pesticide application.
6.3.n.4. Minimizing drift. The applicator shall demonstrate knowledge of methods to minimize off-target pesticide movement, including the following:
6.3.n.4.a. How to determine drift potential of a product using a smoke generator.
6.3.n.4.b. How to evaluate vertical and horizontal smoke plumes to assess wind direction, speed, and concentration.
6.3.n.4.c. Selecting techniques that minimize pesticide movement out of the area to be treated.
6.3.n.4.d. Documenting special equipment configurations or flight patterns used to reduce off-target pesticide drift.
6.3.n.5. Performing aerial application. The applicator shall demonstrate competency in performing an aerial pesticide application, including the following:
6.3.n.5.a. Selecting a flight altitude that minimizes streaking and off-target pesticide drift.
6.3.n.5.b. Choosing a flight pattern that ensures applicator and bystander safety and proper application.
6.3.n.5.c. The importance of engaging and disengaging spray precisely when entering and exiting a predetermined swath pattern.
6.3.n.5.d. Tools available to mark swaths, such as global positioning systems and flags.
6.3.n.5.f. Recordkeeping requirements for aerial pesticide applications including application conditions if applicable.
6.3.o. Sewer Root Control. Applicators in this category shall demonstrate practical knowledge of the secondary effects of metam sodium on downstream water bodies and lateral and upstream residential and nonresidential sewer connections; the importance and use of personal protective equipment; and the proper measurement, calibration and application of metam sodium. Applicators shall demonstrate practical knowledge of the pest problems and pest control practices associated with performing fumigation applications of RUPs to sites other than soil, including the following:
6.3.o.1. Label & labeling comprehension. Familiarity with the pesticide labels and labeling for products used to perform non-soil fumigation, including labeling requirements specific to non-soil fumigants.
6.3.o.2. Safety. Measures to minimize adverse health effects, including the following:
6.3.o.2.A. Understanding how certified applicators, non-certified applicators using fumigants under direct supervision of certified applicators, and bystanders can become exposed to fumigants.
6.3.o.2.B. Common problems and mistakes that can result in direct exposure to fumigants.
6.3.o.2.C. Signs and symptoms of human exposure to fumigants.
6.3.o.2.D. Air concentrations of a fumigant that require applicators to wear respirators or to exit the work area entirely.
6.3.o.2.E. Steps to take if a fumigant applicator experiences sensory irritation.
6.3.o.2.F. Understanding air monitoring, when it is required, and where and when to take samples.
6.3.o.2.G. First aid measures to take in the event of exposure to a fumigant.
6.3.o.2.H. Labeling requirements for transportation, storage, spill clean up, and emergency response for non-soil fumigants, including safe disposal of containers and contaminated materials, and management of empty containers.
6.3.o.3. Non-soil fumigant chemical characteristics. Characteristics of non-soil fumigants, including the following:
6.3.o.3.A. Chemical characteristics of non-soil fumigants.
6.3.o.3.B. Specific human exposure concerns for non-soil fumigants.
6.3.o.3.C. How fumigants change from a liquid or solid to a gas.
6.3.o.3.D. How fumigants disperse in the application zone.
6.3.o.3.E. Compatibility concerns for tanks, hoses, tubing, and other equipment.
6.3.o.4. Application. Selecting appropriate application methods and timing, including the following:
6.3.o.4.A. Application methods and equipment commonly used for non-soil fumigation.
6.3.o.4.B. Site characteristics that influence fumigant exposure.
6.3.o.4.C. Conditions that could impact timing of non-soil fumigant application, such as air stability, air temperature, humidity, and wind currents, and labeling statements limiting applications under specific conditions.
6.3.o.4.D. Conducting pre-application inspection of application equipment and the site to be fumigated.
6.3.o.4.E. Understanding the purpose and methods of sealing the area to be fumigated, including the factors that determine which sealing method to use.
6.3.o.4.F. Calculating the amount of product required for a specific treatment area.
6.3.o.4.G. Understanding the basic techniques for calibrating non-soil fumigant application equipment.
6.3.o.4.H. Understanding when and how to conduct air monitoring and when it is required.
6.3.o.5. Pest factors. Pest factors that influence fumigant activity, including the following:
6.3.o.5.A. Influence of pest factors on fumigant volatility.
6.3.o.5.B. Factors that influence gaseous movement through the area being fumigated and into the air.
6.3.o.5.C. Identifying pests causing the damage and verifying they can be controlled with fumigation.
6.3.o.5.D. Understanding the relationship between pest density and application rate.
6.3.o.5.E. The importance of proper application rate and timing.
6.3.o.6. Personal protective equipment. Understanding what personal protective equipment is necessary and how to use it properly, including the following:
6.3.o.6.A. Following labeling directions for required personal protective equipment.
6.3.o.6.B. Selecting, inspecting, using, caring for, replacing, and disposing of personal protective equipment.
6.3.o.6.C. Understanding the types of respirators required when using specific non-soil fumigants and how to use them properly, including medical evaluation, fit testing, and required replacement of cartridges and canisters.
6.3.o.6.D. Labeling requirements and other laws applicable to medical evaluation for respirator use, fit tests, training, and recordkeeping.
6.4. Registered Technicians. Non-certified employees of a pesticide business performing pesticide application like a commercial applicator or certified public applicator must register with the commissioner.
6.4.a. Initial Training. Each pesticide business is responsible for ensuring that each employee, other than a certified applicator, successfully completes a verifiable training program approved by the commissioner. The employee shall complete the training program within 30 days of his or her employment and before the employee registers with the commissioner.
6.4.b. The commissioner may not approve any training program that does not have a method of verification of employee attendance or participation and include instruction by a certified applicator in at least the following elements:
6.4.b.A. Potential hazards from toxicity and exposure that pesticides present to non-certified applicators and their families, including acute and chronic effects, delayed effects, and sensitization.
6.4.b.B. Routes through which pesticides can enter the body.
6.4.b.C. Signs and symptoms of common types of pesticide poisoning.
6.4.b.D. Emergency first aid for pesticide injuries or poisonings.
6.4.b.E. Routine and emergency decontamination procedures, including emergency eye flushing techniques. Non-certified applicators shall be instructed that if pesticides are spilled or sprayed on the body, to immediately wash or to rinse off in the nearest clean water. Non-certified applicators shall also be instructed to wash or shower with soap and water, shampoo hair, and change into clean clothes as soon as possible.
6.4.b.F. How and when to obtain emergency medical care.
6.4.b.G. After working with pesticides, wash hands before eating, drinking, using chewing gum or tobacco, or using the toilet.
6.4.b.H. Wash or shower with soap and water, shampoo hair and change into clean clothes as soon as possible after working with pesticides.
6.4.b.I. Potential hazards from pesticide residues on clothing.
6.4.b.J. Wash work clothes before wearing them again and wash them separately from other clothes.
6.4.b.K. Do not take pesticides or pesticide containers used at work to your home.
6.4.b.L. Potential hazards to children and pregnant women from pesticide exposure.
6.4.b.M. After working with pesticides, remove work boots or shoes before entering your home, and remove work clothes and wash or shower before physical contact with children or family members.
6.4.b.N. How to report suspected pesticide use violations to the appropriate State or Tribal entity responsible for pesticide enforcement.
6.4.b.O. Format and meaning of information contained on pesticide labels and in labeling applicable to the safe use of the pesticide, including the location and meaning of the restricted use product statement, how to identify when the labeling requires the certified applicator to be physically present during the use of the pesticide, and information on personal protective equipment.
6.4.b.P. Need for, and appropriate use and removal of, personal protective equipment.
6.4.b.Q. How to recognize, prevent, and provide first aid treatment for heat-related illness.
6.4.b.R. Safety requirements for handling, transporting, storing, and disposing of pesticides, including general procedures for spill cleanup.
6.4.b.S. Environmental concerns such as drift, runoff, and wildlife hazards.
6.4.b.T. RUPs may be used only by a certified applicator or by a non-certified applicator working under the direct supervision of a certified applicator.
6.4.b.U. The certified applicator's responsibility to provide to each non-certified applicator instructions specific to the site and pesticide used. These instructions shall include labeling directions, precautions, and requirements applicable to the specific use and site, and how the characteristics of the use site (e.g., surface and ground water, endangered species, local population, and risks) and the conditions of application (e.g., equipment, method of application, formulation, and risks) might increase or decrease the risk of adverse effects. The certified applicator shall provide these instructions in a manner the non-certified applicator can understand.
6.4.b.V. The certified applicator's responsibility to ensure that each non-certified applicator always has access to the applicable product labeling during its use.
6.4.b.W. The certified applicator's responsibility to ensure that where the labeling of a pesticide product requires that personal protective equipment be worn for mixing, loading, application, or any other use activities, each non-certified applicator has clean, labeling-required personal protective equipment in proper operating condition and that the personal protective equipment is worn and use correctly for its intended purpose.
6.4.b.X. The certified applicator's responsibility to ensure that before each day of use equipment used for mixing, loading, transferring, or applying pesticides is in proper operating condition as intended by the manufacturer, and can be used without risk of reasonably foreseeable adverse effects to the non-certified applicator, other persons, or the environment.
6.4.b.Y. The certified applicator's responsibility to ensure that a means to immediately communicate with the certified applicator is available to each non-certified applicator using pesticides under his or her direct supervision.
6.4.c. Upon request by the commissioner each pesticide business shall produce the records or other means of verification that an employee has completed an approved training program.
6.4.d. Identification. The commissioner shall issue an identification card to each registered technician. The registered technician shall carry the identification card and show it upon request to any person.
6.4.e. Employment termination. Within 30 days of termination, a pesticide business shall give the commissioner written notice of the termination of the registered technician. The registered technician shall return the identification card to the commissioner.
6.5. Non-certified applicator qualifications. Before any non-certified applicator uses a RUP under the direct supervision of the certified applicator, the supervising certified applicator shall ensure that the non-certified applicator has met at least one of the following qualifications:
6.5.a. The non-certified applicator has been trained in accordance with subsection 6.4 of this rule within the last 12 months.
6.5.b. The non-certified applicator has met the training requirements for an agricultural handler under 40 CFR 170.501 of the EPA Worker Protection Standard within the last 12 months.
6.5.c. The non-certified applicator has met the requirements established by a certifying authority that met or exceed the standards in subdivision 6.5.a of this rule.
6.5.d. The non-certified applicator is currently a certified applicator but is not certified to perform the type of application being conducted or is not certified in the jurisdiction where the use will take place.
W. Va. Code R. § 61-12A-7 Recertification
7.1. At no greater than a three-year interval each commercial applicator, certified public applicator or private applicator must present evidence or documentation indicating that he or she has attended workshops or training sessions approved by the commissioner. The commissioner will grant an applicator a continuing certification unit (“CCU”) for a 30-minute period of training or the greater portion thereof.
7.2. Commercial/Certified Public Applicators - For recertification, each commercial applicator or certified public applicator shall accrue at least 20 continuing certification units (10 hours) of audience contact or participation on the subject matter contained in sub-sections 6.1 and 6.3 of this rule for each category or subcategory of certification.
7.3. Private Applicator - For recertification, each private applicator shall accrue at least 10 continuing certification units (5 hours) of audience contact or participation on the subject matter contained in sub-sections 6.1 and 6.2 of this rule for each category or subcategory of certification.
7.4. Registered Technicians - Each registered technician shall accrue at least 4 continuing certification units (2 hours) of audience contact or participation on the subject matter contained in sub-sections 6.1 and 6.3 of this rule for each category or subcategory of registration each year prior to renewal.
7.5. A certified applicator may accumulate the required continuing certification units for programs as required in this section by attending two or more training sessions.
W. Va. Code R. § 61-12A-8 Supervision of Non-Certified Applicators
8.1. General Supervision
8.1.a. All non-certified applicators must be under the direct supervision of a certified applicator. Non-certified applicators working under the direct supervision of a certified commercial applicator or certified public applicator shall complete registered technician training as outlined in subsection 6.4 of this rule. Non-certified applicators working under the supervision of a private applicator shall complete annual training as a handler under the Worker Protection Standard (WPS) (40 CFR 170.501).
8.1.b. During the non-certified applicator’s use of a restricted use product, the certified applicator shall be able to be at the use site and with the non-certified applicator, at the point of use of the restricted use product, within a reasonable period of time; ensure that the non-certified applicator has means by which to contact the certified applicator immediately, should the need arise; shall be available to be contacted by the non-certified applicator; and shall arrive at the point of use within a reasonable period of time if summoned by the non-certified applicator. The certified applicator shall take into consideration the potential for serious consequences of a delay in arriving at the use site when determining what is a reasonable period.
8.2. Label Specified Supervision - In some situations the labeling on the pesticide product will require other levels of supervision. These requirements may be the use of the pesticide with a certified applicator on site or use only by a certified applicator. In those situations, the product label will control the minimum supervision required. An applicator must follow these label requirements.
8.3. Use-specific supervision - conditions that shall be met for a non-certified applicator to use a RUP. The certified applicator shall ensure that the following requirements are met before allowing a non-certified applicator to use a RUP under his or her direct supervision:
8.3.a. The certified applicator shall ensure that the non-certified applicator always has access to the applicable product labeling during its use.
8.3.b. Where the labeling of a pesticide product requires that personal protective equipment be worn for mixing, loading, application, or any other use activities, the certified applicator shall ensure that any non-certified applicator has clean, labeling-required personal protective equipment in proper operating condition and that the personal protective equipment is worn and used correctly for its intended purpose.
8.3.c. The certified applicator shall provide to each non-certified applicator before use of a RUP instructions specific to the site and pesticide used. These instructions shall include labeling directions, precautions, and requirements applicable to the specific use and site, and how the characteristics of the use site (e.g., surface and ground water, endangered species, local population) and the conditions of application (e.g., equipment, method of application, formulation) might increase or decrease the risk of adverse effects. The certified applicator shall provide this information in a manner that the non-certified applicator can understand.
8.3.d. The certified applicator shall ensure that before each day of use equipment used for mixing, loading, transferring, or applying pesticides is in proper operating condition as intended by the manufacturer, and can be used without risk of reasonably foreseeable adverse effects to the non-certified applicator, other persons, or the environment.
W. Va. Code R. § 61-12A-9 Record Keeping
9.1. Commercial Applicator/Certified Public Applicator
9.1.a. Each commercial applicator or certified public applicator shall keep for a minimum of two years records detailing the application of all pesticides. Applicators shall maintain the following information at a minimum:
9.1.a.A. the pesticide brand name used, including the EPA registration number;
9.1.a.B. the formulation, the dilution rate and the quantity of the pesticide used;
9.1.a.C. the time, date and the place of application and name and address of the person for whom the pesticide was applied;
9.1.a.D. the pest against which the pesticide was used;
9.1.a.E. the crop, commodity, stored product, or site where applied;
9.1.a.F. the size of the area treated; and
9.1.a.G. the name and certification number of certified and non certified applicator(s).
9.2. Records kept by a licensed pesticide application business or a regulated pesticide business may serve as the records for the individual certified employees of those businesses.
9.3. Private Applicator - A private applicator shall keep records for a period of two years detailing the use of RUPs. A private applicator shall maintain the following minimum information:
9.3.a. the pesticide brand name used, including EPA registration number;
9.3.b. the formulation, the dilution rate and the quantity of the pesticide used;
9.3.c. the time, date and the place of application;
9.3.d. the name and address of the person for whom pesticide was applied:
9.3.e. the pest against which the pesticide was used;
9.3.f. the size of the area treated:
9.3.g. the crop, commodity, stored product or site where pesticide applied;
9.3.h. name and certification number of certified and name of non-certified applicators; and
9.3.i. records required under subsection 9.4 of this rule.
9.4. Non Certified Applicators.
9.4.a. Commercial applicators shall create or verify the existence of records documenting that each non-certified applicator has the qualifications required in subsection 6.5 of this rule. For each non-certified applicator, the records shall contain the information appropriate to the method of qualification as provided in paragraphs 9.4.a.A through 9.4.a.D of this rule.
9.4.a.A. if the non-certified applicator was trained in accordance with subsection 6.5 of this rule, the record shall contain the following information:
9.4.a.A.1. the non-certified applicator's printed name and signature;
9.4.a.A.2. the date the training requirement in subsection 6.5 of this rule was met;
9.4.a.A.3. the name of the person who provided the training; and
9.4.a.A.4. the title or a description of the training provided.
9.4.a.B. If the non-certified applicator was trained as an agricultural handler under 40 CFR 170.501 in accordance with subdivision 6.5.b of this rule, the record shall contain all of the information required at 40 CFR 170.501(d)(1).
9.4.a.C. If the non-certified applicator qualified by satisfying the requirements established by the certifying authority, as described in subdivision 6.5.c of this rule, the record shall contain the information required by the certifying authority.
9.4.a.D. If the non-certified applicator is a certified applicator who is not certified to perform the type of application being conducted or not certified in the jurisdiction where the use will take place, as described in subdivision 6.5.d of this rule, the record shall include the following information:
9.4.a.D.1. the non-certified applicator's name;
9.4.a.D.2. the non-certified applicator's certification number;
9.4.a.D.3. the expiration date of the non-certified applicator's certification; and
9.4.a.D.4. the certifying authority that issued the certification.
9.4.b. The commercial applicator shall create or verify the existence of the record containing the information in subdivision 9.4.a of this rule before allowing the non-certified applicator to use RUPs under his or her direct supervision.
9.4.c. The commercial applicator supervising any non-certified applicator shall have access to records documenting the information required in subdivision 9.4.a of this rule at the commercial applicator's principal place of business for two years from the date the non-certified applicator used the RUP.
W. Va. Code R. § 61-12A-10 Reciprocity
10.1. Commercial Applicators - When a non-resident commercial applicator is certified under the state plan of another state and desires to operate as a commercial applicator in West Virginia, he or she shall make application to the commissioner and shall include, along with the proper fee and other details required by the Act, a true copy of his or her credentials certifying him or her as an applicator of RUPs in another state. The commissioner then may, if he or she approves the credentials, issue a West Virginia license to the applicator in the category or categories for which he or she is certified in another state, without a written examination, provided that the state having originally certified the applicator will similarly certify holders of West Virginia certificates has similar certification requirements.
10.2. Private Applicators - When a private applicator is certified under the state plan of another state and owns, leases or manages land in West Virginia on which RUPs must be applied to produce agricultural crops, the commissioner will issue a West Virginia Private Applicator Certification on receipt of a properly completed application, the proper fee and a true copy of the applicant’s out-of-state certification.
W. Va. Code R. § 61-12A-11 Federal Employees
11.1. Certification - When an employee of any entity of the United States government has been qualified in any category as competent to apply RUPs under the Government Agency Plan (“GAP”), or another EPA approved plan judged by the commissioner to be at least equal to the Act and rules promulgated pursuant to the Act, the commissioner may issue a certification in the same category or categories without the need for a written examination nor for the payment of any fee.
11.2. Qualification for Certification - Federal employees qualified under an acceptable federal plan to apply RUPs and who intend to apply RUPs in West Virginia as a part of their entity work shall present their qualifying documents to the commissioner; and, if acceptable, these documents will be endorsed by the commissioner or a State document will be issued which will permit the federal employee to use RUPs in West Virginia.
11.3. Emergency Situations - If, in an emergency situation, federal employees are brought in to West Virginia to control or eradicate pests, and these employees have been properly qualified to use RUPs under the plan of another state or under an acceptable federal government entity plan, the employee is considered to be certified in West Virginia. The employee and his or her entity must, within 10 days of entering the state, present qualifying credentials to the commissioner. At this time, the commissioner shall issue state credentials if the employee is to remain in West Virginia as an applicator of RUPs. The provisions of this section do not apply to nonfederal employees contracted to perform pesticide applications for the federal government. In an emergency, however, and with the concurrence of the commissioner, a properly certified federal applicator may act in a supervisory capacity of a nonfederal applicator if the applicator is properly certified in West Virginia or under the plan of another state. Within 10 days of entering the State, the non-federal applicator certified in another state must apply for West Virginia certification as required by this rule.
W. Va. Code R. § 61-12A-12 Equipment
12.1. General - No person shall apply, dispense, or use any pesticide in or through any equipment or application apparatus unless such equipment or application apparatus is in sound mechanical condition and capable of satisfactory operation. All pesticide application equipment shall be properly equipped to dispense the proper amount of pesticide. All pesticide mixing, storage or holding tanks, whether on application equipment or not, shall be leakproof. All spray distribution systems shall be leakproof and any pumps which such systems may have shall be capable of operating at sufficient pressure to assure a uniform and adequate rate of discharge. All pesticide application equipment shall be equipped with whatever cut-off valves and discharge orifices may be necessary to enable the operator to pass over (or by) nontarget areas without contaminating them.
12.2. Backflow Prevention - All mixing or loading sites for spray equipment shall be equipped with a mechanism to prevent the back siphoning of pesticides into water sources. Mechanisms acceptable are backflow/anti-siphon valves in the plumbing system and/or an air gap between the top of the mixing tank and the water inlet hose.
Series 12B Licensing of Pesticide Businesses
W. Va. Code R. § 61-12B-1 General
1.1. Scope. -- This legislative rule establishes the requirements governing the operation of pesticide businesses in West Virginia.
1.2. Authority. -- W. Va. Code §§19-16A-4, 8 and 9.
1.3. Filing Date. -- April 9, 2024
1.4. Effective Date. -- April 15, 2024.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-12B-2 Definitions
2.1. "Commercially" means the activity of conducting business relating to applying, selling, or recommending the use of pesticides on a regular routine basis.
2.2. "Pesticide consultant" means a person commercially recommending the use of pesticides to others.
2.3. "Regulated pesticide dealer" means a dealer commercially selling general use pesticides.
2.4. "Restricted Use Pesticide Dealer" means a dealer commercially selling restricted use pesticides.
W. Va. Code R. § 61-12B-3 General Requirements for all Business Licenses
3.1. A pesticide business operating in West Virginia which sells, stores, recommends for use, mixes or applies pesticides shall obtain a valid pesticide business license in one or more of the following categories:
3.1.a. Licensed Pesticide Application Business.
3.1.b. Regulated Pesticide Application Business.
3.1.c. Restricted Use Pesticide Dealer.
3.1.d. Regulated Pesticide Dealer.
3.1.e. Pesticide Consultant.
3.2. Pesticide businesses categorized as Licensed Pesticide Application Businesses, Restricted Use Pesticide Dealers, and Pesticide Consultants shall pay the appropriate license fee as contained in 61 CSR 12. Pesticide businesses categorized as Regulated Pesticide Application Businesses or Regulated Pesticide Dealers shall make application with the commissioner with no license fee requirement.
3.3. An applicant for a pesticide business license shall apply for the license on a form to be obtained from the commissioner. All requested information shall be included on the form prior to issuance of the license.
3.4. All pesticide business licenses are issued on a calendar year basis and expire at midnight on December 31 of each year. Licensees shall renew their licenses annually by application to the commissioner and payment of the fee required under 61 CSR 12. All licensees shall make application at least 30 days prior to the expiration of the businesses' current license.
W. Va. Code R. § 61-12B-4 Requirements for Pesticide Application Business
4.1. General.
4.1.a. Any person who owns or manages a pesticide application business, which is engaged in the business of applying pesticides upon the lands of another must qualify as either a Licensed Pesticide Application Business or a Regulated Pesticide Application Business.
4.1.b. All pesticide application businesses shall employ certified commercial applicators or certified public applicators for the various categories or subcategories of their operation. The categories or subcategories as detailed in the Certified Pesticide Applicator Rules (61 CSR 12A) are used for determining the areas in which a pesticide application business operates.
4.1.c. All pesticide applications made by pesticide application businesses shall be made by certified commercial applicators, certified public applicators or registered technicians who have completed a training program approved by the commissioner as described in 61 CSR 12A.
4.1.d. Each location of the pesticide application business shall be licensed. Locations requiring a separate license include each branch office, franchise location, sub-office or worker location of a pesticide application business.
4.2. Licensed Pesticide Application Business.
4.2.a. A Licensed Pesticide Application Business is a pesticide business commercially applying pesticides for hire.
4.3. Regulated Pesticide Application Business
4.3.a. A Regulated Pesticide Application Business is a pesticide business commercially applying pesticides not for hire. Examples of such businesses include, but are not limited to, apartment complexes, office buildings, educational facilities, golf courses, right of way maintenance, etc.
4.3.b. Persons doing limited applications of pesticides are exempt from the licensing requirements in this sub-section if:
4.3.b.A. the applicator is performing general pest control on his or her own rental property of four rental units or less, and is applying only generally available, ready to use pesticide products such as prepared baits, aerosols or foggers, and the applicator only uses non-pressurized pump sprayers or dusters;
4.3.b.B. the applicator is engaged in applying disinfectants in the routine performance of his or her employment in the medical profession or in janitorial duties; or
4.3.b.C. the applicator uses non-restricted use pesticides and assists in applying pesticides for the production of an agricultural commodity.
W. Va. Code R. § 61-12B-5 Requirements for Pesticide Dealer Business Licensing
5.1. General.
5.1.a. The commissioner shall require any pesticide business which sells, distributes, stores or offers for sale any pesticide in West Virginia to obtain a license as a Restricted Use Pesticide Dealer or as a Regulated Pesticide Dealer.
5.1.b. The commissioner shall require each business operating as a Restricted Use Pesticide Dealer to employ commercial applicators certified in the category of Pesticide Storage and Distribution as described in 61 CSR 12A. The commissioner shall not allow any business location or operation to sell restricted use pesticides without a certified commercial applicator present who shall bear the immediate responsibility for the correct and safe operation of his or her location or operation.
5.1.c. The commissioner shall require each applicant for a license as a Regulated Pesticide Dealer to demonstrate his or her knowledge on the storage, display, distribution and transportation of pesticides.
5.2. Exemption - The following Regulated Pesticide Dealers are exempt from the requirements of this rule.
5.2.a. Retailers of limited quantities of non-restricted use pesticides, including grocery stores, convenience stores, drug stores, veterinarians and other businesses which sell pesticides such as bleaches, disinfectants, aerosols, etc., for limited household or janitorial use.
5.2.b. Delivery services including, but not limited to, the U.S. Postal Service, United Parcel Service, Federal Express, etc., and warehouses temporarily storing products for shipment to retailers.
W. Va. Code R. § 61-12B-6 Requirements for Pesticide Consultant Business Licensing
6.1. The commissioner shall require all persons commercially recommending the use of pesticides to be licensed as a Pesticide Consultant.
6.2. The specialty categories for a Pesticide Consultant shall conform to the certified commercial applicator categories as described in the Certified Pesticide Applicator rules, 61 CSR 12A. The pesticide consultant shall meet the requirements of a commercial applicator in the specific category or subcategory in which he is making recommendations for pesticide use prior to being issued a business license.
6.3. Retail sales personnel or certified applicators of any business which has obtained a pesticide application business license, and certified public applicators or company sales representatives certified in the category of Demonstration and Research as described in 61 CSR 12A, are exempt from the provisions of this section.
W. Va. Code R. § 61-12B-7 Record Keeping Requirements for Pesticide Businesses
7.1. General
7.1.a. Each pesticide business shall maintain at a minimum the records specified in this section as a condition of obtaining and renewing a license, permit or certificate. The commissioner may require additional records be maintained by other rules adopted under W. Va. Code §19-16A-1 et seq.
7.1.b. The commissioner shall have access to all records for the purpose of inspection to determine compliance with W. Va. Code §19-16A-1 et seq. and any rules promulgated under W. Va. Code §19-16A-1 et seq. The commissioner may require a licensed pesticide business to submit these records to his or her office.
7.1.c. Each pesticide business shall keep and maintain records required by this section of the rule for a period of at least 2 years.
7.1.d. The commissioner may revoke a pesticide business license for failure to keep or to submit these records.
7.2. Pesticide Application Business Records.
7.2.a. Each Licensed Pesticide Application Business or Regulated Pesticide Business shall keep records detailing the application of all pesticides. The minimum information to be maintained is:
7.2.a.A. the pesticide used, including the EPA registration number.
7.2.a.B. the formulation, dilution rate and the quantity of the pesticide used. In the case of businesses in the classification of General Pest and Ornamental and Turf pest control, as described in 61 CSR 12A, the records for quantity used may be kept as the total quantity of the product used per day by each applicator when less than 1 gallon of use dilution spray or 1 pound of dust, powder or prepared rodenticide baits are used at any one location. When more than these amounts are used at one location, the quantity of the pesticide for that location shall be maintained separately.
7.2.a.C. the date and place of application.
7.2.a.D. the pest or pests against which the pesticide was used.
7.2.a.E. the applicator's name and certification or registration number.
7.3. Pesticide Dealer Records
7.3.a. General - All licensed Restricted Use Pesticide Dealers and Regulated Pesticide Dealers shall, on a calendar year basis, keep records on the volume of annual sales of all pesticide products. These records shall contain the following information:
7.3.a.A. the pesticide brand name and EPA registration number of the pesticide sold, including its formulation. For example: Pest-A-Way 80% WP., Registration No. 3215-514.
7.3.a.B. the quantity of the pesticide sold, in weight and/or volume.
7.3.b. Restricted Use Pesticide Dealers shall keep and maintain records on each sale or other disposition of restricted use pesticides and pesticides registered under emergency exemption or state special local needs. The minimum information to be maintained is:
7.3.b.A. the pesticides brand name sold or otherwise disposed of, including its formulation, for example Pest-A-Way 80% WP.
7.3.b.B. the quantity of pesticides in weight and/or volume.
7.3.b.C. the date of sale or disposition of the pesticide.
7.3.b.D. the name and address of residence or principal place of business of the purchaser or receiver, the state, tribe or federal entity which issued the certification document including the certified applicators identification number, category, and expiration date.
7.3.b.E. a verification of intent to apply by a certified applicator in the sale of a restricted use pesticide to a non-certified customer for application by others. The verification of intent shall be on a form provided by the commissioner.
7.3.c. The record keeping requirements of this sub-section may be satisfied by invoices or bills of lading, provided they are kept separate from the licensees' other sale records, are readily available and contain the information required in this sub- section.
7.4. Pesticide Consultant
7.4.a. A Pesticide Consultant shall maintain records of each pesticide recommendation made. The minimum information to be maintained is:
7.4.a.A. the date of recommendation.
7.4.a.B. the name and address of the customer, including the site of application if different from the customer's address.
7.4.a.C. the name of the pest(s) being controlled.
7.4.a.D. the name or type of plants or animals or a description of sites being treated.
7.4.a.E the pesticide recommended, including its common name and formulation.
7.4.a.F. the dosage rate of the pesticide recommended.
W. Va. Code R. § 61-12B-8 Financial Security Requirement
8.1. All Licensed Pesticide Application Businesses are required to furnish evidence of financial security to the commissioner prior to the issuance of a pesticide application business license.
8.2. Minimum Financial Security - The commissioner shall not issue a pesticide application business license until the applicant has filed evidence of financial security with the commissioner, in any of the following forms: a surety bond, a comprehensive general liability insurance policy, or certification thereof from an insurance company authorized to do business in West Virginia. The financial security required for each category or sub-category of license as specified in 61 CSR 12A is to be no less than the minimum amount of $300,000.00 for bodily injury or death, and $100,000.00 for property damage.
W. Va. Code R. § 61-12B-9 Liability for Pesticide Use
9.1. Nothing in these regulations shall be construed in any way to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides, even though such use conforms to the requirements of W. Va. Code §19-16A-1 et seq. or the rules promulgated thereunder.
Series 12C Wood Destroying Insect Treatment Standards
W. Va. Code R. § 61-12C-1 General
1.1. Scope. - These Legislative Rules establish the minimum requirements for structural pest control work on existing structures and on new construction.
1.2. Authority. -- W. Va. Code '19-16A-4.
1.3. Filing Date. -- April 23, 1992.
1.4. Effective Date. -- April 27, 1992.
W. Va. Code R. § 61-12C-2 Definitions
2.1. Agreement means any written or verbal contract, accepted proposal, work order, guarantee, warranty, or combination of these.
2.2. Basement means the floor below the principle floor which may be wholly or partially below grade and may be earthen or covered.
2.3. Crawl space means an area under a structure between the wood portion above and the soil below, which cannot be considered as a floor.
2.4. Existing structure means any building or part thereof, whether vacant or occupied.
2.5. Footer or footing means the base or lower course upon which a foundation, pillar, pier, chimney, or other structure rests which may be below the surface of the ground or on the ground.
2.6. Inside treatment means the application of pesticides for termite control to the soil in the areas under a structure in a basement or crawl space, or in the case of slab-on-ground construction, it may mean application to any area inside a structure where a pesticide is applied through or under the slab.
2.7. Outside treatment means the application of pesticides for termite control to the soil adjacent to the foundation, including porches, entry platforms, breezeways, etc., attached to the structure and underground as far as the footer.
2.8. New construction means any building or part thereof which is under construction and has not yet been occupied.
2.9. Rodding and injection mean the insertion of pesticides into the soil by means of a pipe or hollow rod through which a pesticide is forced under pressure and may be used in conjunction with a shallow trench. Rodding may be the creation of holes made with a bar or rod in the soil.
2.10. Slab-on-ground construction means the erection of a structure, usually on the poured concrete floor, which may or may not have a foundation and footer and under which there is no open space.
2.11. Termiticide means those pesticides that are approved by the United States Environmental Protection Agency for the control of termites.
2.12. Termite shelter tube means the mud tube constructed upon walls, pipes, or other surfaces, or freestanding from the ground to the wood above, by subterranean termites.
2.13. Trenching means the removal of the soil in contact with a foundation, pillar, pier, chimney, etc.
2.14. Unit masonry foundation means foundation construction using concrete, cinder, or other blocks with voids, hollow tile blocks, brick with space between tiers, etc.
2.15. Use dilution means the concentration of a mixed pesticide prepared for application (to control or abate pests) according to its registered label.
W. Va. Code R. § 61-12C-3 General Requirements for Termite Treatments in West Virginia
3.1. Pesticides.
3.1.a. No person shall apply any pesticide to control termites in structures unless such pesticides are registered for termite control by the United States Environmental Protection Agency and by the West Virginia Department of Agriculture.
3.1.b. Pesticides used to control termites must be mixed and used according to the directions on the label that is on file with the commissioner.
3.2. Treatment Specifications and Records.
3.2.a. All termite treatments shall be documented prior to treatment by treatment graphs and specifications to be completed by a commercial applicator certified in structural pest control. Such graphs and specifications shall include, but not be limited to:
3.2.a.A. the address or location of the structure to be treated;
3.2.a.B. the name (and address if different than the location of the structure) of the owner, manager, tenant or other person ordering the structural pest control work;
3.2.a.C. the name of the certified commercial applicator supervising the use of pesticides;
3.2.a.D. the pest or pests against which the pesticide(s) are to be applied;
3.2.a.E. the pesticide(s) to be used, including the product name and quantity of each pesticide used;
3.2.a.F. a diagram of the structure to be treated showing the sites at which pesticides are to be applied, hazard sites, such as wells, the location(s) of actual pest infestations if any exist and any other information pertinent to the application of pesticides at the particular site;
3.2.a.G. special precaution orders for the applicator's safety, such as the use of protective clothing respirators or other safety gear;
3.2.a.H. the name(s) of the persons making the pesticide applications;
3.2.a.I. the date(s) pesticides are to be applied.
3.3. Application Equipment.
3.3.a. All termiticide application equipment or application apparatus shall be kept in sound working condition.
3.3.b. All termiticide distribution systems, including pumps, hoses, nozzles and fittings, etc., shall be maintained in a manner to prevent leaks or spills.
3.3.c. All pumps used with termiticide distribution systems shall be capable of sufficient pressure to assure a uniform and adequate rate of discharge. The pressure and rate of discharge of the termiticide shall be indicated by pressure gauges, flow meters or other means of equal measurement capable of demonstration by the applicator.
3.3.d. All vehicle or trailer-mounted termiticide application systems shall be of a type requiring a pump to pull termiticide from a holding tank. The use of an air compressor to pressurize holding tanks is prohibited.
W. Va. Code R. § 61-12C-4 Minimum Standards for Termite Control of Existing Structures in West Virginia
4.1. Licensed pesticide application businesses engaged in termite control on existing structures shall, as a minimum standard for termite treatment, make pesticide applications according to the following procedures:
4.1.a. Structures with basements - Outside Treatment.
4.1.a.A. Poured concrete foundations. For solid concrete foundations, the soil must be treated to a depth of at least one foot below grade completely around the structure by rodding and/or trenching. The rate of application must be according to the directions on the label that is on file with the commissioner for the pesticide being used. When a poured concrete foundation is cracked, the treatment used at the site of the crack and for at least 4 feet on either side of the crack shall be the same as that required for unit masonry foundations.
4.1.a.B. Unit masonry foundations. Soil treatment shall extend to the top of the footing. The rate of application must be according to the directions for use on the pesticide label on file with the commissioner. Applications may be made by trenching, rodding or pressure injection or a combination of these methods. The pesticide must reach the footer and be evenly distributed to grade.
4.1.a.C. The voids of unit masonry foundation walls must be treated at the minimum rate of 1 gallon of use dilution for each 5 linear feet around the entire structure, unless the directions on the label of the pesticide being used specifically states otherwise, in which case, the label directions must be followed.
4.1.a.D. Attached porches, entrance platforms, utility entrances, patios, driveways, and similar structures where a solid slab abutting the foundation exists at ground level, shall be treated by drilling the slab at least every 18 inches at a point no greater than 18 inches from the adjacent foundation and injecting the pesticide at the rate provided on the pesticide label into the soil beneath. When the slab is above grade and filled below, the fill shall be similarly treated. When a crawl space exists under an attached structure the soil adjacent to the foundation shall be treated as required in sub-paragraph 4.1.a.C of this rule. Piers, pillars, etc., shall be treated as masonry foundations and any voids in unit masonry piers should be treated as required in sub-paragraph 4.1.a.C. of this rule.
4.1.b. Structures with basements - Inside Treatment
4.1.b.A. The soil under the basement floor adjacent to the foundation, whether the foundation is unit masonry or poured concrete must be treated by drilling through the slab and injecting the pesticide at the rate of application specified on the label for the pesticide being used. Drill holes shall be placed at intervals no greater than 18 inches apart and at a point no greater than 18 inches from the adjacent wall being protected.
4.1.b.B. Voids in unit masonry foundation walls in the area of filled porches, entrances and other similar areas may have to be drilled and treated from the inside when outside treatment of the voids is impossible due to the attached structure.
4.1.c. Slab-On-Ground Construction - Outside Treatment
4.1.c.A. A treatment shall be made along the outside of the foundation walls and the outside walls of the attached porches, entry ways, etc. by trenching or rodding to the top of the footer but no deeper than 30 inches. Pesticide treatments shall be made in a manner as prescribed for structures with basements. Voids in unit masonry foundation walls shall be treated as in structures with basements.
4.1.d. Slab-On-Ground Construction - Inside Treatment
4.1.d.A. The soil under the slab adjacent to the foundation shall be treated with a pesticide at the rate of application provided for on the label of the pesticide being used. In some instances this may be done by drilling completely through the foundation wall from the outside and in other instances the slab will need to be drilled from the inside. The soil under porches or entry floors, whether filled or with a crawl space, shall be treated as structures with basements as required in paragraph 4.1.b of this rule. The soil under patios, driveways, walks, and other places where they abut the foundation shall be treated as structures with basements as required in paragraph 4.1.b of this rule. The soil under expansion joints, cracks in the slab, and other openings in the slab shall be treated by drilling and injection at the rate prescribed on the label of the pesticide being used. Care should be exercised to avoid damage to underground utilities. Building plans should be consulted prior to drilling if possible.
4.1.d.B. Voids in unit masonry foundation walls in the area of filled porches, entrances, and other similar units may have to be drilled and treated from the inside when outside treatment of the voids is impossible due to the attached structure.
4.1.e. Crawl Space Construction - Outside Treatment
4.1.e.A. Treatment around the perimeter of crawl space construction structures shall be identical to that prescribed for structures with basements as required in paragraph 4.1.b of this rule.
4.1.f. Crawl Space Construction - Inside Treatment
4.1.f.A. Treatments shall be made according to the direction on the label for that pesticide being used for termite control.
4.1.f.B. All wood scraps and other materials containing cellulose large enough to be picked up or raked up with a common garden rake shall be removed from under the structure. All termite shelter tubes shall be removed prior to application of the pesticide. If termite shelter tubes have been built away from the foundation, pillars, or piers, the infested area of ground shall be treated according to directions on the pesticide label.
4.1.g. Porches or Entrance Platforms - Treatment around piers, foundations, or pillars shall be done in the same manner as treatments under the structure, or if the porch or entrance platform is above grade and filled, the treatment shall be as required in structures with basements as required in paragraph 4.1.a of this rule.
4.2. Partial Treatment.
4.2.a. The procedures detailed in the paragraphs 4.1.a and 4.1.b of this rule - Structures with Basements; paragraphs 4.1.c and 4.1.d - Slab-on-Ground Construction; and paragraphs 4.1.e and 4.1.f of this rule - Crawl Space Construction shall be the minimum treatment procedures for termite control in West Virginia when a guarantee or warranty is issued indicating or implying that complete termite control has been performed. The treatments made by a procedure not meeting these requirements shall be termed PARTIAL TREATMENTS in any written or verbal agreement whether or not a guarantee of termite control is issued.
W. Va. Code R. § 61-12C-5 Termite Control for New Construction (Pre-Treat)
5.1. Licensed Pesticide Application Businesses engaged in the business of applying pesticides for termite control on new structures before or during construction (pre-treat) must meet all of the minimum requirements given for existing structures. In addition, the areas where a slab is to be poured shall be treated with a pesticide at the rate prescribed on the label of the pesticide being used for termite control.
5.2. Any pre-treatment for termite control that does not meet these minimum standards shall be referred to as PARTIAL-TREATMENT in any written or verbal agreements whether or not a guarantee for termite control is issued.
W. Va. Code R. § 61-12C-6 Treatment Near Water Wells
6.1. All termiticide labels have statements of caution or prohibition against contamination of water. Treatment of houses with drilled or hand-dug wells must be performed with extreme caution. Contamination of domestic water wells and groundwater can result in label violations and liability claims from the owner of the property being treated and/or neighbors of adjoining property using domestic wells. The licensed pesticide application business must decide whether or not a treatment can be made to a property or portions of a property containing wells.
6.2. Past problems leading to termiticide contamination of wells and groundwater usually involved pressure rodding near well casings, deteriorated and/or abandoned pipes leading to the well, poor well construction, shallow water table, etc. When treating property with existing domestic wells, the pesticide application business must obtain from the property owner the following information on well location and construction. This information shall be a part of the treatment records of the property.
6.2.a. The location and distance of all wells within 100 feet of the structure or structures being treated.
6.2.b. Information on the construction of drilled wells, including but not limited to:
6.2.b.A. the overall depth of the well;
6.2.b.B. the type and depth of the well casing;
6.2.b.C. the presence or absence of grouting around the well casing;
6.2.b.D. the location and condition of any currently used or abandoned supply lines to the property being treated;
6.2.b.E. the integrity of the well casing where supply lines enter the well;
6.2.c. Information on the construction of dug wells, including but not limited to:
6.2.c.A. the overall depth of the well;
6.2.c.B. the depth to the surface of water in the well;
6.2.c.C. the construction of the well, i.e., earth walls, laid stone or block, poured concrete, etc.;
6.2.c.D. the location and condition of any currently used or abandoned supply lines to the property being treated.
6.3. Evaluation of the information gathered in paragraphs 6.2.a, 6.2.b and 6.2.c of this rule may reveal situations where conventional treatments detailed in Sections 4 and 5 of this rule are risky or not applicable to the property in question. The following types of alternative treatment measures have been successful in the past and may be helpful in evaluating whether or not to perform a termiticide application near a well. The pesticide applicator may chose to:
6.3.a. trench and apply the appropriate quantity of termiticide in 2 or more applications.
6.3.b. trench and apply a quantity of termiticide less than the amount specified by the product label.
6.3.c. remove the soil from the foundation, mix it with the appropriate amount of termiticide, spread and dry the soil on plastic and then return it to the foundation.
6.3.d. make structural repairs or changes to the property utilizing pressure treated wood or other materials.
6.4. When alternative methods of treatment are used, the property owner is to be informed as in sub-sections 4.2 and 8.2 of this rule.
W. Va. Code R. § 61-12C-7 Requirements for the Treatment of Wood Destroying Beetles
7.1. When Treatment Will Be Permitted - After it is determined that an active infestation exists, treatment will be permitted for the control or prevention of reinfestation of the families of beetles which are known to reinfest seasoned wood, i.e. Anobiidae, Lyctidae, Bostrichidae, Cerambycidae (old house borer and flat oak borer only) and Curculionidae. Preventative treatment in the absence of an infestation is prohibited without approval of the commissioner. Treatment is expressly prohibited for the control or prevention of other beetles that may cause damage to seasoned wood structures such as Ambrosia beetles, Bark beetles, Flat headed borers, long-horned borers, Metallic wood borers, Pin worms, Round headed borers other than old house and flat oak borers, Timber beetles, and the Siricidae (woodwasps) or Marine borers except with prior approval of the Commissioner. Requests for prior approval must specify the organism involved.
7.2. Determining Active Infestations.
7.2.a. Anobiidae - the following criteria shall be used in determining the activity of anobiid powder post beetles in sub-structures, attached garages, outbuildings and stored lumber.
7.2.a.A. The presence of frass the color of fresh cut wood is acceptable as evidence of an active infestation of the Anobiidae.
7.2.a.B. The presence of holes alone or holes and dull-colored frass is not acceptable evidence of an active infestation of the Anobiidae except in such cases where live larvae and pupae are found in wood members.
7.2.a.C. Where numerous holes alone and/or dull-colored frass are found in wood members, the representative of the licensed pesticide application business should check the upper living areas for infestation and the property should be checked during the optimum time for frass production which is May 15 to September 1. Anobiidae beetles usually infest products more than 10 years old and most infestations are confined to softwoods such as pine, whereas the Lyctidae usually confine themselves to recently processed hardwoods such as domestic oak and pecan or foreign woods such as banak, meranti and obeche.
7.2.a.D. Numerous other beetles may cause damage in the products that the Anobiidae and Lyctidae infest. Identification aids for these beetles are: 7.2.a.D.(a). timber beetles and pinworms produce no frass in their tunnels, tunnel walls are stained darker than surrounding wood and there is no activity in products more than 5 years old. 7.2.a.D.(b). bark beetles or bostrichids in softwoods produce holes fewer in number in or near bark, with larval tunnels beneath bark scoring the bark and the wood with some of the frass being the same color as the inner bark.
7.2.b. Determining the activity of powder post beetles (Lyctidae) infestations is not required if the infested products are less than 10 years old. Otherwise, fresh frass and/or live larva or pupae in wood is acceptable evidence of activity.
7.2.c. Determining the activity of old house borer (Hylotrupes bajulus L.) infestations.
7.2.c.A. The presence of adult beetles and oval exit holes with fresh sawdust-like frass consisting of fine powder and tiny pellets southern pine, Douglas fir, or spruce wood is evidence of an active infestation of the old house borer.
7.2.c.B. The presence of live larvae or pupae in the softwoods listed in sub-paragraph 7.2.c.A of this rule is evidence of an active old house borer infestation, if the frass is sawdust-like.
7.2.c.C. Identification aids: 7.2.c.C.(a). other long-horned borers, flat-headed borers, Siricid woodwasps, and marine borers sometimes damage softwood used in building construction. These long-horned borers produce loosely packed fibrous tobacco-like frass, 7.2.c.C.(b). the flat headed borers make tunnels three times wider than high, whereas old house borer tunnels are less than three times wider than high, 7.2.c.C.(c). Siricids woodwasps make perfectly circular exit holes, and 7.2.c.C.(d). marine borer excavations usually contain whitish calcium deposits but no frass.
7.3. Treatment Procedures.
7.3.a. When wood-destroying beetles are present at or below the subfloor level, pesticides should be applied from underneath the structure using an approved pesticide in accordance with label directions.
7.3.b. If there is evidence to indicate or reasonable cause to suspect that a substantial active infestation of wood-destroying beetles exists above the subfloor level, then fumigation with an approved fumigant is permitted, provided the property owner has been informed of other alternative treatments such as spot application, removal and replacement of infested wood members or treatment of the sub-structure only if it is actively infested. If fumigation is chosen by the property owner, the licensed pesticide application business shall notify the commissioner of the location at least 48 hours prior to the anticipated time of treatment.
W. Va. Code R. § 61-12C-8 Exceptions to this Rule
8.1. When a licensed pesticide application business in the category of structural pest control is doing wood destroying insect control or Pre-treatment to control termites according to specifications set forth in a bid proposal which do not meet the minimum requirements set forth in this rule, the pesticide application business is not in violation of this rule provided that the specifications under which he is working are available to the Commissioner and that the application does not conflict with the label of the pesticide being used for wood destroying insect control.
8.2. When any unusual structural or physical conditions render it impractical to comply with all of the minimum requirements of this rule, the pesticide application business is not in violation of the provisions of this rule provided the unusual condition has been explained in writing to the person purchasing the service and that the parts of the structure being treated which are not involved in the unusual condition are treated according to the minimum requirements of this rule.
8.3. When the treatment of wood-destroying beetles is required to facilitate the immediate closing in the sale and transfer of real estate or is required in the protection of log homes, the pesticide application business is not in violation for treatments not made in accordance with sub-sections 7.1 and 7.2 of this rule.
8.4. When fumigation is required to facilitate the immediate closing in the sale or transfer of real estate and the pesticide application business cannot provide at least 48 hours prior notice of treatment, the pesticide application business is not in violation of paragraph 7.3.b of this rule, provided the circumstances which did not allow prior notification are available to the commissioner.
61CSR12C
Series 12D Reg To Govern The Aerial Application Of Herbicides To Right-of-Ways
W. Va. Code R. § 61-12D-1 General
1.1. Scope. -- This legislative rule establishes the minimum standards governing the aerial application of herbicides to utility rights-of-way.
1.2. Authority. -- W. Va. Code '19-16A-4.
1.3. Filing Date. -- April 23, 1992.
1.4. Effective Date. -- April 27, 1992.
W. Va. Code R. § 61-12D-2 Definitions
2.1. "Utility rights-of-way" means those rights-of-ways maintained by persons providing public service to the citizens of the state and may include but is not limited to electric companies, gas companies, communication companies and railroads.
W. Va. Code R. § 61-12D-3 Prior Notification
3.1. Persons intending to aerially apply herbicides on utility rights-of-way, except on rights-of-way specifically excepted by laws held by the Attorney General of West Virginia to be preemptory, shall notify to the following persons, in writing at least 60 days and no more that 120 days prior to the anticipated beginning of the aerial spray program: the commissioner of the West Virginia Department of Agriculture, all news media within the counties where the aerial herbicide application program is to be conducted, all persons in the spray area on the hypersensitivity registry maintained by the West Virginia Department of Agriculture; and all property owners, tenants or other persons in control of land adjacent to the rights-of-way, who have made a written request to the utility for special advance notification. A written request for special advance notification shall include the name, mailing address, property location and telephone number, if any, of the person making the request.
3.1.a. The notice shall include, but is not limited to:
3.1.a.A. a description of the area(s) to be aerial sprayed;
3.1.a.B. a toll-free telephone number and an address of a utility office to which people can call or write to alert the utility to sensitive areas - including, but not limited to springs, wells, streams, lakes, ponds, orchards, crop areas, gardens, pastures, meadows, year around dwellings, public recreation areas, and Christmas tree plantations. A caller should, whenever possible, reference the location they are calling about to pole or tower numbers on the rights-of-way;
3.1.a.C. information describing how a land owner or tenant can enter into a rights-of-way maintenance agreement with the utility;
3.1.a.D. the location of a county or area office of the utility where individuals can inspect maps showing the location of rights-of-way that are to be sprayed;
3.1.a.E. the herbicides to be used in the project; and
3.1.a.F. the procedures to be followed in lodging a complaint with either the utility or with the West Virginia Department of Agriculture.
3.1.b. The utility shall, on a weekly basis, provide the contemplated aerial spray program for the following week to the commissioner of the West Virginia Department of Agriculture and to a radio or TV station serving each county in which the aerial application of herbicides is planned. The utility shall make the initial notice each year on each of two weeks immediately proceeding the proposed beginning of the aerial herbicide spray program.
W. Va. Code R. § 61-12D-4 Procedural Prohibitions and Restrictions
4.1. The aerial application of herbicides is prohibited when:
4.1.a. the wind velocity in the local area exceeds five (5) miles per hour;
4.1.b. the spray may come into contact with fog banks;
4.1.c. there are periods of temperature inversion and air stagnation;
4.1.d. the air temperature exceeds 90 degrees Fahrenheit - except that the application of herbicides containing low-volative amines and chemicals whose volatility is known to not be a problem will not be prohibited at temperatures above 90 degrees Fahrenheit;
4.1.e. it is raining or reasonably apparent that it will rain within two hours; or
4.1.f. the distance between the transmission line(s) at maximum design sag and the ground is greater than 100 feet.
4.2. Before herbicides are applied, the applicator shall fly a reconnaissance flight over the area to be sprayed and shall not apply herbicides if humans or domestic animals are visible in areas subject to the intended application of herbicides.
4.3. The applicator for the utility shall not apply herbicides to any body of water during aerial spraying of rights-of-way to control woody vegetation.
W. Va. Code R. § 61-12D-5 Minimum Spray Distances
5.1. The applicator for the utility shall not apply herbicides within the distance specified in the tables contained in this section of the rule. The following minimum spray distances shall be adhered to unless greater distances are specified on the label of the pesticide.
5.1.a. Formulations Containing Picloram or Dicamba herbicides:
AREA
Ponds 100 feet Year Around Flowing Water (including wells, springs, and other water areas used for domestic purposes) 200 feet Cultivated Land, Except Tobacco fields 100 feet Tobacco fields 500 feet Christmas Tree Plantations 100 feet Pasture Lands 100 feet Public Recreation Areas 100 feet Residential Structures (used as year-around homes) 150 feet Barns and Other Outbuildings Where People or Livestock Might Ordinarily Be Expected 150 feet County, State, and Federal, Graveled or Paved Road Crossovers and Lines paralleling such Roads 50 feet
5.1.b. Other Herbicide Formulations Not Listed in sub division 5.1.a of this rule.
AREA
Ponds 100 feet Year Around Flowing Water (including wells, springs, and other water areas used for domestic purposes) 200 feet Cultivated Land, except Tobacco fields 100 feet Tobacco fields 200 feet Pasture Lands 100 feet Christmas Tree Plantations 100 feet Residential Structures (used as year around homes) 100 feet Barns & Other Outbuildings Where People or Livestock Might Ordinarily Be Expected 150 feet Public Recreation Areas 150 feet County, State, and Federal, Graveled or Paved Road Crossovers and lines Parallelling such Roads 50 feet
5.2. Application Spray System.
The minimum spray distance listed in sub-divisions 5.1.a and 5.1.b of this rule applies to applications utilizing a drift control system such as a microfoil spray boom or its equivalent. Persons using non-drift control technology in the aerial application of herbicides shall notify the commissioner of the West Virginia Department of Agriculture in writing and shall specify minimum spray distances at least double those listed in sub-divisions 5.1.a and 5.1.b of this rule.
5.3. Measured Tolerance - The commissioner will use a tolerance of ten (10) percent in the minimum spray distances to assess acceptability with this section.
W. Va. Code R. § 61-12D-6 Company Monitoring of Herbicide Applications to their Rights-of-Way
6.1. Utility personnel shall inspect their rights-of-way which have been sprayed with herbicides to insure that applicable standards have been adhered to and shall keep a log of such inspections on file for at least two (2) years. The log shall contain the following information.
6.1.a. the inspector's name;
6.1.b. the date of the inspection;
6.1.c. a description or identification of the area inspected; and
6.1.d. a record of compliance or deviation from this rule.
W. Va. Code R. § 61-12D-7 Exceptions
7.1. When a person owns a right-of-way wholly on his private or corporate property, he may ask the commissioner for an exception from the prior notification requirements of section 3 of this rule. The commissioner may grant an exception from these requirements in situations where prior notification does not serve to protect the public interest. The commissioner shall consider each request for an exception on a case by case basis.
7.2. Persons requesting a deviation from Section 3 of this rule shall provide the Commissioner with the following information.
7.2.a. the location of the rights-of-way to be sprayed;
7.2.b the distance from the rights-of-way to residences, public highways, agricultural lands or navigatible rivers; and
7.2.c. the herbicides to be sprayed, including application rates.
61CSR12D
Series 12E Registry Of Persons with Health Sensitivity To Pesticide Drift
W. Va. Code R. § 61-12E-1 General
1.1. Scope. -- This procedural rule establishes a registry of West Virginia residents with a documented health sensitivity to pesticide sprays that may drift to their property during application.
1.2. Authority. -- W. Va. Code '19-16A-6(k).
1.3. Filing Date. -- December 20, 1990.
1.4. Effective Date. -- January 21, 1991.
W. Va. Code R. § 61-12E-2 Operation
2.1. The Pesticide Division shall prepare from information provided by an applicant for registration a registry of persons with a documented health sensitivity to pesticides.
2.2. The Pesticide Division shall distribute the registry of persons with health sensitivity to pesticide application business for voluntary notification.
2.2.1. Distribution of the list shall occur annually during March or upon the initial licensing of a pesticide application business.
2.2.2. An updated list shall be distributed every four (4) months or more often of determined necessary by the Commissioner.
W. Va. Code R. § 61-12E-3 Requirements for Registration
3.1. Upon request persons meeting the following requirements shall be placed on the registry for health sensitivity to pesticide drift.
3.1.1. Persons with a pesticide sensitivity documented by a valid certificate from a physician indicating the person's pesticide sensitivity.
3.1.2. Persons with a condition or ailment documented by a physician certification indicating they should not be exposed to pesticide drift.
3.2. A person qualifying for registration according to 3.1 of this regulation:
3.2.1. May apply to the Department at any time for registration;
3.2.2. Shall immediately notify the Department of any address change;
3.2.3. Registration and annual renewal shall be on a form provided by the Department. A renewal form will be sent to all persons on the registry in January of each year.
3.3. A physician certifying health sensitivity of a registrant shall be either an immunologist, allergist, respiratory pulmonary specialist, or a physician of similar qualification.
61CSR12E
Series 12F Assessment Of Civil Penalties And Procedures For Consent Agreement Or Negotiated Settlement
W. Va. Code R. § 61-12F-1 General
1.1. Scope. -- These legislative rules establish procedures to provide for consent agreements or negotiated settlement of civil penalties assessed in dealing with violations of the West Virginia Pesticide Control Act and promulgated rules.
1.2. Authority. -- W. Va. Code ''19-16A-4, 19-16A-22 .
1.3. Filing Date. -- April 23, 1992.
1.4. Effective Date. -- April 27, 1992.
W. Va. Code R. § 61-12F-2 Definition
2.1. "Act" means the West Virginia Pesticide Control Act of 1990 (W. Va. Code '19-16A-1 et seq.).
2.2. "Administrative Hearing Officer" means a person contracted by the commissioner to preside over a formal hearing.
2.3. "Commissioner" means the Commissioner of the West Virginia Department of Agriculture or his authorized representative.
2.4. "Compliance Officer" means a person appointed by the commissioner to preside over an informal hearing arising as a result of these rules.
2.5. "Consent Agreement" means a document executed between the commissioner and another party affirming the level of a proposed penalty for an alleged violation or violations.
2.6. "Enforcement Officer" means a person appointed by the commissioner to carry out the review of alleged violations, assessment of the penalty and the procedure contained in these rules.
2.7. "Inspector" means an authorized representative of the commissioner who as a normal function of his responsibilities conducts inspections, investigations, or sampling of activities regulated by the Act.
2.8. "License Violation" means any violation of the Act related to the requirements for the licensing or registration of pesticide businesses, applicators or technicians.
2.9. "Negotiated Settlement" means any written document executed between the commissioner and another party affirming an agreement to a penalty as a result of an informal hearing.
2.10. "Non-Use Violation" means any violation of the Act related to requirements for records, supervision, special regulations or misrepresentation of goods and service.
2.11. "Product Violation" means any violation of the Act related to requirements of product registration, labeling, coloration, product integrity or guaranteed analysis.
2.12. "Use Violation" means any violation of the Act related to requirements for the use of pesticides.
2.13. "Violator" means the person who is alleged to have violated the Act, or any rule, regulation, order, or permit condition imposed pursuant to the Act.
W. Va. Code R. § 61-12F-3 Procedure
3.1. These civil penalty assessment rules are designed to include most violations of the Act encountered by pesticide businesses, certified applicators and non-certified applicators. However, there may be situations which arise that are not adequately covered by these rules. In such cases, the enforcement officer shall determine an appropriate course of action and make a recommendation for such action to the commissioner. After review of the circumstances, the commissioner may concur with the recommendation or give direction for other appropriate action as prescribed under the authority of the Act.
3.2. The time interval between the first offense and each repeated offense, beyond which no enforcement action may be taken and which shall clear the applicators record, will be limited to two years for all use, non-use or product violations. There is no time limit for licensing violations.
3.3. The enforcement officer reviewing a case shall prepare a finding of facts surrounding any discovered violation of Section 21 of the Act. Once a violation is discovered the enforcement officer shall determine: 3.3.a The appropriateness of a civil penalty or criminal enforcement action;
3.3.b. The character of the violation and the appropriate enforcement level as contained in the schedule of penalty codes contained in Table 61-12F-A of this rule. The violations are categorized into the following types:
3.3.b.A. Licensing violations
3.3.b.B. Non-Use violations
3.3.b.C. Use violations
3.3.b.D. Product violations
3.4. Upon establishing a penalty code, the enforcement officer shall refer to the schedule of penalty levels contained in Table 61-12F-B of this rule to determine a monetary assessment. In determining the level of penalty the enforcement officer shall consider the following factors:
3.4.a. The gravity of the violation;
3.4.b. The degree of the violator's culpability;
3.4.c. The degree of the violator's effort to comply with the Act and rules promulgated under the Act; and
3.4.d. The violators history of prior violations.
3.5. Any denial, suspension, revocation or modification of a license, permit or certification shall comply with the requirements of Section 18 of the Act. The commissioner shall notify the violator of the alleged violation and offer the violator an opportunity for a formal hearing prior to any such action.
3.6. Any consent agreement or negotiated settlement agreed upon and signed by the violating party and the duly appointed representative of the commissioner is a penalty levied through an administrative hearing for the purposes of collection and such other action as determined proper and included in the consent agreement or negotiated settlement.
W. Va. Code R. § 61-12F-4 Consent Agreement and Negotiated Settlement
4.1. Consent agreements or negotiated settlements are intended as a mechanism to settle violations without expensive costs to both parties for administrative or criminal hearings. The violations cited in the notice of violation are capable of being recognized by the violator and the penalty settlement can be accomplished without a hearing. The enforcement officer shall provide the violator a written notice of violation, by certified mail or personal service, which includes a finding of fact and a proposed level of enforcement action. If the violator agrees with the proposed level of action, he shall sign a consent agreement form and return it with payment of the assessed penalty.
4.2. Negotiated Settlement - Right to informal hearing. In the event that the violator disagrees with the findings of the investigation and/or the level of enforcement action, the violator has 20 calendar days from his receipt of the notice of civil penalty to request a hearing. The violator has the option of requesting an informal hearing or may request a formal hearing as prescribed under sub-section 4.7 of this rule. During an informal hearing the violator may submit to the compliance officer any mitigating circumstances as to why the compliance officer should alter the investigative findings or level of enforcement action.
4.3. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty day period, the compliance officer shall schedule a hearing in accordance with the following procedures:
4.3.a. The compliance officer shall notify any inspector or other authorized representative of the commissioner who was involved in the investigation of the violation bringing about the informal hearing and the violator of the time and place of the informal hearing. In scheduling the location of the informal hearing, the compliance officer shall consider the location of the violation and the violator. The compliance officer may schedule the hearing anywhere in the state of West Virginia.
4.3.b. The compliance officer shall notify the parties at least fifteen (15) calendar days prior to the time of the hearing.
4.3.c. The compliance officer may continue the informal hearing only for good cause shown.
4.4. Informal Hearing Procedures. An informal hearing, as provided by these regulations, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation. The compliance officer shall conduct the hearing in the following manner:
4.4.a. The compliance officer shall not strictly apply The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence.
4.4.b. The compliance officer shall not discuss the case "ex parte" with either the enforcement officer or other department employees involved in the case.
4.4.c. A record of the informal hearing is not required but any party may request that a record be made at that party's expense. Any other party to the hearing may obtain copies of the record at his expense.
4.4.d. At any formal review proceedings which may occur later, no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.
4.5. Negotiated Settlement - Any settlement of the alleged violation based on agreement between the compliance officer and the violator is a negotiated settlement. The violator and the compliance officer shall sign the negotiated settlement document.
4.6. Written Decision
4.6.a. If the violator and the compliance officer are unable to reach an agreement, the compliance officer shall recommend a penalty to the commissioner.
4.6.b. Within thirty (30) calendar days following the informal hearing, the commissioner shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and give the reasons for his decision.
4.7. Contested Cases, Right to a Formal Hearing.
4.7.a. As provided in sub-section 4.2 of this rule or within thirty (30) calendar days after notification of a written decision rendered as a result of an informal hearing, the violator may request a formal hearing before the commissioner in accordance with Section 18 of the Act. An administrative hearing officer shall conduct the hearing and the hearing shall comply with the Administrative Procedures Act, W. Va. Code '29A-5-1 et seq.
4.7.b If no hearing is requested the compliance officer's decision shall become a final order after the expiration of the thirty day period and the civil administrative penalty is due and payable.
TABLE 61-12F-A
Schedule of Penalty Codes License Violations A B C First Offense, No Prior Prior Knowledge Each Repeat Knowledge, Written Notice Offense or Non- Compliance after Notice PC-1 Adverse effects E1 E2 E3 not probable PC-2 Adverse effects E2 E3 E4 Unknown PC-3 Adverse effects E3 E4 E5 probable or demonstrated.
Non-Use Violations A B C First Offense Second Offense Each Repeated Offense PC-4 Regulations E1 E2 E3 with no adverse effects or records statements PC-5 Special E2 E3 E4 regulations or regulations resulting in adverse effects PC-6 Each repeated E3 E4 E5 offense Use Violations A B C First Offense 2nd Offense or Each Repeated Knowing 1st Offense Offense PC-7 Adverse E1 E3 E4 effect not probable PC-8 Adverse E2 E4 E5 effects Unknown PC-9 Adverse E3 E5 E6 effects on plants or animals probable or demonstrated PC-10 Adverse E4 E6 E7 effects to humans known, probable or demonstrated Product Violations A B First Offense Each Repeated Offense Offense PC-11 No probable E1 E3 adverse effects PC-12 Unknown Adverse E2 E4 effects PC-13 Adverse effects E3 E5 probable or demonstrated PC-14 Cross Contamination E3 E5 TABLE 61-12F-B Schedule of Penalty Levels Level Level of Penalty E1 Letter of Warning E2 $50 -$200 E3 $200 -$300 E4 $350 -$500 E5 $500 -$650 E6 $650 -$800 E7 $800 -$1,000 61CSR12F
Series 12G General Groundwater Protection Rules For Pesticides
W. Va. Code R. § 61-12G-1 General
1.1. Scope. -- This rule establishes the guidance and best management practices for the transportation, storage and use of pesticides to prevent, minimize or mitigate the entry of pesticides into groundwater.
1.2. Authority -- W. Va. ''19-16A-4-6(N) and 22-12-5c.
1.3. Filling Date. -- June 24, 1993.
1.4. Effective Date. -- July 1, 1993.
1.5. This is a new legislative rule.
W. Va. Code R. § 61-12G-2 Incorporation by Reference
2.1. The following rules are protective of groundwater or have components that are protective of groundwater. These documents are adopted in their entirety:
2.1.a. Certified Pesticide Applicator Rules, WV 61 CSR 12A et seq.
2.1.b. Licensing of Pesticide Business, WV 61 CSR 12B et seq.
2.1.c. Wood Destroying Insect Treatment Standards WV 61 CSR 12C et seq.
2.1.d. Regulations Governing the Aerial Application of Herbicides to Rights of Way, WV 61 CSR 12D et seq.
2.1.e. Bulk Pesticide Operational Rules, WV 61 CSR 12H et seq.
2.1.f. Non-bulk Pesticide Rules for Permanent Operational Areas WV 61 CSR 12I et seq.
2.1.g. Generic State Management Plan for Pesticides and Fertilizers (latest version) WV 61 CSR 22 et seq.
2.1.h. Best Management Practices for Temporary Operational areas of Non-bulk Pesticides, WV 61 CSR 22A et seq.
W. Va. Code R. § 61-12G-3 Definitions
3.1. The definitions used in W. Va. Code '19-16A-1 et seq. and the regulations adopted thereunder shall apply to these regulations unless otherwise defined in this regulation.
3.2. "Best Management Practices" means activities, procedures and practices designed to prevent or remedy the introduction of pesticides or pesticide residues into groundwater to the extent technically feasible and economically possible.
3.3. "Bulk Pesticide" means any registered pesticide which is transported or held in an individual container in undivided quantities of greater than fifty-five (55) U.S. gallons liquid measure or one hundred (100) pounds net dry weight. This term does not apply to those pesticides packaged for retail sale and use in containers approved by the U.S. Department of Transportation for interstate transportation.
3.4. "Chemigation" means the application of pesticides by an irrigation system.
3.5. "Non-bulk pesticide" means all pesticides not meeting the definition of bulk pesticides.
3.6. "Non-point source" means a diffuse source of chemicals resulting from activities over a large area, the effects of which must normally be addressed by a management or conservation practice.
3.7. "Operational area" means an area or areas where the contents of pesticide containers are transferred between containers, including the transfer to application equipment, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, washed or rinsed from containers or application, handling, storage or transportation equipment. An operational area does not include a facility or location that receives and/or distributes pesticides in the manufacturer's original unbroken container and such containers remain sealed or otherwise unopened.
3.8. "Point Source" means a source of chemicals resulting from a mixing, loading, storage or other activity over a small area.
3.9. "Temporary Operational Area" means an operational area that is not a permanent operational area, except when the operational area activities are carried out within the field or at a site of application and these activities occur no more than three (3) times per calendar year at the same location for a period of less than thirty-six (36) hours total and areas in and around a private dwelling where a resident of that dwelling is conducting incidental activities associated with pesticides.
3.10. "Water quality standards" means the standards of purity and quality promulgated by the State Water Resources Board.
W. Va. Code R. § 61-12G-4 Program and Policy Statements
4.1. The commissioner finds that the current knowledge of the soils of the state and the leaching of many of the active ingredients found in pesticides is, in many instances, not sufficient to allow for the development of statewide mandatory use and application practices other than the directions for use found on pesticide product labels as registered by the U.S. Environmental Protection Agency or the commissioner for use in this state.
4.2. The commissioner encourages the use of voluntary best management practices promulgated by rules that may be effective in the protection of the groundwaters of the state.
4.3. The commissioner encourages the education of all users of pesticides so that they have the knowledge and technical means to respond independently and voluntarily in addressing environmental concerns. The commissioner shall encourage the development of training and educational programs for persons who make recommendations for the application of pesticides and for the persons who apply pesticides.
4.4. The commissioner may develop chemical specific or generic mandatory best management practices by rule for the storage and use of pesticides.
4.5. The commissioner shall promulgate rules to make some or all of the voluntary best management practices mandatory in a portion or all of the state when the monitoring program indicates that the concentrations of residues from pesticides in groundwater are increasing or other valid data shows that concentrations exceeding the water quality standards have occurred. The commissioner shall utilize data averaged from at least four samples over a one year period to determine if the water quality standards have been exceeded or there is a trend of increasing concentrations of pesticide residues.
4.6 The commissioner shall review the voluntary and mandatory programs every five (5) years to determine the effectiveness of the programs and will effect change in the programs if the voluntary and/or mandatory programs are not effective or if the current best available technology needs to be incorporated into these programs.
W. Va. Code R. § 61-12G-5 Powers and Duties of the Commissioner
5.1. The commissioner:
5.1.1. may enter and inspect during reasonable business hours, any location where pesticides are manufactured, distributed, transported, stored or used, and where records relating to the storage, manufacture, distribution, shipment, labeling or use of pesticides are kept;
5.1.2. may coordinate the sampling and inspection program with all other groundwater regulatory agencies within the framework of the Division of Environmental Protection state groundwater management strategy and their rules relating to the monitoring and analysis of groundwater;
5.1.3. shall utilize the Division of Environmental Protection data management system for data on groundwater;
5.1.4. shall notify all well owners of any known contamination of groundwater, conduct a study to determine the cause of the contamination, and assess remediation options for the situation, if contamination is predicted or if known to be occurring due to the residues of pesticides;
5.1.5. shall share data with other appropriate agencies for their evaluation and further investigation;
5.1.6. shall promote the protection of groundwater from pesticides through public education programs;
5.1.7. shall encourage, participate in or conduct or cause to be conducted studies on the environmental impact of the use of pesticides on the groundwaters of this state as well as ecologically and economically sound pesticide use and application practices;
5.1.8. shall take action in the shortest reasonable time to revise this rule when these voluntary best management practices are found to be inadequate to protect the groundwater in this state from contamination with residues of pesticides that affect the present and future beneficial use of the groundwaters of this state when such data is found to be valid and relevant to the conditions found in this state;
5.1.9. shall collect and expend monies as provided under W. Va. Code '22-12-1 et seq. and rules for Groundwater Protection Fees, WV 47 CSR 55.
5.1.10. may cooperate and enter into agreements with governmental agencies of this state or other states, agencies of the federal government and foreign governments and private associations or entities in order to carry out the purpose and provisions of this rule;
5.1.11. shall make reports and recommendations to the Groundwater Coordinating Committee or to the legislature as needed to further the protection of groundwaters in this state;
5.1.12. shall maintain a testing laboratory or contract with other laboratories for the testing of pesticides or pesticide residues and;
5.1.13. shall promulgate additional regulations as necessary to protect groundwater within statutory mandates that may include but not be limited to permitting, licensing and certification, facility design, operational management, closure, remediation and monitoring of water quality.
5.1.14. may issue orders for remediation pursuant to W. Va. Code '22-12-10.
W. Va. Code R. § 61-12G-6 Protection of Groundwater From Point Sources
6.1. Any person storing bulk pesticides in undivided quantities in excess of three hundred (300) U.S. gallons liquid or one hundred (100) pounds dry weight for more than thirty (30) consecutive days per year shall comply with the Bulk Pesticide Operational Rules (WV 61 CSR 12H) in addition to these rules.
6.2. Any person maintaining a permanent operational area where either concentrate or diluted pesticides in excess of three hundred (300) U.S. gallons of liquid or three thousand (3,000) pounds of net dry weight or where a total of one thousand five hundred (1,500) pounds of pesticides as active ingredients are transferred, loaded, unloaded, mixed, repackaged, refilled, or cleaned, washed or rinsed from containers or application equipment over a thirty (30) day period either consecutive or cumulative during a calendar year shall comply with the Non-bulk Pesticide Rules for Permanent Operational Areas (WV 61 CSR 12I) in addition to these rules.
6.3. Any person maintaining a temporary operational area where non-bulk quantities of pesticides are stored, handled, transferred between containers, including application equipment, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, washed, or rinsed from containers, or application, handling, storage or transportation equipment shall consult or review the practices contained in Best Management Practices for Temporary Operational Areas of Non-bulk Pesticides (WV 61 CSR 22A).
6.4. Other point source management practices, voluntary and/or mandatory are reserved.
W. Va. Code R. § 61-12G-7 Protection of Groundwater From Non-Point Sources
7.1. Any person who applies pesticides shall use them in accordance with their labeling as accepted by the U.S. Environmental Protection Agency or as registered by the commissioner or subject to any restrictions, modifications or as ordered by the commissioner when necessary to protect groundwater in this state or portions of this state.
7.2. Any person applying pesticides classified as "restricted use pesticides" by either the U.S. Environmental Protection Agency or the commissioner or who commercially applies pesticides shall comply with the rules for Certified Pesticide Applicators (WV 61 CSR 12A) and/or the rules for the Licensing of Pesticide Business (WV 61 CSR 12B) as applicable to their operation.
7.3. Other non-point source management practices, voluntary and/or mandatory are reserved.
W. Va. Code R. § 61-12G-8 Remediation
8.1. In issuing any remediation order pursuant to W. Va. Code '22-12-10, the commissioner shall:
8.1.a. encourage agreements for investigation and cleanups in appropriate cases;
8.1.b. use permanent solutions to the maximum extent practical to correct groundwater contaminations where possible;
8.1.c. not allow for the dilution and dispersion of the contaminant if active remedial measures are technically and economically feasible; and
8.1.d. specify which parameters will be tested in a monitoring program in order to demonstrate control and containment.
W. Va. Code R. § 61-12G-9 Hearings and Civil Penalties
9.1. The commissioner shall be governed by W. Va. Code '22-12-10 when conducting hearings or assessing civil penalties for the violation of groundwater rules.
61CSR12G
Series 12H Bulk Pesticide Operational Rules
W. Va. Code R. § 61-12H-1 General
1.1. Scope. -- This legislative rule establishes the requirements governing the operation of facilities dealing with repackaging, distribution, storage and transportation of bulk pesticides.
1.2. Authority. -- W. Va. Code '19-16A-4.
1.3. Filing Date. -- June 24, 1993.
1.4. Effective Date. -- July 1, 1993.
W. Va. Code R. § 61-12H-2 Definition
2.1. The definitions used in the W. Va. Code '19-16A-1 et seq. and the regulations adopted thereunder shall apply to these regulations unless otherwise defined in this regulation.
2.2. "Appurtenances" means valves, pumps, fittings, pipes, hoses, plumbing or metering devices that are connected to a bulk pesticide container or used for transferring bulk pesticides between containers.
2.3. "Bulk pesticide" means any registered pesticide which is transported or held in an individual container in undivided quantities of greater than fifty-five (55) U.S. gallons liquid measure or one hundred (100) pounds net dry weight. This term does not apply to those pesticides packaged for retail and use in containers approved by the U.S. Department of Transportation for interstate transportation.
2.4. "Bulk pesticide storage facility" means any facility or site where bulk pesticides are being stored for more than thirty (30) consecutive days per year in quantities of greater than three hundred (300) U.S. gallons liquid or one hundred (100) pounds net dry weight for purposes of repackaging.
2.5. "Bulk pesticide storage facility registry" means the annual listing of all bulk pesticide storage facilities in the state as derived from written notification of the facility location by the facility's owner, operator or person-in-charge.
2.6. "Bulk repackaging" means the transfer of bulk quantities of a registered pesticide from one bulk container to another bulk container in an unaltered state in preparation for sale to, or distribution for, use by another person.
2.7. "Dedicated pesticide container" means a pesticide container effectively designed and constructed to hold a specific pesticide and to be reused, prepackaged, or refilled. Such containers shall clearly and permanently identify the pesticide to which it is dedicated and include a clearly visible tamper indicator which reveals that the integrity of the container has been either maintained or disrupted. In cases where the tamper indicator is not intact, the container shall not qualify as a dedicated container and shall not be eligible for reuse, repackaging or refilling until it has been cleaned, inspected and resealed by the registrant or its agent. Clean containers in good repair that are not dedicated containers but are otherwise suitable for or intended for use as bulk pesticide container may, upon approval of the seller or the registrant, be used, reused, refilled, or repackaged with bulk pesticides as provided herein.
2.8. "Discharge" means any spill, leak, deposit, dumping or emptying, either accidental or otherwise, that results in a release of a pesticide outside the contained portion of an operational area. Discharge does not include lawful transfer, loading, unloading, repackaging, refilling of a pesticide provided these or other similar activities are carried out within an operational area containment. In addition discharge does not include the lawful distribution, use, disposal or application of a pesticide.
2.9. "Emergency and discharge response plan" means a plan describing procedures to be employed in the event of an emergency, such as a fire or flood, or discharge at a bulk pesticide storage facility. The plan shall result in the notification of appropriate state authorities, mitigate the emergency, stop the discharge, recover the discharge, and clean up the affected area.
2.10. "Non-bulk quantity repackaging" means the authorized transfer in non-bulk quantities of a specific bulk pesticide to a suitable non-bulk container capable of holding the specific bulk pesticide. Non-bulk quantity repackaging may only be performed at a bulk pesticide storage facility under a specified written authorization and agreement between the facility and the registrant of the bulk pesticide. Nothing in this definition shall preclude the lawful filling and labeling of either single use dedicated containers or other containers, as the registrant's original unbroken container, carried out under a formal, written contractual agreement between a contract repackager and the registrant.
2.11. "Operational area" means an area or areas where pesticides are transferred between containers, including transfer to application equipment, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, washed or rinsed from containers or application, handling, storage or transportation equipment. An operational area does not include a facility or location that receives and/or distributes pesticides in the manufacturer's original unbroken container and these containers remain sealed or otherwise unopened.
2.12. "Operational area containment" means any structure or system designed and constructed to intercept and contain discharges, including container or equipment wash water, rinsates, and rainwater, and to prevent escape, runoff and leaching from an operational area.
2.13. "Primary containment" means the storage of bulk pesticide in either its original container or other suitable container, including dedicated containers, effectively designed and constructed to contain the pesticide or pesticides that may be stored therein.
2.14. "Secondary containment" means any structure effectively designed and constructed to contain discharges and to prevent escapes, runoff and leaching of pesticides from bulk pesticide storage facilities and operational areas.
W. Va. Code R. § 61-12H-3 Repackaging and Distribution of Bulk Pesticides
3.1. Bulk pesticides, in bulk quantities, may be repackaged for sale or distribution only when:
3.1.1. the producing establishment conducting the transfer, sale, or delivery complies with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Section 7 (Registration of Pesticide Product Establishments), including a written authorization from the registrant allowing repackaging. Facilities engaged in the distribution of bulk pesticides for purposes of application are not subject to sub-section 3.1 or 3.2 of this rule; however, all other applicable requirements of these rules shall apply to the facility;
3.1.2. a representative of the receiving establishment is present when the product is received and when it is repackaged for sale or distribution;
3.1.3. the container into which the bulk pesticide is repackaged is effectively designed and constructed to hold bulk volumes of the pesticide being repackaged, is clean, is in a good state of repair and meets the approval of the repackager; and
3.1.4. there is no change in the:
a. pesticide formulation;
b. product labeling, except for the addition of the assigned EPA registration number of the repackaging site and net contents statement; and c. identity of the party accountable for the integrity of the product, i.e., the manufacturer or registrant as evidenced by the assigned EPA product registration number.
3.2. Bulk pesticides may be repackaged for sale or distribution only when:
3.2.1. the repackaging in non-bulk quantities is expressly allowed in the written authorization from the registrant, and may include authorization providing for split-shipment or partial delivery of the pesticide insofar as the sum total of the full shipment or completed deliveries falls within the definition of a bulk pesticide;
3.2.2. the container in which the bulk pesticide is repackaged is designed and constructed to hold bulk volumes of the pesticide, is clean, is in a good state of repair and meets the approval of the repackager;
3.2.3. the sale or distribution is to the end-user of the pesticide;
3.2.4. the sale or distribution is otherwise in compliance with applicable labeling, product quantity, weights and measures, and shipping requirements of these rules, this state, and the federal government; and
3.2.5. Notwithstanding the requirements of 3.1, through 3.3, repackaging or refilling of containers for sale or distribution in non-bulk quantities in non-bulk containers may occur in a bulk pesticide storage facility only when the respective containers are dedicated containers within the scope and definition of these rules and the repackaging or refilling is carried out under a formal, written contractual agreement between the registrant and the repackager, the requirements of 3.4 shall be applicable.
3.3. Pesticides may be repackaged for sale or distribution using only containers which conform with these rules, maintain the integrity of the product, protect the environment, and meet the approval of the repackager of the pesticide.
3.4. Scales and meters used for sale from bulk delivery systems shall meet all requirements for weighing and measuring devices as specified by the Department of Labor.
3.5. Any person repackaging shall prevent adulteration of product when using either meters or manifold systems to dispense pesticides.
W. Va. Code R. § 61-12H-4 Bulk Pesticide Storage Facility Registry
4.1. All product manufacturers or registrants shall notify the commissioner prior to the initial bulk shipment to any repackaging establishment within this state. This notification shall include the name and address of each repackaging establishment receiving such delivery and an indication whether or not the establishment has been authorized by the registrant to repackage in bulk or non-bulk quantities or dedicated containers. The commissioner may disclose the information obtained pursuant to this rule as permitted by W. Va. Code '19-16A-5(h).
4.2. All pesticide storage facilities operating in this state shall register with the department by March 1 of each year on a form provided by the commissioner.
W. Va. Code R. § 61-12H-5 Bulk Pesticide Storage Facility Requirements
5.1. Storage.
5.1.1. Location -- All bulk pesticide storage facilities shall comply with applicable local, state, and federal regulations. When a facility is located in a flood plain, groundwater recharge area, near wells or surface water, or similar areas, the facility shall be engineered and constructed in a manner to prevent the contamination of the surface water and groundwater of this state.
5.1.2. Primary Containments -- Beginning four (4) years after the effective date of these rules, all primary containers of bulk pesticides shall be constructed, installed, and maintained to prevent a discharge and shall be of materials and construction compatible with the pesticide stored and the conditions of storage including any specifications that may appear on the pesticide label.
5.1.3. Secondary Containment -- Beginning four (4) years after effective date of these rules, all bulk pesticide storage facilities shall be constructed with a means of secondary containment to prevent discharges and facilitate the recovery of pesticides.
a. The secondary containment shall be constructed of sufficient thickness, density and composition to contain any discharged material and shall be liquid-tight with cracks, seams and joints sealed.
b. The secondary containment for outside storage shall be maintained to contain a minimum of 125 percent of the capacity of largest single container in addition to the displacement of tanks, appurtenances, and other authorized items within the containment area. Containment tanks stored under roof shall have a minimum containment of 110 percent of the capacity of the largest single tank in addition to the displacement of tanks, appurtenances, and other authorized items within the containment area.
c. The minimum containment capacities shall be maintained at all times.
d. Unless otherwise approved by the commissioner, all secondary containment shall have sloped floor designs.
e. Liquid-tight sumps may be used for the temporary collection of liquids from the secondary containment area. Minimum capacities of these sumps shall be determined by industry recognized engineering standards. Automatically operated pumps shall be used to remove liquids from secondary containment areas or sumps only when the sumps or auxiliary tanks are located within the secondary containment. Tanks used to store these liquids shall be within the secondary containment area unless the tank contains only water.
f. Water from the secondary containment area and sumps may be used for dilution of pesticides or for other purposes only when it is reasonably free from pesticide residues. Recovered liquids from the secondary containment area or sump may be used according to label directions or disposed of according to applicable state and federal requirements.
g. All floor or in-wall drains or valves, siphon tubes, underground appurtenances or automatic sump pumps shall meet all requirements of these rules, except floor drains or valves to a liquid-tight sump and manually operated pumps may be used only when the integrity of the secondary containment is maintained.
5.1.4. When a discharge occurs, the facility manager or designated facility employee shall immediately contact the commissioner and the manufacturer. If such discharge is a reportable quantity (RQ), as defined by the Federal regulations cited in section 6.6 of these rules, the operator shall also notify the National Response Center at (800) 424-8802.
5.2. Operations.
5.2.1. All persons operating a bulk pesticide facility shall store, handle, transport, load, and unload pesticides in a manner to prevent discharge that may result in unreasonable adverse effects to man or the environment. All hazards of the pesticide shall be considered in the handling and loading practices.
5.2.2. Beginning four (4) years after the effective date of these rules, the operational areas at all bulk pesticide storage facilities shall be designed and constructed to prevent discharges that may be expected to result in unreasonable adverse effects to man or to the environment.
5.2.3. Prior to repackaging or refilling, bulk containers shall be thoroughly cleaned and inspected. They may not be cleaned only when a dedicated reusable bulk or non-bulk container is to be refilled with the same pesticide product, bearing the same label as the preceding product and the seal or a tamper indicator is otherwise intact.
5.2.4. An operator shall dispose of discharges which accumulate in any secondary containment or operational area containment as provided by the product's original labeling. If the discharge is contaminated or otherwise unfit for use, reuse or disposal according to label directions, the facility operator shall immediately contact the commissioner. Rainwater recovered from containment areas may be used for pesticide dilution or other appropriate uses, only when it is reasonably free of pesticide residue.
5.2.5. All pesticides used for custom mixing, tank mixing or repackaging in this state shall be registered and labeled in compliance with both the Federal Insecticide, Fungicide and Rodenticide Act and the Pesticide Control Act of 1990 (W. Va. Code '19-16A-1,et seq.). Upon delivery of the pesticide, the operator shall affix the registered product label to the bulk storage container in the proximity of the outlet valve.
5.2.6. The operator shall maintain locking devices on bulk pesticide storage containers or container valves, and conduct such other measures required to restrict access by unauthorized personnel to the bulk container storage area.
5.3. Inspection and Maintenance.
5.3.1. The operator of a bulk pesticide storage facility shall inspect and maintain storage containers, appurtenances, operational containment areas, and secondary containment areas to minimize the risk of a pesticide discharge. A written record of all inspections and maintenance shall be made on the day of the inspection or maintenance and kept at the facility or at the nearest local office from which the facility is administered.
5.3.2. All bulk pesticide storage shall be inspected as follows:
a. for bulk pesticide storage containers and appurtenances, at least weekly during the use-season and whenever pesticide is stored therein;
b. for secondary containment areas, at least monthly while the bulk pesticide is in storage;
c. for operational containment areas, at least monthly during the use-season.
5.3.3. The operator shall perform maintenance on the bulk pesticide storage facility as necessary in order to ensure the integrity of the bulk pesticide containers, secondary containment areas, and operational containment areas is maintained.
5.4. Record Keeping.
5.4.1. The following records shall be prepared and kept on file at the bulk pesticide storage facility or at the nearest local office from which the facility is administered while bulk pesticides are being stored:
a. the name of the person making the inspection, the date of each inspection, condition noted, and maintenance performed, if needed.
b. the beginning and end amounts in each fixed storage container calculated and recorded on a daily basis; and c. the amounts of bulk pesticide delivered, sold, or used.
d. A written record of all pesticide discharges outside the operational area or outside the secondary containment area including data, time, type of pesticide, volume, cause (if known), actions to contain, and management of the discharge must be kept for at least 5 years from the date of entry.
5.4.2. The operator shall make the required records available for inspection upon written request or shall submit them to the commissioner within 24 hours, upon request. Storage amounts may be weighed, metered, or directly measured for recordkeeping. An annual reconciliation of the records may be required by the commissioner if the accuracy of the records is questioned or a contamination incident occurs in the area of the bulk storage facility.
W. Va. Code R. § 61-12H-6 Emergency and Discharge Response Plan
6.1. The operator of bulk pesticide storage facility shall prepare a written emergency and discharge response plan for the storage facility. The operator shall keep the plan current at all times. A copy of the plan shall be kept at a prominent location at the storage facility and, if applicable, at the nearest local office from which the storage facility is administered. The operator shall make the plan available for employee use and for inspection by the commissioner. The operator of the bulk pesticide storage facility shall provide a current copy of the plan to all local fire and police departments.
6.2. The plan shall include, but is not limited to:
6.2.1. the identity and telephone numbers of the persons who are to be contacted in the event of an emergency or discharge;
6.2.2. for every bulk pesticide stored at the facility, a complete copy of the storage container label registered in this state;
6.2.3. a complete copy of the Material Safety Data Sheet for every bulk pesticide stored at the facility;
6.2.4. the procedures and equipment to be used in controlling and recovering or otherwise responding to an emergency or a discharge; and
6.2.5. an identification, by location, of every fixed bulk pesticide storage container of a greater than three hundred (300) gallon capacity located at the facility, and the type of bulk pesticide stored therein. The plan shall include the general location within the facility of fixed storage containers of less than three hundred (300) gallon capacity.
6.4. Each operator of a bulk pesticide storage facility shall have equipment on the premises necessary to mitigate and recover pesticide discharges. The equipment shall include, but is not limited to, pumps, recovery containers, personal protective equipment and absorbent materials. The operator shall prominently post a checklist of discharge response equipment and their locations.
6.5. The operator of the bulk pesticide storage facility shall conduct emergency and discharge response training with all new and existing employees of the facility annually before the beginning of the pesticide use-season. The operator shall give new employees such training within thirty (30) days of employment. The operator shall not allow new employees to participate in actual emergency responses until such training has occurred. The owner, manager and employees are responsible for following the firm's emergency and discharge response plan procedures.
6.6. Notwithstanding subsections 6.1 through 6.3, bulk storage facilities shall comply with applicable requirements of Title 24 Code of Federal Regulations, Sections 1910.120 and 1910.1200, SARA Title III Sections 301-304 , and other applicable federal and state laws and regulations as may be applicable to bulk storage facilities.
W. Va. Code R. § 61-12H-7 Transportation of Bulk Pesticides
7.1. Any person transporting bulk pesticides shall meet all applicable marking and placarding standards of the West Virginia Public Service Commission and U.S. Department of Transportation rules and regulations.
7.2. Any person transporting bulk pesticide containers shall secure them to prevent movement, shifting or discharge during transportation.
7.3. No person may transport bulk pesticides without a label for the registered pesticide product accompanying each shipment.
7.4. When a discharge occurs, the operator shall contact the department, and the pesticide manufacturer for guidance.
W. Va. Code R. § 61-12H-8 Underground Bulk Pesticide Storage
8.1. Bulk pesticides, rinse waters containing pesticides or discharges may not be stored underground.
61CSR12H
Series 12I Non-bulk Pesticide Rules For Permanent Operational Areas (Technical Cleanup 10/6/95)
W. Va. Code R. § 61-12I-1 General
1.1. Scope. -- This Legislative rule establishes the requirements governing the operation of permanent locations used for the storage and mixing and loading of non-bulk pesticides.
1.2. Authority. -- W. Va. Code '19-16A-4.
1.3. Filing Date. -- June 24, 1993.
1.4. Effective Date. -- July 1, 1993.
W. Va. Code R. § 61-12I-2 Definitions
2.1. The definitions used in W. Va. Code '19-16A-1 et seq. and the regulations adopted thereunder shall apply to these regulations unless otherwise defined in this regulation.
2.2. "Bulk Pesticide " means any registered pesticide which is transported or held in an individual container in undivided quantities of greater than fifty-five (55) U.S. gallons liquid measure or one hundred (100) pounds net dry weight. This term does not apply to those pesticides packaged in containers approved by the U. S. Department of Transportation for interstate transportation.
2.3. "Discharge" means any spill, leak, deposit, dumping or emptying, either accidental or otherwise, that results in a release of a pesticide outside the contained portion of an operational area. Discharge does not include lawful transfer, mixing, loading, unloading, repackaging or refilling of a pesticide provided these or other similar activities are carried out within an operational area containment. In addition, discharge does not include the lawful distribution, use, disposal or application of a pesticide.
2.4. "Non-bulk Pesticide" means all pesticides not meeting the definition of bulk pesticides.
2.5. "Operational Area" means an area or areas where pesticides are transferred between containers, including transfer to application equipment, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, washed or rinsed from containers or application, handling, storage or transportation equipment. An operational area does not include a facility or location that receives and/or distributes pesticides in the manufacturer's original unbroken container and these containers remain sealed or otherwise unopened or areas not falling within the definition of a permanent operational area defined in this rule.
2.6. "Operational Area Containment" means any structure or system designed and constructed to intercept and contain discharges, including container or equipment wash water, rinsates, and rainwater, and to prevent escape, run-off and leaching from an operational area.
2.7. "Permanent Operational Area" means an operational area where either pesticide concentrates or use dilution mixtures in excess of three hundred (300) U.S. gallons of liquid or three thousand (3,000) pounds of net dry weight are transferred, loaded, unloaded, mixed, repackaged, refilled, or cleaned, washed or rinsed from containers or application equipment, handling equipment, storage equipment or transportation equipment over a thirty (30) day period either consecutive or cumulative during a calendar year.
W. Va. Code R. § 61-12I-3 Permanent Operational Areas
3.1. Four (4) years after the effective date of this rule all permanent operational area activities shall be conducted or carried out within operational area containments.
3.2. All operational area activities conducted or carried out within a permanent operational area:
3.2.a. shall be carried out in a manner that prevents the escape of discharges that may result in unreasonable adverse effects on the environment.
3.2.b. shall be carried out on an impervious surface, such as a concrete pad or other similar pad approved by the commissioner, that is suitably coated with a material to retard absorption of discharges and to facilitate recovery of any discharged materials.
3.3. All operational area containments:
3.3.a. shall be constructed of materials and in a manner that will withstand the weight and movement of any equipment that may be placed or parked within the operational area containment.
3.3.b. shall be maintained at all times when operational activities are occurring.
3.3.c. shall be designed to catch and contain any discharge in the operational area.
3.3.c.A. The operational area containment for liquid pesticides, including container and equipment rinsates and those mixed with a liquid or dry carrier, shall be curbed or sloped to contain discharges. Discharges shall be immediately recovered from the operational area containment. Rainfall or other liquids may flow onto or out of the operational area containment only when a suitable recovery or storage facility collects, diverts or manages the rainfall. The operational area containment shall be capable of holding a minimum volume of ten percent (10%) of the total capacity of the single largest container or vehicle operated within the operational area or a minimum of two hundred fifty (250) gallons, whichever is greater. At least one person shall be available to monitor the loading and unloading and stop the process in the case of an operational spill, except when the operational area containment is equal to one hundred twenty-five (125%) of the capacity of the single largest container or vehicle operated within the operational area.
3.3.c.B. The operational area containment for non-liquid pesticides may extend beneath any conveyers or augers used in operational area activities only when such conveyers or augers are fully enclosed and constructed to prevent discharge. Operational area containment shall be of adequate dimension (area) to contain discharges from the largest container or equipment operated within the operational area containment. The operational area containment for non-liquid pesticides shall consist of a tarpaulin made of nonabsorbent materials which is of adequate thickness and construction to withstand all foreseeable loading conditions, and is generally compatible with the materials stored or placed thereon. Discharges shall be immediately recovered from the operational area containment. Rainfall or other liquids may flow either onto or out of the operational area containment only when a suitable recovery or storage facility collects, diverts or manages rainfall.
3.3.c.C. Sumps, meeting state and federal requirements may be incorporated into the design of the permanent operational area when they are maintained and operated according to a plan approved by the commissioner.
W. Va. Code R. § 61-12I-4 Recovery, Storage and Use of Discharges
4.1. Any person who operates within the operational area containment shall immediately and fully recover all discharges. Operational area surfaces exposed to pesticides (concentrate or dilute) shall be periodically cleaned with all rinsates recovered and properly stored or disposed of according to state requirements. Recovered discharges shall be stored above ground in suitable containers in compliance with all secondary containment provisions. Recovered discharges may be used according to applicable product label(s). Rainwater recovered from containment areas may be used for pesticide dilutions when it is reasonably free of pesticides.
W. Va. Code R. § 61-12I-5 Hearings and Penalties
5.1. The commissioner shall be governed by W. Va. Code '19-16A-22 when conducting hearings or assessing civil penalties for the violation of these rules. The penalty provisions of W. Va. Code '19-16A does not preclude the commissioner's right to issue orders or assess penalties pursuant to W. Va. Code '22-12-1 et seq.
61CSR12I
Series 12J Integrated Pest Management Programs In Schools And Day Care Centers/Facilities
W. Va. Code R. § 61-12J-1 General
1.1. Scope. -- This legislative rule establishes procedures to provide for integrated pest management programs in schools, child care centers and family child care facilities.
1.2. Authority. -- W.Va. Code §19-16A-4.
1.3. Filing Date. -- April 8, 2010.
1.4. Effective Date -- July 1, 2010.
W. Va. Code R. § 61-12J-2 Definitions
2.1. “Broadcast” means the application of pesticides over an area such as a lawn, field, room, crawl space, or other such surface. The term does not include crack and crevice or spot applications made to selected plants, insects, soil, or surfaces.
2.2. “Child care” means a child care center or a family child care facility.
2.3. “Child care center” means a completed structure used for the care of thirteen or more children on a non-residential basis.
2.4. “Crack and crevice treatment” means the application of small amounts of insecticides into openings commonly found at expansion joints, between different elements of construction, and between equipment and floors or walls.
2.5. “Family child care facility” means a completed structure used to provide non-residential child care for seven to twelve children.
2.6. “Least hazardous materials” means the use of pest control practices and methods, including the use of chemicals in a manner to cause the least practical exposure to the occupants of a structure. The “least hazardous materials” takes into account the method of application, toxicity of the product and the exposure to the occupants to the practice or methods employed to control pests, such as the use of a non-volatile material formulation and/or application method as opposed to a broadcast application that creates potential for exposure.
2.7. “Material safety data sheet” means a fact sheet that is designed for distribution to chemical manufacturing plant workers and refers to the toxicity of the concentrate of a pesticide product. In the case of ready-to-use products, “material safety data sheets” may be the same as “consumer information sheets.”
2.8. “Pesticide” means, for the purposes of this rule, the use of insecticides and herbicides that are applied into or around a building and the adjacent grounds used by a school, child care center or family child care facility.
2.9. “Re-entry period” means the time that must elapse from the completion of a pesticide application until students or school and child care employees may enter the building to conduct scheduled activities.
2.10. “School” means a completed structure used for public or private education, grades kindergarten through twelfth grade.
2.11. “School grounds” means the area outside of the school buildings controlled, managed, or owned by the school or school district, including lawns, playgrounds, sports fields, and any other property or facility controlled, managed, or owned by a school.
2.12. “Space treatment” means the application of a pesticide that is intended to discharge the pesticide into the air throughout an entire room or area.
2.13. “Spot treatment” means the application of a pesticide to a limited area where pests are likely to occur, such as floors, walls, bases or the underside of equipment, turf or ground. A “spot” shall not be more than 2 square feet and shall not be more than 20 percent of a surface area.
W. Va. Code R. § 61-12J-3 Integrated Pest Management
3.1. Integrated Pest Management is a system of controlling pests in which pests are identified, action thresholds are considered, all possible control options are evaluated and selected controls are implemented. Control options, which include biological, chemical, cultural, manual, and mechanical methods, are used to prevent or remedy unacceptable pest activity or damage. Choice of control options is based on effectiveness, environmental impact, site characteristics, worker/public health and safety, and economics. The goal of an integrated pest management system is to manage pests and the environment to balance benefits of control, costs, public health and environmental quality. Integrated pest management takes into account site-specific factors and takes advantage of all pest management options.
3.2. Schools, child care centers and family child care facilities or contracted pesticide application businesses covered by this rule shall not apply pesticides unless monitoring as specified in Section 6 of this rule indicates pests are present.
W. Va. Code R. § 61-12J-4 Integrated Pest Management Programs for Schools
4.1. All schools covered by this rule shall develop and maintain an integrated pest management program. The best management practices contained in “Integrated Pest Management in Schools and Other Public Institutions, Best Management Practices,” published by the West Virginia Department of Agriculture may be used in the development of the program.
4.2. At a minimum, the integrated pest management program for a school shall contain:
4.2.a. a policy statement;
4.2.b. pest management objectives;
4.2.c. education of the building occupants in integrated pest management practices;
4.2.d. inspection activities;
4.2.e. monitoring activities;
4.2.f. an evaluation of the integrated pest management strategies in practice; and
4.2.g. action thresholds for common pests.
4.3. At the inception of the integrated pest management program, the school or the contracted pesticide application business should make a survey of the facility and record the structural maintenance, cultural or sanitation practices that need correcting in order to insure the success of an integrated pest management program. This record shall be updated prior to the beginning of each school year with a follow-up inspection within six months, with the items to be corrected noted on the record.
4.4. Pest management objectives and pest threshold levels will vary for each school facility and the occupants of the facility. In order to provide a cross representation of input to the integrated pest management program from the school's occupants and the school community, the Local School Improvement Council as created by W.Va. Code §18-5A-2 may comment on the school's integrated pest management plan.
4.5. Schools covered by this rule shall file completed integrated pest management plans with the Commissioner for compliance review. When any changes are made to the program, they shall submit the revised integrated pest management plan to the Commissioner prior to the initiation of the new plan.
4.6. Schools or contracted pest control operators shall maintain an Integrated Pest Management file in the main office in each school facility. The Integrated Pest Management file shall contain at a minimum the following items or documents:
4.6.a. the adopted integrated pest management plan;
4.6.b. sanitation and maintenance surveys;
4.6.c. monitoring diagrams of the facility;
4.6.d. pest surveillance data sheets;
4.6.e. notification of Level 3 or Level 4 treatment as specified in subsection 8.1 of this rule.
4.6.f. treatment records of the facility, including a floorplan indicating treatment locations;
4.6.g. labels of pesticide products used at the facility; and
4.6.h. material safety data sheets.
4.7. If a school contracts with a pesticide application business for any pesticide applications or monitoring, the business then assumes responsibility for the documents required to be in the Integrated Pest Management file.
4.8. Upon request, schools or contracted pesticide application businesses covered by this rule shall provide copies of pesticide labels and material safety data sheets to employees of the school facility or to parents or legal guardians of the school's students.
4.9. Areas of schools, including but not limited to greenhouses, nursery plots or agricultural field plantings, used for vocational agricultural plots or research are exempt from the requirements of this rule.
W. Va. Code R. § 61-12J-5 Integrated Pest Management Programs for Child Care Centers and Family Child Care Facilities
5.1. All child care centers and family child care facilities covered by this rule shall develop and maintain an integrated pest management program. The best management practices contained in “Integrated Pest Management in Schools and Other Public Institutions, Best Management Practices,” published by the West Virginia Department of Agriculture may be used in the development of the program.
5.2. At a minimum, the integrated pest management program for a child care center or family child care facility shall contain:
5.2.a. a policy statement;
5.2.b. pest management objectives;
5.2.c. education of the building occupants in integrated pest management practices;
5.2.d. inspection activities;
5.2.e. monitoring activities;
5.2.f. an evaluation of the integrated pest management strategies in practice; and
5.2.g. action thresholds for common pests.
5.3. At the inception of the integrated pest management program, the child care should make a survey of the facility and record the structural maintenance, cultural or sanitation practices that need correcting in order to insure the success of an integrated pest management program. This record should be updated periodically with the items to be corrected noted on the record.
5.4. All child care centers or family child care facilities covered by this rule shall file completed integrated pest management plans with the Commissioner for compliance inspection. When any changes are made to the program, they shall submit the revised integrated pest management plan to the Commissioner prior to the initiation of the new plan.
5.5. Child care center or family child care facility operators or contracted pesticide application businesses shall maintain an Integrated Pest Management file in a central location at each center or facility in operation. The Integrated Pest Management file shall contain at a minimum the following items or documents:
5.5.a. the approved integrated pest management plan;
5.5.b. sanitation and maintenance surveys;
5.5.c. monitoring diagrams for the child care center or family child care facility;
5.5.d. pest surveillance data sheets;
5.5.e. notification of Level 3 or Level 4 treatment as specified in subsection 8.1 of this rule;
5.5.f. treatment records for the child care center or family child care facility, including diagrams of treatment locations;
5.5.g. labels of pesticide products used at the child care center or family child care facility; and
5.5.h. copies of material safety data sheets for the products used at the child care center or family child care facility.
5.6. If a child care center or facility contracts with a pesticide application business for any pesticide applications or monitoring, the business then assumes responsibility for the documents required to be in the Integrated Pest Management file.
5.7. Child care centers and family child care facilities covered by this rule shall provide copies of pesticide labels and consumer information sheets when available or material safety data sheets in the absence of consumer information sheets to a child's parents or legal guardians upon request.
W. Va. Code R. § 61-12J-6 Monitoring for Pest Infestations
6.1. Monitoring Program.
6.1.a. Each school, child care center or family child care facility shall have a monitoring program. The monitoring program shall include inspecting areas of the facility for pest evidence, entry points, food, water and harborage sites, and estimating pest population levels. Each school, child care center or family child care facility shall evaluate the information gained through monitoring to determine whether the action threshold has been exceeded and what can be done in the way of prevention.
6.1.b. Each school, child care center or family child care facility shall conduct a monitoring program in suspect areas of their facility on an ongoing basis. Sticky traps designed for cockroaches and other crawling insects shall be placed along wall/floor junctions, on vertical surfaces, behind appliances, in closets, cabinets and shelves, and in other areas where insects have been seen.
6.1.c. Components of the monitoring program shall include:
6.1.c.1. A floorplan of the school, child care center or family child care facility showing the number and accurate location of each trap;
6.1.c.2. Periodic inspection of each trap at no greater than monthly intervals year round with the following information recorded on a Pest Surveillance Data Sheet:
6.1.c.2.A. The trap number and its location;
6.1.c.2.B. The date checked;
6.1.c.2.C. The trap's condition (either OK or replaced);
6.1.c.2.D. The numbers and kinds of insects, arthropods, rodents or other pests trapped;
6.1.c.2.E. Pest damage or other evidence of pests such as feces, cast skins, or rub marks;
6.1.c.2.F. Any need for pest management; and
6.1.c.2.G. The name of the person performing the monitoring activity;
6.1.c.3. Removal and disposal of the trap after catch numbers are recorded and identification is confirmed, to prevent counting specimens more than one time and to prevent their use as food by other insects or rodents; and
6.1.c.4. Replacement of the traps when the adhesive is no longer tacky.
6.2. When monitoring indicates the level of pest infestation meets or exceeds the threshold levels established for the school, child care center or family child care facility and pest type, the progressive levels of pest control techniques and chemical applications as outlined in Section 7 of this rule shall be followed in controlling the pest population. If monitoring indicates that pest populations do not meet or exceed threshold levels, no pesticides shall be applied.
W. Va. Code R. § 61-12J-7 Use of the Least Hazardous Materials -- Re-entry Intervals
7.1. In an integrated pest management program, persons responsible for pest management shall evaluate all possible control options. Control options range from non-chemical methods to least hazardous pesticides to pesticides with a higher degree of risk to human health. In keeping with the legislative mandate for integrated pest management, the licensed pesticide applicator shall, after monitoring for pest infestations, proceed in controlling pests using the least hazardous method that is both practical and effective as outlined in this section.
7.1.a. Level 1 -- Non-chemical Control Methods.
7.1.a.1. Pest-preventive measures should be incorporated into existing structures. These preventive measures reduce the need for pesticide applications, and include sanitation, such structural repairs as sealing cracks, and such physical and mechanical controls as screens, traps, and air doors. A school, child care center or family child care facility shall consult the West Virginia Department of Agriculture's best management practices document “Integrated Pest Management in Schools and Other Public Institutions, Best Management Practices” for integrated pest management strategies for specific sites. Every facility will experience slightly different combinations of pests.
7.1.b. Level 2 -- Least Hazardous Materials.
7.1.b.1. If non-chemical pest management methods alone are ineffective or impractical, it may be necessary for a school, child care center or family child care facility to incorporate a pesticide into the integrated pest management program. Although all pesticides are inherently toxic, there are a number of pesticide materials that are determined to be of low impact to occupants because of their organic or biological nature, low toxicity, relative non-volatility, and/or low or non-existent exposure to the occupants due to the manner in which they are applied as baits, gels or dusts into cracks and crevices or wall voids.
7.1.b.2. The least hazardous pesticides are those with a Caution signal word (EPA toxicity categories III and IV) including dusts -- pyrethrin and pyrethroid, boric acid, disodium octaborate tetrahydrate, silica gel, and diatomaceous earth; insecticidal soaps; insect growth regulators; biological control agents -- fungi, bacteria, nematodes; or materials formulated as baits in tamper-resistant containers or for crack and crevice or void placement only.
7.1.b.3. There is no re-entry interval for these products due to their level of safety.
7.1.c. Level 3 -- Crack and Crevice and Spot Treatments.
7.1.c.1. Schools, child care centers or family child care facilities shall apply products with an EPA Caution signal word but not listed under Level 2 as crack and crevice or spot treatments.
7.1.c.2. Products applied by these methods provide for reduced, minimal use of liquid materials that may present some, but limited volatility of the pesticide applied. Exposure to occupants is minimal.
7.1.c.3. The re-entry interval for which students and employees shall remain out of the treated area of the facility after the conclusion of treatment is four hours or the time period specified on the pesticide label as registered by the United States Environmental Protection Agency, which ever is greater.
7.1.d. Level 4 -- Broadcast Applications and Space Treatments.
7.1.d.1. Products with a Caution signal word applied by broadcast application or as a space treatment or products with a Warning or Danger signal word applied by any application method.
7.1.d.2. Products applied by these methods create the greatest opportunities for exposure at the time of application due to drift or volatility. However products applied as fogging agents are usually of low mammalian toxicity and pose little exposure after label re-entry times specified by the United States Environmental Protection Agency.
7.1.d.3. The re-entry interval for which students and employees are to remain out of the treated area of the facility after the conclusion of treatment is eight hours or the period specified on the label of the pesticide product as registered by the United States Environmental Protection Agency, which ever is greater, except when the air in the treated area can be purged by the heating, cooling and ventilation system, the period of reentry shall be 4 hours or the period specified on the label of the pesticide product as registered by the United States Environmental Protection Agency, which ever is greater.
W. Va. Code R. § 61-12J-8 Prior Notification
8.1. If a licensed pesticide application business is contracted to make a Level 3 or Level 4 pesticide application, the licensee shall provide notification to the school or child care administrator 48 hours in advance of the application.
8.2. Employees of Schools, Child Care Centers or Family Child Care Facilities.
8.2.a. All schools, child care centers or family child care facilities shall notify their employees through routine announcement or individual notice at least 24 hours in advance of all applications of pesticides in levels 3 and 4 as detailed in Section 7 of this rule, including applications made after school hours, on a weekend or during a holiday break.
8.3. Parents or Legal Guardians of Students of Schools.
8.3.a. At the beginning of each school year, or at the time a student is enrolled into the school, school administrators shall notify the parents or legal guardians of the right to be informed of the application of level 3 or 4 pesticides as detailed in Section 7 of this rule.
8.3.b. The notification to the parents or legal guardians shall contain a registration form, whereby the parent or legal guardian can request to be notified by the school administrator of the application of level 3 or 4 pesticides.
8.3.c. The administrator of the school shall provide notification to the parent or legal guardian requesting notification at least 24 hours in advance of all applications of level 3 or 4 pesticides, including applications made after school hours, over a weekend or during a holiday break.
8.3. Parents or Legal Guardians of Children in Child Care Centers or Family Child Care Facilities.
8.3.a. At the time a child care center or family child care facility operator signs a contract or other agreement for the care of a child, the operator shall notify the parent or legal guardian of the right to be informed of the application of a level 3 or 4 pesticide as detailed in Section 7 of this rule.
8.3.b. The child care center or family child care facility operator shall post and make available to the parent or legal guardian, notification of all applications of level 3 or 4 pesticides at least 24 hours in advance of any pesticide application, including applications made after hours, over a weekend or during a holiday break. The notification shall be placed at the register where the parent or legal guardian signs the child into and out of the child care center or family child care facility.
W. Va. Code R. § 61-12J-9 Application of Pesticides to Schools, and Child Care Centers and Family Child Care Facilities
9.1. Level 3 and Level 4 pesticide applications shall not be made in the presence of students, children in child care centers or children in family child care facilities or employees of schools, child care centers or family child care facilities, except for school, child care center or family child care facility employees who are certified pesticide applicators. Pesticides may be applied to a localized area of infestation when students, children or school, child care center or family child care facility employees are present if the infestation causes an imminent threat of bodily harm.
9.2. All pest control methods or practices shall be conducted in conformance to the Use of the Least Hazardous Materials as outlined in Section 7 of this rule.
9.3. All pesticide applications made to schools, child care centers or family child care facilities shall be applied in accordance with the integrated pest management plan filed with the Commissioner.
9.4. All pesticide applications shall only be made by certified commercial pesticide applicators or certified public applicators or registered technicians under the supervision of a certified pesticide applicator as outlined in West Virginia Department of Agriculture Certified Pesticide Applicator Rules, 61CSR12A.
9.5. The commissioner shall require all certified pesticide applicators applying pesticides or supervising the application of pesticides, or persons providing services as a consultant to complete a specialized training program in urban integrated pest management.
9.5.a. Any specialized urban integrated pest management programs not offered by the commissioner must be approved by the commissioner.
9.5.b. Pesticide applicators certified in the General Pest Control sub-category as detailed in 61CSR12A Certified Pesticide Applicator Rules who complete the specialized training program in urban integrated pest management prior to September 1, 1996 shall be determined to be certified in Urban Integrated Pest Management.
9.5.c. After September 1, 1996, the commissioner shall require all certified pesticide applicators applying pesticides or supervising the application of pesticides in a school, child care center or family child care facility, or persons providing services as a consultant to schools, child care centers and family child care facilities to be examined and certified in the sub categories of General Pest Control and Urban Integrated Pest Management as outlined in 61CSR12A Certified Pesticide Applicator Rules.
W. Va. Code R. § 61-12J-10 Record Keeping
10.1. Schools, child care centers and family child care facilities covered by this rule shall keep for a period of two years all documents required to be in the Integrated Pest Management Files as detailed in Subsection 4.6 and Subsection 5.5, respectively, of this rule.
10.2. The records required for the Integrated Pest Management of schools, and child care centers and family child care facilities shall be made available upon request to the commissioner to verify the maintenance of the integrated pest management program.
10.3. Pesticide application records as required in Subdivision 4.6.f. and Subdivision 5.5.f. of this rule shall contain all of the information required in Section 7 West Virginia Department of Agriculture Rule, Licensing of Pesticide Businesses, 61CSR12B.
W. Va. Code R. § 61-12J-11 Implementation
11.1. The commissioner shall make available to all schools, child care centers and family child care facilities a copy of the integrated pest management materials titled “Integrated Pest Management in School and other Public Institutions, Best Management Practices” and “Integrated Pest Management in Schools and Other Public Institutions, A Guide for Commercial Applicators”.
11.2. All pesticide applications made to schools, child care centers and family child care facilities shall be made in accordance with this rule and the integrated pest management programs on file with the commissioner after September 1, 1996.
61CSR12J
61CSR12J
Series 14 West Virginia Plant Pest Act
W. Va. Code R. § 61-14-1 General
1.1. Scope. -- This legislative rule establishes general operating procedures for the Plant Industries Division.
1.2. Authority. -- W. Va. Code §§19-12-3, 5, 6, and 16.
1.3. Filing Date. -- April 20, 2015.
1.4. Effective Date. -- July 1, 2015.
W. Va. Code R. § 61-14-2 Definitions
2.1. "Act" means the West Virginia Plant Pest Act (W. Va. Code §19-12-1 et seq.).
2.2. "Administrative Hearing Officer" means a person contracted by the Commissioner to preside over a formal hearing.
2.3. “Commercial Shipment” means articles intended to be transported to another state or country by an individual or combination of individuals, partnership, corporation, company, society, association or other business entity for the purpose of making a profit or procuring customers.
2.4. "Commissioner" means the Commissioner of the West Virginia Department of Agriculture or his or her authorized representative.
2.5. "Compliance Officer" means a person appointed by the Commissioner to preside over an informal hearing arising as a result of this Rule.
2.6. “Consent Agreement” means a document executed between the Commissioner and another party affirming the level of a proposed penalty for an alleged violation or violations.
2.7. “Enforcement Officer” means a person appointed by the Commissioner to carry out the review of alleged violations, assessment of the penalty and the procedure contained in this Rule.
2.8. “Infected” or “Infested” means contaminated with a pest, or so exposed, that it would be reasonable to believe that infection or an infestation exists.
2.9. “Insect, Noxious Weed and Plant Pest Dissemination Violation” means any violation of W. Va. Code §19-12-14, which requires that a permit be issued for the introduction or distribution of live insects, noxious weeds or plant pests in this state.
2.10. “Inspection Violation” means any violation of W. Va. Code §19-12-11, 19-12-8 or 19-12-10 or Section 8 of this Rule related to the discharge of an inspector’s duties.
2.11. “Noncommercial Shipment” means articles intended to be transported to another state or country but not for the purpose of making a profit or associated with a business transaction.
2.12. “Phytosanitary Certificate” means an official document issued by a state or federal agricultural agency which certifies that specific articles meet the import standards of a specific state or country.
2.13. “Plant Certification Violation” means any violation of Sections 9 or 10 of this Rule that relate to the certification of plant material.
2.14. “Quarantine Violation” means any violation of the White Pine Blister Rust Quarantine, Black Stem Rust Quarantine, West Virginia Gypsy Moth Quarantine, or any other plant protection quarantine or administrative order established under authority of W. Va. Code §19-12-6.
2.15. “Registration Violation” means any violation of W. Va. Code §19-12-9 or Sections 2, 3, 4, 5, or 9 of this Rule related to the requirements for registering a nursery or dealership.
2.16. “Violator” means the person who is alleged to have violated W. Va. Code §19-12-1 et seq., or any rule, order or permit condition imposed pursuant to W. Va. Code §19-12-1 et seq.
W. Va. Code R. § 61-14-3 Sale of Nursery Stock
3.1. A nursery within the State shall not sell or offer for sale any nursery stock or deliver any nursery stock within or without the State until it has been inspected and a certificate issued.
3.2. The commissioner shall for each certificate of registration issued and for each registration renewal collect an annual registration fee in the amount of thirty dollars ($30.00) for each nursery and sixty dollars ($60.00) for each dealership up to and including five (5) dealerships and eighty dollars ($80.00) for each dealership thereafter. A certificate of registration expires annually on the thirtieth day of June.
W. Va. Code R. § 61-14-4 Display of Certificates
4.1. The certificate of registration issued to any nursery that has been inspected and found to be apparently free of dangerously injurious insects and plant diseases shall be conspicuously displayed to the public at the location where the nursery stock is being offered for sale.
W. Va. Code R. § 61-14-5 Multiple Sales Locations
5.1. A registered nursery with one or more sales locations separated from the parent nursery is not required to register each sales location, but shall have a copy of the registration displayed at each separate sales location.
W. Va. Code R. § 61-14-6 Revealing of Sources and Posting Certificates
6.1. A nursery stock dealership shall inform the Commissioner of the sources of his or her nursery stock and the Commissioner must be satisfied that nursery stock obtained from these sources is free of dangerously injurious insects and plant diseases before a dealership's certificate of registration is issued. The dealership may make amendments to the original list of sources at any time prior to the purchase of stock.
6.2. A nursery stock dealership within the State may not offer for sale any nursery stock, unless a copy of the current dealership’s certificate of registration is conspicuously displayed to the public at the place of business and unless the certificate of inspection or tag which accompanied the order from the registered nursery is available for inspection upon request.
W. Va. Code R. § 61-14-7 Reciprocal Registration
7.1. A nursery, dealership, or other person residing or doing business outside of West Virginia who desires to ship nursery stock into the State must be registered with the department of agriculture in the state in which its business is located. The West Virginia Department of Agriculture will accept as proof of registration, the directory of certified nurseries and dealerships published by its resident state department of agriculture, provided its state accepts West Virginia's directory on a reciprocal basis. In those instances where there is no reciprocity, the out-of-state business shall file a copy of its current, valid certificate of registration with the Commissioner, prior to shipment.
W. Va. Code R. § 61-14-8 Hindrance To Nursery Inspection
8.1. When conditions such as the presence of trash, weeds, crowding of stock or other conditions prevent a thorough examination of a nursery, the Commissioner shall provide the nursery with a written statement describing the procedures necessary to correct the problem which prevented a thorough examination of the nursery. After receiving a written response from the nursery that the corrective procedures have been carried out, the Commissioner shall cause an inspection to be made.
W. Va. Code R. § 61-14-9 Collection Of Native Nursery Stock
9.1. A collector acquiring native nursery stock in West Virginia shall apply for and receive a dealership's certificate of registration prior to actually digging or selling any collected stock, unless that person is already certified as a nursery.
9.2. A collector who anticipates the digging or offering for sale of collected native nursery stock shall make proper application to the Commissioner for inspection, prior to collecting each individual shipment. The Commissioner shall designate a time and a place where the dug plants are to be assembled for inspection. Uninspected plants shall not be moved from the property where they are collected without a specific written directive from the Commissioner designating the place to which the plants are to be moved for inspection. The Commissioner shall be given notice when the plants are assembled. It is a violation to transport native nursery stock without first obtaining a written directive from the Commissioner making provisions for inspection.
9.3. The Commissioner shall issue a certificate of inspection to the collector for the movement and sale of each shipment of collected plants found to be free of plant pests. This certificate shall cover only the plants inspected and passed at the time of inspection. Plants not passing inspection shall be destroyed or treated by the collector as directed by the Commissioner.
W. Va. Code R. § 61-14-10 Vegetable Plants
10.1. All vegetable plants shipped into the State of West Virginia must be certified to have been grown under an official certification program of the State of origin, or to have been inspected and certified to be apparently free of injurious insects, nematodes, and plant diseases on the basis of an inspection no more than three (3) days prior to their removal from the soil.
W. Va. Code R. § 61-14-11 Issuance of Federal Phytosanitary Certificates for Export of Agricultural Commodities
11.1. The Commissioner may issue federal phytosanitary certificates for the export of eligible agricultural commodities. For this service, the Commissioner shall charge a fee of one hundred six dollars ($106.00) for export or re-export of a commercial shipment ($1,250.00 or more in value), and sixty one dollars ($61.00) for export or re-export of a low-value commercial shipment ($1,249.99 or less in value). The Commissioner shall charge a fee of fifteen dollars ($15.00) for any certificate that is replaced or re-issued. The Commissioner shall not assess a charge for noncommercial shipments.
W. Va. Code R. § 61-14-12 Issuance of State Phytosanitary Certificates for Export of Agricultural Commodities
12.1. The Commissioner may issue state phytosanitary certificates for the export of eligible agricultural commodities. For this service, the Commissioner shall charge a fee of fifty dollars ($50.00) for export or re-export of a commercial shipment ($1,250.00 or more in value), and twenty-five dollars ($25.00) for export or re-export of a low-value commercial shipment ($1,249.99 or less in value). The Commissioner shall charge a fee of fourteen dollars ($14.00) for any certificate that is replaced or re-issued. The Commissioner shall not assess a charge for noncommercial shipments.
W. Va. Code R. § 61-14-13 Assessment of Civil Penalties and Procedures for Consent Agreements and Negotiated Settlements
13.1. Procedure
13.1.a. The civil penalty assessment procedures in this section are designed to include most violations of W. Va. Code §19-12-1 et seq. committed by nurseries and dealerships. However, there may be situations which arise that are not adequately covered by this section. In those cases, the enforcement officer shall determine an appropriate course of action and make a recommendation for that action to the Commissioner. After review of the circumstances, the Commissioner may concur with the recommendation or give direction for other appropriate action as prescribed under the authority of W. Va. Code §19-12-1 et seq.
13.1.b. The time interval between the first offense and each repeated offense, beyond which the Commissioner will take no enforcement action and clear the violator's records, is limited to two years for all inspection and plant certification violations. There is no time limit for registration, quarantine, administrative order, and insect, noxious weed and plant pest dissemination violations.
13.1.c. The enforcement officer reviewing a case shall prepare a finding of fact surrounding any discovered violation of W. Va. Code §19-12-1 et seq. Once a violation is discovered the enforcement officer shall determine:
13.1.c.A. The appropriateness of a civil penalty or criminal enforcement action; and
13.1.c.B. The character of the violation and the appropriate enforcement level as stated in the schedule of penalties contained in Table 61-14-A of this Rule. The violations are categorized into the following types:
13.1.c.B.1. Registration Violations;
13.1.c.B.2. Inspection Violations;
13.1.c.B.3. Plant Certification Violations;
13.1.c.B.4. Quarantine Violations; and
13.1.c.B.5. Insect, Noxious Weed and Plant Pest Dissemination Violations.
13.1.d. Upon establishing a level of violation, the enforcement officer shall refer to the schedule of penalty levels contained in Table 61-14-A of this rule to determine a monetary assessment. In determining the level of penalty, the enforcement officer shall consider the following factors:
13.1.d.A. The gravity of the violation;
13.1.d.B. The degree of the violator's culpability;
13.1.d.C. The degree of effort put forth by the violator to comply with W. Va. Code §19-12-1 et seq. and rules promulgated under the Act; and
13.1.d.D. The violator's history of prior violations.
13.1.e. Any denial, suspension, revocation or modification by the Commissioner of a permit, compliance agreement or certificate of registration shall be based on satisfactory evidence that the action taken will help protect the State's agricultural interests from plant pests or noxious weeds or that any of the provisions of the permit, compliance agreement, W. Va. Code §19-12-1 et seq., or its rules have been violated.
13.1.f. Any consent agreement or negotiated settlement agreed upon and signed by the violating party and the duly appointed representative of the Commissioner is a penalty levied through an administrative hearing for the purpose of collection and for the purposes of any other action determined proper and included in the consent agreement or negotiated settlement.
13.2. Consent Agreements and Negotiated Settlements.
13.2.a. Consent agreements or negotiated settlements are intended as a mechanism to settle violations without expensive costs to both parties for administrative or criminal hearings. The violations cited in the notice of violation are capable of being recognized by the violator and the penalty settlement can be accomplished without a hearing. The enforcement officer shall provide the violator a written notice of violation, by certified mail or personal service, which includes a finding of fact and a proposed level of enforcement action. If the violator agrees with the proposed level of action, he or she shall sign a consent agreement form and return it with payment of the assessed penalty.
13.2.b. Negotiated Settlement - Right to informal hearing. In the event that the violator disagrees with the findings of the investigation or the level of enforcement action, the violator has twenty (20) calendar days from receipt of the notice of civil penalty to request a hearing. The violator has the option of requesting an informal hearing or may request a formal hearing as prescribed under Subdivision 11.2.g. of this rule. During an informal hearing the violator may submit to the compliance officer any mitigating circumstances as to why the compliance officer should alter the investigative findings or level of enforcement action.
13.2.c. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty-day period, the compliance officer shall schedule a hearing in accordance with the following procedures:
13.2.c.A. The compliance officer shall notify any authorized representative of the Commissioner who was involved in the investigation of the violation bringing about the informal hearing, and the violator of the time and place of the informal hearing. In scheduling the location of the informal hearing, the compliance officer shall consider the location of the violation and the violator. The compliance officer may schedule the hearing anywhere in the State of West Virginia;
13.2.c.B. The compliance officer shall notify the parties at least fifteen (15) calendar days prior to the time of the hearing; and
13.2.c.C. The compliance officer may continue the informal hearing only for good cause shown.
13.2.d. Informal Hearing Procedures. An informal hearing, as provided by this Rule, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation. The compliance officer shall conduct the hearing in the following manner:
13.2.d.A. The compliance officer shall not strictly apply The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence;
13.2.d.B. The compliance officer shall not discuss the case "ex parte" with either the enforcement officer or other department employees involved in the case;
13.2.d.C. A record of the informal hearing is not required, but any party may request that a record be made at that party's expense. Any other party to the hearing may obtain copies of the record at his or her expense; and
13.2.d.D. At any formal review proceedings which may occur later, no evidence, as to any statement made by one party at the informal hearing, may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.
13.2.e. Negotiated Settlement - Any settlement of the alleged violation based on agreement between the compliance officer and the violator is a negotiated settlement. The violator and the compliance officer shall sign the negotiated settlement document.
13.2.f. Written Decision
13.2.f.A. If the violator and the compliance officer are unable to reach an agreement, the compliance officer shall recommend a penalty to the Commissioner.
13.2.f.B. Within thirty (30) calendar days following the informal hearing, the Commissioner shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and give the reasons for his or her decision.
13.2.g. Contested Cases, Right to a Formal Hearing.
13.2.g.A. As provided in Subdivision 11.2.B. of this Rule or within thirty (30) calendar days after notification of a written decision rendered as a result of an informal hearing, the violator may request a formal hearing before the Commissioner. An administrative hearing officer shall conduct the hearing and the hearing shall comply with the Administrative Procedures Act, W. Va. Code §29A-5-1 et seq.
13.2.g.B. If no hearing is requested, the compliance officer's decision becomes a final order after the expiration of the thirty-day period and the civil administrative penalty is due and payable.
TABLE 61-14-A
SCHEDULE OF PENALTIES
Registration Violations Violation - Exposing or offering for sale, selling, delivering, or giving away plants or parts of plants commonly known as nursery stock without having first secured from the Commissioner a certificate of registration. Nursery - (W. Va. Code §19-12-9 and Section 3 of this Rule). Nursery Dealer - (W. Va. Code §19-12-9).
First Offense, No Prior Knowledge First Offense, Prior Knowledge $50 - $100 Second Offense Third offense and each repeat offense thereafter. $500 Violation - Failure to post the certificate of registration in a conspicuous location at the place of business. Nursery - (Section 4 of this Rule). Nursery Dealer - (Section 6 of this Rule).
First Offense Second Offense $25 - $50 Third Offense and each repeat offense thereafter. $50 - $100 Violation - Failure of a Nursery Dealer to inform the West Virginia Department of Agriculture about the source of their nursery stock. (Section 6 of this Rule).
Second offense and each repeat offense thereafter. Adverse effects not probable.
Second Offense and each repeat offense thereafter. Adverse effects probable or demonstrated.
Inspection Violations Violation - Interfering with an inspector's ability to perform his or her duties. (W. Va. Code §19-12-8).
First Offense Second Offense Third Offense and each repeat offense thereafter.
Violation - Failure to comply with a plant pest control order. (W. Va. Code §19-12-10).
Second Offense and each repeat offense thereafter. Adverse effects not probable.
Second Offense and each repeat offense thereafter. Adverse effects probable or demonstrated.
Violation - Maintaining conditions which prevent a thorough plant pest examination. (Section 8 of this Rule).
First Offense Second Offense $50 - $100 Third Offense and each offense thereafter. $100 Plant Certification Violations Violation - Transporting nursery stock without a valid certificate of inspection. (W. Va. Code §19-12-11).
Second Offense. Adverse effects not probable. $50 - $100 Second Offense. Adverse effects probable or demonstrated.
Third Offense and each repeat offense thereafter. Adverse effects not probable.
Third Offense and each repeat offense thereafter. Adverse effects probable or demonstrated.
Violation - Distributing native nursery stock without proper inspection and certification. (Section 9 of this Rule).
Second Offense. Adverse effects not probable.
Second Offense. Adverse effects probable or demonstrated. $500 - $750 Third Offense and each repeat offense thereafter. Adverse effects not probable.
Third Offense and each repeat offense thereafter. Adverse effects probable or demonstrated. $750 - $1000 Quarantine Violations Violation - Failure to comply with the provisions of an administrative order or quarantine. (W. Va. Code §19-12-6). $100 - $500 Second Offense. Adverse effects not probable. $300 - $700 Second Offense. Adverse effects probable or demonstrated. $700 - $1000 Third Offense and each repeat offense thereafter. Adverse effects not probable. $500 - $700 Third Offense and each repeat offense thereafter. Adverse effects probable or demonstrated. $1000 Insect, Noxious Weed and Plant Pest Dissemination Violations Violation - Selling, transporting or distributing plant pests, noxious weeds or insects without a valid permit. (W. Va. Code §19-12-14). $100 - $500 Second Offense and each repeat offense thereafter. Adverse effects not probable.
Second Offense and each repeat offense thereafter. Adverse effects probable or demonstrated.
61CSR14
Series 14A Noxious Weeds Rule
W. Va. Code R. § 61-14A-1 General
1.1. Scope. -- This Legislative rule sets forth provisions governing noxious weeds. It sets forth definitions, cooperative suppression activities, prohibitions and declare certain weeds to be noxious.
1.2. Authority. -- W. Va. Code §19-12D-4.
1.3. Filing Date. -- April 13, 2023
1.4. Effective Date. -- May 1, 2023
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-14A-2 Declaration of Policy
2.1. This rule is promulgated to establish surveillance, suppression and control programs and to declare certain weeds noxious.
W. Va. Code R. § 61-14A-3 Definitions
3.1. “Cooperative suppression or control agreement” means a written agreement entered into by the Commissioner and one or more other persons which defines the responsibilities of each party regarding the cooperative suppression or control agreement and may include, but not be limited to, suppression or control procedures and methods, cost sharing, tenure of agreement and conditions.
W. Va. Code R. § 61-14A-4 Cooperative Suppression and Control
4.1. When it has been determined that an infestation of a noxious weed exists for which suppression and control activities are practical, the Commissioner may:
4.1.1. Declare a quarantine, if necessary;
4.1.2. Enter into cooperative suppression or control agreement with any person; or
4.1.3. Proceed with suppression or control activities.
W. Va. Code R. § 61-14A-5 Declaration of Noxious Weeds
5.1. Surveys have shown that the following plants are a detriment to agriculture in West Virginia and are hereby declared to be noxious weeds: Johnson Grass, Sorghum halepense (L.); Plumeless Thistle, Carduus acanthoides (L.); Curled Thistle C. crispus (L.); Musk Thistle, C. nutans (L.); Mile-a-minute, Polygonum perfoliatum; Japanese Knotweed, P. cuspidatum; Purple Loosestrife Lythrum salicaria; Tree of Heaven, Ailanthus altissima; Autumn Olive, Elaeagnus umbellate (Thunb.); Japanese Stiltgrass, Microstegium vimineum; Tartarian Honeysuckle, Lonicera tartarica; Morrow’s Honeysuckle, L. Morrowii; Poison Hemlock Conium maculatum; and Kudzu, Pueraria thunbergiana (S and Z) Benth.
5.2. Japanese Barberry, Berberis thunbergii DC, is hereby declared to be a noxious weed. However, the Commissioner of Agriculture may exempt certain cultivated varieties of Japanese Barberry upon determination that those varieties are sterile and pose no threat to agriculture in West Virginia.
5.3. This section is reserved for narcotic drug producing plants (as defined under Title 21, USC Section 802) other than those listed in the West Virginia Noxious Weed Act. (W. Va. Code §19-12D-7)
5.4. West Virginia adopts the Federal Noxious Weed List of the Federal Noxious Weed Act [Public Law 93-629 (7 U.S.C. 2801 et seq.; 88 Stat. 2148)] as an extension of the West Virginia Noxious Weed list. The Federal Noxious Weed List (Appendix A) will be regulated by the West Virginia Noxious Weed Act.
Appendix A:
Federal Noxious Weed List (as of November 10, 2010)
Aquatic/Wetland Azolla pinnata R. Brown (mosquito fern, water velvet)
Caulerpa taxifolia (Vahl) C. Agardh, Mediterranean strain (killer algae)
Eichhornia azurea (Swartz) Kunth (anchored waterhyacinth, rooted waterhyacinth)
Hydrilla verticillata (Linnaeus f.) Royle (hydrilla)
Hygrophila polysperma T. Anderson (Miramar weed)
Ipomoea aquatica Forsskal (water-spinach, swamp morning-glory)
Lagarosiphon major (Ridley) Moss Limnophila sessiliflora (Vahl) Blume (ambulia)
Melaleuca quinquenervia (Cav.) Blake (broadleaf paper bark tree).
Monochoria hastata (Linnaeus) Solms-Laubach Monochoria vaginalis (Burman f.) C. Presl Ottelia alismoides (L.) Pers.
Sagittaria sagittifolia Linnaeus (arrowhead)
Salvinia auriculata Aublet (giant salvinia)
Salvinia biloba Raddi (giant salvinia)
Salvinia herzogii de la Sota (giant salvinia)
Salvinia molesta D.S. Mitchell (giant salvinia)
Solanum tampicense Dunal (wetland nightshade)
Sparganium erectum Linnaeus (exotic bur-reed)
Parasitic Aeginetia spp.
Alectra spp.
Cuscuta spp. (dodders), other than following species:
Cuscuta americana Linnaeus Cuscuta applanata Engelmann Cuscuta approximata Babington Cuscuta attenuata Waterfall Cuscuta boldinghii Urban Cuscuta brachycalyx (Yuncker) Yuncker Cuscuta californica Hooker & Arnott Cuscuta campestris Yuncker Cuscuta cassytoides Nees ex Engelmann Cuscuta ceanothii Behr Cuscuta cephalanthii Engelmann Cuscuta compacta Jussieu Cuscuta corylii Engelmann Cuscuta cuspidata Engelmann Cuscuta decipiens Yuncker Cuscuta dentatasquamata Yuncker Cuscuta denticulata Engelmann Cuscuta epilinum Weihe Cuscuta epithymum (Linnaeus) Linnaeus Cuscuta erosa Yuncker Cuscuta europaea Linnaeus Cuscuta exalta Engelmann Cuscuta fasciculata Yuncker Cuscuta glabrior (Engelmann) Yuncker Cuscuta globulosa Bentham Cuscuta glomerata Choisy Cuscuta gronovii Willdenow Cuscuta harperi Small Cuscuta howelliana Rubtzoff Cuscuta indecora Choisy Cuscuta jepsonii Yuncker Cuscuta leptantha Engelmann Cuscuta mitriformis Engelmann Cuscuta nevadensis I. M. Johnston Cuscuta obtusiflora Humboldt, Bonpland, & Kunth Cuscuta occidentalis Millspaugh ex Mill & Nuttall Cuscuta odontolepis Engelmann Cuscuta pentagona Engelmann Cuscuta planiflora Tenore Cuscuta plattensis A. Nelson Cuscuta polygonorum Engelmann Cuscuta rostrata Shuttleworth ex Engelmann Cuscuta runyonii Yuncker Cuscuta salina Engelmann Cuscuta sandwichiana Choisy Cuscuta squamata Engelmann Cuscuta suaveolens Seringe Cuscuta suksdorfii Yuncker Cuscuta tuberculata Brandegee Cuscuta umbellata Humboldt, Bonpland, & Kunth Cuscuta umbrosa Beyrich ex Hooker Cuscuta vetchii Brandegee Cuscuta warneri Yuncker Orobanche spp. (broomrapes), other than the following species:
Orobanche bulbosa (Gray) G. Beck Orobanche californica Schlechtendal & Chamisso Orobanche cooperi (Gray) Heller Orobanche corymbosa (Rydberg) Ferris Orobanche dugesii (S. Watson) Munz Orobanche fasciculata Nuttall Orobanche ludoviciana Nuttall Orobanche multicaulis Brandegee Orobanche parishii (Jepson) Heckard Orobanche pinorum Geyer ex Hooker Orobanche uniflora Linnaeus Orobanche valida Jepson Orobanche vallicola (Jepson) Heckard Striga spp. (witchweeds)
Terrestrial Acacia nilotica (Prickly acacia)
Ageratina adenophora (Sprengel) King & Robinson (crofton weed)
Ageratina riparia (Mistflower, spreading snakeroot)
Alternanthera sessilis (Linnaeus) R. Brown ex de Candolle (sessile joyweed)
Arctotheca calendula (Capeweed)
Asphodelus fistulosus Linnaeus (onionweed)
Avena sterilis Linnaeus (including Avena ludoviciana Durieu) (animated oat, wild oat)
Carthamus oxyacantha M. Bieberstein (wild safflower)
Chrysopogon aciculatus (Retzius) Trinius (pilipiliula)
Commelina benghalensis Linnaeus (Benghal dayflower)
Crupina vulgaris Cassini (common crupina)
Digitaria scalarum (Schweinfurth) Chiovenda (African couchgrass, fingergrass)
Digitaria velutina (Forsskal) Palisot de Beauvois (velvet fingergrass, annual conchgrass)
Drymaria arenarioides Humboldt & Bonpland ex Roemer & Schultes (lightning weed)
Emex australis Steinheil (three-cornered jack)
Emex spinosa (Linnaeus) Campdera (devil's thorn)
Euphorbia terracina (False caper, Geraldton carnation)
Galega officinalis Linnaeus (goatsrue)
Heracleum mantegazzianum Sommier & Levier (giant hogweed)
Homeria spp.
Imperata brasiliensis Trinius (Brazilian satintail)
Imperata cylindrica (Linnaeus) Raeuschel (cogongrass)
Inula Britannica (British yellowhead)
Ischaemum rugosum Salisbury (murainograss)
Leptochloa chinensis (Linnaeus) Nees (Asian sprangletop)
Lycium ferocissimum Miers (African boxthorn)
Lygodium flexuosum (Maidenhair creeper)
Lygodium microphyllum (Old world climbing fern)
Melastoma malabathricum Linnaeus Mikania cordata (Burman f.) B. L. Robinson (mile-a-minute)
Mikania micrantha Humboldt, Bonpland, & Kunth Mimosa invisa Martius (giant sensitive plant)
Mimosa pigra Linneaus var. pigra (catclaw mimosa)
Moraea collina (Cape tulip)
Moraea flaccida (One leaf cape tulip)
Moraea miniata (Two leaf cape tulip)
Moraea ochroleuca (Apricot tulip)
Moraea pallida (Yellow tulip)
Nassella trichotoma (Nees) Hackel ex Arechavaleta (serrated tussock)
Onopordum acaulon (Stemless thistle)
Onopordum Illyricum (Illyricum thistle)
Opuntia aurantiaca Lindley (jointed prickly pear)
Oryza longistaminata A. Chevalier & Roehrich (red rice)
Oryza punctata Kotschy ex Steudel (red rice)
Oryza rufipogon Griffith (red rice)
Paspalum scrobiculatum Linnaeus (Kodo-millet)
Pennisetum clandestinum Hochstetter ex Chiovenda (kikuyugrass)
Pennisetum macrourum Trinius (African feathergrass)
Pennisetum pedicellatum Trinius (kyasumagrass)
Pennisetum polystachion (Linnaeus) Schultes (missiongrass, thin napiergrass)
Prosopis alpataco R. A. Philippi Prosopis argentina Burkart Prosopis articulata S. Watson Prosopis burkartii Munoz Prosopis caldenia Burkart Prosopis calingastana Burkart Prosopis campestris Griseback Prosopis castellanosii Burkart Prosopis denudans Bentham Prosopis elata (Burkart) Burkart Prosopis farcta (Solander ex Russell) Macbride Prosopis ferox Grisebach Prosopis fiebrigii Harms Prosopis hassleri Harms Prosopis humilis Gillies ex Hooker & Arnott Prosopis kuntzei Harms Prosopis pallida (Humboldt & Bonpland ex Willdenow) Humboldt, Bonpland, & Kunth Prosopis palmeri S. Watson Prosopis reptans Bentham var. reptans Prosopis rojasiana Burkart Prosopis ruizlealii Burkart Prosopis ruscifolia Grisebach Prosopis sericantha Gillies ex Hooker & Arnott Prosopis strombulifera (Lamarck) Bentham Prosopis torquata (Cavanilles ex Lagasca y Segura) de Candolle Rottboellia cochinchinensis (Lour.) W. Clayton Rubus fruticosus Linnaeus (complex) (wild blackberry)
Rubus moluccanus Linnaeus (wild raspberry)
Saccharum spontaneum Linnaeus (wild sugarcane)
Sagittaria sagittifolia (Arrowhead)
Salsola vermiculata Linnaeus (wormleaf salsola)
Senecio inaequidens DC (South African ragwort)
Senecio madagascariensis Poir (Madagascar ragwort)
Setaria pallide-fusca (Schumacher) Stapf & Hubbard (cattail grass)
Solanum torvum Swartz (turkeyberry)
Solanum viarum Dunal (tropical soda apple)
Spermacoce alata (Aublet) de Candolle Tridax procumbens Linnaeus (coat buttons)
Urochloa panicoides Beauvois (liverseed grass)
61CSR14A
61CSR14A
61CSR14A
61CSR14A
Series 15 Grade "A" Pasteurized Milk
W. Va. Code R. § 61-15-1 General
1.1. Scope. -- This legislative rule establishes the minimum requirements for the production, transportation, processing, handling, sampling, examination, labeling, and sale of Grade “A” milk and milk products, imitation milk and imitation milk products, and non-dairy products; the inspection of dairy farms, milk plants, receiving stations, transfer stations, milk tank truck cleaning facilities, milk tank trucks and bulk milk haulers/samplers; the issuing, suspension, and revocation of permits to milk producers, bulk milk haulers/samplers, milk tank trucks, milk transportation companies, milk plants, receiving stations, transfer stations, milk tank truck cleaning facilities, haulers, and distributors, and the fixing of penalties.
1.2. Authority. -- W. Va. Code §19-11E-8(1).
1.3. Filing Date. -- May 14, 2026.
1.4. Effective Date. -- May 14, 2026.
1.5. Sunset Date. – This rule shall expire and have no further force or effect August 1, 2031.
1.6. Applicability. -- This rule applies to every person, as defined in this rule, who in any manner establishes, conducts, controls, manages, maintains, owns, or operates a facility included under the scope of this rule.
1.7. Enforcement. -- This rule is enforced by the Commissioner of the West Virginia Department of Agriculture (“WVDA”).
W. Va. Code R. § 61-15-2 Incorporation by reference
2.1. The following portions of the Grade “A” Pasteurized Milk Ordinance, 2023 Revision, as published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, including administrative procedures, public health reasons, tables and illustrations, are incorporated by reference:
2.1.1. Section 1. Definitions, except that definition “YY. Regulatory Agency” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
2.1.2. Section 2. Adulterated or Misbranded Milk and/or Milk Products;
2.1.2.a. Footnote 1 referenced in Section 2 means the State of West Virginia.
2.1.2.b. The following is added to Section 2: “Samples analyzed for added water and found to have a freezing point above -0.525 degrees Hortvet (or -0.507 degrees Celsius) are adulterated unless proven free of added water.”
2.1.3. Section 3. Permits;
2.1.3.a. Footnote 1 referenced in Section 3 means the State of West Virginia.
2.1.4. Section 4. Labeling;
2.1.5. Section 5. Inspection of Dairy Farms and Milk Plants;
2.1.5.a. Footnote 1 referenced in Section 5 means the State of West Virginia.
2.1.5.b. Whenever used in this section, the words “the Regulatory Agency shall” shall be amended to read “the Regulatory Agency may.”
2.1.6. Section 6. The Examination of Milk and Milk Products;
2.1.6.a. In the fifth paragraph of Section 6, the word “shall” is amended to read “may”.
2.1.7. Section 7. Standards for Grade “A” Milk and/or Milk Products;
2.1.7.a. Footnote 1 referenced in Section 7 means the State of West Virginia.
2.1.7.b. In Item 8r. Water Supply, under "Administrative Procedures", numbered paragraph "8," the words, "samples shall be taken" shall be amended to read "samples may be taken".
2.1.7.c. In Item 12p. "Cleaning and Sanitizing of Containers and Equipment," under "Administrative Procedures," numbered paragraph "(2)(d)" the word "shall" is amended to read "may".
2.1.7.d. In Item 12p. "Cleaning and Sanitizing of Containers and Equipment," under "Administrative Procedures," in the "Note" immediately following "Table 2" the word "shall" is amended to read "may".
2.1.7.e. In Item 12p. "Cleaning and Sanitizing of Containers and Equipment," under "Administrative Procedures," numbered paragraph "(6)(c)" the word "shall" is amended to read "may".
2.1.7.f. Item 17p. "Cooling of Milk and/or Milk Products," under "Administrative Procedures," numbered paragraph "11" the words "shall be taken" are amended to read "may be taken".
2.1.7.g. The following is added to Section 7, item 10r. Utensils and Equipment - Cleaning: “Regardless of whether a milk storage/holding tank has had a partial removal of milk, the milk storage/holding tank shall be cleaned and sanitized when emptied and shall be emptied at least every seventy-two (72) hours. In the event of an emergency, such as inclement weather or natural disaster, etc., a variance may be permitted at the discretion of the Regulatory Agency.”
2.1.8. Section 8. Animal Health;
2.1.9. Section 9. Milk and Milk Products Which May Be Sold, except that the words “In the State of West Virginia” are substituted for the words “From and after twelve (12) months from the date on which this Ordinance is adopted”;
2.1.10. Section 10. Transferring; Delivery Containers; and Cooling;
2.1.11. Section 11. Milk and/or Milk Products From Points Beyond the Limits of Routine Inspection;
2.1.11.a. Footnote 1 referenced in Section 11 means The State of West Virginia.
2.1.12. Section 12. Plans for Construction and Reconstruction;
2.1.13. Section 13. Personnel Health;
2.1.14. Section 14. Procedure When Infection or High Risk of Infection Is Discovered;
2.1.15. Section 15. Enforcement;
2.1.16. Section 16. Penalty, which shall read as follows: “Any person who shall violate any of the provisions of this Ordinance may be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than $100.00 and/or such persons may be enjoined from continuing such violation(s). Each day upon which such a violation(s) occurs shall constitute a separate violation.”
2.1.17. Section 17 Repeal and Date of Effect;
2.1.18. Section 18 Separability Clause;
2.1.19. Footnotes;
2.1.20. Appendix A. Animal Disease Control;
2.1.21. Appendix B. Milk Sampling, Hauling and Transportation;
2.1.22. Appendix C. Dairy Farm Construction Standards and Milk Production;
2.1.23. Appendix D. Standards for Water Sources;
2.1.24. Appendix E. Examples of 3-Out-of-5 Compliance Enforcement Procedures;
2.1.25. Appendix F. Cleaning and Sanitization;
2.1.26. Appendix G. Chemical and Bacteriological Tests;
2.1.27. Appendix H. Continuous Flow Pasteurization Systems Equipment and Procedures) and Other Equipment;
2.1.28. Appendix I. Pasteurization Equipment and Controls-Tests;
2.1.29. Appendix J. Standards for the Fabrication of Single-Service Containers and Closures for Milk and/or Milk Products;
2.1.30. Appendix K. HACCP Program;
2.1.31. Appendix L. Applicable Regulations, Standards of Identity for Milk and Milk Products, the Federal Food, Drug, and Cosmetic Act, and the Federal Insecticide, Fungicide and Rodenticide Act;
2.1.32. Appendix M. Reports and Records
2.1.32.a. All forms in Appendix M may be used unless another is approved by the Regulatory Agency.
2.1.33. Appendix N. Drug Residue Testing and Farm Surveillance;
2.1.34. Appendix O. Vitamin Fortification of Fluid Milk Products;
2.1. 35. Appendix P. Performance-Based Dairy Farm Inspection System;
2.1.36. Appendix Q. RESERVED;
2.1.37. Appendix R. Determination of Time/Temperature Control for Safety Milk and/or Milk Products;
2.1.38. Appendix S. Aseptic Processing and Packaging Program, Retort Processed After Packaging Program and Fermented High-Acid, Shelf-Stable Processing and Packaging Program; and
2.1.39 Appendix T. Preventative Controls for Human Food Requirements for Grade “A” Milk and Milk Products.
2.2. The “Evaluation of Milk Laboratories,” 2023 Revision, as published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, and the National Conference on Interstate Milk Shipments, is incorporated in its entirety by reference, except that Definition 12 of “Regulatory Agency” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
2.3. The “Procedures Governing the Cooperative State-Public Health Service/Food and Drug Administration Program of the National Conference on Interstate Milk Shipments,” 2023 Revision, as published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, and the National Conference on Interstate Milk Shipments, is incorporated in its entirety by reference, except that Definition BB “Regulatory Agency” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
2.4. The “Methods of Making Sanitation Ratings of Milk Shippers and the Certifications/Listings of Single-Service Containers and Closures for Milk and/or Milk Products Manufacturers,” 2023 Revision, as published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, is incorporated in its entirety by reference, except that Definition 29 of “Regulatory Agency” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
W. Va. Code R. § 61-15-3 Clarification of interstate responsibilities
3.1. The Commissioner may enter into written agreements with the regulatory agencies of states neighboring West Virginia for the purpose of clarifying regulatory responsibilities when a facility falling under the scope of this rule operates concurrently in West Virginia and the neighboring state.
3.2. The Commissioner may enter into written agreements with the regulatory agencies of other states for the purpose performing some or all of the services required to be performed by this rule.
W. Va. Code R. § 61-15-4 Certification of industry dairy farm inspectors (CIDFI)
4.1. Any person who has proven to the satisfaction of the Commissioner to have sufficient education and experience to conduct dairy farm inspections and raw milk sampling may be certified as a Certified Industry Dairy Farm Inspector (CIDFI). All individuals to be certified shall submit paperwork for certification to WVDA. The individual to be certified shall have had experience in the field of milk sanitation and shall be an employee of a milk plant, a producer association (co-op), or an officially designated laboratory, or shall be employed on a consulting basis.
4.2. All individuals to be certified by the Commissioner must:
4.2.1. Understand and properly interpret the milk sanitation requirements as set forth in this rule;
4.2.2. Properly use the Dairy Farm Inspection Report form adopted by WVDA;
4.2.3. Adhere to the Dairy Farm Enforcement Procedures established by WVDA; and
4.2.4. Promptly report any and all conditions that require action by the Commissioner.
4.3. All Dairy Farm Inspection Reports as well as any spreadsheets and the receipt for the Grade A Dairy Farm Program Description comparing inspection results shall be maintained in the WVDA file for the individual CIDFI. In addition, observations made during the sampling evaluation will be reported on the most current Milk Sample Collector Evaluation Form. WVDA shall retain this form in the file for the CIDFI.
4.4. The certification of a CIDFI may be revoked by the Commissioner upon finding that he/she:
4.4.1. Is not in agreement with the Certifying Official at least eighty percent (80%) of the time on items of sanitation as demonstrated during field evaluation;
4.4.2. Fails to submit all farm inspection reports in a timely manner;
4.4.3. Commits errors and/or omissions when recording inspection violations; or
4.4.4. Fails to comply with established administrative procedures of the WVDA, including maintaining proper inspection frequency.
W. Va. Code R. § 61-15-5 Reciprocity of certification
5.1. A person who is a current CIDFI in another state and is responsible for dairy farms in West Virginia may be certified in West Virginia by reciprocity.
5.2. Each CIDFI shall submit all qualifications to the Commissioner for approval before completing inspections in West Virginia.
W. Va. Code R. § 61-15-6 Submission of inspections, reports, and records
6.1. Each individual, partnership, corporation, milk cooperative, company, firm, trustee, or association receiving raw milk for pasteurization shall furnish to WVDA a complete list of the names and addresses of all dairy farms in a format acceptable to WVDA. It is the responsibility of each CIDFI to advise WVDA of producer changes (e.g. out-of-business, changes in producer milk shipments, producer identification numbers).
6.2. All Dairy Farm Inspection Reports, as well as any spreadsheets, and the receipt for the Grade A Dairy Farm Program Description comparing inspection results shall be maintained in the WVDA file for the individual CIDFI. In addition, observations made during the sampling evaluation will be reported on the most current Milk Sample Collector Evaluation Form. WVDA shall retain this form in the file for the CIDFI.
W. Va. Code R. § 61-15-7 Farm inspection requirements for CIDFI
7.1. CIDFIs shall perform unannounced routine and follow-up sanitation inspections of dairy farms permitted by WVDA. Sanitation inspections of each Grade “A” producer (farm) shall be conducted at least once every 6 months. A copy of the report of each sanitation inspection shall be forwarded promptly to WVDA.
7.2. Inspections of dairy farms performed by CIDFIs do not preclude routine inspections or surveillance of individual dairy farms by WVDA. State regulatory inspections are intended to supplement and complement the CIDFI Program and do not substitute for industry inspections. In order to assure satisfactory USPH/FDA ratings, it is essential that industry maintain its 6-month inspection frequency.
7.3. All inspections for the issuance of a permit or reinstatement of a suspended or revoked permit shall be conducted under the supervision of WVDA. A copy of the report for each reinstatement or issuance of a permit shall be forwarded promptly to WVDA.
7.4. WVDA shall perform all enforcement actions.
W. Va. Code R. § 61-15-8 Seasonal milk producers
8.1. “Seasonal milk producer” means a milk producer that stops producing milk for 30 days or more and then starts producing milk again within 12 months, consistently.
8.2. A seasonal milk producer or his or her designated CIDFI shall notify WVDA prior to the first shipment of milk during the seasonal milk producer’s milking “season”.
8.3. The regulatory agency shall carry the seasonal milk producer’s milk quality sample history forward through the months where there is no production.
8.4. A seasonal milk producer shall notify WVDA of the beginning and end of production periods in order to allow for compliance checks.
W. Va. Code R. § 61-15-9 Official regulatory milk samples
9.1. After collection of all raw milk samples, the marketing organization will randomly select, from the samples collected by the milk hauler, one sample each month to be used by WVDA as the official regulatory sample for that month.
9.2. If more than one result is reported to WVDA during the month, the first taken/reported sample will be used as the official regulatory sample for that month. If multiple tanks are sampled on the same farm, on the same day, the results will be averaged.
9.3. The marketing organization is responsible for promptly notifying WVDA of any violative sample results for the monthly official regulatory sample within ten (10) days of being made aware of the existence of the violative sample.
9.4. If the integrity of a monthly sample is called into question, the CIDFI may request results be discarded. WVDA has the authority to approve this request. If an official sample is disregarded, an additional sample for that month must be collected.
9.5. WVDA shall send a Notice of Intent to Suspend Permit to a producer when at least two of the last four samples violate a standard (standard plate, somatic cell, or cooling temperature standards) Following such Notice, an additional sample shall be collected.
W. Va. Code R. § 61-15-10 West Virginia Dairy Advisory Board
10.1. The purpose of the West Virginia Dairy Advisory Board is to advise the Commissioner with respect to the status of the dairy industry in West Virginia, obstacles to manufacture, processing, and sale of milk and milk products, recommendations with respect to changes in statutes and regulation, changes in technology and processes utilized by the dairy industry, and other hindrances to growth of the industry in West Virginia.
10.2. The West Virginia Dairy Advisory Board shall consist of not less than seven (7) voting members who shall be appointed by and serve at the will and pleasure of the Commissioner. The Commissioner may appoint any non-voting members on the board as necessary.
10.3. The Commissioner shall designate one voting member to serve as chairman of the West Virginia Dairy Advisory Board.
10.4. An annual meeting of the West Virginia Dairy Advisory Board shall be held, and other meetings can be scheduled as needed.
10.5. All suggested changes, suggestions, or upcoming obstacles to the dairy law, rule, or any part of the dairy industry must be stated specifically and made known to the Commissioner.
Series 16 Inspection of Meat and Poultry
W. Va. Code R. § 61-16-1 General
1.1. Scope. -- This rule is established in order to implement the requirements of W. Va. Code §19-2B-1 et seq., “Inspection of Meat and Poultry”, and to maintain and administer an effective State-Federal Cooperative Meat and Poultry Inspection Program in the State of West Virginia by establishing requirements which equal those imposed by the applicable provisions of the Federal Meat Inspection Act (34 Stat. 1260) as amended by the Wholesome Meat Act (81 Stat. 584, 84 Stat. 438, 92 Stat. 1069, U.S.C., Sec. 601 et seq.), and the Poultry Products Inspection Act (71 Stat. 441), as amended by the Wholesome Poultry Products Act (82 Stat. 791; U.S.C. 451 et seq.). This rule establishes general operating procedures, requirements and standards in the West Virginia Department of Agriculture, Meat and Poultry Inspection Division.
1.2. Authority. -- W. Va. Code §19-2B-3.
1.3. Filing Date. -- May 6, 2025
1.4. Effective Date. -- May 6, 2025
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect August 1, 2031.
W. Va. Code R. § 61-16-2 Incorporation by Reference of Federal Meat and Poultry Inspection Regulations
The Mandatory Meat Inspection Regulations (9 CFR, Parts 301 et seq.) the Mandatory Poultry Products Inspection Regulations (9 CFR, Part 381) and Regulatory Requirements Under the Federal Meat Inspection Act and the Poultry Products Inspection Act (9 CFR, Parts 412, 416, 417, 418, 424, 430, 441 and 442) of the United States Department of Agriculture, promulgated in the Federal Register prior to January 1, 2024 are hereby adopted in their entirety with the exception of the deleted regulations specified in section 3 of this rule.
W. Va. Code R. § 61-16-3 Deleted Regulations
The following sections of the Federal regulations governing the mandatory meat inspection (9 CFR, Part 301 et seq.) and the mandatory poultry products inspection (9 CFR, Part 381) of the United States Department of Agriculture incorporated by reference under section 2 of this rule are deleted and are not rules of the West Virginia Department of Agriculture: 302.2; 303.1 (c); 304; 305.2 (b); 307.5; 307.6; 312; 316.12; 316.13 (c); 317.7; 317.9; 318.8; 321; 322; 327; 329.6; 329.7; 329.8; 329.9; 331; 335; 381.16; 381.17; 381.30; 381.31; 381.38; 381.39; 381.96, 381.98, 381.104 through 381.112; 381.123 (b)(1) and (4); 381.179; 381.185; 381.186; 381.195 through 381.236.
In 9CFR 381.10(a) (3) and (4) the words “and the statement ‘Exempt - P. L. 90-492’” are deleted.
In 9CFR 381.123(b) (2) the words “and accompanied by the prefix ‘P’” are deleted.
W. Va. Code R. § 61-16-4 Definitions
4.1. All terms defined in W. Va. Code §19-2B-2, are hereby incorporated in this rule.
4.2. Definitions in the incorporated parts of the Federal regulations on mandatory meat inspection (9 CFR, Part 301 et seq.) and mandatory poultry products inspection (9 CFR, Part 381) of the United States Department of Agriculture are amended to read as follows:
4.2.a. “The Act” means W. Va. Code §19-2B-1 et seq.
4.2.b. “The United States Department of Agriculture” and “Department” means the West Virginia Department of Agriculture. For brevity, the acronym WVDA for the West Virginia Department of Agriculture is used in this rule.
4.2.c. “Secretary” means the Commissioner of Agriculture.
4.2.d. “Administrator”, “Regional Director”, and “Area Supervisor” mean the Director, Meat and Poultry Inspection Division, WVDA.
4.2.e. “Federal Meat Inspection”, “Program”, “Federal Inspection”, “Federal Poultry Inspection”, “Meat and Poultry Inspection Program”, “Inspection Service”, “Standards and Labeling Division”, “Meat and Poultry Inspection”, “Technical Services”, and “Agency” mean the Meat and Poultry Inspection Division, WVDA.
4.2.f. “Federal” means State.
4.2.g. “Food Inspector”, “Inspection Service Employee”, “USDA Inspector”, “USDA Program Official”, and “Program Inspector” mean Inspector, Meat and Poultry Inspection Division, WVDA.
4.2.h. “Inspection Service Supervisor” means Circuit Supervisor, Meat and Poultry Inspection Division, WVDA.
4.2.i. “Veterinary Inspector” means Veterinary Supervisor, Meat and Poultry Inspection Division, WVDA.
4.2.j. “Food Safety and Inspection Service” means the Meat and Poultry Inspection Division, WVDA.
4.2.k. “USDA Inspection Legend” and “Official Inspection Legend” mean WVDA Inspection Legend.
4.2.l. “Federally Inspected and Passed”, “U.S. Inspected and Passed”, “U.S. Inspected for Wholesomeness”, and “Federally Inspected for Wholesomeness” mean WVDA Inspected and Passed.
4.2.m. “U.S. Passed for Cooking” means WVDA Passed for Cooking.
4.2.n. “U.S. Passed for Refrigeration” means WVDA Passed for Refrigeration.
4.2.o. “U.S. Inspected and Condemned” means WVDA Inspected and Condemned.
4.2.p. “U.S. Retained” or “U.S. Detained” means WVDA Retained.
4.2.q. “U.S. Rejected” means WVDA Rejected.
4.2.r. “U.S. Suspect” means WVDA Suspect.
4.2.s. “U.S. Condemned” means WVDA Condemned.
4.2.t. “U.S. Government Seals” means WVDA Seals.
4.3. Whenever an official form, certificate, or seal is designated by Federal regulations, the appropriate WVDA form, certificate, or seal shall be substituted.
W. Va. Code R. § 61-16-5 The United States Department of Agriculture’s Guidelines and Procedures Applicable to the West Virginia Department of Agriculture
The following publications prepared and approved by the United States Department of Agriculture are applicable to the West Virginia Department of Agriculture, as determined by the Commissioner of Agriculture:
5.1. “USDA/NCDA&CS Facility Guidelines for Meat Processing Plants,” Federal Register, 75 Fed. Reg. 45027 (August 25, 1997);
5.2. “Standards and Labeling Policy Book” issued by the USDA Food Safety Inspection Service dated August 2005; and
5.3. Food Safety and Inspection Service's Directives, Notices, and Bulletins.
W. Va. Code R. § 61-16-6 Licensing
6.1. Every commercial slaughterer, custom slaughterer, commercial processor, custom processor, or distributor shall obtain a license from the Commissioner.
6.1.a. An applicant for a license shall make application on an official form furnished by the Commissioner and shall complete the application to include all information requested. Only the applicant named in the application may conduct operations at the establishment for which the license is granted.
6.1.b. The licensee shall apply for a new license when ownership or the location of the business changes.
6.2. Each applicant for the license shall submit to the Director, Meat and Poultry Inspection Division; WVDA;
6.2.a. Three (3) sets of complete drawings containing a plot plan showing the limits of the establishment's premises, locations in outline of buildings on the premises, cardinal points of the compass, and roads and railroads serving the establishment; the floor plans of the establishment for which inspection is requested, showing the locations of principal pieces of equipment, floor drains, principal drainage lines, handwashing basins and hose connections for cleanup purposes; and a room schedule showing the finish of walls, floors, and ceilings of all rooms in the establishments;
6.2.b. Three (3) sets of specifications which shall include statements, describing water supply, plumbing, drainage, refrigeration, equipment, lighting, and operations to be performed at the establishment; and
6.2.c. A current certificate from the local or state health authority certifying the water potability at the establishment and approval of the sewage disposal system of the establishment.
W. Va. Code R. § 61-16-7 Official Inspection Marks and Devices
7.1. The inspection marks and devices, prescribed or referenced in this section are official marks and devices, for purposes of the W. Va. Code §19-2B-6 and shall be used in accordance with the provisions of this section and the United States Department of Agriculture regulations governing meat and poultry inspection as incorporated in this rule.
7.2. The inspection marks shall be affixed by the establishment under the oversight of the inspectors of the Meat and Poultry Inspection Division, WVDA.
7.3. Inspection legends on animal carcasses and parts of carcasses.
7.3.a. The inspection legend to identify WV inspected and passed animal carcasses, primal cuts, beef livers, beef tongues, beef hearts, and smoked meats not in casings and for application to materials that enclose carcasses or parts of carcasses, is as shown in this subdivision. The establishment number shall be placed in the inspection legend by the establishment where the three zeros appear. The size of the inspection legend shall be 1-7/8"x2".
7.3.b. The inspection legend may be proportionally reduced in size, provided it shall not be smaller than 7/8"x1", for application to the loins and ribs of pork, beef tails, and sausages in animal casings.
7.4. Inspection legends on labels.
7.4.a. The inspection legend required to be shown on all labels for inspected and passed products of cattle, sheep, swine, goats, and poultry shall be in the form as shown in subdivision 7.3.a of this rule, except that it need not be of the size illustrated, provided that it is of a sufficient size and of such color as to be conspicuously displayed and readily legible and the same proportions of letter size and boldness are maintained. The establishment number shall be placed in the inspection legend where the three zeros appear, and it may be preceded by the abbreviation "EST."
7.4.b. The inspection legend shall be applied on labels by mechanical means and shall not be applied by a hand stamp.
7.4.c. The inspection legend described in subdivision 7.3.a of this section may also be used on shipping containers, band labels, artificial casings, and other articles with the approval of the Director, Meat and Poultry Inspection Division, WVDA.
7.5. Any brand, stamp, label, or other device approved by the Director, Meat and Poultry Inspection Division, WVDA, and bearing any inspection legend presented in this section is an official device for purposes of the W. Va. Code §19-2B-6.
7.6. Custom stamps and devices to identify custom slaughtered animals or custom prepared product.
7.6.a. An establishment licensed for custom slaughter, custom processing operations, or both shall identify all custom carcasses, and carcass parts with:
7.6.a.1. A custom stamp as provided for in subdivision 7.6.b of this rule and a stamp with the words “NOT FOR SALE” in uppercase letters at least 3/8" in height applied to the animal carcass immediately after slaughter;
7.6.a.2. A stamp with the words “NOT FOR SALE” in uppercase letters at least 3/8" in height applied immediately upon receipt of a carcass or carcass parts which were slaughtered at a location other than the receiving licensed establishment;
7.6.a.3. A tag made from a material that is nontoxic and waterproof, that identifies the name of the owner or a number which identifies the owner of the meat, which must be placed on the carcass immediately after slaughter or on the carcass or carcass parts upon receipt. The tag may be omitted if the identification number is legibly applied directly on the meat or poultry by an approved marking pencil;
7.6.a.4. A stamp or legible printing or pressure sensitive tape with the words “NOT FOR SALE” in uppercase letters at least 3/8" in height on all custom wrapped or packaged meats or poultry immediately after final preparation. All custom meat or poultry must remain so identified while on the establishment's premises; and
7.6.a.5. A stamp, legible printing or pressure sensitive tape or tag attached with the words “NOT FOR SALE” in uppercase letters at least 3/8" in height on closed containers when utilized for packing unwrapped, wrapped, or packaged custom meats or poultry. All custom meat or poultry must remain so identified immediately after packing the containers and while on the establishment's premises.
7.6.b. The official custom stamp (brass faced) required to identify animal carcasses or parts of carcasses resulting from custom establishment slaughter is as shown in this subdivision. The size of the stamp shall be 2"X2" with uppercase letters 3/8" in height.
W. Va. Code R. § 61-16-8 Overtime and Holiday Inspection Service
8.1. The management of a licensed establishment shall reimburse WVDA for the cost of inspection service furnished on any holiday as specified in subsection 8.3 of this Section, or for providing inspection services for more than eight (8) hours on any day or more than forty (40) hours in any administrative workweek, Saturday through Friday.
8.2. When a licensed establishment requires an inspection service on a holiday or for more than eight (8) hours on any other day, it shall request the circuit supervisor to furnish inspection during that period. The request shall be made at least seven (7) days before the holiday and at least two (2) days in advance of planned overtime.
8.3. Holidays are those specified in W. Va. Code §2-2-1, as well as any other holidays declared by the Governor by executive order.
8.4. The Commissioner shall determine from time to time the rate for overtime and holiday services.
W. Va. Code R. § 61-16-9 Poultry Exemptions
9.1. A poultry producer who otherwise meets the requirements of the exemption for poultry producers that slaughter or process 20,000 or fewer birds per calendar year under the federal Poultry Products Inspection Act, 21 U. S. C. 464 (c) (3), may not keep a poultry flock of more than 3,000 birds at any one time.
61CSR16
61CSR16
W.VA.
CUSTOM
SLAUGHTERED
LIC.NO.00
Series 19 WV Manufacture Grade Milk
W. Va. Code R. § 61-19-1 General
Scope. – This legislative rule establishes operating rules and procedures for WV Dairy Farms and milk facilities that produce, process, transport, store, or distribute manufacture-grade milk or manufacture-grade milk products for human consumption that are not subject to the Grade A requirements.
Authority. – W. Va. Code §19-11E-8(2).
Filing Date. – May 7, 2025 Effective Date. – May 7, 2025 Sunset Date. – This rule shall expire and have no further force or effect August 1, 2034.
W. Va. Code R. § 61-19-2 Definitions
2.1. “Commissioner” means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent.
2.2. “Acceptable milk” means milk, or cream from the milk, which meets the requirements as to sight and odor, sediments, bacterial content, inhibitory substances, and which has been produced in compliance with the provisions set forth in this Rule.
2.3. “Barnyard” means an enclosed or unenclosed area adjacent to the milking barn which may include housing areas and feedlots in which the animals may congregate.
2.4. “Butter” means the food product that is made exclusively from milk or cream, or both, with or without salt, and with or without additional coloring matter, and that contains not less than 80 percent by weight of milk fat.
2.5. “Cheese” or “cheese related product” means the fresh or matured product that is obtained by draining after coagulation of milk, cream, skimmed or partly skimmed milk, or a combination of some or all of these products, and meets the standards of identity in 21 CFR Part 133.
2.6. “CIP” or “cleaned-in-place” means the procedure by which sanitary pipelines or pieces of dairy equipment are mechanically cleaned in place by circulation of wash, rinse, and sanitizer solutions.
2.7. “Dairy farm” or “farm” means a place or premises where one or more milking animals are kept, a part or all of the milk produced on the farm being used in the production of milk or dairy products by the incorporation of approved methods.
2.8. “Inspection” means the inspection of the dairy farm premises, buildings, animals, equipment, utensils, water supply, and facilities and procedures used in the production of milk and/or dairy products in solely in the state of West Virginia including Certified Industry Inspections.
2.9. “Inspector” means a qualified, trained person employed by the West Virginia Department of Agriculture or any person designated by the Commissioner to inspect dairy farms and processing facilities including a Certified Industry Dairy Farm Inspector (CIDFI).
2.10. “Inhibitory Substances” means antibiotics and pesticides not registered for use on lactating dairy animals, and other substances as determined by the Commissioner.
2.11. “Milk” means the normal lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy hooved lactating mammals. Hooved mammals’ milk is the normal lacteal secretion, practically free of colostrum, obtained by the complete milking of one (1) or more healthy hooved mammals. Hooved mammals for the purpose of this rule, include but are not limited to, the members of the Order Cetartiodactyla, such as: Family Bovidae (cattle, water buffalo, sheep, goats, yaks, etc.), Family Camelidae (llamas, alpacas, camels, etc.), Family Cervidae (deer, reindeer, moose, etc.), and Family Equidae (horses, donkeys, etc.). Milk product shall be produced according to the sanitary standards of this rule.
2.12. “Manufacture-Grade Milk” means the milk of a hooved mammal that is produced, processed, pasteurized, packaged, or prepared for human consumption in accordance with the standards set forth in this rule, is not subject to Grade A standards and is not used for fluid milk sales. “Provided, That any raw milk for direct sale to a consumer as authorized by West Virginia Code §19-1-7 and as defined in CSR §61-41-2.4 is expressly exempted from this definition and shall further be exempt from the provisions of 61 CSR §19-1 et seq.”
2.13. “Manufacture-Grade Milk Product” means: butter; cheese, natural or processed; condensed skim milk, plain or sweetened; condensed whole milk; cream; dry buttermilk; dry whey; dry whole milk; evaporated milk, whole or skim; nonfat dry milk; or any other product made with manufacture-grade milk that is regulated by the Commissioner. “Provided, That any raw milk product for direct sale to a consumer as authorized by West Virginia §19-1-7 and as defined in CSR §61-41-2.5 is expressly exempted from this definition and shall further be exempt from the provisions of 61 CSR §19-1 et seq.”
2.14. “Manufacture Milk Plant” means a place, including a governmental operation, where manufacture-grade milk or a manufacture-grade milk product is collected, handled, controlled, manufactured, processed, stored, pasteurized, ultra-pasteurized, repasteurized, commercially sterilized, aseptically processed, bottled, or prepared for distribution, but does not include a place where a manufactured milk product is purchased in packaged form and is stored and handled for the sole purpose of sale to the ultimate consumer.
2.15. “Manufacture Milk Processor” means any person who operates or controls a manufacture milk plant, transfer station, receiving station, or milk transport cleaning facility that is located in this state or from which manufacture-grade milk or manufacture-grade milk products are sold or offered for sale for human consumption, as applicable in the state of West Virginia.
2.16. “Milkhouse” or “milkroom” means a room at the facility for handling and cooling milk and for washing and storing milking equipment and utensils.
2.17. “Pasteurization”, “pasteurized”, or similar terms means the process of heating every particle of milk or milk product, in properly designed and operated equipment, to one (1) of the temperatures given in this rule.
2.18. “Person” means any individual, firm, co-partnership, corporation, cooperative association, cooperative corporation or unincorporated association.
2.19. “Producer” means the person or persons who exercise control over the production of milk on a West Virginia dairy farm, where the milk or the cream from the milk is used to manufacture fluid milk or dairy products.
2.20. “Sanitize” or “sanitization” means the application of any effective method or substance to properly cleaned surfaces for the destruction of pathogens, and other microorganisms, as far as is practicable. Such method or substance shall not adversely affect the equipment, the milk and/or milk product, or the health of consumers, and shall be acceptable to the commissioner.
2.21. “Milk Products” means all milk and milk products with a standard of identity provided for in 21 CFR Part 131, excluding 21 CFR 131.120 Sweetened Condensed Milk, cottage cheese and dry curd cottage cheese, whey and whey products, modified versions of all the preceding products, modified versions of milk products packaged in combination with food(s) not yet included in this definition that are appropriately labeled with a statement of identity to describe the food(s) in final packaged form, e.g., “cottage cheese with pineapple” and “fat free milk with plant sterols”, and all other products deemed a dairy product by the commissioner.
2.22. "PMO" means the grade A pasteurized milk ordinance as adopted in 61CSR15 of the West Virginia Administrative Law.
W. Va. Code R. § 61-19-3 Minimum quality standards
3.1. No person may produce, provide, manufacture, sell, offer for sale, or store in the State of West Virginia, or bring, send, or receive into the State of West Virginia any milk for manufacturing purposes or dairy products which do not comply with the following standards:
3.1.1. The milk shall be free from visible foreign matter. It shall not be curdled, ropy, bloody, or mastitic as indicated by sight or odor. It shall be free from feed odors or other objectionable odors;
3.1.2. Milk for manufacturing purposes and dairy products shall be produced and processed to conform with the chemical, bacteriological, somatic cell, maximum length of time for milk storage on the farm, and temperature standards as identified in this section, and with the requirements set forth in this rule;
3.1.3. The temperature of milk for manufacturing purposes shall be cooled to one of the following:
3.1.3.a. In the case of manufacture-grade milk that is stored in a bulk tank on a producer’s farm, cool the milk to and store it at a temperature of fifty degrees Fahrenheit (ten degrees Celsius) or lower within two hours after completion of the milking.
3.1.3.b. In the case of manufacture-grade milk that is stored in cans on a producer's farm, cool the milk to and store it at a temperature of sixty degrees Fahrenheit (sixteen degrees Celsius) or lower within two hours after completion of the milking. Manufacture-grade milk stored in accordance with this paragraph shall be used exclusively in the manufacture of cheese.
3.1.3.c. This rule does not apply to raw milk that is delivered to a manufacture milk plant not later than two hours after completion of milking.
3.1.4. The bacteria count of milk for manufacturing purposes shall not exceed 500,000 bacteria per milliliter prior to commingling with any other milk, and the bacteria count of milk that is commingled shall not exceed 1,000,000 bacteria per milliliter prior to pasteurization.
3.1.4.a. Milk shipped from the farm in cans shall not have a raw milk bacteria count of more than one million bacteria per mL.
3.2. Milk for manufacturing purposes shall freeze at or below -0.530° Hortvet.
3.2.1. Milk for manufacturing purposes shall test negative for animal drug residues by any method evaluated by the FDA and found acceptable for detecting drug residues in raw milk at current safe or tolerance levels.
3.2.2. The somatic cell count of unpasteurized cow's milk, sheep's milk, water buffalo's milk, or the milk from other mammals intended for human consumption, except goat's milk, shall not exceed 750,000 somatic cells per milliliter. The somatic cell count of raw goat's milk shall not exceed 1,000,000 somatic cells per milliliter.
3.3. Milk should not have more than 1.5 mg of sediment as determined by the Standard Methods for the Examination of Dairy Products.
3.4. No inhibitory substances are permitted in milk.
3.5. The maximum length of time any milk for manufacturing purposes may be stored on the farm prior to processing or pickup for delivery to a processing plant shall not exceed 72 hours from the end of the first milking to the time of pickup or the start of processing. Milk for manufacturing purposes that is older than 72 hours shall be deemed to be a public health hazard and shall not be offered for sale or sold.
W. Va. Code R. § 61-19-4 Minimum testing requirements
4.1. During at least four separate months within any consecutive six-month period, each dairy plant or co-operative association shall collect and submit producer raw milk samples to a laboratory for examination to determine the somatic cell count of the samples. Samples shall be representative of all raw milk shipped from bulk tanks and received in cans.
4.2. During at least four separate months within any consecutive six-month period, each dairy plant or co-operative association shall collect and submit individual producer raw milk samples to a laboratory for examination to determine the bacterial count of the samples. Samples shall be representative of all raw milk shipped from bulk tanks and all raw milk received in cans.
4.3. Samples shall be analyzed at an approved official or officially designated laboratory. All sampling procedures and required laboratory examinations shall be in substantial compliance with the rules set by the commissioner.
4.4. Concurrent with all test results made to a producer regarding bacteria counts, sediment, or inhibited substances, the laboratory and/or dairy plant shall send a copy of the results to the designated representative of the Commissioner.
W. Va. Code R. § 61-19-5 Bacterial count
5.1. Whenever the producer's raw milk bacteria count exceeds the standard as stated in Section 3 of this rule, the producer shall be notified of the excessive bacteria count.
5.2. Whenever at least two of the last four bacteria counts exceed the bacteria standard as stated in Section 3 of this rule, the Commissioner shall send a written warning notice to the producer. The notice shall be in effect so long as two of the last four consecutive samples exceed the bacterial standard.
5.2.1. An additional sample shall be taken no sooner than three days and no later than twenty-one days after sending of the warning notice required in subsection 5.2. of this rule. If this sample also exceeds the bacteria standard as established in Section 3 of this rule, the producer’s permit shall be suspended until satisfactory compliance is obtained. Shipment may be resumed, and the producer’s permit reinstated by the Commissioner when an additional sample of the producer’s raw milk is tested and found satisfactory. The producer’s permit shall remain in a warning status as long as two of the last four bacteria counts exceed the standard. The Commissioner shall suspend the producer’s permit immediately for at least seven days, whenever three of the last five bacteria counts within any twelve-month period exceed the standard.
5.2.2. The Commissioner shall issue a temporary permit after determining by an inspection of the facilities and the operating methods that the conditions responsible for the violation have been corrected.
5.2.2.a. Samples shall be taken at the rate of not more than (2) per week on separate days within a 3-week period.
5.2.2.b. The Commissioner shall reinstate the permit upon compliance with the standards set forth in this rule.
W. Va. Code R. § 61-19-6 Inhibitory substances
6.1. If milk from a dairy farm containing an inhibitory substance, the producer shall not use any more milk produced by such farm for at least two days following the test to ship or manufacture milk products. The producer shall not use any more milk until the production from the farm has been found to be free of inhibitory substances. The two-day exclusionary provisions cited shall be increased to three days for a repeat violation within six months and shall be increased to four days for subsequent violations within that period.
W. Va. Code R. § 61-19-7 Abnormal milk
7.1. A producer shall not use milk for manufacturing milk which is found to be abnormal by sight or odor, which is from animals that show evidence of the secretion of abnormal milk in one or more quarters, or which is from animals that have consumed chemical, medicinal, or radioactive agents that may be secreted in the milk. Equipment, containers, and utensils used to handle abnormal milk shall be cleaned and sanitized by the producer before they are used for milk for manufacturing purposes. The equipment shall meet the construction requirements set forth in this rule. Milk from animals treated with or exposed to pesticides not approved for use on dairy animals by the United States Environmental Protection Agency shall not be used for manufacturing purposes until the milk has been tested and found acceptable by the Commissioner.
7.2. When a confirmatory test on a routine sample indicates a somatic cell count above 750,000 cells per milliliter except for goat milk, which is above 1,000,000 cells per milliliter; the Commissioner shall send written notification of the unsatisfactory cell count to the producer.
7.3. When two out of the last four routine samples have a somatic cell count above 750,000 cells per milliliter, except for goat milk, which is above 1,000,000 cells per milliliter, the Commissioner shall send a written notice of the counts to the producer and a representative of the Commissioner shall contact the producer to endeavor to determine and eliminate the source of the violative cell count. The notice shall be in effect so long as two of the last four consecutive samples exceed the somatic cell standard.
7.3.1. An additional sample shall be taken no sooner than three days and no later than twenty-one days after sending of the warning notice. If this sample also exceeds the somatic cell standard, the producer’s permit shall be suspended until satisfactory compliance is obtained. Shipment may be resumed, and the producer’s permit reinstated by the Commissioner when an additional sample of the producer’s raw milk is tested and found satisfactory. The producer’s permit shall remain in a warning status as long as two of the last four somatic cell counts exceed the standard.
7.3.1.a. The Commissioner shall suspend the producer’s permit immediately for at least one day whenever three of the last five somatic cell counts within any twelve-month period exceed the standard.
7.3.1.b. The Commissioner shall issue a temporary permit whenever resampling of the herd’s milk supply indicates the milk supply to be within acceptable limits as set forth in this rule.
7.3.1.b.1. Samples shall be taken at the rate of not more than two (2) per week on separate days within a 3-week period.
7.3.1.b.2. The Commissioner shall reinstate the permit upon compliance with the standards set forth in this rule.
W. Va. Code R. § 61-19-8 Drug residue level
8.1. Dairy plant responsibilities.
8.1.1. Sampling and testing program.
8.1.1.a. All raw milk shipped for processing or intended to be processed on the farm where it was produced shall be sampled and tested, prior to processing, and all individual producer raw milk samples submitted to an approved laboratory for examination to determine bacteria and somatic cell counts shall also be tested for beta lactam drug residue. Collecting, handling and testing of samples shall be done according to procedures approved by the Commissioner, and the laboratory results shall be transmitted to the department as requested by the Commissioner.
8.1.1.b. When so specified by the Commissioner, all raw milk shipped for processing, or intended to be processed on the farm where such raw milk was produced, shall be sampled and tested, prior to processing, and all individual producer raw milk samples submitted to an approved laboratory for examination to determine bacteria and somatic cell counts shall also be tested for other drug residues. Collecting, handling and testing of samples shall be done according to procedures approved by the Commissioner, and the laboratory results shall be transmitted to the department as requested by the Commissioner.
8.1.1.c. When the Commissioner determines that a potential problem exists with an animal drug residue or other contaminant in the milk supply, additional sampling and additional testing shall be conducted, as ordered by the Commissioner. The testing shall continue until such time that the Commissioner determines with reasonable assurance that the potential problem has been remedied.
8.1.1.d. The dairy plant shall analyze samples for beta lactams and other drug residues by any method evaluated by the FDA and found acceptable for detecting drug residues in raw milk at current safe or tolerance levels. The dairy plant may employ on a temporary basis other test methods determined to demonstrate accurate compliance results. These test methods may be used until they are evaluated by the FDA and accepted or rejected by the Commissioner.
8.1.2. Individual producer sampling.
8.1.2.a. For bulk milk, a milk sample for beta lactam drug residue testing shall be taken at each farm and shall include milk from each farm bulk tank.
8.1.2.b. For can milk, a milk sample for beta lactam drug residue testing shall be formed separately at the receiving plant for each can milk producer included in a delivery, and shall be representative of all milk received from the producer.
8.1.2.c. For producer/processor, a milk sample for beta lactam drug residue testing shall be formed separately according to subdivisions 8.1.2.a. and 8.1.2.b. of this rule for milk produced or received by a producer/processor.
8.1.3. Load sampling and testing.
8.1.3.a. For bulk milk, a load sample shall be taken from the bulk milk pickup tanker after its arrival at the plant and prior to further commingling.
8.1.3.b. For can milk, a load sample representing all of the milk received on a shipment shall be formed at the plant, using a sampling procedure that includes milk from every can on the vehicle.
8.1.3.c. For producer/processor, a load sample shall be formed at the plant using a sampling procedure that includes all milk produced and received.
8.1.4. Sample and record retention. A load sample that tests positive for drug residue shall be retained according to guidelines established by the appropriate state regulatory agency. The records of all sample test results shall be retained for a period of not less than twelve months.
8.1.5. Dairy plant follow-up.
8.1.5.a. When a load sample tests positive for drug residue, dairy plant personnel shall notify the Commissioner immediately, in accordance with state policy, of the positive test result and of the intended disposition of the shipment of milk containing the drug residue. All milk testing positive for drug residue shall be disposed of in a manner that removes it from the human or animal food chain, except when acceptably reconditioned under United States food and drug administration compliance policy guidelines.
8.1.5.b. Each individual producer sample represented in the positive-testing load sample shall be individually tested in a laboratory approved by the Commissioner to determine the producer of the milk sample testing positive for drug residue. Identification of the producer responsible for producing the milk testing positive for drug residue, and details of the final disposition of the shipment of milk containing the drug residue, shall be reported immediately to the Commissioner, according to state policy.
8.1.5.c. Milk shipment from the producer identified as the source of milk testing positive for drug residue shall cease immediately and may resume only after a sample from a subsequent milking does not test positive for drug residue.
8.2. Regulatory agency responsibilities.
8.2.1. Monitoring and surveillance. The Commissioner shall monitor the milk industry's drug residue program by conducting unannounced on-site inspections to observe testing and sampling procedures and to collect samples for comparison drug residue testing. In addition, the Commissioner shall review industry records for compliance with state policy. The review shall seek to determine that:
8.2.1.a. Each producer is included in an effective routine drug residue milk monitoring program utilizing the official methods and federal drug administration approved methods to test samples for the presence of drug residue;
8.2.1.b. The Commissioner receives prompt notification from industry personnel of each occurrence of a sample testing positive for drug residue, and of the identity of each producer identified as a source of milk testing positive for drug residue;
8.2.1.c. The Commissioner receives prompt notification from industry personnel of the intended and final disposition of milk testing positive for drug residue, and that disposal of the load is conducted in a manner that removes it from the human or animal food chain, except when acceptably reconditioned under federal drug administration compliance policy guidelines; and
8.2.1.d. Milk shipment from a producer identified as a source of milk testing positive for drug residue completely and immediately ceases until a milk sample taken from the dairy herd does not test positive for drug residue.
8.2.2. Enforcement.
8.2.2.a. The Commissioner may deny, suspend or revoke the producer's permit for violation of this rule.
8.2.2.b. When there is a positive drug residue test, the Commissioner shall send a written notice of the positive result to the producer and a representative of the Commissioner shall contact the producer to endeavor to determine and eliminate the source of the positive drug residue test.
8.2.2.c. If a producer ships milk testing positive for drug residue three (3) times within a twelve-month period, the Commissioner may revoke the producer's permit.
W. Va. Code R. § 61-19-9 Adulteration
9.1. Milk is considered to be adulterated if it contains any poisonous or deleterious substances, does not meet the quality standards set forth in this Rule, has been produced, processed, or held under unsanitary conditions, contains added water, or contains bacteria in excess of the standards set forth in this rule.
9.2. The producer shall not use milk if it is adulterated.
W. Va. Code R. § 61-19-10 Milking facility and housing
10.1. The milking barn, stable, or parlor shall be of a size and arrangement that will promote a sanitary milking operation. It shall be provided with natural or artificial light, well distributed for day or night milking and have sufficient air space and air circulation to prevent condensate and excessive odors. The floors and gutters shall be in good repair and constructed of concrete or other impervious material. Concentrates and feed, when stored in the milking facility, shall be kept in a tightly covered box or bin. The facility shall be kept clean, the manure removed daily, and no swine or fowl shall be permitted in any part of the milking facility. The milking barn or parlor construction must be approved by the commissioner before milking can begin.
10.2. If milk is exposed in the milking facility, it shall be protected in a manner that prevents any contamination of the milk, equipment, containers, or utensils. No milk shall be strained, poured, transferred, or stored unless it is properly protected from contamination.
10.3. Milk stools, surcingles and antikickers shall be kept clean and stored off the floor.
10.4. The cowyard, housing area or loafing area shall be of ample size to prevent overcrowding, shall be kept clean and drained to prevent forming of standing water pools, insofar as practicable. The dairy animals shall be prevented from having any access to stored or accumulated manure.
W. Va. Code R. § 61-19-11 Milking barn or parlor cleanliness
11.1. The interior of the milking barn or parlor facilities shall be kept clean.
11.2. The bedding material, if used, shall not contain more manure than that which has accumulated since the previous milking.
11.3. The gutter shall be kept reasonably clean, with manure removed daily.
11.4. All pens and stalls, if not separated from the milking barn or parlor, shall be kept clean.
W. Va. Code R. § 61-19-12 Milkhouse construction and facilities
12.1. A milkhouse or milkroom shall be provided and be conveniently located and properly constructed, lighted, and ventilated for handling and cooling milk and for washing, handling, and storing the equipment and utensils. Other products which would be likely to contaminate milk, or otherwise create a public health hazard, shall not be handled in the milkhouse.
12.2. The milkhouse or milk room should meet the following requirements:
12.2.1. The milkhouse or milkroom that is a part of the barn or other building shall be partitioned and sealed to prevent the entrance of dust, flies, or other contamination. The floor of the milkhouse or milkroom shall be of concrete or other impervious material and graded to drain so that there are no pools of standing water. The walls and ceilings shall be constructed of smooth easily cleaned material. All newly constructed milkhouses shall have walls and ceilings constructed of smooth material kept in good repair and well painted with a light-colored washable paint or finished in an equally suitable manner. All outside doors shall open outward and be self-closing, unless they are provided with tight-fitting, self-closing, screen doors that open outward or unless other effective means are provided to prevent the entrance of flies or insects. A direct opening between the milkhouse or milkroom and the milking barn, stable, or parlor is permitted when the opening has a tight fitting, self-closing, solid door. The milkhouse or milkroom shall have sufficient air space and air circulation to prevent condensate and excessive odors. It shall be provided with natural or artificial light well distributed for day or night milkhouse activities.
12.2.2. The milkhouse or milkroom shall be equipped with a two-compartment wash vat, utensil rack, milk cooling facilities and have an adequate supply of hot water available for cleaning milking equipment. If a farm bulk milk tank is used, it shall be situated in the milkhouse or milkroom to allow access to all areas of the milkhouse or milkroom and to the exterior of the bulk milk tank for cleaning and servicing. The farm bulk milk tank shall not be located over a floor drain or under a ventilator.
12.2.3. Concentrates and feed, if stored in the building, shall be kept in a tightly covered box or bin.
12.2.4. The liquid wastes shall be disposed of in a sanitary manner. All floor drains shall be accessible and shall be trapped if connected to a sanitary sewer.
12.2.5. Vents and light fixtures shall be installed in a manner to prevent the contamination of milk and clean utensils.
12.2.6. The milkhouse structure, equipment, and other milkhouse facilities used in its operation shall be kept clean at all times and be free of trash, animals and fowl.
12.2.7. Pesticides or unapproved antibiotics shall not be stored in this room and when they are used, they shall be used in accordance with label instructions so as to prevent contamination of the milk.
W. Va. Code R. § 61-19-13 Milking utensils and equipment
13.1. Construction of utensils and equipment shall meet the following requirements:
13.1.1. All multiuse utensils, equipment, and containers which are exposed to milk or milk products shall be made of smooth, impervious, nonabsorbent, safe materials of the following types:
13.1.1.a. Stainless steel of the AISI (American Iron and Steel Institute) 300 series;
13.1.1.b. Equally corrosion resistant nontoxic metal;
13.1.1.c. Heat resistant glass; or
13.1.1.d. Plastic or rubber and rubber like materials which are relatively inert, resistant to scratching, scoring, decomposition crazing, chipping, and distortion under normal use conditions. The materials shall be nontoxic, fat resistant, relatively nonabsorbent, relatively insoluble, and may not release component chemicals or impart flavor or odor to the product. The materials shall maintain their original properties under repeated use conditions.
13.1.2. Single-service articles shall be manufactured, packaged, transported, and handled in a sanitary manner.
13.1.3. Articles intended for single-service use shall not be reused.
13.1.4. All containers, equipment, and utensils shall be free of breaks and corrosion.
13.1.5. All joints in the containers, equipment, and utensils shall be smooth and free from pits, cracks, and inclusions.
13.1.6. Strainers shall be of perforated metal design or constructed to utilize single-service strainer media.
13.1.7. All milking machines, including heads, milk claws, milk tubing, and other milk contact surfaces, shall be easily cleaned and inspected.
13.2. Utensils and equipment shall meet the following cleanliness requirements:
13.2.1. The contact surfaces of all multiuse containers, equipment, and utensils used in the handling, storage, or transportation of milk or milk products shall be cleaned after each use.
13.2.2. The contact surfaces of all multiuse containers, equipment, and utensils shall be sanitized immediately prior to use for the handling, storage, or transportation of milk or milk products.
13.3. Utensils and equipment shall be stored in the following manner:
13.3.1. All milk containers, utensils, and equipment, including milking machine vacuum hoses, shall be stored in a sanitizing solution or on racks until used.
13.3.2. All milk containers, utensils and equipment shall be stored in a clean and properly ventilated area.
13.3.3. Equipment shall be stored to drain completely.
13.3.4. Strainer pads, gaskets, and similar single-service articles shall be stored in a suitable container or cabinet and protected against contamination.
13.4. Utensils and equipment handling shall meet the following requirements:
13.4.1. After sanitation, all containers, utensils and equipment shall be handled in such a manner as to prevent contamination of any product contact surface.
13.4.2. Sanitized product contact surfaces shall be protected against contact with unsanitized equipment and utensils, hands, clothing, splash, condensation, and other sources of contamination.
13.4.3. Any sanitized product contact surface, which has been exposed to contamination, shall be cleaned and sanitized again prior to being used.
W. Va. Code R. § 61-19-14 Milking procedure
14.1. The milk producer shall ensure that milking is done only in an approved milking barn or parlor.
14.2. The animals’ hair on flanks, bellies, tails, and udders shall be shortened as often as necessary to facilitate cleaning of those areas and shall be free from dirt. The hair on the udders shall be of such length that it is not incorporated with the teat in the inflation during milking, or as to adulterate the milk in any manner.
14.3. Udders and teats of all milking animals shall be cleaned and dry before milking. The animals’ teats shall be treated with a sanitizing solution and shall be dry just prior to milking; and
14.4. Wet hand milking is prohibited.
W. Va. Code R. § 61-19-15 Protection from contamination
15.1. Equipment and operations shall be located within the milking barn and milkhouse to prevent overcrowding and contamination of cleaned and sanitized containers, equipment, and utensils by splash, condensation, or manual contact.
15.2. All milk which has overflowed, leaked, spilled, or been improperly handled shall be discarded.
15.3. All product contact surfaces of containers, equipment, and utensils shall be covered or otherwise protected to prevent the access of insects, dust, condensation, and other contamination.
15.4. When milk is poured or strained in the milking barn, the receiving receptacle shall be raised above the floor (as on a dolly or cart) or placed at a distance from the animals to protect it from manure or splash. The receptacle shall have a tight-fitting cover which shall be closed except when milk is being poured.
15.5. Each pail or container of milk shall be transferred immediately from the milking barn to the refrigerated storage facility.
15.6. Pails, cans, and other equipment containing milk shall be properly covered during transfer and storage.
15.7. Antibiotics and medicines shall be stored in such a manner that they cannot contaminate the milk or milk product contact surfaces of the equipment, containers, or utensils.
W. Va. Code R. § 61-19-16 Hand washing facilities
16.1. Hand washing facilities shall be located convenient to the milking barn, parlor, or flush toilet.
16.2. Hand washing facilities shall include soap or detergent, water, and single use towels.
16.3. Hand washing facilities shall be kept in good repair, clean, and shall not be used for storage.
W. Va. Code R. § 61-19-17 Cleanliness and health
17.1. Hands shall be washed clean and dried with a sanitary towel immediately before milking, before performing any milkhouse function, and immediately after the interruption of any of these activities.
17.2. Any person milking an animal shall wear clean outer garments while milking or handling milk, milk products, milk containers, equipment or utensils.
17.3. No person affected with any disease in a communicable form, or while a carrier of such disease, shall work at any dairy farm or milk products facility in any capacity which brings him or her into contact with the production, handling, storage, or transportation of milk or milk products, containers, equipment, or utensils. No dairy farm operator or milk products producer shall employ in any capacity any person having or suspected of having a disease in a communicable form or being a carrier of such disease. Any producer who suspects that any employee or family member has contracted any disease in a communicable form, or has become a carrier of the disease, shall notify the Commissioner immediately.
17.4. When reasonable cause exists to suspect the possibility of transmission of infection from any person handling milk or milk products, the Commissioner may require any or all of the following measures:
17.4.1. The immediate exclusion of the affected person from milk or milk products handling;
17.4.2. The immediate exclusion of the milk or cheese supply concerned from distribution and use; and/or
17.4.3. Adequate medical and bacteriological examination of the person, and of his or her associates.
W. Va. Code R. § 61-19-18 Insect and rodent control
18.1. Effective measures shall be taken to prevent the contamination of milk and milk products, containers, equipment, and utensils by insects or rodents, and by chemicals used to control the vermin.
18.2. Manure packs in loafing areas, stables without stanchions, pen stables, resting barns, wandering sheds and free stall housing shall be properly bedded and managed to prevent fly breeding.
18.3. Milkhouses and all buildings shall be kept free of insects and rodents.
18.4. Milkhouses and all buildings shall be effectively protected against the entrance of vermin.
18.5. Insecticides not approved for use in a milkhouse or dairy facility shall not be stored in such facilities.
18.6. Only insecticides and rodenticides approved for use by the Commissioner and registered with the United States Environmental Protection Agency shall be used for insect and rodent control.
18.7. Insecticides and rodenticides shall be used only in accordance with the manufacturers label directions so as to prevent the contamination of milk and milk products, containers, equipment, utensils, feed and water.
W. Va. Code R. § 61-19-19 Farm inspection
19.1. Each dairy farm that produces manufacture-grade milk or manufacture-grade milk products that are intended for consumption shall be inspected an inspector prior to issuance of a permit.
19.2. Each dairy farm will be inspected by an inspector at least once every six (6) months.
19.2.1. The inspector will use dairy farm inspection forms that are prescribed and furnished by the Commissioner.
19.2.2. The inspector will leave a copy of the inspection form with the producer, keep one copy for his/her records and file a copy with the Commissioner in a timely fashion.
19.2.3. Should a violation of any requirements set forth in this rule be found to exist during an inspection, a second inspection may be required after the time deemed necessary to remedy the violation. Such second inspection may be used to determine compliance with requirements of this rule.
19.2.4. Any violation of the same requirement, marked as a repeat violation, may call for permit suspension. Permit suspension is at the discretion of the Commissioner.
W. Va. Code R. § 61-19-20 Animal health
20.1. All animals in the herd shall be maintained in a healthy condition.
20.2. All animals’ milk for processing milk or milk products shall be from herds under a brucellosis eradication program which meets one of the following conditions, or eradication program for animals’ health:
20.2.1. The herd is located in a Certified Brucellosis-Free Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
20.2.2. The herd is located in a Modified Certified Brucellosis Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
20.2.3. The herd meets United States Department of Agriculture requirements for an individually certified herd;
20.2.4. The herd is participating in a milk ring testing program which is conducted on a continuing basis at intervals of not less than every three (3) months or more than every six (6) months with individual blood tests on all animals in herds showing suspicious reactions to the milk ring test; or
20.2.5. The herd has an individual blood agglutination test annually with an allowable maximum grace period not exceeding two (2) months.
20.3. All animals’ milk for manufacturing milk products shall be from herds which are located in a Modified Accredited Tuberculosis Area as determined by the United States Department of Agriculture. A Modified Accredited Tuberculosis Area requires all dairy herds to be tested every six (6) years with an allowable maximum grace period of two (2) months. Herds located in an area that fails to maintain accredited status shall be accredited by the United States Department of Agriculture as tuberculosis free or shall pass an annual tuberculosis test.
20.4. For diseases other than brucellosis and tuberculosis the Commissioner may require any physical, bacteriological, or chemical tests he or she determines necessary. The diagnosis of other diseases in dairy animals shall be based upon the findings of a licensed veterinarian or a veterinarian in the employ of the Commissioner. Any producer owning a diseased animal disclosed by the test shall dispose of the animal as the Commissioner directs.
20.5. Regardless of location or other herd status, a milk producer whose herd:
20.5.1. Has a suspicious milk ring test result shall have the entire herd blood tested within thirty days after the date of the laboratory test.
20.5.2. Is identified as the origin of a brucellosis reactor animal shall have the entire herd blood tested within thirty days after the laboratory tests, unless the test requirement has been waived by an epidemiological investigation conducted by the director.
20.5.3. Is identified as the origin of a tuberculosis reactor or suspect, shall follow all statutes, rules, and recommendations of the Commissioner concerning the testing and disposition of animals in the herd.
W. Va. Code R. § 61-19-21 Farm exclusion
21.1. No farm shall process milk or milk products using raw milk from a dairy farm that is not in compliance with the provisions of this rule.
21.2. In the event of noncompliance with this rule or in the event of a refusal by a producer to allow an inspection of the dairy farm by an inspector of the West Virginia Department of Agriculture or designee, the milk from the dairy farm shall not be used to process milk or milk products until such time as the farm is found to be in compliance and/or access to inspect the dairy farm is permitted.
W. Va. Code R. § 61-19-22 Water supply
22.1. The dairy farm and milk and milk products processing facility water supply shall be properly located, protected, and operated. It shall be easily accessible, ample, and of safe sanitary quality for the cleaning of dairy utensils and equipment. The water supply shall come from an approved public source or from a spring, dug well, driven well, bored well, or drilled well, that complies with the standards of the West Virginia Department of Health and Human Resources.
22.2. The water supply will be tested to meet standards set by the Commissioner.
W. Va. Code R. § 61-19-23 Pasteurization of milk and milk products
23.1. All milk and milk products, except eggnog, shall be pasteurized to one (1) of the temperatures given in the following chart and held continuously at or above that temperature for at least the corresponding specified time: *If the fat content of the milk product is ten percent (10%) or greater, or a total solids of 18% or greater, or if it contains added sweeteners, the specified temperature shall be increased by 3ºC (5ºF).
23.2. Eggnog shall be heated to at least the following temperature and time specifications:
23.3. There shall be no physical connection between unpasteurized products, dairy, non-dairy, or water, and pasteurized milk or milk products. Pasteurized non-dairy products not completely separated from pasteurized milk and milk products shall be pasteurized in properly designed and operated equipment at times and temperatures which meet at least the minimum times and temperatures provided for in the definition of Pasteurization.
23.4. Water that comes in contact with pasteurized milk and/or milk products shall:
23.4.1. Meet at least the minimum times and temperatures provided for in the definition of Pasteurization in equipment; or
23.4.2. Have undergone an equivalent process found acceptable by the WVDA.
23.5. a producer must provide means to prevent contamination of milk and/or milk products, containers, utensils and equipment by drippings, spillage and splash from overhead piping, platforms or mezzanines.
23.6. In no case shall pasteurized milk or milk products be standardized with unpasteurized milk or milk products, unless the standardized milk or milk product is subsequently pasteurized.
23.7. Reconstituted or recombined milk and milk products shall be pasteurized after reconstitution or recombining of all ingredients.
W. Va. Code R. § 61-19-24 Milk Processing Plant
24.1 Premises.
24.1.1 Shall be kept in a clean and orderly condition and be free from strong or foul odors, smoke, or excessive air pollution. Driveways and adjacent plant traffic areas shall be constructed of concrete, asphalt, or similar material and maintained to keep dust and mud to a minimum. The adjacent plant surroundings shall be free from refuse, rubbish, and waste materials to prevent the harborage of rodents, insects, and other vermin and a suitable drainage system shall be provided which will allow rapid drainage of all water from plant buildings and driveways, including surface water around the plant and on the premises. All water shall be disposed of in a manner as to prevent a nuisance or health hazard.
24.1.2 The building or buildings shall be of sound construction and shall be kept in good repair to prevent the entrance or harborage of rodents, birds, insects, vermin, and other animals. Any openings around service pipes through outside walls shall be effectively sealed around the openings or sealed with tight metal collars.
24.1.2.a. All openings to the outer air including doors, windows, skylights, and transoms shall be effectively protected or screened to prevent the entrance of flies and other insects, rodents, birds, dust, and dirt. All outside doors opening into processing rooms shall be in good condition and fit properly. All hinged, outside screen doors shall open outward. All doors shall be tight-fitting and self-closing. All doors and windows shall be kept clean and in good repair. Outside conveyor openings and other special-type outside openings shall be effectively protected to prevent the entrance of flies and rodents by means of doors, screens, flaps, fans, or tunnels. Outside openings for sanitary pipelines shall be covered when not in use.
24.1.2.b. The walls, ceilings, partitions, posts of rooms in which milk or dairy products are processed, manufactured, handled, packaged, or stored (except dry storage of packaged finished products and supplies) or in which utensils are washed and stored, shall have a smooth finish with a suitable material of light color, which is substantially impervious to moisture and shall be kept clean. These surfaces shall be refinished as often as necessary to maintain a neat, clean surface.
24.1.2.c. Floors:
24.1.2.c.1 The floors of all rooms in which milk or dairy products are processed, manufactured, packaged, or stored or in which utensils are washed shall be constructed of tile properly laid with impervious joint material, concrete, or other equally impervious material. The floors shall be smooth, kept in good repair, and graded so that there will be no pools of standing water or milk products after flushing. Drains shall be equipped with traps properly constructed and shall be kept in good repair. The plumbing shall be installed to prevent the backup of sewage into the drain lines and onto the floor of the plant.
24.1.2.d. Lighting and ventilation:
24.1.2.d.1 Light shall be ample and well distributed. All rooms in which dairy products are manufactured or packaged or where utensils are washed shall have at least thirty foot-candles of light intensity on all working surfaces and at least fifty foot-candles of light intensity in areas where dairy products are graded or examined for condition and quality. In all other rooms, there shall be at least five foot-candles of light intensity when measured at a distance of thirty inches from the floor. Where contamination of product by broken glass is possible, light bulbs, fluorescent tubes, skylights, or other fixtures over the product shall be protected against breakage.
24.1.2.d.2 There shall be adequate heating, ventilation, or air conditioning in all rooms to facilitate maintenance of sanitary conditions. Exhaust or inlet fans, vents, hoods, or temperature and humidity control facilities shall be provided as needed to minimize or eliminate undesirable room temperatures, objectionable odors, moisture condensation, or have an atmosphere relatively free from mold (not exceeding ten mold colonies per cubic foot of air). Inlet fans shall be screened and should be provided with an adequate air filtering device to eliminate dirt and dust from incoming air. Ventilation systems shall be cleaned periodically and shall be maintained in good repair. Exhaust outlets shall be screened or be provided with self-closing louvers to prevent the entrance of insects when not in use.
24.1.2.e Rooms in which any raw materials, packaging materials, ingredient supplies, or dairy products are handled, manufactured, packaged, or stored shall be designed, constructed, and maintained to assure desirable room temperatures and enhance clean, orderly operating conditions free from objectionable odors and vapors. Enclosed bulk milk receiving rooms when present shall be separated from the processing rooms by a partition. Rooms for receiving can milk shall be separated from processing rooms by a partition (partial or complete), by suitable arrangement of equipment, or by allowing enough distance between receiving and processing operations to avoid possible contamination of milk or dairy products during manufacturing and handling. Processing rooms shall be kept free from equipment and materials which are not routinely used.
24.1.2.e.1. Coolers and freezers used for storage of dairy products shall be clean, reasonably dry and maintained at proper uniform temperature and humidity levels by providing adequate circulation of air at all times to protect the product and minimize mold growth. Coolers and freezers shall be free from rodents, insects and pests. Shelves shall be kept clean and dry. Refrigeration units shall have provisions for the collection and disposal of condensate.
24.1.2.e.2. Supply rooms used for the storage of packaging materials, containers, and miscellaneous ingredients shall be kept clean, dry, orderly, free from insects, rodents, and mold and maintained in good repair. Such items stored therein shall be adequately protected from dust, dirt, or other extraneous matter and so arranged on racks, shelves, or pallets to permit access to the supplies and to permit cleaning and inspection of the room. Insecticides, rodenticides, cleaning compounds, and other nonfood products shall be properly labeled and segregated, and stored in a separate room or cabinet away from milk, dairy products, ingredients, or packaging supplies.
24.1.2.e.3. Toilet and dressing room facilities shall be conveniently located to all processing operations.
24.1.2.e.3.1 Toilet rooms shall not open directly into any room in which milk or dairy products are processed, manufactured, packaged or stored. Doors shall be self-closing. Ventilation shall be provided by mechanical means or by screened openings to the outer air. Fixtures including but not limited to toilet stools, sinks, lights and lockers, shall be kept clean and in good repair.
24.1.2.e.3.2 If employees are furnished with a locker or other storage facility, the lockers or other storage facilities shall be kept clean and orderly. Adequate hand-washing facilities shall be provided. Durable, legible signs shall be posted conspicuously in each toilet or locker room directing employees to wash their hands before returning to work.
W. Va. Code R. § 61-19-25 Milk Processing Plant Inspection
25.1 Each manufacture-grade milk plant shall be inspected by an inspector prior to issuance of a permit.
25.2 Each manufacture- grade milk plant shall be inspected by an inspector at least once every 3 months.
25.3 The inspector will use manufacture-grade dairy plant inspection forms that are prescribed and furnished by the commissioner, and such forms will be made available on the department’s website http://agriculture.wv.gov/forms/regulatory-and-environmental-forms.
25.4. The inspector will leave a copy of the inspection form with the manufacture-grade dairy plant, keep on copy for his/her records and file a copy with the Commissioner in a timely fashion.
25.5 Should a violation of any requirements set forth in this rule be found to exist during an inspection, a second inspection may be required after the time deemed necessary to remedy the violation. Such second inspection may be used to determine compliance with requirements of this rule.
25.6 Any violation of the same requirement, marked as a repeat violation, may call for permit suspension. Permit suspension is at the discretion of the Commissioner.
W. Va. Code R. § 61-19-26 Pasteurization records, equipment tests and examinations
26.1 All temperature and flow rate pasteurization recording charts or alternative records, acceptable to the Commissioner in place of charts, shall be:
26.1.1. Reviewed, dated and signed or initialed by or under the oversight of a PCQI within seven (7) working days after the records were created;
26.1.2. Onsite and shall be reviewed by the Regulatory Agency during each regulatory inspection for at least the previous three (3) months or from the last regulatory inspection, whichever is longer. Electronic records are considered to be onsite if they are accessible from an onsite location; and
26.1.3. Retained for at least two (2) years after the date they were created. Offsite storage of these pasteurization records is permitted if such records can be retrieved and provided onsite within twenty-four (24) hours of a request for official review.
26.2 Shall not exceed the time limit for which they are designed. Overlapping of recorded data shall be a violation of this Item. The following information shall also be entered on the charts or other records acceptable to the Commissioner in place of charts as applicable:
26.2.1. Batch Pasteurizers:
26.2.1.a. Date
26.2.1.b. Number or location of recording thermometer when more than one is used;
26.2.1.c. A continuous record of the product temperature;
26.2.1.d. Extent of holding period, including filling and emptying times when required;
26.2.1.e. Reading of the airspace thermometer, at the start of the holding period and at the end of the holding period, at a given time or reference point as indicated on the chart; provided, if the airspace thermometer is a digital combination airspace/recording thermometer, which provides a continuous recording of the airspace temperature and has been calibrated by the Regulatory Agency in accordance with Appendix I Test 4 of this Rule, the recording of the airspace temperature on the chart shall only be required at the start of the holding period;
26.2.1.f. Reading of indicating thermometer, at the start of the holding period, at a given time or reference point as indicated on the chart;
26.2.1.g. Quarterly, the time accuracy of the recording thermometer, as determined by the Regulatory Agency, or in the case of milk plants regulated under the NCIMS voluntary HACCP Program, a qualified industry person acceptable to the Regulatory Agency;
26.2.1.h. Amount and name of the pasteurized milk or milk product, represented by each batch or run on the chart;
26.2.1.i. Record of unusual occurrences;
26.2.1.j. Signature or initials of the operator; and
26.2.1.k. Name of the milk plant.
26.2.2 HTST and HHST Pasteurizers: Recording thermometer charts shall contain all the information specified in Subitem 26.2.1.a. above, except 26.2.1.d., and 26.2.1.e., and in addition, shall include the following:
26.2.2.a. A record of the time during which the FDD is in the forward-flow position;
26.2.2.b. The cut-in and cut-out milk or milk product temperatures, recorded daily by the operator, at the beginning of the run (HTST only), and initialed quarterly by the Regulatory Agency or a qualified industry person acceptable to the Regulatory Agency; and
26.2.2.c. 26.2.1.f. from above shall also be recorded immediately after a chart has been changed.
NOTE: The temperature shown on the recording thermometer chart shall be used to determine that the required temperature for milk or milk products containing higher fat and/or sweeteners has been achieved.
26.3 The Regulatory Agency shall perform the indicated Tests on the following instruments and devices identified in Table 4 initially upon installation; at least once each three (3) months thereafter, including the remaining days of the month in which the equipment Tests are due; whenever any alteration or replacement is made which may affect the proper operation of the instrument or device; or whenever a regulatory seal has been broken. Provided, that the pasteurization holding time Tests shall be conducted at least once each six (6) months thereafter, including the remaining days of the month in which the equipment Test is due. The test results for the required pasteurization equipment testing shall be recorded on records that are formed and provided by the Commissioner. Such records shall be made available on the department’s website http://agriculture.wv.gov/forms/regulatory-and-environmental-forms.
26.4 The regulatory agency shall provide a copy of the records to the milk plant and the milk plant shall retain these records for at least two (2) years after the date they were created. Offsite storage of these pasteurization equipment testing records is permitted if such records can be retrieved and provided onsite within twenty-four (24) hours of a request for official review.
26.5 Table 4 Equipment Tests- Batch Pasteurizers and HTST and HHST Pasteurized Systems Refer to Appendix I of the PMO.
Table 4:
Vat, HTST and HHST indicating and airspace thermometers Temperature accuracy 2.
Vat, HTST and HHST recording thermometers Temperature accuracy 3.
Vat, HTST and HHST recording thermometers Temperature accuracy 4.
Vat, HTST and HHST indicating and recording thermometers Recording vs. Indicating thermometer
5.1 Leakage pass FDD
5.2 FDD freedom of movement
5.3 Device assembly (single stem)
5.4 Device assembly (dual stem)
5.5 HTST FDD
Manual diversion
5.6 Response time
5.7 Time delay (inspect)
5.8 Time delay (CIP)
5.9 HTST FDD
Time delay (leak-detect flush) 6.
Vat leak protector valve(s0 Leakage 7.
HTST indicating thermometers Response time 8.
HTST recording thermometers Response time
9.1 HTST pressure switches Regenerator pressures
9.2.1 HTST and HHST differential pressure controllers Calibration
9.2.2 HTST differential pressure controllers Regenerator pressure
9.2.3 HTST* and HHST differential pressure controllers Regenerator pressure
9.3.1 HTST booster pump/FDD Inter-wiring check
9.3.2 HTST booster pump/timing pump Inter-wiring check
10.1 HTST FDD
Temperature cut-in/cut-out
10.2 HTST* and HHST FDD divert system (indirect heat)
Temperature cut-in/cut-out
10.3 HTST* and HHST FDD divert system (direct heat)
Temperature cut-in/cut-out
11.1 HTST holding tubes/timing pumps (except magnetic flow meter based timing systems (MFMBTS)
11.2.a HTST holding tubes/MFMBTS
11.2.b HTST and HHST MFMBTS Flow alarm
11.2.c HTST and HHST MFMBTS Loss of signal/low flow
11.2.d HTST MFMBTS Flow rate cut-in/cut out
11.2.e HTST MFMBTS Time delay
11.2.f All MFMBTS High flow alarm response time
11.3 HHST holding tubes indirect heat
11.4 HHST holding tubes direct heat
11.5 HHST holding tubes infusion heat
12.1 HTST* and HHST indirect heat Sequence logic
12.2 HTST* and HHST direct heating Sequence logic 13.
HHST
Pressure in the holding tube 14.
HTST* and HHST using direct injection heating Pressure differential across injector 15.
HTST and HHST (all electronic controls)
Electro-Magnetic Interference
W. Va. Code R. § 61-19-27 Permit to operate
27.1. It is unlawful for any person who does not possess a permit from the Department of Agriculture to operate a dairy farm or a manufacture-grade milk and manufacture-grade milk products processing facility which produces and offers for sale manufacture-grade milk or manufacture-grade milk products as covered under the provisions of this Rule.
27.2. The producer and the manufacture-grade milk or manufacture-grade milk products processing facility shall apply for a permit on forms prescribed and furnished by the Commissioner. All permits expire December 31 of each year.
Series 20 Employment Reference and Inquiries and Background Checks
W. Va. Code R. § 61-20-1 General
1.1. Scope. -- This rule implements the provisions set forth in West Virginia Code §19-1-3B regarding the rejection of candidates or eligibility within the West Virginia Department of Agriculture.
1.2. Authority. -- West Virginia Code §19-1-3b.
1.3. Filing Date. -- May 7, 2025
1.4. Effective Date. -- May 7, 2025
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect August 1, 2034.
W. Va. Code R. § 61-20-2 Definitions. Terms used in this rule which are not included in this section have the meaning as provided in the Policy and Procedure Manual of the West Virginia Department of Agriculture
2.1. “Applicant” means an individual being considered for employment with the Department of Agriculture.
2.2. “Appointing Authority” means the Commissioner of Agriculture or his or her Authorized Designee
2.3. “Authorized Designee” means an employee who is designated by the Commissioner of Agriculture to receive and process criminal history check request forms from applicants, receive criminal history information and make suitability determinations.
2.4. “Contact Person” means an employee who is designated by the Commissioner of Agriculture to receive and process criminal history check request forms from applicants, but who is not authorized to receive criminal history information and make final suitability determinations.
2.5. “Department” means the West Virginia Department of Agriculture including all affiliated divisions, subdivisions, and related entities.
2.6. “Director” means the supervisor of a functional sub-unit of the Department.
2.7. “Disqualifying Event” means a conviction which has a rational nexus to the position for which the applicant or employee is applying. For purposes of this rule, a plea of guilty or no contest is considered a conviction unless the charge was subsequently invalidated by a court decision.
2.8. “Employee” means any person who lawfully occupies a position in the Department, is paid a wage or salary, and has not severed the employee-employer relationship.
2.9. “Employment” means a new hire, promotion, or continued employment.
2.10. “Position” means an authorized and identified group of duties and responsibilities assigned by proper authority which requires the full-time or part-time employment of at least one person.
2.11. “Qualified entity or Individual” means any entity or individual who is authorized by the Commissioner or Authorized Designee to conduct investigations and/or to secure reports in compliance with this rule.
2.12. “Subject Individual” means an applicant or employee who is subject to a criminal history check pursuant to this rule.
2.13. “Suitability Determination” means the assessment of an applicant’s or an employee’s criminal background record, central abuse registry record, and/or driving record to determine whether the individual’s employment in a particular position will be conducive to a safe workplace and public accountability and is not likely to result in damage or injury to others.
2.14. “Transfer” means the movement of an employee to a position in a different subdivision of the Department or geographic location of the same or a different subdivision.
2.15. “Year” means a twelve (12) consecutive month period, unless otherwise specified.
W. Va. Code R. § 61-20-3 Verification of Eligibility
3.1. To establish the eligibility of an applicant or employee, the Director may verify information provided by the applicant, including, but not limited to:
3.1.a. current and previous employment and/or volunteer and/or student activities;
3.1.b. military service;
3.1.c. formal education; and
3.1.d. professional licensure and/or certification.
3.2. To the extent permitted by law and reasonably relevant to established eligibility standards or the nature of the position sought by the applicant or employee, the Authorized Designee may obtain and review:
3.2.a. the applicant’s criminal record, both state and federal;
3.2.b. the central abuse registry per W. Va. Code §15-2C-1 et seq.; and
3.2.c. the applicant’s driving records.
3.3. To the extent permitted by law, the Authorized Designee may require an applicant or employee to provide any information necessary to afford the Authorized Designee access to records reasonably relevant to established eligibility standards or the nature of the position sought by the applicant.
3.4. The Authorized Designee may delegate some or all responsibility to qualified appointing authorities in accordance with the provisions of this rule.
3.5. Nothing in this rule shall be construed as to prevent an Authorized Designee from obtaining a copy of the credit record of an applicant for employment or employee in a position where the Authorized Designee has determined that the specific job functions of that position require a demonstration of financial responsibility.
W. Va. Code R. § 61-20-4 Review and Reconsideration
4.1. Subject individuals are solely responsible for dealing with any reporting agency to challenge the accuracy or completeness of information provided by the West Virginia State Police, the Federal Bureau of Investigation or other agencies reporting information to the Commissioner or Authorized Designee. Subject individuals are solely responsible for providing the Authorized Designee or qualified entity with proof of any error and correction thereof by any reporting agency.
4.2. If the subject individual provides proof of any error and correction thereof by any reporting agency to the Authorized Designee, the Authorized Designee will conduct a new suitability determination.
4.3. If the subject individual wishes to dispute an adverse suitability determination, the subject individual may request that the Authorized Designee reconsider his or her suitability. The Authorized Designee shall consider the request if it is submitted in writing and received not later than fifteen (15) calendar days following the date the notice of disqualification was postmarked or otherwise communicated or received. Within thirty (30) calendar days after a properly submitted request for reconsideration is received, the Authorized Designee shall report his or her decision in writing to the subject individual. Nothing in this rule shall require the Department to hold open a position when there is a challenge to an adverse suitability determination.
4.4. Nothing in this rule shall establish a property right in an offer of employment for an applicant upon submission to a criminal background check, even if an offer of employment has already been made. The Department reserves the right to rescind a previously issued job offer after it has been given. Nothing in this rule shall otherwise be construed to undermine the at-will employment relationship between the Department and its employees, both prospective and current.
W. Va. Code R. § 61-20-5 Records and Reports
5.1. The Authorized Designee shall maintain confidential records and reports pertaining to reference information and background investigations in a separate file if stored or maintained by the Department.
5.2. If records and reports are reviewed electronically, the Authorized Designee shall maintain secure access to records.
W. Va. Code R. § 61-20-6 Employee and Applicant Responsibilities
6.1. It is the responsibility of the employee or applicant to report any disqualifying event or event that may be disqualifying to his or her Director or Authorized Designee within five days of the disposition of the matter.
6.2. If the Department has reason to believe or notice of a disqualifying event that an employee has failed to report, the Department may require the employee to submit for a background check.
6.3. Upon request, each applicant or employee shall provide information, including fingerprints, required by the state police or other entities for processing or to facilitate access to: driving records; verification of employment, education, licensure, and residence; and state and federal criminal history information.
6.4. Failure of an employee to report a disqualifying event within the time provided is grounds for disciplinary action up to and including dismissal.
6.5. Nothing in this rule shall be construed to limit the authority or ability of the Department to conduct an investigation if there is reason to believe that an applicant or employee was untruthful or provided false information, either on an application or during the course of his or her employment, or has otherwise engaged in conduct that the Commissioner concludes may impact the ability of an applicant or employee to effectively perform the functions of his or her job.
W. Va. Code R. § 61-20-7 Department Staff Responsibilities
7.1. All Department staff involved in this process must comply with this rule and the procedures established by the Department for implementation of the rule.
7.2. The Authorized Designee may assess and thereafter make a suitability determination prior to the transfer or promotion of an employee to a position for which there is a different suitability standard than pertinent to the employee’s current position.
7.3. The appointing authority shall ensure adequate training is provided to all authorized designees, contact persons and other involved department staff, and shall further ensure records and reports are maintained in accordance with §61-20-5.
7.4 While background checks are required of new applicants for employment with WVDA, all lateral employment changes require a drug screen and fingerprint check. The change in classification applies to role changes of any internal nature including those made via promotion, transfer within different divisions of WVDA, or an internal change of otherwise substantially different nature to a job description (e.g., change in job title and duties altogether, shift to another division but title is the same in the new division), The provisions of this section applies to current employees or returning former employees of WVDA.
W. Va. Code R. § 61-20-8 Period of Disqualification
8.1. Subject to the provisions of section 8.2 of this rule, applicants who are disqualified for employment because of a conviction that has not been reversed shall be afforded the opportunity to reapply for open positions after the expiration of five years from the date of conviction or date of release from the imposed penalty, whichever is later, if the individual had not been convicted of any other crime during that period.
8.2. Convictions for violent or sexual offenses shall be subject to a longer period of disqualification.
8.2.a. The Department may impose a period of disqualification of ten years for violent offenses for all positions within the Department.
8.2.b. The Department may impose a period of disqualification of twenty years for sexual offenses for all positions within the Department.
8.2.c. The Department may impose a period of disqualification of longer than the minimum period set forth in this subsection if the offense is of the type to create an ongoing disqualification from the specific criteria for a particular position for which the applicant has applied.
W. Va. Code R. § 61-20-9 Petition
9.1. The following provisions apply to current employees and individuals seeking employment at the WVDA who have not been previously employed by the Department: individuals with criminal records may petition the Commissioner or his or her Authorized Designee for a determination of whether the individual’s criminal record will disqualify them from obtaining employment with the Department, by providing:
9.1.a. For new applicants, individuals with criminal records may petition the Commissioner or his or her Authorized Designee for a determination of whether the individual’s criminal record will disqualify them from obtaining employment with the Department, by providing:
9.1.a.1. Their social security number;
9.1.a.2. The jurisdiction(s)where the conviction(s) occurred;
9.1.a.3. The date(s) of the conviction(s);
9.1.a.4. A description of the circumstances or nature of the conviction(s) or crime(s) leading to such conviction, if appropriate, as well as any further relevant documentation or information petitioner believes may be of importance or useful to commissioner in his or her review of the petition for employment, including, but not limited to the following examples: description(s) or any available documentation, such as court filings, disposition, or other information as appropriate; and
9.1.b. For new applicants and current employees applying for promotion or an alternate position:
9.1.b.1. The position(s) for employment within the West Virginia Department of Agriculture that is desired by the petitioner.
9.1.c. Both categories of applicant shall have a right to petition the Commissioner for a determination as described in §61-20-9.1.a.; those who are currently employed by the WVDA, shall do so if required by the Authorized Designee to provide information as set forth in §61-20-3.3 and/or if the employee is required to self-report as set forth in §61-20-6.1 or the Department has reason to believe or notice of a disqualifying event as set forth in §61-20-6.2.
9.2. The information gathered from the background check will be evaluated against the specific nature, duties and location(s) of position(s) that they indicate an interest in for the Commissioner to render a decision.
9.3. The petitioner will be informed of the decision within 60 days of receipt of the petition.
Series 21 Freedom Of Information Request
W. Va. Code R. § 61-21-1 General
1.1. Scope. -- These rules relate to W. Va. Code '29B-1-1 et seq., 1931.
1.2. Authority. -- W. Va. Code '29B-1.
1.3. Filing Date. -- September 4, 1990.
1.4. Effective Date. -- October 5, 1990.
W. Va. Code R. § 61-21-2 Definitions
2.1. For the purpose of these rules:
2.1.a. "Department" means the West Virginia Department of Agriculture.
2.1.b. "Freedom of Information Officer" means the person designated by the Commissioner of Agriculture as having responsibility for all Freedom of Information requests.
W. Va. Code R. § 61-21-3 Request Procedure
3.1. Document request. -- A request to inspect or copy any public record for which the West Virginia Department of Agriculture is the custodian shall be in writing and contain the following information:
3.1.a. A description of each document sought and, if available, the title, date and author of each such document;
3.1.b. The name, address and telephone number of the person or persons requesting to inspect or copy such public records.
3.1.c. A statement that the person requesting information is prepared to pay any fees covering the actual cost to the Department for responding to this request.
3.1.d. The request should be addressed to the Office of the Commissioner, West Virginia Department of Agriculture, State Capitol, Charleston, West Virginia 25305 ATTN: F.O.I. officer and may be filed by mail or in person.
W. Va. Code R. § 61-21-4 Exemptions
4.1. The categories of information set forth in W. Va. Code '29B-1-4 are hereby adopted as exempt from disclosure.
4.2. Any information relating to ot in pending litigation at any stage is hereby adopted as exempt from disclosure.
4.3. Any information required to be kept confidential under the provisions of W. Va. Code '19 are hereby adopted as exempt from disclosure.
W. Va. Code R. § 61-21-5 Responsibilities of the Department
5.1. The Department shall, upon receipt of a properly filed request, affix the date of receipt and initiate a search for the requested information.
5.2. The five (5) day time limit for requests for information set forth in W. Va. Code '29B-1-3 shall commence upon receipt of the written request.
5.3. The Department's response shall:
5.3.a. Provide the requested information and an invoice for the total amount of fees due; or
5.3.b. Advise the requestor of the time and place at which he may inspect and/or copy the information; or
5.3.c. Advise the requestor that the description of the information sought is not sufficient to allow the Department to identify and locate the information and that the request cannot be further processed until additional identification is made available to the Department; or
5.3.d. Advise the requestor that the information requested is not known to exist or is not in the Department's possession; or
5.3.e. Advise the requestor that the information is exempt from disclosure under these rules; or
5.3.f. Deny the request giving the reason for the denial and inform the person requesting the information that he has the opportunity to institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.
5.4. The Department may decline to honor requests which require the creation of a record containing a compilation of records, extraction of information from other records or any statistical analysis of records.
5.5. The Department may provide information on computer discs. The information will be provided utilizing the programs and formats in common use in the Department unless the person requesting the information specifies that he or she will be responsible for all costs involved in providing the information in the format that they request.
5.6. The Department will not allow any non-employee to operate the computers of the Department for a search of the records.
5.7. The Department will not furnish any software to any person. The Department will specify the software that generates the data provided. The Department may convert the data to a format requested, if possible, utilizing the software currently available to the Department.
W. Va. Code R. § 61-21-6 Partial Disclosure
6.1. If a requested record contains both exempt and nonexempt material, the nonexempt material shall be disclosed after the exempt material has been deleted.
W. Va. Code R. § 61-21-7 Fees
7.1. The Department shall establish the following fees calculated to reimburse it for its actual cost in searching and reviewing records and making reproductions of records.
7.1.a. Cost per page - The cost for reproducing records shall be twenty cents ($.20) per page.
7.1.b. Cost for printed information - The cost for providing items that are printed by the Department of Agriculture shall be twenty cents ($.20) per page. A page is designated as paper of approximately 100 square inches.
7.1.c. Search fee - The cost for searching and reproducing records shall be ten dollars ($10.00) per hour.
7.1.d. Computer Discs - The cost for the reproduction of records on computer discs shall be on dollar ($1.00) per disc.
7.1.e. Computer data conversion - The cost for converting computer data into a format requested shall be based on the cost of employee time and materials.
7.1.f. Other fees - The cost for performing other operations requested under the act will be charged at a rate to reimburse the direct costs of the Department.
W. Va. Code R. § 61-21-8 Payment of fees
8.1. All fees shall be paid by check or money order to the West Virginia Department of Agriculture.
8.2. The fee will be waived for all requests where the total charge is $5.00 or less.
8.3. Any person requesting information who cannot afford to pay the fee(s) established under these rules may file an affidavit with the Department stating that the person is peculiarily unable to pay such fee(s).
8.4. The Department may require total or partial prepayment if the Department determines that the unpaid fees attributable to one or more requests by the same person exceeds ten dollars ($10.00).
8.5. The Department may require prepayment of fees for any request exceeding $20.00.
61CSR21
Series 22 Generic State Management Plan For Pesticides And Fertilizer In Groundwater
W. Va. Code R. § 61-22-1 General
1.1. Scope. -- This rule establishes the guidance for the development of procedures, practices and regulations to protect groundwater.
1.2. Authority. -- W. Va. Code ''19-16A-4 & 22-12-5.
1.3. Filing Date. -- September 15, 1992.
1.4. Effective Date. -- November 1, 1992.
W. Va. Code R. § 61-22-2 Definitions
2.1. The definitions used in W. Virginia Code ''19-15-1 et seq., 19-16A-1 et seq. and Title 61 code of state regulations adopted thereunder shall apply to these regulations unless otherwise defined in this regulation.
W. Va. Code R. § 61-22-3 Goals and General Program Policies
3.1. The goal of the State Management Plan for Pesticides and Fertilizers in Groundwater is to prevent, minimize, or mitigate the movement of pesticides and fertilizer to groundwaters of the state. This goal does not mean zero-contaminant discharge, but that discharges of pesticides and fertilizers be conducted in a manner that will maintain or improve present groundwater quality and not impair potential use of groundwater or pose a public health hazard. Remediation of groundwater where contaminated with pesticides and fertilizers should utilize all existing relevant technologies to revert water to its previous condition. The term pesticides and fertilizers shall mean the same as their definition in W. Va. Code ''19-16A-1 et seq. and 19-15-1 et seq. respectively.
3.2. Groundwater classification can allow ground waters of the state to be identified and protected according to their water quality and present or potential use. The highest and best use of groundwater is for drinking purposes. Groundwater in some aquifers may not be suitable for drinking due to natural conditions such as salinity.
3.3. Pesticides and fertilizers are beneficial and important to the economy of the state. Scientific procedures exist that permit the mathematical prediction of the potential of probability of their subsequent entry into groundwater. However, predictive modeling must be verified by actual monitoring. Procedures also exist to identify areas of the state more vulnerable to groundwater contamination due to soils, geology, hydrology and pesticide and fertilizer use patterns. Identification of sensitive areas for this program serves to focus the utilization of limited resources.
3.4 By identifying chemicals of concern and sensitive areas of the state and applying appropriate Best Management Practices on a voluntary basis, or on a mandatory basis if the voluntary efforts fail, useful chemical production tools can be maintained while protecting the state's groundwater resource. This approach recognizes that the elimination of useful pesticides and fertilizers may cause economic hardships and that replacement products or techniques may also cause environmental or health risks.
3.5 Valid scientific monitoring, prediction and other methodologies will be used in a scientific approach to determining the quality of groundwater resources. Modern analytical techniques can identify minute concentrations of chemicals, far below levels of health concern. As improvements are made in these techniques, lower and lower concentrations will be detected, which makes zero discharges theoretically an impossibility. For these reasons, the use of numerical health-based standards to trigger management changes is a sound ground-water resource management approach. As activities carried out near wellheads often affects well water quality, this groundwater protection plan includes a wellhead protection strategy.
3.6 Existing state and federal resources, funding programs, fee controls, grants and cooperative agreements will be used to the maximum extent possible. Where necessary, appropriate new legislation will be sought.
W. Va. Code R. § 61-22-4 State Agencies and Responsibilities
4.1. General. Whenever possible, existing authorities will be utilized and enhanced where necessary to provide for the establishment of water quality standards, monitoring protocols and procedures including quality assessment and development of management plans.
4.1.a. W. Va. Code '20-12-1 et seq. designates the Department of Environmental Protection as the state lead department for groundwater. The Department of Agriculture is specifically authorized to be the groundwater regulatory department for the use or application of pesticides and fertilizers. Other agencies specifically designated to regulate groundwater are the division of energy and the division of health. If the authority to regulate facilities or activities which may adversely impact groundwater is not otherwise assigned, the division of natural resources is authorized as the regulatory department for unassigned facilities or activities. As appropriate, the Department of Environmental Protection shall cooperate with the Department of Agriculture, Division of Energy, and Division of Health. .
4.2. Water Quality and Health-based Standards
4.2.a. The Water Resources Board shall set numerical health-based standards for pesticides and fertilizers in ground water, based on the best available scientific data. Federal Maximum Contaminant Levels (MCL) as promulgated under the Safe Drinking Water Act, or a National Primary Drinking Water Regulation will be used when possible.
4.2.b. In the absence of a regulatory standard promulgated by the Water Resources Board, the Commissioner will utilize established EPA Health Advisory Levels or other non-promulgated federal numerical values based on health evaluations. The use of these non-regulatory health based standards will be used for guidance in determining program direction.
4.3. Monitoring Studies
4.3.a. The Department of Agriculture in cooperation with the Department of Environmental Protection, Office of Water Resources will be responsible for designing and carrying out groundwater monitoring studies with respect to pesticides and fertilizers. The department will also determine sensitive areas in cooperation from the State Geological Survey, the U. S. Geological Survey and the Soil Conservation Service.
4.3.b. The State Health Department is responsible for implementing pesticide monitoring under the National Primary Drinking Water Regulations.
4.4. Regulation of Pesticides and Fertilizers
4.4.a. The Department of Agriculture registers all pesticides distributed in the state and may restrict the use of a pesticide if restrictions are required to prevent unreasonable risk to health or the environment. The department is responsible for regulating the use, distribution, transportation, storage, and disposal of pesticides to ensure compliance with statute and regulations and for documenting use violations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The department is also responsible for licensing pesticide dealers and for certifying commercial and private pesticide applicators who use restricted use pesticides. The department investigates complaints of suspected pesticide misuse and conducts routine inspections of pesticides used in the state.
4.4.b. The department will compile a list of chemicals of concern, based on monitoring data and/or scientific evaluation of up-to-date computer modeling techniques. When monitoring data or proven models indicate that health-based standards are exceeded or may be exceeded in the future, based on a trend approach, the department will develop a chemical-specific management plan utilizing preventative Best Management Practices in areas of the state deemed sensitive to contamination by the chemical.
4.4.c. The current fertilizer law specifies that all fertilizers (not including unmanipulated manures) be registered, labeled and a tonnage fee paid. The enforcement program revolves around sampling the product and comparing the results with the guarantee on the label. There are no provisions for use, application rates, or groundwater protection.
4.4.d. The Groundwater Protection Act gives the West Virginia Department of Agriculture the authority to regulate the application and use of pesticides and fertilizers. In addition the Department has the authority to:
4.4.d.A. engage the voluntary cooperation of all persons in the maintenance and protection of groundwater;
4.4.d.B. advise, consult and cooperate with all persons, all agencies of this state, universities and colleges, the federal government and other states in the furtherance of protecting groundwater;
4.4.d.C. receive and spend funds to further this end;
4.4.d.D. encourage the formation and execution of plans to maintain and protect groundwater by cooperative groups or associations who are impacting on the maintenance and protection of groundwater;
4.4.d.E. encourage, participate in or conduct or cause to be conducted studies of groundwater quality and the impact of fertilizers and pesticides;
4.4.d.F. make reports and recommendations;
4.4.d.G. conduct sampling, data collection, analyses and evaluation with sufficient frequency so as to ascertain the characteristics and quality of groundwater, and the sufficiency of the groundwater protection programs established; and
4.4.d.H. develop public education and promotion of groundwater protection programs.
4.5. The State Agricultural Experiment Station will to the extent feasible, conduct studies to determine the fate and transport of pesticides and fertilizers through soils to ground- water under varying conditions across the state. Best Management Practices specific to chemicals and sensitive areas will be developed to reduce groundwater contamination risk. State scientists will cooperate with scientists in other agencies when appropriate. The Experiment Station will also investigate ground water remediation techniques to address previously contaminated water.
4.6. The State Agricultural Extension Service will carry out educational activities to improve the efficiency of pesticide and fertilizer use and promote the adoption of Best Management Practices to reduce groundwater contamination. Information generated by research at the State Agricultural Experiment Station and elsewhere will be extended to agriculturalists and the general public. Staff will provide training in these areas and address inquiries. Cooperative educational programs will be carried out with other appropriate state and federal agencies including the State Agricultural Experiment Station, State Department of Environmental Protection, U. S. Soil Conservation Service (SCS), Agricultural Stabilization and Conservation Service (ASCS), U. S. Environmental Protection Agency (EPA) and the U.S. Geological Survey (USGS).
W. Va. Code R. § 61-22-5 Legal Authority
5.1. State Statutes
5.1.a. Existing state statutes are believed to provide adequate authority for the protection of the state's groundwater resources. The state Groundwater Protection Act of 1991 identifies the roles and responsibilities of the various State Agencies. Where authority is lacking under specific statutes, the Groundwater Protection Act of 1991 provides the authority for adopting groundwater protection practices or regulations.
5.1.b. The specific existing statutes relevant to groundwater protection from pesticides and fertilizers are:
5.1.b.A. Groundwater Protection Act of 1991 (W. Va. Code '20-12-1 et seq.)
5.1.b.B. Pesticide Control Act of 1990 (W. Va. Code '19-16A-1 et seq.)
5.1.b.C. Wellhead Protection Act (W. Va. Code '16-1-1 et seq.)
5.1.b.D. Solid Waste Act (W. Va. Code '22-15-1 et seq.)
5.2. Federal statutes administered in some degree by designated state agencies include:
5.2.a. Resource Conservation and Recovery Act (RCRA). U.S. EPA authorizes state agencies to administer its hazardous waste program. The RCRA program regulates the generation, transportation, treatment, storage and disposal of hazardous waste. Facilities regulated under the RCRA program must obtain a permit for pesticide storage, processing or disposal which requires compliance with specific performance standards relating to protection of groundwater.
5.2.b. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). U. S. EPA cooperates with designated state agencies to initiate an appropriate response to releases or threatened releases of hazardous substances. The program partially finances cleanup of sites on the National Priorities List, holds polluters liable for the costs of cleanups and establishes a federal notification requirement for hazardous substances release and assists states in monitoring hazardous sites.
5.2.c. Clean Water Act (CWA). Section 106 of the CWA provides funds to states to develop statewide groundwater protection strategies and management programs. Funds provided under Sections 205 (j) (5) and 319 of the CWA allow development and implementation of programs related to prevention and remediation of nonpoint sources of pollution of surface and groundwater, including pollution from pesticides and fertilizers.
5.2.d. Safe Drinking Water Act (SDWA). U. S. EPA may designate sole or principal source aquifers, which have been determined to be sensitive to contamination and if contaminated, would pose a public health risk. No federal funds may be committed to a project if EPA determines that the project may contaminate the designated aquifer. Amendments in 1986 to the SDWA provide a mechanism to fund sole source aquifer demonstration projects for state and local governments for groundwater protection programs, which could include pesticide and fertilizer use related projects.
W. Va. Code R. § 61-22-6 Enforcement Mechanisms
6.1. The prevention of exceedance of health-based water quality standards will be accomplished through use of a two tiered management system (voluntary, followed by mandatory management practices and safeguards) which seeks to identify, prevent and reverse trends toward increasing concentrations of pesticides and fertilizers in groundwater.
6.2. When valid monitoring data or generally accepted computer modeling techniques predict potential contamination by specific chemicals in specific areas or when monitoring shows an increasing trend, voluntary best management practices will be initiated accompanied by an educational effort. Monitoring of the groundwater in the area will increase.
6.3. If despite voluntary measures, monitoring indicates that chemical concentrations continue to increase or contamination exceeding health based standards is documented, mandatory management practices and other regulatory restrictions will be enacted. These practices would then be included as pesticide and fertilizer regulations in the state and would be enforceable under FIFRA and/or state laws. Penalties for violation of pesticide label requirements or state restrictions include revocation of pesticide dealer licenses or pesticide applicator certification and civil penalties or criminal penalties, depending on the severity of the violation. (If the state statutes do not provide for adequate civil or criminal penalties, violations can be referred to the U.S. EPA for prosecution under FIFRA where applicable).
6.4. If, after evaluation of it's effectiveness, the two tiered management system is unsuccessful in preventing standard-exceeding concentrations of pesticides and fertilizers, product registration may be suspended, canceled or restrictions imposed by areas of concern.
6.5. Other regulations which protect groundwater from pesticides and fertilizers will include secondary containment regulations for pesticide and fertilizer storage and mixing, pesticide and container disposal regulations and wellhead protection programs.
6.6. When water quality and health-based standards for pesticides and fertilizers are found to be exceeded by any agency, this information will be forwarded to the Department of Agriculture for a site investigation to determine if a product use pattern or best management practice is ineffective or if a misuse has occurred which may be subject to penalty. This information shall also be shared with other appropriate agencies for their evaluation or to see if other statutes may have been violated.
W. Va. Code R. § 61-22-7 Resource/Technical Expertise
7.1. All existing technical expertise and other resources available in the state will be inventoried and roles and responsibilities of each resource specified.
7.2. Existing and potential funding sources will be identified.
7.3. Where technical expertise or resources or authority are inadequate to meet the objectives of the management plan, these deficiencies will be identified and addressed.
7.4. Technical expertise needed to carry out the management plan include: groundwater vulnerability studies based on soil type and hydrogeologic factors; present cropping and pesticide and fertilizer use patterns in the state; present aquifer use and projected future use; predictive modelling of pesticide and fertilizer groundwater contamination potential; chemical analysis; groundwater monitoring; engineering of structures related to groundwater protection such as secondary containment; training and certification of applicators; pesticide and fertilizer use investigations; development of specific best management practices based on research; and education of pesticide and fertilizer users.
7.5. State agencies which may have needed expertise and resources include the Department of Agriculture, Department of Environmental Protection, Department of Public Health, Geological Survey, Agricultural Experiment station and Extension Service. Federal agencies include U.S. EPA (including Office of Pesticides and Toxic Substances, Office of Drinking Water, Office of Groundwater Protection, Office of Water Regulations and Standards,Office of Solid Wastes, Office of Emergency and Remedial Response), Environmental Resource Conservation Service, Consolidated Farm Service Agency, Animal and Plant Health Inspection Service, USDA Agricultural Research Service, U. S. Army Corps of Engineers, U.S. Forest Service, U. S. Bureau of Land Management and U. S. Geological Survey.
W. Va. Code R. § 61-22-8 Basis for Assessment and Planning
8.1. Vulnerability Assessment
8.1.a. The assessment of the vulnerability of groundwaters to agricultural and non-agricultural point and nonpoint source contamination will require the cooperation of state agencies. Information concerning soil properties, hydrogeology, aquifer properties, usage of pesticides and fertilizers and known contamination will be used to identify areas sensitive to point and nonpoint source pollution. These areas will be targeted for closer examination by the Department of Agriculture or other appropriate agencies.
8.1.b. Data required include: Soil properties: physical, chemical and/or biological properties; unsaturated zone organic carbon and clay content; and rates of water travel through the unsaturated zone. Aquifer properties: depth to groundwater; recharge areas; discharge areas; rates of travel in the saturated zone; and wellhead protection areas. Irrigation and rainfall data. Pesticide and fertilizer usage and leaching data.
8.1.c. Evaluation of the relationships between the above factors will be conducted by all participating agencies using general integrative techniques such as modeling, DRASTIC, and GIS systems to identify areas in the state that appear or are most likely to be vulnerable to contamination. However, more weight will be given to actual data than predictions due to modeling, as modeling is not a definitive predictor of water movement, but the technique is valuable as a reference point.
8.2. Pesticide and Fertilizer Assessment
8.2.a. State management plans will be developed for specific pesticides and fertilizers when either predictive models which indicate likelihood of leaching in vulnerable areas or monitoring data demonstrates an existing or potential problem.
8.2.b. Chemicals of concern will be identified by considering physicochemical properties including: water solubility, soil adsorption, soil degradation, hydrolysis and rate, timing or method or application. Predictive models such as GLEAMS, CREAMS, PRZM and the Environmental Resource Conservation Service pesticide-soil matrix will be utilized. Predicted ground-water concentrations will be compared to health-based water standards to determine chemicals which are predicted to exceed standards under certain conditions or are shown to have an increasing concentration in the groundwater.
8.2.c Use patterns of identified chemicals of concern will be examined along with existing monitoring data. If the chemical has been used extensively in vulnerable areas and monitoring data fails to demonstrate detections exceeding standards or trends which threaten to exceed standards in the future, a management plan is not required. However, if sufficient monitoring data is unavailable or if the chemical in question does not have a history of use in the area and could be used in the future, a management plan could be initiated.
W. Va. Code R. § 61-22-9 Groundwater Contamination Prevention Measures
9.1. General. Contaminated groundwater can be very expensive and sometimes impossible to totally remediate. When contamination occurs from point sources, the origin of the pollutant can be identified and corrective action taken to prevent further contamination. When contamination comes from a nonpoint source, remediation may be more expensive than from point source contamination and may not be technologically or economically feasible. Prevention of unacceptable contamination from pesticides and fertilizers, rather than depending on remediation is the primary goal of this plan.
9.2. Point Source Management. Any pesticide and fertilizer can contaminate wells or groundwater from point sources and all areas of the state can be vulnerable, although areas determined to be more vulnerable to contamination from nonpoint sources will also be more vulnerable to point source contamination. Because of the ubiquitous nature of the point source threat to groundwater, prevention measures will apply to all pesticides and fertilizers. Some measures may be voluntary while other measures are mandatory and described by statue.
9.2.a. Regulations will be adopted to provide for secondary containment at pesticide and fertilizer storage and mixing sites. Likewise, regulations will be adopted to provide for mixing/loading pad requirements, containment at bulk pesticide and fertilizer storage sites and rainwater and surface discharge management at pesticide and fertilizer storage and mixing sites.
9.2.b. Animal waste storage and management, best management practices and/or regulations will be promulgated.
9.3. Wellhead Protection. Activities which may threaten wells will be cataloged, regulated and monitored in wellhead protection zones and may be already covered by statute. State well codes will be assessed to determine if they provide adequate protection. Programs to assist well owners in evaluating construction and maintenance deficiencies and in reconditioning substandard wells will be initiated. Additional wellhead protection practices include:
9.3.a. education on proper well construction and maintenance practices;
9.3.b. conducting pesticide and fertilizer mixing activities a safe distance (100 feet or more) from wells or confining mixing activities to watertight loading pads;
9.3.c. storing pesticides and fertilizer away from wells;
9.3.d. use of anti-backsiphon devices or allowing an air space between the filling hose and liquid in the tank when sprayers are filled at the well or water distribution system and when practicing chemigation;
9.3.e. reduction in sprayer rinsate through use of injection sprayers or on-board sprayer rinsers;
9.3.f. recycling of sprayer rinsate through use as sprayer make-up water; or
9.3.g. avoiding pesticide and fertilizer application within 50 feet of wellheads.
9.4. Other programs will be developed to include:
9.4.a. programs on ground and surface water protection for urban and home use audiences;
9.4.b. programs to collect excess and unusable pesticides for proper disposal;
9.4.c. educational programs to encourage proper triple rinsing or pressure rinsing of pesticide containers;
9.4.d. pesticide container recycling programs; and
9.4.e. public education in schools, civic clubs and other organizations on water resource protection.
9.5. Nonpoint Management Plans
9.5.a. General. Chemical specific management plans addressing nonpoint contamination will be two-tiered, relying on voluntary measures first, with mandatory measures enacted if voluntary measures fail to alleviate contamination.
9.5.b. First Tier Voluntary Management
9.5.b.A. Vulnerability Assessments. Agencies including Cooperative Extension and Environmental Resource Conservation Service will assist landowners and managers with assessments which will determine specific areas vulnerable to groundwater contamination due to conditions such as highly permeable soils, shallow ground water, geological features such as sinkholes, presence of drainage wells and presence of major groundwater recharge areas. Based on conditions found, voluntary management plans will be developed. These plans may include:
9.5.b.A.1. use of alternative pesticides or methods in vulnerable areas;
9.5.b.A.2. sealing dry and abandoned wells;
9.5.b.A.3. changes in rate or timing of pesticide and fertilizer applications;
9.5.b.A.4. buffer strips to protect sinkholes, drainage well inlets and surface water;
9.5.b.A.5. alternate crop rotations;
9.5.b.A.6. conservation tillage to reduce pesticide and fertilizer runoff to sinkholes, drainage well inlets or surface water;
9.5.b.A.7. soil conservation practices such as terracing, contouring, strip cropping and grassed waterways; and
9.5.b.A.8. nutrient management practices such as soil and tissue testing, changes in application timing and use of nitrification inhibitors.
9.5.b.B. State-wide Education Efforts. In addition, state-wide educational efforts will stress the use of management techniques that improve efficiency in the use of pesticides and fertilizers including:
9.5.b.B.1. use of Integrated Crop Management techniques: scouting for pests, use of economic thresholds and considering all pest management options- chemical, cultural and biological;
9.5.b.B.2. use of alternative crop rotations to reduce pest problems or reduce nitrogen fertilizer needs;
9.5.b.B.3. alternative pesticide application techniques such a band and spot application;
9.5.b.B.4. proper calibration and operation of application equipment; and
9.5.b.B.5. intensive soil sampling of fields to allow adjustments in fertilizer and pesticide application rates.
9.5.c. Second Tier Mandatory Management
9.5.c.A. If monitoring detects levels of a pesticide or fertilizer that are already in excess of health-based standards or if voluntary management changes fail to reverse a trend which could cause standards to be exceeded in the future, within a vulnerable area, regulatory restrictions would be imposed by the Department of Agriculture. Limiting restrictions to specific vulnerable areas avoids penalizing non-contributory areas.
9.5.c.B. Examples of restrictions include:
9.5.c.B.1. reductions in rates of application if reduced rates provide efficacious control of pests;
9.5.c.B.2. changes in application timing;
9.5.c.B.3. mandatory set-backs (buffer zones) from points where surface water directly enters groundwater;
9.5.c.B.4. use of specific formulations or additives to reduce leaching risk;
9.5.c.B.5. restricted use designation to limit application to certified applicators;
9.5.c.B.6. prohibition of certain application techniques such as chemigation, soil incorporation or injection;
9.5.c.B.7. required changes in irrigation techniques such as irrigation scheduling and soil moisture determination;
9.5.c.B.8. prohibiting use of certain chemicals in vulnerable areas; or
9.5.c.B.9. mandatory attendance to educational and training programs, ie. special certification for purchase and use.
W. Va. Code R. § 61-22-10 Information Dissemination
10.1. General. Many of the participating agencies involved in the development and implementation of the state management plan have existing programs designed to distribute information associated with their respective responsibilities. Joint efforts involving state agencies, dealers, manufacturers, state agricultural associations, state commodity groups and national associations, such as the Alliance for a Clean Rural Environment (ACRE), can improve the effectiveness of educational efforts and reach a wider audience. Communications media including magazine, newspapers, radio and television will be utilized.
10.1.a. Three major communication avenues will be utilized: licensing and certification, field agents and public education on the application of pesticides and fertilizers.
10.1.b. Audiences targeted for educational efforts include private applicators (certified and noncertified), dealers, commercial pesticide applicators, chemical sales representatives, turfcare operators, landowners, managers and home owners.
10.1.c. On-going state-wide educational programs will be utilized at each level of enforcement to alert pesticide and fertilizer users of voluntary and mandatory management practices and penalties for violations. Mechanisms for such a program include: news releases, agricultural bulletin articles, direct mail, recertification programs, satellite educational broadcasts and special certification for specific active ingredients or use patterns.
10.2. State Agencies serving major educational roles include:
10.2.a. The State Agricultural Extension Service in cooperation with the Department of Agriculture provides training for persons preparing for state department examinations as a means for qualifying for certification as private and commercial pesticide applicators (enabling use of Restricted Use Pesticides). Training qualifying for continuing education required for maintaining certification is also provided. Training on proper pesticide and fertilizer use including groundwater protection practices is also provided to non-certified pesticide applicators. All training programs are periodically updated to include information on current use and application practices, including adoption of state management plans.
10.2.b. The West Virginia Department of Agriculture will include information concerning groundwater protection and state management plans in testing materials for the certification of pesticide business, dealers, commercial and private applicators. Field agents will also publicize changes in regulations during site visits. The Department will also utilize the mass media to publicize state management plans.
W. Va. Code R. § 61-22-11 Monitoring
11.1. General. A key element of the management strategy is the development of an anticipatory monitoring system to identify existing and emerging problems and to assess the success of the management plan.
11.1.a. The West Virginia Department of Agriculture in cooperation with Division of Natural Resources or other appropriate state agencies will design a comprehensive groundwater monitoring program with an EPA reviewed Quality Assurance Quality Control (QA/QC) Plan. This plan specifies field sampling procedures including purging, collection and tagging of samples; collection of field/trip blanks; shipping methodology; and chain of custody procedures.
11.1.b. Monitoring will include random monitoring of rural and public wells as well as repeated monitoring of a network of observation wells. Because of past, undocumented activities near domestic and public wells, it is often difficult to trace sources of pesticide and fertilizer contamination. For example, backsiphoning accidents can result in chemical detections many years after the incident. The use of observation wells installed for the sole purpose of groundwater monitoring eliminates some of the interpretation uncertainties inevitable with existing wells.
11.1.c. Existing wells included in the network must meet the following criteria: wells should have sufficient construction information to evaluate the structural integrity of the well; surface protection such as a well house or concrete slab, must be adequate to prevent contaminants from entering the well via the land surface; preference should be given to shallow wells (<50 feet in total depth), with a few additional wells of the same depth but upgraded for comparison; such wells must not be hand dug and must be accessible for investigation and sample collection, including physical accessibility and a water collection point prior to any treatment system. In addition, wells considered favorable for sampling will not have had pesticides or fertilizers stored, mixed, spilled, or disposed of within 500 feet of the wellhead. Questionable or unofficial data will be used to assist voluntary programs. Mandatory programs will only be initiated upon the obtainment of verifiable official data.
11.1.d. The monitoring well network will be more heavily concentrated in areas that have been identified as vulnerable to potential contamination. Localities considered for observation well installation will be those areas with either confirmed or potential groundwater contamination problems; areas which have had pesticides or fertilizers known to be more subject to leaching applied in large quantities; areas known to contain excessive amounts of nitrate in the soil profile and/or groundwater; those areas which may be sensitive to groundwater pollution due to soil types and/or depth to the water table; or areas where past practices may have caused groundwater quality problems.
11.2. Laboratory Analysis
11.2.a. A qualified laboratory will conduct pesticide and fertilizer analyses using standard EPA approved methods and good laboratory practices (GLP's) and operating under their QA/QC laboratory plan. Water samples determined to contain pesticides or fertilizers will be confirmed by split and repeat analysis. Wells with confirmed analysis will be resampled over time to determine if the sample was contaminated during collection, shipping or analysis and to determine concentration trends.
11.3. Site Investigations
11.3.a. Accurate diagnosis of the causes of well contamination is essential to applying appropriate solutions. To aid in the evaluation of data and to identify problems practices and effective BMP's, a survey will be conducted at each sampling site. Wells with pesticide and fertilizer detections confirmed by repeated sampling over time, will receive a thorough follow-up investigation to determine potential causes of contamination, with particular emphasis on distinguishing point source causes of contamination from nonpoint source causes.
11.3.b Depth and type of well construction and any construction or maintenance deficiencies will be noted, including the potential for surface or shallow groundwater to enter the well. Potential point sources of contamination such as pesticide and fertilizer, storage mixing sites, spills and disposal will be noted. Crops grown within a quarter-mile radius in present and preceding years, pesticide and fertilizer use, application methods and rates will be determined. Specific practices will be noted such as terracing, contour tillage and planting, type of tillage practice and irrigation/chemigation practices.
11.3.c. Geographic and topographic conditions around the well and well use will be noted. The survey will include an inventory of potential contaminate sources within 500 feet of the well such a septic systems, livestock feedlots, landfills, underground storage tanks, golf courses, pesticide and fertilizer storage, tail water holding ponds, irrigation canals and ditches and location of spills. Within one-half mile of the well, locations of chemical plants and/or storage facilities, airports or landing strips, military bases, mines and lakes will be noted.
11.4. Monitoring Data Base
11.4.a. All monitoring data collected by the West Virginia Department of Agriculture in addition to all monitoring data collected by other agencies will be entered into a central data base. Analysis of these data with respect to health-based water standards and concentration trends over time will be used to trigger voluntary or mandatory management changes. These data will also be used to evaluate predictive models. While predictive models may be used to trigger first tier, voluntary BMP's for chemicals of concern, models will not be used to initiate regulatory restrictions.
11.4.b. Monitoring data from the observation wells in vulnerable areas will be used to assess the effectiveness of voluntary and mandatory BMP's and to determine if modifications in BMP's are necessary.
W. Va. Code R. § 61-22-12 Actions in Response to Contamination
12.1. If contamination is predicted based on chemical properties, vulnerability assessment and site vulnerability modelling; the prevention philosophy of the State Management Plan will require the development of voluntary BMP's to be in place without evidence of contamination. Educational programs designed to prevent contamination will focus on those products or practices that have the highest probability of impacting ground water quality.
12.2. When contamination is detected and confirmed by monitoring activities, the well owner will be notified and a site investigation will be conducted to determine if the cause as due to a point source or a nonpoint source.
12.3. If the contamination is determined to be caused by a point source, the case will be referred to the appropriate department for investigation of possible label or code violations and corrective action. Data will be entered in the data base. Concentrations detected will be compared to health-based standards and possible remediation considered if standards are exceeded.
12.4. Nonpoint source
12.4.a. If the cause of contamination is determined to be due to nonpoint sources, data will be entered into the central date base, and additional wells in the area will be monitored and investigated. Using the best professional judgement, several options are available to the department.
12.4.b. If health-based standards are currently exceeded, or if previously obtained monitoring data demonstrate an increasing trend of concentrations such that health-based standards might be exceeded in the future in the absence of changes in management, mandatory practices could be enacted, including possible restriction of use in vulnerable areas.
12.4.c. If current levels of contamination do not exceed health-based standards and there is no documented trend toward exceedance, voluntary BMP's would be implemented along with an educational and awareness program in affected areas.
12.4.d. Intensified monitoring would be carried out in the affected area to determine the success of BMP's. If concentrations found increase over time such that health-based standards might be exceeded in the future, mandatory management practices would be imposed.
W. Va. Code R. § 61-22-13 Public Awareness and Participation
13.1. A Pesticide and Fertilizer Water Quality Management Advisory Committee consisting of scientists with expertise in agriculture, pesticides and fertilizers, hydrogeology, well construction and maintenance and toxicology and growers will be appointed to provide input into development of Management Plans. Public comment will be sought on Management Plan components including voluntary and mandatory BMP's. There will be opportunity for public input through rulemaking processes should mandatory practices be required.
13.2. A public awareness program will publicize the State Management Plan and any adoption of chemical specific plans. This program will advise the agricultural community of opportunities to protect water resources and inform the public of water quality protection actions taken and will include but is not limited to: public hearings, newsletters, public notices, news releases, personal appearances, speaking engagements and select mailings.
13.3. Monitoring results following the confirmation of the presence of pesticides and fertilizers will be publicly disclosed along with their relationship to health-based standards. Public participation and cooperation in the monitoring program will be encouraged. All data (with the exception of the name of the owner and the exact location of the well to maintain confidentiality) will be made available to individuals or organizations conducting research on groundwater contamination and groundwater protection practices.
W. Va. Code R. § 61-22-14 Records/Reporting of Programs Progress
14.1. All monitoring records shall be compiled in a central data base so that short and long-term evaluations can be used to determine the effectiveness of groundwater protection activities. Records of results of all point source cases and possible remediation activities will be maintained.
14.2. Biennially the West Virginia Department of Agriculture will publish a progress report on all activities and make the report available to interested parties.
14.3. Quarterly reports on monitoring results and program activities will be made to EPA. An annual report of all confirmed pesticide and fertilizer detections along with comparative federal health-based standards and point/nonpoint source determination will be published and submitted annually to EPA and other interested parties. The West Virginia Department of Agriculture reserves the right to maintain confidentiality on location of tested wells and guarantee the right of privacy to well owners.
61CSR22
Series 22A Best Management Practices At Temporary Operational For Non-Bulk Pesticide Mixing And Loading Locations
W. Va. Code R. § 61-22A-1 General
1.1. Scope. -- This best management practice establishes the guidelines governing the operation of locations used for the storage and mixing and loading of non-bulk pesticides in temporary operational areas.
1.2. Authority. -- W. Va. Code '19-16A-4.
1.3. Filing Date. -- September 15, 1992.
1.4. Effective Date. -- November 1, 1992.
W. Va. Code R. § 61-22A-2 Definitions
2.1. "Bulk Pesticide " means any registered pesticide which is transported or held in an individual container in undivided quantities of greater than fifty-five (55) U.S. gallons liquid measure or one hundred (100) pounds net dry weight. Such term does not apply to those pesticides packaged in containers approved by the U.S. Department of Transportation for interstate transportation.
2.2. "Discharge" means any spill, leak, deposit, dumping or emptying, either accidental or otherwise, that results in a release of pesticide outside a contained portion of an operational area. Discharge does not include lawful transfer, mixing, loading, unloading, repackaging or refilling of a pesticide provided such transfer, mixing, loading, unloading, repackaging, refilling or other similar activity, if carried out within an operational area containment. In addition, discharge does not include lawful distribution, use, disposal or application of a pesticide.
2.3. "Non-bulk Pesticide" means any liquid or non-liquid pesticides distributed, sold, offered for sale, packaged or repackaged in containers of less that 55 U.S. gallons liquid or 100 pounds net dry weight and includes all pesticides not meeting the definition of bulk pesticides.
2.4. "Operational Area" means in the case of non-bulk pesticides storage or handling facilities or locations, and area or areas where the contents of pesticide containers are transferred between containers, including transfer to application equipment, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, washed or rinsed from containers or application, handling, storage or transportation equipment. An operational area does not include a facility or location that receives and/or distributes pesticides in the manufacturer's original unbroken container and where such containers remain sealed or other wise unopened or areas not falling within the definition of permanent or temporary operational areas defined in this rule.
2.5. "Operational Area Containment" means in the case of non-bulk pesticide storage or handling facilities or location, any structure or system effectively designed and constructed to intercept and contain discharges, including container or equipment wash water, rinsates, and rainwater, and to prevent escape, run-off and leaching from an operational area.
2.6. "Permanent Operational Area" means an operational area where either pesticide concentrates or use dilution mixtures in excess of 300 U.S. gallons of liquid or 3,000 pounds of net dry weight are transferred, loaded, unloaded, mixed, repackaged, refilled, or cleaned, washed or rinsed from containers or application, handling, storage or transportation equipment over a 30 day period either consecutive or cumulative during a calendar year. Permanent non-bulk operational areas are addressed by legislative rule 61 CSR 12H.
2.7. "Temporary Operational Area" means an operational area that is not a permanent operational area. A temporary operational area does not include the operational area activities carried out within the field or site of application provided these activities occur no more than three times per calendar year at the same location for a period not exceeding 36 hours total and does not include the area in and around a private dwelling where a resident of that dwelling is conducting incidental activities associated with pesticide use in and around such dwelling that otherwise fall within the scope and definition of an operational area.
W. Va. Code R. § 61-22A-3 Recommendations for Temporary Operational Areas
3.1. General. The commissioner recommends that any person storing, mixing, or repackaging pesticides, or refilling pesticide containers perform these activities in the following manner.
3.1.a. All operational area activities should be conducted or carried out within operational area containment. Such containment should be properly maintained at all times when operational activities are occurring.
3.1.b. Operational area activities should be carried out on an impervious surface, such as a concrete pad or other similar pad approved by the Commissioner, that is suitably coated with a material to retard absorption of discharges and to facilitate recovery of any discharged materials.
3.1.c. The operational area containment should be constructed of materials and in a manner that will withstand the weight and movement of any equipment that may be placed or parked within the operational area containment.
3.1.d. The operational area containment should be designed to catch and contain any discharges that are occurring in the operational area and should be constructed of materials and in a manner that will contain reasonably foreseeable discharges.
3.1.d.A. For liquid pesticides, including container and equipment rinsates and those mixed with a liquid or dry carrier, the operational area containment should be curbed or sloped to contain discharges so as to facilitate recovery of discharged materials. Discharges should be immediately recovered from the operational area containment. Rainfall or other liquids should not be allowed to flow either onto or out of the operational area containment unless a suitable recovery or storage facility is provided to collect, divert or manage the rainfall. The operational area containment should be capable of holding 125% of the capacity of the single largest container or vehicle operated within the operational area. A minimum containment capacity of 250 U.S. gallons should be provided.
3.1.d.B. For non-liquid pesticides, the operational area containment should extend beneath any conveyers or augers used in operational area activities unless such conveyers or augers are fully enclosed and constructed to prevent discharge. Operational area containment should be of adequate dimension (area) to contain reasonably foreseeable discharges from the largest container or equipment operated within the operational area containment. The operational area containment for non-liquid pesticides may consist of a tarpaulin made of nonabsorbent materials which is of adequate thickness and construction to withstand all foreseeable loading conditions, and is generally compatible with the materials stored or placed thereon. Discharges should be immediately recovered from the operational area containment. Rainfall or other liquids should not be allowed to flow either onto or out of the operational area containment unless a suitable recovery or storage facility is provided to collect, divert or manage rainfall.
3.1.e. Underground storage of recovered discharges from the operational area containment is highly discouraged and may be regulated by underground storage laws.. This does not preclude the use of approved sumps, which meet applicable state and federal requirements, that are incorporated into the design of the operational area and are maintained and operated according to a plan approved by the commissioner.
3.2. Ground Operations. The commissioner recommends the following additional specifications should apply for ground operational area activities conducted or carried out within a temporary operational area:
3.2.a. For containers or equipment with holding capacity of 10 gallons or less volume, or 50 pounds of net dry weight or less, the operational area containment should contain 100% of these capacities.
3.2.b. For containers or equipment with liquid material holding capacity of greater than 10 gallons volume, the operational area containment should contain a minimum volume of 25 gallons plus 10% of the total capacity of the container or equipment. All discharges should be immediately recovered.
3.2.c. For containers or equipment with non-liquid material holding capacity of greater than 50 pounds net dry weight, the operational area containment surface should be of adequate dimension (area) to contain reasonably foreseeable discharges from the container or equipment and provide containment for discharges that may occur at various points along conveyers or handling equipment and provide containment for discharges that may occur at various points along conveyers or handling equipment. All discharges should be immediately recovered. Tarpaulins or other suitable synthetic materials may be utilized for non-liquid materials provided they are made of non absorbent materials which are of adequate thickness and construction to withstand all foreseeable loading conditions and are generally compatible with the materials to be contained.
3.2.d. Operational area containment provided at temporary operational areas may be portable and should be capable of allowing discharges to be immediately and fully recovered, to the extent practicable, and be easily cleaned or washed after use.
3.2.e. Rainfall or other liquids should not be allowed to flow either onto or out of the temporary operational area containment while it is in use. Suitable protective measures should be implemented to protect non-liquid materials stored out-of-doors from rainfall.
3.3. Aerial Operations. The commissioner recommends the following additional specifications should apply for aerial operational area activities conducted or carried out within a temporary operational areas.
3.3.a. All operational area activities, including those associated with non-aircraft pesticide handling equipment, should be conducted or carried out within operational area containment. Such containment may be permanent or portable and should meet all of the following requirements:
3.3.b. Operational area containment should contain any discharge that may occur from any portion of the aircraft's pesticide application system.
3.3.c. The capacity of the operational area containment should be at least 125% the maximum volume of the aircraft's pesticide application system capacity.
3.3.d. The operational area containment should be constructed of concrete, steel or synthetic materials that are resistant to corrosion, puncture or cracking, and that are chemically compatible with the pesticides handled within the operational area. A written confirmation of compatibility of synthetic materials should be kept at the operational area or at the nearest local office of the person responsible for operation of the aircraft.
3.3.e. The operational area containment should be designed and constructed to withstand the weight and movement of any equipment that may be placed or parked within the operational area containment.
3.3.f. Rainfall or other liquids should not be allowed to flow either onto or out of the operational area containment unless a suitable recovery or storage facility is provided to divert or to manage the rainfall.
W. Va. Code R. § 61-22A-4 Recovery, Storage and Use of Discharges
4.1. All discharges within the operational area containment shall be immediately and fully recovered, to the extent practicable, using appropriate absorbent materials, pumps or other acceptable means. Operational area surfaces exposed to pesticides (concentrate or dilute) should be periodically cleaned with all rinsates recovered and properly stored or disposed of according to state requirements. Recovered discharges should not be stored below ground except as provided in 3.2.c, but could be stored in suitable containers above ground provided secondary containment provisions are considered. Recovered discharges may be used according to applicable product label(s) if appropriate.
61CSR22A
Series 22B Best Management Practices For Fertilizers And Manures
W. Va. Code R. § 61-22B-1 General
1.1. Scope. -- The rules establish voluntary best management practices to prevent or minimize the entry of nutrients from fertilizers and manures into groundwater while maintaining and improving the soil and plant resources of this state.
1.2. Authority. -- W. Va. Code '22-12-5(c).
1.3. Filing Date. -- November 5, 1992.
1.4. Effective Date. -- December 6, 1992.
1.5. This is a new procedural rule.
W. Va. Code R. § 61-22B-2 Definitions
2.1. "Best Management Practices" means activities, procedures and practices to prevent or remedy the introduction of fertilizer or manure residues into groundwater to the extent technically feasible and economically practical. Best Management Practices are designed to maintain the health and long-term productivity of the soil, water and related plant and animal resources and to minimize the threat of soil, waste and nutrient contamination to the waters of the state.
2.2. "Commissioner" means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
2.3. "Fertigation" means the application of fertilizers or manures by an irrigation system.
2.4. "Fertilizer" means any substance containing one or more recognized plant nutrients which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth. The term fertilizer does not include agricultural liming materials, wood ashes, gypsum, unmanipulated animal or vegetable manures and other products exempted by regulation of the commissioner.
2.5. "Manure" means any substance composed of excreta of animals, other than man, and may include bedding or other materials normally associated with the substance as well as water associated with or added to the substance.
2.6. "Non-point source" means a diffuse source of substances that have the potential to impair the beneficial uses of groundwater resulting from activities over a relatively large area, the effects of which must normally be addressed or controlled by a management or conservation practice.
2.7. "Point source" means a source of substances that have the potential to impair the beneficial uses of groundwater resulting from an activity over a small area and generally is limited to mixing, loading and storage sites or feedlots. A source is not considered a point source until a discharge of substances occurs.
2.8. "Twenty-five (25) year twenty-four (24) hour rainfall event" means the maximum 24-hour precipitation event with a probable recurrence interval of once in twenty-five (25) years, as defined by the National Weather Service, U.S. Department of Commerce, in Technical Paper Number 40, "Rainfall Frequency Atlas of the United States", May 1961, and subsequent amendments, or equivalent regional or state rainfall probability information developed therefrom.
W. Va. Code R. § 61-22B-3 Protection of Groundwater From Point Sources
3.1. Each person should store and handle fertilizers and manures in a manner to prevent pollution by minimizing losses to the groundwaters in this state.
3.2. Each person should store fertilizers inside a sound structure or device having a cover or roof top, sidewalls, and a base sufficient to prevent contact with precipitation and surface water. Each person should store manure in a facility that meets or exceeds the standards of the Soil Conservation Service Field Office Technical Guide. If these conditions are not met then no person should store fertilizer or manure:
3.2.a. without a tarpaulin or other suitable covering to prevent seepage or run-off to surface or groundwater;
3.2.b. on land within one hundred (100) feet of shallow wells, or wells that do not meet the Water Well Design Standards set by WV 64 CSR 46 et seq. (effective June 8, 1984);
3.2.c. on land within fifty (50) feet from surface water, including springs, ponds, wet areas or other collection points for surface water;
3.2.d. on land within fifty (50) feet of an open portal of a sinkhole;
3.2.e. on land that has a slope greater than fifteen percent (15%), unless measures are taken to divert runoff of precipitation from the slopes above the storage area from the fertilizer or manure;
3.2.f. on land that has a seasonable groundwater table that is less than two (2) feet from the surface;
3.2.g. on land that has less than twenty (20) inches of soil over bedrock or an impervious pan; or
3.2.h. on land that has a reasonable expectation of having a flood event resulting from a twenty-five (25) year - twenty-four (24) hour frequency storm during the storage period.
3.3. Each person should conduct mixing and loading operations for liquid fertilizers or for fertilizers containing pesticides at least one hundred (100) feet from any wellhead or within a watertight loading pad.
3.4. When cleaning equipment used for storing or applying fertilizers or manures, each person should use extreme care that waste water or spillage from the operation is recovered and applied at normal agronomic rates or otherwise disposed of in a manner that will not contaminate groundwater.
3.5. All persons owning a dry or abandoned well in the area where fertilizers or manures are stored and used should plug the well according to the Water Well Design Standards WV 64 CSR 46 et seq. (effective June 8, 1984).
3.6. All persons practicing fertigation should use a proper antibacksiphon device.
W. Va. Code R. § 61-22B-4 Protection of Groundwater From Non-Point Sources
4.1. No person should apply manure or fertilizers containing nitrogen to land:
4.1.a. with less than ten (10) inches of soil over fractured bedrock;
4.1.b. that is snow-covered and frozen, frozen or saturated;
4.1.c. within fifty (50) feet of a wellhead;
4.1.d. that is in imminent danger of being inundated by floodwater; or
4.1.e. that drains into a sinkhole with an open portal unless that sinkhole has a twenty (20) foot vegetative buffer zone with at least ninety percent (90%) of the land in the buffer zone covered with vegetation.
4.2. No person should apply fertilizers containing nitrogen to land that has coarse textured soils when the application occurs in the fall, unless that application is made to support the growth of a fall cover crop.
4.3. Each person applying fertilizers or manures should:
4.3.a. utilize alternate crop rotations to reduce the amount of fertilizers or manures needed to maintain crop production and to utilize nitrogen residuals in the soil;
4.3.b. utilize practices to enhance soil condition that reduces nitrate leaching (such as practices to improve soil tilth and increase organic matter of the soil);
4.3.c. utilize conservation tillage, grassed waterways, contouring, vegetative buffer zones or other effective conservation practices to reduce fertilizer or manure residue runoff into sinkholes, wells or other potential sites for groundwater contamination;
4.3.d. plan the application of fertilizers containing nitrogen so that the application is made as close as practically possible to the time when the crop requires the nitrogen;
4.3.e. apply fertilizers or manures based on a rate recommended after soil tests, plant tissue testing and/or manure content testing;
4.3.f. apply nitrogen from a combination of fertilizer and/or manure at rates that supply no more than one hundred twenty-five percent (125%) of the demonstrated need of the crop, based on soil test, plant tissue test or estimated from yield goal, previous crop, manure management, and soil properties as recommended by a laboratory or soils specialist/agronomist;
4.3.g. calibrate application equipment to assure proper application rates; and
4.3.h. avoid application to a field that has an average slope of greater than twenty-five percent (25%) unless that application is needed to establish or maintain close-grown grasses and/or clovers for the control of erosion; provided that suitable procedures are used to prevent runoff containing these residues from moving into groundwater when application is made to slopes of greater than twenty-five percent (25%).
61CSR22B
Series 23A West Virginia Fish Processing Rules
W. Va. Code R. § 61-23A-1 General
1.1. Scope. -- This rule is intended to provide a vehicle for uniform inspection of fish processing facilities in the state with the purpose of assuring the highest quality and safety of the finished product as possible.
1.2. Authority. -- W. Va. Code ''19-29-1,3 and 4.
1.3. Filing Date. -- May 7, 2025.
1.4. Effective Date. -- May 7, 2025.
1.5. Sunset Date. -- This rule shall terminate and have nor further force or effect on August 1, 2034.
W. Va. Code R. § 61-23A-2 Incorporated by Reference
2.1. The following documents are adopted in their entirety:
2.1.a. 21 CFR parts 123 and 1240.60;
2.1.b. The U. S. Food and Drug Administration "Fish and Fishery Products Hazards and Controls Guidance";
2.1.c. The U. S. Food and Drug Administration "National Shellfish Sanitation Program Manual of Operations Part I Sanitation of Shellfish Growing Areas" & " Part II Sanitation of the Harvesting, Processing and Distribution of Shellfish";
2.1.d. 21CFR part 117 Current Good Manufacturing Practice, Hazardous Analysis, and Risk Based preventative Controls for Human Food.
2.1.e. The Seafood List, FDA's Guide to Acceptable Market Names for Seafood Sold In Interstate Commerce.
W. Va. Code R. § 61-23A-3 Definitions
3.1. "Adulterated" means a fish or fishery product carries or contains any poisonous or deleterious substance or compound or pathogen in a quantity that may render it injurious to human health; was produced, processed, transported or held under unsanitary conditions; was treated with or exposed to chemicals, chemotherapeutics (drugs), heavy metals, pesticides, temperatures or any conditions in a manner that violates this rule; or was not produced according to an approved Hazard Analysis Critical Control Point (HACCP) plan.
3.2. "Aquaculture" means the commercial production of fish or other aquatic life.
3.3. "Commissioner" means the Commissioner of Agriculture or his or her designee.
3.4. "Establishment number" means an official number assigned by the commissioner to each fish processing plant and included on the label or container of all fishery products produced by that plant.
3.5. "Fish" means fresh or saltwater finfish, crustaceans, and other forms of aquatic life (including but not limited to, alligators, frogs, aquatic turtles, jellyfishes, and sea urchins and the roe of those animals) other than birds or mammals, and mollusks, where the animal life is intended for human consumption.
3.6. "Fishery Product" means any human food product in which fish is a characterizing ingredient.
3.7. "Food safety hazard" means any biological, chemical, or physical property that may cause a food to be unsafe for human consumption.
3.8. "Lot number" means a legible and permanently marked number on each container of cooked ready-to-eat and smoked fishery products which identifies the date the product was packaged.
3.9. "Modified atmosphere-packaging" means the food-packaging technique in which the air in the package or container is replaced by one or more gases, in various concentrations, before sealing. The purpose of this type of packaging is to extend the refrigerated shelf life of the product by limiting microbial growth or detrimental changes in the food.
3.10. "Official Sample" means any sample of water, soil, fish, feed, drugs, pesticides, other ingredients, containers and/or products taken by the commissioner in accordance with this rule.
3.11. "Processing" means handling, storing, heading, gutting, shucking, freezing, changing into different market forms, manufacturing, preserving, packing, labeling, or holding. This definition does not apply to the operation of a retail establishment.
3.12. "Sanitary Zone" means a separation of operations by location, partition, air flow, or enclosed systems.
3.13. "Risk Assessment Basis" means considering grades from past inspections, violations, trends, conditions, observations and other information to estimate the likelihood of a danger or safety hazard occurring and to determine the frequency and priority of future inspections.
3.14. "Smoked or smoke-flavored fishery products@ means the finished food prepared by: (1) Treating fish with salt (sodium chloride), and (2) Subjecting it to the direct action of smoke from burning wood, sawdust, or a similar material and/or imparting to it the flavor of smoke by a means such as immersing it in a solution of wood smoke.
3.15. "Vacuum-packaged" means the food-packaging technique in which air in a package is removed before sealing.
3.16. "Water-phase salt content" means the percent salt(sodium chloride)in the finished product as determined by the method of analysis for water-phase salt content on the "Official Methods of Analysis of the Association of Official Analytical Chemists,"
3.17. "Wholesome" means in sound condition, clean, free from adulteration, and otherwise suitable for use as human food.
W. Va. Code R. § 61-23A-4 Powers and Duties of the Commissioner
4.1. The commissioner may:
4.1.a. Enter and inspect, during reasonable hours, any location, except fish hatcheries operated by the State of West Virginia or the United States of America, where fish or fishery products are processed, sold, stored or transported for human consumption. The inspection may include, but is not limited to photographing, video taping, verifying, copying, and auditing computer files, records and papers relating to the processing of fish for human food as is necessary to determine compliance with this rule and to investigate consumer complaints.
4.1.a.1. The inspection also may include, but is not limited to photographing, video taping, verifying, and observing the premises, vehicles, personnel and activities;
4.1.b. Examine, sample and test water, fish, pesticides, raw materials, other ingredients, containers, packaging, and products used or intended for use in the processing, storage, sale or transportation of fish or fishery products for human consumption;
4.1.c. Cooperate with and enter into agreements with governmental agencies of this state and any other states, agencies of the federal government and foreign governments, and private associations in order to carry out the purpose and provisions of this rule;
4.1.d. Detain, embargo, or quarantine fish or fishery products, processing areas, holding area, or transporting vehicles by affixing onto the detained, embargoed or quarantined item a tag or other appropriate marking, and giving notice of the detention, embargo or quarantine in writing to the processor, holder or transporter. The Commissioner may take this action when fish or fishery products have been found to be or are believed to be:
4.1.d.1. In violation of the provisions of this rule; or
4.1.d.2. Infected with a human pathogen that could present a public health safety hazard.
4.1.d.2.a. Upon confirmation of a violation of this rule or the presence of a human pathogen, the Commissioner may seize and/or condemn the fish or fishery product and order the fish or fishery product disposed of as necessary to ensure the safety of consumers.
4.1.e. Embargo, detain, or quarantine a perishable product, even if the practical result is to bring about the involuntary disposal of the product.
4.1.e.1. The Commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this rule 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 rule;
4.1.f. Issue, suspend, revoke or deny licenses in accordance with this rule;
4.1.g. Inspect and/or copy all records required by this rule. All requested records must be made available to the commissioner within 24 hours of his or her request. Records kept on computer files shall have a backup file on a separate disk, or hardcopy;
4.1.h. Develop appropriate inspection, embargo, quarantine, detainment and other regulatory forms as necessary for the enforcement of this rule; and
4.1.i. Assess civil penalties and refer violations to a court of competent jurisdiction for the violation of this rule. Nothing in this rule shall be construed as requiring the commissioner to assess a civil penalty, report for prosecution or institute an embargo, detainment, or quarantine for the violation of this rule when he or she believes that the public interest may best be served by a written notice.
4.2. The Commissioner shall be guided by the analytical test results when determining whether fish or fishery products conform to this rule and other rules and laws of the State of West Virginia.
4.3. The Commissioner shall provide assistance, education, information, and training on The Hazard Analysis Critical Control Point system to improve the safety and quality of the aquaculture industry in West Virginia.
W. Va. Code R. § 61-23A-5 Hazard Analysis and Hazard Analysis Critical Control Point (HACCP) Plan
5.1. Hazard analysis. Every processor shall conduct, or have conducted for it, a hazard analysis to determine whether there are food safety hazards that are reasonably likely to occur for each kind of fish and fishery product processed by that processor and to identify the preventive measures that the processor can apply to control those hazards. These food safety hazards can be introduced both within and outside the processing plant environment, including food safety hazards that can occur before, during, and after harvest. A food safety hazard that is reasonably likely to occur is one for which a prudent processor would establish controls because experience, illness data, scientific reports, or other information provide a basis to conclude that there is a reasonable possibility that it will occur in the particular type of fish or fishery product being processed in the absence of those controls.
5.2. Every processor shall have and implement a written HACCP plan whenever a hazard analysis reveals one or more food safety hazards that are reasonably likely to occur, as described in subsection 5.1. of this section. A HACCP plan shall be specific to:
5.2.a. Each location where fish and fishery products are processed by that processor; and
5.2.b. Each kind of fish and fishery product processed by the processor. The plan may group kinds of fish and fishery products together, or group kinds of production methods together, if the food safety hazards, critical control points, critical limits, and procedures required to be identified and performed in subsection 5.3. of this section are identical for all fish and fishery products grouped together or for all production methods grouped together.
5.3. The contents of the HACCP plan. The HACCP plan shall, at a minimum:
5.3.a. List the food safety hazards that are reasonably likely to occur, as identified in accordance with subsection 5.1 of this section, and that thus must be controlled for each fish and fishery product. The processor shall list food safety hazards that are reasonably likely to occur as a result of the following:
5.3.a.1. Natural toxins;
5.3.a.2. Microbiological contamination;
5.3.a.3. Chemical contamination;
5.3.a.4. Pesticides;
5.3.a.5. Drug residues;
5.3.a.6. Decomposition in scombroid toxin-forming species or in any other species where a food safety hazard has been associated with decomposition;
5.3.a.7. Parasites, where the processor has knowledge or has reason to know that the parasite-containing fish or fishery product will be consumed without a process sufficient to kill the parasites, or where the processor represents, labels, or intends for the product to be consumed without a process sufficient to kill the parasites;
5.3.a.8. Unapproved use of direct or indirect food or color additives; and
5.3.a.9. Physical hazards;
5.3.b. List the critical control points for each of the identified food safety hazards, including as appropriate:
5.3.b.1. Critical control points designed to control food safety hazards that could be introduced in the processing plant environment; and
5.3.b.2. Critical control points designed to control food safety hazards introduced outside the processing plant environment, including food safety hazards that occur before, during, and after harvest;
5.3.c. List the critical limits that must be met at each of the critical control points;
5.3.d. List the procedures, and their frequency, that will be used to monitor each of the critical control points to ensure compliance with the critical limits;
5.3.e. Include any corrective action plans that have been developed in accordance with subsection 6.2. of this rule, to be followed in response to deviations from critical limits at critical control points;
5.3.f. List the verification procedures, and their frequency, that the processor will use in accordance with subsection 7.1. of this rule;
5.3.g. Provide for a recordkeeping system that documents the monitoring of the critical control points. The records shall contain the actual values and observations obtained during monitoring.
5.3.h. The HACCP plan shall be signed and dated, either by the most responsible individual onsite at the processing facility or by a higher level official of the processor. This signature signifies that the HACCP plan has been accepted for implementation by the firm. The HACCP plan shall be dated and signed:
5.3.h.1. Upon initial acceptance;
5.3.h.2. Upon any modification; and
5.3.h.3. Upon verification of the plan in accordance with subdivision 7.1.a of this rule.
5.4. Sanitation controls may be included in the HACCP plan. However, to the extent that they are monitored in accordance with subsection 10.2 of this rule they need not be included in the HACCP plan, and vice versa.
5.5. A processor which fails to have and implement a HACCP plan that complies with this section whenever a HACCP plan is necessary or otherwise fail to operate in accordance with the requirements of this rule, renders the fish or fishery products of that processor adulterated. The Commissioner or his/her designee shall determine whether a processor's actions are consistent with ensuring the safety of food through an evaluation of the processors overall implementation of its HACCP plan, if one is required.
W. Va. Code R. § 61-23A-6 Corrective Actions
6.1. Whenever a deviation from a critical limit occurs, a processor shall take corrective action either by:
6.1.a. Following a corrective action plan that is appropriate for the particular deviation, or
6.1.b. Following the procedures set forth in subsection 6.3 of this section.
6.2. A processor may develop written corrective action plans, which become part of the processor=s HACCP plan in accordance with section 5.7 of this rule, by which the processor predetermines the corrective actions that the processor will take whenever there is a deviation from a critical limit. A corrective action plan that is appropriate for a particular deviation is one that describes the steps to be taken and assigns responsibility for taking those steps, to ensure that:
6.2.a. No product enters commerce that is either injurious to health or is otherwise adulterated as a result of the deviation; and
6.2.b. The cause of the deviation is corrected.
6.3. When a deviation from a critical limit occurs and the processor does not have a corrective action plan that is appropriate for that deviation, the processor shall:
6.3.a. Segregate and hold the affected product, at least until the requirements of subdivisions 6.3.b. and 6.3.c. of this section are met;
6.3.b. Perform or obtain a review to determine the acceptability of the affected product for distribution. The review shall be performed by an individual or individuals who have adequate training or experience to perform the review;
6.3.c. Take corrective action, when necessary, with respect to the affected product to ensure that no product enters commerce that is either injurious to health or is otherwise adulterated as a result of the deviation;
6.3.d. Take corrective action, when necessary, to correct the cause of the deviation; and
6.3.e. Perform or obtain timely reassessment by an individual or individuals who have been trained in accordance with section 9 of this rule., to determine whether the HACCP plan needs to be modified to reduce the risk of recurrence of the deviation, and modify the HACCP plan as necessary.
6.4. The processor shall fully document all corrective actions taken in accordance with this section in records that are subject to verification in accordance with paragraph 7.1.c.2. of this rule and the recordkeeping requirements of section 8 of this rule.
W. Va. Code R. § 61-23A-7 Verification
7.1. Overall verification. Every processor shall verify that its HACCP plan is adequate to control food safety hazards that are reasonably likely to occur, and that the plan is being effectively implemented. Verification shall include, at a minimum:
7.1.a. Reassessment of the HACCP plan. A reassessment of the adequacy of the HACCP plan is required whenever any changes occur that could affect the hazard analysis or alter the HACCP plan in any way or at least annually. These changes may include changes in the following: Raw materials or the source of raw materials, product formulation, processing methods or systems, finished product distribution systems, or the intended use or consumers of the finished product. The reassessment shall be performed by an individual or individuals who have been trained in accordance with section 9 of this rule. Processors are required to immediately modify their HACCP plan whenever a reassessment reveals that the plan is no longer adequate to fully meet the requirements of section 5 of this rule.
7.1.b. Ongoing verification activities. Ongoing verification activities include:
7.1.b.1. A review of any consumer complaints that have been received by the processor to determine whether they relate to the performance of critical control points or reveal the existence of unidentified critical control points;
7.1.b.2. The calibration of process-monitoring instruments; and,
7.1.b.3. At the option of the processor, the performing of periodic end-product or in-process testing; and,
7.1.c. Records review. A review, including the signing and dating, by an individual who has been trained in accordance with section 9 of this rule, of the records that document:
7.1.c.1 The monitoring of critical control points. The purpose of this review is, at a minimum, to ensure that the records are complete and to verify that they document values that are within the critical limits. This review shall occur within 1 week of the day that the records are made;
7.1.c.2. The taking of corrective actions. The purpose of this review is, at a minimum, to ensure that the records are complete and to verify that appropriate corrective actions were taken in accordance with section 6 of this rule. This review shall occur within 1 week of the day that the records are made; and
7.1.c.3 The calibrating of any process control instruments used at critical control points and the performing of any periodic end-product or in-process testing that is part of the processor's verification activities. The purpose of these reviews is, at a minimum, to ensure that the records are complete, and that these activities occurred in accordance with the processor's written procedures. These reviews shall occur within a reasonable time after the records are made.
7.2. Corrective actions. A processor shall immediately follow the procedures in section 6 of this rule. whenever any verification procedure, including the review of a consumer complaint, reveals the need to take a corrective action.
7.3. Reassessment of the hazard analysis. Whenever a processor does not have a HACCP plan because a hazard analysis has revealed no food safety hazards that are reasonably likely to occur, the processor shall reassess the adequacy of that hazard analysis whenever there are any changes that could reasonably affect whether a food safety hazard now exists. These changes may include, but are not limited to changes in: Raw materials or the source of raw materials, product formulation, processing methods or systems, finished product distribution systems, or the intended use or consumers of the finished product. The reassessment shall be performed by an individual or individuals who have been trained in accordance with section 9 of this rule.
7.4. Recordkeeping. The processor shall document, in records that are subject to the recordkeeping requirements of section 8 of this rule, the calibration of process-monitoring instruments, and the performing of any periodic end-product and in-process testing, in accordance with paragraphs 7.1.b.2. through 7.1.b.3. of this section
W. Va. Code R. § 61-23A-8 Records
8.1. General record requirements. All records required by this section shall include:
8.1.a. The name and location of the processor or importer;
8.1.b. The date and time of the activity that the record reflects;
8.1.c. The signature or initials of the person performing the operation; and
8.1.d. Where appropriate, the identity of the product and the production code, if any. Processing and other information shall be entered on records at the time that it is observed.
8.2. Record Retention
8.2.a. All records required by this section shall be retained at the processing facility or importer's place of business in the United States for at least 1 year after the date they were prepared in the case of refrigerated products and for at least 2 years after the date they were prepared in the case of frozen, preserved, or shelf-stable products.
8.2.b. Records that relate to the general adequacy of equipment or processes being used by a processor, including the results of scientific studies and evaluations, shall be retained at the processing facility or the importer's place of business in the United States for at least 2 years after their applicability to the product being produced at the facility.
8.2.c. A processor may transfer records to a reasonably accessible location other than the packing site only if the processing facility is closed for a prolonged period between seasonal packs, or if record storage capacity is limited at a remote processing site; however, a processor is required to immediately return the records to the packing site for official review by the Commissioner or his/her designee upon demand.
8.3. Official review. All records required by this section and all plans and procedures required by this section shall be available for review and copying by the Commissioner or his/her designee at reasonable times.
8.4. Records maintained on computers. A processor or importer may maintain its records on computers, provided that appropriate controls are implemented to ensure the integrity of the electronic data and signatures.
8.5. Every operator of a fish processing plant shall keep a record of every transaction involving the sale and distribution of processed fish and fishery products. The records, in addition to the names and addresses of the persons or firms involved shall contain the code numbers of each lot involved.
8.6. Fish processing records shall be legibly written, printed or filed on electronic media in English and shall identify the product processed, identifying lot code, the number of containers per coding interval, and the year, and day and period when each lot was packaged.
W. Va. Code R. § 61-23A-9 Training
9.1. In order to qualify to perform the following functions, an individual shall submit documentation to the Commissioner that he or she has successfully completed training in the application of HACCP principles to fish and fishery product processing at least equivalent to that received under standardized curriculum recognized as adequate by the U.S. Food and Drug Administration or is otherwise qualified through job experience to perform these functions. The Commissioner may approve job experience to qualify an individual to perform these functions if it has provided knowledge at least equivalent to that provided through the standardized curriculum as documented by the individual. A qualified individual may:
9.1.a. Develop a HACCP plan, which could include adapting a model or generic-type HACCP plan, that is appropriate for a specific processor, in order to meet the requirements of subsection 5.2 of this rule;
9.1.b. Reassess and modify the HACCP plan in accordance with the corrective action procedures specified in subdivision 6.3.c. of this rule, the HACCP plan in accordance with the verification activities specified in subdivision 7.1.a. of this rule, and the hazard analysis in accordance with the verification activities specified in section 7.3 of this rule; and
9.1.c. Perform the record review required by subdivision 7.1.c. of this rule; The qualified individual need not be an employee of the processor.
W. Va. Code R. § 61-23A-10 Sanitation Control Procedures
10.1. Sanitation SOP. The Commissioner recommends each processor have and implement a written sanitation standard operating procedure (SSOP) or similar document that is specific to each location where fish and fishery products are produced. The Commissioner recommends the SSOP specify how the processor will meet those sanitation conditions and practices that are to be monitored in accordance with subsection 10.2 of this section.
10.2. Sanitation monitoring. Each processor shall monitor the conditions and practices during processing with sufficient frequency to ensure, at a minimum, conformance with those conditions and practices specified in 21 CFR Part 110 adopted by reference in subdivision 2.1.d. of this rule, that are both appropriate to the plant and the food being processed and relate to the following:
10.2.a. The safety of the water that comes into contact with food or food contact surfaces, or is used in the manufacture of ice;
10.2.b. The condition and cleanliness of food contact surfaces, including utensils, gloves, and outer garments;
10.2.c. The prevention of cross-contamination from insanitary objects to food, food packaging material, and other food contact surfaces, including utensils, gloves, and outer garments, and from raw product to cooked product;
10.2.d. The maintenance of hand washing, hand sanitizing, and toilet facilities;
10.2.e. The protection of food, food packaging material, and food contact surfaces from adulteration with lubricants, fuel, pesticides, cleaning compounds, sanitizing agents, condensate, and other chemical, physical, and biological contaminants;
10.2.f. The proper labeling, storage, and use of toxic compounds;
10.2.g. The control of employee health conditions that could result in the microbiological contamination of food, food packaging materials, and food contact surfaces; and
10.2.h. The exclusion of pests from the food plant.
10.2.i. The processor shall correct in a timely manner, those sanitation conditions and practices that are not met.
10.3. Sanitation control records. Each processor shall maintain sanitation control records that, at a minimum, document the monitoring and corrections prescribed by subsection 10.2 of this section. These records are subject to the requirements of section 8 of this rule.
10.4. Relationship to HACCP plan. Sanitation controls may be included in the HACCP plan, required by subsection 5.3 of this rule; however, to the extent that they are monitored in accordance with subsection 10.2 of this section they need not be included in the HACCP plan.
W. Va. Code R. § 61-23A-11 Processor Licensing
11.1. All commercial processors in the state of West Virginia shall:
11.1.a. Apply for a fish processing license from the Commissioner;
11.1.b. Submit a HACCP plan to the Commissioner with the request for licensing;
11.1.b.1. After the review of the HACCP Plan is considered adequate, the Commissioner may provisionally approve the HACCP Plan. Once the processor has successfully completed all the other requirements for licensing and has been issued a license, he/she may operate under the provisionally approved HACCP plan. The Commissioner shall review the actual operation of the HACCP plan, and may require revisions as necessary to protect the health and safety of consumers.
11.1.c. Submit for review and approval three(3) complete sets of blueprints or drawings with specifications that fully and clearly illustrate plans to which the applicant proposes to have the facility constructed or modified;
11.1.d. Submit to the West Virginia Department of Agriculture, with the request for licensing, a letter from the State or County Health Authorities stating that the plant=s sewage system is acceptable;
11.1.e. Submit to the West Virginia Department of Agriculture, with the request for licensing, a letter from the State or County Health Authorities stating that the plant=s potable water supply has been tested and is acceptable;
11.1.f. Submit the fee required in this subdivision along with application for license:
Average Finished Product Poundage Annual Class Processed Per Year Fee Small 1-25,000 $25.00 Medium 25,001 - 50,000 $50.00 Large over 50,000 $75.00; and
11.1.g. Submit required materials for each location of processing operations on forms prescribed by the Commissioner.
11.2. Before issuing any license required by the provisions of this rule, the Commissioner shall inspect the applicant's establishment and review the HACCP plan and other license application materials. If the Commissioner is satisfied that the establishment is clean and sanitary, properly equipped, has met the requirements set forth by this rule and all employees are properly trained and have met requirements set forth in this rule, he or she shall issue the license which shall designate the establishment number of the plant.
11.3. Processors are responsible for having potable water supplies retested and certified by local or state health authorities:
11.3.a. Annually for approved public water supplies; and
11.3.b. Every six months for private wells or springs.
11.4. The Commissioner may deny, revoke or suspend any fish processing license when he or she concludes that the seriousness of the violations, including irreparable harm to the environment, hazards to the health and safety of the public and economic damages to the public warrant that action.
11.5. The Commissioner shall not issue a AFish Processing License@ until the applicant has complied with all of the conditions set forth under this section. Once issued, the AFish Processing License@ remains valid unless voluntarily surrendered, suspended or revoked by the Commissioner. Once the Fish Processor License is voluntarily surrendered, or revoked, the processor must reapply and submit all materials required under this section to receive a new license.
W. Va. Code R. § 61-23A-12 Buildings and Facilities
12.1. The fish or fishery product must be processed in a manner to prevent contamination by exposure to areas, utensils, or equipment involved in earlier processing steps, refuse, or other safety hazards.
12.2. All utensils and surfaces of equipment that contact food during processing shall be cleaned and sanitized with effective cleaning and sanitizing preparations at the following intervals:
12.2.a. Cleaned at the end of the days operations;
12.2.b. Sanitized before the beginning of the days operations; and
12.2.c. Cleaned and sanitized after interruptions of the food processing process during which food contact surfaces may have become contaminated.
12.3. Until properly cleaned and sanitized, employees' hands, gloves and outer garments and utensils and surfaces of equipment that contact raw product shall not contact 1) The fish or fishery product after it has entered the smoking chamber, 2) cooked product, or 3) ice.
12.4. Readily understandable signs directing employees handling unprotected food, unprotected food-packaging materials, or food-contact surfaces to wash and sanitize their hands before they start work, after each absence from their post of duty, and when their hands have become soiled or contaminated, shall be conspicuously posted in the processing rooms, finished product packing rooms, and in all other areas where sanitary conditions are required.
12.5. Handwash facilities shall be conveniently located to permit use by all employees in fish preparation and processing areas. Handwashing facilities shall be accessible to these employees at all times.
12.6. Handwashing facilities shall be located in or immediately adjacent to toilet rooms or their vestibules, and readily understandable signs directing employees to wash and sanitize their hands after using toilet facilities and before returning to the processing or packing areas shall be conspicuously posted.
W. Va. Code R. § 61-23A-13 Equipment
13.1. All plant equipment and utensils must be properly maintained and designed and of such material and workmanship as to be adequately cleaned, sanitized and corrosion resistant. The design, construction, and use of equipment must prevent the contamination of food with lubricants, fuel, metal, fragments, wood fragments, contaminated water, or any other contaminants. All equipment must be installed and maintained as to facilitate the cleaning and sanitizing of the equipment and all adjacent spaces. Surfaces that contact food must be corrosion resistant when in contact with food. Food contact surfaces must be made of nontoxic materials and designed to withstand the environment of their intended purpose and the action of the food, and cleaning and sanitizing agents. Food contact surfaces must be maintained to protect the food from being contaminated from any source, including unlawful indirect food additives.
13.2. The containers used to transport, brine or store fish shall not be nested while they contain fish or otherwise handled during processing or storage in a manner conductive to contamination of their contents.
13.3. The cleaning and sanitizing of utensils and portable equipment shall be conducted in an area set aside for these purposes or in a segregated fashion so as to prevent contamination of the food.
13.4. Each freezer and cold storage compartment used to store and hold food shall be fitted with a thermometer or temperature recording device installed to show the temperature accurately within the compartment.
13.5. Instruments and controls used for measuring, regulating, or recording temperatures shall be accurate and maintained on a regular schedule, and adequate in number for their designated uses.
13.6. Thermometers or other temperature-measuring devices shall have an accuracy of + or - 2 Fahrenheit and graduations shall not exceed 2 Fahrenheit within a range of 10 Fahrenheit of the processing temperature. The accuracy of these devices shall be maintained.
13.7. Compressed air or other gases used to clean food-contact surfaces or equipment shall be treated or filtered in such a way that food is not contaminated with unlawful indirect food additives.
13.8. Each smoking chamber shall be equipped with a temperature monitoring device.
13.9. Equipment and utensils shall be positively marked or segregated in some way to ensure that equipment and utensils used to handle raw fish or fishery products are not used to handle fish or fishery products which have entered the smoking chamber or cooked ready-to-eat fish or fishery products until they are properly cleaned and sanitized.
W. Va. Code R. § 61-23A-14 Product Management
14.1. The evisceration of fish shall be conducted in an area segregated or separate from other processing operations. The evisceration shall be performed with minimal disturbance of the fish=s intestinal tract contents. The fish, including the body cavity, shall be washed thoroughly with a vigorous spray or a continuous water flow system immediately following evisceration.
14.2. Sanitary zones shall be established around areas where unpackaged cooked or smoked product is handled and stored. Objects and employees that have come into contact with waste, raw product, or other insanitary objects shall be excluded from these areas.
14.3. Packaging material, equipment, employees, and in-process materials that enter a sanitary zone shall be treated in a manner that will minimize the risk of the introduction of microorganisms.
14.4. All operations including receiving, processing, and packaging shall be conducted utilizing clean and sanitary methods and shall be conducted as rapidly as practical and at temperatures that will not cause any material increase in bacterial or other microorganic content or any deterioration or contamination of the processed fish.
14.5. Unpackaged cooked ready-to-eat and smoked fish or fishery products shall be handled only with clean and sanitized hands, gloves or utensils. These products shall be handled with a minimum of manual contact.
14.6. Unprocessed fish, raw fish and fishery products, cooked ready-to-eat fishery products, smoked fishery products, and raw molluscan shellfish shall be physically separated from each other during refrigerated storage to minimize the possibility of cross contamination.
14.7. Refrigeration units used to store fish, fishery products, or raw materials during any stage before and during processing shall operate at a temperature at or below 40F (4.4C). All processed fish shall be distributed and sold at internal temperatures that do not exceed 40F (4.4C) except that processed fish that have a water-phase salt level of at least 17 percent do not require refrigeration.
14.8. Fish and fishery products shall be protected against contamination including contaminants which may drip, drain, or be drawn into the product before, during and after processing.
14.10. Shipping containers, retail packages, and shipping records relating to processed fish shall indicate by appropriate labeling, the perishable nature of the product. Frozen product shall indicate that the product shall remain frozen until thawed at refrigerated temperatures and shall not be refrozen. Refrigerated product shall clearly and conspicuously state AKeep Refrigerated at 40F or below@.
14.11. Each container of fishery product processed in accordance with the provisions of this rule shall have an establishment number which is legible and permanently marked. This establishment number shall identify the plant where the product was produced. Each container of fishery products shall have a lot number which is legible and permanently marked. This lot number shall identify the date the product was produced.
W. Va. Code R. § 61-23A-15 Employees
15.1. All employees shall thoroughly wash and sanitize their hands and forearms before starting work. All employees shall wash and sanitize hands during work hours as often as necessary to remove soil and contamination, after working with raw fish products, before handling ready-to-eat products, after visiting the toilet room, after using tobacco, or after eating or drinking.
15.2. Effective hair and beard restraints shall be used by employees who process, prepare or handle food to keep exposed hair and beards from food or food contact surfaces.
15.3. No person shall use tobacco, eat, or drink in food receiving, processing, packaging, storage or handling areas.
15.4. Employees shall maintain a high degree of personal cleanliness and shall conform to good hygienic practices during all working periods. Personal cleanliness includes clean clothing.
15.5. Employees shall remove all insecure jewelry, and shall remove from the hands and forearms any jewelry that cannot be properly sanitized.
15.6. Employees who have an illness, skin infections or communicable forms of infection, including but not limited to cuts, burns, boils, abrasions, wounds, open lesions or bandages on the hands, face or forearms shall not perform work activities in which there is a likelihood of contaminating food, food packaging or food contact surfaces until the medical condition is corrected. It is the duty of the supervisor to ask employees about such medical conditions and the duty of the employee to report them prior to the start of each workshift.
W. Va. Code R. § 61-23A-16 Transport
16.1. All fish transported for sale or processing for human food in the state of West Virginia shall be:
16.1.a. Alive when harvested from the water; and
16.1.b. Maintained alive; or maintained in a constant iced or mechanically refrigerated state ensuring an internal body temperature of 40F (4.4C) or below;
16.2. All fish intended for human consumption shall be transported or held in clean non-toxic containers.
16.3. Unprotected raw fish and fishery products, cooked ready-to-eat fishery products, smoked fishery products and molluscan shellfish shall be physically separated to minimize the possibility of cross contamination during transport.
16.4. No other cargo shall be placed on or above fish or fishery products unless all cargo is packed in sealed, crush resistant waterproof containers.
16.6. Every reasonable effort shall be made to keep fish and fishery products intended for human consumption wholesome, unspoiled, and unadulterated.
16.7. Ice used for cooling fish and fishery products shall be made from drinking water certified potable by State or County Health authorities.
16.7.a. After use for cooling fish or fishery products, ice shall not be used as human food.
W. Va. Code R. § 61-23A-17 Laboratory Testing
17.1. The Commissioner of Agriculture shall establish and maintain or make provisions for approved laboratory testing facilities for the purpose of enforcing the analytical aspects of this rule.
17.2. The methods used for analyzing samples will be those found in the most recent editions of the Official Methods of Analysis by the Association of Analytical Chemists, or the United States, Food and Drug Administrations Bacteriological Analytical Manual, or The Pesticide Analytical Manual, Volume I, and II, Foods and Feeds; or other methods as approved by the commissioner.
W. Va. Code R. § 61-23A-18 Prohibited Acts
18.1. It is unlawful to:
18.1.a. Produce, hold, transport, sell or offer for sale fish, or fishery products in violation of this rule;
18.1.b. Sell or offer for sale any fish or fishery product for human consumption which is adulterated or not wholesome;
18.1.c. Remove any tag or order affixed by the Commissioner unless the removal is authorized by him or her;
18.1.d. Impede, hinder or otherwise prevent, or attempt to prevent the Commissioner in the performance of his or her duties in connection with the provisions of this rule;
18.1.e. Falsify or falsely log any values on any record or records required by this rule;
18.1.f. Remove or dispose of detained, embargoed, or quarantined fish or fishery products by sale or otherwise without the permission of the Commissioner or the courts;
18.1.g. Continue fish processing operations until released from the embargo or cease and desist order by the Commissioner or the courts;
18.1.h. Process, sell or offer for sale to the public any molluscan shellfish unless it is obtained from a shellfish dealer listed in the most recent monthly publication of the Interstate Certified Shellfish Shippers List published by the U.S. Food and Drug Administration;
18.1.i. Sell or offer for sale fish or fishery products unless the label displays the acceptable market name or common name specified for the species in the most recent publication of AThe Seafood List, FDA's Guide to Acceptable Market Names for Seafood Sold In Interstate Commerce@;
18.1.j. Process fish or fishery products for sale unless the processor is licensed and inspected by the Commissioner;
18.1.k. Sell or offer for sale, fish or fishery products for human consumption which contain levels of chemicals or drugs in excess of the action levels listed in the tables in this subdivision:
18.1.k.a. Table 1 - Action levels for chemicals in Fish and Fishery products.
Chemical Action Level Aldrin plus Dieldrin 0.3 ppm Chlordane 0.3 ppm Endrin 0.3 ppm Heptachlor plus Heptachlor epoxide 0.3 ppm Chlordecone 0.3 ppm DDT plus TDE plus DDE 5.0 ppm Mirex 0.1 ppm Toxaphene 5.0 ppm PCB 2.0 ppm Methyl Mercury 1.0 ppm Sulfite (Shrimp only) 100.0 ppm
18.1.k.b. Table 2 - Action levels for drugs in Fish and Fishery products.
Drug Action Level Oxytetracycline 0.1 ppm Sulfamerazine 0.0 ppm Sulfadimethoxine plus ormetoprim 0.1 ppm; or
18.1.l. Slaughter or process products other than fishery products in a licensed fish processing facility.
W. Va. Code R. § 61-23A-19 Penalties
19.1. Civil Penalties
19.1.a. Any person violating any of the provisions of this rule may be assessed a civil penalty of up to five hundred dollars for a first offense and up to five thousand dollars for subsequent offenses. In determining the amount of the 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, any hazards to the health and safety of the public and any economic damages to the public; and the demonstrated good faith of any person charged in attempting to achieve compliance with this rule before and after written notification of the violation.
19.1.b. The civil penalty is payable to the West Virginia Department of Agriculture and is collectable in any manner now or hereafter provided for the collection of debt. If any person liable to pay the civil penalty neglects or refuses to pay the same, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of that person after the lien has been entered and docketed to record in the county where such property is situated. The clerk of the county, upon receipt of the certified copy of the lien, shall enter the lien to record without requiring payment of costs as a condition precedent to recording.
19.1.c. Nothing in this rule shall be construed as requiring the Commissioner to assess a civil penalty or to institute an embargo, detainment, quarantine or cease and desist order for violation of this rule when he or she believes that the public interest may best be served by a written notice of violation.
19.2. Criminal Penalties
19.2.1. Any person who violates any provision of this rule is guilty of a misdemeanor, and upon conviction thereof:
19.2.1.a. Shall for the first offense be fined not less than fifty nor more than five hundred dollars;
19.2.1.b. Shall upon each subsequent offense be fined not less than one hundred nor more than one thousand dollars;
19.2.1.c. May be imprisoned in the county or regional jail not more than six months or both fined and imprisoned; and
19.2.1.d. Shall have his or her Fish Processing License suspended until the facility is in compliance with the provisions of this rule.
19.3. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this rule.
W. Va. Code R. § 61-23A-20 Confidentiality of Trade Secrets
20.1. The commissioner may not make public information which relates to trade secrets and procedures, commercial or financial information obtained from a person or privileged or confidential information: Provided that when the information is necessary to carry out the provisions of this rule, this information may be revealed, subject to protective order, to any federal, state or local agency consultant or may be revealed, subject to protective order, at a closed hearing or in findings of fact issued by the commissioner.
W. Va. Code R. § 61-23A-21 Enforcement Policy
21.1. The Commissioner shall inspect fish processors on a risk assessment basis with the purpose of assuring wholesome, unspoiled and unadulterated fish and fishery products. All processors inspected will receive a grade of "A", "B", "C", or "Unsatisfactory". After an initial inspection processors earning:
21.1.a. A grade of "A" during an inspection will require reinspection at appropriate intervals according to the FDA Risk Guidance;
21.1.b. A grade of "B" during an inspection will require reinspection at least once every two months;
21.1.c. A grade of "C" during an inspection will require reinspection at least once every month;
21.1.d. A grade of "Unsatisfactory" during an inspection shall result in the suspension of the Fish Processing License. When reinspection of the plant results in a grade of C or higher the Commissioner may reinstate the Aquaculture Processing License; and
21.1.e. A grade of "Failure" during an inspection shall result in the revocation of the "Fish Processing License" until the processor successfully reapplies for and is issued a new license.
21.2. In no way is this enforcement policy intended to prohibit the Commissioner from inspecting a producer's facility more frequently in the event that he or she believes it is necessary.
21.3. All fish and fishery products for sale as human food shall be processed and transported according to all provisions of this rule. Fish and fishery products transported or processed by private citizens exclusively for the consumption by themselves, their immediate family, nonpaying guests, and employees, or fish transported in the operation of fish hatcheries by the state of West Virginia or the United States of America are exempt from this rule.
W. Va. Code R. § 61-23A-22 Humane Slaughter
22.1. Fish, before being cut, must be rendered insensible to pain by a single blow, or by electrical, chemical, temperature or other means that is safe, rapid and effective; or
22.2. By slaughtering in accordance with any method of humane slaughter approved by the United States department of agriculture; or
22.3. By slaughtering in accordance with any method of humane slaughter approved by the commissioner.
22.4. Up to 20,000 pounds of fish per calendar year slaughtered and/or processed at an official plant are exempt from the antemortem, postmortem, and processing inspection, provided that the fish are slaughtered and processed at an establishment licensed by the Commissioner of Agriculture and approved for fish slaughter operations.
61CSR23A
Series 23B West Virginia Molluscan Shellfish
W. Va. Code R. § 61-23B-1 General
1.1. Scope. -- Establishes the minimum requirements necessary to regulate the interstate and intrastate commerce of molluscan shellfish and to establish a program to protect the public health of consumers by assuring the sale or distribution of shellfish from safe sources and assuring shellfish have not been adulterated during cultivating, harvesting, processing, shipping, or handling.
1.2. Authority. -- W. Va. Code §19-29-1, 3-4.
1.3. Filing Date. -- April 5, 2024.
1.4. Effective Date. -- April 8, 2024.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-23B-2 Incorporated by Reference
2.1. The following documents are adopted in their entirety:
2.1.a. 21 CFR 123 and 21 CFR 1240.60;
2.1.b. The U. S. Food and Drug Administration’s "Fish and Fishery Products Hazards and Controls Guide";
2.1.c. 21 CFR part 110 Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food;
2.1.d. The Seafood List, U. S. Food and Drug Administration’s Guide to Acceptable Market Names for Seafood Sold in Interstate Commerce; and
2.1.e. The National Shellfish Sanitation Program Guide for the Control of Molluscan Shellfish Model Ordinance as published by the U. S. Food and Drug Administration. Copies can be obtained through the Interstate Shellfish Sanitation Conference web page, at http://www.issc.org.
W. Va. Code R. § 61-23B-3 Definitions
3.1. In addition to definitions contained in the definition section of the Model Ordinance the following words and terms, when used in this rule, have the following meaning unless the context clearly indicates otherwise.
3.1.a. “Adulterated” means a fish or fishery product carries or contains any poisonous or deleterious substance or compound or pathogen in a quantity that may render it injurious to human health; was produced, processed, transported or held under unsanitary conditions; was treated with or exposed to chemicals, chemotherapeutics (drugs), heavy metals, pesticides, temperatures or any conditions in a manner that violates this rule; or was not produced according to an approved Hazard Analysis Critical Control Point (HACCP) plan.
3.1.b. "Commissioner" or “commissioner” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
3.1.c. "Fish" means fresh or saltwater finfish, crustaceans, and other forms of aquatic life (including but not limited to, alligators, frogs, aquatic turtles, jellyfishes, and sea urchins and the roe of those animals) other than birds or mammals, and mollusks, where the animal life is intended for human consumption.
3.1.d. ”Food Safety Hazard” means any biological, chemical, or physical property that may cause a food to be unsafe for human consumption.
3.1.e. “ISSC” means the Interstate Shellfish Sanitation Conference.
3.1.f. "Official Sample" means any sample of water, soil, fish, shellfish, feed, drugs, pesticides, other ingredients, containers, or products taken by the commissioner in accordance with this rule.
3.1.g. “Shellfish” means all species of:
3.1.g.1. Oysters, clams, or mussels, whether;
3.1.g.1.A. Shucked or in the shell;
3.1.g.1.B. Raw, including post-harvest processed;
3.1.g.1.C. Frozen or unfrozen;
3.1.g.1.D. Whole or in part; and
3.1.g.2. Scallops in any form, except when the final product form is the adductor muscle only.
3.1.h. “Wholesale” means any sale to any other person than the ultimate consumer or his or her family.
W. Va. Code R. § 61-23B-4 Powers and Duties of the Commissioner
4.1. The commissioner may:
4.1.a. Enter and inspect, during reasonable hours, any location, where shellfish are processed, sold, stored, or transported for human consumption. The inspection may include, but is not limited to, photographing, videotaping, verifying, copying, and auditing computer files, records and papers relating to the processing of fish or shellfish for human food as is necessary to determine compliance with this rule and to investigate consumer complaints;
4.1.a.1. The inspection also may include, but is not limited to, photographing, videotaping, verifying, and observing the premises, vehicles, personnel, and activities.
4.1.b. Examine, sample and test water, fish, shellfish, pesticides, raw materials, other ingredients, containers, packaging, and products used or intended for use in the processing, storage, sale, or transportation of shellfish for human consumption;
4.1.c. Cooperate with and enter into agreements with governmental agencies of this state and any other states, agencies of the federal government and foreign governments, and private associations to carry out the purpose and provisions of this rule;
4.1.d. Detain, embargo, or quarantine shellfish, processing areas, holding areas, or transporting vehicles by affixing onto the detained, embargoed, or quarantined item a tag or other appropriate marking, and giving notice of the detention, embargo, or quarantine in writing to the processor, holder, or transporter. The commissioner may take this action when shellfish have been found to be or are believed to be:
4.1.d.1. In violation of the provisions of this rule; or
4.1.d.2. Infected with a human pathogen that could present a public health safety hazard.
4.1.d.2.A. Upon confirmation of a violation of this rule or the presence of a human pathogen, the commissioner may seize or condemn the shellfish and order the shellfish disposed of as necessary to ensure the safety of consumers.
4.1.e. Embargo, detain, or quarantine a perishable product, even if the practical result is to bring about the involuntary disposal of the product;
4.1.e.1. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this rule 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 rule.
4.1.f. Issue, suspend, revoke, or deny certifications in accordance with this rule;
4.1.g. Inspect and copy all records required by this rule. All requested records shall be made available to the commissioner within 24 hours of his or her request. Records kept on computer files shall have a backup file on a separate disk, or hardcopy;
4.1.h. Develop appropriate inspection, embargo, quarantine, detainment, and other regulatory forms as necessary for the enforcement of this rule; and
4.1.i. Assess civil penalties and refer violations to a court of competent jurisdiction for the violation of this rule as allowed under West Virginia laws. Nothing in this rule shall be construed as requiring the commissioner to assess a civil penalty, report for prosecution or institute an embargo, detainment, or quarantine for the violation of this rule when he or she believes that the public interest may best be served by a written notice of the violation.
4.2. The commissioner shall be guided by the analytical test results when determining if shellfish conform to this rule and other rules and laws of the State of West Virginia.
W. Va. Code R. § 61-23B-5 Certification
5.1. All commercial processors in the state of West Virginia shall:
5.1.a. Apply for a shellfish processors certificate and fall into at least one of the following categories:
5.1.a.1. Shellstock Shipper (SS);
5.1.a.2. Shucker – Packer (SP);
5.1.a.3. Repacker (RP);
5.1.a.4. Reshipper (RS); or
5.1.a.5. Depuration Processor (DP).
5.2. The commissioner may deny, revoke or suspend the certificate when he or she concludes that the seriousness of the violations, including irreparable harm to the environment, hazards to the health and safety of the public and economic damages to the public warrant that action.
5.3. The commissioner shall not issue a shellfish dealer certificate until the applicant has complied with all the conditions set forth under in this rule. Once issued, the certificate remains valid unless voluntarily surrendered or suspended, or revoked by the commissioner. Once the certificate is voluntarily surrendered, suspended or revoked, the processor must reapply for and submit all materials required under this section to receive a new certificate.
5.4. All shellfish certificates expire on June 30 of each year. The applicant shall complete the application on forms supplied by the commissioner and return the application no later than June 30 of the application year. The application shall be accompanied by a fee of one hundred dollars ($100.00) per facility. The commissioner shall add a penalty of $100.00 to all certificates that are not applied for or renewed within this time limit. In no case shall a shellfish firm operate without a valid certificate issued by the Department. The certificate shall not be transferable with respect to persons or locations.
W. Va. Code R. § 61-23B-6 Laboratory Testing
6.1. The Commissioner of Agriculture shall establish and maintain or contract with an approved laboratory testing facilities for the purpose of enforcing the analytical aspects of this rule.
6.2. The methods used for analyzing samples shall be those found in the Official Methods of Analysis by the Association of Analytical Chemists, or the United States Food and Drug Administration Bacteriological Analytical Manual, or The Pesticide Analytical Manual, Volume I, and II, Foods and Feeds. The laboratory may use other methods approved by the commissioner or approved by the National Shellfish Sanitation Program under the most recent version of the Guide for the Control of Molluscan Shellfish. Only laboratories certified by a Laboratory Evaluation Officer in accordance with the NSSP Guide may analyze samples using NSSP methods.
W. Va. Code R. § 61-23B-7 Prohibited Acts
7.1. It is unlawful to:
7.1.a. Produce, hold, transport, sell or offer for sale shellfish in violation of this rule;
7.1.b. Sell or offer for sale shellfish for human consumption which is adulterated or not wholesome;
7.1.c. Remove any tag or order affixed by the commissioner, unless the removal is authorized by him or her;
7.1.d. Impede, hinder, or otherwise prevent, or attempt to prevent the commissioner in the performance of his or her duties in connection with the provisions of this rule;
7.1.e. Falsify or falsely log any values on any record or records required by this rule;
7.1.f. Remove or dispose of detained, embargoed, or quarantined shellfish by sale or otherwise without the permission of the commissioner or the courts;
7.1.g. Continue shellfish operations until released from the embargo or cease and desist order issued by the commissioner or the courts;
7.1.h. Process, sell or offer for sale to the public any molluscan shellfish, unless it is obtained from a shellfish dealer listed in the most recent monthly publication of the Interstate Certified Shellfish Shippers as List published by the U.S. Food and Drug Administration;
7.1.i. Sell or offer for sale shellfish, unless the label displays the acceptable market name or common name specified for the species in the most recent publication of “The Seafood List, FDA's Guide to Acceptable Market Names for Seafood Sold in Interstate Commerce”; or
7.1.j. Process shellfish for sale unless the processor has a valid certificate and has been inspected by the commissioner or his or her designee.
W. Va. Code R. § 61-23B-8 Penalties
8.1. Civil Penalties.
8.1.a. The commissioner may assess any person violating any of the provisions of this rule a civil penalty of up to five hundred dollars for a first offense and up to five thousand dollars for subsequent offenses. In determining the amount of the civil penalty, the commissioner shall give due consideration to: the history of previous violations of that person; the seriousness of the violation, including any irreparable harm to the environment; any hazards to the health and safety of the public and any economic damages to the public; and the demonstrated good faith of the person charged in attempting to achieve compliance with this rule before and after written notification of the violation.
8.1.b. The civil penalty is payable to the West Virginia Department of Agriculture and is collectable in any manner now or hereafter provided for the collection of debt. If any person liable to pay the civil penalty neglects or refuses to pay it, the amount of the civil penalty, together with interest at ten percent, is a lien in favor of the state of West Virginia upon the property, both real and personal, of that person after the lien has been entered and docketed to the record in the county where the property is situated. The clerk of the county, upon receipt of the certified copy of the lien, shall enter the lien to the record without requiring payment of costs as a condition precedent to recording.
8.1.c. Nothing in this rule shall be construed as requiring the commissioner to assess a civil penalty or to institute an embargo, detainment, quarantine or cease and desist order for violation of this rule when he or she believes that the public interest may best be served by a written notice of violation.
8.2. Criminal Penalties.
8.2.a. Any person who violates any provision of this rule is guilty of a misdemeanor, and upon conviction thereof:
8.2.a.1. Shall for the first offense be fined not less than fifty nor more than five hundred dollars;
8.2.a.2. Shall upon each subsequent offense be fined not less than one hundred nor more than one thousand dollars;
8.2.a.3. May be imprisoned in the county or regional jail not more than six months or both fined and imprisoned; and
8.2.a.4. Shall have his or her Shellfish Certificate suspended until the facility is in compliance with the provisions of this rule.
8.3. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this rule.
W. Va. Code R. § 61-23B-9 Confidentiality of Trade Secrets
9.1. The commissioner may not make public, information which relates to trade secrets and procedures, commercial or financial information obtained from a person or privileged or confidential information: Provided that when the information is necessary to carry out the provisions of this rule, this information may be revealed, subject to protective order, to any federal, state or local agency consultant or may be revealed, subject to protective order, at a closed hearing or in findings of fact issued by the commissioner.
Series 23D Inspection of Nontraditional Domesticated Animals
W. Va. Code R. § 61-23D-1 General
1.1. Scope. -- This rule governs the inspection of nontraditional domesticated animals such as antelope, bison, buffalo, deer, elk, reindeer, and rabbit and edible products derived from these animals and implements the requirements of W. Va. Code §19-29-1 et seq. "Production of Nontraditional Agriculture Products". W. Va. Code §19-29-4 authorizes the Commissioner of Agriculture to promulgate rules to provide inspection of such animals, meat, and meat products.
1.2. Authority. -- W. Va. Code §§19-29-1 and §19-29-4.
1.3. Filing Date. -- April 13, 2023
1.4. Effective Date. -- May 1, 2023
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
W. Va. Code R. § 61-23D-2 Incorporation by Reference of Federal Regulations on Inspection of Exotic Animals and Rabbits
2.1. The Regulations on Inspection of Exotic Animals (9 CFR, Part 352) and Inspection of Rabbits and Edible Products Thereof (9 CFR, Part 354) of the United States Department of Agriculture are incorporated by reference in this rule with the exception of sections 352.5; 352.7 (a) and (b); 354.1 (n) and (u); 354.2 (a), (b), and (c); 354.20 through 354.33; 354.63 (c); 354.64; 354.65; 354.100 through 354.110; 354.143; 354.160; 354.161; 354.162; and 354.248 of the regulations which are not incorporated.
W. Va. Code R. § 61-23D-3 Definitions
3.1. Definitions in the incorporated parts of the Federal regulations (9 CFR, Parts 352 and 354) are amended to read as follows:
3.1.1. "The Act" means the W. Va. Code §19-29-1 et seq.
3.1.2. "The United States Department of Agriculture" means the West Virginia Department of Agriculture.
3.1.3. "Secretary" means the Commissioner of Agriculture.
3.1.4. "Administrator", "Regional Director", and "Area Supervisor" mean the Director of the Meat Inspection Division of the West Virginia Department of Agriculture.
3.1.5. "The Food Safety and Inspection Service", "Service", and "Program" mean the Meat Inspection Division of the West Virginia Department of Agriculture.
3.1.6. "Official Plant" means an establishment licensed by the Commissioner of Agriculture.
3.1.7. "Exotic Animal" means a nontraditional animal domesticated from wild stock, either native or nonnative, including rabbits.
3.1.8. "U. S. Inspected" means West Virginia Department of Agriculture Inspected.
3.1.9. "U. S. Suspect" means West Virginia Department of Agriculture Suspect.
W. Va. Code R. § 61-23D-4 The Place of Slaughter and Processing of Nontraditional, Domesticated Animals
4.1. The slaughter and processing of nontraditional, domesticated animals may take place at any official plant.
4.2. The slaughter and processing of rabbits which are U.S. Inspected and intended for sale in commercial outlets shall take place in rabbit slaughterhouses or rabbit meat processing establishments constructed according to the technical and sanitary provisions of the incorporated Federal regulations (9 CFR, Part 354).
4.3. The slaughter of rabbits exempt from inspection as provided by subsections 6.2 or 6.3 of this rule may take place at any official plant or on such premises that are registered with the Commissioner for the purpose of rabbit slaughter and processing.
4.4. The slaughter and processing of nontraditional domesticated animals may be conducted at official plants provided that the slaughter and processing operations are separated in time or space from the slaughter and processing of cattle, swine, sheep, and goats. The carcasses of nontraditional, domesticated animals and products derived from these animals shall be kept physically separated and properly identified to avoid any possibility of commingling products.
4.5. The slaughter of rabbits exempt from inspection as provided by subsection 6.3 of this rule may take place at the same premises where they were raised if the premises is registered with the Commissioner and the slaughter and processing is performed in a sanitary manner.
W. Va. Code R. § 61-23D-5 Official Inspection Marks
5.1. Official Inspection Marks for Nontraditional, Domesticated Animals, Carcasses and Products Derived Therefrom, Except for Rabbits.
5.1.1. An authorized employee of the West Virginia Department of Agriculture or a plant employee working under his or her direct supervision shall apply the official inspection mark to inspected and passed carcasses and parts of carcasses.
5.1.2. The official inspection mark shall be in the form of a triangle and arrangement as shown in the example in this subdivision. The triangle side shall be approximately 2-1/2 inches (6.4 cm) long. It shall follow the wording: "West Virginia Department of Agriculture, Inspected and Passed", or its abbreviations as approved by the Director of the Meat Inspection Division. The number of the establishment where the animal was slaughtered or prepared, shall be used in lieu of "00".
5.2. Official Inspection Marks for Rabbits.
5.2.1. The official inspection mark approved for use on inspected and passed rabbit products shall be in the form of a circle and arranged as indicated in the example in this subsection. The circle shall be 1-3/4 inches (4.5 cm) in diameter. It shall include the following wording: "Inspected for Wholesomeness by WV Department of Agriculture." The number of the establishment where the rabbits were slaughtered or prepared shall be used in lieu of "00".
5.3. Official Inspection Marks on Labels.
5.3.1. The inspection mark to be shown on labels need not be of the size illustrated in subsection 5.2 of this section, provided that it is a sufficient size and of such color as to be conspicuously displayed and readily legible. The same proportions of letter size and boldness shall be maintained.
5.3.2. This inspection mark shall be applied by the licensed establishment using mechanical means and shall not be applied by a hand stamp.
5.3.3. The official inspection marks described in subsections 5.1 and 5.2 of this rule shall also be used on shipping containers, bond labels, artificial casings, and other articles with the approval of the Director of the Meat Inspection Division.
W. Va. Code R. § 61-23D-6 Exemptions
6.1. This rule shall not apply to nontraditional, domesticated animals which are slaughtered and/or processed and are not intended for sale in commercial outlets.
6.2. Up to twenty thousand (20,000) rabbits per calendar year slaughtered and/or processed at an official plant are exempt from antemortem, postmortem, and processing inspection, provided that the rabbits are slaughtered and processed at an establishment licensed by the Commissioner of Agriculture and approved for rabbit slaughter operations.
6.3. Up to twenty thousand (20,000) rabbits per calendar year slaughtered and/or processed at the premises where they were raised are exempt from antemortem, postmortem, and processing inspection, and are eligible to enter commerce.
6.3.a. The rabbits shall be slaughtered and processed using procedures submitted to and approved by WVDA and the premises shall be registered with the Commissioner of Agriculture.
6.3.b. Rabbit producers must keep sale and production records for a minimum of two years, and must provide those to a WVDA compliance officer/inspector if and when requested.
6.3.c. Slaughter facilities operated pursuant to this exemption may be visited by a WVDA compliance officer/inspector without notice.
W. Va. Code R. § 61-23D-7 Overtime and Holiday Inspection Service
7.1. The management of a licensed establishment shall reimburse the Department for the cost of inspection service furnished on any holiday as specified in subsection 7.3 of this Section, or for providing more than forty (40) hours in any administrative workweek Saturday through Friday.
7.2. When a licensed establishment requires inspection service on a holiday or for more than eight (8) hours on any other day, it shall request the veterinary supervisor to furnish inspection during such period. The request shall be made at least seven (7) days before the holiday and at least two (2) days in advance of planned overtime.
7.3. Holidays are specified in W. Va. Code §2-2-1 et seq.
7.4. The Commissioner shall determine from time to time the rate for overtime and holiday services.
61CSR23D
61CSR23D
BY W. V.
DEPARTMENT OF
AGRICULTURE
Series 24 West Virginia Spay Neuter Assistance Program
W. Va. Code R. § 61-24-1 General
1.1. Scope. -- This rule sets forth the requirements for the West Virginia Spay Neuter Assistance Program. The purpose of this rule is to establish a spay neuter assistance program to have more dogs and cats sterilized, and provide a rabies vaccination if the animal is not currently vaccinated, thereby reducing shelter populations and costs, euthanasia rates and threats to public health and safety from rabies and other problems posed by the growing population of stray, feral and abandoned dogs and cats.
1.2 . Authority. -- W. Va. Code §19-20C-1
1.3. Filing Date. – April 30, 2020
1.4. Effective Date. – April 30, 2020
1.5. Sunset Date. -- This rule shall terminate and have no further effect April 30, 2030.
W. Va. Code R. § 61-24-2 Enforcement
2.1. This rule is enforced by the Commissioner of the Department of Agriculture
W. Va. Code R. § 61-24-3 Definitions
3.1. “Animal” means a dog or cat that has not been spayed or neutered:
3.2. “Caretaker” means a person, organization or agency that captures or facilitates the capture of free roaming cats for the purpose of spaying or neutering them and returning them to the environment from which they were captured.
3.3. “Cat” means a member of the genus and species known as felis catus.
3.4. “Commissioner” means the Commissioner of the Department of Agriculture.
3.5. “Dog” means a member of the genus and species known as canis familiaris.
3.6. “Feral cat” means a domesticated cat that has returned to the wild or the offspring of such a cat.
3.7. “Free roaming cat” includes feral, stray, community, or abandoned cats that may or may not have a caretaker and do not have an owner or are otherwise homeless. The term does not include a stray pet cat that might have been lost or abandoned and which has identifiable ownership such as, but not limited to, a tag, microchip or tattoo.
3.8. “Fund” means the Spay Neuter Assistance Fund established in the State Treasury and maintained by the Commissioner.
3.9. “Grant” means a monetary amount from the Fund awarded to a grantee along with the associated terms and conditions.
3.10. “Grantee” means a nonprofit spay neuter organization or program that receives a grant from the Commissioner under this rule to perform spay neuter services for eligible owners and caretakers. “Nonprofit spay neuter organization or program” means:
3.10.a. A nongovernmental entity that is incorporated in and is in good standing with the state, has its principal place of business in the state, maintains a 501(c)(3) status under the federal Internal Revenue Code and meets one or more of the following criteria:
3.10.a.1. Provides or facilitates spay neuter services by a veterinarian to the general public;
3.10.a.2. Rescues stray, abandoned or feral animals and provides or facilitates adoptions services for the animals to the general public; or
3.10.a.3. Advocates and furthers effective means for the propagation of humane principles to prevent animal cruelty, abuse, neglect and overpopulation; or
3.10.b. A county or municipal shelter or animal control agency.
3.11 “Low-income restricted program” means a spay neuter program that provides spay neuter services to owners or caretakers currently receiving assistance from at least one of the state and federal public assistance programs:
3.11.a. The Supplemental Nutrition Assistance Program (SNAP);
3.11.b. Medicaid;
3.11.c. Supplemental Security Income (SSI);
3.11.d. Thee West Virginia Low Income Energy Assistance Program (LIEAP);
3.11.e. Social Security Disability;
3.11.f. Temporary Assistance for Needy Families (TANF);
3.11.g. Aid to Families with Dependent Children (AFCD);
3.11.h. Children’s Health Insurance Program (CHIP); or
3.11.i. Low Income Veterans Assistance under 38 USC 2044.
3.12. “Owner” means a person who is a resident of this state who owns an animal that has not been spayed or neutered.
3.13. “Spay neuter assistance program” means the program authorized by W. Va. Code §19-20C-l et seq. and this rule.
3.14. “Spay neuter” means to sterilize a female animal by removing the reproductive organs or by tubal ligation, or castration of a male animal by removing the testicles or by vasectomy or by FDA approved pharmaceutical sterilization.
3.15. “Veterinarian” means a person, firm or corporation licensed to practice veterinary medicine under the provisions of W. Va. Code §30-10-1 et seq. and doing business in this state.
W. Va. Code R. § 61-24-4 Spay neuter assistance program created
4.1. A spay neuter program is established for the purpose of providing grants to approved nonprofit spay neuter organizations or programs for advancing the cause of spaying and neutering of animals. The Commissioner shall administer the program and may establish other grant programs consistent with this rule.
W. Va. Code R. § 61-24-5 Grant application by nonprofit spay neuter organizations or programs
5.1. In order to participate as a grantee, a nonprofit spay neuter organization or program shall complete and file the form provided by the Commissioner. The application shall contain at a minimum:
5.1.a. The applicant’s name, physical address, mailing address, e-mail address, phone number, and primary contact person;
5.1.b. The applicant’s federal employer identification number (FEIN);
5.1.c. The applicant’s business registration account number from the W. Va. State Tax Department;
5.1.d. A description of the applicant’s business, mission or purpose;
5.1.e. A copy of the applicant’s latest financial statement, annual budget, or current balance sheet;
5.1.f. If the applicant is a 501(c)(3) entity, the most recent IRS Form 990, 990-EZ or 990-N;
5.1.g. A listing of the applicant’s officers, executive director (if applicable) and a primary contact person;
5.1.h. The amount of the grant requested;
5.1.i. A detailed description of how the applicant intends to use the grant to advance spay neuter services, including a project budget, intended outcomes, and the expected amount of time in which the grant funds will be used;
5.1.j. Information regarding previous participation in the spay neuter program; and
5.1.k. Attestation that the information provided by the applicant is true and accurate to the best of the applicant’s knowledge.
W. Va. Code R. § 61-24-6 Awarding grants by the commissioner
6.1. The Commissioner may establish an advisory committee of animal welfare advocates. The Advisory Committee shall conduct a preliminary review of grant applications, and make recommendations to the Commissioner for grants based on animal welfare best practices, volume of spay neuter services contemplated to be provided, and the efficiency of spay neuter service delivery. The Advisory Committee shall give preference to applicants that intend to operate a low-income restricted program. The Advisory Committee shall make recommendations for action, if necessary, on interim and post-grant reports by grantees on the use of grant funds. The committee shall abide by standard ‘conflict of interest’ policies.
6.2. The Commissioner shall review grant applications and the recommendations of the advisory committee to approve, reject or modify the amount requested within 90 days of receipt of an application. The Commission shall give preference to applicants that intend to operate a low-income restricted program. The Commissioner shall notify the applicant of the final disposition of their application within 30 days of the Commissioner’s decision.
6.3. The Commissioner shall enter into a grant contract with the grantee which shall include the terms, conditions and requirements of the grant.
6.4. The grantee shall disburse funds within the grant term determined by the Commissioner and stated in the grant contract. Thereafter, the Commissioner may extend a grant term; otherwise the grant and any undisbursed grant amounts expire and all unused monies shall be returned to the Fund. A grantee may apply for a subsequent or concurrent grant.
6.5. The Commissioner may amend a current grant to a higher or lower amount at any point during the grant term following the initial approval.
6.6. A grantee shall notify the Commissioner of any subsequent change in its 501(c)(3) status that would disqualify it from participation in the spay neuter assistance program or otherwise negatively affect its ability to participate. A grantee shall execute the program as designated in the grant contract unless changes are approved in writing by the Commissioner.
6.7. The Commissioner may revoke a grant and deny further participation by a grantee in the spay neuter program, if it is determined that the grantee has failed to comply with the requirements of the program and this rule.
6.8. The Commissioner shall maintain and make available to the public, a current list of grantees and their contact information.
6.9. A grantee shall comply with the provisions of W. Va. Code §12-4-14, and legislative rules promulgated regarding accountability of persons receiving state funds or grants.
6.10. A grantee may not impose any administrative, processing or other extraneous fee or charge upon an owner or caretaker. A grantee shall not charge a fee incident to adoption to cover spay neuter services paid for under the spay neuter assistance program. If such a fee is charged, the spay neuter services are not eligible for reimbursement.
6.11. A grantee shall maintain proper financial records on the use of grant monies.
6.12. Upon completion of a grant, a grantee shall file, with the Commissioner, a report on the outcomes of the grant in fulfillment of its terms, conditions and requirements. For grants with a term of 12 months or longer, the grantee shall also file with the Commissioner an interim report within six (6) months of receiving the grant.
W. Va. Code R. § 61-24-7 Reimbursement rules
7.1. The Commissioner may reimburse grantees for costs of spay neuter services and reasonably related expenses, including but not limited to anesthesia, pain medication, increased expenses due to cryptorchidism and pregnancy, and rabies vaccinations incident to spay neuter services. The Commissioner shall not reimburse grantees for unrelated veterinary care, administrative costs, overhead, advertising, or facilities or equipment related to the provision of spay neuter services.
7.2. The Commissioner shall enter into a grant contract with the grantee which shall include, at a minimum, the terms, conditions and requirements of the grant and instructions for requesting reimbursement.
7.3. A grantee shall submit invoices supported by documents sufficient to prove all costs for which the grantee is requesting reimbursement.
7.4. To be eligible for reimbursement, spay neuter services must be performed by a person, firm, or corporation licensed to practice veterinary medicine under the provisions of W. Va. Code §30-10-1 et seq. and doing business in the state of West Virginia.
Series 26 Voluntary Farmland Protection Program
W. Va. Code R. § 61-26-1 General
1.1. Scope. -- This legislative rule is an explanation and clarification of operating procedures for the West Virginia Agricultural Land Protection Authority (Authority) established under §8A-12-7 of the Voluntary Farmland Protection Act.
1.2. Authority. -- W. Va. Code §§8A-12-1 through 8A-12-21.
1.3. Filing Date. -- April 5, 2006.
1.4. Effective Date. -- July 1, 2006.
W. Va. Code R. § 61-26-2 Definitions
2.1. “Acquisition of easement” means the holding or coholding of land-use restrictions, whether obtained through purchase, gift, devise, bequest, grant or contract to cohold with another holder.
2.2. “Agricultural use” means the use of land for common farm site activities, including but not limited to: production, harvesting, storage, grading, packaging, processing and the wholesale and retail marketing of crops, plants, animals and other related commodities and the use and application of techniques and methods of soil preparation, preservation, disease and pest control, disposal of farm waste, irrigation, drainage and water preservation and management. Agricultural uses include farm use; businesses directly related to the retail sale of farm products; any activity performed for religious, charitable or educational purposes or to foster tourism; and any home-based business that does not require a division of environmental protection permit to operate.
2.3. “Agricultural value” of land is the price as of the valuation date which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay for the property subject to the restrictions placed upon it by the conservation or preservation easement.
2.4. “Application” as relates to the purchase or donation of development easements, means a standard from adopted by the board.
2.5. “Authority” means The West Virginia Agricultural Land Protection Authority established under §8A-12-7 of the Voluntary Farmland Protection Act.
2.6. “Board” means the board of trustees of the West Virginia Agricultural Protection Authority.
2.7. “Conservation easement” means a nonpossessory interest of a hold in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property; assuring its availability for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property; except that a conservation easement granted to the authority must be held or coheld in perpetuity.
2.8. “County Farmland Protection Boards” means a farmland protection board duly established by resolution of a county commission opting to create such a board and program under §8A-12-2 of the Voluntary Farmland Protection Act.
2.9. “Cost” as used with respect to cost of agriculture easements includes, in addition to the usual connotations thereof, the cost of inspection, appraisal, legal, financial and other professional services, estimates and advice; and the cost of organizational, administrative and other work and services, including salaries, supplies, equipment and materials.
2.10. “Determination of values” means the value of the easement is determined at the time the authority is requested in writing to acquire the easement. The fair market value is determined by the county farmland protection board or the authority based on one or more appraisals obtained by the authority, and appraisals, if any, of the landowner.
2.11. “Director” means the individual charged with management of the West Virginia Agricultural Land Protection Authority designated as such by the board of trustees and serving at their will and pleasure.
2.12. “Fair market value” means the value of land as of the valuation date for the highest and best use of the land which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy would pay for the property if the property was not subject to an easement restriction.
2.13. “Farm, farmland or agricultural land” means a tract, or contiguous tracts of land, of any size, used or useable for agriculture, horticulture or grazing and includes all real property designated as wetlands that are part of a property used or useable as farmland.
2.14. “Landowner asking price” means the applicant’s per acre confidential offer for the sale of a conservation easement.
2.15. “Maximum value” means the maximum value of any conservation or preservation easement acquired by the county farmland protection board or the authority is the asking price or the difference between the fair market value of the land and the agricultural value of the land, whichever is lower.
2.16. “Opt-out provision” may be inserted into any conservation or preservation easement agreement entered into which would act as a mechanism to place the easement selling price into an escrow fund for the purpose of allowing the owner or owners up to five years to rescind the decision to enter into the farmland protection program.
2.17. “Preservation easement” means a nonpossessory interest in an historical building; except that a preservation easement granted to the authority must be held or coheld in perpetuity.
2.18. “Woodland” shall be considered land of a farm only if it is part of or appurtenant to a tract of land which is a farm, or held by common ownership of a person or entity owning a farm, but in no event may woodland include any use inconsistent with farm use.
W. Va. Code R. § 61-26-3 Power and Authority of the Board
3.1. The Board shall have the authority to approve or disapprove all measures proposed by the Director in furtherance of the purposes of the authority.
3.2. The Board may request assistance and avail itself of the services of the employees of the State of West Virginia, county or municipal department, board, commission, or private contractor as it deems necessary.
3.3. The Board may accept all grants, gifts, bequests that seek or assist in the promotion of farmland protection in the state of West Virginia.
3.4. The Board may accept donated or purchased conservation easements anywhere within the state of West Virginia.
3.5. Upon receipt of funding, the Board may authorize the purchase of any conservation or preservation easements.
3.6. The Authority may co-sign conservation or preservation easements with other public or private entities.
3.7. The Authority may resell real property acquired by fee simple subsequent to the recording of a conservation easement.
W. Va. Code R. § 61-26-4 Power and Authority of Director
4.1. The Director shall score and rank all applicants based on the criteria adopted by the board and submit the ranked applications to the Board for their approval.
4.2. The Director shall develop educational programs for the dissemination of information concerning agricultural easements.
4.3. The Director shall seek grants and other available funding sources and shall serve as a repository of such information for county boards.
4.4. The Director shall serve as a liaison and contact person between the authority and county boards.
4.5. The Director shall compile statistical databases and information necessary to complete all reporting requirements set forth in §8A-12-10(d).
4.6. The Director shall perform any and all other such duties as the board shall from time to time deem necessary.
W. Va. Code R. § 61-26-5 Application Process
5.1. The Director may consider written applications from landowners for the sale or donation of conservation or preservation easements, or for fee simple property. Any offers for sale must include an asking price and a complete description of the land, including but not limited to, a termination of all debts secured the by land and the identity and amounts of all liens. All landowners must sign the application. The Board may decline any offer of a conservation or preservation easement or fee simple property.
5.2. Offers for sale to the Board shall be received by June 30 of each fiscal year for funding in that year. Any pending offers may be used to seek matching Federal, state, local or private funding at interim times during the year prior to the June 30 deadline.
5.3. The Board shall adopt ranking criteria based on West Virginia Code § 8A-12-15 and assign points thereto in order to prioritize applications by landowners for sale of conservation easements. The Board may change such ranking criteria on an annual basis for future fiscal year application cycles.
5.4. The Director shall score and rank the applicants based on the criteria adopted by the Board. The ranking shall be presented to the board for their approval.
5.5. The ranking may be bypassed in the event that a 50 percent match of Federal, local or private monies is awarded to a lesser-ranked property.
W. Va. Code R. § 61-26-6 Acquisition of Easement
6.1. Prior to the completion of a conservation easement, the Authority shall have an appraisal of the easement completed. The purchase price of an easement must not exceed the appraisal amount.
6.2. The Authority shall be responsible for completing or contracting for baseline documentation of the property.
6.3. The Authority shall obtain a title search and title insurance on any accepted conservation easements.
6.4. All conservation easements shall be recorded with the Clerk of the Court in the county in which the property is located.
6.5. The Authority may provide for retained development rights on accepted properties at a density not greater than one home per 20 acres. Clustering of home sites shall be encouraged.
6.6. Secured loans on the property shall be subordinated, extinguished, or for loans not exceeding the agricultural value, shall have the approval of the Authority.
6.7. Conservation easements may only be extinguished by a court of appropriate legal jurisdiction. The Authority shall not seek to extinguish any conservation easement to which it holds title. Any proceeds from extinguishment shall be used to secure additional conservation easements. In the event of condemnation of land under a conservation easement, the condemning authority shall pay to the landowner the full fair market value of the property to which the landowner would be entitled if the land was not under easement, less any amount paid to the landowner by the Authority, a county farmland protection board, or other federal, state, local or private funding source.
61CSR26
61CSR26
Series 27 Best Management Practices For Land Application Of Waste Products from Aquaculture Facilities
W. Va. Code R. § 61-27-1 General
1.1. Scope. -- The rule establishes voluntary best management practices to prevent or minimize the entry of aquatic waste into the waters of the State and improving the soil and plant resources of this state.
1.2. Authority. -- W. Va. Code §19-29-6.
1.3. Filing Date. -- April 8, 2010.
1.4. Effective Date. -- July 1, 2010.
This is a new legislative rule.
W. Va. Code R. § 61-27-2 Definitions
2.1. “Aquatic Waste” means any substance composed of excrement of fish or other aquatic life, other than human, and may include other natural materials normally associated with the substance, commonly referred to as manure, as well as water associated with or added to the substance, also considered agricultural waste.
2.2. “Best Management Practices” means activities, procedures and practices to prevent or remedy the introduction of manure residues into waters to the extent technically feasible and economically practical. Best Management Practices are designed to maintain the health and long-term productivity of the soil, water and related plant and animal resources and to minimize the threat of soil, waste and nutrient contamination to the waters of the state.
2.3. “Commercial Fish Operation” means an operation that sells at least One Thousand Dollars of fish products per year.
2.4. “Commissioner” means the commissioner of agriculture of the state of West Virginia or his or her duly authorized agent.
W. Va. Code R. § 61-27-3 Program and Policy Statements
Research has shown that manure from fish, commonly known as aquatic waste, is similar in its chemical composition to other livestock manure and should be treated in the same manner when land applied as a source of agriculture fertilizer. Therefore, the Commissioner recommends that commercial fish operations, federal agencies, state agencies or non-profit organizations dealing in aquaculture research or the production of aquaculture for the benefit of the citizens of the state use the generally accepted best management practices for nutrient management. Best management practices include, but are not limited to, soil testing every three years for areas of application, applying manure at recommended rate, testing manure at least every two years, or not applying manure on frozen ground.
61CSR27
61CSR27
Series 28 Poultry Litter and Manure Movement Into Primary Poultry Breeder Rearing Areas
W. Va. Code R. § 61-28-1 General
1.1 Scope. -- This legislative rule establishes standards for the transport of poultry litter and swine manure into areas where commercial primary poultry breeder operations are located.
1.2. Authority. -- W. Va. Code §§19-9-2; 19-9-10.
1.3. Filing Date. -- April 13, 2021
1.4 Effective Date. -- May 3, 2021
1.5.Sunset Date. -- This rule shall terminate and have no further force or effect August 1, 2031.
W. Va. Code R. § 61-28-2 Purpose
2.1 The purpose of this rule is to establish guidelines for the transport of poultry litter and swine manure into areas where commercial primary poultry breeder operations are located. The function of primary breeders is to maintain pure blood lines, expand pure blood lines and develop cross-bred lines. Primary breeders maintain and reproduce the first three generations of birds referred to as Pedigree, Great-grandparent and Grandparent stock. These birds are used to produce the fourth generation known as Parent or Multiplier stock, which produce the fifth generation birds grown by commercial growers for marketing. Primary breeder farms adhere to strict biosecurity programs to prevent introduction of pathogens from other poultry or animals. Diseases such as salmonella, mycoplasmas and avian influenza are major concerns. Breeding turkeys may also be easily infected with influenza viruses from swine which will result in immediate and dramatic cessation of egg production. Movement of personnel, equipment and birds are strictly controlled to reduce the risk of infection or disease. Other protocols to ensure disease prevention on primary breeder farms include strict separation of generations and geographically separated farms.
W. Va. Code R. § 61-28-3 Definitions
3.1. The following terms, as used in this article, unless the context otherwise requires or a different meaning is specifically prescribed, have the following meanings:
3.1.a. “Area” means any land within a one-mile radius of a poultry house engaged in the rearing of commercial primary breeder stock.
3.1.b. “Certificate” means a document issued by the Commissioner of Agriculture indicating a regulated material is free of specified pathogens.
3.1.c. “Commissioner” means the Commissioner of Agriculture of the State of West Virginia or his/her designee.
3.1.d. “Commercial primary poultry breeder” is an operation engaged in the maintenance and improvement of breeding genetics.
3.1.e. “Compost” means the natural process in which beneficial microbes reduce organic waste into a biologically safe by-product which is capable of being recycled.
3.1.f. “Move” means to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move or to be moved.
3.1.g. “Multiplier” (commonly referred to as the fourth generation) is the offspring of Grandparent stock used to produce birds for market.
3.1.h. “Pathogen” is a microorganism, virus, bacterium, or fungus capable of causing disease in its host.
3.1.i. “Permit” is a document issued by the Commissioner of Agriculture to provide for movement of regulated articles to restricted destinations.
3.1.j. “Person” means an individual, partnership, corporation, association, co-op, firm, company, or any organized group of persons whether incorporated or not.
3.1.k. “Poultry” includes any birds raised commercially or domestically for meat, eggs, feathers or pets.
3.1.l. “Poultry Litter” refers to any material used as poultry bedding which may include sawdust, wood shavings, rice hulls, peanut hulls, straw, newspaper, and sand.
3.1.m. “Primary poultry breeder” is any person engaged in the production of Pedigree, Great-grandparent, Grandparent and Parent stock of poultry, commonly referred to as the first four generations.
3.1.n. “Sell” means offer for sale, exchange, barter or trade.
3.1.o. “Swine manure” refers to excreta from the production of pigs which may include bedding material such as sawdust, wood shavings or straw.
W. Va. Code R. § 61-28-4 Powers and duties of the Commissioner
4.1. The Commissioner may:
4.1.a. Establish guidelines for the movement of poultry litter into restricted areas;
4.1.a.1. A person shall not transport, move, or sell poultry litter into any area engaged in the production of commercial primary poultry breeder stock. 4.1.a.1(a) Any farm located within the area engaged in the production of commercial primary poultry breeder stock shall be given reasonable consideration to acquire poultry litter being produced by the primary poultry breeder facility within the area.
4.1.a.2. A person shall not move or sell swine manure, into any area engaged in the production of commercial primary poultry breeder stock due to the additional disease risk.
4.1.a.3 A person shall not transport, move, or sell poultry litter, which is a regulated material as defined in this rule, into the county in which the primary poultry breeder facility is located unless the poultry litter being transported has been properly composted for a period of 30 days, and is in compliance with the testing required by this rule.
4.1.b. Require testing and prescribe methods of testing as prescribed by the Commissioner of Agriculture in accordance with §19-9-2, for the presence of pathogens capable of causing harm to poultry or people.
4.1.b.1 A person shall not move or sell poultry litter into any county engaged in the production of commercial primary poultry breeder stock unless the poultry litter being transported has been certified by the Commissioner to have: 4.1.b.1(a) originated from a flock that has been tested negative for Avian Influenza pre-movement; 4.1.b.1.(b) originated from a flock that is Mycoplasma free; and 4.1.b.1.(c) been tested at an approved laboratory facility using approved methodology for the absence of salmonella;
4.1.b.2. A person shall not move or sell poultry litter into the county in which the primary breeder facility is located without having in his or her possession the certificate from the Commissioner stating that the poultry litter being transported has been tested within 30 days of its movement.
W. Va. Code R. § 61-28-5 Criminal penalties; civil penalties; negotiated agreement
5.1. Criminal penalties. -- Any person who shall violate any of the provisions of this article, or who shall obstruct or hinder the commissioner, or any officer or employee, in the performance of his duties under this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for the first offense, be fined not more than one hundred dollars, and upon conviction for each subsequent offense fined not more than five hundred dollars, and in addition to such fine may be confined in the county jail for not more than ninety days.
5.2. Upon application by the Commissioner, the circuit court of the county in which the violation is occurring, has occurred or is about to occur, may grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this article or any rule promulgated under this article, notwithstanding the existence of other remedies at law. An injunction shall be issued without bond.
5.3. A state court may not allow for the recovery of damages for any administrative action taken, if the court finds that there was a probable cause for the action.
5.4. It is the duty of the prosecuting attorney of the county in which the violation occurred to represent the Department of Agriculture, to institute proceedings and to prosecute the person charged with a violation.
W. Va. Code R. § 61-28-6 Right to appeal
Any order of the Commissioner of Agriculture shall be served upon all affected persons by registered mail. Within ten days of the receipt of any order any party adversely affected by the order may, in writing, request a hearing before the Commissioner. The hearing and any judicial review thereof shall be conducted in accordance with the applicable provisions of West Virginia Code §29A-5-1 et. seq. and West Virginia Code §29A-6-1 et seq. under the Department’s rule, Poultry Litter and Manure Movement Into Primary Poultry Breeder Rearing Areas 61CSR28.
61CSR28
61CSR28
Series 29 Industrial Hemp
W. Va. Code R. § 61-29-1 General
Scope. – This rule establishes requirements for the licensing, cultivating, testing, supervision, production, processing and sale of industrial hemp in West Virginia.
Authority. – W. Va. Code §19-12E-7.
Filing Date. – April 30, 2020 Effective Date. – July 1, 2020 Sunset Date. – This rule shall terminate and have no further force or effect July 1, 2030.
W. Va. Code R. § 61-29-2 Definitions
2.1. “Act” - means the “Industrial Hemp Development Act” of 2002, codified at W. Va. Code §19-12E-1 et seq.
2.2. “Commissioner” – means the Commissioner of Agriculture.
2.3. “Department” – means the West Virginia Department of Agriculture.
2.4. “Hemp” or “industrial hemp” means all parts and varieties of the plant Cannabis sativa L. and any part of the plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, that contain a tetrahydrocannabinol concentration of not greater than 0.3%, or the concentration authorized by federal law, whichever is greater.
2.5. “Law enforcement officer” – means an officer responsible for maintaining public order and enforcing the law, particularly the activities of prevention, detection and investigation of crime and the apprehension of criminals.
2.6. “License” – means license to grow, research, process, or possess hemp that has been issued by the Commissioner pursuant to this rule following a successful application and review process.
2.7. “Licensee” – means a person or entity who has been issued a license by the Department.
2.8. “Product” means any article or substance having raw material or another product as an ingredient, that are prepared in a form available for commercial sale.
2.9. “Raw materials” means plant material harvested by a licensee that remains in an unprocessed form that is not prepared for commercial sale.
2.10. “Research and development” – means growth of industrial hemp for for the purpose of discovering and enabling development of useful processes, information and products and not for commercial development or sale.
2.11. “Tetrahydrocannabinol” or “THC” means the natural or synthetic equivalents of the substances contained in the plant, or in the resinous extracavities of, cannabis, or any synthetic substances, compounds, salts, or derivatives of the plant or chemicals and their isomers with similar chemical structure and pharmacological activity. §61-29.3. License To Grow Hemp.
3.1. An applicant for a license to grow hemp shall provide to the Commissioner, on a form prescribed by the Commissioner, and during the time prescribed by the Commissioner for submission of applications, the following information:
3.1.a. The name and mailing address of the applicant;
3.1.b. A legal description and global positioning coordinates sufficient for locating the production fields to be used to grow industrial hemp.
3.1.c. Any other information the Commissioner considers appropriate.
3.2. An applicant shall comply with the following background information requirements:
3.2.a. Each first-time applicant shall file a set of the applicant’s fingerprints, taken by a law-enforcement officer, and any other information necessary to complete a statewide and nationwide criminal history check; and
3.2.b. The applicant shall pay all costs associated with the criminal history checks.
3.2.c. If an application is submitted by a business entity, rather than by an individual, the Department will identify individuals within the business entity’s leadership structure on whom background checks are to be performed.
3.2.d. The Commissioner may refuse to grant a license to an applicant whose criminal background check contains criminal history that violates the requirements of 7 U.S.C. §5940 or otherwise indicates that the applicant should not hold a license.
3.3. Criminal history records provided to the Department are confidential.
3.4. All applications must contain the applicant’s acknowledgment and agreement to the following terms and conditions:
3.4.a. Any information provided to the Department, except criminal history records provided to the Department under this section, may be publicly disclosed and be provided to law enforcement agencies without further notice to the applicant;
3.4.b. The applicant agrees to allow any inspection and sampling that the Department considers necessary;
3.4.c. The applicant agrees to pay for any sampling and analysis costs that the Department considers necessary; and
3.4.d. The applicant agrees to submit all required reports by the applicable due dates specified by the Commissioner.
3.5. In addition to the application form, each applicant shall submit the application fee set by this rule. If the application fee does not accompany the application, the Commissioner will consider the application incomplete and will not process the application until the fee is received.
3.5.a. The annual “Application Fee” for industrial hemp is one hundred dollars ($100.00) per non-contiguous parcel of land included on the application. Parcels separated by more than one mile may be considered non-contiguous and subject to a separate application fee.
3.5.b. Any applicant that wishes to alter the growing areas included on their application shall, before altering the area, submit to the Department an updated legal description, global positioning system location, and map specifying the proposed alterations. The Department must give written approval before beginning any proposed alterations to the growing area. Any change is subject to approval by the Commissioner and shall require an “Alteration Fee” of fifty dollars ($50.00) be submitted by the applicant. Changes which involve additional growing areas may also be considered non-contiguous and subject to additional fees, as designated in 3.5.a.
3.6. If the Commissioner determines that all requirements have been met and that a license to grow hemp should be issued to the applicant, taking into consideration all information available to the Department, the Commissioner may approve the application and issue the license.
3.7. The annual “License Fee” is one hundred dollars ($100.00) plus five dollars ($5.00) per acre included on the application. The license fee will be required if the Commissioner approves the application.
3.8. All licenses shall contain a unique registration number and are valid until December 31, of the year for which the license is issued, unless otherwise revoked by the Commissioner.
3.9. A copy of the license shall be displayed at each location where a licensed activity takes place.
3.10. After issuance of a license, any licensee that wishes to alter or amend the growing areas on which the licensee will conduct industrial hemp cultivation shall, before altering the area, submit to the Department an updated legal description, global positioning system location, and map specifying the proposed alterations.
3.10.a. The Department must give written approval before the licensee begins growing on the proposed alterations.
3.10.b. All requests for alterations or amendments to growing areas are subject to the “Alteration Fee” set forth in section 3.5.b and, once approved, are subject to additional licensing fees as set forth in section 3.7.
3.11. An applicant seeking to store hemp but not grow or process must comply with the requirements of this section.
3.12. License renewal applications must be submitted annually during the time prescribed by the Commissioner for submission of renewal applications.
3.12.a. If a completed renewal application is received by the Department on or before the deadline established by the Department, the licensee may continue to operate under the current license pending receipt of the renewal application.
3.12.b. The Commissioner shall require license renewal applicants to complete background checks once every three years as part of the renewal application process.
W. Va. Code R. § 61-29-4 Notification Reports
4.1. Within sixty (60) days of being issued a license pursuant to section 3 of this rule, the licensee shall certify to the Commissioner that he or she has provided a copy of that license to both the sheriff of the county in which the hemp is being grown and the local detachment of the West Virginia State Police.
4.2. Prior to planting, each licensee shall file a report with the Commissioner that includes:
4.2.a. Documentation, according to protocols approved by the Commissioner, showing that the seeds planted are of a type and variety certified to contain no more than the maximum level of THC authorized by this rule;
4.2.b. A description of the varieties to be planted and a map showing where they are to be planted; and
4.2.c. A copy of any contract to grow industrial hemp.
4.3. A licensees shall report any subsequent changes to the report within ten (10) days of the change.
4.4. Before the end of the calendar year, each licensee shall file a report with the Commissioner regarding the sale or distribution of any industrial hemp grown by the licensee and include a statement of the intended use or other disposition of the licensee’s industrial hemp crop with the following information:
4.4.a. If the crop is being sold or distributed, the name and mailing address of the person or business entity receiving the industrial hemp;
4.4.b. The type of industrial hemp product sold or distributed; and
4.4.c. The amount, in standard units of measurement, of industrial hemp product sold or distributed.
4.5. A licensee shall report any subsequent changes to any documents or information submitted to the Commissioner, including information contained on the application or background check, within ten (10) days of the change.
W. Va. Code R. § 61-29-5 Inspection Program for Testing and Supervision During Growth and Harvest
5.1. A licensee is subject to sampling of his or her industrial crop at any time during growth and harvest to verify that the THC concentration does not exceed the concentration permitted by this rule.
5.2. The Department shall sample hemp crops prior to harvest. The licensee shall contact the Department at least thirty (30) days prior to the intended harvest date to allow sampling before harvest.
5.3. During any inspection and/or sampling, the licensee, or his or her authorized representative, shall be present at the growing operation and provide the Department’s inspector with compete and unrestricted to access to all industrial hemp plants and seeds, whether growing or harvested, all land, buildings and other structures used for the cultivation and storage of industrial hemp, and all documents and records pertaining to the industrial hemp crop.
5.4. The inspector shall sample the industrial hemp plants utilizing protocols established by the Department. Such protocols shall, at a minimum, comply with the following requirements:
5.4.a. Composite samples of each varity of industrial hemp may be sampled from the growing areas at the Department’s discretion.
5.4.b. The sampled material shall be divided into two equal parts: one part shall be used for testing, the other part shall be retained for retesting.
5.4.c. Quantitative laboratory determination of the THC concentration will be performed according to protocols approved by the Commissioner.
5.5. A composite sample test result greater than 0.3 percent THC concentration shall be considered conclusive evidence that at least one cannabis plant or part of a plant in the growing area contains THC concentration over the limit allowed for industrial hemp and that the licensee is not in compliance with the Act.
5.6. If a test result comes back above the THC concentration permitted by this rule, the Commissioner may, upon request, and if permitted by the United States Department of Agriculture, permit a licensee to submit a Corrective Action Plan and request a second sampling and test of the crop following implementation of the Corrective Action Plan.
5.7. As part of inspection and testing, each licensee shall pay actual mileage incurred, plus a charge of $35/hour per inspector for actual drive time, inspection and sampling time. In addition, each licensee shall pay for all actual incurred laboratory analysis testing costs that the Department considers appropriate, including retesting.
5.8. The Department may establish procedures for licensees to utilize the Department’s testing capabilities prior to the pre-harvest testing required by section 5.2.
5.8.a. Permissive testing under this section is subject to availability of Department equipment, facilities and personnel.
5.8.b. A licensee shall pay the costs required to conduct the sampling and/or testing of the hemp crop, as required by section 5.7.
5.8.c. Results obtained from voluntary testing under this section shall not be considered official sampling results unless the following conditions are satisfied:
5.8.c.1. Both sampling and testing are conducted by Department staff pursuant to protocols established for pre-harvest sampling and testing; and
5.8.c.2. Harvest occurs within thirty days of the date of sampling. §61-29.6. License to Process Hemp.
6.1. An applicant for a license to process hemp shall provide to the Commissioner, on a form prescribed by the Commissioner and during the time prescribed by the Commissioner for submission of applications, the following information:
6.1.a. The name and mailing address of the applicant;
6.1.b. The address and legal description of the location or locations to be used to process hemp; and
6.1.c. Any other information the Commissioner considers appropriate.
6.2. An applicant shall comply with the following background information requirements:
6.2.a. Each first-time applicant shall file a set of the applicant’s fingerprints, taken by a law-enforcement officer, and any other information necessary to complete a statewide and nationwide criminal history check; and
6.2.b. The applicant shall pay all costs associated with the criminal history checks.
6.2.c. If an application is submitted by a business entity, rather than by an individual, the Department will identify individuals within the business entity’s leadership structure on whom background checks are to be performed.
6.2.d. The Commissioner may refuse to grant a license to an applicant whose criminal background check contains criminal history that violates the requirements of 7 U.S.C. §5940 or otherwise indicates that the applicant should not hold a license.
6.3. Criminal history records provided to the Department are confidential.
6.4. All applications must contain the applicant’s acknowledgment and agreement to the following terms and conditions:
6.4.a. Any information provided to the Department, except criminal history records provided to the Department under this section, may be publicly disclosed and be provided to law enforcement agencies without further notice to the applicant;
6.4.b. The applicant agrees to allow any inspection and sampling that the Department considers necessary; and
6.4.c. The applicant agrees to pay for any sampling, inspection, and analysis costs that the Department considers necessary.
6.5. In addition to the application form, each applicant shall submit the application fee set by this rule. If the application fee does not accompany the application, the Commissioner will consider the application incomplete and will not process the application until the fee is received.
6.5.a. The annual “Application Fee” for a license to process hemp is one hundred dollars ($100.00) per facility included on the application.
6.5.b. Any applicant that wishes to add additional processing areas shall, before altering the area, submit to the Department the address, global positioning system location, and map specifying the proposed additional processing area. The Department must give written approval before the alterations to the processing area take effect. Any change is subject to approval by the Commissioner and shall require an “Alteration Fee” of fifty dollars ($50.00) be submitted by the applicant.
6.6. If the Commissioner determines that all requirements have been met and that a license to process hemp should be issued to the applicant, taking into consideration all information available to the Department, the Commissioner may approve the application and issue the license.
6.7. The annual “License Fee” is five hundred dollars ($500.00) per processing facility included on the application. The license fee will be required if the Commissioner approves the application.
6.8. All licenses shall contain a unique registration number and are valid until December 31 of the year for which the license is issued, unless otherwise revoked by the Commissioner.
6.9. A copy of the license shall be displayed at each location where a licensed activity takes place.
6.10. After issuance of a license, any licensee that wishes to alter or amend the processing locations shall, before altering the area, submit to the Department an updated legal description, global positioning system location, and map specifying the proposed alterations.
6.10.a. The Department must give written approval before the licensee begins growing on the proposed alterations.
6.10.b. All requests for alterations or amendments to processing areas are subject to the “Alteration Fee” set forth in section 6.5.b and, once approved, are subject to additional licensing fees as set forth in section 6.7.
6.11. License renewal applications must be submitted annually during the time prescribed by the Commissioner for submission of renewal applications.
6.11.a. If a completed renewal application is received by the Department on or before the deadline established by the Department, the licensee may continue to operate under the current license pending receipt of the renewal application.
6.11.b. The Commissioner shall require license renewal applicants to complete background checks once every three years as part of the renewal application process.
W. Va. Code R. § 61-29-7 Inspection of Hemp Processing Facilities
7.1. All hemp processing facilities licensed pursuant to section 6 of this rule are subject to inspection.
7.2. Processing licensees shall establish policies and procedures for each processing facility that contain the following:
7.2.a. Measures to exclude from any operations any person who might be a source of microbial contamination, due to a health condition, where such contamination may occur, of any material, including components, CBD related compound, and contact surfaces used in the manufacture, packaging, labeling, or holding of a CBD related compound;
7.2.b. The use of hygienic practices to the extent necessary to protect against adulteration of components, CBD related compounds, or contact surfaces;
7.2.c. The qualification and training of employees;
7.2.d. Procedures to keep the grounds of the physical processing plant in a condition that protects against the contamination of components, CBD-related compounds, or contact surfaces;
7.2.e. Requirements to keep the physical processing plant in a clean and sanitary condition and in good repair to prevent components, CBD related compounds, or contact surfaces from becoming contaminated.
7.2.f. Selection, use, and storage of cleaning compounds and sanitizing agents;
7.2.g. Cleaning of the physical plant and pest control;
7.2.h. Standards for equipment and utensils utilized in the processing of hemp, including the proper repair and sanitation;
7.2.i. For the use of automated, mechanical, or electronic equipment:
7.2.i.1. Quality control procedures to calibrate, inspect, or check equipment to ensure proper performance;
7.2.i.2. Controls for equipment to ensure that changes to the manufacturing, packaging, labeling, holding, or other operations are approved by quality control personnel and instituted only by authorized personnel; and
7.2.i.3. Appropriate training and supervision of personnel operating the equipment.
7.2.j. Production and process controls;
7.2.k. Specifications for any point, step, or stage in the manufacturing process where control is necessary to ensure the quality of the CBD related compound and that the CBD related compound is packaged and labeled as required; and
7.2.l. Corrective action plans for use when necessary.
7.3. Each licensed processor shall maintain records to demonstrate compliance with the policies and procedures established pursuant to section 7.2 of this rule.
7.4. The Department shall, at least once a year and at any other time it deems appropriate, inspect the facilities and records of a processor. That inspection shall ensure that:
7.4.a. All policies and procedures required by section 7.2 of this rule are in effect and being followed; and
7.4.b. The processing facility is otherwise sanitary and suitable for the processing of hemp.
W. Va. Code R. § 61-29-8 Enforcement and Penalties
8.1. The Commissioner shall have authority to enforce the provisions of this article, the Industrial Hemp Development Act, W. Va. Code §19-12E-1 et seq., and the requirements established by the United States Department of Agriculture for the regulation of industrial hemp.
8.2. The Commissioner has the authority to take action against a licensee for any violation of, or failure to comply with, established requirements for license holders and their operations. Such grounds can include, but are not limited to:
8.2.a. Refusal or failure of a licensee to provide any information required or requested by the Commissioner for the purposes of this Act;
8.2.b. Providing false, misleading, or incorrect information pertaining to the applicant or licensee’s cultivation of industrial hemp to the Commissioner, by any means, including but not limited to information provided in any application form, report, record or inspection required or maintained for purposes of the Act, or failing to timely update information previously provided;
8.2.c. Receipt of test results showing that the licensee’s crop contains more than the permissible amount of THC; or
8.2.d. Failing to pay the costs incurred as a result of the inspection and testing required by this rule.
8.3. The Commissioner may take the following actions against a licensee or applicant:
8.3.a. Embargoing a licensee’s crop;
8.3.b. Ordering the destruction of a licensee’s crop;
8.3.c. Denying an application for license;
8.3.d. Suspending a license;
8.3.e. Revoking a license; or
8.3.f. Any other action the Commissioner determines appropriate.
8.4. An applicant or licensee who has been the subject of an adverse decision may appeal the decision to the Commissioner.
Series 31 Livestock Care Standards
W. Va. Code R. § 61-31-1 General
1.1. Scope. -- This legislative rule governs the care and well-being of livestock including, beef cattle, bison, veal, dairy cattle, equine, swine, small ruminant, and poultry, and captive cervids in the state of West Virginia.
1.2. Authority. -- West Virginia Code §19-1C-4(c).
1.3. Filing Date. -- April 14, 2023
1.4. Effective Date. -- May 1, 2023
1.5. Sunset Date. -- This rule will terminate and have no further force and effect on August 1, 2033.
W. Va. Code R. § 61-31-2 Definitions
2.1. “Ambulatory disabled” means being capable of walking, but with a physical impairment that severely limits or threatens the ability to walk.
2.2. “Best management practices” means procedures in livestock production to enhance animal production, comfort, and safety, as well as productivity and product acceptability.
2.3. “Biologicals” means products intended for diagnostic or therapeutic purposes in animals other than man.
2.4. “Bio-security” means preventing introduction of new organisms to an agricultural operation, as well as controlling organisms already present on the agricultural operation.
2.5. “Body condition score” means an industry accepted evaluation of an animal’s body fat and muscle mass as related to skeletal dimension and stage of production.
2.6. “Captive cervid farming facility” means a facility which is licensed to hold cervids in a permanent enclosure.
2.7. “Cattle” means any bison or bovine raised for dairy or meat production.
2.8. “Cervid” means all members of the family Cervidae and hybrids, including deer, elk, moose, caribou, reindeer, and related species, both native and exotic.
2.9. “Coggins” means the common name for the agar gel immunodiffusion test for diagnosis of the Equine Infectious Anemia (EIA).
2.10. “Commissioner” means the West Virginia Commissioner of Agriculture or his or her designee.
2.11. “Department” means the West Virginia Department of Agriculture.
2.12. “Dispossess” means to use available means to, as humanely as possible and in emergency circumstances, terminate the life of diseased or disabled livestock or poultry.
2.13. “Distress” means a condition that occurs when livestock are injured, sick or in physical pain.
2.14. “Emergency situation” means a serious unexpected and often dangerous situation requiring immediate action.
2.15. “Equine” means an animal that is a member of the Equine genus including horses, ponies, mules, asses, donkeys, and zebras.
2.16. “General quarantine” means a confined area under the direct supervision and control of a State or Federal animal health official, who shall establish procedures for the accounting of all animals entering or leaving the area.
2.17. “Handling” means the moving, confining, or restraining of livestock for management practice, relocating, loading or unloading.
2.18. “Henneke body score” means a numerical scale used to evaluate the amount of fat on a horse’s body based on both visual appraisal and palpable fat cover of the six major points of the horse that are most responsive to changes in body fat. It is the scientific method of evaluating a horse’s body condition regardless of breed, body type, sex or age.
2.19. “Herd or flock” means a group of animals or birds that live, feed or travel together.
2.20. “Licensed and accredited veterinarian” means any veterinarian licensed to practice veterinary medicine in the state of West Virginia and accredited by the State Veterinarian and APHIS (Animal and Plant Health Inspection Service), VS (Veterinary Service) in accordance with provisions of Part 161, Title 9, CFR (Code of Federal Regulations) and pre-approved to perform certain functions of Federal and cooperative State-Federal programs.
2.21. “Livestock” means cattle, horses, swine, sheep, goats, cervids, or any other animal of the bovine, equine, porcine, ovine or caprine species, cervidae, and domestic poultry.
2.22. “Non-ambulatory disabled” means being unable to rise from a recumbent position or being unable to walk.
2.23. “Pharmaceuticals” means medication or medicine.
2.24. “Poultry” means any birds raised commercially or domestically for meat, eggs, feathers and pets.
2.25. “Quarantine” means a confined area., a minimum of 200 yards from any animal, and under the direct supervision and control of a State or Federal animal health official, who shall establish procedures for the accounting of all animals entering or leaving the area.
2.26. “Responsible party” means a person who is the owner of the livestock or a person who has current responsibility of custody of the livestock.
2.27. “Responsible law enforcement officer” means the sheriff, humane officer, or other agent designated by the county commission in each county for the investigation and enforcement of inhumane treatment of livestock or other animals.
2.28. “Shelter” means any cover man made or natural that gives livestock protection from the elements.
2.29. “Small Ruminants” means sheep and lambs, goats, alpacas and llamas.
2.30. “Soring” means the practice of applying an irritating or blistering agent, internally or externally, to any limb of a horse; any burn, cut or laceration that has been inflicted by a person on any limb of horse; any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse; or the application of any other substance or device that has been used by a person on any limb of a horse and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer physical pain or distress, inflammation, or lameness when walking, trotting or otherwise moving. The term does not include such application, infliction, injection, use or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary care.
2.31. “Swine” means any various stout-bodied short-legged omnivorous artiodactyl mammals (family Suidae).
2.32. “Vaccination” means the inoculation of an animal with a vaccine.
2.33. “Vaccine” means a suspension of attenuated or killed microorganisms (viruses, bacteria, or rickettsiae) or of antigenic proteins derived from them, administered for the prevention, amelioration, or treatment of infectious diseases.
2.34. “Valid veterinarian-client-patient relationship” means a relationship where the veterinarian has assumed the responsibility for making judgments regarding the health of the animal and the need for veterinary treatment, and the client, whether owner or other caretaker has agreed to follow the instruction of the veterinarian; there is sufficient knowledge of the animal by the veterinarian to initiate at least a general or preliminary diagnosis of the medical condition of the animal. This means that the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal by virtue of an examination of the animal or by medically appropriate and timely visits to the premises where the animal is kept; and the practicing veterinarian is readily available or shall provide medical service for follow-up in case of adverse reactions or failure of the regimen of therapy. A new regimen of therapy shall be contingent only upon cooperation of the client and availability of the subject animal.
2.35. “Veal” means a young bovine raised for the purpose of veal meat production.
W. Va. Code R. § 61-31-3 Addressing complaints regarding inhumane treatment of livestock
3.1. The county sheriff, humane officer, county commission, or other designated county authority is responsible for investigating and taking any action in response to a complaint of inhumane treatment of animals or livestock.
3.1.a. The Department shall forward complaints received by the Department to the responsible law enforcement officer of the county in which the conduct complained of occurred.
3.1.b. Law enforcement officers shall forward all complaints received regarding the inhumane treatment of livestock to the Department.
3.2. Any law enforcement officer may request assistance from the Department in addressing a situation concerning the inhumane treatment of livestock. Any documentation or communication regarding any investigation of a situation involving the inhumane treatment of livestock is confidential and exempt from disclosure pursuant to the West Virginia Freedom of information Act, W. Va. Code §29B-1-1 et seq.
3.3. Any law enforcement officer may request an opinion concerning the application of this rule to the Commissioner.
3.3.a. The requesting officer shall present the request in writing and provide all information in his or her possession concerning the complaint, including the results of any investigation conducted to date.
3.3.b. The Commissioner, or his or her designee, may investigate the complaint further or request additional information from the requesting officer, the animal owner, or the individual submitting the complaint. Any information collected as part of this process is considered confidential and exempt from disclosure pursuant to the West Virginia Freedom of information Act, W. Va. Code §29B-1-1 et seq.
3.3.c. The Commissioner may decline to issue an opinion if insufficient information is available.
W. Va. Code R. § 61-31-4 Feed, water, and ventilation
4.1. The responsible party shall provide its livestock with adequate feed, water and ventilation so as to maintain a body condition appropriate for its age, use, and stage of production, and given weather conditions.
4.2. A responsible party may withhold feed and water for the following reasons:
4.2.a. Specific management practices;
4.2.b. Health care purposes; or
4.2.c. Emergency situations.
W. Va. Code R. § 61-31-5 Space
5.1. The responsible party shall provide livestock sufficient space which may consist of the following:
5.1.a. An enclosure to confine;
5.1.b. An enclosure to semi-confine; or
5.1.c. An outdoor lot or pasture.
5.2. If used, facilities may be environmentally controlled.
5.3. Individual animals may be separated.
5.4. Indoor stocking densities shall allow sufficient floor space for poultry to perch or rest based on poultry production standards, production type, management guides and housing type.
W. Va. Code R. § 61-31-6 Health care
6.1. The responsible party shall promptly provide health care sufficient to maintain livestock which shall include:
6.1.a. Immunizations and vaccinations;
6.1.b. Use of pharmaceuticals and biologicals. Pharmaceuticals and biologicals shall be used in accordance with label directions or as directed by a licensed veterinarian; and
6.1.c. Prescription and extra-label medications. Prescription and extra-label medications shall be administered as directed by a licensed veterinarian with a valid-client-patient relationship.
W. Va. Code R. § 61-31-7 Preparing animals for exhibition
7.1. The responsible party shall train, fit and restrain livestock for exhibition in a manner that minimizes the risk of injury to the livestock.
W. Va. Code R. § 61-31-8 Livestock handling
8.1. The responsible party shall do the following in a manner that minimizes the risk of injury to the livestock:
8.1.a. Handling of livestock; and
8.1.b. Loading or unloading of livestock for or from transport.
W. Va. Code R. § 61-31-9 Transportation
9.1. Livestock must be able to stand in their natural posture or position or rest, and poultry must have sufficient floor space to perch or rest based on poultry production standards, production type, management guides and housing type.
9.2. The transport driver is solely responsible for the welfare of livestock during transit.
9.3. The responsible party shall make the final decision in determining the fitness of the transportation for livestock loading and transport and on the load density. The density of a load shall be determined by the need to minimize injury and must allow fallen animals to rise.
9.4. During transit, livestock should be reasonably protected from adverse weather conditions.
9.5. Transporters shall stop every 28 hours, unload the livestock, and provide livestock with food, water and rest for at least five (5) consecutive hours, unless the transportation vehicle allows the livestock to lay down and rest and have access to feed and water.
W. Va. Code R. § 61-31-10 Handling of disabled and distressed livestock
10.1. The responsible party for ambulatory disabled, non-ambulatory disabled, or distressed livestock shall provide appropriate protection from other animals, predators and weather extremes as required by the condition of the animal.
10.2. The responsible party shall provide ambulatory disabled, non-ambulatory disabled, or distressed livestock with access to water, and if maintained longer than twenty (24) hours, access to feed.
10.3. The responsible party shall handle and move ambulatory disabled, non-ambulatory disabled or distressed animals in a manner that minimizes the risk of additional distress.
10.4. The responsible party shall load disabled livestock only for transport for treatment.
10.5. The responsible party shall dispossess livestock in severe distress with an irreversible condition.
W. Va. Code R. § 61-31-11 Bio-security
11.1. The responsible party may enforce bio-security protocols and limit public access to farms.
11.2. The responsible party may use animals, devices or fencing for predator control.
W. Va. Code R. § 61-31-12 Exemptions
12.1. This rule does not apply during emergency situations or limit or prevent a licensed and accredited veterinarian or person under the supervision of a veterinarian from providing necessary care for an animal. (Animal Welfare Act, 7 U.S.C. 2131-2159.)
W. Va. Code R. § 61-31-13 Standards of care for beef cattle, bison, and veal
13.1. The responsible party shall feed veal calves two (2) or more times per day following a regular routine, if the veal calves are not provided unlimited access to feed. On all farms that house veal calves, there shall be access to hot water for the purpose of sanitation and mixing a milk-based liquid diet or milk replacer.
13.2. Body scoring evaluations shall be determined by using industry standards.
13.2.a. Evaluations shall be made using a scale of 1 – 9.
13.2.b. Any beef cattle, bison, or veal with a score of less than 2 and not under the care of a licensed and accredited veterinarian in West Virginia will be considered to be in violation of this rule.
13.3. During calving, there shall be sufficient space to enable cows to separate themselves from other animals.
13.4. Sheltering systems shall allow animals access to feed and water.
13.5. Concerning beef cattle, bison and veal, the following are authorized practices:
13.5.a. Castration;
13.5.b. Disbudding;
13.5.c. Dehorning;
13.5.d. Identification, including:
13.5.d.1. tattoos;
13.5.d.2. tagging;
13.5.d.3. freeze branding;
13.5.d.4. hot branding; and
13.5.d.5. ear notching;
13.6. Supernumerary teat removal;
13.7. Hoof trimming;
13.8. Artificial insemination;
13.9. Embryo transfer;
13.10. Navel dipping;
13.11. Breeding soundness evaluations;
13.12. Surgery;
13.13. Nose rings; or
13.14. Any other widely accepted practices.
W. Va. Code R. § 61-31-14 Standards of care for dairy cattle
14.1. Facilities shall be free of excessive manure.
14.2. Body scoring shall be determined by using industry standards.
14.2.a. Evaluations shall be made using a scale of 1 – 5.
14.2.b. Any dairy cattle with a score of less than 2 and not under the care of a licensed and accredited veterinarian in West Virginia is in violation of this rule.
14.3. Calves shall be fed milk or milk replacer until they are weaned.
14.4. Concerning dairy cattle, the following are authorized practices:
14.4.a. Tie stalls. Tie stalls may be used if:
14.4.a.1. Cattle are turned out routinely for exercise;
14.4.a.2. The tie stalls are designed and maintained so that their length and width provides space sufficient to accommodate the size of the animal’s body so that the animal is not forced to lie with the rear quarter contacting the alleyway or gutter; and
14.4.a.3. Cattle have room to stretch, eat, drink, and eliminate comfortably;
14.4.b. Free stalls. Free stalls may be used if:
14.4.b.1. The free stalls are designed and maintained so that their length and width provide space sufficient to accommodate the size of the animal’s body so that the animal is not forced to lie with the rear quarter contacting the alleyway or gutter; and
14.4.b.2. Stocking rates allow for adequate time per animal for rest, exercise and feed and water consumption;
14.4.c. Dehorning;
14.4.d. Debudding;
14.4.e. Tail switch trimming;
14.4.f. Tail docking. Tail docking may be performed using an elastrator castration band if the following requirements are met:
14.4.f.1. It is performed no sooner than the first confirmation of pregnancy;
14.4.f.2. The animal is managed using a dairy herd management system that practices tail docking; and
14.4.f.3. The responsible party provides a fly control program.
14.4.f.4. Only a licensed and accredited veterinarian may perform other methods of tail docking;
14.4.g. Identification;
14.4.h. Tattoo;
14.4.i. Tagging, including
14.4.i.1. Branding; and
14.4.i.2. Ear notching.
14.4.j. Supernumerary teat removal;
14.4.k. Hoof trimming;
14.4.l. Artificial Insemination;
14.4.m. Embryo transfer;
14.4.n. Navel dipping;
14.4.o. Breeding soundness evaluations;
14.4.p. Surgery;
14.4.q. Nose rings; or
14.4.r. Any other widely accepted practices.
W. Va. Code R. § 61-31-15 Standards of care for equine
15.1. Additional standards of care may be referenced by consulting American Association of Equine Practitioners Care Guidelines for Equine Rescue and Retirement Facilities.
15.2. Drink. Water containers shall be cleaned regularly and free of any hazard.
15.3. Feed.
15.3.a. Horses shall be provided a diet sufficient to maintain a healthy weight and body condition. In evaluating herd health, any individual Henneke body score of less than “three” (3) is unacceptable; unless that animal is under the supervision of a licensed and accredited veterinarian. Geriatric or ill horses may have less than an ideal weight and body condition.
15.3.b. In the event of a communicable disease being identified, the state veterinarian shall place an equine quarantine, which shall require the infected equine to be held a minimum of 200 yards from any other animal.
15.4. Concerning weight and body condition of equine the following scoring method shall be used:
15.4.a. Poor. Body score is “one” (1). Animal is extremely emaciated, Spinous rocesses (portion of the vertebra of the backbone which project upward), ribs, tailhead, and bony protrusions of the pelvic girdle (hooks and pins) are prominent. Bone structure of withers, shoulders and neck are easily noticeable. No fatty tissues can be felt.
15.4.b. Very Thin. Body score is “two” (2). Animal is emaciated. Slight fat covering over base of the spinous processes. Transverse processes (portion of vertebrae which project outward) of lumbar (loan area) vertebrae feel rounded. Spinous processes ribs, shoulders and neck structures are faintly discernible.
15.4.c. Thin. Body score is “three” (3). Fat is built up about halfway on spinous processes. Transverse processes cannot be felt. Slight fat cover over ribs. Spinous processes and ribs are easily discernible. Tailhead is prominent, but individual vertebrae cannot be visually identified. Hook bones (protrusion of pelvic girdle appearing in upper, forward part of the hip) appear rounded, but are easily discernible. Pin bones (bony projections of pelvic girdle located toward rear, mid-section of the hip) are not distinguishable. Withers, shoulder and neck are accentuated.
15.4.d. Moderately Thin. Body score is “four” (4). Negative crease along back (spinous processes of vertebrae protrude slightly above surrounding tissue). Faint outline of ribs is discernible. Fat can be felt around tailhead (prominence depends on confirmation). Hook bones are not discernable. Withers, shoulders, and neck are not obviously thin.
15.4.e.Moderate. Body score is “five” (5). Back is level. Ribs cannot be visually distinguished, but can be easily felt. Fat around tailhead feels soft. Fat begins to be deposited along the sides of the withers , behind the shoulders, and along sides of neck.
15.4.f. Moderate to Fleshy. Body score is “six” (6). May have slight crease down back. Fat over ribs feels spongy. Fat around tailhead feels soft. Fat begins to be deposited along the sides of the withers, behind the shoulders, and along sides of neck.
15.4.g. Fleshy. Body score is “seven” (7). May have crease down back. Individual ribs can be felt, but with noticeable filling of fat between ribs. Fat around tailhead is soft. Fat is deposited along withers, behind shoulders, and along neck.
15.4.h. Fat. Body score is “eight” (8). Crease down back. Difficult to feel ribs. Fat around tailhead is very soft. Area along withers is filled with fat. Area behind shoulder is filled in flush with the rest of the body. Noticeable thickening of neck. Fat is deposited along inner buttocks.
15.4.i. Extremely fat. Body score is “nine” (9). Obvious crease down back. Patchy fat appears over ribs. Bulging fat around tailhead, along withers, behind shoulders, and along neck. Fat along inner buttocks may rub together. Flank is filled in flush with the rest of the body.
15.5. Space.
15.5.a. Stalls in which horses are housed untethered for more than four (4) hours shall be large enough to allow horses to turn around completely, lie down comfortably and stand completely erect. Stalls shall have adequate ventilation and drainage and be kept free of excessive waste.
15.5.b. If a horse is tethered, it shall be done in a way and under supervision sufficient to minimize the risk of injury.
15.5.c. Pastures shall be routinely monitored for the presence of hazards.
15.5.d. Space shall be provided for exercise that is sufficient to maintain a horse’s health.
15.6. Authorized practices. The following are authorized practices;
15.6.a. Castration;
15.6.b. Identification;
15.6.c. Hoof trimming;
15.6.d. Shoeing;
15.6.e. Artificial insemination;
15.6.f. Embryo transfer;
15.6.g. Navel dipping;
15.6.h. Breeding soundness evaluations;
15.6.i. Surgery;
15.6.j Dental care;
15.6.k. Restraint by use of a twitch; or
15.6.l. Any other widely accepted practices.
15.7. The following are unauthorized practices:
15.7.a. Soring, as that term is defined in subdivision 2.3o of this rule.
W. Va. Code R. § 61-31-16 Standards of care for small ruminants
16.1. Body scoring shall be determined by using industry standards.
16.1.a. Evaluations shall be made using a scale of 1 – 5.
16.1.b. Any small ruminant with a score of less than 2 and not under the care of a licensed and accredited veterinarian in West Virginia is in violation of this rule.
16.2. The following are authorized practices:
16.2.a. Ovine.
16.2.a.1. Castration;
16.2.a.2. Hoof trimming;
16.2.a.3. Tail docking;
16.2.a.4. Identification;
16.2.a.5. Shearing;
16.2.a.6. Artificial insemination;
16.2.a.7. Embryo transfer; or
16.2.a.8. Any other widely accepted practices.
16.2.b. Caprine.
16.2.b.1. Castration;
16.2.b.2. Dehorning;
16.2.b.3. Disbudding;
16.2.b.4. Hoof trimming;
16.2.b.5. Identification;
16.2.b.6. Shearing;
16.2.b.7. Artificial insemination;
16.2.b.8. Embryo transfer; or
16.2.b.9. Any other widely accepted practices.
16.2.c. Camelids.
16.2.c.1. Hoof trimming;
16.2.c.2. Identification;
16.2.c.3. Shearing; or
16.2.c.4. Any other widely accepted practices.
W. Va. Code R. § 61-31-17 Standards of care concerning swine
17.1. Body scoring shall be determined by using the National Pork Board Pork Quality Assurance Guidelines.
17.2. If being transported, swine must be able to stand in their natural position without touching the top of the transport conveyance.
17.3. The following are be authorized practices:
17.3.a. Castration;
17.3.b. Needle teeth clipping;
17.3.c. Boar tusk removal;
17.3.d. Tail docking;
17.3.e. Identification, using ear notching, tattooing, or ear tagging;
17.3.f. Environmentally controlled housing. Swine may be raised in environmentally controlled housing designed in a manner that minimizes the effects of adverse weather conditions;
17.3.g. Stalls, pens or outdoor lots with shelters for gestating sows;
17.3.h. Crates, pens or outdoor huts for farrowing and lactating sows;
17.3.i. Nose rings;
17.3.j. Surgery;
17.3.k. Artificial insemination; or
17.3.l. Any other widely accepted practices.
W. Va. Code R. § 61-31-18 Standards of care concerning poultry
18.1. Stocking densities shall allow sufficient floor space for poultry to perch or rest based on poultry production standards, production type, management guides and housing type.
18.2. Ambulatory disabled and non-ambulatory disabled poultry that cannot reach feed or water shall be dispossessed.
18.3. The following are authorized practices:
18.3.a. Non-feed withdrawal molt methods for layers and breeder;
18.3.b. Trimming of the beak;
18.3.c. The partial or complete removal of the comb, snood or toe nail;
18.3.d. Withholding of feed or water in circumstances such as:
18.3.d.1. Preparation for administration of vaccines or medication in the water; or
18.3.d.2. Preparation for transportation;
18.3.e. Housing methods, including; or
18.3.f. Any other widely accepted practices.
18.3.f.1. A caged egg production system in an enclosed or open-sided building having some openwork for confining poultry. Types of caged housing systems include conventional, belt-battery, enriched and reverse;
18.3.f.2. A cage-free egg production system in an enclosed or open-sided building in which the poultry are free to move within the building. Types of cage-free housing systems include slat floor, litter floor, partial slat or litter floor, stretched wire floor and aviary systems; and
18.3.f.3. A Free-Roam or Free-Range egg production system where poultry have access to the outside or range and are provided shelter.
18.4. Authorized methods for dispossessing poultry shall include inhalants such as carbon dioxide, nitrogen or argon, manual cervical dislocation, gunshot, blunt force trauma, decapitation, non-penetrating captive bolt, electrocution, maceration, water based foam and barbiturates.
W. Va. Code R. § 61-31-19 Standards of care concerning captive cervids
19.1. The responsible party shall maintain captive cervids in accordance with the Department of Agriculture’s rule Captive Cervid Farming 61CSR34.
19.2. Body scoring shall be determined by using the Canadian system or Purina Mills.
19.2.a. Evaluations shall be made using a scale of 1-5.
19.2.b. Any owner of a captive cervid with a score of less than 2 and not under the care of a licensed and accredited veterinarian in West Virginia is in violation of this rule.
W. Va. Code R. § 61-31-20 Animal morbidity and mortality data
20.1. Animal morbidity and mortality data shall be referenced in the USDA FSA West Virginia Livestock Mortality Rates.
W. Va. Code R. § 61-31-21 Penalties
21.1. A person who violates any provision of this rule is subject to the penalties prescribed in West Virginia Code §61-8-19.
Series 32 Equine Rescue Facilities
W. Va. Code R. § 61-32-2 Definitions
2.1. "APHIS" means Animal and Plant Health Inspection Service.
2.2. "Application" means a request form submitted to the Commissioner to open an Equine Rescue Facility.
2.3. "Body condition score" means an industry accepted evaluation of an animal's body fat and muscle mass as related to skeletal dimension and stage of production.
2.4. "Coggins" means the common name for the agar gel immunodiffusion test for diagnosis of Equine Infectious Anemia (EIA).
2.5. "Commissioner" means the Commissioner of the West Virginia Department of Agriculture.
2.6. "Designated isolation area" means an area with no direct equine contact.
2.7. "Emergency situation" means a serious unexpected and often dangerous situation requiring immediate action.
2.8. "Equine" means any animal in the Family Equidae, including horses, asses, mules, ponies, and zebras.
2.9. "Equine infectious anemia" means an infectious disease of equines caused by a lentivirus, equine infectious anemia virus (EIAV).
2.10. "Equine rescue facility" means a facility that is listed as a nonprofit organization having a legitimate and current status under Title 26 U.S.C. 501(c)(3) that fosters care to unwanted equines due to age, health or other circumstances that deem the equines homeless; provided that a nonprofit organization that supervises foster care of unwanted equines but does not have a physical location where animals are housed is not an equine rescue facility for purpose of West Virginia Code §19-33-1
2.11. "Equine rescue facility license" means a license granted by the Commissioner to an applicant to open an equine rescue facility.
2.12. "Henneke body score" means a numerical scale used to evaluate the amount of fat on a horse's body, based on both visual appraisal and palpable fat cover of the six major points of the horse that are most responsive to changes in body fat. It is the scientific method of evaluating a horse's body condition regardless of breed, body type, sex or age.
2.13. "Humane officer" means a person, designated by the sheriff in each county, to prevent the perpetration or continuance of any act of cruelty upon any animal and to investigate and, upon probable cause, to arrest and assist in the prosecution of any person engaging in cruel and forbidden practices.
2.14. "Inspection" means an examination of an equine rescue facility to see that the standards of care are met for the horses, facility, and premises, conducted by a humane officer or county sheriff, in the county that the facility is located.
2.15. "Licensed accredited veterinarian" means any veterinarian licensed to practice veterinary medicine in the state of West Virginia and accredited by the State Veterinarian , APHIS and approved by the Deputy Administrator of USDA, APHIS, VS (United States Department of Agriculture, Animal and Plant Health Inspection Service, Veterinary Service) in accordance with provisions of Part 161, Title 9, Code of Federal Regulations (CFR) and pre-approved to perform certain functions of Federal and cooperative State-Federal programs.
2.16. "Maintenance" means the preservation and upkeep of the premises of an equine rescue facility, as well as the space in which horses are kept.
2.17. "Quarantine area" means a confined area, a minimum of 200 yards from any equine and under the direct supervision and control of a State or Federal animal health official, who shall establish procedures for the accounting of all animals entering or leaving the area.
2.18. "Revocation" means the withdrawl of a license to operate an equine rescue facility by the Commissioner.
2.19. "Seizure" means to take possession of the horses that are kept at an equine rescue facility.
2.20. "Shelter" means any cover man made or natural that gives livestock or poultry protection from the elements.
2.21. "USDA" means the United States Department of Agriculture.
2.22. "West Virginia Equine Rescue Standards" means the American Association of Equine Practitioners Care Guidelines for Equine Rescue and Retirement Facilities.
W. Va. Code R. § 61-32-3 Issuance of license
3.1. A person requesting a license to operate an Equine Rescue Facility shall submit an application to the Commissioner of the West Virginia Department of Agriculture.
3.2. The application shall include:
3.2.a. The name of the person responsible for the facility;
3.2.b. The address of the facility;
3.2.c. A detailed drawing and measurements of the facility including;
3.2.c.1. A quarantined area; and
3.2.c.2. An isolation area;
3.2.d. The phone number of the person responsible for the facility; and
3.2.e. All veterinary records pertaining to each equine at the facility including;
3.2.e.1. The name of the veterinarian; and
3.2.e.2. The phone number of the veterinarian.
3.3. The Commissioner shall notify the humane officer upon issuing a license.
W. Va. Code R. § 61-32-4 Annual fee
4.1. The annual fee for an equine rescue facility license is $100.
4.2. The Commissioner shall remit this fee to the humane officer in the county where the facility is located to offset the expense of inspecting that facility.
W. Va. Code R. § 61-32-5 Standards of care for equine rescue facility
5.1. Standards of care for an equine rescue facility are contained in the West Virginia Department of Agriculture's rule, Livestock Care Standards 61CSR31.
W. Va. Code R. § 61-32-6 Standards for inspection
6.1. All equine rescue facilities shall be inspected two (2) times per year by the humane officer in that county.
6.2. The humane officer shall notify the Commissioner of his or her inspection report.
6.3. If the standards of care that are listed in §61-32-5 and §61-32-6, are not met the Commissioner shall revoke the facility's license.
6.4. The facility shall have up to sixty (60) days after the revocation to correct its violations.
6.5. In the case of an emergency situation, the Commissioner may allow a facility which is not meeting the standards to remain open until it can resolve the situation.
W. Va. Code R. § 61-32-7 Standards for closure
7.1. The Commissioner shall close any facility that fails to comply with correction of its violations.
7.2. If ownership of equine seized from the facility is granted to the state, the West Virginia Department of Agriculture shall immediately sell equine at public auction to the highest bidder.
7.2.a. All equine taken to public auction shall require a negative Coggins test.
7.3. Seized horses will be supported in place or relocated to a West Virginia Department of Agriculture facility, and cared for until marketed.
Series 33 Rural Rehabilitation Loan Program
W. Va. Code R. § 61-33-1 General
1.1. Scope. -- The Rural Rehabilitation Loan Program is a program administered by the West Virginia Department of Agriculture. This legislative rule defines the Rural Rehabilitation Loan Program, establishes requirements for the Rural Rehabilitation Loan Committee, the minimum financial requirements for receiving a loan, requirements for loan usage, sufficient collateral, an application process, refinancing, delinquencies, restructuring distressed loans, collection proceedings, requirements for advertising the program and sets forth applicable interest rates.
1.2. Authority. -- W. Va. Code §19-1-11.
1.3. Filing Date. -- May 7, 2025
1.4. Effective Date. – May 7, 2025
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2032.
W. Va. Code R. § 61-33-2 Definitions
2.1. “Agricultural or related purpose” means to use for starting, purchasing, or expanding a farm operation; to assist farmers who have suffered financial setbacks from natural disasters, or who need additional resources with which to redirect or maintain profitable farming operations; or for any other agricultural purpose determined important by the Commissioner.
2.2. “Application” means a request form for a loan submitted to the West Virginia Department of Agriculture Rural Rehabilitation Loan Committee.
2.3. “Application for restructuring” means a written request from a borrower for the restructuring of a distressed loan in accordance with a preliminary restructuring plan proposed by the borrower, accompanied by sufficient financial information and repayment projections to support a sound credit decision.
2.4. “Collateral” means security that is pledged for a loan.
2.5. “Collection proceedings” means proceedings to demand payment of a loan.
2.6. “Commissioner” means the Commissioner of the West Virginia Department of Agriculture or his or her designee.
2.7. “Delinquency” and “Delinquencies” mean a failure to pay back a loan; neglecting to pay back a loan in a timely manner.
2.8. “Department employee” means a person who is currently employed by the West Virginia Department of Agriculture.
2.9. “Distressed loan” means a loan that the borrower does not have the financial capacity to pay according to its terms, that presents a high probability of loss to the Rural Rehabilitation Loan Program, and that exhibits one or both of the following characteristics:
2.9.a. The borrower is experiencing documented financial adversity; or
2.9.b. The loan is delinquent or past due under the terms of the loan contract.
2.10. “Immediate family” means a spouse, parent, grandparent, child, grandchild, sibling, and similarly related in-laws, adopted, half and step members of families.
2.11. “Loan” means the lending of money secured by collateral, that may be in the form of a traditional loan with an interest rate attached to the terms of the loan, a guarantee of a loan, or a portion of a loan to assist with agricultural or related purposes.
2.12. “Refinance” and “refinancing” mean to renew, modify, replace, reschedule or reorganize the terms of an existing loan in good standing under the Rural Rehabilitation Loan Program. “Refinance” and “refinancing” do not include restructuring of distressed loans.
2.13. “Restructure” and “restructuring” include rescheduling, reamortization, renewal, deferral of principal or interest, monetary concessions, and/or the taking of any other action to modify the terms of, or forbear on, a loan in any way that will make it probable that the operations of the borrower will become financially viable.
2.14. “Rural Rehabilitation Loan Committee” or the “Committee” is a committee appointed by the Commissioner of Agriculture.
2.15. “Rural Rehabilitation Loan Program” or “Program” is a loan program, administered by the West Virginia Department of Agriculture, to promote investment in the agriculture industry in the state.
2.16. “Significant financial contributions” means the expenditure of an applicant’s monetary resources toward the real or personal property purchased with the loan in an amount large enough relative to the loan request to indicate a sincere interest in the purpose of the loan. In judging the significance of financial contributions, the Rural Rehabilitation Loan Committee shall consider, among other factors, the total amount of the loan request, the financial resources of the applicant, and industry standards and expectations. For purposes of this definition, a contribution of one hundred dollars ($100.00) or less shall never be significant and a contribution of ten thousand dollars ($10,000.00) or more shall always be significant.
2.17. “Wall Street Journal prime rate” means a measure of the U.S. prime rate that is the base rate on corporate loans posted by at least 70% of the 10 largest U.S. banks.
W. Va. Code R. § 61-33-3 Rural Rehabilitation Loan Committee
3.1. The Commissioner shall establish a loan committee consisting of the following five (5) members:
3.1.a. One current employee of the West Virginia Department of Agriculture; and
3.1.b. Four public members as follows:
3.1.b.1. One member with agricultural experience;
3.1.b.2. One member with business loan experience; and
3.1.b.3. Two at large members.
3.2. Members of the Rural Rehabilitation Loan Committee shall serve at the will and pleasure of the Commissioner.
3.3. The Rural Rehabilitation Loan Committee shall meet to consider loan applications, applicable interest rates, delinquencies, refinancing, collection proceedings, collateral requirements and other aspects of the Program and make recommendations to the Commissioner as to how to proceed.
3.4. Each public member of the Rural Rehabilitation Loan Committee may receive compensation for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A member of the Rural Rehabilitation Loan Committee may not receive compensation for travel days that are not on the same day as the official meeting or official duties.
3.5. The Commissioner may reimburse members of the Rural Rehabilitation Loan Committee for actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of their official duties in a manner consistent with guidelines of the West Virginia Department of Agriculture Travel Policy.
W. Va. Code R. § 61-33-4 Requirements for applicants
4.1. An applicant wanting to participate in the Program must have an acceptable credit history.
4.2. An applicant may not be delinquent on a federal or state debt, nor have received forgiveness from any government-sponsored loan program, other than a government-sponsored loan forgiveness program.
4.3. No department employee, Rural Rehabilitation Loan Committee member, or their immediate family member is eligible for the loan program.
4.4. An applicant shall demonstrate adequate training, education or agricultural experience.
W. Va. Code R. § 61-33-5 Loans for agricultural or related purposes
5.1. An applicant may only use loan proceeds for agricultural or related purposes, as determined by the Commissioner.
5.2. Funds shall be used to support of a thriving agricultural economy.
W. Va. Code R. § 61-33-6 Sufficient collateral required
6.1. All loans shall be secured by sufficient collateral.
6.2. If the applicant applies for a loan, he or she shall demonstrate significant financial contributions of his or her own. This requirement may be waived if the Rural Rehabilitation Loan Committee makes a written determination that a loan does not require a significant financial contribution by the borrower.
6.3. If the loan proceeds are to be used for the purchase of collateral securing the loan, the applicant shall purchase all such collateral within a reasonable time period, not to exceed thirty (30) days after the date of loan closing, or as set by the Rural Rehabilitation Loan Committee.
6.4. The applicant shall cooperate with the Rural Rehabilitation Loan Committee to provide all necessary identifying information and legal documentation needed to perfect a lien against the collateral, within a reasonable time period, not to exceed thirty (30) days after the date of loan closing, or as set by the Rural Rehabilitation Loan Committee.
W. Va. Code R. § 61-33-7 Application
7.1. The application shall include the applicant’s name, address and Social Security number.
7.2. The application shall also include any additional information requested by the Commissioner to thoroughly evaluate the loan applicant’s credit worthiness, current debt load, ability to repay the loan, proper collateral and other financial history.
W. Va. Code R. § 61-33-8 Applicable interest rates
8.1. The Rural Rehabilitation Loan Committee shall set an interest rate using Wall Street Journal Prime Rate as a guide for the appropriate interest rate at the time it votes to recommend the loan for the Commissioner’s approval.
8.2. The interest rate is fixed throughout the life of the loan at the interest rate established in this section unless otherwise modified as part of an approved loan restructuring. Modifications may raise or lower the interest rate.
W. Va. Code R. § 61-33-9 Delinquencies and collection proceedings
9.1. A loan is deemed delinquent when the borrower misses two (2) consecutive monthly payments, or one quarterly, semi-annual, or annual payment. For loans closed on or after July 1, 2025, a loan is deemed delinquent when the borrower misses one (1) monthly payment, or one quarterly, semi-annual, or annual payment.
9.2. For loans closed on or after July 1, 2019, the Commissioner shall charge a late fee of twenty-five dollars ($25.00) after the expiration of a payment grace period of fifteen (15) days after the date a loan becomes delinquent, as defined in subsection 9.1, and shall charge an additional late fee of twenty-five dollars ($25.00) after each subsequent month the loan remains delinquent.
9.2.a. The Rural Rehabilitation Loan Committee may waive any late fees, penalties and interest relating to delinquency, after determining such waiver is in the best interest of the loan program.
9.3. When a monthly borrower owes four (4) payments the Commissioner shall issue a notice of default and right to cure, giving the borrower (30) thirty days to bring the loan current or make other arrangements. Notice of default and right to cure for loans on a quarterly or annual basis will be issued at the discretion of the Commissioner.
9.4. The Commissioner may take further remedial action, including formal collection procedures, sale of assets, deed of trust sale or other allowable measure against any loan holder who is delinquent, after initial attempts to resolve the delinquency are unsuccessful.
W. Va. Code R. § 61-33-10 Refinancing
10.1. The loan holder may refinance a loan in good standing after 5 years have elapsed from the date of the loan: Provided, That the Commissioner may waive the five-year requirement upon a showing that a declared state of emergency impacted, or will likely impact, the loan holder’s ability to remain in good standing on the loan.
10.2. The loan holder shall submit a new application to be eligible for refinancing
10.3. The Rural Rehabilitation Loan Committee will evaluate the new application using the same criteria for initial loans and will also consider the borrower’s loan repayment history.
10.4. Any refinancing may not extend a loan term past 20 years from the date of the original loan agreement.
10.5. The limits on refinancing in this section shall not apply when restructuring distressed loans under section 15 of this rule.
W. Va. Code R. § 61-33-11 Advertisement
11.1. The Commissioner shall advertise the Rural Rehabilitation Loan Program to the public in both of the following manners:
11.1.a. On the West Virginia Department of Agriculture website; and
11.1.b. In the West Virginia Department of Agriculture’s Market Bulletin.
W. Va. Code R. § 61-33-12 Competitive Bidding
12.1. The Commissioner shall seek, by use of competitive bids, the servicing of any loans provided through its program.
W. Va. Code R. § 61-33-13 Annual report
13.1. The Commissioner shall file an annual report to the Joint Committee on Government and Finance regarding the loan program, including information about the loans awarded, loans repaid, loans outstanding, interest rates, delinquency and collections, and other pertinent data.
W. Va. Code R. § 61-33-14 Determination of distressed loans
14.1. The Rural Rehabilitation Loan Committee shall receive reports, prepared by the Department, on active loans and determine from their repayment history and any other available information if any active loans are in distress.
14.2. On a determination by the Rural Rehabilitation Loan Committee that a loan is a distressed loan, the Commissioner shall provide written notice to the borrower that the loan may be suitable for restructuring, and include with such notice all materials necessary to enable the borrower to submit an application for restructuring.
14.3. On determination that a loan is or has become a distressed loan, the Commissioner shall provide a reasonable opportunity for the borrower to personally appear before the Rural Rehabilitation Loan Committee to review the status of the loan, the financial condition of the borrower, and the suitability of the loan for restructuring.
W. Va. Code R. § 61-33-15 Consideration of applications for restructuring
15.1. When the Rural Rehabilitation Loan Committee receives an application for restructuring from a borrower, the Rural Rehabilitation Loan Committee shall determine whether or not to recommend the Commissioner approve restructuring the loan, taking into consideration:
15.1.a. Whether the proposed restructuring plan is in the best financial interests of the Rural Rehabilitation Loan Program;
15.1.b. Whether the borrower is applying all income over and above necessary and reasonable living and operating expenses to the payment of primary obligations;
15.1.c. Whether the borrower has the financial capacity and the management skills to protect the collateral from diversion, dissipation, or deterioration;
15.1.d. Whether the borrower is capable of working out existing financial difficulties, reestablishing a viable operation, and repaying the loan on a rescheduled basis; and
15.1.e. In the case of a distressed loan that is not delinquent, whether restructuring consistent with sound lending practices may be taken to reasonably ensure that the loan will not become delinquent.
15.2. The Rural Rehabilitation Loan Committee may modify the restructuring plan proposed by the borrower or propose a new restructuring plan.
Series 34 Captive Cervid Farming
W. Va. Code R. § 61-34-1 General
1.1. Scope. -- This legislative rule provides for the regulation, protection, and promotion of bio-security, licensing, animal identification, fencing, record keeping, health testing requirements, herd movement, and fees.
1.2. Authority. -- West Virginia Code §19-2H-1, §19-2H-2
1.3. Filing Date. -- April 30, 2020
1.4. Effective Date. -- April 30, 2020
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect April 30, 2030.
1.6. Incorporation by Reference – The Code of Federal Regulations (9 CFR, Part 81) Chronic Wasting Disease in Deer, Elk, and Moose and the CWD Program Standards effective June 13, 2012, defined by the United States Department of Agriculture/Veterinary Services are incorporated by reference.
W. Va. Code R. § 61-34-2 Definitions
2.1. “Accredited veterinarian” means a veterinarian approved and accredited in accordance with 9 C.F.R. §160 (2015).
2.2. “Animal” means any farmed or captive deer, elk, moose or other cervid.
2.3. “Animal and plant health inspection service (APHIS)” means the Animal and Plant Health Inspection Service of the United States.
2.4. “Antemortem inspection” means the observation of live animals by a veterinarian or trained inspector for lameness or abnormal behavior prior to slaughter.
2.5. “Approved state” means a state that APHIS has determined has an Approved State CWD Herd Certification Program.
2.6. “Approved laboratory” means a diagnostic laboratory approved to conduct official tests for CWD in accordance with 9 C.F.R. §55.8 (2015).
2.7. “Captive cervid farming facility” means a facility which is licensed to hold cervids in a permanent enclosure.
2.8. “Cervid” means all members of the family Cervidae and any hybrids, including deer, elk, moose, caribou, reindeer, and related species, both native and exotic.
2.9. “Chronic wasting disease” or “CWD” means a transmissible spongiform encephalopathy of cervids.
2.10. “Class One” or “Class I license” means a license to operate a captive cervid facility which breeds and propagates captive cervids, creates cervid byproducts for sale to others and slaughters for personal use.
2.11. “Class Two” or “Class II” license means a license to operate a captive cervid facility which shall breed, propagate, harvest or slaughter, create captive cervid byproducts, permit hunting or sell venison to others.
2.12. “Commercial shooting preserve” or “shooting preserve” means a Class II license facility that permits hunting.
2.13. “CWD herd certification program” means the Chronic Wasting Disease Herd Certification Program established in 9 C.F.R. §55 (2015). This program includes both herds that are directly enrolled in the CWD Herd Certification Program and herds that are included based on their participation in Approved States CWD Herd Certification Programs.
2.14. “DNR” means West Virginia Division of Natural Resources.
2.15. “Department” or “WVDA” means the West Virginia Department of Agriculture.
2.16. “Quarantine” means a confined area of 200 yards from any animal, and under the direct supervision and control of a State or Federal animal health official, who shall establish procedures for the accounting of all animals entering or leaving the area.
2.17. “Slaughter facility” means a slaughter facility with a valid captive cervid license operating under state or federal inspection that may hold cervids for up to seventy-two (72) hours prior to slaughtering, or a slaughter facility with no captive cervid facility license operating under state or federal inspection that must slaughter all cervids within the operating day of receipt of the animal(s).
2.18. “Tuberculosis” or “TB” means an infectious disease caused by Mycobacterium bovis, commonly known as the tubercle bacillus.
2.19. “USDA” means the United States Department of Agriculture.
2.20. “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. The term wildlife does not include captive cervids regulated pursuant to §19-2H-2 of the W. Va. Code.
2.21. All other terms have the meaning proscribed to them in W. Va. Code §19-2H-2.
W. Va. Code R. § 61-34-3 Application for license
3.1. A person requesting a license to operate a Captive Cervid Farming Facility shall submit an application to the Department.
3.2. The application shall include:
3.2.a. The name of the person responsible for the facility;
3.2.b. The mailing address of the proposed facility;
3.2.c. The location of the proposed facility;
3.2.d. The size of the facility;
3.2.e. A legal description of the facility;
3.2.f. The number of species of cervid to be included in the facility, including current inventory;
3.2.g. The bio-security measures to be used;
3.2.h. The proposed method of flushing wild cervids from the enclosure, if applicable;
3.2.i. The proposed record keeping system;
3.2.j. The method of verification that all wild cervids have been removed;
3.2.k. The current zoning of the property proposed for the facility; and
3.2.l. Any other information requested by the Department.
3.3. The Department shall approve or reject an application for license within sixty (60) days upon receipt.
3.4. The Department may issue a provisional license to a proposed facility that has not yet been constructed, but operations will not begin until the fully-constructed facility has been inspected and approved by the Department.
3.5. Each facility that has a deficiency in its license application shall have thirty (30) days upon notice from the Department to correct the deficiency before the license is denied.
3.6. Upon the license’s approval, the Department shall issue a license containing the following information:
3.6.a. The class of the license;
3.6.b. The license number;
3.6.c. The license’s expiration date;
3.6.d. The captive cervid species and number of captive cervids approved for the licensed facility (including allowance for births); and
3.6.e. The name, business address and telephone number of the owner and of the captive cervid farming facility.
W. Va. Code R. § 61-34-4 Fees
4.1. The Department shall issue one of two licenses for captive cervid facilities.
4.1.a. The fee for a Class I license is $375.00.
4.1.b. The fee for a Class II license is $750.00.
4.2. Current licenses, including commercial shooting preserves, expire on June 30th of the year following issue.
4.3. Cervid antemortem and postmortem inspection for slaughter at state licensed establishments shall be provided at the rate of $55/per hour.
4.4. Cervids requiring antemortem field inspection shall be inspected at the rate of $55/per hour.
4.5. Time for antemortem inspections will be calculated from the time the inspector leaves the department’s property or assigned location until the time of return in fifteen (15) minute intervals.
4.6. The Department shall retain the license fee for its services in the event that a license is denied.
W. Va. Code R. § 61-34-5 License renewal; modification, sale or transfer of license
5.1. An updated inventory record containing birth and death records, and testing results shall be provided biannually: at license renewal on June 30 and by December 31.
5.2. Any owner having proposed changes in class of license, cervid species, number of captive cervids (including births that exceed that permitted by the license) or other requirements necessitating modification to the license, shall apply to the Department for a license modification. Births at the facility do not violate an issued license, if the owner provides the Department with an updated inventory within fifteen (15) days.
5.3. Any person who has acquired ownership of a facility shall apply to the Department for a new license so long as the transferee satisfies all license requirements and fees.
W. Va. Code R. § 61-34-6 Inspections
6.1. The Department shall have access to a facility, facility records and the cervids at all reasonable hours to conduct inspections for the following purposes:
6.1.a. To ensure that the facility meets the requirements of this rule prior to the granting of the desired license;
6.1.b. To secure samples and specimens; and
6.1.c. To assure that the provisions for containment and care of captive cervids are adequate, that the safety of the public is protected and to assure compliance with the terms and conditions of this rule and other applicable laws, rules and regulations.
6.2. It is recommended that a facility representative be present during inspections.
W. Va. Code R. § 61-34-7 Facility
7.1. The facility shall be inspected by the Department before license is approved and shall meet the following requirements:
7.1.a. The applicant has all necessary federal, state and local governmental permits.
7.1.b. The applicant has paid all applicable license fees and all departmental charges for services provided to the facility.
7.1.c. A unique and permanent identifying license number corresponding to the number assigned to the premises by the WVDA Premises Registration Program has been assigned to the licensed captive cervid facility. The applicant shall submit this number with the application for a captive cervid facility license. Licensees or applicants who are without a premise identification number may contact the Department for further assistance and instruction.
W. Va. Code R. § 61-34-8 Fencing
8.1. The facility shall provide fencing and meet specifications to prevent the escape of captive cervids and the infiltration of wild cervids into a captive cervid farming facility as follows:
8.1.a. The facility shall be constructed of such material, strength and design:
8.1.a.1. To contain the captive animals within the enclosure;
8.1.a.2. To safeguard both the captive animals and the public against injury;
8.1.a.3. To prevent the transmission of disease by indirect contact from the captive animals to wild cervids and the public;
8.1.a.4. To prevent the escape of captive animals;
8.1.a.5. To prevent wild cervids from entering the enclosure; and
8.1.a.6. Require a five-foot cleared buffer around outer perimeter in order to inspect integrity of fence.
8.1.b. Perimeter fencing shall be adequate to prevent:
8.1.b.1. The ingress or egress of cervids;
8.1.b.2. Designed and constructed to take into account topography and terrain features;
8.1.b.3. Constructed to withstand commonly expected occurrences that would cause the fence to be breached. These occurrences shall include; but not limited to:
8.1.b.3.a. High winds;
8.1.b.3.b. Ice storms;
8.1.b.3.c. Large snowfall amounts; and
8.1.b.3.d. Flooding.
8.1.c. The perimeter fence shall meet the following requirements; or the equivalent thereof:
8.1.c.1. Fence material shall be New Zealand style deer fence or its equivalent;
8.1.c.2. Total height of fence shall be a minimum of eight (8) feet;
8.1.c.3. Minimum 12.5 gauge high tensile woven wire with locking knots and a maximum six (6) inch spacing shall be used;
8.1.c.4. Posts shall be metal ‘T’ posts, treated 4 X 4 posts, 6 inch treated round post or their equivalent;
8.1.c.5. Corner posts shall be properly braced and installed;
8.1.c.6. Posts shall be properly spaced and anchored;
8.1.c.7. Rigid posts shall be set at lowest points of dips and on crowns or humps;
8.1.c.8. Trees or other structures that could threaten the fence shall be removed or fencing shall be constructed so as to prevent the breach of the fence from the fall of a tree or structure.
8.1.c.9. Gates shall be of sufficient strength and construction with no gaps;
8.1.c.10. Gates shall have functional locks;
8.1.c.11. Fencing shall be properly attached to posts;
8.1.c.12. Bottom strand of fence shall be at ground level and reinforced; and
8.1.c.13. Water courses, gullies, ditches, etc. shall be properly fenced to prevent escape.
8.1.d. The minimum size for captive cervid facilities shall be 5,000 square feet for one animal. The enclosure size shall be increased by 25% for each additional animal.
8.1.e. The owner shall provide appropriate shelter and bedding material for the captive animals that protects them from inclement weather.
8.1.f. The owner shall provide fresh drinking water daily.
8.1.g. The owner shall provide captive animals daily with food that is wholesome, palatable, free from contamination and of sufficient quantity and nutritive value to maintain all animals in good health. No person shall feed any cervid with any material that contains protein derived from any mammalian tissues.
8.1.h. Where necessary, fecal and food waste shall be removed from the enclosure and stored or disposed of in a manner that prevents noxious odors or insect pests and is in accordance with best management practices. Food, urine, fecal waste, and soils exposed to these waste materials must not be disposed where they may be exposed to free ranging white tail deer.
8.1.i. The owner shall keep all cervids free from parasites, sickness or disease. If sick, cervids must be given immediate professional medical attention or be humanely destroyed.
8.1.j. Co-mingling of different cervid species is allowed if the population density is at least 20,000 square feet per animal and if all best management practices are followed by the captive cervid facility. (Food, water and waste material from captive cervids must not be available to or exposed to free ranging white-tailed deer.)
8.1.k. The facility shall not restrict the movement of or trap existing free ranging deer inhabiting the land on which the facility is constructed. Department personnel shall verify the absence of entrapped deer and may require snow cover for the detection of deer prior to the release of any captive cervids within the facility.
W. Va. Code R. § 61-34-9 Identification
9.1. Prior to reaching twelve (12) months of age, a licensee shall mark all captive cervids with an official ID as defined by the USDA APHIS Animal Disease Traceability rule (840 RFID or metal tag with USDA shield) or a metal ear tag with a unique identification number affixed to the ear. In addition, all captive cervids must be marked with a unique marker visible and identifiable.
9.2. The Commissioner may exempt cervids currently in existing commercial shooting preserves from the tagging requirement in §61-34-9.9.1 of this rule provided that the licensee shall provide an annual minimum of 30 cervids or 10 percent of the dispatched cervids, whichever is less in the enclosure for CWD sampling. The licensee shall tag and inventory all cervids that are handled or added to the enclosure.
W. Va. Code R. § 61-34-10 Record keeping
10.1. An owner shall maintain an accurate and current inventory of all animals in the captive cervid herd on forms provided by the Department.
10.1.a. The inventory shall include the following information:
10.1.a.1. All cervid and other animal acquisitions;
10.1.a.2. Sales;
10.1.a.3. Possession transfers;
10.1.a.4. Escapes;
10.1.a.5. Births; and
10.1.a.6. Mortalities.
10.1.b. A licensee shall maintain all appropriate permits which shall include the following:
10.1.b.1. Names of;
10.1.b.2. Addresses of;
10.1.b.3. Sales documentation;
10.1.b.4. Tag numbers;
10.1.b.5. Origins and destinations of all transaction concerning captive cervids; and
10.1.b.6. All CWD testing records.
10.2. A licensee shall forward a copy of the records of all acquisitions, mortalities by unknown cause, sales or possession transfers to the State Veterinarian’s Office within fifteen (15) days. Applications to receive or transfer captive cervids shall be made on forms provided by the Department.
10.3. A licensee shall obtain prior approval from the Department to move captive cervids both interstate and intrastate. The Department may grant approval on a case by case basis.
W. Va. Code R. § 61-34-11 CWD, TB and Brucellosis standards and testing
11.1. The Department shall develop an accreditation program for captive cervids for diseases including TB, Brucellosis and CWD.
11.2. A licensed captive cervid facility shall enroll its herds in the West Virginia CWD herd certification program following the USDA CWD herd certification program guidelines.
11.3. A licensee shall submit appropriate samples for testing and enroll in the USDA programs such as, but not limited to, TB and Brucellosis herd accreditation status and CWD programs as defined by the USDA as a term and condition of the captive cervid license.
11.4. A captive cervid facility shall only accept cervids from TB and Brucellosis accredited herds that meet the CWD monitoring and surveillance program requirements. All tests for TB and Brucellosis shall be performed by a licensed and accredited veterinarian certified by the USDA to perform the testing.
11.5. A captive cervid facility may receive animals coming from a herd within the state, only if the proposed transfer is from a herd that has an ongoing and appropriate CWD surveillance record for at least sixty (60) months.
If a licensee has a monitoring program which has been in effect for at least thirty-six (36) months, the Department may approve intrastate movement of cervids from the facility’s herd on a case by case basis, only after reviewing a facility’s monitoring records.
11.6. A captive cervid facility in the state shall not receive live captive cervids or any byproduct thereof, or captive cervid genetic materials from a captive cervid facility that has had a confirmed CWD or TB positive cervid in the last sixty (60) months, or from an out-of-state captive cervid facility which is located within a fifteen (15) mile radius of a confirmed CWD or TB positive cervid in the last sixty (60) months.
11.7. All cervids sold or transferred from a licensed captive cervid facility in this state shall be tested by a West Virginia licensed and accredited veterinarian for any future approved live animal test for CWD prior to movement.
11.8. An authorized representative of the Department shall periodically inspect the captive cervid facility, records and animals to assure compliance with all requirements mandated for this license.
11.9. The licensee shall report any captive cervids that die of unknown causes or are slaughtered to the Department within twenty-four (24) hours. Unless otherwise instructed by the state veterinarian, the licensee shall submit the animal to a West Virginia licensed and accredited veterinarian to determine cause of death or condition along with CWD testing.
11.10. The licensee shall submit appropriate samples as determined and directed by the Department from all captive cervids over twelve (12) months of age that die or are slaughtered for CWD testing to a USDA approved laboratory within one week of sample collection. Testing for other transmissible diseases is also required. Any captive cervid that is fourteen (14) months of age or older that dies or is slaughtered must be tested for TB and Brucellosis by a West Virginia licensed and accredited veterinarian or inspector if a visual inspection of the animal indicates a reasonable likelihood of either disease. Test results shall be made available to the Department. The Department may share test results with the DNR upon request. All costs for this disease testing and surveillance is the responsibility of the licensee, unless federal funds become available.
11.11. The licensee shall notify the Department with the CWD test report results within five (5) days of receiving test results.
11.11.a. A licensee shall immediately report by the most expedient means possible any sample test that has a positive result for CWD, to the state veterinarian.
11.11.b. If any animal test positive for CWD within the captive cervid facility, the state veterinarian shall immediately quarantine the captive herd, and may also be immediately depopulated in accordance with guidelines established collaboratively by the USDA and the Department.
11.12. Epidemiological investigations shall be conducted to identify any captive cervid herds linked by animal movements and appropriate responses shall be taken by the state veterinarian including quarantine and testing of epidemiological associated animals. All costs associated with the quarantine, depopulation and testing shall be the responsibility of the licensee unless federal funds become available.
11.13. A licensee shall develop a herd plan following the USDA APHIS program standards for infected or exposed herds.
11.14. The Department may require routine sampling and diagnostics for disease and parasites. A quarantine of a premises will be placed if any farmed cervid is found to be infected with any contagious or infectious disease. Any farmed cervid that is imported into this state in violation of Chapter 19 of the West Virginia Code importation of farmed cervids or exposed to a communicable disease, shall be cause for the premises quarantine.
11.15. The owner shall have a West Virginia licensed and accredited veterinarian or designee perform an annual visual examination of each animal and take an inventory to reconcile inventory records submitted with the license application or renewal. When the veterinarian performs the annual visual examination of each animal and takes an inventory, the West Virginia licensed and accredited veterinarian shall submit the veterinarian report to the Department within sixty (60) days of receipt and the inventory within thirty (30) days of completion.
11.16. All testing of captive cervids shall be performed by a West Virginia licensed and accredited veterinarian certified by the USDA to perform testing on cervids, including CWD, TB and Brucellosis testing.
11.17. The collection of samples for CWD testing shall be performed by trained personnel within the Department, a trained West Virginia licensed and accredited veterinarian or other official authorized by the Department.
11.18. The licensee shall have the following options for the purpose of collecting tissue for CWD testing:
11.18.a. The licensee may deliver to the Department, a trained West Virginia licensed and accredited veterinarian or other official authorized by the Department the head of the cervid or the entire cervid with head intact; or
11.18.b. The licensee may contact the Department, a trained West Virginia licensed and accredited veterinarian or other official authorized by the Department to go to the premise to collect and obtain the tissue sample. After sufficient and necessary tissue samples have been collected, the remaining tissue may be shared with the captive cervid facility licensee.
11.19. A licensee who fails to comply with this rule, unless otherwise provided, may result in the revocation of the captive cervid facility license. A licensee whose license has been revoked shall count as a lapsed license requiring a new application to be completed and approved.
W. Va. Code R. § 61-34-12 Escape of cervids
12.1. A licensee shall make every effort to prevent escapes of animals from the captive cervid facility. A licensee shall report all known escapes within eight (8) hours or upon discovery of the escape, whichever is sooner, to the state veterinarian or West Virginia Department of Agriculture Animal Health Division personnel.
12.2. Any captive cervid that escapes from a captive cervid facility shall be dispatched by the Department or DNR personnel, unless after review by the Commissioner of Agriculture and the West Virginia State Veterinarian it is determined that the escaped captive cervid, after being secured and returned to the premise from which it escaped, does not present a health risk to the public, other captive cervids or wildlife: Provided, That all escaped cervids that are sourced from a known, confirmed TB and CWD containment area will be dispatched.
12.3. Appropriate samples shall be collected and submitted for CWD and other transmissible diseases.
12.4. All costs for depopulating an animal that escapes, including sample collection and testing, are the responsibility of the licensee.
12.5. A licensee shall not intentionally release captive cervids into the wild.
W. Va. Code R. § 61-34-13 Additional specifications for commercial shooting preserves
13.1. The following terms and conditions apply for commercial shooting preserve sizes and boundaries:
13.1.a. The commercial shooting preserve shall contain a minimum of one hundred fifty (150) acres in one tract of leased or owned land. The shooting preserve shall be no larger than three thousand (3,000) contiguous acres;
13.1.b. The exterior boundaries of the shooting preserve shall be clearly defined and posted with signs erected around the extremity at intervals of one hundred fifty (150) yards or less. The signs shall have the words “LICENSED SHOOTING PRESERVE” on them and shall be signed by the licensee;
13.1.c. The shooting preserve shall be enclosed by fencing as referenced in §61-34-8. 8.1.b and §61-34-8. 8.1.c of this rule to prevent the ingress of native cervids or egress of stocked cervids species. The fencing shall be of sufficient strength and height to prevent the escape of the stocked cervids; and
13.1.d. The licensee shall display the license in plain view at the entrance to the shooting preserve.
13.2. Shooting preserves are subject to all of the provisions of this rule. In order to import cervids, the licensee must first obtain a cervid importation permit issued by the WVDA.
13.3. The licensee shall maintain accurate and current records of all animals purchased for, or imported to the shooting preserve, including official identification.
13.4. Records of animals purchased for the shooting preserve shall include a bill of sale for all animals acquired, an importation permit issued by the Department, the date of importation, the number of each species that were imported and the sex of each animal that is imported and official identification.
13.5. Records of animals raised at the shooting preserve may include the license issued by the Department, the date of birth and the sex of each animal born.
13.6. The licensee shall maintain accurate and current records of all cervids releases made at the shooting preserve, which must include the date of release, number of release, sex and official identification if from a captive cervid facility.
13.7. The licensee shall also maintain a registration book listing the name, address and hunting license numbers of each customer or guest, the date of the hunt, the number of cervids taken, the number of the tag affixed to each carcass and the official identification, if applicable.
13.8. The licensee must submit a shooting preserve report to the Commissioner on a form provided by the Department by July 10 of each year.
W. Va. Code R. § 61-34-14 Slaughter
14.1. Any animal regulated as a captive cervid under W. Va. Code §19-2H-1 shall be slaughtered and processed at a state or federal licensed commercial facility if venison from that animal is to be sold at a commercial outlet or to an individual. Animals slaughtered for personal use are exempt from this section.
14.2. Any animal regulated as a captive cervid under W. Va. Code §19-2H-1 taken as a hunted animal, for a fee, may be processed with the assistance of a facility owner or facility employee at the facility site or a licensed custom or commercial establishment.
14.3. A licensee shall keep records on venison sales for a minimum of two (2) years.
W. Va. Code R. § 61-34-15 Standards for closure
15.1. A facility may close, or sell out, so long as both facilities are in compliance with CWD, TB and Brucellosis program standards as referenced in §61-34-11 of this rule.
15.2. A facility may process stocked cervids for its own use.
15.3. A facility may process stocked cervids for slaughter as referenced in §61-34-14 of this rule.
15.4. The Department shall inspect the facility upon closure for the following purposes:
15.4.a. To ensure that the facility meets the requirements for closure according to this rule; and
15.4.b. To collect all official identification tags.
15.5. The licensee of the facility shall file with the Department a final inventory and death report of stocked cervids.
W. Va. Code R. § 61-34-16 Penalties
16.1. If a licensee fails to obtain approval for the transfer of a cervid prior to its transfer may result in a $1,000 administrative penalty per animal levied against both the facility releasing the cervid for transport and the facility receiving the cervid along with the possible suspension of the license of the facility releasing the cervid for transport and the facility receiving the cervid.
16.2. Failure to report an escaped cervid may result in the immediate forfeiture of the captive cervid license. Any negligent act that results in captive cervids escaping is a violation of the license.
16.3. Failure to comply with the requirements set forth in this rule or the corresponding code may result in administrative penalties, up to and including the revocation of a person’s captive cervid facility license.
16.3.a. A licensee whose license has been revoked shall count as a lapsed license requiring a new application to be completed and approved.
16.3.b. Failure to submit annual license renewal including required payment is sufficient grounds for license revocation.
16.4. Any person aggrieved by an order or decision of the Commissioner may appeal the decision to the Commissioner or his or her designee.
16.5. The Commissioner may order disposition of captive cervid inventory on properties determined to be unlicensed, not able to be licensed, or due to repeated containment failures.
Series 35 Aquaculture Importation
W. Va. Code R. § 61-35-1 General
1.1. Scope. -- This legislative rule establishes standards for the importation of aquaculture species into the state of West Virginia.
1.2. Authority. -- W. Va. Code 19-32-4.
1.3. Filing Date. - April 14, 2015
1.4. Effective Date. - June 1, 2015
W. Va. Code R. § 61-35-2 Purpose
2.1. The purpose of this rule is to establish regulatory guidelines for the importation of aquaculture species into the state of West Virginia. Aquaculture provides the opportunity to advance West Virginia's agriculture industry and promotes public health through the availability of healthy food options. Propagation of the state's aquaculture industry requires the ability to import both specific pathogen-free organisms and organisms that will not cause unwanted disruption of aquatic wildlife, such as invasive species.
2.2. The West Virginia Department of Agriculture is the lead agency for aquaculture health and importation within the state of West Virginia. Therefore, it is the responsibility of the West Virginia Department of Agriculture to oversee this rule and to ensure that the guidelines in it are observed.
2.3. A person releasing aquaculture species into public waters shall abide by the health requirements listed in §20-2-13 and §20-2-64 of the West Virginia Code.
W. Va. Code R. § 61-35-3 Definitions
3.1. "Accredited Laboratory" means a laboratory or group of laboratories that has undergone specific standardizations and examinations and meets the requirements established by a specific laboratory-associated governing body.
3.2. "Aquaculture Advisory Board" means the board created under the Aquaculture Development Act §19-32-5 of the West Virginia Code and shall consist of educated and knowledgeable individuals from various backgrounds authorized by the Aquaculture Development Act §19-32-5 of the West Virginia Code to review policies, laws, rules and regulations affecting aquaculture and to recommend changes to encourage aquaculture development in West Virginia
3.3. "Confidence level" means an interval used to indicate the reliability of an estimate; i.e., a 95 percent confidence level means that 95 out of 100 estimates would capture the true value of the test's means.
3.4. "Diagnostic testing" means the use of laboratory analysis to determine the disease status of an aquatic organism.
3.5. "Freely traded aquatic species" means species of aquatic organisms that, if all import health requirements are met, may be imported into West Virginia without an importation permit
3.6. "Genetically engineered aquatic species" means a class of aquatic organisms whose inherited traits have been scientifically altered to produce desired outcomes.
3.7. "Health certification" means a document provided by an accredited laboratory that provides testing results for diagnostics performed at that laboratory for a specified list of aquatic animal diseases.
3.8. "Lot" means a group of aquatic species reared or housed in the same tank, pond, etc. that are kept together throughout the lifespan of those organisms.
3.9. "Naturalized aquatic species" means a class of aquatic organisms that has been introduced into West Virginia waters and is now considered to be an established part of the state's aquatic population.
3.10. "Naturally indigenous aquatic species" means a class of aquatic organisms that was or is known to naturally inhabit West Virginia waters.
3.11. "Originating facility" means the establishment from which a group of aquatic species originated.
3.12. "Owner-Shipper Statement (OSS)" means a document required by the Department that must be completed and signed by the consigner (seller) and mailed directly to the Department upon completion of a sale, a copy of which must also accompany the shipment of aquatic species upon importation into the state of West Virginia.
3.13. "Prevalence level" means the proportion of aquatic species that are diseased; i.e., a prevalence level of five percent (5%) that five out of one hundred (5/100) animals have a disease.
3.14. "Protected aquatic species" means a class of aquatic organisms that is guarded from human disturbance by state or federal law.
3.15. "Public waters" means any body of water that is not privately owned; i.e., any body of water that is owned by the state of West Virginia or dually owned by West Virginia and a bordering state.
3.16. "Restricted aquatic species" means a class of aquatic organisms that is prohibited from release into West Virginia waters by state or federal agencies.
3.17. "Special methods" means a test or tool that is not commonly used to test for general diseases, but that is used to diagnose a specific disease.
3.18. "Specific pathogen-free" means an organism that, through a variety of husbandry and therapeutic methods, is known to be free of a particular disease.
3.19. "State Veterinarian" means the state animal health official, a member of the national Assembly of State Animal Health Officials who: oversees and implements programs in Laboratory Services and Veterinary Services; provides support to West Virginia's animal agriculture industry; administers laws, and rule and regulations that apply to health requirements for livestock and poultry, to strive to prevent and control the spread of disease through commerce, both in state and out of state; and provide laboratory diagnostic services to prevent and control disease.
3.20. "Susceptible species" means a class of aquatic organisms known to be vulnerable to a specific disease.
W. Va. Code R. § 61-35-4 Freely Traded Aquatic Species for Aquaculture Importation
4.1. Unless otherwise specified, a person may import naturally indigenous or naturalized species of aquatic organisms into the state, except for restricted, protected and genetically engineered species. The freely traded species must be specifically named and do not require a permit for importation if all issues and requirements regarding animal health and disease status are addressed. The Commissioner of Agriculture, his or her designee, and the state Veterinarian shall keep a list of acceptable species. The Aquaculture Advisory Board may make recommendations to the Commissioner and the State Veterinarian.
4.2. Other aquatic species not included in the freely traded list described in Subsection 4.1 of this section require an importation permit issued by the West Virginia Department of Agriculture. A person granted an importation permit shall ensure the aquatic life meets all animal health requirements before importation into the state. Upon receipt of a permit application, the Department shall forward the application to the West Virginia Division of Natural Resources. A joint review of the importation permit would be conducted, and if approved by both agencies an importation permit would be granted to the applicant. Regardless of the history of previous imports by that producer he or she must apply for an importation permit for each transportation event.
W. Va. Code R. § 61-35-5 Health Requirements for Aquaculture Importation
5.1. There are numerous infectious diseases that threaten not only the health of aquaculture species, but may also threaten the viability of the entire aquaculture industry. As such, a framework for aquatic animal health has been established by the Aquaculture Advisory Board to ensure that aquaculture species being imported into the state of West Virginia can be identified as specific pathogen-free. This framework is built upon four distinct categories, each with its own corresponding list of viral, bacterial, and parasitic diseases that are subject to the requirements of that category. The list for each disease category shall be maintained by the Commissioner of Agriculture, or his or her designee, and the State Veterinarian. They, may add or remove diseases from each list. Not all aquatic species are susceptible to the diseases listed in the four categories. Before importation of any susceptible species or products of those species (such as viable eggs or sperm) may occur, proper diagnostic testing at an accredited laboratory must be performed to determine specific pathogen-free status of the facility from which the animals will be moved. The four categories are as follows:
5.1.a. Category I diseases are not present in West Virginia. To ensure that diseases in this category are not imported into the state the following directives shall apply:
5.1.a.i. A veterinarian or certified trained personnel shall conduct mandatory farm certification or screening of individual lots.
5.1.a.ii. The Commissioner shall refuse to issue an importation permit for any screened animals in which a Category I disease is detected.
5.1.a.iii. A veterinarian or certified trained personnel may require special methods for detection of listed diseases.
5.1.b. Category II diseases are not present in West Virginia. Only those aquatic species originating from a state or zone where listed diseases have been reported will be tested. To ensure that diseases in this category are not imported into the state the following directives shall apply:
5.1.b.i. A veterinarian or certified trained personnel shall conduct mandatory farm certification or screening of individual lots.
5.1.b.ii. The Commissioner shall refuse to issue an importation permit for any screened animals in which a Category II disease is detected.
5.1.b.iii. A veterinarian or certified trained personnel may require special methods for detection of listed diseases.
5.1.c. Category III diseases are currently present in West Virginia, but are not desirable for importation. The spread of these pathogens such that other producers or West Virginia's natural resources are impacted will be avoided. The long term goal is elimination of these pathogens from aquaculture facilities within the state. Avoidance of these diseases will be recommended, but not mandatory. The following directives shall apply:
5.1.c.i. A veterinarian or certified trained personnel shall conduct mandatory farm certification or screening of individual lots.
5.1.c.ii. The detection of these pathogens in screened aquatic species will not constitute cause for denial of importation, but importation of animals showing clinical signs will be discouraged.
5.1.c.iii. Special methods for the detection of listed diseases will not be required.
5.1.d. Category IV, special cases. The State Veterinarian may issue at their discretion such permit as they are authorized to issue, fix the terms thereof, and revoke at their pleasure.
5.2. All shipments of aquaculture species for importation shall be accompanied by the following documents demonstrating the health status of those animals.
5.2.a. An Owner-Shipper Statement (OSS) completed by the consigner (seller) of the aquatic species intended for importation into the state of West Virginia. This document, provided by the Department, serves as a notice of pending importation and shall contain contact information for the consigner, descriptive information of the aquatic species being imported, and a verification of health of those aquatic animals. A copy of this document must be mailed to the Department upon completion of the sale to an aquaculture producer, and must be provided to the Department five (5) days prior to shipment. An additional copy of the document must accompany the shipment of aquatic species upon importation into this state. The consigner shall complete a new document for every shipment of aquatic species into this state.
5.2.b. A health certification verifying that susceptible aquatic species within the originating facility have been tested by an accredited laboratory for the diseases listed in Categories I-IV within twelve months of the date of import.
W. Va. Code R. § 61-35-6 Aquatic Animal Testing Requirements
6.1 The proper diagnostic testing required for importation of aquatic species into West Virginia shall be performed in the following manner:
6.1.a. A Veterinarian or trained and certified personnel shall certify that lots of aquatic species at an aquaculture facility were tested.
6.1.a.i. The collection of samples from each lot of aquatic species based upon an assumed prevalence level of five percent (5%) and a 95 percent (95%) confidence level of detecting at least one infected fish in the lot for the diseases listed under Categories I-IV §61-35- 5 5.1.a-d. All lots on the facility must be sampled within a 30 day window of time; i.e., every lot on the facility must be tested within 30 days of the date that the first lot was sampled.
6.1.a.ii. If all lots at a facility are not sampled within 30 days of the date that the first sample was collected, then all sampling at the facility shall be repeated.
Series 36 Farm to Food Bank Tax Credit
W. Va. Code R. § 61-36 Farm to Food Bank Tax Credit
TITLE 61
LEGISLATIVE RULE
DEPARTMENT OF AGRICULTURE
SERIES 36
FARM TO FOOD BANK TAX CREDIT §61‑36‑1. General.
1.1. Scope. ‑‑ This legislative rule sets forth the procedures and requirements for the Department of Agriculture’s administration of the farm‑to‑food bank tax credit that is established by W. Va. Code §11‑13DD‑1, et seq.
1.2. Authority. ‑‑ W. Va. Code §11‑13DD‑5(b).
1.3. Filing Date. ‑‑ April 24, 2023
1.4. Effective Date. -- May 1, 2023
1.5. Sunset Date. ‑‑ This rule shall terminate and have no further force or effect on August 1, 2033.
1.6. Applicability. -- The farm‑to‑food bank tax credit is available to qualified donors who make eligible and certified donations after December 31, 2017. §61‑36‑2. Definitions.
2.1. “Agriculture Commissioner” means the Commissioner of the Department of Agriculture.
2.2. “Donation” means edible agricultural products provided free of charge to a non‑profit food program.
2.3. “Edible agricultural products” means fruits, vegetables, beef, poultry, pork, fish or any other edible product raised or grown in West Virginia that is intended for, and fit for, human consumption;
2.4. “Farming taxpayer” means a West Virginia taxpayer responsible for, and deriving income of, at least $1,000 from growing fruits, vegetables or other edible agricultural products or from raising beef, poultry, pork, fish or other edible agricultural products.
2.5. “Nonprofit food program” means a surplus food collection and distribution program operated and established to collect donated food for redistribution to persons in need and is recognized as exempt from federal taxation under Section 501(c)(3) of the Internal Revenue Code.
2.6. “Tax Commissioner” means the State Tax Commissioner.
2.7. “Tax Credit” means the farm‑to‑food bank tax credit authorized by W. Va. Code §11‑13DD‑1, et seq. §61‑36‑3. Tax Credit Authorized; Effective Date.
3.1. W. Va. Code §11‑13DD‑1, et seq., authorizes a tax credit for farming taxpayers making donations of edible agricultural products to nonprofit food programs after December 31, 2017. §61‑36‑4. Procedure for Certification.
4.1. Per the definition set forth in W. Va. Code §11‑13DD‑2(3), “edible agricultural product” shall include the following:
4.1.a. Fruits and vegetables;
4.1.b. Meats, including fish;
4.1.c. Grains;
4.1.d. Dairy products.;
4.2. The Department of Agriculture shall promulgate a receipt form that will be made available to the public.
4.3. A farming taxpayer who wishes to make an eligible donation must take the edible agricultural products to a qualifying nonprofit food program and present the receipt form promulgated by the Department of Agriculture, pursuant to W. Va. Code §11‑13DD‑4, for completion.
4.4. A representative of the nonprofit food program shall certify that the accepted donated edible agricultural product(s) were fit for human consumption.
4.5. After the receipt form has been completed by the nonprofit food program, the farming taxpayer shall submit the receipt form to the Department of Agriculture for certification.
4.6. After the Department of Agriculture has reviewed the receipt form and chosen to either make certification or deny certification, in whole or in part, the Department of Agriculture shall notify the farming taxpayer of the determination and shall return the receipt form and all submitted supporting documentation.
4.6.a. If denied, either in whole or in part, the Department of Agriculture will also include the reason for denial and notice of the farming taxpayer’s right to request an administrative hearing to review the denial, within ten (10 days) of receipt of the decision, in accordance with W.Va. Code §29A-5.1, Administrative Procedures Act.
4.6.b. The farming taxpayer shall have an opportunity to cure any deficiencies in their receipt form and supporting documentation and resubmit the form for reconsideration.
4.6.c. All corrected and resubmitted receipt forms and supporting documentation shall be considered by the Department of Agriculture on the date of resubmission, and not the date the deficient receipt form was originally submitted, for the purposes of awarding tax credits in the order they are received.
4.7. If certification has been granted, the farming taxpayer shall maintain the certified receipt form with his or her records.
4.8. The donation shall be valued in accordance with the provisions of W. Va. Code §11‑13DD‑4. §61‑36‑5. Application for Tax Credit.
5.1. Farming taxpayers shall make application to the Department for the tax credit as contemplated by W. Va. Code §11-13DD-4(b), by submitting the properly completely receipt form along with any supporting documentation, if applicable.
5.2. The Department of Agriculture shall review the receipt form to ensure that it has been completed in full and signed by the farming taxpayer and a representative of the food program that accepted the donation.
5.2.a. The Department of Agriculture shall check to ensure that the food program listed on the form was a surplus food collection and distribution program operated and established to collect donated food for redistribution to persons in need and is recognized as exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code at the time of the donation.
5.2.b. The Department of Agriculture shall review the estimated value of the edible agricultural products listed by the farming taxpayer on the receipt form.
5.2.b.1. If the taxpaying farmer includes a copy of an invoice or other statement identifying the price received by the taxpaying farmer for edible agricultural products of comparable grade or quality for a previous sale, then that documentation shall be reviewed for accuracy and completeness. The Department of Agriculture reserves the right to request additional documentation as necessary to support the valuation of the edible agricultural product.
5.2.b.2. If the taxpaying farmer does not include an invoice or other statement identifying the price received by the taxpaying farmer for edible agricultural products of comparable grade or quality for a previous sale , then the Department shall, on the date of the donation, determine if the value listed for the donated edible agricultural products is reasonable based on the fair market value as determined by average weekly regional produce auction prices or United States Department of Agriculture prices for meat, fish and dairy products. This value shall be compared to the value claimed on the receipt form to ensure the value claimed is not higher. If the price of the exact donated product cannot be determined from the average weekly regional produce auction prices or the United States Department of Agriculture prices for meat, fish, and dairy products, then WVDA will compare it to the price of the nearest like commodity. Additional information may be requested from the taxpayer regarding the donated commodity in making this determination.
5.2.b.3. In the event the value of the product claimed on the receipt form does not agree, the Department of Agriculture shall substitute the fair market value, as determined by average weekly regional produce auction prices or United States Department of Agriculture prices for meat, fish and dairy products, for the edible agricultural products on the receipt form.
5.2.c. The Department of Agriculture shall allocate the tax credits to farming taxpayers in the order the properly completed receipt forms are received. If an incomplete or inaccurate receipt form is submitted to the Department of Agriculture, it shall be returned to the farming taxpayer for correction and will not be considered for tax credits until the date the receipt form is corrected and resubmitted.
5.3. After review of the receipt form and any supporting documentation, and after ensuring that the limit of $200,000 of tax credits per fiscal year has not been exceeded, the Department of Agriculture shall determine the amount, if any, of the tax credit due to the farming taxpayer. The amount of the credit is equal to 30 percent of the value of the donated edible agricultural products, but not to exceed $5,000 during a taxable year.
5.4. The amount of the tax credit (if any), certificate number, approval signature (if applicable), and approval date (if applicable) shall be recorded on the receipt form.
5.5. The Department of Agriculture shall provide written notification to the farming taxpayer that the Farm-to-Food Bank Tax Credit that has been approved, along with the amount of credit, or denied, along with the reason(s) for denial.
5.5.a. If denied, either in whole or in part, in addition to the reason for denial, Department of Agriculture will notify the farming taxpayer of the right to request an administrative hearing to review the denial, within ten (10 days) of receipt of the decision, in accordance with W.Va. Code §29A-5-1, State Administrative Procedures Act.
5.5.b. The farming taxpayer shall have an opportunity to cure any deficiencies in their receipt form and supporting documentation and resubmit the form for reconsideration.
5.5.c. All corrected and resubmitted receipt forms and supporting documentation shall be considered by the Department of Agriculture on the date of resubmission, and not the date the deficient receipt form was originally submitted, for the purposes of awarding tax credits in the order they are received.
5.5.d. The receipt form and any supporting documentation provided by the farming taxpayer will be returned with the written notification.
5.6. The Department of Agriculture shall submit to the Tax Commissioner, or his or her designee, the certified value of the tax credit due to the farming taxpayer, based upon the donation of edible agricultural products, along with any other information necessary to administer this credit. The Department of Agriculture shall provide the following so that the Tax Department can administer this credit:
5.6.a. Submission of the certification information by February 10 of the following year, or at other times as requested, in the format requested by the Tax Commissioner.
5.6.b. An identifying number assigned by the Department of Agriculture.
5.7. All applications for tax credits must be received by the Department of Agriculture no later than January 31 of the year following the year in which the donation was made. §61‑36‑6. General Procedure and Administration.
6.1. Requirements to Claim the Tax Credit. To claim a tax credit, the farming taxpayer shall comply with the provisions of W. Va. Code §11-13DD-1, et seq., W. Va. C.S.R. §110‑13DD‑1, et seq., and this rule, and shall timely provide complete and accurate forms, returns, schedules and other information required or requested by the Agriculture Commissioner or Tax Commissioner. Failure to comply with these requirements may result in a denial of the tax credit.
6.2. Maintenance of Records. A farming taxpayer shall maintain the records required to verify the validity of its eligibility for the tax credit and the accuracy of the amount of tax credit claimed. The receipt form returned to the farming taxpayer by the Department of Agriculture shall be considered persuasive evidence of eligibility for this credit.
Series 37 Agritourism
W. Va. Code R. § 61-37-1 General
1.1. Scope. – This legislative rule implements the Agritourism Responsibility Act, W. Va. Code §19-36-1 et seq. It establishes duties of agritourism professionals and participants in agritourism activities, clarifies the relationship between agritourism and other laws, and provides for the promotion and marketing of agritourism.
1.2. Authority. – W. Va. Code §19-36-1
1.3. Filing Date. – May 14, 2026.
1.4. Effective Date. – May 14, 2026.
1.5. Sunset Date. – This rule shall terminate and have no further force or effect on August 1, 2031.
W. Va. Code R. § 61-37-2 Definitions
2.1. “Agritourism” means any lawful activity carried out on a farm or ranch that allows members of the general public for recreational, entertainment, or educational purposes to view or enjoy rural activities. Agritourism specifically includes public or private weddings, receptions and events held on working (or active) farms or ranches.
2.2. “Agritourism business” means any person, fiduciary, firm, association, partnership, limited liability company, corporation, unit of government, or any other group or entity which is engaged in the business of providing one or more agritourism activities, whether or not for compensation.
2.3. “Agritourism professional” means owners, operators, employees, and volunteers working for or under the direction of the operators of an agritourism business. This term includes agritourism business employees, volunteers, and operators.
2.4. “Commissioner” means the Commissioner of the West Virginia Department of Agriculture.
2.5. “Equipment” means the items necessary for a particular agritourism activity.
2.6. “Facilities” means a place, amenity or piece of equipment designed, built, installed, or provided to serve a specific function or service.
2.7. “Farm” means an area of land used for the production, cultivation, growing, harvesting, or processing of agricultural products.
2.8. “Guided activities” means activities led by an agritourism professional as part of an agritourism business.
2.9. “Inherent risks” are those dangers or conditions that are part of an agritourism activity including certain hazards, natural conditions of land and terrain, vegetation, and waters, the behavior of wild or domestic animals, and ordinary dangers of structures or equipment ordinarily used in farming and/or ranching operations. Inherent risks of agritourism activity also include the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, including failing to follow instructions given by the agritourism professional or failing to exercise reasonable caution while engaging in the agritourism activity.
2.10. “Participant” means any person, other than the agritourism professional, who engages in an agritourism activity.
2.11. “Posted warnings” means any and all signs placed at the site of the agritourism activity by the agritourism professional related to the proper operation of the agritourism activity, appropriate and/or inappropriate actions by agritourism participants, and any other directions or information to be observed and heeded by agritourism participants.
2.12. “Ranch” means an area of land used for the breeding and/or raising of animals.
2.13. “Occasional use” means the use of an agricultural structure on an irregular or intermittent basis for activities other than those defined by W. Va. Code §15A-11-5(h).
2.14. “Agricultural Structure” means a structure used primarily for the raising, cultivation, drying, harvesting, marketing, production, or storage of agricultural products, including both crops and livestock, for sale or use in agriculture or agricultural production, or the storage of machinery or equipment used in support of agricultural production.
W. Va. Code R. § 61-37-3 Duties of agritourism operators
3.1. Each agritourism business shall post and maintain signs that contain the following notice:
NOTICE
Under West Virginia law, there may be limited liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism business if the injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to landscape, terrain, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.
3.1.a. Signs must be placed in a clearly visible location at both the entrance to the agritourism location and at the site of the agritourism activity. If the entrance to the location and the site of the activity are the same, only one sign is required.
3.1.b. The notice on each sign must be clearly legible, with each letter to be a minimum of one inch in height.
3.1.c. Failure to display the required notice will prevent an agritourism business from invoking the immunity provided by the Agritourism Responsibility Act.
3.2. If an agritourism professional utilizes a contract for the providing of professional services, instruction, or the rental of equipment to a participant, the notice contained in section 3.1. must be included in clearly legible print.
3.2.a. This section applies whether or not the contract involves agritourism activities on or off the location or at the site of the agritourism activity.
3.2.b. The notice in a contract shall be presumed to be in clearly legible print if the caption is typewritten or printed in at least twelve-point bold upper-case type and the body of the notice is typewritten or printed in at least eight-point regular type.
3.2.c. Failure to include the required notice in any such contract will prevent an agritourism business or agritourism professional from invoking the immunity provided by the Agritourism Responsibility Act.
3.3. All agritourism professionals shall make reasonable and prudent efforts to determine the ability of a participant to safely engage in the agritourism activity. An agritourism professional reserves the right to refuse participation if he or she determines that a participant imposes a safety risk to himself or others.
3.4. All agritourism professionals shall make known to any participant, via written warning, verbal warning, or posted warnings, any dangerous condition as to land or facilities under the lawful possession and control of the operator of which the operator knows or through the exercise of due diligence should know, by advising the participant in writing or by conspicuously posting warning signs upon the premises.
3.5. All agritourism professionals providing equipment to participants shall make a reasonable and prudent effort to routinely inspect such equipment to assure that is in proper working condition and safe for use in the agritourism activity.
W. Va. Code R. § 61-37-4 Duties of agritourism participants
4.1. All participants engaged in an agritourism activity expressly assume the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an agritourism activity.
4.2. All participants shall heed all posted warnings, and perform agritourism activities only in an area or in facilities designated by the operator. In the case of guided activities, all participants shall follow all directions, instructions and refrain from acting in a manner which may cause or contribute to the injury of others.
4.3. All participants shall notify the operator of any medical conditions or circumstances that may interfere or limit the ability to heed instructions, directions, or cause or contribute to the injury of others.
4.4. All participants involved in an accident shall not depart from the area or facility where the agritourism activity has taken place without leaving contact information, including their name, address, and telephone number where they can be reached.
W. Va. Code R. § 61-37-5 Maintenance of property status for certain purposes; exceptions
5.1. The occurrence of agritourism activities does not change the nature or use of property that otherwise qualifies as agricultural for building code and property tax classification purposes.
5.1.a. An owner of farm land must file Farm Use Land Valuation application of his or her land annually and meet the requirements of his or her county assessor as required by §110CSR1A.
5.1.a.1. New property owners of less than one year who have not filed a Farm Use Land Valuation application may use other “proof” that the property is a farm, including but not limited to: former property valuation records, aerial maps, and receipts for farm equipment or other proof approved by Commissioner.
5.1.a.2. Property owners of less than one acre that do not qualify for farm use valuation may nevertheless apply for an agricultural exemption to local building and fire codes for qualifying agricultural and agritourism structures. This applicant type must provide tangible evidence to the Commissioner for the use of the structure, such as receipts for livestock, farming equipment, or a detailed description of the purpose built structure.
5.1.b. Tangible personal property utilized in agritourism shall be considered to be “employed exclusively in agriculture,” and therefore eligible for the personal property exemption contained in W. Va. Code § 11-3-9(a)(28), so long as that tangible personal property would otherwise be eligible for the exemption, save the property’s use in agritourism activities, and the tangible personal property’s use in agritourism activities less than 50% of its overall use.
5.2. An agritourism business may use certain of its facilities for occasional events without complying with building codes applicable to structures used for such purposes on a full-time basis so long as such facilities are deemed structurally sound and otherwise safe for the intended use.
5.2.a. Occasional use of an agricultural structure that would otherwise be exempt from a housing or building code pursuant to W. Va. Code §7-1-3n for agritourism purposes shall not affect that structure’s exemption from the applicable housing or building code.
5.2.a.1. New construction used primarily for agriculture would be exempt.
5.2.a.2. New construction of purpose-built buildings may be exempt from code depending on the nature of use, except for the following:
5.2.a.3. Purpose built building for manufacturing and food processing with the exception of farm kitchen.
5.2.a.4. Purpose built building for overnight lodging or sleeping quarters.
5.2.a.5. Purpose built building event centers that are used full time for events.
5.2.b. Should a city or county building official conclude that an agritourism structure subject to a housing or building code is not structurally sound, a statement by a licensed engineer certifying structural soundness shall satisfy the requirements of this section.
5.2.c. Nothing in this rule shall be construed to require the Commissioner or the West Virginia Department of Agriculture to certify or determine that an agritourism facility is structurally sound and otherwise safe for the intended use, as required by section 5.2 of this rule.
5.3. Buildings that are considered “farm structures” pursuant to 87 C.S.R. §1.5 and are therefore exempt from the State Fire Code (87 C.S.R. §1) maintain their status as farm structures and any applicable exemption from the State Fire Code if they are used for occasional agritourism activities.
W. Va. Code R. § 61-37-6 Marketing and promotion of agritourism
6.1. Advertisements and marketing materials are not required to include the notice language contained in section 3.1.
6.2. For the purpose of promotion and marketing of agritourism, the Commissioner is authorized to establish a voluntary registration and support program for agritourism businesses and agritourism professionals. Such program may assess a fee for voluntary registration and participation, provide guidance and advice to agritourism businesses and agritourism professionals, and offer additional assistance with marketing and promotion.
6.3. An agritourism business shall be considered a tourism related business, attraction or event for purposes of eligibility to participate in tourism promotion efforts by the West Virginia Tourism Office.
Series 38 Farmers Markets
W. Va. Code R. § 61-38-1 General
1.1. Scope. - This legislative rule establishes the framework for regulation of farmers markets and farmers market vendors, including registration, permitting, inspection, and labeling. This rule also establishes requirements for sampling at farmers markets and sets forth procedures for enforcement and hearings.
1.2. Authority. -- W. Va. Code §19-35-4
1.3. Filing Date. -- April 14, 2023
1.4. Effective Date. – May 1, 2023
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2033.
1.6. Controlling authority. – If a dispute arises over the applicable rules for a farmers market or farmers market vendor, the determination of the Department of Agriculture controls.
W. Va. Code R. § 61-38-2 Incorporated by Reference
2.1 The Farmers Market Vendor Guide, published by the West Virginia Department of Agriculture, is hereby incorporated by reference.
2.2 Regulatory Guidance for Best Practices, Cottage Foods current, published by the Association of Food and Drug Officials, is hereby incorporated by reference.
W. Va. Code R. § 61-38-3 Definitions
3.1. “Acidified foods” means low-acid foods to which acid or acid foods are added with a water activity of greater than 0.85 and a finished equilibrium of pH 4.6 or below. Acidified foods are considered potentially hazardous foods.
3.2. “Commercial kitchen” means a permitted manufacturing facility or food establishment designed for food production and food safety and eligible for interstate commerce.
3.3. “Commercially harvested mushrooms” means specific mushroom species purposely planted, cultivated and harvested for the purpose of food production either by germinated spawn or cloning.
3.4. “Commissioner” means the Commissioner of the West Virginia Department of Agriculture.
3.5. “Community kitchen” means a kitchen that is used by community members for preparing foods, and is considered a non-permitted kitchen.
3.6. “Community supported agriculture” means a system that connects growers and consumers through a subscription model to provide access to the harvest of a farm or group of farms.
3.7. “Farm and food product” means any agriculture, horticulture, agroforestry, animal husbandry, dairy, livestock, beekeeping, or other similar product, and includes potentially hazardous foods and non-potentially hazardous food produced or manufactured there from.
3.8. “Farm kitchen” means an on-premise food preparation facility manufacturing items for sale at a qualified farmers market for direct consumer purchase, and is considered a non-permitted kitchen.
3.9. “Farmers market” means:
3.9.a. A traditional farmers market in which two or more vendors gather to sell a farm and food product directly to consumers at a fixed location;
3.9.b. A farm stand run by an individual producer that sells a farm and food product, not necessarily conducted at a fixed location;
3.9.c. An on-farm market on a vendor’s farm property;
3.9.d. An online farmers market in which two or more where vendors collectively market a farm and food products digitally and retain ownership of these products until they are sold;
3.9.e. A consignment farmers market in which two or more vendors deliver their own farm and food products to a common location maintained by a third party that markets the vendor’s products and receives a percentage share of the profits from sales, with the individual vendor retaining ownership of the farm and food product until it is sold. A consignment farmers market may also be mobile, or in a stationary location;
3.9.f. A mobile farmers market in which two or more vendors sell farm and food products direct to consumers from a mobile unit;
3.9.g. An area within a fair or festival at which farm and food products are sold; or
3.9.h. Any other form of farmers market approved by the commissioner.
3.10. “Farmers market vendor” or “vendor” means a person or entity that sells farm and food products at a farmers market.
3.11. “Fermented products” means food processed through the conversion of carbohydrates to alcohol or organic acids using microorganisms under anaerobic conditions.
3.12. “Food sampling” means a small portion of food product that is offered to consumers.
3.13. “Freeze-dried” means that food has been subjected to a process in which water is removed from a product after it is frozen and placed under a vacuum, allowing the ice to change directly from a solid phase to a vapor. The freeze-drying process consists of three separate processes: freezing, primary drying, and secondary drying.
3.14. “Kitchen” means a room or area in which food is prepared, produced, packaged, or cooked.
3.15. “Label” means a panel or panels found on a package food item.
3.16. “Local health department” means a health department serving one or more counties or one or more municipalities or a combination thereof.
3.17. “Low-acid canned food” means any food (other than alcoholic beverages) with a finished equilibrium pH greater than 4.6 and a water activity greater than 0.85, excluding tomatoes and tomato products having a finished equilibrium pH less than 4.7.
3.18. “Non-potentially hazardous food” means a food item that does not require time/ temperature controls for safety to limit pathogenic microorganism growth or toxin formation.
3.19. “Pickled products” means a food product that has been processed for preservation either through an anaerobic fermentation in brine or immersion in vinegar.
3.20. “Potentially hazardous food” means any food item that requires time/temperature control or other protocols for safety to limit pathogenic microorganism growth or toxin formation.
3.21. “Process authority” means a person who has been recognized by the Association of Food and Drug Officials as having expert knowledge of thermal processing requirements for low-acid foods packaged in hermetically sealed containers or has expert knowledge in the acidification and processing of acidified foods and is found in the food processing authorities directory.
3.22. “Sanitize” means to adequately treat cleaned surfaces by a process that is effective in destroying vegetative cells of pathogens, and in substantially reducing numbers of other undesirable microorganisms, but without adversely affecting the product or its safety for the consumer.
3.23. “Uncut produce” means fruits and vegetables that have not been cut beyond field harvest and are offered for sale as a whole item.
3.24. “WVDA” or “the Department” means the West Virginia Department of Agriculture.
W. Va. Code R. § 61-38-4 Farmers Market Registration
4.1. All farmers markets shall register with the WVDA on a form provided by the Commissioner.
4.2. Farmers market registrations are effective from April 1 through March 31 of the following year.
4.3. All applications for farmers market registrations must be received by March 1. If applications are received after the March 1 deadline, the applicant will be charged a late fee of $20.
4.4. Farmers market registrations shall be displayed in a conspicuous location while the market is in operation.
W. Va. Code R. § 61-38-5 Requirements for Specific Farmers Market Types
5.1. A consignment farmers market is required to register as a farmers market pursuant to section 4 of this rule.
5.1.a. A consignment farmers market must obtain a food establishment permit from the appropriate local health department.
5.1.b. If the Department determines that a registrant qualifies as a consignment farmers market, it shall require the registrant to provide a copy of a valid food establishment permit before accepting its registration.
5.2. If an entity is applying as a farmers market at a fair or festival, the following apply:
5.2.a. The farmers market registration must be received by the Department before the start of the fair or festival.
5.2.b. The entity must also be registered with the fair or festival. A farmers market registration does not replace the need to register with the fair or festival.
5.3. If an entity wishes to register as a farmers market but does not qualify as one of the pre-defined categories of farmers markets detailed in section 3.9.a through 3.9.f of this rule, the applicant shall submit additional information with its application to help the Commissioner determine why the entity should be considered a farmers market. Upon receipt of the information, the Commissioner shall review and make a determination. If the Commissioner determines that the entity should properly be considered a farmers market, a registration shall be issued by the Department.
W. Va. Code R. § 61-38-6 Permitted and Prohibited Foods at Farmers Markets
6.1. All non-potentially hazardous farm and food products may be sold at farmers markets without a farmers market vendor permit. These include, but are not limited to:
6.1.a. Breads;
6.1.b. Cakes;
6.1.c. Candies;
6.1.d. Honey;
6.1.e. Tree syrup;
6.1.f. Apple butter;
6.1.g. Molasses;
6.1.h. Standardized, nondietary jams and jellies;
6.1.i. Dehydrated fruits and vegetables;
6.1.j. Whole uncut produce. Any vendor selling fresh uncut produce in West Virginia at a farmers market must complete a Produce Affidavit form, prepared by the Commissioner, annually and submit to the Department: Provided, That this requirement shall no longer have any force or effect if the Department no longer receives funding from the Federal Food and Drug Administration (FDA) to enforce the Food Safety Modernization Act (FSMA);
6.1.k. Commercially harvested mushrooms on the approved species list found in the West Virginia Farmers Market Vendor Guide;
6.1.l. Canned, whole, or chopped tomatoes;
6.1.m. Tomato sauce; and
6.1.n. Tomato juice having a finished equilibrium of pH 4.6 or below; and
6.1.o. Other non-potentially hazardous foods, as specified in the West Virginia Farmers Market Vendor Guide.
6.2. The following potentially hazardous farm and food products may be sold at farmers markets if a vendor permit has been obtained:
6.2.a. Canned acidified foods, including but not limited to:
6.2.a.1. Pickled products;
6.2.a.2. Sauces, such as hot sauce, marinara, or spaghetti sauce;
6.2.a.3. Salsas;
6.2.a.4. Fermented products;
6.2.a.5. Acidified fruits and vegetables;
6.2.a.6. Acidified condiments; and
6.2.a.7. Non-standardized jams and jellies;
6.2.b. Meat;
6.2.c. Poultry;
6.2.d. Fish;
6.2.e. Milk and dairy products, including cheese;
6.2.f. Cut produce;
6.2.g. All farm and food products that are required to be time- or temperature-controlled or employ other protocols for safety to limit pathogenic microorganism growth or toxin formation; and
6.2.h. Any potentially hazardous freeze-dried foods.
6.3. Eggs may be sold at farmers markets without obtaining either a vendor permit or a food establishment permit, provided that the seller holds a Small Egg Producer Permit issued by the Department.
6.4. The following foods are not permitted to be sold at a farmers market:
6.4.a. Wild-harvested mushrooms; and
6.4.b. Sprouted seeds.
W. Va. Code R. § 61-38-7 Labeling
7.1. All food products made or packaged in West Virginia for direct, non-wholesale, purchase by consumers - whether made in a commercial kitchen inspected by WVDHHR or local health departments under its jurisdiction, or made in a non-commercial home, farm or community kitchen – shall carry product labels, regardless of whether the product is potentially hazardous or non-potentially hazardous.
7.2. Labeling of dairy products, eggs, and meat or meat-containing products are regulated by other authorities and are not included in this section.
7.3. Labeling shall generally conform to U.S. Food and Drug Administration rules and guidance unless specifically noted.
7.4. Required label elements shall be of a size and style that is easily legible to the average person and shall consist of:
7.4.a. Statement of identity, which is the common name of the product.
7.4.b. Company name of producer, packer, or distributor. Unless the name given is the actual producer, the name must be accompanied by a statement noting the relation to the product.
7.4.c. City, state and zip code of the producer, packer, or distributor.
7.4.d. Ingredients listed in descending order from greatest weight to least. Single ingredient products shall include an ingredient list to ensure consumers that it is the only ingredient in the product. The ingredient list shall begin with “Ingredients:” followed by the list.
7.4.e. Net contents or numerical count located in bottom third of the primary label panel in standard U.S. measures, followed by the metric equivalent in parentheses. Honey shall be measured by weight. Syrups shall be measured by liquid volume.
7.4.f. A statement of any of the major food allergens contained in the product, as specified by U.S. Food and Drug Administration. The statement shall be placed directly below the ingredient list and shall begin with “Contains” followed by the allergens. The current allergens are milk, egg, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. Products that contain tree nuts, fish, or crustacean shellfish must also declare the specific type of allergen in parentheses following the broader category of allergen. Beginning Jan. 1, 2023, sesame will also be considered a major allergen and must be included in allergen statements.
7.4.g. Safe handling instructions such as freezing or refrigeration requirements and minimum safe heating temperatures when applicable.
7.4.h. Any date or lot codes that are required elsewhere in these rules for potentially hazardous foods.
7.5. Products made in a home, farm, or community kitchen, in addition to the elements listed in 7.4, are subject to the following additional rules:
7.5.a. Product labels must include the following statement: “This product was made in a non-commercial kitchen that may not be subject to inspection and may contain cross-contact allergens not included in the allergen statement.”
7.5.b. Non-potentially hazardous products may include hand-written net content statements if they remain legible to the average person.
7.5.c. Non-potentially hazardous products shall carry a label affixed to the package, or labeling requirements may be satisfied by:
7.5.c.1. Display of a placard showing the label information at the point of sale if the item is not packaged or displayed in a bulk container;
7.5.c.2. Providing label information on a receipt or other document; or
7.5.c.3. Publishing the label information on an internet site if the product is sold online.
7.6. Food producers shall submit product labels and any associated forms or fees to WVDA for review for the following products and in the following circumstances:
7.6.a. Foods products intended for direct consumption by the purchaser that are made or packaged in a commercial kitchen inspected by WVDHHR or a county health department under its jurisdiction.
7.6.b. Food products made or packaged in a non-permitted home, farm or community kitchen that are potentially hazardous.
W. Va. Code R. § 61-38-8 Requirements for the sale of Potentially Hazardous Foods at Farmers Markets
8.1. A producer of canned acidified foods, as defined in section 6.2.a of this rule, must satisfy the following requirements:
8.1.a. The producer must have the process for preparing and preserving the products approved by a process control authority recognized by WVDA prior to selling the products, and must be obtained in a manner approved by the WVDA, as provided in the West Virginia Farmers Market Vendor Guide.
8.1.b. The producer must keep records to demonstrate the source of the produce in the producer’s canned acidified foods. Recordkeeping shall include, but not be limited to:
8.1.b.1. Name of product;
8.1.b.2. Number of units prepared;
8.1.b.3. Record of raw ingredients used and vendor from which ingredients were sourced;
8.1.b.4. Date/Lot code; and
8.1.b.5. Where product/lot was distributed.
8.1.c. If the producer has a private water supply, he or she must have the supply tested prior to permitting and at least annually thereafter and demonstrate through a written record of testing for coliform bacteria to signify that the water supply is potable. The WVDA may require more frequent testing, or additional testing, if circumstances dictate that such testing is necessary to ensure food safety.
8.1.c.1. Maximum coliform levels shall be <1cfu/100mL.
8.1.c.2. For municipal water sources, a certificate of testing must be available for review and the person utilizing the kitchen for preparation of potentially hazardous foods should verify use during potentially hazardous food production if more than one water source is present.
8.1.c.3. WVDA may establish additional water quality standards in order to meet state water quality guidelines.
8.1.d. The producer must submit proof of or having completed Better Process Control School or other higher-level food safety training, as defined in section 8.6 of this rule.
8.2. A seller of meat, poultry, or fish must obtain a vendor permit from the Department. To be eligible for a vendor permit, the seller must comply with all registration, licensure, and permitting requirements for the sale of meat, poultry, or fish that have been established by the Department.
8.3. A seller of milk and dairy products must obtain a vendor permit from the Department.
8.3.a. To be eligible for a vendor permit to sell milk and dairy products, the seller must comply with all registration, licensure, and permitting requirements for the sale of milk and dairy products that have been established by the Department.
8.3.b. If the seller is applying for a permit to sell cheese or cheese products, he or she must hold either a Food Manufacturing Permit issued by the Department of Health and Human Resources Bureau for Public Health, or qualify for the exemption set forth in W. Va. Code §19-11D-1 et seq.
8.4. A seller of the following potentially hazardous foods must obtain a vendor permit from the Department. To be eligible for a vendor permit, the applicant must submit proof of holding a Food Handler’s Card or having completed other higher-level safety training, as defined in section 8.6 of this rule:
8.4.a. Cut Produce;
8.4.b. Baked goods that require time and temperature control;
8.4.c. Infused foods, such as honeys or syrups that have additional flavors or ingredients added;
8.4.d. Condiments; and
8.4.e. All other potentially hazardous foods.
8.5. A seller of potentially hazardous foods prepared in a facility that is inspected or certified by the Federal Food and Drug Administration (FDA), USDA, WVDHHR or local health departments that has been issued a Food Manufacturing Permit from the Department of Health and Human Resources, Bureau for Public Health, must obtain a vendor permit from the Department to sell at a farmers market. To be eligible for a vendor permit, the applicant must submit proof of inspection or certification by FDA or USDA or a copy of the Food Manufacturing Permit with his or her vendor permit application. For vendors obtaining a vendor permit via this subsection, the vendor permit fee is waived.
8.6. Persons engaged in production of potentially hazardous foods identified in sections 8.1 and 8.4 of this rule for sale at farmers markets shall attend and keep current one or more of the following and provide documentation of successful completion of the scope of curriculum from a WVDA-approved food-safety course:
8.6.a. ServSafe Food Handler Course offered by the National Restaurant Association;
8.6.b. Better Process Control School;
8.6.c. Acidified Foods Manufacturing School;
8.6.d. Good manufacturing practices (GMP) certificate program; or
8.6.e. Other curriculum approved by the WVDA.
8.7. A home, community, farm, or commercial kitchen may be used by a potentially hazardous foods vendor. The WVDA reserves the right to limit the preparation and preservation of a particular potentially hazardous food to a certain type of kitchen to ensure food safety.
8.8. A seller of hemp products that are required to be registered pursuant to 61 C.S.R. 30 may, in lieu of registering his or her selling location at each farmers market, obtain a vendor permit to sell those products at farmers markets.
8.8.a. To qualify for a vendor permit, the seller must provide a copy of his or her hemp license or product registrations for the products he or she will sell at farmers markets.
8.8.b. Obtaining a vendor permit to sell hemp products at farmers markets does not relieve a seller of the requirement to register hemp products with the Department or the requirement to register other selling locations with the Department pursuant to 61 C.S.R. 30.
8.9. The Commissioner may enter into agreements with other States to certify and permit out-of-state vendors to sell at farmers markets.
W. Va. Code R. § 61-38-9 Vendor Permit Process
9.1. Vendors required to obtain a farmers market vendor permit shall apply with the WVDA on a form provided by the Commissioner, which shall include, at a minimum, the following information:
9.1.a. Applicant’s name, mailing address, phone number, and email address;
9.1.b. Type of products being sold;
9.1.c. Physical location of growing field(s);
9.1.d. Information about the markets where vendor anticipates selling products, including:
9.1.d.1. Name of markets;
9.1.d.2. Location of markets; and
9.1.d.3. Dates when vendor plans to participate in market;
9.1.e. Satisfactory information to determine that the food vendor has complied, or is compliant, with the requirements of section 8 of this rule; and
9.1.f. Any other information deemed relevant by the Commissioner.
9.2. Farmers market vendor permits are valid from April 1 through March 31 of the following year.
9.3. Farmers market vendor permit applications are due on March 1 each year and may be submitted in advance of that deadline.
9.3.a. The annual application fee for a farmers market vendor permit is $35.
9.3.b. Farmers market vendor permit applications that are received after March 1 shall be assessed a late fee of $20.
9.3.c. A farmers market vendor permit shall state what products the vendor permit covers. Only those products that have been approved by WVDA may be sold by the holder of a farmers market vendor permit.
9.4. Farmers market vendor permits shall be displayed in a conspicuous manner at the point of sale.
9.5. A farmers market vendor who is not required to obtain a farmers market vendor permit may obtain, upon request, a determination from the Department concerning the specific requirements that must be satisfied for a vendor to sell a particular farm or food product.
W. Va. Code R. § 61-38-10 Inspections of Farmers Markets
10.1. Inspections of farmers markets shall be conducted by the WVDA. Local health departments may inspect a farmers market or vendor kitchen to investigate a foodborne outbreak. All inspections conducted at farmers markets or vendor kitchen by local health departments shall be performed in consultation with the WVDA. All farmers market or vendor complaints received by local health shall be forwarded to the WVDA immediately.
10.2. Farmers market inspections shall occur, at a minimum, once every three years. Inspections by the WVDA shall include, but are not limited to:
10.2.a. Display of current registration;
10.2.b. Current list of vendors; and
10.2.c. Compliance with sampling requirements listed in the West Virginia Farmers Market Vendor Guide.
10.3. The local health department in the jurisdiction of the farmers market location may invoke a cessation of production, if they have reason to believe that an imminent health hazard exists until it deems that the hazardous situation has been addressed to the satisfaction of the local health department and the WVDA. The local health department shall only invoke cessation of production in consultation with the WVDA. All inspections and investigations of potential imminent health hazards shall be conducted jointly.
W. Va. Code R. § 61-38-11 Inspections of Potentially Hazardous Food Kitchens
11.1. Kitchen inspections for farm and food products that require a farmers market vendor permit shall be conducted by a WVDA representative upon the initial application and after renewal of the annual application. Non-compliance violations may result in additional inspections.
11.2. Potentially hazardous food vendors will be charged $27 per hour, excluding travel hours, for inspections, which will be billed directly to the potentially hazardous food vendor.
11.2.a. Inspection costs will be assessed for both the annual inspection, as well as any follow up inspections after a violation has occurred.
11.3. During a kitchen inspection, the Department WVDA will minimally inspect to ensure the following:
11.3.a. That only the specific foods identified on the farmers market vendor permit are being produced in the kitchen during the time of production of those foods;
11.3.b. That the permitted food operation understands that no person other than the vendor permit holder, or a person under his or her direct supervision, may be engaged in the processing, preparing, packaging, or handling of any potentially hazardous food products or be in the home kitchen during the preparation, packaging, or handling of any potentially hazardous food products;
11.3.c. That no preparation, packaging, or handling of potentially hazardous food products is occurring in the home kitchen concurrent with any other domestic activities, such as home meal preparation, dishwashing, clothes washing or ironing, kitchen cleaning, or guest entertainment. Preparation activities and routine home activities must be clearly separated by time;
11.3.d. That no infants, small children, or pets are in the home kitchen during the preparation, packaging, or handling of any potentially hazardous food products:
11.3.e. That kitchen equipment and utensils being used to produce food products, can be properly cleaned and sanitized;
11.3.f. That all food contact surfaces, equipment, and utensils used for the preparation, packaging, or handling of any potentially hazardous food products are washed, rinsed, and sanitized before each use;
11.3.g. That all food, food preparation, equipment, and storage areas are free of rodents and insects;
11.3.h. That no persons involved in the preparation and packaging of potentially hazardous food products:
11.3.h.1. Are working with exposed food, cleaning equipment, utensils, and linens; or working with unwrapped single-service or single-use articles while experiencing the following symptoms:
11.3.h.1.1. Vomiting;
11.3.h.1.2. Diarrhea;
11.3.h.1.3. Jaundice; or
11.3.h.1.4. Sore throat with fever;
11.2.h.2. Has a lesion containing pus, such as a boil or infected wound, that is open or draining and is:
11.2.h.2.1. On the hands or wrists, unless an impermeable cover such as single-use gloves protect the lesion;
11.2.h.2.2. On exposed portions of the arms, unless the lesion is protected by an impermeable cover: or
11.2.h.2.3. On other parts of the body, unless the lesion is covered by a dry, durable, tight-fitting bandage; or
11.2.h.3. Has symptoms of any of the following illnesses as diagnosed by a health practitioner:
11.2.h.3.1. Norovirus;
11.2.h.3.2. Hepatitis A;
11.2.h.3.3. Shiqella spp;
11.2.h.3.4. Shiga toxin producing E. coli; or
11.2.h.3.5. Salmonella .
W. Va. Code R. § 61-38-12 Local Permit Requirements
12.1. Except for consignment farmers markets, no permit is required for a farmers market or a farmers market vendor selling food and farm products.
12.2. Farmers market vendors shall be subject to any state or federal rules and regulations that apply to certain farm and food products sold at farmers markets or at a consignment farmers market under the Food Safety Modernization Act, 21 U.S.C. §§ 2201 et seq., and interstate commerce regulations. The Department is solely responsible for enforcing these regulations.
W. Va. Code R. § 61-38-13 Sampling
13.1. All sampling shall be performed in consultation with the WVDA. The WVDA allows the distribution of samples at Farmers Markets provided that:
13.1.a. The farmers market ensures that vendors are following the guidance established in the West Virginia Farmers Market Vendor Guide and
13.1.b. A representative of the farmers market participates in a WVDA-approved training course identified in subsection 8.4 of this rule on an annual basis.
13.2. Sampling stations for foods shall minimally ensure the following, with additional information available in the West Virginia Farmers Market Vendor Guide:
13.2.a. A hand washing station should be easily accessible for all food handlers;
13.2.b. Sanitary procedures are followed;
13.2.c. Proper food storage temperatures are maintained;
13.2.d. Appropriate tools for dispensing samples are used;
13.2.e. Adequate trash receptacles are available for trash generated from sampling and should be covered and emptied frequently; and
13.2.f. Samples are not exposed to environmental contaminants or pests.
13.3. A vendor is subject to food collection and inspection by the WVDA if a consumer complaint has been received. A vendor is subject to food sampling and inspection by the local health department in the jurisdiction in which the farmers market is located if the local health department determines that the vendor’s food product is misbranded or adulterated, or if a consumer complaint has been received: Provided, That all sampling and inspection shall be performed in consultation with the Department of Agriculture.
13.4. For the purpose of this rule, chef demonstrations at markets and food prepared during these events are considered samples and must be served in an approved manner.
W. Va. Code R. § 61-38-14 Enforcement
14.1. The Commissioner may assess a violation of W. Va. Code §19-35-1 et. seq. or of this rule.
14.2. If a violation has been committed by either the farmers market or the vendor, or an item is found to be adulterated or misbranded, the Commissioner shall send a written “First Notice” to the vendor permit holder. This notice shall notify the vendor permit holder that a violation of W. Va. Code §19-35-1 et. seq. of this rule and the enforcement policy established by this section of the rule. A second inspection shall occur after the notification has been sent.
14.3. If a violation has been committed during the second inspection, the Commissioner shall send a written “Second Notice” to the vendor permit holder. The registrant must develop a written plan to correct the violation(s) and implement it within 7 days after the Second Notice has been sent out.
14.4. A third inspection shall occur after the receipt and acceptance of the written plan of correction.
14.5. If a violation has been committed during the third inspection, the Commissioner will issue an immediate “Suspension of Permit.” The “Suspension of Permit” order will give the reason of the order, state the length of time that the Suspension of Permit order will be in effect, and specify a time and place for a hearing to be held in the matter.
14.6. The suspension shall state the time that the suspension will be effective, give the reason of the suspension, and specify a time and a place for a hearing to be held in the matter, except in the case of a summary suspension. The Commissioner may give the manufacturer the opportunity to request a hearing in this matter subsequent to the notification of the suspension.
14.6.a. The suspension shall remain in effect until the vendor permit holder submits, and the Commissioner accepts, a written plan of correction and a request for a reinstatement of the permit.
14.6.b. The Commissioner has ten (10) business days from the date or receipt of a written plan of correction and request for the reinstatement of the permit to respond. The Commissioner shall accept or deny the application for a reinstatement of the permit and shall give the terms and conditions under which the permit will be reinstated.
14.6.c. If the Commissioner finds that after the vendor permit holder has resumed operations following a suspension of their Farmers Market Registration or Farmers Market Vendor Permit that effective corrective actions have not been taken, the Commissioner shall hold a hearing to determine if the Farmers Market Permit or the Farmers Market Vendor Permit should be revoked.
14.7. A person who performs a recall by voluntarily removing product from sale or 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.
14.8. The Commissioner may suspend the standard enforcement policy in cases where such action is necessary to protect the public health, safety, and welfare.
W. Va. Code R. § 61-38-15 Hearings
15.1. If a violator requests an informal hearing or the Commissioner schedules an informal hearing, the compliance officer shall schedule a hearing in accordance with the following procedures:
15.1.a. The compliance officer shall notify any authorized representative of the Commissioner who was involved in the inspection which discovered the violation which is the subject of the hearing, and the violator of the time and place of the informal hearing;
15.1.b. The compliance officer shall notify the parties at least ten (10) business days prior to the time of the hearing; and
15.1.c. The compliance officer may continue the informal hearing only for good cause shown.
15.2. An informal hearing is intended to be an information discussion of the facts which gave rise to the issuance of a notice of violations. The hearing officers shall conduct the hearing in the following manner:
15.2.a. The hearing officer shall not discuss the case “ex parte” with either the compliance officer or other WVDA employees involved in the case.
15.2.b. All testimony and evidence at a hearing shall be recorded. The record shall be maintained for ninety (90) days from the date of the hearing, and the WVDA shall make a transcript of the hearing available to the aggrieved party.
15.2.c. Within thirty (30) days following the informal hearing, the hearing officer shall issue and furnish a written decision affirming or dismissing the initial notice of violation and reason(s) for his or her decision.
15.3. Any party who feels aggrieved of the suspension, revocation, or denial order of a license may appeal within sixty (60) days to the circuit court of the county in which the violator has located its principal place of business.
15.4. At any formal review proceedings which may occur later, any evidence, as to any statement made by one party at the informal hearing, may not be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement was available as competent evidence independent of its introduction during the informal hearing.
Series 39 Seed Certification
W. Va. Code R. § 61-39-1 General
1.1. Scope. -- This legislative rule establishes the requirements governing the standards for industrial hemp seed production, inspection, and seed standards for certification. Industrial hemp, as defined by W. Va. Code, will be enforced by W. Va. Code and legislative rules promulgated under that article.
1.2. Authority. -- W. Va. Code §19-16-3a; §19-16-6.
1.3. Filing Date. -- April 15, 2022
1.4. Effective Date. -- April 18, 2022
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2032.
W. Va. Code R. § 61-39-2 Policy
2.1. All persons involved in seed certification in the state of West Virginia are equally responsible for full compliance with the provisions of W. Va. Code, §19-16-1 et seq.
2.2. The Association of Official Seed Certifying Agencies (AOSCA) Seed Certification Handbook is incorporated in its entirety by reference.
W. Va. Code R. § 61-39-3 Seed Certification – Purpose
3.1. Under the authority of W. Va. Code §19-16-6, the department adopts rules to establish standards for seed certification in West Virginia in order to maintain and make available sources of high quality seeds and propagating material of plant varieties so grown and distributed as to ensure genetic identity and genetic purity.
W. Va. Code R. § 61-39-4 Seed Certifying Agencies in West Virginia
4.1. Seed certification in West Virginia is conducted under the authority of W. Va. Code §19-16-3a, W. Va. Code §19-16-6, and W. Va. Code R. 61 C.S.R. 9-11. The department conducts seed certification in cooperation with the West Virginia Associated Crop Growers and the Association of Official Seed Certifying Agencies.
4.2. The West Virginia Department of Agriculture certifies seed of industrial hemp. All other seed is certified by the West Virginia Department of Agriculture or the West Virginia Associated Crop Growers.
W. Va. Code R. § 61-39-5 Definitions of Terms Used for Purposes of Certification Programs
5.1. Variety Classes:
5.1.1. Breeder Class: Breeder seed is seed directly controlled by the originating or sponsoring plant breeding institution, or person, or designee thereof. As applied to certified seed, breeder seed is the source for the production of seed of the other classes of certified seed.
5.1.2. Foundation Class: Foundation seed is seed which is the progeny of breeder or foundation seed produced under control of the originator or sponsoring plant breeding institution, or person, or designee thereof. As applied to certified seed, Foundation seed is a class of certified seed which is produced under procedures established by the certifying agency for the purpose of maintaining genetic purity and identity.
5.1.3. Registered Class: Registered seed is the progeny of Breeder, Select, or Foundation seed handled under procedures acceptable to the certifying agency to maintain satisfactory genetic purity and identity.
5.1.4. Certified Class: Certified seed is the progeny of Breeder, Select, Foundation, or Registered seed so handled as to maintain satisfactory genetic purity and identity, and which has been approved and certified as acceptable to the certifying agency.
5.2. Pre-Variety Germplasm Types:
5.2.1. Source-identified Germplasm: Source-identified is a type of propagating material collected from natural stands, seed production areas, seed fields, or orchards where no selection or testing of the parent population has been conducted.
5.2.2. Selected Germplasm: Selected is a type of propagating material that is the progeny of phenotypically selected plants of untested parentage that have promise but no proof of genetic superiority or distinctive traits.
5.2.3. Tested Germplasm: Tested is a type of propagating material that is the progeny of plants whose parentage has been tested and has proven genetic superiority or possesses distinctive traits for which the heritability is stable, as defined by the certifying agency, but for which a variety has not been named or released. This seed must be produced so as to assure genetic purity and identity.
5.3. Conditioning: The mechanical handling of seed from harvest until marketing.
5.4. Double Cross: The first generation hybrid between two foundation single crosses.
5.5. Foundation Backcrosses:
5.5.1. A first generation foundation backcross is the first generation cross between a foundation single cross of related inbred lines and an inbred line which shall be the same as one of the inbreds in the foundation single cross.
5.5.2. A second generation foundation backcross is the cross of a first generation backcross (ear parent) with its recurrent inbred parent (pollen parent).
5.6. Foundation Single Cross: A single cross used in the production of foundation backcrosses or of double, three-way, or top crosses.
5.7. Inbred Line: A relatively true-breeding strain resulting from controlled self-fertilization or of backcrossing to a recurrent parent with selection or its equivalent.
5.8. Off-Types: 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 above.
5.9. Open-Pollination: Seed produced as a result of natural pollination as opposed to hybrid seed produced as a result of controlled pollination.
5.10. Plant Breeder: A person or organization actively engaged in the breeding and maintenance of varieties of plants.
5.11. Pre-Variety Germplasm: Wild collected or field or nursery cultivated germplasm of a native or naturalized species which originates from a specific geographic area and has not been released as a variety.
5.12. Single Cross: The first generation of a cross of two inbred lines, an inbred line and a foundation backcross, or of two foundation backcrosses.
5.13. Three-Way Cross: The first generation of a cross of a foundation single cross and an inbred line or a foundation backcross.
5.14. Top Cross: The first generation of a cross between an open pollinated variety and an inbred line, a foundation backcross, or a foundation single cross.
5.15. Total Viable: Is the sum of percentage germination plus dormant plus hard seeds.
5.16. Variant: 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.
5.17. 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.
W. Va. Code R. § 61-39-6 Seed Standards for Proprietary Variety Certification – Application for Proprietary Certification
6.1. The general seed certification standards provided for in this rule, together with the varieties eligible for seed certification, constitute the basic requirements for proprietary variety certification.
6.2. The owner or designee with production or marketing rights of a proprietary variety shall submit to the certifying agency a list of growers who will submit applications for certification showing the variety, acreage authorized, processor authorized, and also advising whether the variety is under genetic purity certification or under complete certification. The list of growers must be submitted prior to the application due dates for seed certification as specified by rule.
6.3. Each application for seed certification received by the certifying agency is subject to approval from the list submitted by the owner with production or marketing rights of a proprietary variety.
6.4. The certifying agency shall refuse certification of any seed that appears in a processing or conditioning plant not authorized by the owner or designee with production or marketing rights of a proprietary variety.
6.5. An application for seed certification may be withdrawn at any time prior to tagging. The applicant is responsible for fees due and owing when an application for seed certification is withdrawn.
W. Va. Code R. § 61-39-7 Seed Standards for Genetic Purity Certification
7.1. All certified seed must conform to the standards of purity and identity or variety in compliance with W. Va. Code §19-16-1 et seq. and rules adopted thereunder. The general certification standards together with the specific crop certification standards established in this chapter are the basic requirements for genetic purity seed certification:
7.1.1. Only proprietary varieties and OECD varieties not of United States origin to be tagged under the OECD scheme are eligible for genetic purity certification;
7.1.2. Only the specific crop certification standards established in rule which pertain to genetic purity such as land requirements and isolation, apply for genetic purity certification. Fields shall not contain other varieties or off-type plants in excess of established standards. The grower is responsible for controlling noxious weeds to prevent seed formation;
7.1.3. Excessive prohibited and/or objectionable weeds, poor stands, lack of vigor, or other conditions, which make inspection by the certifying agency inaccurate, may be cause for rejection of a field;
7.1.4. Field inspection. A field inspection is made by the certifying agency each year at the time the seed crop is in bloom, or at other times as may be most advantageous to determine genetic purity. A complete record must be maintained on the condition of the field (weeds, crop mixtures, etc.) and all information reported to the authorized agent and/or grower. Upon completion of all requirements for field inspection, a final field inspection report is issued by the certifying agency that the seed produced passed genetic purity requirements;
7.1.5. Seed standards. The certifying agency shall test all lots to determine the purity and germination quality. Seed to be certified shall not contain seeds of other varieties or off-types in excess of standards established in this rule. The quality of each lot of seed represented to be certified shall be that which is normally acceptable in the marketing of high quality seed. Failure to maintain acceptable quality shall be considered cause for revoking permission to participate in seed certification by genetic purity;
7.1.6. Processing or conditioning requirements. Only those conditioning plants approved by the department are permitted to process seed for certification. Complete records shall be kept of all processing or conditioning. Blending of seed lots of the same variety from fields passing field inspections may be permitted with prior approval and if in accordance with requirements for blending. Sampling and all other operations involving certified seed shall be under supervision of the certifying agency. The sample must be obtained in accordance with official sampling procedures. The entire lot shall be cleaned and in condition for sale at the time of sampling. This sample must be submitted to the seed laboratory for testing to evaluate quality. Lots of questionable quality may be rejected and not eligible for certification;
7.1.7. Certification tags for seed meeting the genetic purity standards shall be clearly marked, "genetic purity certified"; and
7.1.8. Fees for genetic purity certification are as established for each seed crop and the authorized agent or grower is responsible for all fees.
W. Va. Code R. § 61-39-8 Standards for Production of Foundation Seed
8.1. The general seed certification standards together with specific crop standards established in this rule constitute the basic standards for production of foundation seed as determined necessary by the certifying agency. Seed to be eligible for foundation certification tags shall be approved by the originating plant breeder or his or her designated agent, and in compliance with the following standards:
8.1.1. Pre-planting report. A pre-planting inspection, an industry responsibility, shall be made of fields to be planted with breeder seed. A written report of the preplant inspection, performed by either a representative of the person issuing the contract or by the grower shall be maintained by the variety owner or designee for a minimum of three years. The report shall show the grower's name, number of acres, location, crop history for the past three years, crops to be planted, origin of breeder seed, isolation status, and any weed and crop present.
8.1.2. Planting requirement. To distinguish between any possible volunteer and the crop seeded, all fields shall be planted in distinct rows. Plants outside defined rows may be construed as volunteers.
8.1.3. Combine inspection. The combine used for seed harvesting shall be cleaned and inspected prior to harvesting foundation seed. The combine shall be free of all contaminating material. If an official combine inspection is requested, the certifying agency shall be notified of the following: The date, time, and location where the combine inspection may be made.
8.1.4. Processing plant inspection. The processing or conditioning plant shall be inspected before processing foundation seed and the processer shall make periodic inspections during processing.
8.1.5. Recleaning, re-bagging, pre-inoculation, treating, or other processes shall be approved by the certifying agency. An original tag shall be submitted with the request for recertification and the seed shall be retagged and resealed on completion.
8.1.6. For a proprietary variety the combine inspection in subdivision 8.13 of this section, and processing plant inspection in subdivision 8.1.4 of this section, responsibility may be assigned to the proprietor or his or her designee upon their request. The variety owner or designee shall maintain a report covering required inspections.
W. Va. Code R. § 61-39-9 Varieties Eligible for Seed Certification in West Virginia
9.1. Only seed varieties that are accepted as meriting seed certification by an appropriate AOSCA National Variety Review Board or a member agency of AOSCA in accordance with the criteria listed in subsection (2) of this section may be eligible for seed certification in West Virginia.
9.2. The following information is required for submission to an AOSCA National Variety Review Board or other certifying agency for acceptance of a seed variety for certification:
9.2.1. The name of the variety;
9.2.2. A statement concerning the variety's origin and the breeding procedure used in its development;
9.2.3. A detailed description of the morphological, physiological, and other characteristics of the plants and seed that distinguish it from other varieties;
9.2.4. Evidence supporting the identity of the variety, such as comparative yield data, insect and disease resistance, or other factors supporting the identity of the variety;
9.2.5. A statement giving the suggested region of probable adaptation and purposes for which the variety is used;
9.2.6. A description of the procedure for maintenance of stock seed classes, including the number of generations through which the variety can be multiplied;
9.2.7. A description of the manner in which the variety is constituted when a particular cycle of reproduction or multiplication is specified;
9.2.8. Any additional restrictions on the variety, specified by the breeder, with respect to geographic area of seed production, age of stand or other factors affecting genetic purity; and
9.2.9. A sample of the seed representative of the variety as marketed.
W. Va. Code R. § 61-39-10 Seed Classes Recognized for Seed Certification
10.1. Four seed classes are recognized in seed certification, namely: Breeder, foundation, registered, and certified.
10.1.1. Breeder seed is seed or vegetative propagating material directly controlled by the originating, or in certain cases the sponsoring plant breeder, institution, or firm. Breeder seed supplies the source for the initial and recurring increase of foundation seed. Breeder seed may also be used to produce subsequent generations.
10.1.2. Foundation seed, identified by white tags, is first-generation seed increased from breeder seed or its equivalent. Production shall be carefully supervised and approved by the certifying agency. Foundation seed is eligible to produce registered or certified seed.
10.1.3. Registered seed, identified by purple tags,) is the progeny of breeder or foundation seed that is handled as to maintain satisfactory genetic identity and purity and is approved and certified by the certifying agency. Registered seed is eligible to produce certified seed.
10.1.4. Certified seed, identified by blue tags, is the progeny of breeder, foundation, registered, or certified seed which is handled as to maintain satisfactory genetic identity and purity and is approved and certified by the certifying agency. Certified seed is not eligible for recertification, except as provided for in section 11 of this rule.
W. Va. Code R. § 61-39-11 Limitation of Generations for Seed Certification
11.1. The number of generations through which a seed variety may be multiplied is limited to the number specified by the originating breeder or owner of a variety except that; and
11.1.1. Unlimited recertification of the certified seed class may be permitted for crop varieties where foundation seed is not being maintained; and
11.1.2. The production of an additional generation of the certified class may be permitted on a one-year basis when:
11.1.2.a. Prior to the planting season, the certifying agency states that foundation and registered seed supplies in the United States are not adequate to plant the needed acreage of the variety;
11.1.2.b. Permission of the originating breeder and/or owner of the variety is obtained (if applicable); and
11.1.2.c. The additional generation of certified seed produced is declared to be ineligible for recertification.
W. Va. Code R. § 61-39-12 Establishing the Source of Seed
12.1. The certifying agency shall be supplied with satisfactory evidence of the class and source of seed used to plant each crop being considered for certification.
W. Va. Code R. § 61-39-13 Eligibility Requirements for Certified Crop Varieties
13.1. Minimum standards of the Association of Official Seed Certifying Agencies (AOSCA) shall be met. Only those varieties that are accepted as meriting certification, in accordance with the criteria provided by the West Virginia Department of Agriculture, are eligible for certification. The department may deny or suspend certification when considered appropriate. Non-Certified seed or grains may be eligible for official AOSCA labels as outlined in the AOSCA Quality Assurance (QA) Program or the General Standards for the Identity Preserved (IP) Program.
13.1.1. Varieties will normally be considered eligible for certification if the variety has received favorable action by one or more of the following:
13.1.1.a. The National Variety Review Board (if one exists for that crop);
13.1.1.b. The Plant Variety Protection Office;
13.1.1.c. Another official seed certification agency; or
13.1.1.d. Variety is eligible for certification under the OECD Seed Schemes.
13.1.2. If a variety or line has not been exposed to any of the above organizations, then the West Virginia Department of Agriculture will make the final decision. The developer, public or private, must provide reasonable assurance that the identity of the variety or line has been maintained and meets all other eligibility requirements as specified in the Uniform System for Bringing Varieties into Certification in the United States, Operational Procedures of the Association of Official Seed Certifying Agencies.
W. Va. Code R. § 61-39-14 Uniform System for Bringing Varieties into Certification in the United States
14.1. AOSCA and the certifying agency shall require the originator, developer or owner of the variety, or agent thereof, to make the following information available when eligibility for certification is requested:
14.1.1. The name of the variety or temporary designation. Family, kind, genus and species;
14.1.2. A statement concerning the variety’s origin and the breeding procedure used in its development;
14.1.3. The genealogy, including public and private varieties, lines or clones used and the breeding method;
14.1.4. Details of subsequent stages of selection and multiplication;
14.1.5. The type and frequency of variants during reproduction and multiplication and how these variants may be identified;
14.1.6. Evidence of stability;
14.1.7. A detailed description of the morphological, physiological and other characteristics of the plant and seed that distinguish it from other varieties;
14.1.8. Special characteristics of the seed and of the plant as it passes through the seedling stage, flowering stage and the fruiting stage;
14.1.9. Description of the mature plant and comparison with similar commercially available varieties grown under the same conditions;
14.1.10. Evidence supporting the identity of the variety, such as comparative yield data, insect and disease resistance, or other factors supporting the identity of the variety;
14.1.11. A statement delineating the geographic area or areas of adaptation of the variety;
14.1.12. A statement of the plans and procedures for the maintenance of seed classes, including the number of generations through which the variety may be multiplied;
14.1.13. A description of the manner in which the variety is constituted when a particular cycle of reproduction or multiplication is specified;
14.1.14. Any additional restrictions on the variety, specified by the breeder, with respect to geographic area of seed production, age of stand or other factors affecting genetic purity;
14.1.15. A sample of seed representative of the variety as marketed;
14.1.16. A declaration of the PVP (Plant Variety Protection) status as yes, no or undecided. The originator shall also declare if the variety is to be sold by name only as a class; and
14.1.17. The names of certifying agencies expected to certify seed.
W. Va. Code R. § 61-39-15 Standards for Handling Experimental Lines
15.1. The Experimental Line Program provides guidelines for seed increase using published AOSCA field and seed standards during the final stages of testing an experimental line so that classes of certified seed may be available in the event of the line being released as a variety. The program is to be used for seed production of an experimental line that has not been reviewed or accepted into certification. Seed produced using this program cannot be sold or represented as a class of certified seed, nor should it be included in a certified seed mix or blend the experimental line has been accepted as a variety for certification.
15.1.1. The following definitions apply to this section:
15.1.1.a. Experimental Line: A germplasm that has not been released and/or recognized as eligible for certification and is being tested with the possibility of release as a variety at some point in the future.
15.1.1.b. Classes of Experimental Lines
15.1.1.b.1. Exp-F: Eligible for Foundation seed upon variety acceptance.
15.1.1.b.2. Exp-R: Eligible for Registered seed upon variety acceptance.
15.1.1.b.3. Exp-C: Eligible for Certified seed upon variety acceptance.
15.1.2. The Experimental Line applicant should provide documentation that includes the following information prior to field inspection.*:
15.1.2.a. The experimental line owner.
15.1.2.a.1. If the applicant is an entity other than the experimental line owner, the applicant shall provide documentation stating the owner’s approval of seed productions by the applicant using this program;
15.1.2.b. The experimental line identification or the proposed name of the experimental line;
15.1.2.c. A brief description with sufficient morphological, physiological, and/or other characteristics of the plants and seed to identify the experimental line during field and/or seed inspection;
15.1.2.d. A statement of the generations through which the experimental line may be multiplied; and
15.1.2.e. Documentation of the generation of the stock seed used to plant the field. Acceptable generations are Breeder Seed, Experimental Line-F, or Experimental Line-R.
15.1.3. Standards.
15.1.3.a. The requirements of section (2) shall be met.
15.1.3.b. All land requirements, isolation standards, field standards, and seed standards for the crop and corresponding class of certified seed shall be met.
15.1.3.c. All inspections required for that crop shall be performed.
15.1.3.d. The limited generation system should be maintained, with a maximum of three generations, those being the equivalent of Foundation (Experimental Line-F), Registered (Experimental Line-R), and Certified (Experimental Line-C) classes.
15.1.3.e. Seed meeting documentation, field and seed standards is eligible for seed stock tags or documents that identify it as eligible under the Experimental Line Program.
15.1.4. Labels
15.1.4.a. Tags, labels, or official documents provided by the department for seed produced using the Experimental Line Program shall be clearly marked with the words “Experimental Line” and “Pending Certification”.
15.1.4.b. “Foundation”, “Registered”, or “Certified” shall not appear on tags, labels, or official documents for seed produced using the Experimental Line.
15.1.4.c. Buff-colored tags shall be used for seed produced under this program.
15.1.5. Completing Certification of Seed Produced Using the Experimental Line Program
15.2. In the event that the experimental line meets AOSCA variety eligibility requirements and is accepted for certification, Experimental Line seed stock tags or documents may be replaced by AOSCA tags or documents for the appropriate class of certified seed.
W. Va. Code R. § 61-39-16 Applying for Seed Certification in West Virginia
16.1. To participate in the West Virginia seed certification program, applicants shall submit an application for seed certification to the appropriate certifying agency.
16.1.1. An application for seed certification shall be submitted for each crop, variety and field.
16.1.2. Applications may be obtained from a certified seed processor or the certifying agency.
16.1.3. The applicant is responsible for payment of all fees.
16.1.4. The applicant shall attach to the application for seed certification official tags/labels and/or other verification from seed stock planted.
16.1.5. When it is necessary for a grower to reseed due to a failure to get a stand, the grower shall retain records of seed lots used and the date of reseeding. Reseeding must be done within two years of the original planting date for grasses or within one year for all other crops. If seed stock of a different lot is used for reseeding, the grower shall submit proof of seed stock used on a seedling application form. An additional application fee will be charged.
§16-39-17. Submitting an Application for Seed Certification.
17.1. Applications for seed certification are due on or before:
17.1.1. April 1st for Winter Grains;
17.1.2. May 1st for Spring Grains;
17.1.3. April 1st for Turf Grasses;
17.1.4. May 1st for Industrial Hemp;
17.1.5. June 1st for Corn;
17.1.6. June 1st for Soybeans;
17.1.7. June 1st for all other crops; and
17.1.8. March 1st for Potatoes.
17.2. An application for seed certification must be submitted to the certifying agency each year a grower plans to produce seed for certification of annual crops.
17.3. A renewal application for seed certification must be submitted to the certifying agency after a stand is established each year that a grower plans to produce seed for certification of perennial crops.
17.4. Applications received after the due date are assessed a late application fee.
17.5. Renewal application for seed certification may not be accepted after the due date if a field inspection cannot be conducted prior to harvest except at the discretion of the certifying agency.
W. Va. Code R. § 61-39-18 Responsibilities When Participating in the Seed Certification Program
18.1. All participants in the seed certification program shall:
18.1.1. Maintain the genetic purity and identity during seeding, growing, harvesting, and post-harvest storage, and ensure reasonable precaution is taken to control contaminating crops and varieties with noxious weeds, and seed-borne diseases;
18.1.2. Prevent seed crop and lot mixture when harvesting;
18.1.3. Identify the seed crop as it is delivered to the processor with the assigned field number or numbers;
18.1.4. Clean the seed crop at a seed conditioner approved by the department;
18.1.5. Comply with standards and procedures for seed certification under the authority of W. Va. Code §19-16-1 et seq. and rules adopted thereunder;
18.1.6. Harvest of seed before a field inspection by the certifying agency causes forfeitures of both the application and field inspection fees, and completion of certification.
18.2. Failure of seed growers to comply with the seed laws and rules is cause for the department to deny certification of seed.
W. Va. Code R. § 61-39-19 Land History – Seed Certification
19.1. Land requirements for seed certification are as established in the specific seed crop standards. When a cultural practice has proved to be successful, requirements may be modified upon written approval of the seed certifying agency. Cultural practice may include any of the following:
19.1.1. Mechanical means such as deep plowing;
19.1.2. Chemical means such as fumigants; and
19.1.3. Other material for seed bed preparation. Materials and methods shall be a matter of record. Any practice used must be adequate to ensure varietal purity and must be approved in writing by the certifying agency. Any deviations from established land requirements must be submitted in writing to the certifying agency.
W. Va. Code R. § 61-39-20 Seed Field Inspections by the Certifying Agency
20.1. The certifying agency conducts field inspections as follows:
20.1.1. A seedling field is inspected at the most appropriate time after receipt of a seedling application. If the field produces seed the same year of planting, a seedling producing inspection is made prior to harvest;
20.1.2. Each year a crop of certified seed is produced, field inspections are made at a time when factors affecting certification are most evident;
20.1.3. The unit of certification is defined as the entire field standing at the time of inspection. A portion of a field may be certified if the area to be certified is clearly defined by flagging, stakes or other visual means. The border area of the field is considered the unit of certification if it is planted to the same crop and is inclusive of the acreage applied for; and
20.1.4. The unit of inspection may include areas adjacent to a field or areas of surveillance if these areas contain factors that would impact the certification eligibility of the seed crop as defined in the specific crop standards. Such factors may be, but are not limited to, contaminating pollen sources or weeds.
W. Va. Code R. § 61-39-21 Tolerances Stated as “None Found”
21.1. A tolerance of "none found" for contaminating or diseased material in either field or clean seed standards means that none was found during the normal procedure of field inspection or seed sample testing. None found does not constitute a guarantee that the field or seed is entirely free of the contaminant or disease.
W. Va. Code R. § 61-39-22 Seed Fields Ineligible for Seed Certification
22.1. A seed field is not eligible for certification unless a field inspection is made prior to defoliation or harvesting.
22.2. Prohibited noxious weeds shall be controlled to prevent seed formation. Follow-up inspections may be conducted to ensure weed control was sufficiently carried out to prevent prohibited noxious weed seeds from being harvested with the seed crop. Excessive objectionable weeds may be cause for rejection of a seed field. Excessive weeds, poor stands, lack of vigor, or other conditions which make inspection inaccurate may be cause for rejection. A field producing foundation or registered seed that warrants a rejection because of noxious weeds may be reclassified to certified blue tag class if upon reinspection the field meets certified blue tag standards.
22.3. If a seed field is rejected for certification, the grower may reapply to the certifying agency and pay a fee for reinspection after the cause for rejection is corrected, unless otherwise specified in this rule. No more than two re-inspections are permitted for each field per year.
W. Va. Code R. § 61-39-23 Withdrawing a Field From Inspection for Seed Certification
23.1. The applicant applying for seed certification may withdraw a field from field inspection for seed certification by notifying the certifying agency before the field is inspected.
W. Va. Code R. § 61-39-24 Agency Power to Reject Certification
24.1. The certifying agency may reject from certification any lot of seed not meeting the requirements of this rule. The regulating agency reserves the right to refuse certification on any lot of seed if, in the opinion of the certifying agency, the color appearance, or the condition of the seed might be detrimental to the certification program. The certifying agency may refuse certification if the labeling of containers is misleading or may tend to be confusing as to its contents.
24.2. Persons found guilty of violation or misuse or abuse of this rule are subject to prosecution under W. Va. Code §19-16-7. Proof of violation may result in removal of privileges of certifying, dealing in or handling certified seed.
W. Va. Code R. § 61-39-25 Sampling – Methods Used in the Sampling, Inspecting, Testing, Analyzing, and Examining Seed for Certification
25.1. The terms used in seed testing and the methods of sampling, inspecting, analyzing, testing and examining seed for certification are those adopted by the AOSA as shown in W. Va. Code §19-16-6. Other testing methodologies such as, but not limited to, genetic testing may also be used to determine certification eligibility.
25.2. The entire lot of seed must be cleaned, the quantity defined, and in condition for sale at the time of sampling.
25.3. A representative of the department shall take a representative sample for laboratory analysis of each lot of seed for certification. The sample shall be taken in accordance with official sampling procedures. Official sampling procedures are those adopted by AASCO as shown in W. Va. Code §19-16-6.
25.3.1. A sampling fee will be charged under provisions of this rule.
W. Va. Code R. § 61-39-26 Identification of Seed Containers With Field or Lot Numbers
26.1. The field number shall be on all seed containers or bulk seed delivery documents to ensure identity when delivered to the seed conditioner.
26.2. All seed for certification shall be packaged in clean, new containers of uniform weight and identified with a lot number when tagged and sealed. The lot number must identify the producer and year of production for each lot of seed.
W. Va. Code R. § 61-39-27 Seed Certification – Prohibited Noxious Weed Seed
27.1. Prohibited noxious weed seed are those found in 61 C.S.R. 9-13.1.1.
W. Va. Code R. § 61-39-28 Seed Certification – Objectionable Noxious Weed Seed
28.1. Objectionable noxious weed seed are those found listed as restricted noxious weed seed in 61 C.S.R. 9-13.1.2.
28.2. Objectionable noxious weed seed for lawn and turf seed certification are those found listed as restricted noxious weed seed or undesirable grass seed in 61 C.S.R. 9-13.1.3.
W. Va. Code R. § 61-39-29 Completion of Seed Certification – Tagging, Labeling, or Sealing
29.1. The seed certification tag, label or seal is evidence of the genetic identity and purity of the contents shall be attached to a container of certified seed prior to distribution. Seed that fails to meet certification standards because of genetic purity is not eligible for labeling.
29.2. Seed certification tags, labels, and seals must be obtained from the certifying agency and must be attached to seed containers in accordance with the certifying agency's rules.
29.3. Certification of seed is valid only if the tag, label or seal is affixed to each container in accordance with the AOSCA procedures.
29.4. A tag, label or seal may not be removed and reused without permission of the certifying agency.
29.5. A certified seed sale certificate shall be issued upon completion of final certification for all seed to be sold in bulk. This certificate shall accompany any shipment or transfers including those to other seed plants, out-of-state shipments or with any brokered seed. The seed plants own invoice may be used in lieu of a certified seed sale certificate for retail sales to growers. The invoice shall contain the certification information from the certified seed sale certificate as well as labeling information as required in W. Va. Code §19-16-2.
29.6. Seed that fails to meet certification requirements on factors other than genetic purity may be designated substandard at the discretion of the certifying agency. The certification tag or label attached to the seed shall clearly show the reason the seed is substandard. Seed shall not be tagged substandard if the seed can be remilled to meet minimum seed standards.
29.7. Seed labeling regulations are contained in W. Va. Code §19-16-2.
W. Va. Code R. § 61-39-30 Limitation of Liability – Certification
30.1. The issuance of a certified seed label or certificate by the certifying agency for a lot of seed affirms that seed has been produced and conditioned according to this rule and the certification rules adopted thereunder. The certifying agency makes no warranty, expressed or implied or any representation as to the freedom from disease or quality of certified seed.
W. Va. Code R. § 61-39-31 Labeling, Advertising or Other Representation of Seed – Prohibitions
31.1. It is unlawful and a violation of W. Va. Code §19-16-7 to label, advertise, or make any representation regarding:
31.1.1. Seed to be certified seed or any class thereof unless it has been determined by a seed certifying agency that such seed conforms to standards of purity and identity as to species (and subspecies, if appropriate), and variety, in compliance with the rules and laws of that agency pertaining to such seed.
31.1.2. Seed to be foundation, registered, or certified seed unless it has been inspected and tagged accordingly by a certifying agency as meeting certification standards of the department.
W. Va. Code R. § 61-39-32 Conditioning Seed in West Virginia
32.1. Under the authority of W. Va. Code §19-16-1 et seq., a seed conditioning facility must be inspected and approved by the department or its authorized agent prior to conditioning seed in West Virginia. Upon approval by the department, a seed conditioning permit is issued and the facility is placed on a list of approved seed conditioning plants. A copy of the list can be obtained by contacting the department.
32.2. A person desiring to condition seed must make application to the department for a permit on a form provided by the department.
32.3. To obtain department approval for a seed-conditioning permit, the department or its authorized agent conducts an inspection. A facility must show evidence that:
32.3.1. Seed for certification is handled in a manner which prevents the mixture of lots of seed;
32.3.2. The seed conditioning facility is maintained and cleaned. Equipment must be easily accessible for cleaning and inspection, and must be cleaned between lots;
32.3.3. Each lot of seed is identified with a lot number; and
32.3.4. Screenings are disposed of in accordance with 61 C.S.R. 9-23.
32.4. A seed conditioning facility must be approved by the department prior to handling seed for certification in bulk.
W. Va. Code R. § 61-39-33 Responsibilities of a Seed Conditioner
33.1. A department approved seed conditioner shall operate in a manner that:
33.1.1. Maintains the purity and identity of seed conditioned, stored, transshipped or labeled;
33.1.2. Complies with the standards and procedures for conditioning seed in accordance with W. Va. Code §19-16-1 et seq. and rules adopted thereunder; and
33.1.3. Prior to shipping seed out-of-state, adheres to the interagency seed certification requirements set forth in this rule.
33.2. Records of all operations must be complete and adequate to account for all incoming seed and final disposition of seed.
33.2. Failure of a seed conditioner to comply with the seed law and rules is cause for the department to revoke a seed conditioning permit.
W. Va. Code R. § 61-39-34 Considerations for Blending Seed
34.1. Size of seed blend permitted is dependent on factors such as quality of the seed lots to be blended and the conditioning plant facilities.
34.2. A blend data sheet is filed with the certifying agency and shall be maintained by the seed conditioner. Laboratory analysis shall be completed before tags are issued.
34.3. Seed shall be blended by a seed conditioner approved by the department, W. Va. Code §19-16-1 et seq.
34.4. A representative of the certifying agency may supervise the blending operation.
34.5. Seed lots resulting from a blend of different certified classes may only be labeled at the lower class.
W. Va. Code R. § 61-39-35 Standards for Verification of Turf Seed Ingredients
35.1. The general rules for seed certification are basic and together with the following specific requirements constitute the rules for certification identity of mixtures of different kinds of turf certified seed:
35.1.1. A blend data sheet, including proof of certification, verifying the origin and the certifying agency along with the analysis and pounds of each lot shall be submitted to the certifying agency for approval.
35.1.2. Each lot of certified seed shall:
35.1.2.a. Meet standards acceptable to the certifying agency; and
35.1.2.b. Be sampled under supervision of the certifying agency prior to mixing. The sample shall be obtained in accordance with official sampling procedures. The sample shall be identified with:
35.1.2.b.1. The verification of certification, origin, and certifying agency;
35.1.2.b.2. The kind/variety; and
35.1.2.b.3. The analysis and size of lot.
35.1.3. The certifying agency reserves the right to:
35.1.3.a. Refuse permission to use individual lots;
35.1.3.b. Approve the equipment to be used and procedure to follow in mixing;
35.1.3.c. Approve the containers and labeling to be used; and
35.1.3.d. Sample the final mixture.
35.1.4. The certifying agency shall identify each container with an official certification label verifying that the individual lots used were certified seed lots.
W. Va. Code R. § 61-39-36 Interagency Seed Certification Standards and Procedures
36.1. Interagency certification is the participation of two or more certifying agencies in performing the services required to certify the same final lot or lots of seed.
36.1.1. Eligibility
36.1.1.a. Seed recognized for interagency certification shall be received in containers carrying official certification labels, accompanied by transfer certificates or other proper documentation showing evidence of its eligibility from another official certifying agency together with the following information:
36.1.1.a.1. Variety and species;
36.1.1.a.2. Quantity of seed;
36.1.1.a.3. Class of seed; and
36.1.1.a.4. Field or lot number traceable to the previous certifying agency's records.
36.1.1.b. Seed tagged and sealed with official certification tags is eligible for interagency certification without obtaining approval from the certifying agency of the originating state.
36.1.1.c. An "interagency certified seed" report form shall be submitted to all certifying agencies involved. Information required to complete the form includes:
36.1.1.c.1. Section A:
Name, Address of shipper, Destination, Shipping weight, Lot number and receiving weight, Grower name, Field number, Date of seed shipment, Amount of seed used, Date shipment is received by the receiving state; and
36.1.1.c.2. Section B:
Clean weight, Bag count, New lot number (if different than the receiving lot number).
36.1.1.d. Certified seed not tagged and sealed with official certification tags shall follow the interagency certification procedure.
36.1.2. Procedure
36.1.2.a. Certified seed that is produced in West Virginia and shipped out-of-state shall comply with the interagency seed certification procedure.
36.1.2.a.1. The interagency seed certification procedure is as follows:
36.1.2.a.1.a. An applicant shall complete Section (A) of "interagency certified seed" report. One copy of the "interagency certified seed" report shall be submitted to the department and one copy to the certifying agency where seed is being processed.
36.1.2.a.1.b. The applicant shall mark each container with the lot number and field number.
36.1.2.a.1.c. If the department is to finalize certification, upon completion of seed processing, Section (B) of "interagency certified seed" must be completed and submitted to the department. A sample must be taken by the department and submitted to the department seed laboratory.
36.1.2.a.1.d. When West Virginia certification tags are used, the lot must be tagged and sealed under supervision of the department. The applicant must pay a mileage fee and hourly rate for all additional mileage and travel time required.
36.1.2.a.1.e. When West Virginia interagency tags are used, the tags must be mailed to the nearest representative of the certifying agency having jurisdiction for tagging.
36.1.2.a.1.f. If another state receives seed and finalizes certification, the department must advise the receiving state's certifying agency of certification eligibility. Sampling, testing, and tagging shall be in accordance with the receiving state's requirements.
36.1.2.a.1.g. The applicant for interagency seed certification is responsible for all fees authorized under West Virginia's certification program and any additional fees that may be assessed by both agencies involved. Fees for West Virginia's interagency certification program must be paid upon submission to the department of the "interagency certified seed" report, Section (A).
36.1.3. Seed Produced Out-of-State
36.1.3.a. Certified seed produced out-of-state and shipped into West Virginia for processing is eligible for West Virginia interagency tags only after obtaining approval from the certifying agency of the originating state. The seed shall then comply with West Virginia certification standards.
36.1.3.b. Certified seed produced out-of-state that is officially tagged and sealed shall be handled under the interagency program if seals are to be broken for reinoculation or other processing. The applicant for interagency seed certification shall obtain approval from the department prior to breaking the official seals and all operations shall be under the supervision of the certifying agency.
36.1.4. Blends
36.1.4.a. Blends of different origin can be authorized only after obtaining approval from the certifying agencies involved. Blends shall comply with blend standards established by the department. Interagency tags used shall show the percentage of each origin involved.
W. Va. Code R. § 61-39-37 Other Considerations in Applying the Standards for Certification
37.1. Any crop certification standard, with the exception of germination, that is expressed as a percent will be derived from a test based on the minimum weight for purity analysis as specified in the AOSA rules for that crop unless otherwise specified in rule.
37.2. Any crop certification standard that is based on a number per pound will be derived from a test based on the minimum weight for noxious weed seed examination as specified in the AOSA rules for that crop unless otherwise specified in rule.
37.3. For species that have a high rate of inherent dormancy, it will be acceptable to use the percent of total viability instead of germination percentage for certification only. State and federal seed laws require seed be labeled on a germination test.
37.4. For species or varieties that contain GMO (genetically modified organism) traits, herbicide resistant traits, or other novel traits, each seed lot shall be required to meet minimum trait standards as defined by the breeder or trait owner. The variety description shall define the trait. To determine the level of trait present, a test such as PCR (polymerase chain reaction) or specified bioassay test shall be required. If a test is not otherwise available the variety owner must provide testing protocols to the department.
W. Va. Code R. § 61-39-38 Certification Fees
38.1. Fees apply to both new and renewal applications.
38.1.1. The application fee for seed certification is $35 per field. The penalty for late applications is $50.
38.1.2. The Inspection & Sampling Fee for the seedling producing or field is $35 per hour, plus mileage rates as established by WVDA. This fee schedule applies also to any additional inspections or reinspections that may be required.
38.1.3. The Production Fee, including tagging, is $0.15 per tag issued, with a minimum fee of $15.00.
38.3. A laboratory testing fee of $150.00 for tetrahydrocannabinol (or THC) analysis will be assessed on each sample of industrial hemp.
38.4. The winter test for seed potatoes will cost $50.00 per lot.
38.5. Seed testing fees are established by W. Va. Code R. 61 C.S.R. 9.
W. Va. Code R. § 61-39-39 Industrial Hemp (Cannabis sativa L. Subsp. sativa) Certification Standards
39.1. Standards for Industrial Hemp Seed Production
39.1.1. The general seed certification definitions and standards in this rule are basic and together with the following specific standards constitute the standards for industrial hemp seed certification.
39.1.2. Fees for seed certification are set forth in section 38 of this rule.
39.1.3. All growers of industrial hemp certified seed crops shall be licensed under the department's industrial hemp licensing rules, W. Va. Code R. 61 C.S.R. 9.
39.1.4. Only varieties of industrial hemp approved by the department are be eligible for certification. An approved variety must be a variety recognized by an international organization recognized by the department, such as the association of official seed certifying agencies or the organization for economic cooperation and development (OECD) seed scheme.
39.1.5. The allowable area of an industrial hemp seed crop area or seed production field may be determined and limited by the department under W. Va. Code §19-12E-1 et seq.
39.1.6. All industrial hemp fields established for seed certification shall be planted with not less than thirty-inch row spacing to facilitate inspection, roguing, and harvesting.
39.1.7. Growers must post signage approved by the department on at least four sides, including the main entry point of each authorized field.
39.1.8. The department shall sample plants to analyze for tetrahydrocannabinol (THC), as required by W. Va. Code §19-12E-7.
W. Va. Code R. § 61-39-40 Definitions Specific to Industrial Hemp Seed Production
40.1. “Approved Cultivar” means any variety designated as eligible for production by federal or local regulatory authorities.
40.2. “Approved Laboratory” means a laboratory approved by the commissioner under this article.
40.3. “Commissioner” means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent.
40.4. “Dioecious type” means a type of industrial hemp that has male and female flowers on separate plants.
40.5. “Industrial hemp” means all parts and varieties of the genera Cannabis, cultivated or possessed by a grower, whether growing or not, that contain a THC concentration of .03 percent or less by dry weight.
40.6. “Industrial hemp seed production” means an industrial hemp seed production field established with an appropriate generation of certified seed intended to produce a subsequent generation of certified seed.
40.7. “Monoecious type” means a type of industrial hemp that has male and female flowers on the same plant.
40.8. “Tetrahydrocannabinol” or “THC” means the natural or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, or any synthetic substances, compounds, salts, or derivatives of the plant or chemicals and their isomers with similar chemical structure and pharmacological activity.
40.9. “Too male” means an intersexual plant that exceeds the ratio of male and female flowers as described in the variety description.
40.10. “Unisexual female” means a monoecious type of industrial hemp plant that has a sterile male and fertile female flowers.
40.11. “Unisexual female hybrid” means a hybrid where the A line is a unisexual female type and the B line produces fertile male flowers.
40.12. "Volunteer plant" means an industrial hemp plant that results from a previous crop.
40.13. “West Virginia landrace cannabis seed” means seed from the plant Cannabis sativa that possesses characteristics of a unique and specialized cannabis seed variety that is present in West Virginia or has been recognized as produced in West Virginia.
W. Va. Code R. § 61-39-41 Land Requirements for Industrial Hemp Seed Certification
41.1. Crops shall not be planted on land where foreseeable volunteer growth from a previous crop may cause contamination detrimental to certification.
41.2. Fields for foundation and registered classes shall not be planted on land which in the previous three years produced a crop of industrial hemp.
41.3. Crops for certified class shall not be planted on land which in the previous year produced a certified crop of the same variety of industrial hemp.
41.4. Crops for certified class shall not be planted on land which in either of the previous two years produced a non-certified crop of industrial hemp or a different variety of industrial hemp.
41.5. The presence of Broomrape (Orobanche spp.) in industrial hemps crops is cause for declining certified status.
W. Va. Code R. § 61-39-42 Isolation Requirements for Industrial Hemp Seed Certification
42.1. Isolation areas shall be kept free of any harmful plants that can cause contamination. The area, density, stage of maturity, and location of any contaminating pollen source is an important factor in cross pollination, and therefore shall be noted on the Seed Crop Inspection Report for consideration in determining certification status. There shall not be any Cannabis sativa L. plants within 100 m of the crop and not more than 10 plants/ha beyond 100 m within the isolation requirement. The conditions of each crop are assessed by the department, which may alter this standard, usually by reducing the number of contaminant plants permitted per square yard, according to identified contamination risks.
42.2. The required isolation shall be present prior to flowering and crop inspection.
42.3. Industrial hemp seed production crops for certification shall be isolated from all other industrial hemp varieties or fields not meeting the varietal purity requirements for certification as follows:
Inspected Crop Isolation Factor Isolation Distance in Feet Dioecious type:
Foundation Different varieties of industrial hemp Lower certified class seed crop of same variety 6,460 Same class of certified seed crop of same variety Dioecious type:
Registered Different varieties of industrial hemp Seed crop of same variety that meets Certified standards for varietal purity 5,249 Seed crop of same variety that meets Registered standards for varietal purity Dioecious type:
Certified Different varieties of industrial hemp 2,624 2,624 Planted with certified seed of the same variety that meets Certified standards for varietal purity Seed crop of same variety that meets Certified standards for varietal purity Monoecious type: Foundation Dioecious variety of industrial hemp Other Monoecious varieties 9,690 Lower certified class seed crop of same variety 9,690 Same class of certified seed of same variety Monoecious type: Registered Dioecious variety of industrial hemp Different varieties of the same type of industrial hemp (Monoecious or Female Hybrid) 6,460 Seed crop of same variety that meets Certified standards for varietal purity 3,230 Seed crop of same variety that meets Registered standards for varietal purity Monoecious type:
Certified Dioecious variety of industrial hemp 3,230 3,230 Different varieties of the same type of industrial hemp (Monoecious or Female Hybrid)
Planted with certified seed of the same variety that meets Certified standards for varietal purity Seed crop of same variety that meets Certified standards for varietal purity
W. Va. Code R. § 61-39-43 Field Inspection Standards and Tolerances for Industrial Hemp Seed Certification
43.1. Industrial hemp seed production crop fields shall be inspected by the department in three stages.
43.1.1. The first inspection for all classes of monoecious types shall be made just before or at early flowering. First inspection for all classes of dioecious types must be made after flowering when male plants are beginning to senesce.
43.1.2. The second inspection for all classes of monoecious types, and the Foundation class of dioecious types shall be made when seeds are well forming.
43.1.3. The third inspection should be conducted within ten days prior to harvest. The grower shall notify the department of the anticipated harvest date. Fields not harvested within ten days of the third inspection shall require an additional inspection and THC test.
43.1.4. Isolation areas will be inspected for volunteer plants and harmful contaminants at each department inspection.
43.2. Off-type male flowers shall be removed by the grower prior to producing pollen and evidence of removal must be identifiable during the department's crop inspection.
43.3. Rogued male flowers shall be removed from the field and buried or otherwise destroyed by the grower to prevent pollen production.
43.4. If dioecious male plants start flowering before removal from the field, all plants around them must be destroyed by the grower within a radius of ten feet for foundation seed, six feet for registered seed and three feet for certified seed.
43.5. If dioecious male plants or if other off-type male flowers are found to be shedding pollen during any inspection, an additional inspection is required within seven days to verify adequate control of detrimental pollen. An additional reinspection fee will be assessed by the department.
43.6. Plant samples will be taken by the department for THC testing at the third inspection. Violative THC test results will be cause for rejection and the field shall be subject to destruction.
43.7. The seed crop for certification shall be harvested after the third inspection and the THC sample has been submitted for testing. However, no seed or other industrial hemp by-products shall be transported off of the registered land area until THC testing with an acceptable result has been received and a release notice to the grower has been issued by the department.
43.8. Intersexual plant type ratios shall not exceed the limits when defined in the variety description by the breeder.
43.9. The Department may reject the affected field for certification purposes if excessive weeds or other factors that prevent varietal purity and identity determination.
43.10. Fields planted in such a manner that prevents inspector access shall be cause for the department to reject the affected field for certification purposes unless the grower remedies the condition in a timely manner as required by the department.
43.11. Maximum impurity standards must not be exceeded based on six replicated counts of ten thousand plants according to the following table:
Maximum impurity standards per 10,000 plants Maximum number of dioecious male plants shedding pollen Maximum number of off-types or other varieties Dioecious type: Foundation Dioecious type: Registered Dioecious type: Certified Monoecious: Foundation Monoecious: Registered Monoecious: Certified
W. Va. Code R. § 61-39-44 Seed Standards for Industrial Hemp Seed Certification
Foundation Registered Certified Pure seed (minimum) 98.00% 98.00% 98.00% Other crop (maximum) 0.01% 0.03% 0.08% Inert matter (maximum)* 2.00% 2.00% 2.00% Weed seed (maximum) 0.10% 0.10% 0.10% Other kinds (maximum)** 0.01% 0.03% 0.07% Other varieties (maximum)** 0.005% 0.01% 0.05% Germination (minimum)*** 80.00% 80.00% 80.00% * Inert matter shall not contain more than 0.50% of material other than seed fragments. ** Other kinds shall not exceed 2 per lb. (454 grams) for Foundation; 6 for Registered; 10 for Certified. ***Exclusive of dormancy, firm or hard seed, or any other reference to viability. ***
W. Va. Code R. § 61-39-45 Seed Potato (Solanum tuberosum) Certification Standards
45.1. Standards for Seed Potato Production
45.1.1. The general seed certification definitions and standards in this rule are basic and together with the following specific standards constitute the standards for seed potato certification.
45.1.2. Fees for seed certification are contained in section 38 of this rule.
45.2. Definitions Specific to Seed Potato Production.
45.2.1. “Seed Potato” means the vegetatively propagated tubers used for potato production rather than true botanical seed sexually produced from potato flowers.
45.2.2. “Seed Potato Stock” means seed potatoes intended for use as a planting source for certification that are identity preserved with a certification number and a North American Plant Health Certificate.
45.2.3. “Generation” means a classification scheme of seed potatoes based on the number of field production years completed.
45.2.4. “Limited Generation Seed” means seed potatoes grown for a specific maximum number of field production years.
45.2.5. “Bacterial Ring Rot” is a disease caused by the bacterium Clavibacter michiganensis ssp. sepedonicus.
45.2.6. “Blackleg” is a disease caused by the bacterium Pectobacterium atrosepticum or Pectobacterium carotovorum ssp. carotovorum.
45.2.7. “Corky Ring Spot (Spraing)” is a disease caused by tobacco rattle virus.
45.2.8. “Late Blight” is a disease caused by the fungus Phytophthora infestans
45.2.9. “Root-Knot Nematode” means the plant parasitic nematodes Meloidogyne hapla, Meloidogyne chitwoodii, and Meloidogyne incognita.
45.2.10. “Mosaic Virus” means Potato Virus Y (PVY) and all of its various strains, PVA and other viruses including severe forms of PVX.
45.2.11. “Potato Leaf Roll Virus (PLRV) is a virus primarily transmitted by the peach potato aphid which colonizes potato crops during July and August.
45.3. Seed Classification.
45.3.1. Limited Generation Classes.
45.3.1.1. Pre-Nuclear (PN) – In vitro plantlets and microtubers used for production in a protected environment.
45.3.1.2. Nuclear (N) – Minitubers produced in a protected environment utilizing Pre-Nuclear material as planting stocks.
45.3.1.3. Field Year 1 (FY1) – 1st field production and meets FY1 tolerances.
45.3.1.4. Field Year 2 (FY2) – 2nd field production and meets FY2 tolerances.
45.3.1.5. Field Year 3 (FY3) – 3rd field production and meets FY3 tolerances.
45.3.1.6. Field Year 4 (FY4) – 4th field production and meets FY4 tolerances.
45.3.1.7. Field Year 5 (FY5) – 5th field production and meets FY5 tolerances.
45.3.1.8. Field Year 6 (FY6) – 6th field production and meets FY6 tolerances.
45.3.1.9. Field Year 7 (FY7) – 7th field production and meets FY7 tolerances.
45.3.2. Each generation of seed is derived from planting the previous generation. At planting, the seed stock that was planted is automatically moved down one generation. For example, FY1 becomes FY2, FY2 becomes FY3. Seed potato stocks have to meet tolerances for the generation in which they are classified, regardless of field year production.
45.4. Seed Stock Eligibility Requirements.
45.4.1. Limited generation seed stocks are eligible for certification for seven (7) field production years. FY7 seed stocks, the 7th field production year, are not eligible for certification.
45.4.2. All seed stocks purchased by a farming operation from another farming operation and subsequently entered for certification shall be tagged unless the purchaser was a co-applicant for certification of that seed.
45.4.3. The eligibility of seed purchased for recertification must be verified by one of the following: Tags, Bulk Sale Certificates, or an Invoice from the seed. The invoice shall include the variety, pounds sold, generation of seed, and lot number.
45.4.4. Bacterial ring rot found in a seed lot of a seed farm shall be cause to remove the lot from certification. All fields on that seed farm planted with the same seed lot as the rejected field will also be refused certification. All other seed lots associated with or planted after the rejected lot shall not be eligible for recertification but are eligible for commercial planting if all other certification requirements are met.
45.5. Land Requirements.
45.5.1. A field is not eligible to produce certified seed potatoes if noncertified potatoes or potatoes proven to be Bacterial Ring Rot infected were grown in this the field within one previous growing season.
45.5.2. A field must be farmed for 1 (one) year with a crop other than potatoes immediately following the growing season in which potatoes were disqualified for Bacterial Ring Rot.
45.6. Field Isolation Requirements
45.6.1. Potatoes entered for certification shall be planted at least 20 feet from potatoes not entered for certification.
45.6.1.1. Seed lots shall be separated from each other by at least one row left unplanted or planted to some other crop.
45.6.2. Potatoes entered for certification as two seed lots of the same variety in the same field and found not to have the proper separation shall be designated as a single seed lot with the latest generation designation of the two seed lots.
45.7. Field Inspection Requirements
45.7.1. At least two inspections shall be made for each field entered during the growing season, prior to harvest.
45.7.1.1. Seed potatoes shall not exceed the tolerances for the 1st and 2nd inspections.
Table 1 – Percentages Allowed For 1st Inspection1 Factor2 FY1 FY2 FY3 FY4 FY5 FY6/7 Varietal Mixture
0.02
0.25 Mosaic
1.50 Potato Leafroll
0.03
0.05
0.20 Blackleg3 PVX Total Virus5 Table 2 – Percentages Allowed For 2nd Inspection1 Factor2 FY1 FY2 FY3 FY4 FY5 FY6/7 Varietal Mixture
0.01
0.05
0.20 Mosaic
0.25
0.75 Potato Leafroll
0.02
0.03
0.08
0.20 Blackleg3 Total Virus5 1Field inspections of FY1 and FY2 seed lots are advisory and all factors are required to be rogued when found in order to maintain the tolerance of 0.00%. 2Some disease may be present in a seed potato lot and not exhibit symptom expression in plants or tubers at the time of a regular inspection 3Determination of Blackleg disease is based on a visual plant symptom of an inky black stem originating from the seed tuber. Visible Blackleg has no tolerance in Generations 5 and 6 and therefore is not a disqualification factor. 4Visible Blackleg will not be a disqualification factor in FY6 or FY7. 5Total is the combined percentage of potato leafroll, calico, mosaic, and all other viral, viroid, and phytoplasmas (including Candidatus Liberibacter).
45.7.2. Fields shall be considered ready for inspection at all times. Additional inspections may be made at the discretion of the inspector but will not be made in order to allow growers to rogue fields which will not pass inspection.
45.7.3. Seed lots that exceed the generation tolerance for a particular factor shall be downgraded to the next generation for which the seed lot does not exceed the tolerance.
45.7.4. Volunteers must be rogued from any field of FY1 and FY2 seed potatoes. FY3 through FY7 fields that show volunteer potato plants remain eligible for certification when the volunteer plants are not found in excess of 3% of the total plants in the field. Volunteer plants shall be considered as part of the field from the standpoint of all factors of inspection.
45.7.5. FY3 and FY4 fields downgraded but not disqualified at the time of either the regular 1st or 2nd inspection because of a rogueable viral or varietal mixture problem may be reinspected one time.
45.7.6. Any seed lot shall only be allowed one reinspection during the season.
45.7.7. Chemical Injury.
45.7.7.1. The inspector may withhold certification pending the outcome of the winter test plot growout or refuse certification on a field or portion of a field sprayed or contaminated with a chemical that causes seed-borne injury to seed potatoes.
45.7.7.2. Those portions of a field that show enough chemical injury to the potato foliage to interfere with the field inspection process shall be rejected from certification if the potatoes are stored.
45.7.7.3. Those portions of a field that do not show enough chemical injury to interfere with field inspections but still may be contaminated to the degree that seed-borne chemical injury may occur in the next crop, shall be harvested and stored separately from other potatoes in that seed lot.
45.7.7.4. Under the direction of an inspector, a separate winter test sample shall be collected and submitted from those potatoes with the possible chemical injury.
45.7.7.5. Certification will be withheld until winter test readings are completed.
45.7.8. Fields may shall be refused certification due to unsatisfactory appearance caused by weeds, poor growth, poor stand, disease, insect damage, and any other condition which prevents accurate inspection or creates doubt as to the identity of the variety.
45.7.9. The following are grounds for seed lot disqualification:
45.7.9.1. Seed lots or portions thereof may be disqualified for certification because of any condition that interferes with the inspection of the potato plants;
45.7.9.2. Bacterial Ring Rot and Root-Knot Nematode are zero tolerance factors. Any seed lot, regardless of generation, is automatically disqualified from certification when any of these factors are found at any time;
45.7.9.3. Evidence of failure to remove daughter tubers from rogued hills;
45.7.9.4. When Bacterial Ring Rot is found in a seed lot, all potatoes grown by that farming operation from that seed source shall be disqualified;
45.7.9.5. The presence of any new or exotic disease to the state of West Virginia;
45.7.9.6. Failure to list on an application all seed sources that were used to plant a particular seed lot; and
45.7.9.7. Failure to have potatoes graded, inspected, and tagged at shipping.
45.8. Post-Harvest Testing Requirements.
45.8.1. Each seed lot shall be post-harvest tested. Lots, or portions thereof, which are shipped prior to post-harvest testing will be certified based on the two (2) summer field inspections.
45.8.2. Only seed lots that have passed the equivalent of a 2nd field inspection shall be eligible for post-harvest testing.
45.8.3. The number of single drop tubers to submit for winter testing, regardless of generation or testing format are for:
45.8.3.1. Lots representing one acre or more: 400 tubers;
45.8.3.2. Lots representing 0.5 – 0.9 acres: 200 tubers;
45.8.3.3. Lots representing 0.1 – 04 acres: 100 tubers; and
45.8.3.4. Lots representing less than 0.1 acres: 10% of tubers to a maximum of 100.
45.8.4. Seed lots are disqualified for certification if seed-borne chemical injury in excess of 5% is found during post-harvest testing.
45.8.5. Seed lots are not eligible for recertification if any of the following factors are found during post-harvest testing at a percentage greater than:
45.8.5.1. Potato Leafroll Virus of 0.8%; or
45.8.5.2. Mosaic of 1.0%.
45.9. Potato Virus X (PVX) Testing Requirements: All seed entered for certification in the FY1, FY2, and FY3 classes shall be laboratory tested for PVX.
45.10. Bacterial Ring Rot Testing Requirements.
45.10.1. A random sample of stems or tubers obtained from all seed lots FY2 or higher shall be laboratory tested for bacterial ring rot.
45.10.2. The required testing shall be completed prior to final certification.
45.10.3. The minimum sample size shall be 10% of stems or tubers to a maximum of 200 stems or tubers for seed lots 0.1 acres or less, and 400 stems or tubers for seed lots exceeding 0.1 acres.
45.11. Pre-nuclear Class Production Requirements.
45.11.1. Pre-nuclear Materials.
45.11.1.1. Pre-nuclear materials consist of in vitro propagative materials, e.g., tissue culture plantlets and micro-tubers, maintained under aseptic conditions.
45.11.1.2. In vitro propagative materials may originate from the following sources:
45.11.1.2.1. The introduction of any potato plant part, including stems and tubers, into in vitro culture using aseptic technique; or
45.11.1.2.2. Existing in vitro materials obtained from another recognized tissue culture facility.
45.11.2. Record Keeping.
45.11.2.1. Tissue culture facilities shall maintain records of the origin and date of acquisition of all pre-nuclear materials.
45.11.2.2. The tissue culture facility shall assign a unique identifying code to each individual clone that will be used to track its multiplication and test history. A new identification code shall be assigned to each clone or sub-clone when:
45.11.2.2.1 Plant materials are introduced into in vitro culture; or
45.11.2.2.2 In vitro material is received from another recognized tissue culture facility.
45.11.3. Required Testing.
45.11.3.1. All testing of pre-nuclear material shall be performed by the WVDA or a laboratory approved by the WVDA.
45.11.3.2. Introductory testing is performed when plant materials are introduced into in vitro culture or when in vitro material is received from another recognized tissue culture facility.
45.11.3.3. A minimum of two plantlets for each clone shall be tested and found free from PVA, PVS, PVM, PVY, PVX, PLRV, PotLV, PMTV, TRV, PSTVd, Clavibacter michiganensis subsp. sepedonicus, Pectobacterium spp. Materials that test positive for any of these pathogens are ineligible for certification.
45.12. Nuclear Class Production Requirements.
45.12.1. Nuclear materials.
45.12.1.1. Nuclear materials are the progeny of pre-nuclear materials produced in a protected environment (e.g., greenhouse or growth chamber).
45.12.1.2. Approved Planting Stocks:
45.12.1.2.1. Nuclear materials shall be produced using pre-nuclear stocks meeting the requirements described in subsection 45.11 of this rule.
45.12.1.2.2. First generation nuclear class mini-tubers produced in the grower’s own protected environment facility may be used as planting stocks with the prior approval of the WVDA.
45.12.1.3. No plants other than those listed on the Application for Certification may shall be present in the individual units of a protected environment being used for the production of nuclear class materials.
45.12.1.4. Nuclear materials shall be physically separated to maintain seed lot integrity and purity at all times. Nuclear seed lots that are comingled shall be combined, downgraded, or rejected, as appropriate, as outlined in subsection 45.7 of this rule.
45.12.2 Inspections.
45.12.2.1. Nuclear crops shall be entered for certification within 14 business days of the planting of the crop.
45.12.2.2. A minimum of two inspections shall be performed on each nuclear seed lot entered for certification.
45.12.3. Required Testing.
45.12.3.1. Nuclear crops shall test free of the following pathogens: PVA, PVY, PVX, PLRV, Clavibacter michiganensis subsp. sepedonicus, Pectobacterium spp.
45.12.3.2. Testing must be done on a representative sample consisting of 1% of the plants or tubers with a minimum of five plants or tubers sampled per lot.
45.12.3.3. Units or lots in greenhouse production found to be infected with any of the organisms indicated above shall be downgraded or rejected, as appropriate, as outlined in subsection 45.7 of this rule.
45.13. Storage Facility Requirements
45.13.1. Storage inspections may be conducted at any time on all storage facilities containing seed potatoes eligible for certification.
45.13.1.1. Seed potatoes shall be stored in sanitized storage areas after harvest and shall not be stored in the same storage facility with potatoes known to be infected with bacterial ring rot and root knot nematode.
45.13.1.2. Each lot of seed potatoes shall be harvested, graded, and stored separately in such a manner as to preclude intermixing.
45.13.1.3. Each lot of stored seed potatoes shall be clearly identified in a manner approved by the WVDA.
45.13.1.4. All containers shall be new for Nuclear and FY1. Containers for FY2, FY3, FY4, FY5, FY6, and FY7 shall be cleaned and sanitized if they have been previously contained potatoes.
45.13.1.5. Storage where sprout inhibitors were used in the previous season is not to be used to store certified seed potatoes.
45.14. Grade Requirements.
45.14.1. Blue Tag Seed Potatoes.
45.14.1.1. The Blue Tag is equivalent to U.S. No. 1 seed potato grade.
45.14.1.2. The Blue Tag will carry the information of producer’s name, address, variety, certification number, seed class or other variations, and the crop date for which the tags were issued.
45.14.2. Green Tag Seed Potatoes.
45.14.2.1. The Green Tag is equivalent to U.S. No. 2 seed potato grade.
45.14.2.2. The Green Tag will carry the information of producer’s name, address, variety, certification number, seed class or other variations, and the crop date for which the tags were issued.
Series 40 WV Exempted Dairy Farms and Milk and Milk Products Processing Rules
W. Va. Code R. § 61-40-1 General
1.1. Scope. – This legislative rule establishes operating rules and procedures for West Virginia dairy farms producing pasteurized milk that do not meet the Grade A PMO or the Manufacture Grade Milk in the state, and from which all milk and dairy products are to be sold only in the state of West Virginia.
1.2. Authority. – W. Va. Code §19-11E-8.
1.3. Filing Date. – May 14, 2026.
1.4. Effective Date. – May 14, 2026.
1.5. Sunset Date. – The sunset provision must terminate the rule on August 1, 2031.
W. Va. Code R. § 61-40-2 Definitions
2.1. “Commissioner” means the Commissioner of Agriculture of the State of West Virginia or his or her duly authorized agent or designee.
2.2. “Acceptable milk” means milk, or cream from the milk, which meets the requirements as to sight and odor, sediments, bacterial content, inhibitory substances, and which has been produced in compliance with the provisions set forth in this Rule.
2.3. “Barnyard” means an enclosed or unenclosed area adjacent to the milking barn which may include housing areas and feedlots in which the animals may congregate.
2.4. “Dairy farm” or “farm” means a place or premises where one or more milking animals are kept, a part or all of the milk produced on the farm being used in the production of milk or dairy products by the incorporation of approved methods.
2.5. “Inspection” means the inspection of the dairy farm premises, buildings, animals, equipment, utensils, water supply, and facilities and procedures used in the production of milk and/or dairy products solely in the state of West Virginia.
2.6. “Inspector” means a qualified, trained person employed by the West Virginia Department of Agriculture or any person designated by the Commissioner to inspect dairy farms and processing facilities.
2.7. “Inhibitory substances” means antibiotics and pesticides not registered for use on lactating dairy animals, and other substances as determined by the Commissioner.
2.8. “Milk” means the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy mammals. The term may include the components of milk, including cream. For the purposes of this rule, the term “milk” does not include raw milk.
2.9. “Milkhouse” or “milkroom” means a room at the facility for handling and cooling milk and for washing and storing milking equipment and utensils.
2.10. “Person” means any individual, firm, co-partnership, corporation, cooperative association, cooperative corporation or unincorporated association.
2.11. “Producer” means the person or persons who exercise control over the production of milk on a West Virginia dairy farm, where the milk or the cream from the milk is used to manufacture fluid milk or dairy products.
2.12. “Sanitize” or “sanitization” means the application of any effective method or substance to properly cleaned surfaces for the destruction of pathogens, and other microorganisms, as far as is practicable. Such method or substance shall not adversely affect the equipment, the milk and/or milk product, or the health of consumers, and shall be acceptable to the Commissioner.
2.13. “Milk Products” means all milk and milk products with a standard of identity provided for in 21 CFR Part 131, excluding 21 CFR 131.120 Sweetened Condensed Milk, cottage cheese and dry curd cottage cheese, whey and whey products, modified versions of all the preceding products, modified versions of milk products packaged in combination with food(s) not yet included in this definition that are appropriately labeled with a statement of identity to describe the food(s) in final packaged form, e.g., “cottage cheese with pineapple” and “fat free milk with plant sterols”, and all other products deemed a dairy product by the commissioner. For the purpose of this rule, Cheese and Related Cheese Products shall be included as a milk product.
2.14. “Cheeses and Related Cheese Products” means those items set forth in Title 21 Food and Drugs Chapter 1 Food and Drug Administration Department of Health and Human Services Subchapter B Food for Human Consumption Part 133 Cheeses and Related Cheese Products Subpart A- General Provisions and Subpart B- Requirements for Specific Standardized Cheese and Related Products.
2.15. “Pasteurization”, “pasteurized”, or similar terms means the process of heating every particle of milk or milk product, in properly designed and operated equipment, to one (1) of the temperatures given in this rule.
2.16. “Milk and milk products processing facility” means any place, premises, or establishment where milk or milk products are collected, handled, processed, stored, pasteurized, ultra-pasteurized, aseptically processed and packaged, retort processed after packaged, condensed, dried, packaged, or prepared for distribution in West Virginia.
W. Va. Code R. § 61-40-3 Minimum quality standards
3.1. Acceptable milk for the manufacture of milk and/or dairy products shall meet the following standards:
3.1.1. Sight and odor: The milk shall be free from visible foreign matter. It shall not be curdled, ropy, bloody, or mastitic as indicated by sight or odor. It shall be free from feed odors or other objectionable odors;
3.1.2. Temperature: Milk shall be cooled to 45 degrees Fahrenheit or lower within two hours after milking and shall be maintained at 45 degrees Fahrenheit or lower until shipped or used to manufacture milk products;
3.1.3. Bacterial limits: Milk from an individual producer shall not exceed 1,000,000 bacterial count per milliliter as determined by standard plate count;
3.1.4. Inhibitory substances: No inhibitory substances are permitted in milk; and
3.1.5. Sediment: Milk should not have more than 1.5 mg of sediment as determined by the Standard Methods for the Examination of Dairy Products.
W. Va. Code R. § 61-40-4 Minimum testing requirements
4.1. At least once each month at irregular intervals the producer shall take samples of the milk. The samples shall be tested for compliance with the standards set forth in this rule and are subject to the abnormal milk provisions of this rule. Additional samples may also be collected by an inspector.
4.2. Samples shall be analyzed at an approved official or officially designated laboratory. All sampling procedures and required laboratory examinations shall be in substantial compliance with rules set forth by the Commissioner.
4.3. The Commissioner should arrange to visit each producer who continually does not meet the requirements for acceptable milk, for the purpose of inspecting equipment, utensils, and facilities at the farm and to offer constructive assistance for improvement in the quality of the milk.
4.4. Concurrent with all test results made to a producer regarding bacteria counts, sediment, or inhibited substances, the laboratory shall send a copy of the results to the Commissioner.
W. Va. Code R. § 61-40-5 Inhibitory substances
5.1. If the milk from a dairy farm contains an inhibitory substance, the producer shall not use any more milk produced by such farm for at least two days following the test to ship or manufacture milk products. The producer shall not use any more milk until the production from the farm has been found to be free of inhibitory substances. The two-day exclusionary provisions cited shall be increased to three days for a repeat violation within six months and shall be increased to four days for subsequent violations within that period.
W. Va. Code R. § 61-40-6 Abnormal milk
6.1. A producer shall not use for manufacturing any milk which is found to be abnormal by sight or odor, which is from animals that show evidence of the secretion of abnormal milk in one or more quarters, or which is from animals that have consumed chemical, medicinal, or radioactive agents that may be secreted in the milk.
6.2. Equipment, containers, and utensils used to handle abnormal milk shall be cleaned and sanitized by the producer before they are used for milk for manufacturing purposes. The equipment shall meet the construction requirements set forth in this Rule.
6.3. Milk from animals treated with or exposed to pesticides not approved for use on dairy animals by the U. S. Environmental Protection Agency shall not be used for manufacturing purposes until the milk has been tested and found acceptable by the Commissioner.
6.4. When a confirmatory test on a routine sample indicates a somatic cell count above 1,000,000 cells per milliliter, the Commissioner shall send written notification of the unsatisfactory cell count to the producer.
6.5. When two out of the last four routine samples have a somatic cell count above 1,000,000 cells per milliliter, the Commissioner shall send a written notice of the counts to the producer and a representative of the Commissioner shall contact the producer to endeavor to determine and eliminate the source of the violative cell count.
W. Va. Code R. § 61-40-7 Adulteration
7.1. Milk is considered to be adulterated if it contains any poisonous or deleterious substances, does not meet the quality standards set forth in this rule, has been produced, processed, or held under unsanitary conditions, contains added water, contains bacteria in excess of those standards set forth in this rule, or contains any substances other than milk that are not a milk supplement or milk additive approved by the FDA.
7.2. The producer shall not use milk if it is adulterated.
W. Va. Code R. § 61-40-8 Milking bar or parlor construction and maintenance
8.1. Each farm shall have a milking barn or milking parlor of adequate size and arrangement to permit normal sanitary milking operations. Such milking barn or parlor shall be well lighted and ventilated, and the floors and gutters in the milking area shall be constructed of concrete or other impervious material. The milking barn or parlor construction must be approved by the commissioner before milking can begin.
8.2. The milking barn or parlor shall be kept clean, with the manure removed daily and stored to prevent access of animals to the accumulation of the manure. No swine, fowl or other domestic or wild animals shall be permitted in any part of the milking area.
8.3. If milk is exposed during straining or transferring in the milking areas it shall be protected from falling particles from areas above the milking facility.
W. Va. Code R. § 61-40-9 Milking barn or parlor cleanliness
9.1. The interior of the milking barn or parlor shall meet the following standards of cleanliness:
9.1.1. The interior of the facilities shall be kept clean;
9.1.2. The bedding material, if used, shall not contain more manure than that which has accumulated since the previous milking;
9.1.3. The gutter shall be kept reasonably clean, with manure removed daily; and
9.1.4. All pens and stalls, if not separated from the milking barn or parlor shall be kept clean.
W. Va. Code R. § 61-40-10 Barnyard
10.1. A barnyard shall meet the following requirements:
10.1.1. The barnyard shall be graded and drained. Depressions and soggy areas shall be filled and lanes shall be reasonably dry.
10.1.2. Approaches to the barn door and the surroundings of stock watering and feeding stations shall be solid to the footing of the animals.
10.1.3. Wastes from the barn or milkhouse shall not be allowed to pool in the barnyard. Barnyards which are muddy due to recent rains do not violate this section.
10.1.4. Manure, soiled bedding, and waste feed shall not be stored or permitted to accumulate in the barnyard in such a manner as to permit the soiling of udders and flanks. Housing areas (stables without stanchions, such as loose-housing stables, pen stables, resting barns, holding barns, loafing sheds, wandering sheds, free-stall housing) are considered a part of the barnyard. Manure packs shall be solid to the footing of the animal.
10.1.5. Barnyards shall be kept reasonably free of droppings. Droppings shall not be allowed to accumulate in piles that are accessible to the animals.
10.1.6. The yard or loafing area shall be of ample size to prevent overcrowding.
W. Va. Code R. § 61-40-11 Milkhouse construction and facilities
11.1. The producer may provide a milkhouse conveniently located and properly constructed, lighted, and ventilated for handling and cooling milk and for washing, handling, and storing the equipment and utensils. Other products which would be likely to contaminate milk, or otherwise create a public health hazard, shall not be handled in the milkhouse.
11.2. If the farm has a milkhouse, it shall meet the following construction requirements:
11.2.1. The milkhouse shall be equipped with wash and rinse vats and a utensil rack and have an adequate supply of hot and cold water available for cleaning milking equipment. If the milkhouse is part of the barn or other building, it shall be partitioned, screened, and sealed to prevent the entrance of dust, flies, or other contamination. A milking parlor used strictly as a milking facility in combination with a milkhouse, when properly equipped, arranged and maintained, need not be partitioned.
11.2.2. Concentrates and feed, if stored in the building, shall be kept in a tightly covered box or bin.
11.2.3. The floor of the building may be of concrete or other impervious material. The floor slopes shall drain so that there are no pools of standing water. The joints between the floor and the walls shall be watertight.
11.2.4. The liquid wastes shall be disposed of in a sanitary manner. All floor drains shall be accessible and shall be trapped if connected to a sanitary sewer.
11.2.5. Walls and ceilings shall be constructed of smooth dressed lumber or similar material, be well painted with a light-colored washable paint, and be in good repair. Surfaces and joints shall be tight and smooth. Sheet metal, tiles, cement block, brick, concrete, cement plaster, or similar materials of light color may be used as long as the surfaces and joints are smooth and easily cleaned.
11.2.6. Windows and solid doors shall be closed during dusty weather. Windows and doors shall be properly screened. All outside doors shall open outward and have effective means to prevent the entrance of flies.
11.2.7. The milkhouse shall be adequately ventilated to minimize odors and condensation on floors, walls, ceilings, and clean utensils.
11.2.8. Vents and light fixtures shall be installed in a manner to prevent the contamination of milk and clean utensils.
11.2.9. There shall be no direct opening into any barn, stable, or room used for domestic purposes, except that an opening between the milkhouse and milking parlor is permitted when a tight fitting, self-closing, solid door, hinged to be single or double acting, is present.
W. Va. Code R. § 61-40-12 Milkhouse cleanliness
12.1. If the farm has a milkhouse, the producer shall meet the following requirements:
12.1.1. The milkhouse structure, equipment, and other milkhouse facilities shall be kept clean at all times.
12.1.2. The milkhouse and its appurtenances shall be free of trash, animals, and fowl.
12.1.3. Pesticides or unapproved antibiotics shall not be stored in the milkhouse. When pesticides or antibiotics are used, they shall be used in accordance with label instructions so as to prevent contamination of the milk.
W. Va. Code R. § 61-40-13 Milking utensils and equipment - construction, cleaning, storage, and handling
13.1. Construction of utensils and equipment shall meet the following requirements:
13.1.1. All multiuse utensils, equipment, and containers which are exposed to milk or milk products shall be made of smooth, impervious, nonabsorbent, safe materials of the following types:
13.1.1.a. Stainless steel of the AISI (American Iron and Steel Institute) 300 series;
13.1.1.b. Equally corrosion resistant nontoxic metal;
13.1.1.c. Heat resistant glass; or
13.1.1.d. Plastic or rubber and rubber like materials which are relatively inert, resistant to scratching, scoring, decomposition crazing, chipping, and distortion under normal use conditions. The materials shall be nontoxic, fat resistant, relatively nonabsorbent, relatively insoluble, and may not release component chemicals or impart flavor or odor to the product. The materials shall maintain their original properties under repeated use conditions.
13.1.2. Single-service articles shall be manufactured, packaged, transported, and handled in a sanitary manner.
13.1.3. Articles intended for single-service use shall not be reused.
13.1.4. All containers, equipment, and utensils shall be free of breaks and corrosion.
13.1.5. All joints in the containers, equipment, and utensils shall be smooth and free from pits, cracks, and inclusions.
13.1.6. Strainers shall be of perforated metal design or constructed to utilize single-service strainer media.
13.1.7. All milking machines, including heads, milk claws, milk tubing, and other milk contact surfaces, shall be easily cleaned and inspected.
13.2. Utensils and equipment shall meet the following cleanliness requirements:
13.2.1. The contact surfaces of all multiuse containers, equipment, and utensils used in the handling, storage, or transportation of milk or milk products shall be cleaned after each use.
13.2.2. The contact surfaces of all multiuse containers, equipment, and utensils shall be sanitized immediately prior to use for the handling, storage, or transportation of milk or milk products.
13.3. Utensils and equipment shall be stored in the following manner:
13.3.1. All milk containers, utensils, and equipment, including milking machine vacuum hoses, shall be stored in a sanitizing solution or on racks until used.
13.3.2. All milk containers, utensils and equipment shall be stored in a clean and properly ventilated area.
13.3.3. Equipment shall be stored to drain completely.
13.3.4. Strainer pads, gaskets, and similar single-service articles shall be stored in a suitable container or cabinet and protected against contamination.
13.4. Utensils and equipment handling shall meet the following requirements:
13.4.1. After sanitation, all containers, utensils and equipment shall be handled in such a manner as to prevent contamination of any product contact surface.
13.4.2. Sanitized product contact surfaces shall be protected against contact with unsanitized equipment and utensils, hands, clothing, splash, condensation, and other sources of contamination.
13.4.3. Any sanitized product contact surface which has been exposed to contamination shall be cleaned and sanitized again prior to being used.
W. Va. Code R. § 61-40-14 Milking - flanks, udders, and teats
14.1. Milking practices shall meet the following requirements:
14.1.1. Milking shall be done in an approved milking barn or parlor.
14.1.2. The animals’ hair on flanks, bellies, tails, and udders shall be shortened as often as necessary to facilitate cleaning of those areas and shall be free from dirt. The hair on the udders shall be of such length that it is not incorporated with the teat in the inflation during milking, or as to adulterate the milk in any manner.
14.1.3. Udders and teats of all milking animals shall be cleaned and treated with a sanitizing solution and shall be relatively dry just prior to milking.
14.1.4. Wet hand milking will be allowed when approved by the Commissioner.
W. Va. Code R. § 61-40-15 Milking - surcingles, milk stools, and anti-kickers
15.1. Surcingles, milk stools, and anti-kickers shall be kept clean and shall be stored above the floor in a clean place in the milking barn, stable, parlor, or milkhouse when not in use.
W. Va. Code R. § 61-40-16 Protection from contamination
16.1. Protection from contamination requires compliance with the following:
16.1.1. Equipment and operations shall be located within the milking barn and milkhouse to prevent overcrowding and contamination of cleaned and sanitized containers, equipment, and utensils by splash, condensation, or manual contact.
16.1.2. All milk which has overflowed, leaked, spilled, or been improperly handled shall be discarded.
16.1.3. All product contact surfaces of containers, equipment, and utensils shall be covered or otherwise protected to prevent the access of insects, dust, condensation, and other contamination.
16.1.4. When milk is poured or strained in the milking barn, the receiving receptacle shall be raised above the floor (as on a dolly or cart) or placed at a distance from the animals to protect it from manure or splash. The receptacle shall have a tight-fitting cover which shall be closed except when milk is being poured.
16.1.5. Each pail or container of milk shall be transferred immediately from the milking barn to the refrigerated storage facility.
16.1.6. Pails, cans, and other equipment containing milk shall be properly covered during transfer and storage.
16.1.7. Antibiotics and medicines shall be stored in such a manner that they cannot contaminate the milk or milk product contact surfaces of the equipment, containers, or utensils.
W. Va. Code R. § 61-40-17 Personnel - hand washing facilities
17.1. The following hand washing facilities for personnel are required:
17.1.1. Hand washing facilities shall be located convenient to the milking barn, parlor, or flush toilet.
17.1.2. Hand washing facilities shall include soap or detergent, water, and single use towels.
17.1.3. Hand washing facilities shall be kept in good repair, clean, and shall not be used for storage.
W. Va. Code R. § 61-40-18 Personnel – cleanliness and health
18.1. All persons shall comply with the following:
18.1.1. Hands shall be washed clean and dried with a sanitary towel immediately before milking, before performing any milkhouse function, and immediately after the interruption of any of these activities.
18.1.2. Any person milking an animal shall wear clean outer garments while milking or handling milk, milk products, milk containers, equipment or utensils;
18.1.3. No person affected with any disease in a communicable form, or while a carrier of such disease, shall work at any dairy farm or milk products facility in any capacity which brings him or her into contact with the production, handling, storage, or transportation of milk or milk products, containers, equipment, or utensils. No dairy farm operator or milk products producer shall employ in any capacity any person having or suspected of having a disease in a communicable form, or being a carrier of such disease. Any producer who suspects that any employee or family member has contracted any disease in a communicable form, or has become a carrier of the disease, shall notify the Commissioner immediately.
18.1.4. When reasonable cause exists to suspect the possibility of transmission of infection from any person handling milk or milk products, the Commissioner may require any or all of the following measures:
18.1.4.a. The immediate exclusion of the affected person from milk or milk products handling;
18.1.4.b. The immediate exclusion of the milk or cheese supply concerned from distribution and use; and
18.1.4.c. Adequate medical and bacteriological examination of the person, and of his or her associates.
W. Va. Code R. § 61-40-19 Insect and rodent control
19.1. Effective measures shall be taken to prevent the contamination of milk and milk products, containers, equipment, and utensils by insects or rodents, and by chemicals used to control the vermin.
19.2. Manure packs in loafing areas, stables without stanchions, pen stables, resting barns, wandering sheds and free stall housing shall be properly bedded and managed to prevent fly breeding.
19.3. Milkhouses and all buildings shall be kept free of insects and rodents.
19.4. Milkhouses and all buildings shall be effectively protected against the entrance of vermin.
19.5. Insecticides not approved for use in a milkhouse or dairy facility shall not be stored in such facilities.
19.6. Only insecticides and rodenticides approved for use by the Commissioner and registered with the United States Environmental Protection Agency shall be used for insect and rodent control.
19.7. Insecticides and rodenticides shall be used only in accordance with the manufacturer’s label directions so as to prevent the contamination of milk and milk products, containers, equipment, utensils, feed and water.
W. Va. Code R. § 61-40-20 Farm inspection
20.1. Each farm shall be inspected for compliance with this rule at least once a year. Inspections may be conducted more frequently if necessary, to achieve compliance with the provisions of this Rule, or as deemed necessary by the commissioner.
W. Va. Code R. § 61-40-21 Animal health
21.1. All animals’ milk for processing milk or milk products shall be from herds under a brucellosis eradication program which meets one of the following conditions, or eradication program for animal health:
21.1.1. The herd is located in a Certified Brucellosis-Free Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
21.1.2. The herd is located in a Modified Certified Brucellosis Area as defined by the United States Department of Agriculture and enrolled in the testing program for the areas;
21.1.3. The herd meets United States Department of Agriculture requirements for an individually certified herd;
21.1.4. The herd is participating in a milk ring testing program which is conducted on a continuing basis at intervals of not less than every three (3) months or more than every six (6) months with individual blood tests on all animals in herds showing suspicious reactions to the milk ring test; or
21.1.5. The herd has an individual blood agglutination test annually with an allowable maximum grace period not exceeding two (2) months.
21.2. All animals’ milk for manufacturing milk products shall be from herds which are located in a Modified Accredited Tuberculosis Area as determined by the United States Department of Agriculture. A Modified Accredited Tuberculosis Area requires all dairy herds to be tested every six (6) years with an allowable maximum grace period of two (2) months. Herds located in an area that fails to maintain accredited status shall be accredited by the United State Department of Agriculture as tuberculosis free, or shall pass an annual tuberculosis test.
21.3. For diseases other than brucellosis and tuberculosis the Commissioner may require any physical, bacteriological, or chemical tests he or she determines necessary. The diagnosis of other diseases in dairy animals shall be based upon the findings of a licensed veterinarian or a veterinarian in the employ of the Commissioner. Any producer owning a diseased animal disclosed by the test shall dispose of the animal as the Commissioner directs.
W. Va. Code R. § 61-40-22 Farm exclusion
22.1. No farm shall process milk or milk products using raw milk from a dairy farm that is not in compliance with the provisions of this Rule. Raw milk is allowable only under WV Code 19-1-7.
22.2. In the event of noncompliance with this Rule or in the event of a refusal by a producer to allow an inspection of the dairy farm by an inspector of the West Virginia Department of Agriculture or designee, the milk from the dairy farm shall not be used to process milk or milk products until such time as the farm is found to be in compliance and/or access to inspect the dairy farm is permitted.
W. Va. Code R. § 61-40-23 Milk and milk products processing facility
23.1. The milk and milk products processing facility shall meet the following construction and facility requirements:
23.1.1. A milk and milk products facility shall be conveniently located and properly constructed, lighted, and ventilated to prevent any contamination of milk or milk products, ingredients, containers, utensils, and equipment. Walls and ceilings shall be finished with smooth, washable, impervious materials, and shall be kept in good repair.
23.1.2. Products which would be likely to contaminate milk or milk products or otherwise create a health hazard shall not be handled in the milk products facility.
23.1.3. The milk and milk products facility shall be equipped to provide for the washing and sanitizing of equipment and utensils with an adequate supply of hot and cold water; All sanitary piping, fittings and connections which are exposed to milk and milk products or from which liquids may drip, drain or be drawn into milk and milk products shall consist of smooth, impervious, corrosion-resistant, non-toxic, easily cleanable material, which is approved for milk product-contact surfaces. All piping shall be in good repair. Pasteurized milk and milk products shall be conducted from one piece of equipment to another only through sanitary piping.
23.1.4. The liquid wastes shall be disposed of in a sanitary manner. All drains shall be trapped if connected to a sanitary sewer.
23.1.5. The milk products facility shall be constructed in a manner which will provide for adequate cleaning of ceilings, walls, and floors; all doors and windows shall be provided to prevent the access of insects and rodents. All openings shall have solid doors and adequate windows.
23.1.6 All rooms for processing milk and milk products shall be separate, and not direct entry into a stable, holding area, or other room used for domestic purposes.
23.1.7. Only equipment directly related to processing operations or the handling of containers, utensils and equipment is permitted in the pasteurizing, processing, cooling, condensing, drying, packaging, and bulk milk or milk product storage rooms.
23.1.8. All piping, floors, walls, ceilings, fans, shelves, tables and the non-product-contact surfaces of other facilities and equipment shall be clean.
23.1.9. No trash, solid waste or waste dry product shall be stored within the milk plant, except in covered containers. Waste containers at the packaging machine or bottle washer may be uncovered during the operation of such equipment.
23.1.10. The product-contact surfaces of all multi-use containers, utensils and equipment used in the transportation, processing, condensing, drying, packaging, handling, and storage of milk or milk products shall be effectively cleaned and shall be sanitized before each use.
23.1.11. After cleaning, all multi-use milk or milk product containers, utensils and equipment shall be transported and stored to assure complete drainage and shall be protected from contamination before use.
23.1.12. Receiving and dump vats shall be completely covered, except during washing and sanitizing, and when milk is being dumped. Where strainers are used, the cover for the vat opening shall be designed to cover the opening with the strainer in place.
23.1.13. All milk or milk products or ingredients that have been spilled, overflowed, mishandled or leaked shall be discarded, including all products drained from processing equipment and the end of a run, or otherwise not used in the original processing of milk or milk products.
W. Va. Code R. § 61-40-24 Water supply
24.1. Any dairy farm or milk and milk products processing facility’s water supply shall be properly located, protected, and operated. It shall be easily accessible, ample, and of safe sanitary quality for the cleaning of dairy utensils and equipment. The water supply shall come from an approved public source or from a spring, dug well, driven well, bored well, or drilled well, that complies with the standards of the West Virginia Department of Health and Human Resources.
24.2. Water samples will be taken and tested to meet standards set by the Commissioner.
W. Va. Code R. § 61-40-25 Pasteurization of milk and milk products
25.1. All milk and milk products, except eggnog, shall be pasteurized to one (1) of the temperatures given in the following chart and held continuously at or above that temperature for at least the corresponding specified time: *If the fat content of the milk product is ten percent (10%) or greater, or a total solids of 18% or greater, or if it contains added sweeteners, the specified temperature shall be increased by 3°C (5°F).
25.2. Eggnog shall be heated to at least the following temperature and time specifications:
25.3. There shall be no physical connection between unpasteurized products, dairy, non-dairy, or water, and pasteurized milk or milk products. Pasteurized non-dairy products not completely separated from pasteurized milk and milk products shall be pasteurized in properly designed and operated equipment at times and temperatures which meet at least the minimum times and temperatures provided for in the definition of Pasteurization.
25.4. Water that comes in contact with pasteurized milk and/or milk products shall:
25.4.1. Meet at least the minimum times and temperatures provided for in the definition of Pasteurization in equipment, or
25.4.2. Have undergone an equivalent process found acceptable by the WVDA
25.5. A producer must provide means to prevent contamination of milk and/or milk products, containers, utensils and equipment by drippings, spillage and splash from overhead piping, platforms or mezzanines.
25.6. In no case shall pasteurized milk or milk products be standardized with unpasteurized milk or milk products, unless the standardized milk or milk product is subsequently pasteurized.
25.7. Reconstituted or recombined milk and milk products shall be pasteurized after reconstitution or recombining of all ingredients.
W. Va. Code R. § 61-40-26 Food allergens
26.1. A milk or milk product processing facility shall:
26.1.1. Ensure the protection of milk and/or milk products from allergen cross-contact, including during storage, handling and use.
26.1.2. Label the finished milk and/or milk products, ensuring that the finished milk and/or milk products is not misbranded under Section 403(w) of the Federal Food, Drug and Cosmetic Act with an undeclared food allergen.
26.1.3. Prevent food allergen cross-contact between insanitary objects, personnel, and non-milk allergen-containing foods and milk and/or milk products, milk and/or milk products packaging material and other milk and/or milk product-contact surfaces.
26.2. Raw materials and ingredients that are food allergens, and rework that contains food allergens, shall be identified and held in a manner that prevents food allergen cross-contact.
W. Va. Code R. § 61-40-27 Holding and distribution of human food by-product for use as animal food
27.1. Human food by-products held for distribution as animal food without additional manufacturing or processing by the milk plant shall be held under conditions that will protect against contamination as appropriate for their final use in animal food.
27.2. Labeling that identifies the by-product shall be affixed to or accompany human food by-products for use as animal food when distributed.
27.3. Shipping containers (e.g., totes, drums, tubs, etc.) and bulk vehicles used to distribute human food by-products for use as animal food shall be appropriate for transporting human food by-products for use as animal food and protecting against contamination during transport.
W. Va. Code R. § 61-40-28 Permit to operate
28.1. It is unlawful for any person who does not possess a permit from the Department of Agriculture to operate a dairy farm or a milk and milk products processing facility which produces and offers for sale milk or milk products as covered under the provisions of this Rule.
28.2. The producer and the milk or milk products processing facility shall apply for a permit on forms prescribed and furnished by the Commissioner. All permits expire December 31 of each year.
W. Va. Code R. § 61-40-29 Labeling of Milk and Milk Products
29.1. Milk or milk products offered for sale shall have the following information on the label:
29.1.1. Product Identity. Product identity shall include the common or usual name of the product, the name established for that product by law or regulation, or a descriptive name of the product when the nature of the food is obvious.
29.1.2. Net Quantity. Net quantity must be included on each container or package.
29.1.2.1. For all milk products other than fluid milk products and ice cream, the net quantity must be listed in ounces and be preceded by the phrase “Net Weight”.
29.1.2.2. Labels for fluid milk products and ice cream do not need to include the wording “net weight” and may list net quantity in terms of pints, quarts, or gallons, as appropriate.
29.1.3. Name and Address of the Manufacturer. The address listed should be the address where the milk or milk product is pasteurized, ultra-pasteurized, aseptically processed or packaged, retorted after packaging, or condensed and/or dried.
29.1.4. Identifying Numbers. Each container or package shall have a code number, lot number, or other mark identifying the contents of the package with a specific date, run, or batch of the product.
29.1.5. Dates. Each container or package shall have a “packaged on” or expiration date.
29.1.6. Refrigeration Information. The words “Keep Refrigerated”, or “Keep Refrigerated After Opening” in the case of aseptically processed and packaged low-acid milk and/or milk products and retort processed after packaging low-acid milk and/or milk products, must be included on each product.
29.1.7. Animal Source. The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is, or is produced with, the milk of any animal other than cattle. For example, “Goat Milk”, “Sheep Milk”, “Water Buffalo Milk”, or “Camel Milk”, or “Goat Ice Cream”, “Sheep Butter”, “Camel Cream”, etc. would be appropriate labels.
29.1.8. West Virginia Exempt Dairy Product Status. The words “A WV Exempt Dairy Product”, a “West Virginia Exempt Dairy Product,” or some other approved language indicating that the milk or milk product was produced under the authority granted by this rule must be on the label in a font and size consistent with, or larger than, the fonts used elsewhere on the label of the container or package.
29.1.9. Ingredients List (for products containing more than one ingredient). All ingredients shall be listed in descending order by predominance of weight. Multi- component ingredients may be listed parenthetically unless the weight is known on each sub ingredient.
29.1.10. Allergens. Allergen labeling is required if one of the major allergens, as identified by the FDA, is not listed by its common or usual name in the ingredient list. All allergens can be listed after the ingredient list by placing the words “Contains:” followed by the common name of the food allergen.
29.1.11. Any additional information required by the commissioner.
Series 41 Raw Milk
W. Va. Code R. § 61-41-1 General
Scope. -- This rule implements the provisions set forth in W. Va. Code §19-1-7 regarding the sale of raw milk in the State of West Virginia.
Authority. -- W. Va. Code §19-1-7 Filing Date. -- May 8, 2025 Effective Date. -- May 8, 2025 Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2029.
W. Va. Code R. § 61-41-2 Definitions
2.1. “Commissioner” means the Commissioner of Agriculture or his or her designee.
2.2 “Date of production” means the date on which the raw milk was secreted from the mammal or date on which the raw milk product were made.
2.3 “Department” means the West Virginia Department of Agriculture and its employees.
2.4 “Raw milk” means milk that has not been pasteurized in accordance with 21 C.F.R. §1240.61.
2.5. “Raw Milk Product” means any product derived directly by raw milk or is part of what is secreted from the mammal, including, but not limited to: raw milk, skimmed milk, cream, and such product that otherwise come from the raw milk or mammal itself and do not require further processing.
2.6. “Seller” means a person or entity offering for sale raw milk to a consumer.
2.7. “Sale” means any method of transaction used by a seller, including, but not limited to, the following means: allotting shares, bartering, exchanging, exposing for the purposes of sale, giving, offering for sale, parceling out, or dispensing raw milk.
W. Va. Code R. § 61-41-3 Labeling
3.1. All container of raw milk and raw milk product shall have a label affixed, and such label shall clearly indicate the following: “unpasteurized raw milk.”
3.2. The label shall be in English, with legible print, with the size of such print being easily readable and without smudging or potential for smudging (e.g., by use of a waterproof ink, label, or by other impermeable means of printing the label.
3.3. The label shall include the following warning: “consuming unpasteurized raw milk may increase your risk of foodborne illness, especially for children, elderly, immunocompromised individuals, and persons with certain medical conditions.”
3.4. The label shall contain the following information:
3.4.a. The name and physical address of the seller;
3.4.b. The date of production; and
3.4.c. The content(s) of the container and quantity of such content.
W. Va. Code R. § 61-41-4 Handling and transport
4.1. It is lawful to transport, sell, and possess raw milk and raw milk products within the State of West Virginia (intrastate).
4.2 Raw milk and any raw milk product intended for sale shall be stored in a device or system that maintains a temperature of 35 to 40 degrees Fahrenheit until the exchange of sale.
W. Va. Code R. § 61-41-5 Adulteration
5.1 Any raw milk and any raw milk product shall be considered adulterated if:
5.1.a. It contains or otherwise exhibits a poisonous, infectious, deleterious substance, or compound in a quantity which may render it injurious to health; or
5.1.b. It contains or otherwise exhibits an added poisonous or deleterious substance for which no safe tolerance has been established by federal law or regulation, or which is found to exist in the product at levels which are more than a legally established tolerance; or
5.1.c. It contains a substance which is added thereto to make it appear better or of greater value than it is.
5.2. Any complaints or illnesses relating to the adulteration of raw milk and any raw milk product, if received by the Department, shall be referred to the appropriate contact or division of the West Virginia Department of Health (“WVDH”) for evaluation as to health concerns, outcomes, or necessary action by health officials, and for further action otherwise necessary.
5.3. Not withstanding the provisions above, flavored raw milk and any flavored raw milk product shall not be considered adulterated so long as food-grade flavoring is used as the method for flavoring the raw milk or raw milk product.
Series 6B Primary And Secondary Containment Of Fertilizers (Technical Cleanup 10/11/95)
W. Va. Code R. § 19-15-1 et seq. (except for the net weight)
9.7. No person may store fluid fertilizers on land that has a reasonable expectation of having a flood event resulting from a 25 year - 24 hour frequency storm, as defined by the National Weather Service, during the storage period unless the storage area is adequately protected from inundation by flooding.
9.8. No person may construct an operational area for fluid fertilizers closer than 100 (one hundred) feet from a wellhead, unless that operation is in use on the effective date of this rule.
9.9. Any person owning an abandoned underground container, or abandoned underground catch basin shall thoroughly clean and remove it from the ground or thoroughly clean and fill it with an inert solid and shall maintain a permanent record of size, location, and method of closing at the storage facility or at the nearest office from which the storage facility is administered.
9.10. Any person owning an abandoned container or abandoned catch basin, whether underground or not, shall disconnect and seal all connections and vents and secure all hatches and sever and/or seal all valves and connections.
- 11. A secondary containment facility is not abandoned merely because there have been no operational spills into the secondary containment facility.
9.12. All facilities that are in operation on the effective date of this rule shall be permitted 3 (three) years to fully comply with this section of the rule when the operator submits a plan for full compliance with this section of the rule within 2 (two) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility. $61-6B-10. Operational Area Containment for Fluid Fertilizer
10.1. All fluid fertilizer shall be stored such that all loading and unloading of fluid bulk fertilizer shall be on an area which is curbed and paved with asphalt or concrete. The curbed and paved area shall provide an impervious surface and
10.1.1. be of sufficient size to hold the entire mobile container during loading and unloading; and
10.1.2. be designed, constructed and maintained to handle all loading conditions to which it is exposed; and
10.1.3. be maintained by keeping all cracks and seams sealed and be impervious to leakage from any spillage.
10.2. Materials other than asphalt and concrete may be used only after they have been approved by the commissioner.
10.3. This section shall not apply to mobile containers used to nurse field operations when at a field unloading site.
10.4. All operational area containments shall have a curbed and paved surface that drains into a liquid-tight catch basin
10.4.1. that is of adequate design and size to contain a minimum of one thousand five hundred (1,500) gallons of an operational spill when at least one person is available during the entire loading and unloading process that is capable of stopping the loading or unloading process in the case of an operational spill; when no person is available to monitor the loading and unloading, the design and size shall be adequate to contain a total of 110% of the volume of the largest vehicle to be loaded or unloaded; and
10.4.2. which may include a sump and an above-ground container, only when a pump is installed for transfers of the contents into the above-ground container.
10.5. All operators shall promptly recover any operational spill from the operational area containment so that the capacity required in this section is available at all times.
10.6. All operators shall maintain the operational containment area free of debris and foreign matter.
10.7. All facilities that are in operation on the effective date of this rule shall be permitted 3 (three) years to fully comply with this section of the rule as long as the operator submits a plan for full compliance with this section of the rule within 2 (two) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility. $61-6B-11. Secondary Containment of Fluid Bulk Fertilizer - Dikes and Elephant Rings.
11.1. All primary storage of fluid bulk fertilizers shall be located within a diked area constructed with a base, perimeter wall and sloped floor drain or within an elephant ring as provided by this section.
11.2. No person may use the diked area for storage of products other than fluid bulk fertilizers and equipment used in the operational area. Adjoining secondary containment areas may share common walls.
11.3. All operators must maintain the minimum capacity requirement at all times. The minimum capacity requirement for the diked area for containment shall contain, below the height of the dike, 125% of the volume of the largest storage container within the diked area plus the submerged portions of all other storage containers, fixtures, and materials in the area. (The minimum capacity when the diked area is covered to prevent the accumulation of rainfall is a capacity equal to 100% of the volume of the largest container. )
11.4. Except where used as a method of monitoring the integrity of a secondary containment system, drainage tile within or underlying the area to be diked shall be eliminated.
11.5. All dikes providing secondary containment shall meet the following requirements :
11.5.1. the walls of a secondary containment facility shall be constructed of earth, steel, concrete or solid masonry, or other material specifically approved by the commissioner, and be designed to withstand a full hydrostatic head of any discharged fluid and weight load of material used in construction;
11.5.2. cracks and seams shall be sealed to prevent leakage;
11.5.3. walls constructed of earth or other permeable materials shall be lined as provided in this section;
11.5.4. earthen walls shall have a horizontal-tovertical slope of at least 3 (three) to 1 (one), unless a steeper slope is consistent with good engineering practice, and shall be packed and protected from erosion;
11.5.5. the top of earthen walls shall be no less than
2.5 (two and one half) feet wide;
11.5.6. walls may exceed 6 (six) feet in height above interior grade only when provisions are made for normal access and necessary emergency access to tanks, valves and other equipment, and for safe exit from the secondary containment facility;
11.5.7. walls constructed of concrete or solid masonry shall rest upon a floating base of concrete prepared as in this
section or upon suitable concrete footings which extend below the average frost depth to provide structural integrity;
11.5.8. the base of a secondary containment facility, and any earthen walls of the facility shall be lined with asphalt, concrete, an approved synthetic liner, or a clay soil liner designed to limit permeability of the base and walls. Liners shall meet the following requirements.
a. Asphalt or concrete liners shall be designed to withstand any loading conditions, including a full hydrostatic head of discharged fluid and static loads of storage containers, including appurtenances, equipment, and contents, Cracks and seams shall be sealed to prevent leakage.
b. Synthetic liners and installation plans shall be approved by the commissioner. All requests for approval shall include a written confirmation from the manufacturer of suitability including compatibility with the stored materials, and a written estimate of the life of the liner. Synthetic liners shall have a minimum thickness of 30 (thirty) mils (0.8 millimeters) ; and shall be installed under the supervision of a qualified representative of the manufacturer or a professional engineer. All field constructed seams shall be tested, and repaired if necessary, in accordance with the manufacturer's recommendations.
C. Soil liners shall be constructed by sealing the surface of the soil, including the berm of an earthen dike with a sealing agent such as sodium bentonite, attapulgite or a similar clay material. The soil liner shall be constructed in accordance with civil engineering practices, to achieve a coefficient of permeability not to exceed 1.0 x 10 cm/sec, with a thickness of not less than 6 (six) inches. The floor of the containment area within the soil liner shall be protected with a layer of gravel or crushed stone at least 6 (six) inches thick placed on top of the clay liner.
11.6. A liner need not be installed directly under a storage container having a capacity of one hundred thousand (100,000) U.S. gallons or more which has been constructed on site and put into use prior to the effective date of this rule when an official of the company which owns the storage container certifies in writing to the commissioner that one of the following alternative procedures has been complied with.
11.6.1. Alternative 1: The original bottom of the storage container shall be tested for leaks before the sand layer and second bottom are installed. A second bottom made of steel shall be constructed for the storage container. The second bottom shall be placed over the original bottom and a layer of smooth, fine gravel or coarse sand having a minimum thickness of three (3) inches. The newly constructed bottom shall be tested for leaks before any fluid fertilizer is stored on the newly constructed bottom. A record of all tests shall be filed at the storage facility, or at the nearest local office from which the storage facility is administered.
11.6.2. Alternative 2: The container shall be emptied, cleaned, and tested for leaks. The walls and floor of the container shall be tested to assure that welds and thickness of steel plates are sound and adequate to contain the fertilizers. A record of the inspection, test results, and of any repairs made shall be submitted to the control official and maintained by the operator. The interior floor and wall areas of the container shall be coated with a liner to inhibit corrosion. A record of this procedure shall be submitted to the commissioner and maintained by the operator. A test for leaks and liner deterioration shall be conducted every five (5) years thereafter. A record of the test findings and of indicated repairs and maintenance shall be maintained by the operator.
11.6.3. Alternative 3: Monitoring devices shall be installed in angled borings under each tank. These monitoring devices shall constitute a leak detection system for each tank in advance of the point at which any leak would reach groundwater.
The number, length, and depth of each boring shall be determined on the basis of site characteristics. The array of monitoring devices under each tank shall constitute the best practical early warning detection system for tank leakage. Each monitoring plan under this alternative shall be implemented only upon review and approval of the commissioner.
11.7. Rail cars that are periodically moved into and out of the storage facility shall not be required to have secondary containment structures.
11.8. Individual storage containers not exceeding three thousand (3,000) gallons may be contained within an "elephant ring" in lieu of a diked secondary containment area only when:
11.8.1. both the primary storage container and the elephant ring are fabricated of material compatible with each other and with the fertilizer being stored;
11.8.2. provisions are made to prevent corrosion when dissimilar metals are used that may contribute to electrolytic corrosion between the primary storage container and the elephant ring;
11.8.3. the height of the elephant ring wall does not exceed 4 ( four) feet unless provisions are made for escape should flooding occur;
11.8.4. the volume contained within the secondary storage walls of the elephant ring up to the working height of the elephant ring is sufficient to contain a volume 15% (fifteen percent) greater than the volume contained in the primary storage container plus the volume displaced by the footings of any equipment (i.e. pumps, meters, etc. ) placed within the secondary containment vessel;
11.8.5. the elephant ring is maintained free of leaks and structural defects at all times;
11.8.6. the base is protected from corrosion, both from inside and outside the ring, and is underlain by a concrete pad or with eight inches of compacted gravel beneath four inches of compacted sand, or clay, or as recommended by the manufacturer of the elephant ring and approved by the commissioner;
11.8.7. all piping connections to the primary storage container are made over the wall of the elephant ring and are adequately supported and braced;
11.8.8. there is a sump pump within the elephant ring or an exterior portable pump available for removing operational discharges; and
11.8.9. pumps and other fixtures, if located within the elephant ring containment structure, are placed on an elevated platform above the top of the elephant ring or otherwise protected from flooding.
11.9. All facilities that are in operation on the effective date of this rule shall be permitted 3 (three) years to fully comply with this section of the rule as long as the operator submits a plan for full compliance with this section of the rule within 2 (two) years of the effective date of this rule and the operator takes immediate action to prevent groundwater pollution within the capability of the current facility. $61-6B-12. Drainage from Secondary Containment Areas.
12.1. No person may operate a diked secondary containment area with a relief outlet and valve.
12.2. All diked earthen or prefabricated secondary containment areas shall have a base that slopes to a collecting spot where storm water can be discharged by a manually-operated pump over the berm for use in the blending process or for proper disposal in accordance with local requirements for disposal of storm water.
12.3. All asphalt or concrete lined secondary containment areas shall
12.3.1. have a recessed catch drain running through the center of the base; or
12.3.2. have a sump located within the containment area, that shall have no valve plumbed into the sump unless that sump is a part of a permanent recessed catch drain as specified in this
section.
12.4. Storm water or other drainage may be removed from the secondary containment area when it is used for makeup water in fertilizer mixes or disposed of in accordance with local requirements when the water is free of chemical residues that could contaminate groundwater.
12.5. No operator may use a collection tank as a storage area.
12.6. All operators shall remove operational spills from the secondary containment area promptly. $61-6B-13. Hearings, penalties, orders and injunctive relief.
13.1. The commissioner may conduct hearings, assess civil administrative penalties, seek injunctive relief and issue orders in accordance with W. Va. Code $20-5M-10-and -$20 5M 11 $22-12-10 and $22-12-11. $61-6B-14. Special revenue account and Groundwater remediation fund.
14.1. All monies 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 $22- 12-10a or any civil administrative penalties collected pursuant to W. Va. Code $20-5M-tee $22-12-10c will be deposited in the groundwater remediation fund established in W. Va. Code S20-5M-± $22-12-1 et.seq.
Technical Clean LLP KEN HECHLER Secretary of State MARY P. RATLIFF Deputy Secretary of State STEPHEN N. REED Deputy Secretary of State CATHERINE FREROTTE Executive Assistant Telephone: (304) 558-6000 Corporations: (304) 558-8000 FAX: (304) 558-0900 .
STATE OF WEST VIRGINIA
SECRETARY OF STATE
Building 1, Suite 157-K 1900 Kanawha Blvd., East Charleston, WV 25305-0770 WILLIAM H. HARRINGTON Chief of Staff JUDY COOPER Director, Administrative Law PENNEY BARKER Supervisor, Corporations (Plus all the volunteer help we can get)
TO: DAVID E MILLER
AGENCY :
AGRICULTURE
FROM: JUDY COOPER, DIRECTOR, ADMINISTRATIVE LAW DIVISION
DATE: June 10, 1996 THE ATTACHED RULE FILED BY YOUR AGENCY HAS BEEN ENTERED INTO OUR COMPUTER SYSTEM. PLEASE REVIEW, PROOF AND RETURN IT WITH ANY CORRECTIONS. IF THERE ARE NO CORRECTIONS, PLEASE SIGN THIS MEMO AND RETURN IT TO THIS OFFICE. YOU WILL BE SENT A FINAL VERSION OF THE RULE FOR YOUR RECORDS.
PLEASE RETURN EITHER THE CORRECTED RULE OR THIS FORM WITHIN TEN
(10) WORKING DAYS OF THE DATE YOU RECEIVED THIS REQUEST. CALL IF
YOU HAVE ANY QUESTIONS.
SERIES: 6B TITLE: 61 AGRICULTURE *
THE ATTACHED RULE HAS BEEN REVIEWED AND IS CORRECT.
SIGNED
Dathu ille TITLE OF PERSON SIGNING:
Wenty Comunison DATE: 6/22/96 * THE ATTACHED RULE HAS BEEN REVIEWED AND NEEDS CORRECTING. THE CORRECTIONS HAVE BEEN MARKED.
SIGNED :
TITLE OF PERSON SIGNING:
DATE :
NOTE:
IF YOU
ARE NOT THE PERSON WHO HANDLES
THIS RULE, PLEASE
FORWARD
TO THE
CORRECT PERSON.
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.