WEST virginia legislature

2019 regular session

Introduced

House Bill 2998

By Delegate Kessinger

[ Introduced February 12, 2019; Referred
to the Committee on Agriculture and Natural Resources then the Judiciary.]

A BILL to amend and reenact §19-16-1, §19-16-2, §19-16-3, §19-16-4, §19-16-5, and §19-16-6 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated, §19-16-3b and §19-16-9, all relating to agricultural and forest seeds; adding definitions; duties and authority of commissioner of agriculture; adding to label  requirements; authorizing the commissioner to add a penalty to certificate of registration seed fees; requiring the keeping of certain records; prohibition of distribution of certain seeds in this state; providing for exemptions; and providing penalties for deficiencies.

Be it enacted by the Legislature of West Virginia:

article 16. agricultural and forest seeds.

§19-16-1. Definitions.

“Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this Act.

(a) “Agricultural seed” includes forage seeds (grasses and legumes), tobacco, soybeans, cereal, oil, fiber, and other kinds of crop seeds commonly recognized within this state as agricultural seeds, lawn and turf seeds and combinations of those seeds, and may include noxious weed seeds when the commissioner determines that the seed is being used as agricultural seed.

(b) “Blend” means seed consisting of more than one variety of a kind, each in excess of five percent by weight of the whole.

(c) “Brand” means a word, name, symbol, number, design or device, or any combination thereof, identifying the seed of one person and distinguishing it from all others.

(d) “Bulk” means seed when loose in vehicles of transportation or in storage, or in retail displays and not in seed bags or other containers.

(e) “Certifying agency” means: (1) An agency authorized under the laws of a state, territory or possession to officially certify seed and which has standards and procedures approved by the United States Secretary of Agriculture to assure the genetic purity and identity of the seed certified; or (2) an agency of a foreign country determined by the United States Secretary of Agriculture to adhere to procedures and standards for seed certification comparable to those adhered to generally by seed certifying agencies under subdivision (1) of this subsection.

(f) “Coated” means a seed unit covered with any substance which changes the size, shape or weight of original seed. Seeds coated with ingredients, such as, but not limited to, rhizobia, dyes and pesticides, are not considered coated seeds.

(g) “Commissioner” refers to the Commissioner of Agriculture of the State of West Virginia or a duly authorized employee.

(h) “Complete record” means any and all information which relates to the origin, treatment, germination, purity, kind and variety of each lot of agricultural seed sold in this state, or which relates to the treatment, germination, kind and variety of each lot of vegetable, or tree and shrub seed sold in this state. The information shall include seed samples and records of declarations, labels, purchases, sales, conditioning, bulking, treatment, handling, storage, analyses, tests and examinations.

(i) “Conditioning” means drying, cleaning, scarifying and other operations which may change the purity or germination of the seed and require the seed lot to be retested to determine F

(j) “Dealer” means any person who exclusively sells, exposes for sale, offers for sale, exchanges or barters seed for sowing purposes within this state to the ultimate consumer.

“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.

(k) “Distribute” means to offer for sale, sell, expose for sale, exchange or barter seed for sowing purposes within the state.

(l) “Distributor” means any person who sells, exposes for sale, offers for sale, exchanges, barters, gives, parcels out, allots, shares, or dispenses a seed for sowing purposes within the state.

(m) “Dormant” means viable seed, excluding hard seed, which fail to germinate when provided the specified germination conditions for the kind of seed in question.

“Flower seeds” includes seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts, and commonly known and sold under the name of flower or wildflower seeds in this state.

(n) “Genuine growers declaration” means a statement signed by the grower which gives for each lot of seed the lot number, kind, variety (if known), origin, weight, year of production, date of shipment and to whom the shipment was made.

(o) “Germination” means the emergence and development from the seed embryo of those essential structures which, for the kind of seed in question, are indicative of the ability to produce a normal plant under favorable conditions.

(p) “Hard seeds” means seeds which remain hard at the end of the prescribed test period because they have not absorbed water due to an impermeable seed coat.

“Hermetically sealed” means a container that is designed and intended to be secure against the entry of microorganisms and thereby to maintain the commercial sterility of its contents after processing.

(q) “Hybrid” means the first generation seed of a cross produced by controlling the pollination and by combining: (1) Two or more inbred lines; (2) one inbred or a single cross with an open pollinated variety; or (3) two varieties or species, except open-pollinated varieties of corn (Zea mays). The second generation of subsequent generations from the crosses shall not be regarded as hybrids. Hybrid designations shall be treated as variety names.

(r) “Inert matter” means all matter not seed, which includes, but is not limited to, broken seeds, sterile florets, chaff, fungus bodies and stones as determined by methods defined by rule.

“Introduced wildflower” means kinds or the types and varieties derived from those kinds that are not indigenous to North America.

(s) “Kind” means one or more related species or subspecies which singly or collectively is known by one common name, for example, corn, oats, alfalfa, and timothy.

(t) “Label” means a display of written, printed or graphic matter affixed to the container or package in which seed is distributed; or affixed to the invoice, delivery slip, or other shipping document which accompanies bulk lots of seed. All labels shall be legible and in English.

(u) “Labeling” means all written, printed, or graphic matter, or advertisement referencing the seed.

(v) “Lot” means a definite quantity of seed identified by a lot number, code number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear on the label.

(w) “Mixture”, “mix”, or “mixed” means seed consisting of more than one kind, each in excess of five percent by weight of the whole.

(x) “Mulch” means a protective covering of any suitable substance placed with seed which acts to retain sufficient moisture to support seed germination and sustain early seedling growth and aid in the prevention of the evaporation of soil moisture, the control of weeds and the prevention of erosion.

“Native wildflower” means kinds or the types and varieties derived from those kinds that are indigenous to North America.

(y) “Noxious weed seeds” are divided into two classes: “Prohibited noxious weed seeds” and “restricted noxious weed seeds” as defined in subdivisions (1) and (2) of this subsection include prohibited noxious weed seeds, restricted noxious weed seeds, and undesirable grass seed.

(1) The term “prohibited noxious weed seeds” are those weed seeds which are prohibited from being present in agricultural, vegetable, tree or shrub seed. They are the seeds of weeds which are highly destructive and difficult to control by good cultural practices and the use of herbicides;

(2) The term “restricted noxious weed seeds or undesirable grass seed” are those weed seeds which are objectionable in agricultural crops, lawns and gardens of this State and which can be controlled by good cultural practices or the use of herbicides

(z) “Off type” means any seed or plant not a part of the variety in that it deviates in one or more characteristics from the variety as described and may include: A seed or plant of another variety; a seed or plant not necessarily any variety; a seed or plant resulting from cross-pollination by another kind or variety; a seed or plant resulting from uncontrolled self pollination during production of hybrid seed; or segregates from any of the off types set forth in this subsection.

(aa) “Official sample” means any sample of seed taken by the commissioner in accordance with the provisions of this article and rules promulgated under this article.

(bb) “Origin” for an indigenous stand of trees means the area on which the trees are growing; for a nonindigenous stand, it is the place from which the seeds or plants were originally introduced.

(cc) “Other crop seed” means seed of plants grown as crops (other than the kind or variety included in the pure seed) as determined by methods defined by rule.

(dd) “Person” means an individual, partnership, corporation, company, association, receiver, trustee, agent, fiduciary, firm or any group of organized persons whether incorporated or not.

“Prohibited noxious weed seeds” mean those weed seeds which are prohibited from being present in agricultural, vegetable, tree or shrub seed, and are the seeds of weeds which are highly destructive and difficult to control by good cultural practices and the use of herbicides.

“Pure live seed” means the product of the percent of germination plus hard or dormant seed multiplied by the percent of pure seed divided by 100, where the result is expressed as a whole number.

(ee) “Pure seed” means seed exclusive of inert matter and all other seeds not of the seed being considered as determined by methods defined by rule.

“Purity” means the name or names of the kind, type, or variety and the percentage or percentages thereof; the percentage of other agricultural seed or crop seed; the percentage of weed seeds, including noxious weed seeds; the percentage of inert matter; and the names of the noxious weed seeds and the rate of occurrence of each.

(ff) “Registrant” means any person who registers as a seedsman in order to distribute seed for sowing purposes within the state.

“Restricted noxious weed seeds” mean those weed seeds which are objectionable in agricultural crops, lawns and gardens of this state but which can be controlled by good cultural practices or the use of herbicides.

(gg) “Seed potato” refers to the Irish potato (Solanum tuberosum) vegetatively propagated tubers used or intended to be used for potato production which must grade equal to or better than the minimum requirements of U.S. No. 1, from the standpoint of physical defects, size or disease, and must be certified by an official certifying agency.

(hh) “Seizure” means a legal process carried out by court order against a definite amount of seed.

“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.

(ii) “Stop sale or embargo” means an administrative order provided by this article, restraining the sale, use, disposition and movement of a definite amount of seed.

“Test date” means the month and year in which the germination test was completed.

“Total viable” means the sum of percentage germination plus dormant plus hard seeds.

(jj) “Treated” means that the seed has received an application of a substance, or that it has been subjected to a process for which a claim is made.

(kk) “Tree and shrub seeds” includes seeds of woody plants commonly known and sold as tree and shrub seeds in this state.

(ll) “Tree seed collector’s declaration” means a statement signed by a grower or person having knowledge of the place of collection giving, for a lot of seed, the lot number, common or scientific name of the species (and subspecies, if appropriate), origin, elevation, and quantity of tree and shrub seed.

(mm) “Type” means a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated except under special conditions.

“Undesirable grass seeds” means seeds of grass species declared to be restricted noxious weed seed when found in lawn and turf seed.

“Uniform” means that the variations in essential and distinctive characteristics are describable.

(nn) “Variant” means any seed or plant which: (A) Is distinct within the variety but occurs naturally in the variety; (B) is stable and predictable with a degree of reliability comparable to other varieties of the same kind, within recognized tolerances, when the variety is reproduced or reconstituted; and (C) was originally a part of the variety as released. A variant is not an off-type.

(oo) “Variety” means a subdivision of a kind which is distinct, uniform and stable.

(1) “Distinct” means that the variety can be differentiated by one or more identifiable morphological, physiological or other characteristics from all other varieties of public knowledge.

(2) “Uniform” means that the variations in essential and distinctive characteristics are describable.

(3) “Stable” means that the variety will remain unchanged in its essential and distinctive characteristics and its uniformity when reproduced or reconstituted as required by the different categories of varieties

(pp) “Vegetable or herb seeds” includes the seeds of those crops which are grown in gardens or on truck farms and are generally known and sold under the name of vegetable or herb seeds in this state.

(qq) “Weed seed” means the seeds of all plants generally recognized as weeds within this state, as determined by methods defined by rule, and includes the categories of prohibited noxious weed seeds and restricted noxious weed seeds.

§19-16-2. Label requirements for agricultural crops, lawn and turf, vegetable, tree and shrub, flower seeds, and seed potatoes.

(a) Each container of agricultural, or vegetable, or flower seeds which is distributed or transported within this state for sowing purposes shall bear on the container or have attached to the container in a conspicuous place a plainly written or printed label or tag in the English language.

(a) (b) For all treated agricultural, or vegetable, or flower seeds (for which a separate label may be used) the label shall include the following:

(1) A word or statement indicating that the seed has been treated;

(2) The commonly accepted coined, chemical or abbreviated chemical (generic) name of the applied substance or description of the process used;

(3) A caution statement, such as “do not use for food, feed or oil purposes”, if the substance in the amount present with the seed is harmful to human or other vertebrate animals. The caution for toxic substances shall be a poison statement or symbol or both a poison statement and symbol; and

(4) The date beyond which the inoculant is not to be considered effective (date of expiration), if the seed is treated with an inoculant.

(b) (c) For agricultural seeds, except for grass seed mixtures, seed sold on a pure live seed basis or for hybrids which contain less than 95 percent hybrid seed the label shall include the following:

(1) The commonly accepted name of the kind and variety for each agricultural seed component present in excess of five percent of the whole and the percentage by weight of each in order of its predominance: Provided, That if the variety of those kinds generally labeled as to variety is not stated, the label shall show the name of the kind and the words, “Variety Not Stated”. Hybrids shall be labeled as hybrids;

(2) The lot number or other lot identification;

(3) The origin (state or foreign country), if known, of alfalfa, red clover, and field corn (except hybrid corn). If the origin is unknown, that fact shall be stated;

(4) The percentage by weight of all weed seeds;

(5) The name and rate of occurrence per pound or ounce of each kind of restricted noxious weed seed or undesirable grass seed present. The name and approximate number of each kind of noxious weed seed: (A) Per ounce in Agrostis spp., Poa spp., Rhodes grass, Bermuda grass, timothy, orchard grass, fescues, alsike and white clover, reed canary grass, Dallas grass, ryegrass, foxtail millet, alfalfa, red clover, sweet clovers, lespedezas, smooth brome, crimson clover, Brassica spp., flax, Agropyron spp., and other agricultural seeds of similar size and weight, or mixtures within this group; and (B) per pound in sudan grass, wheat, oats, rye, barley, buckwheat, sorghums, vetches and other agricultural seeds of a size and weight similar to or greater than those within this group, or any mixtures within this group;

(6) The percentage by weight of agricultural seeds (which may be designated as “crop seeds”) other than those required to be named on the label;

(7) The percentage by weight of inert matter;

(8) For each named agricultural seed:

(A) The percentage of germination, exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages; and

(D) If the registrant chooses, the “total germination and hard seed”;

(9) The name and address of the person who labeled the seed, or who distributes the seed within this state.

(10) The total of subdivisions (1), (4), (6), and (7) of this subsection must equal 100%.

(c) (d) For grass seed mixtures for lawn or turf purposes the label shall include the following:

(1) The word “mixed”, or “mixture”, or “blend” with the name of the mixture or blend;

(2) The heading “Pure Seed” and “Germination”, or “Germ” in the proper places;

(3) The commonly accepted name of kind or kind and variety of each agricultural seed component in excess of five percent of the whole, and the percentage by weight of pure seed in order of its predominance and in columnar form;

(4) The percentage by weight of agricultural seed other than those required to be named on the label (which shall be designated as “crop seed”);

(5) The percentage by weight of inert matter not to exceed 10 percent by weight, except that 15 percent inert matter is permitted in Kentucky Bluegrass labeled without a variety name. Except for coating material, fertilizer and mulch as provided by §19-16-2(e)(d)(3) of this code, foreign material not common to grass seed shall not be added;

(6) The percentage by weight of all weed seeds. Maximum weed seed content may not exceed one half of one percent by weight;

(7) Noxious weed seeds and undesirable grass seed that are required to be labeled by rule and listed under the heading “Noxious Weed Seeds” or “Undesirable Grass Seed”. Undesirable grass seed may not exceed 0.5% by weight;

(8) For each agricultural seed named under §19-16-(c)(3) of this code:

(A) The percentage of germination, exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages. The most recent available chronological test date shall be used;

(D) When only one test date is listed for the entire mixture, the listed test date shall be the oldest chronological test date of the components; and

(9) The name and address of the person who labeled the seed, or who distributes the seed within the state.

(10) The total of subdivisions (3), (4), (5), and (6) of this subsection must total 100%.

(d) (e) For agricultural seeds that are coated the label shall include the following:

(1) The percentage by weight of pure seeds with coating material removed;

(2) The percentage by weight of coating material;

(3) The percentage by weight of inert material exclusive of coating material; and

(4) Percentage of germination, to be determined on 400 pellets with or without seeds.

(5) In addition to the provisions of this subsection, the labeling of coated seed shall comply with the requirements of §19-16-2(a), §19-16-2(b), and §19-16-2(c) of this code.

(e) (f) For vegetable seeds in packets as prepared for use in home gardens or household plantings; or in preplanted containers, mats, tapes or other planting devices the label shall include the following:

(1) The name of kind and variety of seed;

(2) The lot number or other lot identification;

(3) The year for which the seed was packed for sale as “Packed for ” or the percentage germination and the calendar month and year the test was completed to determine the percentage; and

(4) One of the following:

(A) The calendar month and year the germination test was completed and the statement “Sell by ______”, which date may be no more than 12 months from the date of the test, exclusive of the month of the test;

(B) The year for which the seed was packed for sale, noted by the statement “Packed for ____” or “Sell by ____”, which blank shall be filled by the calendar year; or

(C) The percentage germination and the calendar month and year the test was completed to determine such percentage provided that the germination test must have been completed within 12 months exclusive of the month of the test; and

(5) The name and address of the person who labeled the seed or who distributes the seed for sale within this state.

(f) (g) For seeds which germinate less than the standard as established by rule promulgated under this article the label shall include the following:

(1) The percentage of germination, exclusive of hard seed;

(2) The percentage of hard seed, if present; and

(3) The words “Germination Below Standard” in not less than eight-point type.

(g) (h) For seeds placed in a germination medium, mat, tape or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape or device, a statement to include the minimum number of seeds in the container.

(h) (i) For vegetable seeds in containers other than packets prepared for use in home gardens or household plantings and other than preplanted containers, mats, tapes or other planting devices the label shall include the following:

(1) The name of each kind and variety present in excess of five percent and the percentage by weight of each in order of its predominance;

(2) The lot number or other lot identification;

(3) For each named vegetable seed:

(A) The percentage germination exclusive of hard seed;

(B) The percentage of hard seed, if present;

(C) The calendar month and year the test was completed to determine the percentages; and

(D) If the registrant chooses, the “total germination and hard seed”;

(4) The name and address of the person who labeled the seed, or who distributes the seed within this state.

(j) For flower seeds in packets prepared for use in home gardens or household plantings or flower seeds in pre-planted containers, mats, tapes, or other planting devices:

(1) For all kinds of flower seeds:

(A) 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 article;

(B) One of the following:

(i) The calendar month and year the germination test was completed and the statement “Sell by ______”, which date may be no more than 12 months from the date of the test, exclusive of the month of the test;

(ii) The year for which the seed was packed for sale, noted by the statement “Packed for ____” or “Sell by ____”, which blank shall be filled by the calendar year; or

(iii) “The percentage germination and the calendar month and year the test was completed to determine such percentage provided that the germination test must have been completed within 12 months exclusive of the month of the test; and

(C) The name and address of the person who labeled said seed, or who sells, offers, or exposes said seed for sale within this state.

(2) For seeds of those kinds for which standard testing procedures are prescribed and which germinate less than the germination standard last established under the provisions of this article:

(A) The percentage of germination exclusive of hard seeds;

(B) The percentage of hard or dormant seed, if present; and

(C) The words “Below Standard”, in not less than 8-point type.

(3) For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape, or device, a statement to indicate the minimum number of seeds in the container.

(k) For flower seeds in containers other than those contained in subsection (j) of this subsection:

(1) The name of the kind and variety or a statement of type and performance characteristics as prescribed in rules and regulations promulgated under the provisions of this article, and for wildflowers, the genus, species, and subspecies, if appropriate.

(2) The lot number or other lot identification.

(3) For wildflower seed only with a pure seed percentage of less than 90 percent:  

(A) The percentage, by weight, of each component listed in order of their predominance;

(B) The percentage by weight of weed seed, if present; and

(C) The percentage by weight of inert matter.

(4) For those kinds of seed for which standard testing procedures are prescribed:

(A) The percentage germination exclusive of hard or dormant seed;

(B) The percentage of hard or dormant seed, if present; and,

(C) The calendar month and year that the test was completed to determine such percentages.

(5) For those kinds of seed for which standard testing procedures are not available, the year of production or collection.

(6) The name and address of the person who labeled the seed or who sells, offers, or exposes the seed for sale within this state.

(k) For agricultural seeds sold on a pure live seed basis in accordance with the rules promulgated pursuant to this article, each container must bear a label containing the information required by subsection (c) of this section, except that:

(1) The label need not show:

(A) The percentage by weight of each agricultural seed component, as required by subdivision (1) of subsection (c) of this section; or

(B) The percentage by weight of inert matter, as required by subdivision (7) of subsection (c) of this section, and

(2) The label must show for each named agricultural seed, instead of the information required by subdivision (8) of section (c) of this section:

(A) The percentage of pure live seed determined in accordance with rules; and

(B) The calendar month and year in which the test determining the percentage of live seed was completed.

(i) (l) For agricultural and vegetable hybrid seed which contain less than 95 percent hybrid seed the label shall include the following:

(1) The kind or variety which must be labeled as “hybrid”;

(2) The percent which is hybrid, labeled parenthetically in direct association following named variety; such as, Comet (85 percent Hybrid); and

(3) Varieties in which the pure seed contain less than 75 percent hybrid seed which shall not be labeled as hybrids.

(j) For agricultural and vegetable seeds, the label may show an expiration date in lieu of:

(1) The calendar month and year of a germination test or pure live seed test; and

(2) The year for which the seed was packaged

(k) (m) For combination mulch, seed and fertilizer products the label shall include the following:

(1) The word “combination” followed by the words “mulch — seed — fertilizer (if appropriate)” on the upper 30 percent of the principal display panel. The word “combination” must be the largest and most conspicuous type on the container, equal to or larger than the product name. The words “mulch — seed — fertilizer” shall be no smaller than one-half the size of the word “combination” and in close proximity to the word “combination.” These products shall contain a minimum of 70 percent mulch; and

(2) For agricultural, lawn and turf seeds placed in a germination medium, mat, tape or other device or mixed with mulch:

(A) The product name;

(B) The lot number;

(C) The percentage by weight of pure seed of each kind and variety named which may be less than five percent of the whole;

(D) The percentage by weight of other crop seeds;

(E) The percentage by weight of inert matter which shall not be less than 70 percent;

(F) The percentage by weight of weed seeds;

(G) The name and number of noxious weed seeds per pound or ounce, if present;

(H) The percentage of germination (and hard seed if appropriate) of each kind or kind and variety named and date of test; and

(I) The name and address of the person who labeled the seed, or who distributes the seed within this state.

(J) The totals of subdivisions (C), (D), (E), and (F) of this subsection must total 100%.

(l) (n) The labeling requirements for agricultural, and vegetable, and flower seeds shall be considered to have been met if the seed is weighed from a properly labeled bulk container in the presence of the purchaser.

(m) (o) Once a dealer has broken the seal on a container of seed for any reason, the dealer is fully responsible for its contents including the guarantees for purity, germination rate and anything else pertaining to the integrity of the opened seed container.

(p) For combination products containing seed and granular fertilizer:

(1) The word “combination” followed by the words “seed-fertilizer” must appear on the upper 30 percent of the principal display panel. The word “combination” must be the largest and most conspicuous type on the container, equal to or larger than the product name. The word “seed-fertilizer” shall be no smaller than one-half the size of the word “combination” and in close proximity to the word “combination.”

(2) On the analysis label, the percentage by weight of the fertilizer in the container shall be listed on a separate line as a component of the inert matter.

(n) (q) Label requirements for tree and shrub seeds:

Each container of tree and shrub seed which is distributed or transported within this state for sowing purposes shall bear on the container or have attached on the container in a conspicuous place a plainly written or printed statement on the label or tag in the English language, giving the information required under this subsection. The statement may not be modified or denied in the labeling or on another label attached to the container — except that labeling of seed supplied under a contractual agreement may be by invoice accompanying the shipment or by an analysis tag attached to the invoice if each bag or other container is clearly identified by a lot number stenciled on the container, or if the seed is in bulk. Each bag or container that is not identified shall carry complete labeling.

(1) For all treated tree and shrub seeds as defined in this article (for which a separate label may be used):

(A) A word or statement indicating that the seed has been treated;

(B) The commonly accepted coined, chemical or abbreviated chemical (generic) name of the applied substance or description of the process used;

(C) A caution statement, such as “Do not use for food, feed or oil purposes”, if the substance in the amount present with the seed may be harmful to human or other vertebrate animals. The caution for mercurials and similarly toxic substances shall be a poison statement and symbol; and

(D) The date beyond which the inoculant is not to be considered effective (date of expiration), if the seed has been treated with an inoculant;

(2) For all tree and shrub seeds subject to the article:

(A) The common name of the species of seed (and subspecies, if appropriate);

(B) The scientific name of the genus and species (and subspecies, if appropriate);

(C) The lot number or other lot identification; and

(D) Their origin:

(i) For seed collected from a predominantly indigenous stand, the area of collection given by latitude and longitude, or geographic description, or political subdivision such as state or county;

(ii) For seed collected from other than a predominantly indigenous stand, the area of collection and the origin of the stand or the statement “Origin not Indigenous;”

(E) The elevation or the upper and lower limits of elevations within which the seed was collected;

(F) The purity as a percentage of pure seed by weight;

(G) For those species for which standard germination testing procedures are prescribed by the commissioner, the following:

(i) Percentage germination exclusive of hard seed;

(ii) Percentage of hard seed, if present;

(iii) The calendar month and year test was completed to determine such percentages; or

(iv) In lieu of paragraphs (i), (ii) and (iii) of this subparagraph, the seed may be labeled “Test is in process, results will be supplied upon request”;

(H) For those species for which standard germination testing procedures have not been prescribed by the commissioner, the calendar year in which the seed was collected;

(I) The name and address of the person who labeled the seed or who distributes the seed within this state.

(o) (r) Label requirements for seed potatoes:

The following information shall appear on each label attached to a bag or container of certified seed potato:

(A) The name of the person or agency certifying such seed potato;

(B) The name of the official state or governmental agency making the inspection upon which the certification is made; and

(C) The name and address or identification number of the grower of such seed potatoes.

§19-16-3. Certificate of registration; seed fees; payment of fees; disposition of funds.

(a) No person may distribute any agricultural, vegetable, tree and shrub, or flower seeds, or seed potatoes without a valid certificate of registration issued by the commissioner. Application forms shall be provided by the commissioner and the application fee shall be set forth in a legislative rule. Each certificate of registration expires on the thirty-first day of December 31 following the next date of issue. A dealer may not be required to register, if he or she can prove that the person he or she is obtaining the seed from has a valid certificate of registration.

(b) A person shall apply for a certificate of registration at least 15 days prior to the expiration of the current registration; or at least 15 days prior to the date that the person intends to engage in business in this state. Each application shall be accompanied by the required application fee. The commissioner shall add a penalty of two dollars to the fee for each registration, as set forth in legislative rules, that is not applied for or renewed within the time limit.

(c) Certificates of registration are not transferable with respect to persons or locations.

(d) The commissioner may refuse to grant, or may suspend or revoke a certificate of registration when it is determined that the applicant or registrant has violated the provisions of this article or any rule promulgated under this article: Provided, That the applicant or registrant may request a hearing prior to the denial of the application or suspension or revocation of the registration.

(e) Each person who holds a valid certificate of registration is required to pay a tonnage fee on seed sold in this state and shall report to the commissioner the net pounds or kilograms of seeds distributed and sold by kind or variety, except for seed potatoes, on a semiannual quarterly basis. Each report shall be filed under oath and is due before the thirty-first last day of January, April, and July, and October of each year for the preceding six-month three-month period. He or she shall pay the tonnage fee according to the fee schedule for agriculture, vegetable, tree, and shrub, and flower seeds as set by legislative rules. The commissioner may add a penalty, as set forth in legislative rules, to the tonnage fee for each tonnage report that is not filed on time.

(f) Persons distributing vegetable and flower seeds packaged in containers of eight ounces or 226.8 grams or less and sold from display units are exempt from reporting poundage and paying a poundage fee: Provided, That a seed stamp be purchased from the commissioner, at the rate set by legislative rules, and placed in a conspicuous place on each display unit.

(g) Persons first distributing seed potatoes into West Virginia trade channels shall report to the commissioner the net pounds or kilograms of seed potatoes distributed during the first six months of the year monthly in arrears: Provided, That payments for the previous month shall be made not later than the 15th day of the following month, The report and appropriate fee is due by the thirty-first day of July as set by legislative rules.

(h) A person who holds a valid certificate of registration shall keep accurate records, as may be necessary or required by the commissioner, to indicate the pounds of agricultural, vegetable, or tree and shrub, or flower seeds or seed potatoes distributed in this state.

(i) All fees and penalties collected under the provisions of this article shall be deposited with the State Treasurer in a special revenue account. These moneys shall be expended by the Commissioner of Agriculture for inspection, sampling, analysis and other expenses necessary for the administration of this article.

§19-16-3b.  Records.

Each person whose name appears on the label as handling agricultural, vegetable, tree, shrub, or flower seeds subject to this article shall keep, for a period of two years, complete records of each lot of agricultural, vegetable, tree, shrub, or flower seed handled, and shall keep for one year a file sample of each lot of seed after final disposition said lot. All such records and samples shall be accessible for inspection by the commissioner during customary business hours.

§19-16-4. Prohibitions.

(a) It is unlawful for any person to distribute or transport for sale any agricultural, vegetable, tree and shrub, or flower seeds or seed potatoes within this state:

(1) Which have not been tested to determine germination rates as required under §19-6-3 and §19-16-4 of this code;

(2) Which is not labeled in accordance with the provisions of this article or has false or misleading labeling;

(3) Which has been the subject of false or misleading advertisement;

(4) Which consists of or contains prohibited noxious weed seeds, subject to tolerances and methods of determination as prescribed by rules promulgated under this article;

(5) Which consists of or contains restricted noxious weed seeds per pound or ounce in excess of the number prescribed by rules promulgated under this article, or in excess of the number declared on the label attached to the container of the seed or associated with seed;

(6) Which contains more than two and one-half one percent by weight of all weed seeds;

(7) If any labeling, advertising or other representation subject to this article represents the seed to be certified seed or any class thereof unless:

(A) It has been determined by a seed certifying agency that the seed conformed to standards of purity and identity as to kind, species (and subspecies, if appropriate), or variety, and also that tree seed was found to be of the origin and elevation claimed, in compliance with the rules of that agency pertaining to the seed; and

(B) That the seed bears an official label issued for that seed by a seed certifying agency certifying that the seed is of a specified class and a specified kind, species (and subspecies, if appropriate) or variety;

(8) Labeled with a variety name but not certified by an official seed certifying agency when it is a variety for which a U. S. certificate of plant variety protection under the Plant Variety Protection Act specifies sale only as a class of certified seed: Provided, That seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety.

(b) It is unlawful for any person within this state:

(1) To detach, alter, deface or destroy any label provided for in this article or the rules promulgated under this article, or to alter or substitute seed in a manner that may defeat the purpose of this article;

(2) To use relabeling stickers without having both the calendar month and year the germination test was completed, the sell-by date, and the lot number that matches the existing, original lot number: Provided, That a relabeling may not occur more than one time.

(3) To disseminate any false or misleading advertisement concerning seeds subject to this article in any manner or by any means;

(3) (4) To interfere with the commissioner’s official duties;

(4) (5) To fail to comply with a “stop sale or embargo” order or to move or otherwise handle or dispose of any lot of seed held under a “stop sale or embargo” order or tags attached to the lot of seed, unless released by the commissioner, and for the purpose specified by the commissioner;

(5) (6) To use the word “trace” or the phrase “contains > 0.01%” as a substitute for any statement which is required;

(6) (7) To use the word “type” in any labeling in connection with the name of any agricultural seed variety;

(7) (8) To distribute or knowingly use any agricultural, vegetable, or tree, and shrub, or flower seed that is misbranded;

(8) (9) To misbrand any agricultural, vegetable, or tree, and shrub, or flower seed or seed potato. An agricultural, vegetable, tree or shrub seed or seed potato is misbranded:

(A) If its label or labeling is false or misleading;

(B) If it is not labeled as required by this article;

(C) If any word, statement or other information required by this article to appear on the label is not prominently and conspicuously placed so that it can be read and understood by the ordinary individual under customary conditions of purchase and use; and

(D) If any damage or inferiority has been concealed;

(9) (10) To distribute or knowingly use any agricultural, vegetable, or tree and shrub seed or seed potato that has not had an accurate statement of poundage reported to the commissioner in the previous reporting period;

(10) (11) To use or imply the name West Virginia Department of Agriculture, or reference any inspection or sample findings made by the West Virginia Department of Agriculture on labels or labeling of agricultural, vegetable, or tree and shrub seed or seed potatoes; or

(11) (12) To falsify any laboratory reports regarding seed distributed within this state.

§19-16-5. Exemptions.

(a) The provisions of §19-16-2, §19-16-3, §19-16-4, and § 19-16-8 of this code do not apply:

(1) To seed or grain not intended for sowing purposes;

(2) To seed in storage, or seed being transported or consigned to a cleaning or processing conditioning establishment for cleaning or processing conditioning: Provided, That the invoice, label or labeling accompanying any shipment of the seed bears the statement “seeds for processing conditioning”; and that any label or labeling or other representation which may be made with respect to the uncleaned or unprocessed unconditioned seed is subject to this article; or

(3) To any carrier in respect to any seed transported or delivered for transportation in the ordinary course of its business as a carrier: Provided, That the carrier is not engaged in producing, processing conditioning or marketing seeds subject to the provisions of this article.

(b) No person is subject to the penalties of this article for having sold or offered for sale seeds subject to provisions of this article which were incorrectly labeled or represented as to kind, species (and subspecies, if appropriate), variety, type, or origin, elevation, and year of collection (if required), which cannot be identified by examination, unless he or she has failed to obtain an invoice, genuine grower’s or tree seed collector’s declaration or other labeling information and to take such other precautions as may be reasonable to ensure the identity to be that which is stated. A genuine grower’s declaration of variety shall affirm that the grower holds records of proof concerning parent seed, such as invoice and labels.

(c) The provisions of §19-16-2 and §19-16-3 of this code do not apply to tree seed produced by the consumer.

(d) Any person participating in a seed swap, seed library, or similar event is exempt from all provisions of this article, provided that no more than two pounds of each product seed is being distributed per person. The commissioner has the authority to issue an embargo order against a product, even if the result is the involuntary disposal of the product, if the product can or could be detrimental to the state or which consists of or contains prohibited noxious weed seeds, or restricted noxious weed seeds subject to tolerances and methods of determination as prescribed by rules promulgated under this article.

§19-16-6. Duties and authority of commissioner of agriculture.

The commissioner may:

(a) Establish by legislative rule germination standards for agricultural, forest vegetable, tree, shrub, or flower seeds;

(b) Enter and inspect, during reasonable hours, any location where agricultural, vegetable, or tree, and shrub, or flower seeds, or seed potatoes for sowing purposes are manufactured, distributed, transported or used, and where records relating to the manufacture, distribution, shipment, labeling or sale of seed are kept. This inspection shall include, but is not limited to, examining, photographing, verifying, copying and auditing records as is necessary to determine compliance with this article, labels, consumer complaints, and papers relating to the manufacturing, distribution, sampling, testing, and sale of agricultural, vegetable, tree and shrub seeds or seed potatoes;

(c) Open, examine, sample and test agricultural, vegetable, or tree, and shrub, or flower seed or seed potatoes, equipment, containers, transport containers, and packages used or intended to be used in the manufacture and distribution of seeds used for sowing purposes;

(d) Issue certificates of registration pursuant to this article;

(e) Refuse applications for registration; or suspend or revoke registrations as provided in this article;

(f) Issue “stop sale or embargo” orders as provided in this article;

(g) Condemn and confiscate any agricultural, vegetable, or tree, and shrub, or flower seed, or seed potato that is not brought into compliance with this article;

(h) Collect fees and penalties and expend moneys under the terms of this article;

(i) Conduct sampling in accordance with the official methods as established by the Association of Analytical Chemists, the Association of American Seed Control Officials, the United States Department of Agriculture or the Association of Official Seed Analysts;

(j) Conduct hearings as provided by this article;

(k) Assess civil penalties and refer violations to a court of competent jurisdiction;

(l) Obtain court orders directing any person refusing to submit to inspection, sampling and auditing to submit;

(m) Establish and maintain seed testing facilities; establish reasonable fees for the tests; incur expenses; and conduct tests in accordance with the Association of Official Seed Analysts;

(n) Be guided by the analytical results of the official sample when determining whether the agricultural, vegetable, or tree, and shrub, or flower seed is deficient in any component;

(o) Report the analytical results on all official deficient samples to the registrant, dealer, purchaser if known and or the distributor;

(p) Upon request made within 30 days from the date the official sample results are reported, furnish a portion of the official sample to the registrant;

(q) Publish and distribute annually a composite report containing: (1) The sales of agricultural, vegetable, or tree, and shrub, or flower seed, and seed potatoes during the preceding period; (2) the results of analysis of official samples as compared with the guarantee on the label; (3) the firms responsible for the product; and (4) such other data the commissioner considers necessary: Provided, That the information on production and use provided does not disclose the operations of any person;

(r) Cooperate with and enter into agreements with governmental agencies of this state and other states, agencies of the federal government and foreign governments, and private associations in order to carry out the purpose and provisions of this article;

(s) Establish fees by legislative rule;

(t) Propose rules for promulgation, in accordance with §29A-3-1 et seq. of this code; and

(u) Promulgate emergency rules within 90 days of the passage of this bill into law;

(v) Inspect and approve seed conditioning facilities in the state;

(w) Issue permits; and

(x) Establish fees.

§19-16-9. Deficiencies.

(a) If the analysis of a sample shows a deviation from the permitted analytical variation, the registrant or other responsible person shall be penalized according to legislative rule.  Penalties for multiple deficiencies within a sample shall be incremental; provided that in no case shall the penalty exceed the retail value of the product.

(b) The penalty shall be assessed and collected from the person responsible for the labeling requirements of the seed. If seed is sampled in the hands of a consumer who purchased to plant and not to sell, the penalty shall be assessed to the seedsman or distributor, whichever is applicable. In no case shall the penalty assessed exceed a fair market value of the seed. The total amount of seed in each lot at the time of sampling shall be used to determine the penalty.

(c) All penalties assessed under this section shall be paid to the consumer of the lot regulated product represented by the sample analyzed. If the consumer cannot be found or is unknown, the amount of the penalty shall be paid to the commissioner and deposited in the department of agriculture’s fees account.

 

NOTE: The purpose of this bill is to make changes relating to agricultural and forest seeds, including adding definitions, adding to ,adding to label  requirements and authorizing the commissioner to add a penalty to certificate of registration seed fees.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.