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WV-non native species regulation act
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by tigers9 on January 23, 2008
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http://www.legis.state.wv.us/Bill_Text_HTML/2008_SESSIONS/RS/BILLS/hb2774%20intr.htm
H. B. 2774
(By Delegates Stemple, Proudfoot, Tabb,
Anderson, Pethtel, Beach and Williams)
[Introduced January 9, 2008; referred to the
Committee on Agriculture and Natural Resources then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §19-9B-1, §19-9B-2, §19-9B-3, §19-9B-4, §19-9B-5, §19-9B-6, §19-9B-7, §19-9B-8, §19-9B-9, §19-9B-10, §19-9B-11, §19-9B-12, §19-9B-13, §19-9B-14, §19-9B-15, §19-9B-16, §19-9B-17, §19-9B-18, §19-9B-19, §19-9B-20 and §19-9B-21, all relating to regulating the sale, possession and breeding of nonnative species; defining certain terms; creating the Nonnative Species Regulation Board; establishing duties; establishing a special revenue account and authorizing expenditures; providing rule-making authority; delineating the jurisdiction of member agencies; providing owner liable for the cost of care of seized nonnative species and bonding requirements; requiring pet shop registration, renewal and fee; requiring pet shop to keep records and provide certain notification; requiring permit to possess or breed nonnative species and providing permit application process and permit requirements; providing for exemptions; requiring identification number on nonnative species; establishing caging, care and treatment requirements; requiring liability insurance; authorizing certain inspections; providing for denial of a permit; specifying conditions under which nonnative species may be seized; and, establishing civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-9B-1, §19-9B-2, §19-9B-3, §19-9B-4, §19-9B-5, §19-9B-6, §19-9B-7, §19-9B-8, §19-9B-9, §19-9B-10, §19-9B-11, §19-9B-12, §19-9B-13, §19-9B-14, §19-9B-15, §19-9B-16, §19-9B-17, §19-9B-18, §19-9B-19, §19-9B-20 and §19-9B-21, all to read as follows:
ARTICLE 9B. NONNATIVE SPECIES REGULATION ACT.
§19-9B-1. Definitions.
As used in this article:
(1) "Board" means the Nonnative Species Regulation Board.
(2) "Circus" means an entertainment consisting of trained animal acts and exhibitions of human skill and daring combined with clowns to thrill and amuse an audience. The term excludes carnivals, animal acts and state and county fairs and any other fairs or exhibitions intended to advance agricultural arts and sciences and all other activities determined by the board not to be a circus.
(3) "Domestic animal" means an animal which, through extremely long association with humans, has been bred to a degree that resulted in genetic changes affecting the temperament, color, conformation or other attributes of the species to an extent that makes the animal unique and distinguishable from wild members of the species and the animal has federally approved biologics for the treatment and prevention of disease.
(4) "Nonnative species" means any animal, other than a domestic animal or wildlife, and includes crossbreeds of animals that do not occur naturally either presently or historically within the boundaries of this state, as well as, all species listed as threatened or endangered in accordance with 16 U.S.C. §1533 not presently or historically native to this state.
(5) "Person" means, but is not limited to, an individual, partnership, limited partnership, corporation, organization, firm, limited liability company, joint venture, association, trust, estate, and any officer, member, shareholder, director, employee, agent or representative who is under a duty to perform or is responsible for the performance of an act prescribed by the provisions of this article.
(6) "Pet" means an animal kept by a person for companionship or pleasure rather than for utility.
(7) "Pet shop" means a facility where an animal is kept for the purpose of sale. The term excludes a facility subject to the provisions of article twenty or twenty-three of this chapter;
(8) "Possess" means to own, harbor, keep, release, exhibit, bring into the state, offer for sale, offer for trade or have custody or control of an animal.
(9) "Possessor" means the person who owns, harbors, keeps, releases, exhibits, brings into the state, offers for sale, offers for trade or has custody or control of an animal.
(10) "Sale" means and includes, but is not limited to, any transfer of ownership or title, whether for money, exchange for other property or services or without any remuneration.
(11) "Wildlife" means wildlife and game fish as those terms are defined in section two, article one, chapter twenty of this code, fish and all animals commonly accepted and documented to live in the wild as part of the present or historic natural fauna of West Virginia.
§19-9B-2. Board created; composition; chair; meetings; duties.
(a) The Nonnative Species Regulation Board is created.
(b) The board shall consist of three members: The Commissioner of the Department of Agriculture, or his or her designee; the Director of the Division of Natural Resources, or his or her designee; and the Commissioner of the Bureau for Public Health, or his or her designee.
(c) The board shall designate one of its members in rotation to be chair for a term of two years. In the absence of the chair, any member designated by the members present shall act as chair.
(d) The board shall meet as often as necessary at the time and place designated by the chair. Two members shall be present in order to conduct business. All decisions of the board shall be determined by a majority of the members of the board.
(e) The board may:
(1) Establish requirements for the operation of pet shops selling or breeding nonnative species, including standards of care for those animals;
(2) Establish permit requirements for the possession and breeding of nonnative species;
(3) Grant, deny, suspend, revoke and reinstate possession or breeding permits;
(4) Establish standards for the care and treatment of nonnative species;
(5) Prohibit the importation of any nonnative species that threatens the public health and safety, endangers wildlife or livestock or may be injurious to the agricultural and forestry industries or other natural resource interests;
(6) Investigate alleged violations of the provisions of this article, applicable rules, orders and final decisions of the board;
(7) Conduct necessary hearings;
(8) Cooperate with appropriate state and federal officials in the investigation and enforcement of violations of this article or comparable acts of other states or the federal government;
(9) Examine, seize, test, quarantine or destroy nonnative species which poses a threat to the health and safety of humans, other animals or plant life;
(10) Grant exemptions from the requirements of this article;
(11) Foster national and international wildlife conservation efforts by controlling the possession and use of nonnative species; and
(12) Take all other actions necessary and proper to effectuate the purposes of this article.
(f) The members of the board may delegate the duties set forth in this article to staff members within their agencies.
§19-9B-3. Establishment of special revenue fund; authorized expenditures.
(a) There is created in the State Treasury a special revenue fund to be known as the "Nonnative Species Regulation Fees Fund" which shall consist of all fees, civil penalties, assessed costs, any appropriations of moneys to the fund made by the Legislature, and all interest or other return earned from investment of the fund.
(b) Expenditures from the fund shall be made by the Commissioner of Agriculture for the purposes set forth in this article.
(c) Any balance, including accrued interest and other returns, in the fund at the end of each fiscal year shall not expire to the General Fund but shall remain in the fund and be expended as provided by this section.
§19-9B-4. Rule-making authority.
(a) The board may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
(b) The board may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this article.
§19-9B-5. Administration of article; jurisdiction of member agencies.
(a) The Department of Agriculture is responsible for the administration and enforcement of the provisions of this article. (b) Each member agency may examine, test, seize, quarantine or destroy a nonnative species which poses a threat to humans, livestock, poultry, other animals, wildlife or the state's agricultural or forestry industries or other natural resource interests. In all cases in which a nonnative species is destroyed, the member agency shall safely dispose of the remains in accordance with all applicable laws and rules. The agency shall advise the board of action taken pursuant to this subsection no later than forty-eight hours after the incident.
(c) Nothing in this article shall affect or abrogate the authority of the Department of Agriculture, the Bureau for Public Health or the Division of Natural Resources to carry out the duties set forth in chapters sixteen, nineteen and twenty of this code, respectively.
§19-9B-6. Costs of care for seized animal; bond; placement.
(a) The owner of a nonnative species seized by the board is liable for all costs of treatment and care while the nonnative species is under the control of the board.
(b) The board shall determine the appropriate placement of the seized nonnative species based upon the threat posed by the nonnative species.
(c) The board may require an owner to post a bond in an amount and form to be determined by the board which is sufficient to provide for the reasonable costs of treatment and care of the nonnative species during the period of confinement. If an owner fails to post the required bond, the board may, after notice and an opportunity for the owner to be heard, declare the nonnative species forfeited to the state.
(d) A nonnative species seized by the board in accordance with the provisions of this article may be returned to the owner only if the board determines that the nonnative species poses no threat to humans, other animals or plant life.
§19-9B-7. Pet shop registration required.
Effective the first day of January, two thousand eight, a person shall not operate a pet shop in this state unless he or she has registered with the board.
§19-9B-8. Registration; renewal; fee.
(a) Each pet shop owner or operator shall register on forms supplied by the board and provide all information required by the board.
(b) Registrations expire on the thirty-first day of December of each year and shall be renewed annually. The board shall mail renewal forms to current registrants. The failure to receive the renewal form does not relieve a registrant of the obligation to renew. The board may assess a late fee when a renewal is received more than sixty days after the expiration of the current registration.
(c) A pet shop owner or operator shall pay the applicable registration or renewal fee.
§19-9B-9. Record keeping; notifications required.
(a) A pet shop owner or operator shall keep a copy of each possession permit provided by a buyer and all other records required to be kept by the board for the time specified by the board.
(b) A pet shop owner or operator shall notify the board of the sale of a nonnative species as required by the board.
(c) A pet shop owner or operator shall notify all customers purchasing a nonnative species of the permitting requirements of this article.
§19-9B-10. Possession and breeding of nonnative species.
It is unlawful for any person to possess or breed a nonnative species except in compliance with this article.
§19-9B-11. Permits.
(a) A person may not own, possess or breed a nonnative species unless the person applies for and is granted a permit.
(b) A person who possesses a nonnative species on the effective date of this article shall apply for a possession permit within ninety days of the effective date of this article.
(c) A person buying a nonnative species shall apply for and be granted a possession permit prior to taking possession of the nonnative species from the seller and shall provide the seller a copy of the possession permit.
(d) A new state resident owning a nonnative species shall apply for a possession permit within sixty days of taking up residence in this state.
(e) A person intending to breed a nonnative species shall apply for and must be granted a breeder permit prior to breeding a nonnative species.
(f) An applicant shall file an application for a permit on forms supplied by the board. The application shall include, but is not limited to:
(1) The name, address, telephone number and date of birth of the applicant;
(2) A description of each nonnative species to be owned or bred, including the scientific name, sex, age, color, weight and any distinguishing marks or coloration that would aid in the identification of the animal;
(3) A photograph of each nonnative species;
(4) The exact location and a detailed description of the holding facility where the nonnative species is to be kept;
(5) The name, address and telephone number of the person from whom the applicant bought the nonnative species or the possessor of the nonnative species to be used for breeding purposes;
(6) The identification number of the nonnative species required in accordance with the provisions of section fifteen of this article or a verified statement from a veterinarian that placement of an identification number would endanger the nonnative species or an exemption from this requirement granted by the board;
(7) The name, address and phone number of the veterinarian who is to provide veterinary care to the nonnative species; and
(8) Additional information required by the board.
(g) The application for a possession or breeder's permit shall be accompanied by the applicable permit fee.
(h) The board shall not grant a permit unless it finds the following:
(1) The applicant is eighteen years of age or older;
(2) The applicant has not been convicted of or found responsible for violating a state or federal law prohibiting cruelty, neglect or mistreatment of a nonnative or domestic animal or any state or federal law relating to the possession of wildlife or endangered species;
(3) The facility in which and the conditions under which the nonnative species will be kept are in compliance with this article; and
(4) The applicant has obtained liability insurance for the possession of the nonnative species as required by section eighteen of this article.
(h) A permit holder shall notify the board of any changes in the information on the permit, including the death of the nonnative species. A possessor shall also notify the board of any births by the nonnative species.
(i) Possession permits expire on the thirtieth day of June of each year and shall be renewed annually. The board shall mail renewal forms to current permit holders. The failure to receive the renewal form does not relieve the permit holder of the obligation to renew. The board may assess a late fee when a renewal is received more than sixty days after the expiration of the current permit.
(j) The board shall keep records of the permits issued.
§19-9B-12. Exemptions from permit requirements.
(a) The permit provisions of this article do not apply to:
(1) Institutions accredited by the American Zoo and Aquarium Association;
(2) A licensed or accredited research or medical institution;
(3) A veterinary hospital or clinic; or
(4) A circus operated under a valid license or registration issued by the United States Department of Agriculture pursuant to the federal Animal Welfare Act of 1970.
§19-9B-13. Identification number.
The possessor of a nonnative species shall have an identification number placed on the nonnative species, at his or her expense, by or under the supervision of a veterinarian. The board shall prescribe the methods of identification for use by veterinarians: Provided, That this provision does not apply to the nonnative species if a veterinarian determines that the methods of identification will endanger the well-being of the nonnative species.
§19-9B-14. Caging requirements.
(a) The board shall establish specific caging requirements for the keeping and confinement of the nonnative species. A person possessing a nonnative species shall keep and confine the nonnative species in strict compliance with the caging requirements established by the board.
(b) All caging requirements shall ensure that the nonnative species is confined in a primary enclosure that protects the public's safety and health and ensures the safety and well-being of the nonnative species.
§19-9B-15. Care and treatment of nonnative species.
(a) A nonnative species shall not be tethered, leashed or chained outdoors, or allowed to run at-large.
(b) A nonnative species shall not be released.
(c) A nonnative species shall not be mistreated, neglected, abandoned or deprived of necessary food, water and sustenance.
(d) A person transporting a nonnative species in a vehicle shall keep the animal securely caged in the vehicle at all times.
(e) Each possessor of a nonnative species shall have a plan for the quick and safe recapture of the nonnative species if it escapes and a plan for the destruction of the nonnative species if recapture becomes impossible. This plan is not a substitute for the notification of law-enforcement and Department of Agriculture officials required by section eighteen of this article and the plan is not binding on law-enforcement officials who may be required to destroy the nonnative species, if determined necessary to protect the public health and safety.
(f) If a possessor of a nonnative species realizes that he or she can no longer care for the nonnative species, the possessor shall contact an approved animal rescue facility or an American Zoo and Aquarium Association accredited facility for possible placement of the animal. The possessor shall obtain the proper permits to transfer any animal. If the possessor is unable to care for the nonnative species and cannot find a permitted facility to accept the nonnative species, the animal shall be humanely euthanized at the possessor's expense.
§19-9B-16. Insurance; signs; and notification.
(a) A possessor of a nonnative species shall maintain liability insurance in an amount to be determined by the board and shall provide a copy of the policy annually to the board, unless exempted by the board.
(b) The possessor of a nonnative species shall post and display, at each possible entrance to the premises, a conspicuous sign, clearly legible and easily readable by the public, warning that there is a nonnative species on the premises. In addition, the possessor shall conspicuously display a sign with a warning symbol that informs children of the presence of a nonnative species. The board shall prescribe the content and size of the sign.
(c) If a nonnative species escapes or is released, either intentionally or unintentionally, the possessor of the nonnative species shall immediately contact a law-enforcement officer and the Department of Agriculture to report the escape or release. The possessor is liable for all expenses associated with efforts to recapture the animal. The animal may be destroyed if necessary to protect the public health or safety.
§19-9B-17. Public contact.
Unless specifically authorized by the board, a possessor may not take a nonnative species to a public place, except to a veterinarian or a veterinarian clinic.
§19-9B-18. Inspection.
For the purpose of carrying out the provisions of this article, an employee of the Department of Agriculture, the Division of Natural Resources or the Bureau for Public Health may enter upon any public or private premises, other than a dwelling house, at reasonable times, after reasonable notification to the owner or possessor in order to access a nonnative species for the purpose of inspection. A person may not obstruct or hinder the employee in the discharge of his or her duties to enforce this article.
§19-9B-19. Denial of possession permit; appeal.
(a) If the board finds that an applicant for an original or renewal possession permit does not meet the requirements set forth in this article, it may deny the applicant a possession permit. The board shall give the applicant written notice of the denial and the reasons for the denial.
(b) If the board finds that a person has not complied with this article the board may suspend or revoke the possession permit. The board shall give the possessor written notice of the suspension or revocation and the reasons for the suspension or revocation.
(c) A person who is denied a possession permit, denied a renewal of a possession permit or who has had a permit suspended or revoked shall be afforded a hearing before the board to be held in accordance with the contested case provisions of article five, chapter twenty-nine-a of this code.
§19-9B-20. Seizure; return; bond.
(a) A nonnative species may be seized immediately by the board if:
(1) The possessor does not have a possession permit as required by section twelve of this article;
(2) The possessor does not secure and maintain liability insurance as required by section eighteen of this article;
(3) The possessor is not in compliance with the provisions of this article; or
(4) A nonnative species poses a threat to humans, other animals, wildlife or the state's agricultural or forestry industries or other natural resource interests.
(b) A nonnative species which was seized by the board may be returned to the possessor only if the possessor has a possession permit, is in compliance with this article and a nonnative species poses no threat to humans, other animals or plant life.
(c) If a nonnative species is seized under this section, the possessor shall post bond in accordance with the requirements of section eight of this article.
§19-9B-21. Penalties for violation of article.
(a) Any person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars for the first offense and for each subsequent offense, shall be fined not less than five hundred dollars nor more than one thousand dollars or confined in jail not more than six months, or both. Magistrates have concurrent jurisdiction with circuit courts to enforce the provisions of this article.
(b) Any person violating the provisions of this article or rule promulgated pursuant to this article may be assessed a civil penalty by the board. In determining the amount of the civil penalty, the board shall give due consideration to the history of previous violations by the person, the seriousness of the violation, including any hazards to agriculture, natural resources, or public health in West Virginia and the demonstrated good faith of the person charged in attempting to achieve compliance with this article after written notification of the violation.
(1) The board may assess a penalty of not more than one hundred dollars for the first offense or less serious violation as determined by the board, and not more than one thousand dollars for a serious, repeat or intentional violation, as determined by the board.
(2) In addition to the civil penalty, the board may assess the costs to the state to recover the animal, house the animal, dispose of the animal or moneys otherwise expended by the state to control the spread of or to prevent the introduction of disease and parasites.
(3) The board may negotiate and enter into a settlement agreement for the payment of civil penalties and assessed costs.
(4) The civil penalty and assessed costs are payable to the State of West Virginia and are collectable in any manner authorized by law for the collection of debts. Any person liable to pay a civil penalty or any assessed costs who neglects or refuses to pay the same within thirty days of written notice of demand for payment, shall be assessed interest at the rate of ten percent per year from the date the penalty and assessed costs were imposed to the date of payment. The penalty, costs and interest constitute a lien in favor of the State of West Virginia and shall attach on the person's property when a lien is properly recorded in the county wherein the property is situated. There shall be no cost as a condition precedent to recording.
(5) All civil penalties and assessed costs collected pursuant to this article shall be deposited in the Animal Regulation Fees Fund.
(6) A state court may not allow the recovery of damages for administrative action taken if the court finds that there was probable cause for the action. In the event that a court determines that probable cause did not exist for an action and that compensation is necessary, the compensation shall not exceed the fair market value of the nonnative species at issue. The board shall pay damages as determined by a state court provided funds are available.
NOTE: The purpose of this bill is to provide for a scheme of regulation for the sale, possession and breeding of nonnative species. Toward this goal the bill contains provisions which address the following: (1) Defining certain terms; (2) creating the Nonnative Species Regulation Board; (3) establishing duties; (4) establishing a special revenue account and authorizing expenditures; (5) providing rule-making authority; (6) delineating the jurisdiction of member agencies; (7) providing owner liable for the cost of care of seized nonnative species and bonding requirements; (8) requiring pet shop registration, renewal and fee; (9) requiring pet shop to keep records and provide certain notification; (10) requiring permit to possess or breed nonnative species and providing permit application process and permit requirements; (11) providing for exemptions; (12) requiring identification number on nonnative species; (13) establishing caging, care and treatment requirements; (14) requiring liability insurance; (15) authorizing certain inspections; (16) providing for denial of a permit; (17) specifying conditions under which nonnative species may be seized; and (18) establishing civil and criminal penalties.
This article is new; therefore, strike-throughs and underscoring have been omitted.
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