West Virginia Code of State Rules › Agency 61 - Agriculture › Title 61 - LEGISLATIVE RULE DEPARTMENT OF AGRICULTURE › Series 61-14 - West Virginia Plant Pest Act › Section 61-14-13 - Assessment of Civil Penalties and Procedures for Consent Agreements and Negotiated Settlements

Current through Register Vol. XLI, No. 28, July 12, 2024
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.(a)
				Registration Violations;
13.1.c.B.(b) Inspection Violations;
13.1.c.B.(c) Plant Certification
				Violations;
13.1.c.B.(d) Quarantine
				Violations; and
13.1.c.B.(e)
				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.