H. B. 2774
(By Delegates Stemple,
Anderson, Pethtel, Beach and
[Introduced January 9, 2008; referred
Committee on Agriculture and Natural
Resources then the Judiciary.]
Be it enacted by the Legislature of West Virginia:
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
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.
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
(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
(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
(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
(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
(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
(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
(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
(c) A pet shop owner or operator shall pay the applicable registration or
§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.
(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
(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
(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
§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
(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
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
(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