W. Va. Code R. § 61-14-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 61-14-13 - Assessment of Civil Penalties and Procedures for Consent Agreements and Negotiated Settlements

13.1. Procedure

13.1.a. The civil penalty assessment procedures in this section are designed to include most violations of W. Va. Code § 19-12-1 et seq. committed by nurseries and dealerships. However, there may be situations which arise that are not adequately covered by this section. In those cases, the enforcement officer shall determine an appropriate course of action and make a recommendation for that action to the Commissioner. After review of the circumstances, the Commissioner may concur with the recommendation or give direction for other appropriate action as prescribed under the authority of W. Va. Code § 19-12-1 et seq.

13.1.b. The time interval between the first offense and each repeated offense, beyond which the Commissioner will take no enforcement action and clear the violator's records, is limited to two years for all inspection and plant certification violations. There is no time limit for registration, quarantine, administrative order, and insect, noxious weed and plant pest dissemination violations.

13.1.c. The enforcement officer reviewing a case shall prepare a finding of fact surrounding any discovered violation of W. Va. Code § 19-12-1 et seq. Once a violation is discovered the enforcement officer shall determine:

13.1.C.A. The appropriateness of a civil penalty or criminal enforcement action; and

13.1.C.B. The character of the violation and the appropriate enforcement level as stated in the schedule of penalties contained in Table 61-14-A of this Rule. The violations are categorized into the following types:

13.1.c.B.(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.

13.2. Consent Agreements and Negotiated Settlements.

13.2.a. Consent agreements or negotiated settlements are intended as a mechanism to settle violations without expensive costs to both parties for administrative or criminal hearings. The violations cited in the notice of violation are capable of being recognized by the violator and the penalty settlement can be accomplished without a hearing. The enforcement officer shall provide the violator a written notice of violation, by certified mail or personal service, which includes a finding of fact and a proposed level of enforcement action. If the violator agrees with the proposed level of action, he or she shall sign a consent agreement form and return it with payment of the assessed penalty.

13.2.b. Negotiated Settlement - Right to informal hearing. In the event that the violator disagrees with the findings of the investigation or the level of enforcement action, the violator has twenty (20) calendar days from receipt of the notice of civil penalty to request a hearing. The violator has the option of requesting an informal hearing or may request a formal hearing as prescribed under Subdivision 11.2.g. of this rule. During an informal hearing the violator may submit to the compliance officer any mitigating circumstances as to why the compliance officer should alter the investigative findings or level of enforcement action.

13.2.c. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty-day period, the compliance officer shall schedule a hearing in accordance with the following procedures:

13.2.C.A. The compliance officer shall notify any authorized representative of the Commissioner who was involved in the investigation of the violation bringing about the informal hearing, and the violator of the time and place of the informal hearing. In scheduling the location of the informal hearing, the compliance officer shall consider the location of the violation and the violator. The compliance officer may schedule the hearing anywhere in the State of West Virginia;

13.2.C.B. The compliance officer shall notify the parties at least fifteen (15) calendar days prior to the time of the hearing; and

13.2.C.C. The compliance officer may continue the informal hearing only for good cause shown.

13.2.d. Informal Hearing Procedures. An informal hearing, as provided by this Rule, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation. The compliance officer shall conduct the hearing in the following manner:

13.2.d.A. The compliance officer shall not strictly apply The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence;

13.2.d.B. The compliance officer shall not discuss the case "ex parte" with either the enforcement officer or other department employees involved in the case;

13.2.d.C. A record of the informal hearing is not required, but any party may request that a record be made at that party's expense. Any other party to the hearing may obtain copies of the record at his or her expense; and

13.2.d.D. At any formal review proceedings which may occur later, no evidence, as to any statement made by one party at the informal hearing, may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

13.2.e. Negotiated Settlement - Any settlement of the alleged violation based on agreement between the compliance officer and the violator is a negotiated settlement. The violator and the compliance officer shall sign the negotiated settlement document.

13.2.f. Written Decision

13.2.f.A. If the violator and the compliance officer are unable to reach an agreement, the compliance officer shall recommend a penalty to the Commissioner.

13.2.f.B. Within thirty (30) calendar days following the informal hearing, the Commissioner shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and give the reasons for his or her decision.

13.2.g. Contested Cases, Right to a Formal Hearing.

13.2.g.A. As provided in Subdivision 11.2.B. of this Rule or within thirty (30) calendar days after notification of a written decision rendered as a result of an informal hearing, the violator may request a formal hearing before the Commissioner. An administrative hearing officer shall conduct the hearing and the hearing shall comply with the Administrative Procedures Act, W. Va. Code § 29A-5-l et seq.

13.2.g.B. If no hearing is requested, the compliance officer's decision becomes a final order after the expiration of the thirty-day period and the civil administrative penalty is due and payable.

W. Va. Code R. § 61-14-13