W. Va. Code R. § 61-23B-4

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

Section 61-23B-4 - Powers and Duties of the Commissioner

4.1. The commissioner may:

4.1.a. Enter and inspect, during reasonable hours, any location, where shellfish are processed, sold, stored, or transported for human consumption. The inspection may include, but is not limited to, photographing, videotaping, verifying, copying, and auditing computer files, records and papers relating to the processing of fish or shellfish for human food as is necessary to determine compliance with this rule and to investigate consumer complaints;

4.1.a.1. The inspection also may include, but is not limited to, photographing, videotaping, verifying, and observing the premises, vehicles, personnel, and activities.

4.1.b. Examine, sample and test water, fish, shellfish, pesticides, raw materials, other ingredients, containers, packaging, and products used or intended for use in the processing, storage, sale, or transportation of shellfish for human consumption;

4.1.c. Cooperate with and enter into agreements with governmental agencies of this state and any other states, agencies of the federal government and foreign governments, and private associations to carry out the purpose and provisions of this rule;

4.1.d. Detain, embargo, or quarantine shellfish, processing areas, holding areas, or transporting vehicles by affixing onto the detained, embargoed, or quarantined item a tag or other appropriate marking, and giving notice of the detention, embargo, or quarantine in writing to the processor, holder, or transporter. The commissioner may take this action when shellfish have been found to be or are believed to be:

4.1.d.1. In violation of the provisions of this rule; or

4.1.d.2. Infected with a human pathogen that could present a public health safety hazard.

4.1.d.2.A. Upon confirmation of a violation of this rule or the presence of a human pathogen, the commissioner may seize or condemn the shellfish and order the shellfish disposed of as necessary to ensure the safety of consumers.

4.1.e. Embargo, detain, or quarantine a perishable product, even if the practical result is to bring about the involuntary disposal of the product;

4.1.e.1. The commissioner shall exercise this power using all reasonable means to determine if the product is adulterated or otherwise not in compliance with this rule in as short a time frame as possible and shall promptly lift the embargo order if the product is found to be in compliance with this rule.

4.1.f. Issue, suspend, revoke, or deny certifications in accordance with this rule;

4.1.g. Inspect and copy all records required by this rule. All requested records shall be made available to the commissioner within 24 hours of his or her request. Records kept on computer files shall have a backup file on a separate disk, or hardcopy;

4.1.h. Develop appropriate inspection, embargo, quarantine, detainment, and other regulatory forms as necessary for the enforcement of this rule; and

4.1.i. Assess civil penalties and refer violations to a court of competent jurisdiction for the violation of this rule as allowed under West Virginia laws. Nothing in this rule shall be construed as requiring the commissioner to assess a civil penalty, report for prosecution or institute an embargo, detainment, or quarantine for the violation of this rule when he or she believes that the public interest may best be served by a written notice of the violation.

4.2. The commissioner shall be guided by the analytical test results when determining if shellfish conform to this rule and other rules and laws of the State of West Virginia.

W. Va. Code R. § 61-23B-4