THE SENATE

S.B. NO.

2347

TWENTY-SEVENTH LEGISLATURE, 2014

S.D. 2

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO INVASIVE SPECIES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


PART I

     SECTION 1.  The legislature finds that coqui frogs are designated as a pest pursuant to section 141-3, Hawaii Revised Statutes.  The legislature also finds that the department of agriculture is participating in a multi-agency campaign to stop the spread of coqui frogs in Hawaii.  Since the spread of coqui frogs and other pests are associated with the movement of household potted plants and leaf litter, one way to control the movement and growth of the coqui frog population is to eradicate them before the sale or transport of nursery stock that may contain pests such as coqui frogs.

     The purpose of this part is to require owners or persons in charge or in possession of certified and non-certified nursery stock to properly treat plants for the eradication of pests before the sale or transport of the nursery stock within the State or intraisland.

     SECTION 2.  Chapter 150A, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:

     "§150A-    Nursery stock treatment requirements.  (a)  Nursery stock infested with little fire ants, coqui frog, or any other pest designated pursuant to section 141-3 for control or eradication shall not be sold or transported from one island to another island within the State or from one locality to another on the same island unless the nursery stock has been subjected to appropriate treatment in accordance with management plans developed by the department pursuant to part       of this chapter.  This requirement shall apply whether the nursery stock is from a certified or non-certified nursery.

     (b)  Nurseries or landscapers who fail to treat their nursery stock in accordance with subsection (a) prior to transport shall be responsible for appropriate treatment at their own expense to exterminate the pest from:

     (1)  Nursery stock on infested properties where proof of sale or placement of their nursery stock has been made; and

     (2)  Any other nursery stock on the affected properties that has been infested by the transported nursery stock.

     (c)  For purposes of subsection (b)(1), if proof of sale or placement is not documented, persons with knowledge of pest infestation on their property shall take and maintain appropriate pest control and extermination measures at their own expense.

     (d)  Nurseries or landscapers with knowledge of pest infestation on their properties shall take and maintain vigilant and appropriate control and extermination measures on their property against any pest designated pursuant to section 141-3 and shall bear the expense of these efforts."

     SECTION 3.  Section 150A-14, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  Any person who:

     (1)  Violates section 150A-6(3) or 150A-6(4)[,] with gross negligence, or owns [or intentionally], transports, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section 150A-7(b), or whose violation involves an animal that is prohibited or a plant, animal, or microorganism that is restricted, without a permit, shall be guilty of a misdemeanor and subject to a fine of not less than $5,000, but not more than $20,000;

     (2)  [Intentionally transports,] Transports, harbors, or imports [with the intent to propagate, sell, or release] any animal that is prohibited or any plant, animal, or microorganism that is restricted, without a permit, shall be guilty of a class C felony and subject to a fine of not less than $50,000, but not more than $200,000; or

     (3)  [Intentionally imports,] Imports, possesses, harbors, transfers, or transports, including through interisland or intraisland movement, [with the intent to propagate, sell, or release,] any pest designated by statute or rule, unless otherwise allowed by law, shall be guilty of a class C felony and subject to a fine of not less than $50,000, but not more than $200,000."

     SECTION 4.  Section 150A-22, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§150A-22[]]  Responsibility for treatment.  Any treatment of certified and non-certified nursery stock which may be required under the provisions of law shall be at the risk and at the expense of the owner or persons in charge or in possession thereof at the time of treatment, unless otherwise provided."

PART II

     SECTION 5.  The legislature finds that immediate action is needed to further protect Hawaii from the movement of invasive species between islands.

     Through Act 85, Session Laws of Hawaii 2003, the legislature recognized the silent invasion of Hawaii by alien invasive species as the single greatest threat to Hawaii's economy, natural environment, and the health and lifestyle of Hawaii's people and visitors.

     The legislature further finds that the State has spent millions of dollars to control the invasive coqui frog, but control efforts were too late to stop its spread across the island of Hawaii, where it now infests hundreds of thousands of acres, affecting tourism revenues, property values, residents' quality of life, and the environment.  The coqui frog has been eradicated from Kauai and eradicated from most of the infested sites on Maui; however, the frog continues to be transported to islands via shipments of landscape materials from infested nurseries and plant providers on the island of Hawaii.  Some businesses on the other islands have become "revolving doors" for the reintroduction of coqui frogs, requiring constant expenditure of human and financial resources to detect and control new introductions.  Each year, the department of agriculture and local invasive species committees respond to hundreds of new reports of coqui frogs.  Coqui frogs have been detected in shipments of plant materials to Molokai on at least four different occasions.  Equipment and vehicles may also vector coqui frogs to new locations.

     The non-native little fire ant is widespread in the Hilo area and has now been detected in Waipio valley and Kona coffee farms.  This little fire ant causes blindness in pets and livestock and threatens ground-nesting wildlife, agricultural production, and human health.  The little fire ant has been successfully contained to one location on Kauai and almost eradicated from Maui, but it is known to be moving in inter-island commerce.  In December 2013, the little fire ant was detected at several nurseries on Oahu and Maui on hapuu tree ferns, and as a result, now appears to be established at several locations on Oahu.  The little fire ant can be moved via plants, cut flowers, fruit, soil, sand, equipment, and vehicles.

     The legislature further finds that the constant reintroduction of these and other harmful and highly invasive species creates an unfair financial burden on islands where such pests are not known to occur or where active detection and control operations exist.  The continued reintroduction of invasive species threatens to undermine or destroy ongoing efforts to keep such pests from becoming established.  Existing law prohibits the movement of pest species inter-island and authorizes the department of agriculture to inspect and quarantine any infested materials.  However, the department lacks adequate inspection capability, and some pests, such as the little fire ant and coqui frog, are exceptionally difficult to detect.

     The purpose of this part is to establish an affirmative responsibility on the consignor of any landscape material or products, agricultural goods, construction materials, equipment, vehicles, soil, or sand to prevent the movement of coqui frogs, little fire ants, and other species designated by the department of agriculture.

     SECTION 6.  Chapter 150A, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part    .  Restrictions on intrastate movement of regulated articles

     §150A-    Restrictions on intrastate movement of regulated articles.  No person shall move any regulated article intrastate from any quarantined area except in accordance with this part.

     §150A-    Definitions.

     "Certificate" means a document in which an inspector affirms that a specified regulated article meets the requirements of this part and may be moved intrastate.

     "Compliance agreement" means a written agreement between the department and a person engaged in growing, handling, or moving regulated articles that are moved intrastate, in which the person agrees to comply with this part and any conditions imposed under this part.

     "Coqui frog" means living frogs of the species Eleutherodactylus coqui.

     "Infestation" means any island where little fire ant colonies, coqui frog colonies, or any other species as designated by the department, are present on more than twenty-five acres and no active control or containment efforts are underway.

     "Limited permit" means a document in which an inspector affirms that a specified regulated article not eligible for a certificate is eligible for intrastate movement only to a specified destination and in accordance with conditions specified on the permit.

     "Little fire ant" means living ants of the species Wasmannia auropunctata.

     "Management plan" means a plan prepared by the department that includes acceptable treatment options for infestations of the little fire ant, coqui frog, or any other species designated by the department.

     "Movement" or "moved" means the act of shipping, transporting, delivering, or receiving for movement, or otherwise aiding, abetting, inducing, or causing to be moved.

     "Non-compacted soil" means soil that can be removed from an article by brisk brushing or washing with water under normal water pressure.

     "Reproducing colony" means:

     (1)  A combination of one or more little fire ant workers and one or more of the following immature little fire ant forms:

         (A)  Eggs;

         (B)  Larvae; or

         (C)  Pupae;

     (2)  A male and female coqui frog or a male coqui frog and coqui frog eggs; or

     (3)  Other forms or species designated by the department.

     "Soil-moving equipment" means equipment used for moving or transporting soil, including but not limited to bulldozers, dump trucks, or road scrapers.

     §150A-    Regulated articles.  The following are regulated articles:

     (1)  Little fire ant queens and reproducing colonies of little fire ants;

     (2)  Coqui frogs and reproducing colonies of coqui frogs;

     (3)  Baled hay and baled straw stored in direct contact with the ground;

     (4)  Non-propagated material related to agriculture, including but not limited to:

         (A)  Compost;

         (B)  Mulch; or

         (C)  Fertilizer;

     (5)  Used soil-moving equipment, unless removed of all non-compacted soil; and

     (6)  Any other article or means of conveyance that an inspector determines presents a risk of spreading the little fire ant, coqui frog, or any other species designated by the department due to its proximity to an infestation of the little fire ant, coqui frog, or the designated species.

     §150A-    Quarantined areas.  (a)  The department shall quarantine each portion of the State that is infested.

     (b)  Less than an entire island may be listed as a quarantined area only if the department determines that:

     (1)  The county of which the island is a part has adopted and is enforcing restrictions on the intrastate movement of the regulated articles listed in this part that are equivalent to the restrictions on intrastate movement imposed by this part; and

     (2)  Designating less than the entire island as a quarantined area will prevent the spread of the little fire ant, coqui frog, or any other species designated by the department.

     (c)  The department may include uninfested acreage within a quarantined area due to its proximity to an infestation or inseparability from the infested locality for quarantine purposes, as determined by:

     (1)  Projections of the spread of little fire ants, coqui frogs, or any other species designated by the department around the periphery of the infestation, as determined by previous years' surveys;

     (2)  Availability of natural habitats and host materials, within the uninfested acreage, suitable for establishment and survival of populations of the little fire ant, coqui frog, or any other species designated by the department; and

     (3)  Necessity of including uninfested acreage within the quarantined area in order to establish readily identifiable boundaries.

     (d)  The department or an inspector may temporarily designate any non-quarantined area as a quarantined area in accordance with the criteria specified in subsections (a), (b), and (c).  The department shall give written notice of this designation to the owner or person in possession of the non-quarantined area, or, in the case of publicly owned land, to the person responsible for the management of the non-quarantined area; thereafter, the intrastate movement of any regulated article from an area temporarily designated as a quarantined area is subject to this section.  As soon as practicable, either this area shall be added to the list of designated quarantined areas in subsection (e), or the department shall terminate the designation.  The department shall give written notice of the termination as soon as practicable to the owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which the designation is terminated.

     (e)  The designated quarantined areas include the county of Hawaii.

     §150A-    Intrastate movement of regulated articles from quarantined areas.  (a)  Any regulated article shall be moved intrastate from a quarantined area into or through a non-quarantined area under the following conditions:

     (1)  With a certificate or limited permit issued and attached in accordance with this part;

     (2)  Without a certificate or limited permit; provided that each of the following conditions is met:

         (A)  The regulated article was moved into the quarantined area from an area that was non-quarantined at the time the regulated article was taken;

         (B)  The point of origin is indicated on a waybill accompanying the regulated article;

         (C)  The regulated article is moved through the quarantined area without stopping except for refueling, or for traffic conditions, such as traffic lights or stop signs, or has been stored, packed, or parked in locations inaccessible to the little fire ant, coqui frog, or any other species designated by the department, or in locations that have been treated in accordance with management plans under this part prepared by the department, while in or moving through any quarantined area; and

         (D)  The article has not been combined or commingled with other articles so as to lose its individual identity; or

     (3)  Without a certificate or limited permit; provided that the regulated article is a soil sample being moved to a laboratory approved by the department to process, test, or analyze soil samples.

     (b)  Any treatments shall be in accordance with management plans developed by the department.

     §150A-    Issuance of a certificate or limited permit.  (a)  An inspector may issue a certificate for the intrastate movement of a regulated article approved under a compliance agreement if it determines that the regulated article:

     (1)  Is eligible for unrestricted movement under all other applicable domestic plant quarantine regulations;

     (2)  Is to be moved intrastate in compliance with any additional conditions deemed necessary under state law to prevent the spread of the little fire ant, coqui frog, or any other species designated by the department; and

     (3)  Meets at least one of the following criteria:

         (A)  Is free of infestations of the little fire ant, coqui frog, or any other species designated by the department, based on the individual's visual examination of the article;

         (B)  Is grown, produced, manufactured, stored, or handled in a manner that would prevent infestation or would destroy all life stages of the little fire ant or coqui frog;

         (C)  Is treated in accordance with department management plans developed under this part; or

         (D)  If the article is containerized nursery stock, has been produced in accordance with requirements established under management plans developed under this part.

     (b)  An inspector shall issue blank certificates to a person operating under a compliance agreement in accordance with this part or authorize reproduction of the certificates on shipping containers, or both, as requested by the person operating under the compliance agreement.  These certificates may then be completed and used, as needed, for the intrastate movement of regulated articles that have met all of the requirements of subsection (a).

     (c)  An inspector may issue a limited permit for the intrastate movement of a regulated article not eligible for a certificate if the inspector determines that the regulated article:

     (1)  Is to be moved intrastate to a specified destination for specified handling, utilization, or processing, where the destination and other conditions are listed in the limited permit, and this intrastate movement will not result in the spread of the little fire ant, coqui frog, or other species designated by the department because the little fire ant, coqui frog, or other species will be destroyed by the specified handling, utilization, or processing; and

     (2)  Is to be moved intrastate in compliance with any conditions that the department may impose under this part to prevent the spread of the little fire ant, coqui frog, or other species designated by the department.

     §150A-    Compliance agreements.  (a)  The department shall develop and implement a comprehensive and effective inter-island quarantine program, including the use of compliance agreements patterned after the United States Department of Agriculture's animal plant health inspection service as set forth in title 7 Code of Federal Regulations section 301.81.

     (b)  Any person who grows, handles, or moves regulated articles intrastate may enter into a compliance agreement if the person reviews each stipulation of the compliance agreement with an inspector, has facilities and equipment to carry out disinfestation procedures or application of chemical materials in accordance with management plans developed under this part, and meets applicable state training and certification standards.  Any person who enters into a compliance agreement with the department shall agree to comply with this part and any conditions imposed under this part.

     §150A-    Cancellation of a certificate, limited permit, or compliance agreement.  An inspector may cancel, orally or in writing, any certificate, limited permit, or compliance agreement whenever the inspector determines that the holder of the certificate or limited permit, or the person who has entered into the compliance agreement, has not complied with this part or any conditions imposed under this part.  If the cancellation is oral, the cancellation shall become effective immediately and the cancellation and reasons for the cancellation shall be confirmed in writing as soon as circumstances allow but within twenty days after oral notification of the cancellation.  Any person whose certificate, limited permit, or compliance agreement has been canceled may appeal the decision, in writing, within ten days after receipt of the written cancellation notice.  The appeal shall state all of the facts and reasons the department should consider in deciding the appeal.  A hearing may be held to resolve any conflict as to any material fact.  The department shall adopt rules for the hearing in accordance with chapter 91.  As soon as practicable, the department shall grant or deny the appeal, in writing, stating the reasons for the decision.

     §150A-    Assembly and inspection of regulated articles.  (a)  Persons requiring certification or other services shall coordinate the services with an inspector at least forty-eight hours before the services are needed.

     (b)  The regulated articles shall be assembled at the place and in the manner the inspector determines is necessary to comply with this part.

     §150A-    Attachment and disposition of certificates and limited permits.  (a)  Any person transporting a regulated article intrastate shall ensure that the certificate or limited permit authorizing intrastate movement of the regulated article is, at all times during intrastate movement, attached to:

     (1)  The outside of the container encasing the regulated article;

     (2)  The article itself, if it is not in a container; or

     (3)  The consignee's copy of the accompanying waybill; provided that any description of the regulated article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article.

     (b)  The consignor shall furnish the certificate or limited permit authorizing intrastate movement of a regulated article or cause the certificate or limited permit to be furnished to the consignee at the shipment's destination.

     §150A-    Little fire ant and coqui frog detection, control, exclusion, and enforcement program for nurseries producing containerized plants.  (a)  There is established in the department a little fire ant and coqui frog detection, control, exclusion, and enforcement program for nurseries producing containerized plants.  The program is designed to keep nurseries free of the little fire ant and coqui frog, and provide a basis to certify containerized nursery stock for intrastate movement.  Nurseries that agree to participate in the program shall operate under a compliance agreement in accordance with this part.  Such compliance agreements shall state the specific requirements that a nursery agrees to follow to move plants in accordance with the requirements of the program.  Certificates and a nursery identification number may be issued to the nursery for use on shipments of regulated articles.

     (b)  Participating nurseries shall survey their entire premises twice a month for the presence of little fire ants and coqui frogs using protocols established by the department.

     (c)  Participating nurseries shall be inspected by an inspector at least twice per year.  More frequent inspections may be necessary depending upon little fire ant or coqui frog infestation levels immediately surrounding the nursery, the thoroughness of nursery management in maintaining a little-fire-ant-free or coqui frog-free premises, and the number of previous detections of little fire ants or coqui frogs in or near containerized plants.  Any nurseries determined during nursery inspections to have little fire ant or coqui frog colonies shall be immediately treated to the extent necessary to eliminate the colonies.

     (d)  Under this program, nursery plants that are transported shall originate in a nursery that meets the requirements of this part.  Nurseries shall implement a treatment program in accordance with a management plan developed by the department of agriculture.  The premises, including growing and holding areas, shall be maintained free of the little fire ant and coqui frog.  As part of this treatment program, all exposed soil surfaces, including sod and mulched areas, on property where plants are grown, potted, stored, handled, loaded, unloaded, or sold shall be treated with approved insecticide or pesticide consistent with departmental standards.  Follow-up treatments with a contact insecticide in accordance with management plans under this part shall be applied to eliminate all remaining colonies.

     (e)  For plants grown on the premises of participating nurseries, soil and potting media shall be treated in accordance with standards established by management plans developed by the department prior to planting.

     (f)  For plants received by participating nurseries from outside sources, to prevent the spread into a nursery free of the imported fire ant or coqui frog by newly introduced, infested nursery plants, all plants shall be:

     (1)  Obtained from nurseries in compliance with the requirements of this section and that operate under a compliance agreement in accordance with this part; or

     (2)  Treated upon delivery in accordance with management plans under this part, and within the specified number of days be either:

         (A)  Repotted in treated potting soil media;

         (B)  Retreated in accordance with management plans under this part at the specified interval; or

         (C)  Transported.

     (g)  Participating nurseries shall maintain records of the nursery's surveys and treatments for the little fire ant or coqui frog.  These records shall be made available to the department upon request.

     (h)  If an inspector detects little fire ants or coqui frogs in nursery stock of a participating nursery, issuance of certificates for intrastate movement shall be suspended until necessary treatments are applied and the plants and nursery premises are determined to be free of the little fire ant and coqui frog.  The department may declare a nursery to be free of the little fire ant and coqui frog upon reinspection of the premises.  This inspection shall be conducted no sooner than thirty days after treatment.  During this period, certification may be based upon treatments for plants in accordance with management plans developed by the department under this part.

     (i)  Upon notification by the county that a confirmed little fire ant or coqui frog infestation was found on a shipment from a nursery that had until then been considered free of the little fire ant, the department shall cease its certification of shipments from that nursery.  An investigation shall commence immediately to determine the probable source of the problem and to ensure that the problem is resolved.  If the problem is an infestation, issuance of certification for movement on the basis of little-fire-ant-free or coqui frog-free premises shall be suspended until treatment and elimination of the infestation is completed.  Reinstatement into the program may be granted upon determination that the nursery premises are free of the little fire ant or coqui frog, and that all other provisions of this part are being followed.

     (j)  In cases where the issuance of certificates is suspended through oral notification, the suspension and the reasons for the suspension shall be confirmed in writing within twenty days of the oral notification of the suspension.  Any nursery whose issuance of certificates has been suspended may appeal the decision, in writing, within ten days after receipt of a written suspension notice.  The appeal shall state all of the facts and reasons that the department should consider in deciding the appeal.  A hearing may be held to resolve any conflict as to any material fact.  The department shall adopt rules for the hearing in accordance with chapter 91.  As soon as practicable, the department shall grant or deny the appeal, in writing, stating the reasons for the decision.

     §150A-    County authority.  Unless and until the department implements these provisions, including the adoption of any necessary rules, any county may establish its own requirements by ordinance to prevent the introduction of infested, regulated articles, consistent with the intent of this law and consistent with any departmental rules, including but not limited to:

     (1)  Development of a little-fire-ant free certification program;

     (2)  Development of a coqui-frog-free certification program; and

     (3)  Treatment requirements for regulated articles being moved to any island of the county.

     §150A-    Penalties.  Any person who moves infested regulated articles intrastate shall be subject to a fine equal to the value of the shipment or $10,000, whichever is greater."

PART III

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect upon its approval.


 


 

Report Title:

Invasive Species; Pests; Treatment of Nursery Stock; Penalty; Civil Liability; Intrastate Transport

 

Description:

Requires nursery stock that is infested with certain pests to be treated for the eradication of pests before the sale or transport of the nursery stock from one island to another island within the State or intraisland.  Requires an element of gross negligence, rather than intent, for a violation of section 150A‑6(3) or (4), Hawaii Revised Statutes, relating to the importation, possession, or transportation of certain animals, plants, or equipment that is harmful to agriculture, horticulture, animals, public health, or natural resources.  Eliminates the element of intent to propagate, sell, or release from the penalty for transporting, harboring, or importing prohibited animals or restricted plants, animals, or microorganisms without a permit and from the penalty for importing, possessing, harboring, transferring, or transporting any designated pest.  Establishes an affirmative responsibility on the consignor of any landscape material or products, agricultural goods, construction materials, equipment, vehicles, soil, or sand to prevent the movement of invasive species in Hawaii.  (SD2)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.