HOUSE OF REPRESENTATIVES
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CIVIL LIABILITY FOR THE INTRASTATE TRANSPORT OF INVASIVE SPECIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that immediate action is needed to further protect Hawaii from the movement of invasive species between islands.
In 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 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 transport 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. The 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 interisland commerce. In December 2013, the little fire ant was detected at several nurseries on Oahu and Maui on hapu‘u 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 the 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 the 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. Public reports are the best method to detect new populations of little fire ants and coqui frogs that have breached the State's quarantine system.
The legislature further finds that residents and businesses on islands where these pests have become widespread are suffering enormous financial losses and a reduced quality of life and that additional support is needed to develop effective control methods.
The purpose of this Act is to:
(1) 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;
(2) Support development of additional tools to stop the movement of invasive species between islands; and
(3) Provide necessary funds to achieve the objectives of this Act.
SECTION 2. 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. As used in this part:
"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.
"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 of agriculture 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:
(B) Larvae; or
(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.
"Widespread 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.
§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:
(B) Mulch; or
(5) Used soil-moving equipment, unless all non-compacted soil is removed; 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 part. As soon as practicable, either the area shall be added to the designated quarantined areas set forth 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 may be moved intrastate from a quarantined area into or through a non-quarantined area only if moved 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 all of the following conditions are 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 regulated 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 inspector'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, coqui frog, or other species designated by the department;
(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 the 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 designated by the department 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 interisland quarantine program, including the use of compliance agreements modeled after that used by the United States Department of Agriculture's animal and plant health inspection service as set forth in title 7 Code of Federal Regulations sections 301.81, et seq.
(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 the 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. Participating nurseries shall operate under a compliance agreement in accordance with this part. The 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 nursery premises free of little fire ants or coqui frogs, 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 the program, nursery plants that are transported shall originate in a nursery that meets the requirements of this part. Nurseries shall implement a treatment program with registered bait and contact insecticides for the little fire ant and hot water treatment or other department-approved treatments for coqui frogs. The premises, including growing and holding areas, shall be maintained free of the little fire ant and coqui frog. As part of the 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, treatment of soil and potting media in accordance with standards established by management plans developed by the department prior to planting is required.
(f) For plants received by participating nurseries from outside sources, to prevent the spread into a nursery free of the imported fire ant and coqui frogs 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 shall be either:
(A) Repotted in treated potting soil media;
(B) Retreated in accordance with management plans under this part at the specified interval; or
(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 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. The 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 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 this part, 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 part and not in conflict 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- Information sharing. The department shall make available online on a monthly basis the numbers and locations by island of all interceptions of little fire ants, coqui frogs, and any other species designated by the department detected by department inspectors.
§150A- Penalties. Any person who moves infested regulated articles intrastate in violation of this part shall be subject to a fine equal to the value of the shipment or $10,000, whichever is greater."
SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2014-2015 to the department of agriculture for enforcing restrictions on intrastate movement of regulated articles and the establishment of an interisland quarantine program to control intrastate movement of invasive species.
The sum appropriated shall be expended by the department of agriculture for the purposes of this part.
SECTION 4. (a) There is established within the Hawaii invasive species council an invasive species task force to address the continued movement of invasive plants, plant pests, and vertebrate pests between islands.
(b) The invasive species task force shall:
(1) Consider and propose recommendations to address the continued movement of invasive plants, plant pests, and vertebrate pests between islands;
(2) Gather relevant background data on invasive species that pose a threat to Hawaii;
(3) Assess the current and future impact of invasive species to Hawaii;
(4) Examine and assess existing methods for addressing invasive species in Hawaii;
(5) Examine needed state policies or responses to address the continued movement of invasive species between islands; and
(6) Examine other concerns of the task force regarding invasive species movement in Hawaii.
(c) The invasive species task force shall consist of representatives from the following departments, sectors, and organizations:
(1) Department of land and natural resources;
(2) Department of agriculture;
(3) Department of health;
(4) Department of business, economic development, and tourism;
(5) Department of transportation;
(6) University of Hawaii;
(10) Tourism; and
(11) Others as determined by the Hawaii invasive species council.
(d) Members of the task force shall designate a chair from among themselves and serve without compensation for their service on the task force, but may be reimbursed for reasonable expenses, including travel expenses, incurred for serving on the task force.
(e) The invasive species task force shall meet at least four times to develop a comprehensive set of recommendations and shall submit a report of its findings and recommendations to the legislature no later than twenty days prior to the convening of the regular session of 2015.
(f) The invasive species task force shall be dissolved on July 1, 2015.
SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2014-2015 to establish the invasive species task force to address the continued movement of invasive plants, plant pests, and vertebrate pests between islands, including the use for facilitation or consultant services necessary to gather relevant background data and travel to ensure adequate statewide representation.
The sum appropriated shall be expended by the Hawaii invasive species council for the purposes of this part.
SECTION 6. This Act shall take effect on July 1, 2030.
Invasive Species; Civil Liability; Intrastate Transport; Task Force; Appropriation
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. Appropriates funds to the department of agriculture to enforce restrictions on intrastate movement of invasive species. Establishes and appropriates funds for an invasive species task force to address the continued movement of invasive plants, plant pests, and vertebrate pests between islands. Effective July 1, 2030. (HB1994 HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.