CHAPTER 325

FORMERLY

SENATE BILL NO. 306

AN ACT TO AMEND TITLE 3 OF THE DELAWARE CODE RELATING TO PLANT PESTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE. OF DELAWARE:

Section I. Amend Chapter 1 I. Title 3 of the Delaware Code by deleting it in its entirety and substituting in lieu thereof the following.

"§ I lnl. Definitions

The following words shall, for purposes of this Chapter. he defined as !bill:m.5:

(a) 'Agriculture' - the production of plants and animals useful to man, including all forms of farm products and farm production.

(b) 'Biological Control Agent(s). - any living organism which because of its parasitic. predatory or other biological characteristics, may be effective in the suppression or control of pests or plant pests.

- (e) 'Control (of a pest). - to curb or hold in check and includes. but is not limited to:

- abatement, containment, eradication. extermination or suppression.

(d) 'Dangerously Injurious Plant Pest' - a plant pest that constitutes a signilieanl threat to the agricultural, forest or horticultural interests or this State, or the State's general environmental quality.

(e) 'Department' - the State of Delaware Department of Agriculture and its officers. inspectors, employees, agents. or representatives.

(I) 'Environment' - the land, ail. water, animals, plants and other natural resources of the State, as they interact with or are affected by pests or plant pests.

(g) 'Horticultural product' - those products stated in Group 18 of the United States Department of Labor Standard Industrial Classification Manual which are grown under cover or outdoors, including bulbs, flowers, shrubbery, florist greens, ferns, fruit stock, floral products, nursery stock, ornamental plants, potted plants, house plants, roses, seed, Christmas trees, fruits, food crops grown in greenhouses, vegetables. and horticultural specialties not otherwise speci tied.

(g) 'Infected' - a plant that has been determined by the Department to be contaminated with an infectious, transmissible or contagious plant pest or so exposed to the albrementioned that contamination can reasonably be expected to exist. This includes disease conditions, regardless of their mode of transmission, or any disorder of plants which manifest symptoms which, alter investigation are determined by a federal or state pest prevention agency, to be characteristic of an infectious, transmissible, or contagious disease.

(h) 'Infested' - a plant that has been determined by the Department to be contaminated by a dangerously injurious plant pest, or so exposed to the aforementioned that contamination can reasonably be expected to exist.

(i) 'Mark' - to affix, for purposes of identification or separation, a conspicuous official indicator to, on, around, or near, plants or plant material, known or suspected to be, infected or infested with or by a dangerously injurious plant pest. This includes, but is not limited to: paint, markers, tags, seals, stickers, tape, signs or placards,

(k) Owner(s)' - includes, but is not limited to: the person, persons, family, group, firm, association, business, company, incorporated entity or organization with the legal right of possession, proprietorship of, or responsibility for, the property or place where any of the regulated articles defined in this Chapter are to be found, or person(s) who are in possession of, in proprietorship of, or have responsibility for the regulated articles.

(I) Person(s)' - includes, but is not limited to: individual, family, group, firm, association, business, company, incorporated entity or organization.

(m) 'Pest' - includes any biotic agent that is known to cause damage or harm to agriculture or the environment.

(m) - includes, but is not limited to: any part of a plant, tree, aquatic plant, plant
product, shrub, vine, fruit, rhizome, vegetable, seed, bulb, stolon, tuber, corm, pip, cutting, scion, bud, graft, or fruit pit, including:

( I ) Agricultural commodities - plant products including any horticultural product.

(2) Crop seed - the seed or seedlike fruit of grain, vegetables, fruits or fiber plants, or any other crop whether or not it is intended for planting purposes.

(3) Farm product - every agricultural, horticultural, viticultural, and vegetable product of the soil, and bees and apiary products, hay, dried beans, honey, and cut flowers.

(4) Nursery stock - any plant for planting, propagation, or ornamentation.

(5) Non-cultivated or feral plants gathered from the environment.

(6) Plants produced by tissue culture, cloning or from stem cell cultures or other prepared media culture.

(o)`Plant Pest'- includes, but is not limited to: any pest of plants, agricultural commodities, crop seed, farm products, horticultural products, nursery stock, or non-cultivated plants. This includes but is not limited to: insects, snails, nematodes, fungi, viruses, bacterium, microorganisms, mycoplasma-like organisms, weeds, plants or parasitic higher plants.

(p) 'Quarantine' - a legal instrument duly imposed or enacted by the Department as a means for mitigating pest risk. These actions include, but arc not limited to, confinement or restriction of entry, movement, shipment or transportation of plants known or suspected to be infected or infested with some dangerously injurious plant pests.

(q) 'Secretary' - the Secretary of the State of Delaware Department of Agriculture or his or her designee.

(r) "lenant(s)' - includes, but is not limited to: the person, persons, family, group, firm, association, business, company, incorporated entity or organization which rents or sublets, with the landlord's consent, the property or place, where regulated articles as defined in this Chapter are to be found.

§ 1102. Discovery and suppression of plant pest

(a) In order to prevent the introduction or to control dangerously injurious plant pests in the State, the Department shall seek out all dangerously injurious plant pests destructive to the agricultural, forest or horticultural interests of this State or the State's general environmental quality. As it deems necessary, the Department shall conduct research to accomplish the aforementioned duty.

(b) In order to prevent the spread of dangerously injurious plant pests, the Department shall issue orders for any control measures it deems necessary. These control orders may indicate the type of control to be utilized, the compound or material, and the manner or the time

of application. Control shall be obtained by any of the methods approved in Chapter 12 (Pesticides) of this title or any other legal treatment.

( c) Upon knowledge of the existence of a dangerously injurious plant pest within the State, the Department may conspicuously mark all plants known or suspected to be infected or infested with the plant pest. The Department shall notify the person(s), owner(s), or the tenant(s) in possession of the premises in question of the existence of the dangerously injurious plant pest and of the prescribed control measures. The aforementioned person(s) must, within the prescribed time limit, implement the conditions of the Department's control order or be subject to civil penalties as stated in this Chapter.

( d) The removal of markings placed by the Department, for the purpose of identification of plants infested or infected by dangerous injurious plant pests, by persons other than those authorized by the Department is an illegal act and punishable as a civil violation as prescribed in this Chapter.

( c) Should the person(s) associated with, or the owner(s) of, the plants infested or infected with the dangerously injurious plant pests, or the tenant(s) or owner(s) in possession of the premises wherein the plants are found, neglect, fail or refuse to apply the control measures prescribed by the Department, in the manner or at the times ordered and directed by the Department, then, the Department may cause the prescribed control measures to be applied at the expense of the aforementioned person(s). The Department shall, when it deems necessary, cause pest infected or infested plants to be destroyed at the expense of the aforementioned person(s) and the loss to fall upon the person(s) without any form of compensation.

(f) The Department in order to prevent the spread of dangerously injurious plant pests may apply necessary control measures at the expense of the person(s), owner(s), or tenant(s) associated with any and all suspicious plants found to be in dangerous proximity to those infested or infected by the aforementioned plant pest. Any control measures enacted under this section may be applied in a manner and at a time the Department deems necessary.

(g) The Department may enter into cooperative agreements with organizations, including but not limited to: persons, civic groups or governmental agencies, to adopt and execute plans to control areas infested or infected with dangerously injurious plant pests. Such cooperative agreements may include provisions of joint funding of any control treatment.

(h) If a dangerously injurious plant pest occurs and cannot be adequately controlled by individual person(s), owner(s), tenant(s) or local units of government, the Department may conduct the necessary control measures independently or on a cooperative basis with federal or other units of government.

(i) The Department's methods of operations shall not be limited to those specifically listed in this section.

§ 1103. Warning and information to farmers and other persons

(a) The Department, upon confirmation of an actionable infestation or infection of any dangerously injurious plant pest(s) shall warn the farmers and other persons residing in the county of the nature attic aforementioned plant pest, and the localities where it exists.

(b) The Department shall also furnish to farmers and persons of the county information and knowledge of the measures to be instituted to control the plant pest.

§ 1104. Failure to pay expenses of treating diseased plants and pesis: Penalty

(a) The Department shall, within 90 days, provide notice of all expenses incurred while controlling a dangerous injurious plant pest infestation or infection, to the person(s), owner(s), or tenant(s) associated with the aforementioned infected or infested plants.

(b) The Department shall, within 90 days, provide notice of all expenses incurred while controlling the spread of a dangerously injurious plant pest infestation or infection to plants

found in dangerous proximity, to the person(s). owner(s), or the tenant(s) associated with the aforementioned plants.

tel If the aligernentioned persoias owner(s) or tenant(s) fail, neglect or refuse. alter 31) days. to pay all the control expenses incurred by the Department or to establish a payment schedule approved by the Secretary, a el% il penally of not less than double the amount of the Department expenses incurred to control the dangerously injurious plant pest infestation or infection shall he imposed upon them.

(d) The afigementioned person( s). owner(s) or tenant(s) shall also be liable fur the imposition of a civil penalty as prescribed in this Chapter.

§ I I05. Establishment of smarantine restrictions

(a) Hie Department may establish quarantine restrictions in areas infested or infected with dangerously injurious plant pests and areas adjacent thereto. and adopt. issue and enforce rules and regulations relative to such quarantine.

lb) Under such quarantine restrictions. the Department shall prevent the movement. shipment. or transportation of agricultural, forest. horticultural or any other material capable of carrying the plant pest under restriction, in any state of its development,

(c) The Department shall, under such quarantine restrictions. detain for official

inspection. any person. car, vessel, truck, wagon, ,g other e :Ince. suspected or kno%\it to car) any material in violation of any quarantine restriction or of any rules or regulations established by the authority of this Chapter,

(c) Any person(s) who violates a quarantine duly imposed b the Department perligins an illegal act and shall he liable for the imposition ofa civil penalty a, prescribed in this Chapter

§ 1(11) SliPnlellt s1 111110/11):sts and biological controlitgeuts:

(al No person may sell, offer for sale. 'no% e. ;on . transport. deliver, ship or offer for

shipment. any plant pest or biological control agent. %%idiom a I S. Department of Agriculture -Animal and Plant I lealth Inspection Service - Plant Protection :Ind Quarantine - Application and Permit to Move Live Plant Pests and Noxious Weeds. PP1) Form 52(u. supplements thereto. or any publication revising or superseding the a(igementioned. or Its Slate equivalent. Permits in he issued only alter the Department determines that the proposed shipment or use will not create a hazard to the agricultural, forest or horticultural interests of this Slate or the State's general environmental quality. The permit shall he affixed conspicuously and on the exterior of each shipping container. box, package. etc. or accompany each shipping container, box, package. etc . as the Department directs.

Ili) The Department shall regulate and control the sale and use of biological control agents. as defined in this Chapter. to assure their safety .teit.1 effectiveness in the control 1 injurious plant pests and to prevent the introduction or use of biological control agents \Nine') may be injurious to persons. property. useful pl,int or annual life. non-target species. agriculture. direst lands, hortcultural interests or the State's general envinmincinal quality.

(el Any person(s) who ships plant pests or biological control agents without the knowledge of the Department performs an illegal act and shall he liable for the imposition of a civil penalty as prescribed in this Chapter.

§ 11(17. Violations and hearing_procedures

(a) Failure to comply with the provisions of this Chapter shall result in the assessment of ti civil penalty. -

(b) No civil penalty shall be imposed until au administrative hearing is held before the Secretary of Agriculture or his or her designee. Administrative hearings fur the provisions of this ('hunter shall he conducted within 30 days of the violation of the provisions of this Chapter. I he

Department shall issue a decision in writing to the person(s) charged with a violation of a provision of this Chapter within 30 days of the conclusion of the administrative hearing.

(c) The person(s) charged with a violation of a provision of this Chapter will be notified in writing of the date and time of the aforementioned administrative hearing. The
aforementioned person(s) shall have the right to appear in person, to be represented by counsel, and to provide witnesses in his or her own behalf.

(d) The Secretary, for the purposes of investigation of a possible violation of this Chapter and for its hearings may issue subpoenas, compel the attendance of witnesses, administer oaths, take testimony and compel the production of documents. fn case any person summoned to testify or to produce any relevant or material evidence refuses to do so without reasonable cause, the Department of Agriculture may compel compliance with the subpoena by filing a motion to compel in Superior Court which shall have jurisdiction over this matter.

(e) The Department shall preserve a full record of the proceedings and a transcript may be purchased by any interested person.

§I108. Appeal

A person who feels aggrieved by the Department as a result of the administrative hearing held under the authority of this Chapter may take appeal, within 30 days, to the Superior Court. After a full hearing, the Court shall make such decree as seems just and proper. Written notice or such appeal, together with the grounds. therefore, shall be served upon the Secretary of the Department of Agriculture.

§ 1109. Civil Penalties

(a) Any person who interferes with the Department in the enforcement or the provisions of this Chapter, as determined in an administrative hearing, shall be assessed a civil penalty of no less than $100 nor more than$1000 on each count.

(b) Any person who is not a Department employee or its authorized representative, who removes markings placed by the Department for the purpose of identification of plants infested or infected by dangerous injurious plant pests, is interfering with the Department's enforcement of the provisions of this Chapter, as determined in an administrative hearing, and shall be assessed a civil penalty of no less than $100 nor more than$1000 on each count.

(c) Any person who willfully or knowingly violates a quarantine duly imposed by the Department, as determined in an administrative hearing, shall be assessed a civil penalty of no less than $100 nor more than$1000 on each count.

(d) Any person(s) who willfully or knowingly ships plant pests or biological control agents without the knowledge of the Department. as determined in an administrative hearing, shall be assessed a civil penalty of no less than $100 nor more than$1000 on each count.

(e) Any person(s) who refuses to comply with the provisions of this Chapter shall be assessed a civil penalty of no less than $100 nor more than$1000 for each infested or infected unit of plants or plant material.

(f) The payment of penalties assessed under this Chapter may be made on a payment schedule approved by the Secretary."

Approved May 2, 1996