HB3418

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

INVASIVE SPECIES

PART I. GENERAL PROVISIONS

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Advisory committee" means the advisory committee on invasive species.

"Agricultural Risk Protection Act" means the federal Agricultural Risk Protection Act of 2000, P.L. 106-224.

"Algae" means any plant containing chlorophyll, which lacks true roots, stems, and leaves, and typically inhabits moist habitats, except those algae on or in humans or animals in the state and those in or on processed foods, beverages, or pharmaceuticals.

"Animal" means any invertebrate or vertebrate species of the animal kingdom in any state of development, including but not limited to mammal, bird, fish, reptile, mollusk, crustacean, insect, mite, nematode, protozoan and other invertebrate, other than common domestic animals such as dogs, cats, poultry, livestock, and horses.

"Aquatic life" means any type or species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animal that inhabits the freshwater or marine environment and includes any part, product, egg, or offspring thereof; or freshwater of marine plants, including seeds, roots, products, and other parts thereof.

"Article" means any material or tangible object that could harbor invasive species, including plants, plant products, soil, boxes and containers, vehicles, baggage, or packing material used in connection with the movement of plants, plant products, or animals.

"Bacteria" or "bacterium" means any prokaryotic or archaeobacterial organism, except those bacteria on or in humans or animals in this state, and those in or on processed foods, beverages, or pharmaceuticals.

"Biological control organism" means any enemy, antagonist, or competitor used to control a plant pest, noxious weed, or invasive species.

"Council" means the invasive species council.

"Fungus" means all nonchlorophyll-bearing thallophytes, except those fungi on or in living humans or animals in this state and those on or in processed food, beverages, or pharmaceuticals.

"Import" or "importation" means to move into, or the act of movement into the territorial limits of the state.

"Insect" means an invertebrate animal belonging to the class Insecta, including beetle, bug, fly, and other arthropods, such as spider, mite, tick, centipede, and wood louse.

"Inspect" means to examine articles or means of conveyance to ascertain the presence or absence of prohibited or restricted plants, plant products, or invasive species.

"Inspector" means an employee or official of the council authorized by the council or the Secretary to administer and enforce the provisions of this chapter and the Agricultural Risk Protection Act.

"Invasive species" means any plant, plant pest, microorganism, biological control organism, or animal that can directly or indirectly injure, cause damage to, or impede agriculture, horticulture, aquaculture, animal or public health, irrigation systems, navigation, the natural resources of the state, or the environment.

"Means of conveyance" means any personal property used for or intended to be used for the movement of any other personal property.

"Microbial product" means any product manufactured with known cultures of microorganisms for the purpose of bioremediation or bioaugmentation, including products such as microbial pesticides.

"Microorganism" means any unicellular microscopic organism, including but not limited to algae, bacteria, fungi, protozoa, and viruses.

"Move" means:

(1) To carry, enter, import, mail, ship, or transport;

(2) To aid, abet, cause, or induce the carrying, entering, importing, mailing, shipping, or transporting;

(3) To offer to carry, enter, import, mail, ship, or transport;

(4) To receive to carry, enter, import, mail, ship, or transport;

(5) To release into the environment; or

(6) To allow any of the activities in (1) , (2) , (3) , (4), or (5).

"Noxious weed" means any plant species or plant product that can directly or indirectly injure or cause damage to, or be detrimental or potentially harmful to agriculture, horticulture, aquaculture, animal or public health, or the interests of irrigation, navigation, natural resources of the state, or the environment as determined by the council based on sound science.

"Permit" means an authorization, by written or electronic methods, by the council under this chapter or Secretary under the Agricultural Risk Protection Act, to move plants, plant products, plant pests, biological control organisms, microorganisms, animals, or articles under the conditions prescribed by the council or by law.

"Person" means any and all persons, natural or artificial, including an individual, firm, association, organization, partnership, business trust, corporation, and company.

"Phytosanitary treatment" means any measure, including testing, inspection, fumigation, decontamination, quarantine, or other remedial procedure applied to any article or means of conveyance to prevent the movement of an invasive species into or within the state.

"Plant" means any plant or plant part for or capable of propagation, including a tree, tissue culture, plantlet culture, pollen, shrub, vine, cutting, graft, scion, bud, bulb, root, or seed, and includes noxious weeds.

"Plant pest" means an protozoan, plant, animal, insect, bacterium, fungus, virus, or other infectious agent or pathogen in any stage of development that has been determined by the council based on sound science to:

(1) Be directly injurious, cause damage to, or cause disease in any plant or plant product;

(2) Be detrimental or potentially harmful to agriculture, horticulture, aquaculture, animal or public health, natural resources, including native biota; or

(3) Have an adverse effect on the environment.

"Plant product" means any flower, fruit, vegetable, root, bulb, seed, or other plant part that is not included in the definition of plant, or any manufactured or processed plant or plant part.

"Port of entry" means a harbor, airport, or any other place in the state where the articles regulated by this chapter are first moved.

"Secretary" means the United States Secretary of Agriculture.

"Virus" means any of a class of noncellular submicroscopic obligate parasite, chiefly nucleoprotein in composition but often reducible to crystalline form, except those viruses on or in humans or animals in this state, and those on or in processed food, beverages, or pharmaceuticals.

§ -2 Invasive species council. (a) There is established an invasive species council, which shall be placed within the department of agriculture for administrative purposes. The council shall consist of nine members and shall include five members representing environmental interests, agriculture, the airline industry, the water carrier industry, and large private landowners who shall be appointed by the governor as provided in section 26-34. The chairperson of the board of agriculture, director of health, chairperson of the board of land and natural resources, and director of transportation shall be ex officio voting members of the council. The council shall elect its chairperson from among its members; provided that no ex officio member may be elected as the chairperson.

(b) The members of the council shall serve without compensation, but shall be reimbursed for actual expenses incurred in the performance of their duties.

(c) The council shall hire an executive director, who shall serve at the pleasure of the council and shall be exempt from chapter 76. The salary of the executive director shall be set by the council.

(d) The council, through its executive director, may hire necessary personnel to carry out the purposes of the council.

§ -3 Council powers and duties. The invasive species council shall:

(1) Establish and maintain inspection and monitoring facilities at ports of entry and at such places within the state as deemed necessary for the detection of invasive species, and implement a program of inspection of articles or means of conveyance that are infested or are liable to be infested with or contain any invasive species;

(2) Conduct surveys of public and private lands to gather, compile, or map information on invasive species infestations, and the agricultural, horticultural, aquacultural, or environmental resources that are threatened;

(3) Maintain constant vigilance for incipient infestations of invasive species on islands declared reasonably free from those species;

(4) Maintain lists of animal species that are conditionally approved, restricted, or prohibited from entering the state;

(5) Maintain lists of plants and plant products that are prohibited or that require a permit from the council or the Secretary pursuant to the Agricultural Risk Protection Act, prior to import into the state;

(6) Using sound science and thorough risk assessment, evaluate plants, plant products, plant pests, and biological control organisms, or noxious weeds to determine if there is a special need for the State to petition the Secretary to impose prohibitions or restrictions upon the movement of plants, plant products, plant pests, biological control organisms, or noxious weeds that are in addition to those imposed pursuant to the Agricultural Risk Protection Act;

(7) Develop a statewide invasive species plan in cooperation with the departments of land and natural resources, transportation, health, and agriculture, the Secretary, other governmental agencies, and private organizations, that identifies priority species for prevention of introduction, control, or eradication, assigns responsibilities, and contains detailed strategies and action plans for the control or eradication of invasive species;

(8) Provide or designate satisfactory facilities for any article or means of conveyance found to be infested or infected with an invasive species to be held in quarantine for a sufficient length of time to eradicate the infestation or infection;

(9) Enter into agreements with any other state, the federal government, or foreign government for the inspection, phytosanitary treatment, and certification of any articles or means of conveyance outside of the state if the council finds that the inspection, phytosanitary treatment, and certification meets the standards established for in-state inspection and certification;

(10) Adopt, amend, and repeal rules pursuant to chapter 91 relating to the prohibition, quarantine, fumigation, disinfection, or disposition, either upon movement into the state, or at any time or place within the state of any invasive species, article, or means of conveyance, to carry out and effectuate the purposes of this chapter;

(11) Adopt emergency remedial measures developed with the advisory committee, using the best available technology in a manner consistent with state and federal law, to be executed when new invasive species are detected, to contain and minimize the damage caused by the invasive species or prevent the permanent establishment of the invasive species;

(12) Establish a procedure to expedite interagency communications, problem solving, and decision making and coordinate the efforts of agencies toward invasive species prevention and control;

(13) Improve the effectiveness of inspections through the coordination of planning and staffing of interagency inspection programs and sharing of inspection findings and information;

(14) Develop educational material and information to make airline and ship crews and passengers aware of invasive species prohibitions of this State;

(15) Develop and implement a public education program to inform the public of the impact of invasive species on Hawaii and of the importance of the public's assistance to the success of invasive species surveillance, prevention, control, and eradication programs;

(16) Conduct special training programs for employees of carriers handling cargo and baggage that may contain invasive species;

(17) Develop a schedule of fees for permits and inspection, quarantine, and eradication services at ports of entry; and

(18) Establish a central reporting system for the public to report invasive species.

§ -4 Advisory committee on invasive species. (a) There shall be an advisory committee on invasive species composed of seven members, with expertise in biology, botany, zoology, microbiology, ecology, or any other discipline relating to the protection of natural resources as evidenced by an academic degree or other special experience. The members shall be appointed by the governor as provided in section 26-34. The chairperson shall be elected from among the members of the advisory committee. The advisory committee shall:

(1) Advise the council in matters relating to the listing, introduction, confinement, or release of plants, animals, and microorganisms; and

(2) Work with the council in preparing plans and strategies for emergency remedial measures to be executed when new invasive species are detected.

(b) The chairperson of the advisory committee may create ad hoc subcommittees with special expertise to advise the council on the movement of any plant, plant product, microorganism, or animal that is not listed pursuant to this chapter.

PART II. INVASIVE SPECIES LISTS

§ -11 Plant lists. (a) The council shall maintain:

(1) A list of plants and plant products prohibited entry into the state except by permit for educational or research purposes, to be referenced as the "noxious weed list";

(2) A list of plants and plant products that are prohibited from being moved from one island to another island within the state or from one locality to another on the same island except by permit for educational and research purposes, including a list of the islands or localities to which the plants or plant products are restricted, to be referenced as the "restricted list of plants and plant products"; and

(3) A list of plants and plant products that may be imported into the state, to be referenced as the "allowed list of plants and plant products".

(b) The council shall establish criteria for the evaluation of the attributes of plants and plant products, such as documented distribution, documented weediness, noxious traits, and reproduction and dispersal, to guide the placement of plants and plant products on the plant lists.

§ -12 Plant pests list. The council shall maintain a list of plant pests that are prohibited entry into the state.

§ -13 Animal lists. (a) The council shall maintain:

(1) A list of animals that are prohibited entry into the state except by permit for educational or research purposes;

(2) A list of restricted animals that may not be imported into, possessed, or moved within the state without a permit; and

(3) A list of conditionally approved animals that may not be imported into the state without a permit,

provided that the council shall maintain sublists for each of these categories for aquatic life.

(b) The list of animals that are prohibited entry into the state shall include any live snake, flying fox, fruit bat, Gila monster, injurious insect, or eels of the order Anguilliformes.

(c) The list of conditionally approved animals shall include any live or dead honey bees, or used bee equipment, certified by the council to be free of pests; provided that nothing in this subsection shall be construed to prohibit the importation of bee semen.

§ -14 Microorganism lists. The council shall maintain:

(1) A list of restricted microorganisms that may not be imported into or possessed in the state without a permit;

(2) A list of microorganisms that are select human pathogens that may be imported into the state without a permit but for which the council must provide the department of health with notice of the importation of the microorganism into the state to allow possible department of health inspection and monitoring; and

(3) A list of nonrestricted microorganisms that may be imported into the state without a permit.

§ -15 Biological control organism lists. The council shall maintain a list of biological control organisms that are not prohibited or restricted under the Agricultural Risk Protection Act, along with a list of biological control organisms that the department has petitioned the Secretary to add to the list.

§ -16 Lists; additions and deletions. The council may make additions to or deletions from the lists required by this part without regard to the notice and public hearing requirements of chapter 91; provided that the council shall adopt rules pursuant to chapter 91 to establish methods of obtaining public input and notifying the public of those additions and deletions.

PART III. REGULATION OF IMPORTATION OR MOVEMENT

OF PLANTS AND ANIMALS

§ -21 Permits; issuance; conditions. Permits under this chapter shall be issued pursuant to rules adopted by the council and shall be subject to any conditions established by the council to protect the agricultural, horticultural, aquacultural, livestock, or poultry industry, public health, natural resources of the state, or environment.

§ -22 Plant or plant products; prohibitions. (a) No person shall:

(1) Import into, possess, or move in the state any plant or plant product that is:

(A) On the list of noxious weeds under section -11(a)(1); or

(B) Not listed under section -11;

(2) Move a plant or plant product from one island to another island within the state, or from one locality to another on the same island, in violation of restrictions in the list of restricted plants and plant products established under section -11(a)(2),

without a permit or in violation of the conditions of a permit issued by the council pursuant to this chapter.

(b) No person shall move any plant or plant product beyond the island or locality within the state to which the plant is restricted under section -11(a)(2), without a permit or in violation of the conditions of a permit issued by the council pursuant to this chapter.

§ -23 Plant or plant products; permit application. (a) Any person who desires to import into or move within the state a plant or plant product for which a permit is required under section -22 shall apply to the council for a permit.

(b) An applicant for a permit to import or move any plant or plant product on the restricted list of plant or plant products into or about the state, in addition to any other information the council may require, shall provide:

(1) A description (scientific name) and the quantity of plant or plant product to be imported;

(2) The country, state, and locality where the plant or plant product was produced or located;

(3) The documented distribution of the plant or plant product;

(4) The characteristics of the plant or plant product such as documented weediness, noxious traits, and reproduction and dispersal; and

(5) The port from which the plant or plant product is to be shipped.

(c) The council shall make a pre-entry assessment of a plant or plant product that is not listed under section -11 before issuing a permit or denying entry into the state. The council may request that the applicant provide additional information, and may also request that the advisory committee establish an ad hoc committee of experts to assist the council in placing the plant or plant product on one of the plant lists under section -11. A plant or plant product that is not listed under section -11 shall be prohibited from entry into the state until the council has reviewed the characteristics of the plant or plant product and made a determination for placement on one of the lists.

(d) The council may impose conditions on the permit to protect the state from plant and plant product invasive species, including:

(1) Requiring the imported plant or plant product to be accompanied by a certificate of inspection or phytosanitary treatment issued by the appropriate officials of the state or country from which the plant or plant product is shipped;

(2) Requiring the plant or plant product to be kept under post-entry quarantine by or under the supervision of the council for the purpose of determining whether the plant or plant product:

(A) Is infested with an invasive species;

(B) May pose a significant risk of causing injury or damage to, or disease in any plant or plant product; or

and

(3) Subjecting the plant or plant product to remedial measures necessary to prevent the spread of plant pests.

§ -24 Permitted plant or plant products; pre-importation requirements. (a) A person with a permit issued by the council under this chapter or the Secretary pursuant to section 411 of the Agricultural Risk Protection Act, may import plant or plant products as authorized by the permit. The person shall notify the council prior to the shipment of the plant or plant product and provide the following information:

(1) A description (scientific name) and the quantity of the plant or plant product to be imported;

(2) The means of conveyance of the plant or plant product;

(3) The country, state, or locality where the plant or plant product was produced or located;

(4) The port from which the plant or plant product is to be shipped;

(5) The name of the shipper and anticipated date of arrival; and

(6) The name of the owner or the owner's agent.

(b) The person shall also submit a request to the council that shall contain:

(1) A request that the council inspect upon arrival the plants or plant products described;

(2) An agreement that the owner, owner's agent, or person importing or moving the plants or plant products shall be responsible for all costs, charges, and expenses relating to the inspection; and

(3) A waiver of all claims for damages incident to the inspection or the fumigation, disinfection, quarantine, or destruction of the plant or plant products, if any treatment is deemed necessary.

(c) Failure to submit the written request for inspection, including the agreement and waiver, shall be sufficient cause for the council to revoke the permit or refuse to permit the entry of the plant or plant products into the state.

§ -25 Animals; prohibitions. (a) No person shall import into, possess, or move within the state any living animal on the list of prohibited animals established under section -13(a)(1); provided that the council may bring into and maintain in the state one live, sterile brown tree snake of the male sex for the purpose of research or training of snake detector dogs, and a single government agency may bring into and maintain in the state not more than two live nonvenomous snakes of the male sex solely for the purpose of exhibition in a government zoo; provided that:

(1) Prior to importation, the agency presents the council with satisfactory evidence that the snakes are male; and

(2) The council gives written approval of the importation upon conditions deemed necessary by the council, that shall include measures to prevent the escape of the snakes, maintain continuing supervision and control by the council of any importation under this paragraph, and control the disposal and destruction of the snakes;

provided further that in case of the death of one or more snakes imported under this subsection, the council or government agency may import and maintain replacements pursuant to the conditions in this subsection.

(b) No person shall import into, possess, or move within the state any living animal:

(1) On the list of restricted animals under section -13(a)(2);

(2) On the list of conditionally approved animals under section -13(a)(3); or

(3) That is not listed under section -13,

without a permit or in violation of the conditions of a permit issued by the council pursuant to this chapter.

(c) No person shall release any live aquatic life held in an aquarium or other confinement for scientific study, exhibition, display, sale, or any other purpose, into any waters of the state, except as provided in section 187A-2(4).

§ -26 Animals; permit application. (a) Any person who desires to import into or move within the state an animal for which a permit is required under section -25 shall apply to the council for a permit.

(b) The council shall make a pre-entry assessment of an animal that is not listed under section -13 before issuing a permit or denying entry into the state. The council may request that the applicant provide additional information, and may also request that the advisory committee establish an ad hoc committee of experts to assist the council in placing the animal on one of the animal lists under section -13. An animal that is not listed under section -13 shall be prohibited until the council has reviewed the characteristics of the animal and made a determination for placement on one of the lists; provided that:

(1) The council may issue a special permit on a case-by-case basis for the importation and possession of an animal that is not listed under section -13, for the purpose of remediating medical emergencies or agricultural or ecological disasters, or conducting medical or scientific research in a manner that the animal will not be detrimental to agriculture, the environment, or humans if the importer of the animal can meet any conditions of the permit as determined by the council; and

(2) The council may issue a short-term special permit on a case-by-case basis not to exceed ninety days for the importation and possession of an animal that is not listed under section -13, for the purpose of filming, performance, or exhibition, and upon any conditions deemed necessary by the council, if the importer can meet the conditions of the permit, including any bonding requirements that the council may impose.

(c) When the council suspects that the lineage of an animal is not as stated by the owner or on other official documents, the council may request the chairperson of the advisory committee to establish an ad hoc subcommittee of not less than three members with applicable expertise in vertebrate biology to determine whether an animal is a prohibited animal.

§ -27 Microorganisms; prohibitions. No person shall import into, possess, or move within the state:

(1) Any microorganism on the restricted list of microorganisms under section -14(1);

(2) Any microbial products containing certain strains of microorganisms on the nonrestricted list of microorganisms under section -14(3); or

(3) Any microbial products not listed under section -14,

without a permit or in violation of the conditions of a permit issued by the council pursuant to this chapter.

§ -28 Microorganisms; permit application. (a) Any person who desires to import into or move within the state a microorganism or microbial product for which a permit is required under section -27 shall apply to the council for a permit.

(b) If a permit is requested for a microorganism that the council determines may directly or indirectly injure or cause damage to the agricultural, horticultural, aquacultural, livestock, or poultry industry, public health, natural resources of the state, or environment, approval of the permit application shall be subject to review by the advisory committee and the determination that the importer is able to comply with any conditions established by the council.

(c) If a microorganism is not listed on any microorganism list under section -14, the council shall make a pre-entry assessment of the microorganism before issuing a permit or denying entry into the state. The council may request that the applicant provide additional information, including the proposed use of the microorganism, and request that the advisory committee establish an ad hoc committee of experts to place the microorganism on one of the microorganism lists under section -14. A permit for a microorganism shall not be issued under this subsection unless the importer is able to comply with all of the conditions of the permit.

(d) A microorganism that is not listed under section -14 shall be prohibited until the council has reviewed the characteristics of the animal and made a determination for placement on one of the lists; provided that the council may issue an emergency permit on a case-by-case basis to a state or federal agency or state university to allow import and possession of a microorganism on the list of restricted microorganisms or an unlisted microorganism for the purpose of remediating any emergency or disaster affecting agriculture, horticulture, the environment, or animal or public health; provided further that:

(1) The council first obtains advice from an ad hoc committee of qualified persons established by the chairperson of the advisory committee;

(2) The council determines that importation in less time than is required for issuance of a permit under subsection (a) or (b) is necessary to remediate the emergency or disaster; and

(3) The importer is able to meet the conditions established by the council.

§ -29 Rocks and soil. No person shall import into the state, any soil, rocks, or any article with soil adhering thereto; provided that limited quantities of soil may be imported into the state for experimental or other scientific purposes by permit.

§ -30 Notification of arrival. Any person who imports or moves any plant, plant product, plant pest, biological control organism, microorganism, article, or means of conveyance that requires a permit under this chapter or section 411 or 412 of the Agricultural Risk Protection Act, shall notify the council, in writing or by electronic methods, as soon as possible after the arrival of the plant, plant product, biological control organism, microorganism, article, or means of conveyance at the port of entry and before the plant, plant product, plant pest, biological control organism, microorganism, article, or means of conveyance is moved from the port of entry.

§ -31 Responsibilities of passengers and crew. (a) It shall be the responsibility of the company transporting passengers and baggage to distribute, prior to debarkation of passengers and baggage, the State of Hawaii plant and animal declaration form to each passenger, officer, and crew member of any aircraft and vessel arriving from outside the state in order that the passenger, officer, or crew member can comply with the directions and requirements appearing on the plant and animal declaration form. All passengers, officers, and crew members, whether or not they are importing or moving into the state the plant, plant product, plant pest, biological control organism, microorganism, article, or means of conveyance listed on the form into the state, shall complete the declaration form, except that one adult member of a family may complete the declaration form for other family members.

The completed forms shall be collected by the transportation company and delivered immediately upon arrival to the inspector at the first port of entry.

(b) The declaration form required by subsection (a) shall include and require the person making the declaration to specify:

(1) The nature and quantity of any plant, plant product, biological control organism, plant pest, noxious weed, animal, article, or means of conveyance proposed to be brought into state;

(2) The name and address of the owner or consignee; and

(3) The country and locality where the plant, plant product, plant pest, biological control organism, microorganism, article, or means of conveyance was grown, produced, or located.

(c) The officers or crew of an aircraft or vessel arriving from outside the state shall report all sightings of any plants or animals to the inspector at the first port of entry.

(d) No person shall conceal any of the plants, plant products, plant pests, biological control organisms, microorganisms, articles, or means of conveyance listed on a declaration form from any inspector, or to fail to present the listed item to an inspector upon arrival of the aircraft or vessel.

§ -32 Labels for importation or intrastate movement. Each article or means of conveyance in which any plant, plant product, microorganism is imported into or moved within the state shall be plainly and legibly marked, in a conspicuous manner with the following information:

(1) The name and address of the shipper;

(2) The name and address of the owner or owner's agent;

(3) The nature and quantity of the plant, plant product, or microorganism being imported or moved into the state;

(4) The country, state, and locality where the plant, plant product, or microorganism was grown, produced, or located; and

(5) The port from which the plant, plant product, or microorganism was shipped.

§ -33 Intrastate movement. (a) The council may declare the entire state, an island in the state, or a portion of an island as free or reasonably free of an invasive species. The council shall restrict the introduction and establishment of a specific invasive species in areas declared to be free or reasonably free of the invasive species.

(b) The council may require a plant or plant product to be accompanied by a certificate of inspection or phytosanitary treatment issued by the council prior to being moved from one island to another island within the state or from one locality to another on the same island.

PART IV. INSPECTION, TREATMENT, AND ENFORCEMENT

§ -41 Inspection required. No person shall move from a port of entry any imported plant, plant product, plant pest, biological control organism, microorganism, article, or means of conveyance, unless it has been inspected and authorized for entry into the state as provided in this chapter.

§ -42 Plant and plant products; inspection and treatment. (a) The council shall establish and maintain a program for the phytosanitary treatment of plants and plant products for shipment from one locality to another on the same island or to another island within the state, and to meet the inspection and disinfestation standards of any other state or country to which the plants or plant products are being shipped.

(b) The council shall certify plant and plant products that meet the phytosanitary treatment requirements for shipment from one locality to another on the same island or to another island within the state, and the import requirements of the state or foreign country of destination.

§ -43 Responsibility for treatment costs. The phytosanitary treatment of plant or plant products under this part shall be conducted at the risk and at the expense of the owner or owner's agent at the time of treatment.

§ -44 Commercial plant nursery certification. (a) The council may authorize a commercial plant nursery to certify its own intrastate and interstate shipments of plants and plant products that are grown under specific conditions and subjected to the phytosanitary treatment requirements set forth in an agreement with the council.

(b) The council shall inspect the operations and facilities of the commercial plant nursery prior to authorizing the nursery to certify its own shipments. The council shall thereafter regularly inspect the operations and facilities of the nursery for compliance with the conditions of the agreement with the council.

(c) Shipments of plants or plant products accompanied by a certificate may move from one locality to another on the same island or to another island within the state without inspection at the destination.

(d) The council may revoke or suspend the right of a nursery to certify its plants or plant products for any unauthorized use of the certificate, for refusing the inspection of the nursery facilities, or the nonpayment of certification fees. Commercial plant nursery certificates shall not be altered or misused.

(e) The council shall establish a fee for the inspection and authorization of a commercial plant nursery to certify its plants and plant products.

§ -45 Inspectors. (a) Inspectors shall enforce this chapter and the Agricultural Risk Protection Act, as authorized by the Secretary.

(b) Inspectors shall be provided with suitable badges or insignia of office by the council, and shall have the power to serve and execute warrants and to issue citations for any violation of this chapter or the Agricultural Risk Protection Act, and to seize any invasive species, article, or means of conveyance found in violation of this chapter or the Agricultural Risk Protection Act.

§ -46 Authority to inspect; seizures and warrants. (a) Whenever an inspector has good cause to believe this chapter or the Agricultural Risk Protection Act is being violated, the inspector as authorized by this chapter or by the Secretary under the Agricultural Risk Protection Act, may:

(1) Stop and inspect, without warrant, any person, article, or means of conveyance moving into the state to determine whether the person, article, or means of conveyance is carrying any invasive species regulated by this chapter; and

(2) Stop and inspect, without warrant, any person, article, or means of conveyance moving from one island to another island within the state or from one locality to another on the same island where quarantine areas have been declared, upon probable cause to believe that the person, article, or means of conveyance is carrying any invasive species regulated by this chapter.

(b) An inspector may enter, with a warrant applied for and executed by the Secretary or any United States Marshal under the Agricultural Risk Protection Act, any premises to conduct any investigation or make any inspection or seizure of any invasive species, article, or means of conveyance regulated by this chapter.

(c) Whenever an inspector has good cause to believe that it is necessary for the protection of animal or public health, agriculture, horticulture, aquaculture, natural resources of the state, or the environment, to enter any land, building, vessel, or aircraft for the purpose of seizing, capturing, or confiscating or removing any invasive species that is prohibited or restricted and without a permit, the inspector may make a complaint to the district judge in the circuit in which the violation is occurring. The district judge may issue a warrant, directed to any police officer in the circuit, directing the police officer to take sufficient aid, and accompany the inspector to the place described in the complaint to seize, capture, confiscate, or remove the invasive species under the direction of the inspector.

(d) An inspector may refuse entry, confiscate, or destroy any invasive species, article, or means of conveyance that is imported or moved into the state without a permit issued by the council or by the Secretary pursuant to the Agricultural Risk Protection Act.

§ -47 Place of inspection. Whenever an inspector determines that it is necessary or advisable to move any article or means of conveyance to a more suitable place for inspection than the pier, airport, or any other place where the article or means of conveyance is first received or discharged, the inspector may have the article or means of conveyance moved. All costs and expenses incident to the moving or transporting of the article or means of conveyance to the place of inspection shall be borne by the owner or owner's agent. If the owner, owner's agent, or transportation company requests inspection of articles or means of conveyance at locations other than where the articles or means of conveyance are first received or discharged, and the council determines that inspection at the location is appropriate, the council may require payment of costs in connection with the inspections, including overtime costs.

§ -48 Inspection protocols for aquatic invasive species. The council shall coordinate the establishment of inspection protocols with the United States Coast Guard to prevent the moving into the state of aquatic invasive species through the ballast water or as hull fouling organisms on vessels and floating structures, such as barges, dry docks, drilling rigs, and cranes.

PART V. CONTROL AND ERADICATION

§ -51 Disposition of plant pest or noxious weed. (a) Whenever an inspector considers it necessary to prevent the dissemination of a plant pest or noxious weed that is new or not known to be widely prevalent or distributed within the state, the inspector as authorized by this chapter or by the Secretary under the Agricultural Risk Protection Act, may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of any plant, plant product, plant pest, article, or means of conveyance that:

(1) Is moving into or through the state and the inspector has reason to believe that it is a plant pest or noxious weed or is infested with a plant pest or noxious weed at the time of the movement;

(2) Has not been maintained in compliance with a post-entry quarantine requirement required by this chapter; or

(3) Is the progeny of any plant, plant product, or plant pest that is moving into or through the state in violation of this chapter or the Agricultural Risk Protection Act.

(b) If the inspector takes any action authorized by subsection (a), any cost or expense in connection with the action shall be borne by the owner or the owner's agent.

(c) No plant, plant product, plant pest, article, or means of conveyance shall be destroyed, exported, or returned to the shipping point of origin if the council determines that a less drastic action is feasible and would be adequate to prevent the dissemination of any new plant pest or noxious weed.

§ -52 Disposition of prohibited or restricted animal. (a) Any animal imported into or moved within the state in violation of this chapter shall constitute contraband and shall be seized immediately upon discovery whenever found. The council may destroy the animal, donate the animal to a government zoo, or send the animal out of the state. Any expense or loss in connection therewith shall be borne by the owner or the owner's agent.

(b) Whenever any animal authorized by permit under this chapter to be imported into the state escapes, or is found to be free from confinement, the council may confiscate or capture it and any of its progeny and, after five days, the council may destroy the animal, donate it to a government zoo, or send the animal out of the state, and any expense or loss in connection therewith shall be borne by the owner or the owner's agent.

§ -53 Inspection, quarantine, and eradication service charge. (a) The council shall prescribe and collect from any person who imports any article or means of conveyance, a service charge for invasive species inspection, quarantine, and eradication services. The council shall establish a service charge to ensure that the amount of the service charge is commensurate with the costs of inspection, quarantine, and eradication services; provided that if the article is moved in any marine commercial container shipment, the service charge shall not be less than $7 for each twenty-foot equivalent unit per container.

(b) Any person who imports an article or means of conveyance shall pay the service charge to the council before the article or means of conveyance is moved from a port of entry.

(c) If a person subject to the service charge under this section fails to pay the service charge when due, the council shall assess a late payment penalty.

(d) The service charges collected by the council under this section shall be deposited in the invasive species inspection, quarantine, and eradication fund established under section -81.

§ -54 Infestations of restricted aquatic life. The council or its agents may seize, confiscate, or destroy, as a public nuisance, any aquatic life listed under section -13 and found in any waters of the state.

§ -55 Infestations of noxious weeds. (a) When the council determines that an incipient infestation of a noxious weed exists on an island declared free or reasonably free of the weed, the council shall immediately conduct investigations and surveys to determine the extent of the infestation and the feasibility and practicability of eradicating the infestation.

(b) The council shall also conduct investigations and surveys of established widespread noxious weed infestations to determine the feasibility and practicability of controlling or eradicating those widespread infestations.

(c) The council shall designate noxious weeds for control or eradication and develop priorities, strategies, and action plans for the control or eradication of the designated noxious weed infestations.

§ -56 Infestations of invasive animal species. (a) When an invasive animal species not known to exist in the state is detected or intercepted, the council shall immediately conduct investigations and surveys to determine the extent of the infestation and execute a program to control the spread of or eradicate the invasive animal species.

(b) The council shall also conduct investigations and surveys of established widespread invasive animal species infestations to determine the feasibility and practicability of controlling or eradicating those widespread infestations.

(c) The council shall designate invasive animal species for control or eradication and develop priorities, strategies, and action plans for the control or eradication of the designated invasive animal species.

§ -57 Control or eradication programs. (a) The council shall develop and implement a detailed control or eradication program for any invasive species designated as noxious weeds under to section -11 or as prohibited, restricted, or conditionally approved animals under section -13, using the best available technology in a manner consistent with state and federal law.

(b) When an invasive animal species not known to exist in the state is discovered or detected, or the incipient introduction or infestation of a noxious weed is discovered in an area that is free or reasonably free of the weed, the council may execute any emergency remedial measure pursuant to section -60 for the capture and disposition of the invasive animal species or the control or eradication of the incipient noxious weed introduction.

§ -58 Control or eradication programs; notice, execution. (a) When the council determines that the control or eradication of an invasive species is practicable and feasible, and has developed a control or eradication program for the designated invasive species, the council shall give at least five days' written notice to the landowner of the property and occupant of the property on which the infestations exist. Written notice shall be sent to the landowner's address last known to the council by certified mail, postage prepaid, return receipt requested. In the event that certified mail is impractical because the council, despite diligent efforts, cannot determine land ownership or because of an urgent need to initiate control or eradication measures, notice given once in a daily or weekly publication of general circulation, in the county where any action or proposed action will be taken, or notice made as otherwise provided by law, shall be deemed sufficient notice. The notice shall include all pertinent information on the infestation and shall notify the landowner and the land occupier of the procedure and methods of control or eradication to be executed.

(b) After giving notice pursuant to subsection (a), the council may enter into a cooperative agreement with the landowner and the land occupier for the control or eradication of the invasive species infestation. The procedures and conditions for executing the cooperative agreement shall be as provided in rules adopted by the council.

(c) After giving notice pursuant to subsection (a), the council may entirely undertake the eradication or control program when it determines that the landowner or land occupier of the land on which the invasive species infestation is located will not benefit materially or financially by the control or eradication of the invasive species, or when the invasive species infestation is on state-owned land not leased or under the control of private interest.

§ -59 Entry on private property to control or eradicate any pests. (a) The council shall give notice to the landowner and the occupier of any private property of its intention to enter the property for the control or eradication of an invasive species as provided in section -58(a).

(b) After notice as required by section -58(a), any employee of the council or any agent authorized by the council may enter at reasonable times any private property other than dwelling places to maintain an invasive species control or eradication program, being liable only for damage caused by acts beyond the scope of the person's authority, or the person's negligence, gross negligence, or intentional misconduct. If entry is refused, the council employee or agent may apply to the district court in the circuit in which the property is located for a warrant to enter on the premises to effectuate the purposes of this chapter. The district court may issue a warrant directing a police officer of the circuit to assist the council employee or agent in gaining entry onto the premises during regular working hours or at other reasonable times.

§ -60 Emergencies; emergency remedial measures; interim rules. (a) If the council declares that an emergency exists because of the presence of an invasive species that is new or not known to be widely distributed in the state, which creates a situation that is immediately dangerous to the public health and safety, or to the ecological health of flora and fauna in the state, the council may execute any emergency remedial measures that have been adopted by rule by the council to respond to the situation.

(b) The council may proceed without prior notice to the owner of any private property affected to execute emergency remedial measures for the eradication of the invasive species to be effective for a period of not longer than one hundred eighty days after the discovery of the emergency situation without renewal.

(c) If no emergency remedial measures have been adopted by rule that can address the situation, the council may establish, implement, and enforce interim rules, which shall be effective for a period of not longer than one hundred eighty days, to:

(1) Hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of, any invasive species, articles, or means of conveyance;

(2) Quarantine, treat, or apply other remedial measures to any premises, that are believed to be infested with an invasive species;

(3) Quarantine any portion of the state in which is found any invasive species or any article or means of conveyance that the council has reason to believe is infested with an invasive species; or

(4) Prohibit or restrict the movement within the state of any plant, plant product, animal, article, or means of conveyance that the council has determined is necessary to prevent the dissemination of an invasive species or to eradicate the invasive species.

(d) If entry to private property is refused, any employee of the council or agent authorized by the council shall obtain a warrant from the district court in the circuit in which the property is located to enter the property to execute any emergency remedial measures for the capture and disposition of the invasive animal species or for the control or eradication of a noxious weed.

(e) In emergencies where the measures being taken by the State are inadequate to eradicate an invasive species, the council may request assistance from the Secretary pursuant to the Agricultural Risk Protection Act.

PART VI. CERTIFIED IMPORTERS OF MICROORGANISMS

§ -71 Importers of microorganisms; certification. (a) The council may certify an importer of microorganisms to import and possess microorganisms other than microorganisms on the lists of restricted or nonrestricted microorganisms listed pursuant to section -14, provided that:

(1) The importation and possession is for medical or scientific purposes;

(2) The microorganisms are contained in a laboratory or other contained system approved by the council;

(3) The microorganisms are used in a manner that will not be detrimental to the agricultural, horticultural, aquacultural, livestock, or poultry industry, public health, natural resources of the state, or the environment; and

(4) The importer is able to meet any conditions established by the council, as further verified through site inspection by the council.

(b) The importation of microorganisms by a certified importer of microorganisms other than those listed in the importer's certificate or for uses other than specified for each type of microorganism listed in the certificate shall be pursuant to sections -22 and -23.

§ -72 Certificate. (a) An importer requesting certification under this part shall submit an application to the council providing the information required by rules of the council.

(b) The council shall establish a schedule of fees to be charged for the processing of an application, the issuance of a certificate, and for any inspection of facilities related to the certificate. Fees may vary according to the type of certification issued and the costs incurred for inspection.

(c) A certificate issued under this part shall be valid for not more than two years from the date of issuance. A certified importer may reapply for certification pursuant to subsection (a).

§ -73 Suspension or revocation of certificate. Any certificate issued pursuant to this part may be suspended or revoked by the council, after hearing, for violation of any certificate requirement or condition or any provision of this chapter or rule adopted under this part. Any order made by the council for the suspension or revocation of a certificate shall be in writing and shall set forth the reasons for the suspension or revocation. The action of the council in suspending or revoking a certificate may be reviewed in the manner provided in chapter 91.

§ -74 Summary suspension. (a) Notwithstanding any law to the contrary, the council shall suspend the certificate of an importer, subject to subsequent notice and hearing or other adequate procedures, upon the council's determination that there is an impending danger of escape or release of, or contamination from or exposure to microorganisms imported under the importer's certificate so as to present a threat to:

(1) Public health or safety;

(2) Animal health;

(3) The agricultural, horticultural, aquacultural, livestock, or poultry industry;

(4) The natural resources of the state; or

(5) The environment,

or in the event of a medical emergency or ecological disaster resulting from escape or release of, or contamination from or exposure to microorganisms imported pursuant to the importer's certificate.

(b) The summary suspension of an importer's certificate shall be for a period not to exceed twenty days. The council shall give notice at the time of the suspension of the importer's certificate for a hearing on the extending of the suspension or revocation of the certificate. The hearing shall be scheduled prior to the expiration of the twenty-day period of summary suspension unless the importer submits a request for a reasonable continuance to adequately prepare a defense.

(c) The certificate of an importer who continues the certified activity while the certificate has been summarily suspended shall be permanently revoked and the importer shall be subject to the penalties prescribed by this chapter.

§ -75 Emergency remediation. When the council orders the summary suspension of an importer's certificate as provided in section -74, the council shall, at the expense of the importer, seize, quarantine, remediate, condemn, or destroy the imported microorganisms, any contaminated material, containment equipment, and laboratory or other contained system of the importer, as the council determines is necessary to address the threat, emergency, or disaster.

§ -76 Conditions of importation under certification. (a) A certificate issued to an importer under this part is nontransferable.

(b) Every importer issued a certificate shall comply with the conditions of the certificate.

(c) An inspector may enter the premises under certification at any reasonable time to examine and inspect any microorganism, records, laboratory or other contained system approved by the council, equipment, procedures, manuals, and other related materials pertaining to the microorganism imported under the certificate, and may conduct tests, collect samples, or perform any other activity for the purpose of carrying out and effectuating the purposes of this chapter.

§ -77 Certified importers of microorganisms; penalties. In addition to penalties that may be applicable under section ‑82, certified importers of microorganisms are subject to penalties as follows:

(1) A certified importer of microorganisms who violates any of the provisions of parts III and VII, shall be guilty of a petty misdemeanor and, notwithstanding section 706-640, shall be subject to a fine of not less than $1,000 and not more than $10,000; and

(2) A certified importer of microorganisms who intentionally imports a microorganism not allowed by the importer's certification with the intent to propagate, sell, or release the microorganism shall be guilty of a class C felony and, notwithstanding section 760-640, shall be subject to a fine of not less than $50,000 but not more than $200,000.

PART VII. MISCELLANEOUS PROVISIONS

§ -81 Invasive species inspection, quarantine, and eradication fund. (a) There is established in the state

treasury the invasive species inspection, quarantine, and eradication fund, into which shall be deposited:

(1) Legislative appropriations for inspection, quarantine, and eradication services;

(2) Service charges collected under section -53;

(3) Fees for permits, inspections, and certifications;

(4) Fines and penalties collected for violations of this chapter;

(5) Federal funds received for inspection, quarantine, and eradication programs;

(6) All interest accrued on moneys deposited in the fund; and

(7) Any other moneys made available to the fund.

(b) The moneys in the invasive species inspection, quarantine, and eradication fund shall be expended for:

(1) The operation of inspection, monitoring, and quarantine facilities at ports of entry;

(2) The execution of emergency remedial measures when invasive species are detected; and

(3) The operations of the council.

§ -82 Penalties. (a) Any person who violates any provision of this chapter or any rule adopted under this chapter shall be guilty of a misdemeanor and fined not less than $100. Notwithstanding section 706-640, the maximum fine shall be $10,000. For a second offense, the person shall be fined not less than $500 and not more than $25,000.

(b) Any transportation company that violates section -22, -25, or -27 shall be guilty of a misdemeanor and fined not less than $100. Notwithstanding section 706-640, the maximum fine shall be $10,000. For a second offense, the company may be fined not less than $500 and not more than $25,000.

(1) Any person who violates section -25(a), or intentionally imports, moves, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section -52, or whose violation involves an invasive species without a permit that is prohibited or restricted shall be guilty of a petty misdemeanor and subject to a fine of not less than $5,000, but not more than $20,000;

(2) Any person who intentionally imports, moves, harbors, or transfers with the intent to propagate, sell, or release any invasive species that is prohibited or 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; and

(3) Any person who, without a permit, conceals for the purpose of moving into the state any invasive species that is prohibited or restricted 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.

(d) The owner of any cargo who in violation of section -22, -25, or -27, intentionally, recklessly, or negligently imports, moves, transfers, or causes the importation of invasive species in the cargo, or in any article, or means of conveyance used to transport the cargo shall be subject to a fine of not less than $ , but not more than $ .

(e) Whenever a court sentences a person pursuant to subsection (a) or (c) for an offense that has resulted in the escape or establishment of an invasive species, and that caused the council to initiate emergency remediation measures to capture, control, or eradicate the invasive species, the court shall also require the person to pay into the invasive species inspection, quarantine, and eradication fund an amount of money to be determined in the discretion of the court upon the advice of the council, based upon the cost of the execution of the emergency remedial measures.

(f) Any person that possesses within the state a restricted plant, plant product, plant pest, biological control organism, or microorganism without a permit issued by the council or by the Secretary pursuant to the Agricultural Risk Protection Act, and voluntarily surrenders the plant, plant product, plant pest, biological control organism, or microorganism prior to the initiation of any seizure action by the council, shall be exempt from the penalties of this section."

SECTION 2. Section 141-1, Hawaii Revised Statutes, is amended to read as follows:

"§141-1 Duties in general. The department of agriculture shall:

(1) Gather, compile, and tabulate, from time to time, information and statistics concerning:

(A) Entomology and plant pathology: Insects, scales, blights, and diseases injurious, or liable to become injurious, to trees, plants, or other agricultural vegetation, and the ways and means of exterminating pests and diseases already in the [~~State and preventing the introduction of those not yet here;~~] state; and

(B) General agriculture: Fruits, fibres, and useful or ornamental plants and their introduction, development, care, and manufacture or exportation, with a view to introducing, establishing, and fostering new and valuable plants and industries;

(2) Encourage and cooperate with the agricultural extension service and agricultural experiment station of the University of Hawaii and all private persons and organizations doing work of an experimental or educational character coming within the scope of the subject matter of chapters 141, 142, and 144 to [~~150A,~~] 150, and avoid, as far as practicable, duplicating the work of those persons and organizations;

(3) Enter into contracts, cooperative agreements, or other transactions with any person, agency, or organization, public or private, as may be necessary in the conduct of the department's business and on such terms as the department may deem appropriate; provided that the department shall not obligate any funds of the State, except the funds that have been appropriated to the department. Pursuant to cooperative agreement with any authorized federal agency, employees of the cooperative agency may be designated to carry out, on behalf of the State the same as department personnel, specific duties and responsibilities under chapters 141, 142, [~~150A,~~] 150, and rules adopted pursuant to those chapters, for the effective prosecution of pest control, and animal disease control[~~, and regulation of import into the State and intrastate movement of regulated articles~~];

(4) Secure copies of the laws of other states, territories, and countries, and other publications germane to the subject matters of chapters 141, 142, and 144 to [~~150A,~~] 150, and make laws and publications available for public information and consultation;

[~~(5)~~ Provide buildings, grounds, apparatus, and appurtenances necessary for the examination, quarantine, inspection, and fumigation provided for by chapters 141, 142, and 144 to 150A; for the obtaining, propagation, study, and distribution of beneficial insects, growths, and antidotes for the eradication of insects, blights, scales, or diseases injurious to vegetation of value and for the destruction of injurious vegetation; and for carrying out any other purposes of chapters 141, 142, and 144 to 150A;

~~(6)~~] (5) Formulate and recommend to the governor and legislature additional legislation necessary or desirable for carrying out the purposes of chapters 141, 142, and 144 to [~~150A;~~] 150;

[~~(7)~~] (6) Publish at the end of each year a report of the expenditures and proceedings of the department and of the results achieved by the department, together with other matters germane to chapters 141, 142, and 144 to [~~150A,~~] 150, and which the department may deem proper;

[~~(8)~~] (7) Administer a program of agricultural planning and development, including the formulation and implementation of general and special plans, including but not limited to the functional plan for agriculture; administer the planning, development, and management of the agricultural park program; plan, construct, operate, and maintain the state irrigation water systems; review, interpret, and make recommendations with respect to public policies and actions relating to agricultural land and water use; assist in research, evaluation, development, enhancement, and expansion of local agricultural industries; and serve as liaison with other public agencies and private organizations for the above purposes. In the foregoing, the department of agriculture shall act to conserve and protect agricultural lands and irrigation water systems, promote diversified agriculture, increase agricultural self-sufficiency, and ensure the availability of agriculturally suitable lands."

SECTION 3. Section 141-2, Hawaii Revised Statutes, is amended to read as follows:

"§141-2 Rules. Subject to chapter 91 the department of agriculture shall adopt, amend, and repeal rules not inconsistent with law, for and concerning:

[~~(1)~~ ~~The introduction, transportation, and propagation of trees, shrubs, herbs, and other plants;~~

~~(2)~~ The quarantine, inspection, fumigation, disinfection, destruction, or exclusion, either upon introduction into the State, or at any time or place within the State, of any nursery-stock, tree, shrub, herb, vine, cut-flower, cutting, graft, scion, bud, seed, leaf, root, or rhizome; any nut, fruit, or vegetable; any grain, cereal, or legume in the natural or raw state; any moss, hay, straw, dry-grass, or other forage; any unmanufactured log, limb, or timber; or any other plant growth or plant product unprocessed or in the raw state; any sand, soil, or earth; any live bird, reptile, insect, or other animal, in any stage of development, that is in addition to the so-called domestic animals, which are provided for in section 142-2; and any box, barrel, crate, or other containers in which the articles, substances, or objects have been transported or contained, and any packing material used in connection therewith, which is or may be diseased or infested with insects or likely to assist in the transmission or dissemination of any insect or plant disease injurious, harmful, or detrimental, or likely to become injurious, harmful, or detrimental to the agricultural or horticultural industries or the forests of the State, or which is or may be in itself injurious, harmful, or detrimental to the same (included therein may be rules governing the shipping of any of the articles, substances, or objects enumerated above in this section between different localities on any one of the islands within the State);

~~(3)~~ The prohibition of importation into the State, from any or all foreign countries, or from other parts of the United States, or the shipment from one island within the State to another island therein, or the transportation from one part or locality of any island to another part or locality of the same island, of any specific article, substance, or object or class of articles, substances or objects, among those enumerated above in this section, which is diseased or infested with insects or likely to assist in the transmission or dissemination of any insect or plant disease injurious, harmful, or detrimental or likely to be injurious, harmful, or detrimental to the agricultural or horticultural industries, or the forests of the State, or which is or may be in itself injurious, harmful, or detrimental to the same;

~~(4)~~] (1) The manner in which agricultural product promotion and research activities may be undertaken, after coordinating with the agribusiness development corporation[.]; and

(2) The advertising of fresh fruit, fresh vegetables, or coffee, including a requirement for specifying size, grade, geographic origin, or quality, in conjunction with price.

The department shall consult with appropriate state and federal agencies and with appropriate industry or trade organizations in establishing rules to protect the interest of the general public.

All rules adopted under this section shall have the force and effect of law."

SECTION 4. Section 183D-35, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any responsible resident of good character who is a holder of the license defined in section 183D-34 may bring within the [~~State~~] state and have the custody of, for the purpose of conducting a private and commercial shooting preserve, domestication, propagation, or selling, as provided in this chapter, any game bird, except those prohibited by [~~section 150A-6.~~] chapter ."

SECTION 5. Section 514A-82.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Whenever the bylaws do not forbid apartment owners from keeping animals as pets in their apartments, the bylaws shall not forbid the tenants of the apartment owners from keeping pets in the apartments rented or leased from the owners; provided that:

(1) The apartment owner agrees in writing to allow the apartment owner's tenant to keep a pet in the apartment;

(2) The tenants may keep only those types of pets which may be kept by apartment owners;

(3) The bylaws may allow each owner or tenant to keep only one pet in the apartment;

(4) The animals shall not include those described as pests [~~under section 150A‑2,~~] or animals prohibited from importation under [~~section 141‑2, 150A‑5, or 150A‑6;~~] chapter ;

(5) The bylaws may include reasonable restrictions or prohibitions against excessive noise or other problems caused by pets on the property; and

(6) The bylaws may reasonably restrict or prohibit the running of pets at large in the common areas of the property."

SECTION 6. Section 514B-156, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The bylaws may include reasonable restrictions or prohibitions against excessive noise or other problems caused by pets on the property and the running of pets at large in the common areas of the property. No animals described as pests [~~under section 150A-2,~~] or animals prohibited from importation under [~~section 141-2, 150A-5, or 150A-6~~] chapter shall be permitted."

SECTION 7. Section 141-3, Hawaii Revised Statutes, is repealed.

["~~§141-3 Designation of pests; control or eradication of pests; emergency power.~~ (a) The department of agriculture shall designate the coqui frog as a pest. All other pest designations shall be established by rule, including the criteria and procedures for the designation of pests for control or eradication.

(b) The department of agriculture shall, so far as reasonably practicable, assist, free of cost to individuals, in the control or eradication of insects, mites, diseases, noxious weeds, or other pests injurious to the environment or vegetation of value; and in the investigation, suppression, and eradication of contagious, infectious, and communicable diseases among domestic animals; and shall in like manner distribute to points where needed, beneficial insects, or pathogens and other antidotes for the control of insects, mites, diseases, or other pests injurious to the environment or vegetation of value, and for the control or eradication of vegetation of a noxious character.

(c) Notwithstanding subsection (a), if the department finds the incipient infestation of a pest that has an adverse effect on the environment or that is injurious or deleterious or that is likely to become injurious or deleterious to the agricultural, horticultural, aquacultural, or livestock industries of the State without immediate action, it may proceed without prior notice or upon a minimum of forty-eight hours notice and hearing to adopt an emergency rule for the eradication of the pest to be effective for a period of not longer than one hundred eighty days without renewal."]

SECTION 8. Section 141-3.5, Hawaii Revised Statutes, is repealed.

["~~[§141-3.5] Control or eradication programs.~~ (a) The department of agriculture shall develop and implement a detailed control or eradication program for any pest designated in section 141-3, using the best available technology in a manner consistent with state and federal law.

(b) For any pest designated by emergency rule as provided in section 141-3, the department shall implement an emergency program using the best available technology in a manner consistent with state and federal law."]

SECTION 9. Section 141-3.6, Hawaii Revised Statutes, is repealed.

["~~§141-3.6~~ Entry of private property to control or eradicate any pests. (a) The department of agriculture shall give at least five days notice to the landowner and the occupier of any private property of its intention to enter the property for the control or eradication of a pest. Written notice sent to the landowner's last known address by certified mail, postage prepaid, return receipt requested, shall be deemed sufficient notice. In the event that certified mail is impractical because the department, despite diligent efforts, cannot determine land ownership or because of urgent need to initiate control or eradication measures, notice given once in a daily or weekly publication of general circulation, in the county where any action or proposed action will be taken, or notice made as otherwise provided by law, shall be deemed sufficient notice. The notice shall set forth all pertinent information on the pest control program and the procedures and methods to be used for control or eradication.

(b) After notice as required by subsection (a), any member of the department or any agent authorized by the department may enter at reasonable times any private property other than dwelling places to maintain a pest control or eradication program, being liable only for damage caused by acts beyond the scope of the person's authority, or the person's negligence, gross negligence, or intentional misconduct. If entry is refused, the department member or agent may apply to the district court in the circuit in which the property is located for a warrant to enter on the premises to effectuate the purposes of this chapter. The district court may issue a warrant directing a police officer of the circuit to assist the department member or agent in gaining entry onto the premises during regular working hours or at other reasonable times."]

SECTION 10. Section 141-7, Hawaii Revised Statutes, is repealed.

["~~§141-7 General penalty.~~ (a) Any person violating any of the provisions of chapters 141, 142, or 144 to 149A, for which violation a penalty is not otherwise provided, or violating any rule of the department of agriculture, or any master of any vessel which brings into the State any article which the department at any time shall prohibit from being imported into the State, or the master of any vessel from which is landed any article required in chapters 141, 142, or 144 to 149A to be inspected, before the master has received a permit to land the articles from the department or its officer or inspector, as provided by chapters 141, 142, and 144 to 149A, shall be fined not more than $500.

(b) When any landowner or land occupier fails to cooperate with the department in its pest control or eradication programs, the department may proceed with its program at the expense of the landowner or land occupier. Any person who violates this chapter or any rule adopted by the department pursuant to section 141-3 shall be fined not less than $100 nor more than $500 for the first offense, and not less than $1,000 nor more than $5,000 for each offense thereafter."]

SECTION 11. Section 187A-6.5, Hawaii Revised Statutes, is repealed.

["~~187A-6.5 Release and confiscation of harmful aquatic life.~~ (a) No person shall release any live non-native fish or other live non-native aquatic life being held in an aquarium or other confinement for scientific study, exhibition, display, sale, or for any other purpose, into any waters of the State, except as provided in section 187A-2(4).

(b) The department or its agents may seize, confiscate, or destroy, as a public nuisance, any fish or other aquatic life found in any waters of the State and whose importation is prohibited or restricted pursuant to rules of the department of agriculture."]

SECTION 12. Chapter 150A, Hawaii Revised Statutes, is repealed.

SECTION 13. Chapter 152, Hawaii Revised Statutes, is repealed.

SECTION 14. Part III of Chapter 187A, Hawaii Revised Statutes, is repealed.

SECTION 15. Act 85, Session Laws of Hawaii 2003, as amended by Act 10, Session Laws of Hawaii 2004, and Act 109 Session Laws of Hawaii 2006, is repealed.

SECTION 16. 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 2008-2009 to carry out the operations of the invasive species council, including the hiring of necessary staff.

The sum appropriated shall be expended by the invasive species council.

SECTION 17. All rights, powers, functions, and duties of the department of agriculture under chapters 150A and 152, and the department of land and natural resources under chapter 187A, part III, are transferred to the invasive species council.

All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits of privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

If an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

All rules, policies, procedures, guidelines, and other material adopted by the department of agriculture to implement the provisions of chapters 150A and 152, Hawaii Revised Statutes, or adopted by the department of land and natural resources to implement the provisions of chapter l87A, part III, Hawaii Revised Statutes, which are made applicable to the invasive species council by this Act, shall remain in full force and effect until amended or repealed by the invasive species council pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of agriculture, board of agriculture, or chairperson of the board of agriculture, or the department of land and natural resources, board of land and natural resources, or chairperson of the board of land and natural resources in those rules, policies, procedures, guidelines, and other material is amended to refer to the invasive species council.

All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of agriculture and the department of land and natural resources relating to the functions transferred to the invasive species council shall be transferred with the functions to which they relate.

SECTION 18. If any part of this Act is found to be in conflict with federal requirements that are a prescribed condition for the allocation of federal funds to the State, the conflicting part of this Act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this Act in its application to the agencies concerned. The rules under this Act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the State.

SECTION 19. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 20. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 22. This Act shall take effect upon its approval; provided that section 16 shall take effect on July 1, 2008.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	3418
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII