Session Law

Identifying Information:L. 2002 ch. 091
Other Identifying Information:2002 Senate Bill 437
Tax Type:Other
Brief Description:An Act concerning agriculture; relating to plants and plant products, plant pests and plant dealers; certain agriculture commodities; amending K.S.A. 2-2112, 2-2113, 2-2114, 2- 2115, 2-2116, 2-2117, 2-2118, 2-2120, 2-2122, 2-2123, 2-2124, 2-2125, 2-2126, 2-2128 and 2-2129 and K.S.A. 2001 Supp. 65-688 and repealing the existing sections; also re- pealing K.S.A. 2-411, 2-412, 2-413, 2-414, 2-415, 2-417, 2-418, 2-422, 2-422a, 2-424, 2- 426, 2-427, 2-428, 2-2119 and 2-2121.
Keywords:


Body:

CHAPTER 91

SENATE BILL No. 437


An Act concerning agriculture; relating to plants and plant products, plant pests and plant

dealers; certain agriculture commodities; amending K.S.A. 2-2112, 2-2113, 2-2114, 2-

2115, 2-2116, 2-2117, 2-2118, 2-2120, 2-2122, 2-2123, 2-2124, 2-2125, 2-2126, 2-2128

and 2-2129 and K.S.A. 2001 Supp. 65-688 and repealing the existing sections; also re-

pealing K.S.A. 2-411, 2-412, 2-413, 2-414, 2-415, 2-417, 2-418, 2-422, 2-422a, 2-424, 2-


426, 2-427, 2-428, 2-2119 and 2-2121.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2-2112 is hereby amended to read as follows: 2-

2112. This act shall be known as the ``plant pest and agriculture com-

modity certification act.'' The authority to regulate plant pests, live plant

dealers, plants and plant products and commodity certification in Kansas

is vested exclusively with the secretary of agriculture.

Sec. 2. K.S.A. 2-2113 is hereby amended to read as follows: 2-2113.

As used in the plant pest this act, the following terms shall have the

following meanings:

(a) ``Plant pests'' shall include include any stage of development of

any insect, nematode, arachnid, or any other invertebrate animal, or any

bacteria, fungus, virus, weed or any other parasitic plant or microorgan-

ism, which can injure plants or plant products.

(b) ``Board'' means the state board of agriculture.

(c) ``Secretary'' means the secretary of the state board Kansas de-

partment of agriculture, or the authorized representative of the board or

its secretary.

(d) (c) ``Plants and plant products'' means trees, shrubs, grasses, vines,

forage and cereal plants and all other plants; cuttings, grafts, scions, buds

and all other parts of plants; and fruit, vegetables, roots, bulbs, seeds,

wood, lumber, grains and all other plant products.

(e) ``Nursery stock'' means any wild or cultivated trees, shrubs,

grasses, vines, and cuttings, grafts, scions, buds, and other parts of such

plants grown or kept for propagation.

(f) ``Nursery'' (d) ``Location'' means any grounds or premises on or

in which nursery stock is live plants are propagated, or grown, or from

which nursery stock is live plants are removed for sale, or any grounds or

premises on or in which nursery stock is live plants are being fumigated,

treated, packed, stored, or offered for sale.

(g) ``Nurseryman'' means any person who owns, leases, manages, or

is in charge of a nursery.

(h) ``Dealer'' (e) ``Live plant dealer'' means any person not a grower

of nursery stock who procures nursery stock for the purpose of sale or

distribution independent of any control of the nurseryman, unless ex-

cluded by rules and regulations of the secretary, who:

(1) Grows live plants for sale or distribution;

(2) buys or obtains live plants for the purpose of reselling or reship-

ping within this state;

(3) plants, transplants or moves live plants from place to place within

the state with the intent to plant such live plants for others and receives

compensation for the live plants, for the planting of such live plants or

for both live plants and plantings; or

(4) gives live plants as a premium or for advertising purposes.

(i) ``Agent'' means any person selling nursery stock under the partial

or full control of a nurseryman, or a dealer.

(j) (f) ``Person'' means a corporation, company, society, association,

partnership, governmental agency and any individual or combination of

individuals.

(k) (g) ``Permit'' means a document issued or authorized by the sec-

retary to provide for the movement of regulated articles to restricted

destinations for limited handling, utilization, or processing.

(l) (h) ``Host'' means any plant or plant product upon which a plant

pest is dependent for completion of any portion of its life cycle.

(m) (i) ``Regulated article'' means any host or any article of any char-

acter as described in a quarantine or regulation carrying or being capable

of carrying the plant pest against which the quarantine or regulation is

directed.

(j) ``Live plant'' means any living plant, cultivated or wild, or any

part thereof that can be planted or propagated unless specifically ex-

empted by the rules or regulations of the secretary.

(k) ``Quarantine pest'' means a pest of potential economic importance

to the area endangered thereby and not yet present there, or present but

not widely distributed and being officially controlled.

(l) ``Regulated nonquarantine pest'' means a nonquarantine pest

whose presence in plants for planting affects the intended use of those

plants with an economically unacceptable impact and which is therefore

regulated.

(m) ``Official control'' means the active enforcement of mandatory

phystosanitary regulations and the application of mandatory phystosan-

itary procedures with the objective of eradication or containment of quar-

antine pests or for the management of regulated nonquarantine pest.

(n) ``Regulated area'' means an area into which, within which and/or

from which plants, plant products and other regulated articles are sub-

jected to phystosanitary regulations or procedures in order to prevent the

introduction and/or spread, or both, of quarantine pests or to limit the

economic impact of regulated nonquarantine pests.

(o) ``Bee'' means a honey-producing insect of the genus Apis including

all life stages of the insect.

(p) ``Beekeeping equipment'' means all hives, supers, frames or other

devices used in the rearing or manipulation of bees or their brood.

(q) ``Bee pest'' means any infectious, contagious or communicable dis-

ease or harmful parasite or insects affecting honey bees or their brood.

Sec. 3. K.S.A. 2-2114 is hereby amended to read as follows: 2-2114.

The secretary, either independently, or in cooperation with counties, cit-

ies, other political subdivisions of the state, federal agencies, agencies of

other states or private entities may enter into contracts and agreements

and may carry out official control operations or measures to locate, and

to suppress, control, eradicate, prevent, or retard the spread of, any plant

pests. The secretary is authorized to take any actions necessary and con-

venient for the state to become a party to and participate as a member

of the interstate pest control compact.

Sec. 4. K.S.A. 2-2115 is hereby amended to read as follows: 2-2115.

To effectuate the purposes of this act, the secretary shall have the right

to enter and inspect any property in this state, except private residences

dwellings; or, to stop and inspect any means of conveyance moving within

this state, upon probable cause to believe it contains or carries any plant

pest or other article subject to this act.

Sec. 5. K.S.A. 2-2116 is hereby amended to read as follows: 2-2116.

Wherever the secretary finds a plant or, plant product or other regulated

article that is infested by a plant pest or finds that a plant pest exists on

any premises in this state or is in transit in this state, the secretary may,

upon giving notice to the owner or an agent of the owner in possession

thereof, may seize, quarantine, treat, or otherwise dispose of such plant

pest in such manner as the secretary deems necessary to suppress, control,

eradicate, or prevent or retard the spread of said such plant pest, or the

secretary may order such owner or agent to so treat or otherwise dispose

of the said such plant pest.

Sec. 6. K.S.A. 2-2117 is hereby amended to read as follows: 2-2117.

The secretary is authorized to quarantine this state or any portion thereof

when he or she shall determine the secretary determines that such action

is necessary to prevent or retard the spread of a plant pest and to quar-

antine any other state or portion thereof whenever he or she the secretary

determines that a plant pest exists therein and that such action is neces-

sary to prevent or retard its spread into this state. Before promulgating

the determination that a quarantine is necessary, the secretary shall, after

due notice to interested parties, shall hold a public hearing at which any

interested party may appear and be heard either in person or by attorney:

Provided,. The secretary may impose a temporary quarantine for a period

not to exceed ninety (90) 90 days during which time a public hearing, as

provided herein in this section, shall be held if it appears that a quarantine

for more than the ninety (90) day 90-day period will be necessary to

prevent or retard the spread of the plant pest. The secretary may limit

the application of the quarantine to the infested portion of the quaran-

tined area and appropriate environs, to be known as the regulated area,

and may, without further hearing, may extend the regulated area to in-

clude additional portions of the quarantined area. Following the estab-

lishment of the quarantine, no person shall move the plant pest against

which the quarantine is established or move any regulated article de-

scribed in the quarantine, within, from, into or through this state contrary

to the quarantine promulgated by the secretary. The quarantine may re-

strict the movement of the plant pest and any regulated articles from the

quarantined or regulated area in this state into or through other parts of

this state or other states and from the quarantined or regulated area in

other states into or through this state, and. The secretary shall impose

such inspection, disinfection, certification or permit and other require-

ments as the secretary shall deem necessary to effectuate the purposes

of this act. The secretary is authorized to establish regulations defining

pest freedom standards for live plants, plants and plant products or other

regulated articles that pose risk of moving plant pests that may cause

economic or environmental harm.

Sec. 7. K.S.A. 2-2118 is hereby amended to read as follows: 2-2118.

(a) The secretary shall inspect or cause to be inspected all nurseries in

the state at least once each year. If upon inspection of any nursery it

appears that such nursery and its premises are apparently free from plant

pests, the secretary shall issue to the owner or the person in charge of

such nursery a certificate setting forth the facts of such inspection. Before

such certificate is issued the nurseryperson shall pay a certificate fee plus

an inspection fee assessed on the basis of a dollar amount for each acre

or fraction thereof of nursery stock inspected, which fees shall be fixed

by rules and regulations adopted by the secretary, except that the certif-

icate fee shall not exceed $30 and the inspection fee shall not exceed an

amount assessed on the basis of $5 for each acre or fraction thereof of

nursery stock inspected. The nursery certificate fee and the rate of as-

sessment for the inspection fee which are in effect on the day preceding

the effective date of this act shall continue in effect until the secretary

adopts rules and regulations fixing a different fee therefor under this

subsection.

(b) Such certificate shall be valid until the first day of September of

the year of issuance, except where the inspection is made after the first

day of May the certificate shall be valid until the first day of September

of the following year, unless sooner revoked.

(c) Any person who is not a nurseryperson but who owns or possesses

plants or plant products which such person wishes to have inspected or

who owns or possesses plants or plant products which such person wishes

to ship into another state or country, may request that the secretary in-

spect such plant or plant products with reference to the presence of any

plant pests or with reference to the presence of plant pests likely to pre-

vent the acceptance of such plants or plant products in such other state

or country. The secretary may comply with such request as soon as it is

conveniently practicable and shall issue a certificate setting forth the facts

of the inspection. The secretary shall charge and collect fees for such

inspection and certificate which shall be fixed by rules and regulations

adopted by the secretary so that the fee is the larger of the amount de-

termined on a rate per hour plus the mileage expenses incurred by the

inspector, which shall be at the mileage allowance rate prescribed by rules

and regulations adopted under K.S.A. 75-3203a, and amendments

thereto, or a dollar amount plus an amount per certificate, except that

such fees and amounts shall not exceed fees at the rates of $30 per hour

plus such mileage expenses incurred by the inspector or $50 plus $50 per

certificate, whichever is the larger amount. Upon request the secretary

may provide inspection services for any person who owns or possesses

plants or plant products or for certification purposes of regulated articles

intended for shipment interstate or internationally. Upon payment of the

appropriate fee as established by rule and regulation and as inspection

personnel are available, the inspection shall be conducted and a report or

certificate setting forth the inspection results shall be issued if requested.

Inspection fees shall not exceed $30 per hour. Mileage incurred shall also

be paid by the person requesting the inspection at the rate established by

regulation. If certificate is requested an additional fee not to exceed $50

shall be assessed. The fees for such inspection and certificate in effect on

the day preceding the effective date of this act shall continue in effect

until the secretary adopts rules and regulations fixing a different fee there-

for under this subsection except that on and after July 1, 1996, the cer-

tificate fee shall be $5 for certificates issued for plant and plant products

shipped into another state and $20 for plants and plant products shipped

into another country until the secretary adopts rules and regulations fixing

a different fee therefor under this subsection. In any case where any

intended receiving state or country requires or authorizes the certification

of nursery stock, plants or plant products, bees or beekeeping equipment

or other regulated articles to be based on origin, special handling, treat-

ment or any other procedure in addition to or in lieu of actual visual

inspection of such nursery stock, plants or plant products articles, the

secretary may provide such certification. The secretary may refuse to per-

form any inspection if the regulated article to be inspected is found to be

in such condition that it cannot be adequately inspected or the environs

in which the regulated article is located present a danger to the health

and safety of the inspection personnel.

Sec. 8. K.S.A. 2-2120 is hereby amended to read as follows: 2-2120.

Every live plant dealer shall, before selling or offering for sale or deliv-

ering any nursery stock live plants in this state, shall procure from the

secretary a nursery live plant dealer's license for each location and vehicle

from which the live plant dealer offers such nursery stock live plants for

sale. Application for such license shall be made on a form furnished by

the secretary, and the fee for each application shall be fixed by rules and

regulations adopted by the board secretary, except that such fee shall not

exceed $50 $60, and shall not apply to live plant dealers whose total

annual retail live plant sales are less than $10,000. The application fee in

effect on the day preceding the effective date of this act shall continue

in effect until the board secretary adopts rules and regulations fixing a

different application fee under this section. The dealer's license shall ex-

pire on December January 31, following date of issue, except that all

valid certificates of nursery inspection and nursery dealer licenses issued

by the secretary that are scheduled to expire in 2002 shall remain valid

until January 31, 2003. The dealer shall sell only nursery stock which has

been inspected and certified A live plant dealer may sell only live plants

which are in compliance with all quarantines and regulated nonquaran-

tine pest freedom standards established by the secretary, or which has

come to the dealer live plants accompanied by a valid certificate of in-

spection of a federal inspector or inspector of another state, stating that

such stock was inspected and is apparently free from plant pests live

plants comply with all applicable quarantines and regulated nonquaran-

tine pest freedom standards. Except where restricted by a quarantine, live

plants transplanted on one contiguous property are exempt from the pro-

visions of this act.

Sec. 9. K.S.A. 2-2122 is hereby amended to read as follows: 2-2122.

If it is found that any nursery certificate or nursery live plant dealer

license issued or approved by the secretary is being used in connection

with nursery stock which has not been inspected, or which is infested

with plant pests, or which is being sold and delivered without treatment

live plants which do not meet the quarantines and regulated nonquar-

antine pest freedom standards established by the secretary, or other pre-

cautionary measures prescribed by the secretary under the provisions of

K.S.A. 2-2119 this act and amendments thereto being carried out by the

nurseryman, or if it is found that any nursery certificate or nursery live

plant dealer's license is being used by a person other than the one to

whom it was issued, the secretary may require the owner of the certificate

or license to appear for a hearing, on a specified date, to be conducted

in accordance with the provisions of the Kansas administrative procedure

act to show cause why the certificate or license should not be revoked.

If, after such hearing, the secretary finds that such certificate or license

has been wrongfully used in one or more of the ways specified in this

section, or if the owner of such certificate or license fails to appear at

such hearing, the secretary may issue an order revoking such certificate

or license.

Sec. 10. K.S.A. 2-2123 is hereby amended to read as follows: 2-2123.

It shall be unlawful to deliver, transport or ship into or within this state

nursery stock which has not been inspected in accordance live plants or

other regulated articles which are not in compliance with the provisions

of this act. Any such nursery stock live plants intended for resale and any

such nursery stock live plants transported by public carrier shall have

attached to each quantity or package a tag or label on which shall appear

a copy of a valid certificate of inspection document issued by the proper

official of the state, territory, district or country from which it was

shipped, sent, or brought showing that such nursery stock was found free

from plant pests. Nursery stock live plants are in compliance with Kansas

quarantines and regulated nonquarantine pest freedom standards. Live

plants brought into the state under an inspection certificate a document,

as above required by this section, may be sold and moved under the

certificate or license of a Kansas nurseryman or Kansas nursery dealer,

but a valid Kansas live plant dealer license, and this shall not preclude

inspection by the secretary at any time within the state. Electronic or mail

order sales of live plants are subject to the provisions of this act. All

regulated articles shipped or moved into Kansas shall be accompanied by

valid documentation issued by the proper official of the state, territory,

district or county from which it was shipped or moved showing that the

regulated article is in compliance with Kansas quarantines or pest freedom

standards, or both, established for such article.

Sec. 11. K.S.A. 2-2124 is hereby amended to read as follows: 2-2124.

It shall be a violation of this act for any person:

(a) To sell, barter, offer for sale, or move, transport, deliver, ship or

offer for shipment into or within this state any plant pests in any living

stage without first obtaining approval for such shipment from the secre-

tary;

(b) to hinder or prevent the secretary from carrying out his or her

duties under this act;

(c) to fail to carry out the treatment or destruction of any plant pest

or regulated article in accordance with official notification from the sec-

retary;

(d) to sell, transport, deliver, distribute, or offer or expose for sale

nursery stock which has not been inspected and which is not covered by

a valid certificate of inspection live plants which are not in compliance

with the provisions of this act;

(e) to use an invalid or revoked certificate of inspection, or dealers

live plant dealer license, in the sale or distribution of nursery stock live

plants;

(f) to sell, offer or expose for sale, or distribute nursery stock which

does not have attached thereto a shipping tag or label bearing a copy of

the certificate of inspection as is required by K.S.A. 2-2123;

(g) to sell, offer or expose for sale or deliver any nursery stock without

having a current nursery certificate or license as a nursery dealer;

(h) to fail to comply with any of the provisions of this act, or the rules

and regulations promulgated hereunder; and

(i) (g) to knowingly move any regulated article into this state from a

quarantined area of any other state when such article has not been treated

or handled as provided by the requirements of said quarantine at the

point of origin of such article.

Sec. 12. K.S.A. 2-2125 is hereby amended to read as follows: 2-2125.

(a) Any person violating any of the provisions of this act shall be deemed

guilty of a misdemeanor and upon conviction shall be punished by a fine

of not less than twenty-five dollars ($25) $25 nor more than five hundred

dollars ($500) $500.

(b) The secretary may assess a civil penalty against any person who

violates or fails to comply with the requirements of this act of not less

than $100 nor more than $1,000 per offense. In the case of a continuing

offense, each day the violation continues may be deemed a separate vio-

lation. Such civil penalty may be assessed in addition to any other penalty

provided by law. Such assessment shall be made in accordance with the

Kansas administrative procedure act.

Sec. 13. K.S.A. 2-2126 is hereby amended to read as follows: 2-2126.

The secretary shall promulgate, amend and repeal such rules and regu-

lations as, in the discretion of the secretary, are necessary for the efficient

execution of the provisions of the plant pest this act.

Sec. 14. K.S.A. 2-2128 is hereby amended to read as follows: 2-2128.

The secretary shall remit all moneys received by or for the secretary under

article 21 of chapter 2 of Kansas Statutes Annotated, and amendments

thereto, to the state treasurer in accordance with the provisions of K.S.A.

75-4215, and amendments thereto. Upon receipt of each such remittance,

the state treasurer shall deposit the entire amount in the state treasury

to the credit of the entomology fee fund. All expenditures from such fund

shall be made in accordance with appropriation acts upon warrants of the

director of accounts and reports issued pursuant to vouchers approved

by the secretary of the state board of agriculture or by a person or persons

designated by the secretary.

Sec. 15. K.S.A. 2-2129 is hereby amended to read as follows: 2-2129.

(a) There is hereby created a plant pest emergency response fund in the

state treasury. Such fund shall be funded by a fee assessed in addition to

the fees assessed a nursery dealer or nursery certificate holder live plant

dealer under article 21 of chapter 2 of the Kansas Statutes Annotated.

The additional fee shall be fixed by rule and regulation promulgated by

the secretary of agriculture, except that such additional fee shall not ex-

ceed $5 annually on each nursery dealer and nursery certificate holder

live plant dealer license. The secretary is authorized and empowered to

collect the fees provided in this section. When the total amount of fees

deposited in the fund is equal to or exceeds $15,000, the secretary shall

not collect any such fees as provided in this section. When expenditures

made from the fund result in the total amount of the fees deposited in

the fund to be less than $15,000, the secretary may resume the assessment

and collection of such fees as provided in this section.

(b) The secretary is authorized and empowered to make expenditures

from the plant pest emergency response fund and that in the discretion

of the secretary mitigate pests that have been identified by the secretary

as high risk pests having the potential to damage agriculture, horticulture

or the environment. Such expenditures may include the costs of enforce-

ment to protect against high risk pests identified by the secretary. All

expenditures from such fund shall be made in accordance with appro-

priation acts upon warrants of the director of accounts and reports issued

pursuant to vouchers approved by the secretary or by a designee of the

secretary.

(c) The plant pest emergency response fund shall be a fund separate

and distinct from the entomology fee fund referred to in K.S.A. 2-2128,

and amendments thereto.

(d) The provisions of this section shall be part of and supplemental

to the plant pest this act.

Sec. 16. K.S.A. 2001 Supp. 65-688 is hereby amended to read as

follows: 65-688. (a) As used in sections 2 through 4 this section and K.S.A.

2001 Supp. 65-689, and amendments thereto:

(1) ``Retail food store'' means any establishment or section of an es-

tablishment where food and food products are offered to the consumer

and intended for off-premises consumption. The term includes delica-

tessens that offer prepared food in bulk quantities only. The term does

not include roadside markets that offer only fresh fruits and vegetables

for sale, food service establishments or food and beverage vending ma-

chines, or any plant which is registered by the department of agriculture

under article 7 of chapter 65 of the Kansas Statutes Annotated or which

is licensed by the department of agriculture under article 6a of chapter

65 of the Kansas Statutes Annotated.

(2) ``Food processing plant'' means a commercial operation that man-

ufactures, packages, labels or stores food for human consumption and

does not provide food directly to the consumer. ``Food processing plant''

shall not include any operation or individual beekeeper that produces or

stores honey who does not process or offer the honey for sale at retail, or

any plant which is registered by the department of agriculture under

article 7 of chapter 65 of the Kansas Statutes Annotated or which is li-

censed by the department of agriculture under article 6a of chapter 65 of

the Kansas Statutes Annotated.

(3) ``Secretary'' means the secretary of health and environment.

(b) In order to reimburse the state of Kansas for inspections by the

secretary of health and environment of retail food stores and food proc-

essing plants, the secretary of health and environment shall adopt rules

and regulations establishing a graduated inspection fee schedule to cover

all of the cost of inspection of retail food stores and food processing plants

which shall not exceed $200 per calendar year for each retail food store

and food processing plant location. Whenever the secretary determines

that the total amount of revenue derived from the fees collected pursuant

to this section are insufficient to carry out the purposes for which the fees

are collected, the secretary may amend such rules and regulations to

increase the amount of the fee or fees, except that the amount of any fee

shall not exceed the maximum amount authorized by this subsection.

Whenever the amount of fees collected pursuant to this subsection pro-

vides revenue in excess of the amount necessary to carry out the purposes

for which such fees are collected, it shall be the duty of the secretary to

decrease the amount of the fees prescribed for retail food stores or food

processing plants by amending the rules and regulations which fix the

fees, as the case may be.

(c) All moneys received as fees under this section shall be remitted

to the state treasurer at least monthly. Upon receipt of each such remit-

tance, the state treasurer shall deposit the entire amount in the state

treasury to the credit of the food inspection fee fund.

(d) The secretary of health and environment shall adopt rules and

regulations necessary to carry out the provisions of this section.

Sec. 17. K.S.A. 2-411, 2-412, 2-413, 2-414, 2-415, 2-417, 2-418, 2-

422, 2-422a, 2-424, 2-426, 2-427, 2-428, 2-2112, 2-2113, 2-2114, 2-2115,

2-2116, 2-2117, 2-2118, 2-2119, 2-2120, 2-2121, 2-2122, 2-2123, 2-2124,

2-2125, 2-2126, 2-2128 and 2-2129 and K.S.A. 2001 Supp. 65-688 are

hereby repealed.

Sec. 18. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 24, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002