| 47 | | - | SECTION 1. The legislature finds that invasive species are the single greatest threat to the State's economy and natural environment, including native species, and to the health and lifestyle of Hawaii's people. The impacts of invasive species in the State have been severe, causing serious habitat degradation, extinction of native species, increased wildfire risk, increases in the cost of agriculture and livestock production, and many other negative and expensive consequences. Preventing pests from entering the State, or, if that fails, taking steps to prevent a pest from spreading within the State, are two critical measures that can protect Hawaii from the negative impacts of invasive species. The legislature, like the federal government, recognizes the value of preventing the movement of invasive pests. Federal law allows the United States Department of Agriculture to conduct pre-departure inspections of all passengers, baggage, cargo, and any other articles moving from the State to other areas of the continental United States to protect against the spread of pests from Hawaii. However, the federal government does not provide any similar inspections for passengers or material arriving in the State from other parts of the continental United States. The legislature recognizes that existing law does not expressly authorize the Hawaii department of agriculture to inspect non-agricultural commodities arriving in the State from other parts of the United States, posing a serious gap that can allow invasive species like the red imported fire ant and wood‑boring beetles to enter the State with other imports. For example, once invasive pests such as the red imported fire ant are present in the State, the department of agriculture will require the authority to impose a quarantine and prevent the movement of certain items to mitigate the spread of the pest. The legislature notes that other states have and regularly exercise the authority to quarantine areas, including restricting the movement, possession, and sale of commodities infested with a high-impact pest, and may also quarantine any other products, articles, or means of conveyance of a high-impact pest. Accordingly, the purpose of this Act is to expand the department of agriculture's authority to conduct certain investigations and clarify certain penalties to prevent the spread of invasive species in the State. SECTION 2. Section 150A-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows: ""Person" means an individual, corporation, firm, association, society, community, assembly, inhabitant of a district or neighborhood, or person known or unknown, and the public generally. "Person" includes a government and any of its agencies, instrumentalities, or subdivisions." SECTION 3. Section 150A-5, Hawaii Revised Statutes, is amended to read as follows: "§150A-5 Conditions of importation. (a) The importation of any material that is infested or infected with an insect or other animal, disease, or pest, or that is itself a pest, shall be prohibited unless appropriate authorization is obtained from the department before importation. (b) The importation into the State of any of the following articles, viz., nursery-stock, tree, shrub, herb, vine, cut‑flower, cutting, graft, scion, bud, seed, leaf, root, or rhizome; nut, fruit, or vegetable; grain, cereal, or legume in the natural or raw state; moss, hay, straw, dry-grass, or other forage; unmanufactured log, limb, or timber, or any other plant‑growth or plant-product, unprocessed or in the raw state; soil[;], including potting soil, growing mix, and mulch; microorganisms; live bird, reptile, nematode, insect, or any other animal in any stage of development (that is in addition to the so-called domestic animal, the quarantine of which is provided for in chapter 142); box, vehicle, baggage, or any other container in which the articles have been transported or any packing material used in connection therewith shall be made in the following manner [hereinafter set forth]: (1) Notification of arrival. Any person who receives for transport or brings or causes to be brought to the State as freight, air freight, baggage, or otherwise, for the purpose of debarkation or entry [therein], or as ship's stores, any of the foregoing articles, shall, immediately upon the arrival thereof, notify the department[,] in writing[,] of the arrival[, giving]. The notification shall include the waybill number, container number, name and address of the consignor, name and address of the consignee or the consignee's agent in the State, marks, number of packages, description of contents of each package, port at which laden, and any other information that may be necessary to locate or identify the same[, and]. The articles shall [hold the articles] be held at the pier, airport, or any other place where [they] the articles are first received or discharged, in a manner that [they will not] prevents the spread or [be likely to spread] likelihood of spreading any infestation or infection of a pest, including insects or diseases that may be present, until inspection and examination can be made by the inspector to determine whether [or not] any article, or any portion thereof, is infested or infected with or contains any pest. The department may adopt rules to require identification of specific articles on negotiable and non-negotiable warehouse receipts, bills of lading, or other documents of title for inspection of pests. In addition, the department shall adopt rules to designate restricted articles that shall require: (A) A permit from the department in advance of importation; or (B) A department letter of authorization or registration in advance of importation. The restricted articles shall include but not be limited to certain microorganisms or living insects. Failure to obtain the permit, letter of authorization, or registration in advance [is] shall be a violation of this section; (2) Individual passengers, officers, and crew. (A) It shall be the responsibility of the transportation company to distribute, [prior to] before the debarkation of passengers and baggage, the State of Hawaii plant and animal declaration form in paper or electronic form to each passenger, officer, and crew member of any aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency [in order], so that the passenger, officer, or crew member can comply with the directions and requirements appearing thereon. All passengers, officers, and crew members, regardless of whether [or not] they are bringing or causing to be brought for entry into the State the articles listed on the form, shall complete the declaration[, except]; provided that one adult member of a family may complete the declaration for other family members. Any person who defaces the declaration form required under this section, gives false information, fails to declare restricted articles in the person's possession or baggage, or fails to declare in cargo manifests [is] shall be in violation of this section; (B) Completed paper forms shall be collected by the transportation company and be delivered, immediately upon arrival, to the inspector at the first airport or seaport of arrival. Completed electronic forms shall be transmitted to the inspector before passengers depart the first airport or seaport of arrival. Failure to distribute or collect paper declaration forms, immediately deliver completed paper forms, or transmit completed electronic forms before passengers depart the first airport or seaport of arrival [is] shall be a violation of this section; and (C) It shall be the responsibility of the officers and crew of an aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency to immediately report all sightings of any plants and animals to the plant quarantine branch. Failure to comply with this requirement is a violation of this section; (3) Plant and animal declaration form. The form shall include directions for declaring domestic and other animals cited in chapter 142, in addition to the articles enumerated in this chapter; (4) Labels. Each container in which any of the abovementioned articles are imported into the State shall be plainly and legibly marked, in a conspicuous manner and place, with the name and address of the shipper or owner forwarding or shipping the same, the name or mark of the person to whom the same is forwarded or shipped or the person's agent, the name of the country, state, or territory and locality therein where the product was grown or produced, and a statement of the contents of the container. Upon failure to comply with this paragraph, the importer or carrier [is] shall be in violation of this section; (5) Authority to administratively inspect. [Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may: (A) Enter and inspect any aircraft, vessel, or other carrier at any time after its arrival within the boundaries of the State, whether offshore, at the pier, or at the airport, for the purpose of determining whether any of the articles or pests enumerated in this chapter or rules adopted thereto, is present; (B) Enter into or upon any pier, warehouse, airport, or any other place in the State where any of the above-mentioned articles are moved or stored, for the purpose of ascertaining, by inspection and examination, whether or not any of the articles is infested or infected with any pest or disease or contaminated with soil or contains prohibited plants or animals; and (C) Inspect any baggage or personal effects of disembarking passengers, officers, and crew members on aircraft or vessels arriving in the State to ascertain if they contain any of the articles or pests enumerated in this chapter. No baggage or other personal effects of the passengers or crew members shall be released until the baggage or effects have been passed. Baggage or cargo inspection shall be made at the discretion of the inspector, on the pier, vessel, or aircraft or in any quarantine or inspection area. Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may require that any box, package, suitcase, or any other container carried as ship's stores, cargo, or otherwise by any vessel or aircraft moving between the continental United States and Hawaii or between the Hawaiian Islands, be opened for inspection to determine whether any article or pest prohibited by this chapter or by rules adopted pursuant thereto is present. It is a violation of this section if any prohibited article or any pest or any plant, fruit, or vegetable infested with plant pests is found;] An inspector may: (A) Conduct inspections of persons, baggage, cargo, and any other articles destined for movement between the Hawaiian Islands or importation into the State from the continental United States or any territory or possession of the United States for the purpose of determining whether an insect, pest, disease, or prohibited, restricted, or regulated taxon is present; (B) Enter and inspect any aircraft, vessel, or other carrier at any time after its arrival within the boundaries of the State, whether offshore, at the pier, or at the airport, and enter into or upon any pier, airport, warehouse, or any other place in the State for the purpose of conducting inspections authorized by subparagraph (A); and (C) Inspect any baggage and cargo on the pier, vessel, or aircraft, or in any quarantine or inspection area; (6) Request for importation and inspection. In addition to requirements of the appropriate United States [customs] authorities concerning invoices or other formalities incident to importations into the State, the importer shall be required to file a written statement with the department, signed by the importer or the importer's agent, setting forth the importer's desire to import certain of the above-mentioned articles into the State and: (A) [Giving] Providing the following additional information: (i) The kind (scientific name), quantity, and description; (ii) The locality where the same were grown or produced; (iii) Certification that all animals to be imported are the progeny of captive populations or have been held in captivity for a period of one year immediately before importation or have been specifically approved for importation by the board; (iv) The port from which the same were last shipped; (v) The name of the shipper; and (vi) The name of the consignee; and (B) Containing: (i) A request that the department, by its duly authorized agent, examine the articles described; (ii) An agreement by the importer to be responsible for all costs, charges, or expenses; and (iii) A waiver of all claims for damages incident to the inspection or the fumigation, disinfection, quarantine, or destruction of the articles, or any of them, as hereinafter provided, if any treatment is deemed necessary. Failure or refusal to file a statement, including the agreement and waiver, [is] shall be a violation of this section and may, in the discretion of the department, be sufficient cause for refusing to permit the entry of the articles into the State; (7) Place of inspection. If, in the judgment of the inspector, it is deemed necessary or advisable to move any [of the above-mentioned articles, or any portion thereof,] items or materials to a place more suitable for inspection than the pier, airport, or any other place where they are first received or discharged, the inspector [is authorized to] may do so. All costs and expenses incident to the movement and transportation of the [articles] items or materials to any other place shall be borne by the importer or the importer's agent. If the importer, importer's agent, or transportation company requests inspection of sealed containers [of the above-mentioned articles] at locations other than where the [articles] containers are first received or discharged and the department determines that inspection at the other place is appropriate, the department may require payment of costs necessitated by these inspections, including overtime costs; (8) Disinfection or quarantine. If, upon inspection, any [article] item or material received or brought into the State for the purpose of debarkation or entry therein or moved between the Hawaiian Islands is found to be so infested or infected, or there is reasonable cause to presume that it is infested or infected, and the infestation or infection can, in the judgment of the inspector, be eradicated, a treatment shall be given [such article.] to the item or material. The treatment shall be at the expense of the owner or the owner's agent, and the treatment shall be as prescribed by the department. The [article] item or material shall be held in quarantine at the expense of the owner or the owner's agent at a satisfactory place approved by the department for a sufficient length of time to determine that eradication has been accomplished. If the infestation or infection is of the nature or extent that it cannot be effectively and completely eradicated, or if it is a potentially destructive pest or it is not widespread in the State, or after treatment it is determined that the infestation or infection is not completely eradicated, or if the owner or the owner's agent refuses to allow the [article] item or material to be treated or to be responsible for the cost of treatment and quarantine, the [article,] item or material, or any portion thereof, together with all packing and containers, may, at the discretion of the inspector, be destroyed or sent out of the State at the expense of the owner or the owner's agent. The destruction or exclusion shall not be made the basis of a claim against the department or the inspector for damage or loss incurred; (9) Disposition. Upon completion of inspection, either at the time of arrival or at any time thereafter should any [article] item or material be held for inspection, treatment, or quarantine, the inspector shall affix to the [article] item, material, or [the] container, or to the delivery order in a conspicuous place thereon, a tag, label, or stamp to indicate that the [article] item or material has been inspected and passed. This action shall constitute a permit to bring the [article] item or material into the State; and (10) Ports of entry. None of the [articles] items or materials mentioned in this section shall be allowed entry into the State except through the airports and seaports in the State designated and approved by the board." SECTION 4. Section 150A-5.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) In legal effect, articles landed for the purpose of inspection or quarantine shall be construed to be still outside the State seeking entry, and shall not, in whole or in part, be considered suitable for entry into the State unless a tag, label, or stamp has been affixed to the article, item, or material, its container, or its delivery order by the inspector as provided in section [150A-5(9), except] 150A-5(b)(9); provided that articles quarantined in the biocontrol containment facilities of the department or of other government agencies engaged in joint projects with the department may be released upon issuance of a permit approved by the board." SECTION 5. Section 150A-8, Hawaii Revised Statutes, is amended to read as follows: "§150A-8 [Transporting in] Movement within the State[.]; quarantine, treatment, destruction. (a) Flora [and], fauna, and any other item or material specified by rules [and regulations] of the department shall not be moved from one island to another island within the State or from one locality to another on the same island except by a permit issued by the department. (b) No person may sell, barter, or donate, or offer for sale, barter, or donation, or otherwise make available to the public, excluding items that the department provides access for research or testing, any item or material that is: (1) Infested or infected with a pest; (2) Itself a pest; or (3) Prohibited from being sold under this chapter or any rule adopted pursuant to this chapter. (c) The department may compel the quarantine, treatment, or destruction of any item or material sold, bartered, donated, or offered for sale, barter, or donation, or otherwise made available, in violation of subsection (b). Any quarantine, treatment, or destruction shall be at the expense of the owner of the item or material and shall not be made the basis of a claim against the department or the inspector for damage or loss incurred." SECTION 6. Section 150A-14, Hawaii Revised Statutes, is amended to read as follows: "§150A-14 Penalty. (a) Any person who violates any provision of this chapter other than sections 150A-5[,] and 150A-6(3)[,] and [150A-6](4), or who violates any rule adopted under this chapter other than those rules involving an animal that is prohibited [or], a plant[,] that is restricted, or an animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be [guilty of a misdemeanor and] fined [not] no less than $100[. The provisions of section 706-640 notwithstanding, the maximum fine shall be] and no more than $10,000. For a second [offense] violation committed within five years of a prior [offense,] violation, the person [or organization] shall be fined [not] no less than $500 and [not] no more than $25,000. Each day of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this subsection shall be considered a civil action. (b) Any person who [violates section]: (1) Violates section 150A-5 shall be [guilty of a petty misdemeanor and] fined [not] no less than [$50] $100 and [not] no more than [$5,000.] $10,000. For a second [offense] violation committed within five years of a prior [offense,] violation, the person may be fined [not] no less than [$250] $500 and [not] no more than [$15,000.] $25,000; or (2) Recklessly violates section 150A-6(3) or (4), or owns or recklessly transports, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section 150A-7(b), or whose violation involves an animal that is prohibited, or a plant that is restricted, or an animal or microorganism that is restricted or unlisted, without a permit, shall be fined no less than $1,000 and no more than $20,000. For a second violation committed within five years of a prior violation, the person may be fined no less than $1,000 and no more than $20,000. Each day of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this subsection shall be considered a civil action. (c) Any person who: (1) [Violates] Knowingly violates section 150A-6(3) or [150A-6](4), or [owns or intentionally] knowingly transports, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section 150A-7(b), or whose violation knowingly involves an animal that is prohibited [or], a plant[,] that is restricted, or an animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be guilty of a misdemeanor and subject to a fine of [not] no less than $5,000[, but not] and no more than $20,000; (2) [Intentionally] Knowingly transports, harbors, or imports with the intent to propagate, sell, or release any animal that is prohibited [or], any plant[,] that is restricted, or any animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be guilty of a class C felony and subject to a fine of [not] no less than $50,000[, but not] and no more than $200,000; or (3) [Intentionally] Knowingly imports, possesses, harbors, transfers, or transports, including through interisland or intraisland movement, with the intent to propagate, sell, or release, any pest designated by statute or rule, unless otherwise allowed by law, shall be guilty of a class C felony and subject to a fine of [not] no less than $50,000[, but not] and no more than $200,000. (d) Whenever a [court sentences a] person [or organization] is subject to a penalty pursuant to subsection (a), (b), or (c) for [an offense which] a violation that has resulted in the escape or establishment of any pest and caused the department to initiate a program to capture, control, or eradicate that pest, [the] a court [shall also] may require that the person [or organization] pay [to the state general fund] an amount of money to be determined in the discretion of the court upon advice of the department, based upon the cost of the development and implementation of the program. Any amount collected under this subsection shall be deposited into the pest inspection, quarantine, and eradication fund established pursuant to section 150A-4.5. (e) The department may, at its discretion, refuse entry, confiscate, or destroy any prohibited articles or restricted articles that are brought into the State without a permit issued by the department, or order the return of any plant, fruit, vegetable, or any other article infested with pests to its place of origin or otherwise dispose of it or [such] any part thereof as may be necessary to comply with this chapter. Any expense or loss in connection therewith shall be borne by the owner or the owner's agent. (f) Any person [or organization] that voluntarily surrenders any prohibited animal [or], any restricted plant, or any restricted or unlisted animal[,] or microorganism, without a permit issued by the department, [prior to] before the initiation of any seizure action by the department, shall be exempt from the penalties of this section. (g) When construing and enforcing this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be deemed to be the act, omission, or failure of the person and the person employed by or acting for the person. [(g)] (h) For purposes of this section, "intent to propagate" shall be presumed when the person in question is found to possess, transport, harbor, or import: (1) Any two or more animal specimens of the opposite sex that are prohibited or restricted, without a permit, or are a pest designated by statute or rule; (2) Any three or more animal specimens of either sex that are prohibited or restricted, without a permit, or are a pest designated by statute or rule; (3) Any plant or microorganism having the inherent capability to reproduce and that is restricted, without a permit; or (4) Any specimen that is in the process of reproduction." SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 8. 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 that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 10. This Act shall take effect on July 1, 3000. |
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| 47 | + | SECTION 1. The legislature finds that invasive species are the single greatest threat to the State's economy and natural environment, including native species, and to the health and lifestyle of Hawaiʻi's people. The impacts of invasive species in the State have been severe, causing serious habitat degradation, extinction of native species, increased wildfire risk, increases in the cost of agriculture and livestock production, and many other negative and expensive consequences. Preventing pests from entering the State, or, if that fails, taking steps to prevent a pest from spreading within the State, are two critical measures that can protect Hawaiʻi from the negative impacts of invasive species. The legislature, like the federal government, recognizes the value of preventing the movement of invasive pests. Federal law allows the United States Department of Agriculture to conduct pre-departure inspections of all passengers, baggage, cargo, and any other articles moving from the State to other areas of the continental United States to protect against the spread of pests from Hawaiʻi. However, the federal government does not provide any similar inspections for passengers or material arriving in the State from other parts of the continental United States. The legislature recognizes that existing law does not expressly authorize the Hawaiʻi department of agriculture to inspect non-agricultural commodities arriving in the State from other parts of the United States, posing a serious gap that can allow invasive species like the red imported fire ant and wood‑boring beetles to enter the State with other imports. For example, once invasive pests such as the red imported fire ant are present in the State, the department of agriculture will require the authority to impose a quarantine and prevent the movement of certain items to mitigate the spread of the pest. The legislature notes that other states have and regularly exercise the authority to quarantine areas, including restricting the movement, possession, and sale of commodities infested with a high impact pest, and may also quarantine any other products, articles, or means of conveyance of a high impact pest. Accordingly, the purpose of this Act is to expand the department of agriculture's authority to conduct certain investigations and clarify certain penalties to prevent the spread of invasive species in the State. SECTION 2. Section 150A-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows: ""Person" means an individual, corporation, firm, association, society, community, assembly, inhabitant of a district or neighborhood, or person known or unknown, and the public generally. "Person" includes a government and any of its agencies, instrumentalities, or subdivisions." SECTION 3. Section 150A-5, Hawaii Revised Statutes, is amended to read as follows: "§150A-5 Conditions of importation. (a) The importation of any material that is infested or infected with an insect or other animal, disease, or pest, or that is itself a pest, is prohibited unless appropriate authorization is obtained from the department before importation. (b) The importation into the State of any of the following articles, viz., nursery-stock, tree, shrub, herb, vine, cut‑flower, cutting, graft, scion, bud, seed, leaf, root, or rhizome; nut, fruit, or vegetable; grain, cereal, or legume in the natural or raw state; moss, hay, straw, dry-grass, or other forage; unmanufactured log, limb, or timber, or any other plant‑growth or plant-product, unprocessed or in the raw state; soil[;], including potting soil, growing mix, and mulch; microorganisms; live bird, reptile, nematode, insect, or any other animal in any stage of development (that is in addition to the so-called domestic animal, the quarantine of which is provided for in chapter 142); box, vehicle, baggage, or any other container in which the articles have been transported or any packing material used in connection therewith shall be made in the following manner [hereinafter set forth]: (1) Notification of arrival. Any person who receives for transport or brings or causes to be brought to the State as freight, air freight, baggage, or otherwise, for the purpose of debarkation or entry [therein], or as ship's stores, any of the foregoing articles, shall, immediately upon the arrival thereof, notify the department[,] in writing[,] of the arrival, giving the waybill number, container number, name and address of the consignor, name and address of the consignee or the consignee's agent in the State, marks, number of packages, description of contents of each package, port at which laden, and any other information that may be necessary to locate or identify the same, and shall hold the articles at the pier, airport, or any other place where they are first received or discharged, in a manner that they will not spread or be likely to spread any infestation or infection of a pest, including insects or diseases that may be present, until inspection and examination can be made by the inspector to determine whether [or not] any article, or any portion thereof, is infested or infected with or contains any pest. The department may adopt rules to require identification of specific articles on negotiable and non-negotiable warehouse receipts, bills of lading, or other documents of title for inspection of pests. In addition, the department shall adopt rules to designate restricted articles that shall require: (A) A permit from the department in advance of importation; or (B) A department letter of authorization or registration in advance of importation. The restricted articles shall include but not be limited to certain microorganisms or living insects. Failure to obtain the permit, letter of authorization, or registration in advance is a violation of this section; (2) Individual passengers, officers, and crew. (A) It shall be the responsibility of the transportation company to distribute, [prior to] before the debarkation of passengers and baggage, the State of Hawaii plant and animal declaration form in paper or electronic form to each passenger, officer, and crew member of any aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency [in order], so that the passenger, officer, or crew member can comply with the directions and requirements appearing thereon. All passengers, officers, and crew members, regardless of whether [or not] they are bringing or causing to be brought for entry into the State the articles listed on the form, shall complete the declaration, except that one adult member of a family may complete the declaration for other family members. Any person who defaces the declaration form required under this section, gives false information, fails to declare restricted articles in the person's possession or baggage, or fails to declare in cargo manifests is in violation of this section; (B) Completed paper forms shall be collected by the transportation company and be delivered, immediately upon arrival, to the inspector at the first airport or seaport of arrival. Completed electronic forms shall be transmitted to the inspector before passengers depart the first airport or seaport of arrival. Failure to distribute or collect paper declaration forms, immediately deliver completed paper forms, or transmit completed electronic forms before passengers depart the first airport or seaport of arrival is a violation of this section; and (C) It shall be the responsibility of the officers and crew of an aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency to immediately report all sightings of any plants and animals to the plant quarantine branch. Failure to comply with this requirement is a violation of this section; (3) Plant and animal declaration form. The form shall include directions for declaring domestic and other animals cited in chapter 142, in addition to the articles enumerated in this chapter; (4) Labels. Each container in which any of the abovementioned articles are imported into the State shall be plainly and legibly marked, in a conspicuous manner and place, with the name and address of the shipper or owner forwarding or shipping the same, the name or mark of the person to whom the same is forwarded or shipped or the person's agent, the name of the country, state, or territory and locality therein where the product was grown or produced, and a statement of the contents of the container. Upon failure to comply with this paragraph, the importer or carrier is in violation of this section; (5) Authority to administratively inspect. [Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may: (A) Enter and inspect any aircraft, vessel, or other carrier at any time after its arrival within the boundaries of the State, whether offshore, at the pier, or at the airport, for the purpose of determining whether any of the articles or pests enumerated in this chapter or rules adopted thereto, is present; (B) Enter into or upon any pier, warehouse, airport, or any other place in the State where any of the above-mentioned articles are moved or stored, for the purpose of ascertaining, by inspection and examination, whether or not any of the articles is infested or infected with any pest or disease or contaminated with soil or contains prohibited plants or animals; and (C) Inspect any baggage or personal effects of disembarking passengers, officers, and crew members on aircraft or vessels arriving in the State to ascertain if they contain any of the articles or pests enumerated in this chapter. No baggage or other personal effects of the passengers or crew members shall be released until the baggage or effects have been passed. Baggage or cargo inspection shall be made at the discretion of the inspector, on the pier, vessel, or aircraft or in any quarantine or inspection area. Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may require that any box, package, suitcase, or any other container carried as ship's stores, cargo, or otherwise by any vessel or aircraft moving between the continental United States and Hawaii or between the Hawaiian Islands, be opened for inspection to determine whether any article or pest prohibited by this chapter or by rules adopted pursuant thereto is present. It is a violation of this section if any prohibited article or any pest or any plant, fruit, or vegetable infested with plant pests is found;] An inspector: (A) May conduct inspections of persons, baggage, cargo, and any other articles destined for movement between the Hawaiian Islands or importation into the State from the continental United States or any territory or possession of the United States for the purpose of determining whether an insect, pest, disease, or prohibited, restricted, or regulated taxon is present; (B) May enter and inspect any aircraft, vessel, or other carrier at any time after its arrival within the boundaries of the State, whether offshore, at the pier, or at the airport, and enter into or upon any pier, warehouse, airport, or any other place in the State for the purpose of conducting inspections authorized by subparagraph (A); and (C) May inspect any baggage and cargo on the pier, vessel, or aircraft, or in any quarantine or inspection area; (6) Request for importation and inspection. In addition to requirements of the appropriate United States [customs] authorities concerning invoices or other formalities incident to importations into the State, the importer shall be required to file a written statement with the department, signed by the importer or the importer's agent, setting forth the importer's desire to import certain of the above-mentioned articles into the State and: (A) Giving the following additional information: (i) The kind (scientific name), quantity, and description; (ii) The locality where same were grown or produced; (iii) Certification that all animals to be imported are the progeny of captive populations or have been held in captivity for a period of one year immediately before importation or have been specifically approved for importation by the board; (iv) The port from which the same were last shipped; (v) The name of the shipper; and (vi) The name of the consignee; and (B) Containing: (i) A request that the department, by its duly authorized agent, examine the articles described; (ii) An agreement by the importer to be responsible for all costs, charges, or expenses; and (iii) A waiver of all claims for damages incident to the inspection or the fumigation, disinfection, quarantine, or destruction of the articles, or any of them, as hereinafter provided, if any treatment is deemed necessary. Failure or refusal to file a statement, including the agreement and waiver, is a violation of this section and may, in the discretion of the department, be sufficient cause for refusing to permit the entry of the articles into the State; (7) Place of inspection. If, in the judgment of the inspector, it is deemed necessary or advisable to move any [of the above-mentioned articles, or any portion thereof,] items or materials to a place more suitable for inspection than the pier, airport, or any other place where they are first received or discharged, the inspector [is authorized to] may do so. All costs and expenses incident to the movement and transportation of the [articles] items or materials to any other place shall be borne by the importer or the importer's agent. If the importer, importer's agent, or transportation company requests inspection of sealed containers [of the above-mentioned articles] at locations other than where the [articles] containers are first received or discharged and the department determines that inspection at the other place is appropriate, the department may require payment of costs necessitated by these inspections, including overtime costs; (8) Disinfection or quarantine. If, upon inspection, any [article] item or material received or brought into the State for the purpose of debarkation or entry therein or moved between the Hawaiian Islands is found to be so infested or infected, or there is reasonable cause to presume that it is infested or infected, and the infestation or infection can, in the judgment of the inspector, be eradicated, a treatment shall be given [such article.] to the item or material. The treatment shall be at the expense of the owner or the owner's agent, and the treatment shall be as prescribed by the department. The [article] item or material shall be held in quarantine at the expense of the owner or the owner's agent at a satisfactory place approved by the department for a sufficient length of time to determine that eradication has been accomplished. If the infestation or infection is of the nature or extent that it cannot be effectively and completely eradicated, or if it is a potentially destructive pest or it is not widespread in the State, or after treatment it is determined that the infestation or infection is not completely eradicated, or if the owner or the owner's agent refuses to allow the [article] item or material to be treated or to be responsible for the cost of treatment and quarantine, the [article,] item or material, or any portion thereof, together with all packing and containers, may, at the discretion of the inspector, be destroyed or sent out of the State at the expense of the owner or the owner's agent. The destruction or exclusion shall not be made the basis of a claim against the department or the inspector for damage or loss incurred; (9) Disposition. Upon completion of inspection, either at the time of arrival or at any time thereafter should any [article] item or material be held for inspection, treatment, or quarantine, the inspector shall affix to the [article] item, material, or [the] container, or to the delivery order in a conspicuous place thereon, a tag, label, or stamp to indicate that the [article] item or material has been inspected and passed. This action shall constitute a permit to bring the [article] item or material into the State; and (10) Ports of entry. None of the [articles] items or materials mentioned in this section shall be allowed entry into the State except through the airports and seaports in the State designated and approved by the board." SECTION 4. Section 150A-5.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) In legal effect, articles landed for the purpose of inspection or quarantine shall be construed to be still outside the State seeking entry, and shall not, in whole or in part, be considered suitable for entry into the State unless a tag, label, or stamp has been affixed to the article, item, or material, its container, or its delivery order by the inspector as provided in section [150A-5(9),] 150A-5(b)(9), except that articles quarantined in the biocontrol containment facilities of the department or of other government agencies engaged in joint projects with the department may be released upon issuance of a permit approved by the board." SECTION 5. Section 150A-8, Hawaii Revised Statutes, is amended to read as follows: "§150A-8 [Transporting in] Movement within the State[.]; quarantine, treatment, destruction. (a) Flora [and], fauna, pest host material, and any other item or material specified by rules and regulations of the department shall not be moved from one island to another island within the State or from one locality to another on the same island except by a permit issued by the department. (b) No person may sell, barter, or donate, or offer for sale, barter, or donation, or otherwise make available to the public, any material that is: (1) Infested or infected with a pest; (2) Itself a pest; or (3) Prohibited from being sold under this chapter or any rule adopted pursuant to this chapter. (c) The department may compel the quarantine, treatment, or destruction of any material sold, bartered, donated, or offered, or otherwise made available in violation of subsection (b). Any quarantine, treatment, or destruction shall be at the expense of the owner of the material and shall not be made the basis of a claim against the department or the inspector for damage or loss incurred." SECTION 6. Section 150A-14, Hawaii Revised Statutes, is amended to read as follows: "§150A-14 Penalty. (a) Any person who violates any provision of this chapter other than sections 150A-5[,] and 150A-6(3)[,] and [150A-6](4) or who violates any rule adopted under this chapter other than those rules involving an animal that is prohibited [or], a plant[,] that is restricted, or an animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be [guilty of a misdemeanor and] fined [not] no less than $100[. The provisions of section 706-640 notwithstanding, the maximum fine shall be] and no more than $10,000. For a second [offense] violation committed within five years of a prior [offense,] violation, the person [or organization] shall be fined [not] no less than $500 and [not] no more than $25,000. Each day of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this subsection shall be considered a civil action. (b) Any person who violates [section]: (1) Section 150A-5 shall be [guilty of a petty misdemeanor and] fined [not] no less than [$50] $100 and [not] no more than [$5,000.] $10,000. For a second [offense] violation committed within five years of a prior [offense,] violation, the person may be fined [not] no less than [$250] $500 and [not] no more than [$15,000.] $25,000; or (2) Section 150A-6(3) or (4), or owns or transports, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section 150A-7(b), or whose violation involves an animal that is prohibited, or a plant that is restricted, or an animal or microorganism that is restricted or unlisted, without a permit, shall be fined no less than $1,000 and no more than $20,000. For a second violation committed within five years of a prior violation, the person may be fined no less than $1,000 and no more than $20,000. Each day of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this subsection shall be considered a civil action. (c) Any person who: (1) [Violates] Knowingly violates section 150A-6(3) or [150A-6](4), [or owns] or [intentionally] knowingly transports, possesses, harbors, transfers, or causes the importation of any snake or other prohibited animal seized under section 150A-7(b), or whose violation knowingly involves an animal that is prohibited [or], a plant[,] that is restricted, or an animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be guilty of a misdemeanor and subject to a fine of [not] no less than $5,000[, but not] and no more than $20,000; (2) [Intentionally] Knowingly transports, harbors, or imports with the intent to propagate, sell, or release any animal that is prohibited [or], any plant[,] that is restricted, or any animal[,] or microorganism that is restricted[,] or unlisted, without a permit, shall be guilty of a class C felony and subject to a fine of [not] no less than $50,000[, but not] and no more than $200,000; or (3) [Intentionally] Knowingly imports, possesses, harbors, transfers, or transports, including through interisland or intraisland movement, with the intent to propagate, sell, or release, any pest designated by statute or rule, unless otherwise allowed by law, shall be guilty of a class C felony and subject to a fine of [not] no less than $50,000[, but not] and no more than $200,000. (d) Whenever a [court sentences a] person [or organization] is subject to a penalty pursuant to subsection (a), (b), or (c) for [an offense which] a violation that has resulted in the escape or establishment of any pest and caused the department to initiate a program to capture, control, or eradicate that pest, [the] a court [shall also] may require that the person [or organization] pay [to the state general fund] an amount of money to be determined in the discretion of the court upon advice of the department, based upon the cost of the development and implementation of the program. Any amount collected under this subsection shall be deposited into the pest inspection, quarantine, and eradication fund established pursuant to section 150A-4.5. (e) The department may, at its discretion, refuse entry, confiscate, or destroy any prohibited articles or restricted articles that are brought into the State without a permit issued by the department, or order the return of any plant, fruit, vegetable, or any other article infested with pests to its place of origin or otherwise dispose of it or [such] any part thereof as may be necessary to comply with this chapter. Any expense or loss in connection therewith shall be borne by the owner or the owner's agent. (f) Any person [or organization] that voluntarily surrenders any prohibited animal [or], any restricted plant, or any restricted or unlisted animal[,] or microorganism, without a permit issued by the department, [prior to] before the initiation of any seizure action by the department, shall be exempt from the penalties of this section. (g) When construing and enforcing this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be deemed to be the act, omission, or failure of the person and that of the person employed by or acting for the person. [(g)] (h) For purposes of this section, "intent to propagate" shall be presumed when the person in question is found to possess, transport, harbor, or import: (1) Any two or more animal specimens of the opposite sex that are prohibited or restricted, without a permit, or are a pest designated by statute or rule; (2) Any three or more animal specimens of either sex that are prohibited or restricted, without a permit, or are a pest designated by statute or rule; (3) Any plant or microorganism having the inherent capability to reproduce and that is restricted, without a permit; or (4) Any specimen that is in the process of reproduction." SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 8. 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 that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 10. This Act shall take effect on July 1, 3000. |
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