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PRIOR PRINTER'S NOS. 869, 1570
PRINTER'S NO. 1701
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
790
Session of
2017
INTRODUCED BY PASHINSKI, CAUSER, EVERETT, HAGGERTY, RABB,
V. BROWN, CALTAGIRONE, D. COSTA, BRIGGS, SOLOMON, STURLA,
DALEY, SCHWEYER, O'BRIEN, GAINEY, McCARTER, DEAN, BOYLE,
FLYNN, DONATUCCI, KIM, KAVULICH AND BARBIN, MARCH 10, 2017
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
MAY 9, 2017
AN ACT
Regulating controlled plants and noxious weeds; establishing the
Controlled Plant and Noxious Weed Committee; providing for
powers and duties of the Controlled Plant and Noxious Weed
Committee; imposing powers and duties on the Secretary of
Agriculture and municipalities; prescribing penalties;
establishing a category of controlled plants and providing
for the permitting of controlled plants; and making a related
repeal.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Definitions.
Chapter 3. Regulation and Administration
Section 301. Designation of noxious weeds and controlled
plants.
Section 302. Permits.
Section 303. Prohibited acts.
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Section 304. Noxious weed control areas.
Section 305. Control orders.
Section 306. Compliance with orders.
Section 307. Noxious weed list.
Section 308. Fees.
Section 309. Powers and duties of the secretary and department.
Section 310. Stop-sale orders.
Section 311. Seizure and condemnation.
Section 312. Appeal process.
Section 313. Cooperation with other entities.
Section 314. Rules and regulations.
Chapter 5. Enforcement
Section 501. Unlawful conduct.
Section 502. Interference with inspector, agent or employee of
department.
Section 503. Enforcement and penalties.
Section 504. Injunctive relief.
Section 505. De minimis violations.
Chapter 7. Miscellaneous Provisions
Section 701. Disposition of funds.
Section 702. Preemption.
Section 703. Abrogation.
Section 704. Repeals.
Section 705. Effective date.
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Controlled
Plant and Noxious Weed Act.
Section 102. Definitions.
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The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Class A noxious weed." A weed listed in section 307(a) or a
weed that has been determined by the committee to be a Class A
noxious weed and that:
(1) Is established in this Commonwealth.
(2) Is geographically limited.
(3) Is intended to be eradicated.
"Class B noxious weed." A weed listed in section 307(b) or a
weed that has been determined by the committee to be a Class B
noxious weed and that:
(1) Is widely established in this Commonwealth.
(2) Cannot feasibly be eradicated.
"Class C noxious weed." A weed listed in section 307(c) or a
weed that has been determined by the committee to be a Class C
noxious weed and that:
(1) Is not known to exist in this Commonwealth.
(2) Poses a potential threat if introduced in this
Commonwealth.
"Committee." The Controlled Plant and Noxious Weed Committee
established in section 301.
"Control." The management of the population of a noxious
weed or controlled plant to an acceptable level, including
eradication, as determined by the department.
"Control order." A written order issued by the department to
a person detailing required treatment measures to control
noxious weeds or controlled plants.
"Controlled plant." A plant species or subspecies that has
been determined by the committee to be a "controlled plant" and
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is regulated to prevent uncontained growth and to negate
undesirable characteristics.
"Department." The Department of Agriculture of the
Commonwealth.
"Distribute or distribution." "DISTRIBUTE" OR "DISTRIBUTION."
To barter, consign, exchange, give away, import, in any way
transfer, offer for sale, sell or otherwise supply or transport
a noxious weed or controlled plant in this Commonwealth.
"Eradication." The elimination or removal of a noxious weed
or controlled plant so that no further growth occurs for at
least three consecutive years.
"Established." Either:
(1) a plant or plant population found growing in this
Commonwealth as a wild population and capable of
reproduction; or
(2) a plant that has escaped from cultivation and is
reproducing.
"Federal noxious weed." A weed listed in 7 CFR 360.200
(relating to designation of noxious weeds).
"General permit." A regional or Statewide permit that is
issued by the department for a controlled plant and specifies
terms and conditions for distribution, cultivation or
propagation of the controlled plant.
"Geographically limited." Found in discrete, limited
locations of this Commonwealth.
"Individual permit." A permit that is issued by the
department and includes site-specific terms and conditions for:
(1) research, marketing, warehousing, holding,
retailing, wholesaling, transporting, distributing,
cultivating or propagating of a controlled plant; or
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(2) for research and educational purposes related to a
noxious weed.
"Landowner." A person:
(1) In whom is vested the ownership, dominion or title
of property and in whom one or more interests are vested for
his own benefit.
(2) Who owns the fee and who has the right to dispose of
the property and includes one having a possessory right to
land or the person occupying or cultivating it.
The term includes a department, board, commission, agency and
instrumentality of the Federal Government and the Commonwealth
and any of its political subdivisions.
"Lessee." A person who has entered into a contract granting
the person occupation or use of property during a certain period
of time in exchange for a specified rent.
"Noxious weed." Either:
(1) a plant part or plant in any stage of development
that is determined to be injurious to crops, livestock,
agricultural land or other property including forest land and
bodies of water; or
(2) any weed listed in 7 CFR 360.200 (relating to
designation of noxious weeds).
"Noxious weed control area." A geographic area of this
Commonwealth, including the entire State, municipality or any
part or tract of land or body of water where a noxious weed is
to be controlled as prescribed under this act.
"Person." An individual, corporation, association,
partnership, municipality or any other entity.
"Plant Pest Management Account" or "account." The Plant Pest
Management Account established under the act of December 16,
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1992 (P.L.1228, No.162), known as the Plant Pest Act.
"Propagate." To increase, multiply or spread a plant or crop
through planting, cultivation or any means of reproduction.
"Secretary." The Secretary of Agriculture of the
Commonwealth.
"Stop-sale order." A written notice, issued by the
department to the person in possession of a noxious weed or
controlled plant, which prohibits its distribution.
"Treatment measure." A method of eradicating, managing,
regulating or controlling noxious weeds or controlled plants
utilizing biological, chemical or mechanical means or a
combination thereof.
"Widely established." Growing ESTABLISHED throughout
multiple counties and municipalities of this Commonwealth.
CHAPTER 3
REGULATION AND ADMINISTRATION
Section 301. Designation of noxious weeds and controlled
plants.
(a) Controlled Plant and Noxious Weed Committee.--
(1) The Controlled Plant and Noxious Weed Committee
shall have the powers of a departmental administrative board
in the department.
(2) The committee shall be composed of:
(i) the secretary, who shall be the chairperson of
the committee;
(ii) the Secretary of Conservation and Natural
Resources;
(iii) the Secretary of Environmental Protection;
(iv) the Secretary of Transportation;
(v) the Executive Director of the Fish and Boat
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Commission and the Executive Director of the Game
Commission;
(vi) the chairperson and minority chairperson of the
Agriculture and Rural Affairs Committee of the Senate and
the chairperson and minority chairperson of the
Agriculture and Rural Affairs Committee of the House of
Representatives;
(vii) three persons, to be appointed by the
secretary, who must represent the interests and concerns
of the following groups, organizations or industries:
(A) One member of a Statewide general farm
organization.
(B) One member representing the ornamental, turf
and horticultural industry.
(C) One member from an institution of higher
education within this Commonwealth.
(3) Except for appointed members, who may be represented
by designees selected by the secretary, members may be
represented by a designee selected by the member.
(4) The appointed members shall serve four-year terms
except that such terms shall initially be staggered with one
of the three members serving a two-year term.
(5) Successors to fill expired terms of appointed
members shall be appointed by the secretary. The secretary
may appoint the same member to successive terms.
(6) An appointed member may continue to hold the
position after his term has expired and until a successor has
been appointed, but in no case, may such time period be
longer than six months beyond the member's original term of
office.
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(b) Powers and duties of committee.--
(1) A majority of the committee shall constitute a
quorum. A quorum of the committee shall be required to take
any action. All actions of the committee shall be by a
majority vote.
(2) Prior to taking any action, the committee shall be
required to convene a public meeting to elicit comments from
the regulated community and other interested parties. The
notice and agenda for a meeting of the committee shall
contain a list of the plants to be considered for addition to
or deletion from the noxious weed list or controlled plant
list. The notice and agenda for a meeting shall be published
in the Pennsylvania Bulletin at least one week prior to the
meeting, except in the case of a special meeting or
rescheduled meeting as allowed under 65 Pa.C.S. § 709(a)
(relating to public notice). All meetings shall be open to
the public and shall comply with the requirements of 65
Pa.C.S. Ch. 7 (relating to open meetings).
(3) The committee shall have the following powers and
duties:
(i) To establish a noxious weed list inclusive of
the list set forth under section 307. The committee may
add weeds to or delete weeds from the noxious weed list,
or move noxious weeds to the controlled plant list, in
accordance with the provisions of this act.
(ii) To establish a controlled plant list and to add
plants to or delete plants from the controlled plant list
in accordance with the provisions of this act. A
controlled plant, upon approval of the committee, may be
moved from the controlled plant list to the noxious weed
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list.
(iii) To propose the addition or deletion of plants
to or from the noxious weed list or controlled plant
list. The committee may request that the department
perform a study and risk assessment related to any plant
the committee may consider for addition to or deletion
from the noxious weed list or controlled plant list.
(iv) To publish the noxious weed list and the
controlled plant list and any additions or deletions or
changes thereto as a notice in the Pennsylvania Bulletin.
Any additions to or deletions from the noxious weed list
or the controlled plant list shall become effective 60
days from publication.
(c) Noxious weed and controlled plant seeds.--
(1) Upon the determination of the committee that a plant
falls within the classification of a noxious weed or
controlled plant, the seed of that plant shall fall within
that same classification under 3 Pa.C.S. Ch. 71 (relating to
seed) and relevant regulations.
(2) If no regulatory criteria exist for controlled plant
seeds, the department may regulate controlled plant seeds
through permit, for a period of two years from the effective
date of this section, at which time the department shall
promulgate regulatory standards.
Section 302. Permits.
(a) General rule.--The following permitting rules apply with
regard to noxious weeds for research or educational purposes and
to controlled plants for research or marketing purposes,
cultivation, propagation, storing, warehousing or display, and
for retail, wholesale or distribution.
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(1) For noxious weeds, the department may issue
individual permits. A permit may allow for the cultivation
and propagation of a noxious weed for research and
educational purposes only. The department shall establish the
criteria for a noxious weed individual permit through the
issuance of a temporary order, as set forth in subsection (d)
(4).
(2) For controlled plants, the department may issue
individual permits or general permits. The department shall
establish the criteria for a controlled plant individual
permit through the issuance of a temporary order as specified
under subsection (d)(4).
(b) Permit required.--No person may research, market,
distribute, transport, cultivate, hold, retail, wholesale,
propagate or display a noxious weed or controlled plant without
obtaining a permit from the department in accordance with the
provisions of this act.
(c) General permits.--General permits may be issued for the
research, marketing, retail, wholesale, transport, storage,
warehousing, display, distribution, cultivation or propagation
of controlled plants under the following circumstances:
(1) General permits may be issued on a regional or
Statewide basis for controlled plants where the controlled
plants have similar characteristics and are capable of being
cultivated, propagated, processed and controlled or
eradicated in a similar fashion.
(2) General permits shall be published in the
Pennsylvania Bulletin effective upon publication.
(3) An applicant seeking a general permit under this
subsection shall inform the department of the applicant's
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intended use of the general permit and complete an
application for approval to operate under the general permit
requirements. The application shall include a written plan
establishing the practices and methods the applicant will
utilize in order to assure compliance with the general permit
requirements established by the department. In addition to
the written plan, the application shall state, at a minimum,
all of the information required under subsection (d)(5)(i),
(ii), (iii), (iv), (v), (vi), (vii), and (viii).
(4) Before the approval and issuance of a general
permit, the department may enter onto and inspect the land
and premises, including buildings and conveyances, that will
be utilized for the purpose of engaging in an activity
authorized by the permit regarding a controlled plant. The
inspection shall be conducted during normal business hours.
(d) Individual permits.--Individual permits may be issued
for noxious weeds and controlled plants in accordance with the
following:
(1) An individual permit may be issued for any
controlled plant where:
(i) The controlled plant has such individual
characteristics as to make it difficult or impossible for
the department to regulate THROUGH a general set of
requirements.
(ii) The land or area on which the controlled plant
will be cultivated has such characteristics as would make
it difficult or impossible for the department to regulate
the controlled plant.
(iii) The controlled plant is highly regulated or
requires additional scrutiny because of a characteristic
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of the plant that would be hard to control under a
general permit or where Federal law preempts and requires
such permitting.
(2) An individual permit shall be issued in writing to
the specific permit holder, contain the temporary order or
reference the regulations establishing the requirements of
the individual permit and be published in the Pennsylvania
Bulletin and effective as enumerated in paragraph (4).
(3) The department may establish through regulation or a
temporary order, standards and requirements addressing the
issuance and criteria of an individual permit for noxious
weeds and controlled plants.
(4) For each noxious weed, the department shall issue a
temporary order establishing the criteria for the individual
permit to be issued. For a controlled plant, upon determining
that a set of characteristics or circumstances requires the
issuance of an individual permit, the department shall issue
a temporary order establishing the criteria for the
individual permit to be issued. The following shall apply:
(i) Through the temporary order, the department may
establish restrictions and standards, including bonding
requirements, as the department determines are necessary
to:
(A) Identify the specific characteristics of the
noxious weed or controlled plant or the circumstances
including Federal laws, regulations or orders, that
require the issuance of the individual permit.
(B) Assure the permit holder institutes proper
containment, remediation and eradication criteria to
protect the interests of the public, the native plant
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and animal populations in this Commonwealth and this
Commonwealth's flora, fauna and natural resources.
(C) Assure the permit holder is responsible for
and has the means to cover any costs of remediation,
containment or eradication.
(D) Assure that the permit holder does not
abandon the permitted site prior to notifying the
department and taking such remediation, containment
or eradication measures as the department may
determine are necessary.
(ii) The department shall publish the temporary
order as a notice in the Pennsylvania Bulletin. A copy of
the order shall also be delivered to the person seeking
the individual permit.
(iii) The provisions of the temporary order shall be
applicable as of the date of actual or constructive
notice of the temporary order or any later date specified
in the temporary order. Publication of the temporary
order in the Pennsylvania Bulletin shall be constructive
notice.
(iv) The temporary order shall remain in effect for
a period not to exceed the length of time for which the
individual permit was issued, unless the permit is
reissued or extended, or until the criteria stated in the
temporary order are established in regulation, whichever
occurs first.
(5) A written application for an individual permit shall
meet the criteria established by the department through a
temporary order or regulation as authorized by this act and
be made on a form and a manner as prescribed by the
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department. The application shall contain at least the
following:
(i) The legal name, address and daytime and evening
telephone numbers of the applicant.
(ii) The physical location, including a detailed
plot map and description of the site to be planted or
site where the noxious weed or controlled plant will be
propagated, cultivated, stored or distributed. The
description of the location shall also include the
county, municipality and the name of each road bordering
the physical location. The plot map shall be attached to
the application and shall state the GPS coordinates
outlining the boundaries of the site and other important
landmarks.
(iii) For a seller, distributor, holder or
depository of propagation material, the name and address
and the applicable Federal or Commonwealth license or
certification number or both, where applicable.
(iv) The scientific and common names of the noxious
weed or controlled plant for which the applicant desires
an individual permit according to the United States
Department of Agriculture PLANTS Database, including
classification of species by sterile biotype, cultivar,
variety F1 parent, variety F2 parent or other name.
(v) The identity of the intended plant parts to be
used and the stage of development at planting, including
seed, rhizome and cutting.
(vi) Attestation that the plant materials have been
selected from apparently disease-free and pest-free
sources.
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(vii) A description of the packaging and biosecurity
safeguards to be utilized. Plant material shall be
packaged and safeguarded sufficiently to maintain
isolation from the domestic environment during
transportation.
(viii) An attestation by the applicant stating the
applicant shall continue to comply with the permit
requirements for the duration of time the plant materials
are in the permit holder's possession and that the permit
holder understands and agrees to the following:
(A) If the permit holder intends to transfer
possession or ownership of the noxious weed or
controlled plant, the permit holder shall, before
the transfer of possession or ownership, notify
the department and assure the person to whom the
noxious weed or controlled plant will be
transferred or sold that the permit holder has
obtained the required individual permit.
(B) If the permit holder intends to stop
growing or cultivating the noxious weed or
controlled plant, the permit holder shall notify
the department and implement all measures ordered
by the department to destroy the noxious weed or
controlled plant, unless another person assumes
responsibility for the noxious weed or
controlled plant and is issued an individual
permit.
(C) If the permit holder abandons,
relinquishes possession or ownership of, control
over or responsibility for the noxious weed or
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controlled plant, in a manner inconsistent with
the provisions of this act, all plant material
regulated by the permit shall be destroyed in a
manner approved by the department. The original
permit holder shall continue to be responsible
for the noxious weed or controlled plant, the
cost of destruction and eradication of the
noxious weed or controlled plant and any plant
material associated with the noxious weed or
controlled plant. The original permit holder
shall continue to be subject to the penalties
imposed under this act.
(ix) The identification of the use of the
noxious weed or controlled plant to be permitted,
including ornamental landscape, agricultural crop,
feed crop, research, education, biofuel, biomass,
further sale or distribution or any other particular
use.
(x) A detailed description of the activity
authorized by the permit, including the intended size
of the area to be planted and the intended date of
planting.
(xi) Whether the noxious weed or controlled
plant will be further distributed, sold, transported,
replanted, used for seed or other purposes. If the
noxious weed or controlled plant will be further
distributed, sold, transported, replanted, used for
seed or other purposes, the permit shall include the
name and address of the person and location to which
the noxious weed or controlled plant will be
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distributed, sold or transported. If sold or
distributed for further propagation, the application
shall include the information required under
subparagraphs (i) and (ii) and the name and address
of the person to which the noxious weed or controlled
plant was sold or distributed for such use.
(xii) A written contingency plan for each site
for eradication or recapture in the event of an
unauthorized escape or introduction of the noxious
weed or controlled plant.
(xiii) An attestation that the applicant shall
comply with all terms and conditions contained in the
permit.
(6) The secretary may request additional information, if
necessary, from the applicant in writing after the
application is received to evaluate the potential risk to the
Commonwealth.
(7) An individual permit shall expire on December 31 of
each year, unless otherwise specified in the permit. An
application for renewal of an individual permit must be made
by October 1 of the year the permit expires. An application
for renewal shall describe any change to the required
information previously submitted. Failure to renew an
individual permit shall be a violation of this act.
(8) General information regarding permit compliance
shall be updated on a calendar year basis. Updated
information shall be submitted to the department no later
than January 10 of each new calendar year. Failure to submit
the required information within the time period established
under this paragraph shall be a violation of this act.
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(9) Before the approval and issuance of an individual
permit, the department may enter onto and inspect the land
and premises, including buildings and conveyances, that will
be utilized for the purpose of engaging in an activity
authorized by the permit. The inspection shall be limited to
normal business hours.
(e) Notice of closing, change of name or moving location.--
(1) Any person who holds a permit under this act shall
notify the department, in writing, prior to any change of
status related to the permit, including:
(i) Intent to close, sell or change the name of the
business or entity holding the permit.
(ii) Intent to move the location of the business or
entity or the location of the activity specifically
authorized by the permit.
(iii) Intent to discontinue the activities
specifically authorized by the permit.
(2) Upon notification, the department, in performance of
its duties to protect the interests of the public, the native
plant and animal populations and natural resources in this
Commonwealth, may enter onto the land and premises, including
buildings and conveyances that were utilized for or where the
permitted activity of the person holding or required to hold
a permit under this act took or are taking place, and to
conduct such inspections of the premises as are necessary to
determine what remedial, eradication or containment practices
are necessary prior to the closure or other change of status
occurring.
(3) Failure to notify the department or otherwise comply
with the provisions of this subsection shall be a violation
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of this act.
(f) Revocation or suspension.--Within 30 days of receipt of
a notice of revocation, the permit holder may apply for an
amendment to the permit or request a hearing as outlined in
section 312. The secretary may revoke or suspend all or part of
a permit issued under this section when:
(1) The secretary determines that a permit holder has
failed to comply with the requirements of this act.
(2) It is necessary to protect the interests of the
public, to protect native plant and animal populations in
this Commonwealth, or to otherwise protect this
Commonwealth's natural resources.
Section 303. Prohibited acts.
(a) General compliance.--It shall be a violation of this act
to fail to comply with any provision of this act or any
regulation, permit requirement or order established under this
act.
(b) Noxious weeds.--Except as established in an individual
permit allowing educational or research purposes, it shall be a
violation of this act to distribute, cultivate or propagate any
noxious weed within this Commonwealth.
(c) Controlled plants.--It shall be a violation of this act
to research, market, hold, warehouse, retail, wholesale,
transport, display, distribute, cultivate or propagate a
controlled plant without a permit issued by the department.
(d) Abandonment.--It shall be a violation of this act for a
person holding or required to hold or comply with a permit
requirement of this act to abandon a noxious weed or controlled
plant site or premises without first notifying the department
and taking such actions as are necessary or ordered by the
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department to remediate the site.
(e) Concealment or misrepresentation.--It shall be unlawful
for a person to:
(1) conceal a noxious weed or controlled plant from
inspection; or
(2) make a false declaration of acreage, square footage
or any other information required to comply with the permit
requirements of this act.
Section 304. Noxious weed control areas.
(a) General rule.--The following apply:
(1) The department may establish a noxious weed control
area through a control order issued by the department UNDER
SECTION 305. The order shall be published in the Pennsylvania
Bulletin and disseminated to persons in the noxious weed
control area that will be affected by the order. A control
order shall remain in effect until such time as it is
rescinded by the department or until the criteria set forth
in the control order are established by regulation.
(2) Within the noxious weed control area, the department
may prohibit, without inspection, the movement, shipment or
transportation of any noxious weed or other material capable
of carrying the noxious weed from the area under the control
order.
(b) Compliance.--The department shall require an affected
landowner or lessee or other person within the noxious weed
control area to comply with the provisions of the control order
within the time frame indicated in the order.
(c) Publication.--Every designated noxious weed control area
and any accompanying control order created under this section
AND SECTION 305 shall be published in the Pennsylvania Bulletin
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pursuant to the act of July 31, 1968 (P.L.769, No.240), referred
to as the Commonwealth Documents Law.
Section 305. Control orders.
(a) Noxious weeds.--
(1) The department may issue a control order requiring
any person to implement treatment measures for noxious weeds.
The control order shall state the general factual and legal
basis for the action and shall advise the affected person
that, within 15 days of receipt of the control order, the
affected person may file with the department a written
request for an administrative hearing. The hearing shall be
conducted in accordance with 2 Pa.C.S. (relating to
administrative law and procedure).
(2) The written control order of the department shall be
served upon the affected person by personal service or by
registered or certified mail, return receipt requested.
(3) The control order shall become final upon the
expiration of the 15-day period for requesting an
administrative hearing, unless a timely request for a hearing
has been filed with the department.
(b) Controlled plants.--
(1) The department may issue a control order requiring a
controlled plant permit holder or a person required to have
such permit to implement treatment measures for a controlled
plant. The department may issue a control order for
controlled plants if the department finds that a controlled
plant is growing on any premises or property without a valid
permit. The order shall state the general factual and legal
basis for the action and advise the affected person that
within 15 days of receipt of the order, the affected person
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may file with the department a written request for an
administrative hearing. The hearing shall be conducted in
accordance with 2 Pa.C.S.
(2) The written control order of the department shall be
served upon the affected person by personal service or by
registered or certified mail, return receipt requested.
(3) The control order shall become final upon the
expiration of the 15-day period for requesting an
administrative hearing, unless a timely request for a hearing
has been filed with the department.
(c) Description of situation in order.--The control order
shall describe the noxious weed or controlled plant situation
that exists and prescribe the required remediation, control,
eradication or treatment measures and the date by which such
measures must be completed.
Section 306. Compliance with orders.
(a) General rule.--A person subject to a control order
issued under section 305 shall comply with the control order
within the time frame specified in the control order or, if
appealed, the time frame established in the final adjudication
of the secretary. The cost of the remediation, control,
eradication or treatment measures shall be borne by the person
subject to the control order.
(b) Notice and duty of municipality.--
(1) If the person subject to the control order fails to
comply with the control order, the department shall notify
that person and the municipality within which the person
resides or where the person's property is located by
certified mail. After receipt of the notice, the appropriate
officials of the municipality shall take the necessary steps
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to carry out the TREATMENT measures established in the
control order within the time frame specified in the
notification by the department.
(2) A municipality which acts to control a noxious weed
or controlled plant on a noncomplying person's property may
recover the expenses and costs incurred by the municipality
in carrying out the TREATMENT measures established in the
control order from the person who was IS the subject of the
department's control order.
Section 307. Noxious weed list.
(a) Class A noxious weeds.--The following are Class A
noxious weeds:
(1) Amaranthus palmeri S. Watson (commonly known as
Palmer amaranth).
(2) Amaranthus rudis (commonly known as common
waterhemp).
(3) Amaranthus tuberculatus (commonly known as tall
waterhemp).
(4) Avena sterilis L. (commonly known as animated oat).
(5) Cuscuta L. SPP., EXCEPT FOR NATIVE SPECIES (commonly
known as dodder).
(6) Galega officinalis L. (commonly known as goatsrue).
(7) Heracleum mantegazzianum Sommier & Levier (commonly
known as giant hogweed).
(8) Hydrilla verticillata (L.f.) Royle (commonly known
as hydrilla).
(9) Oplismenus hirtellus (L.) P. Beauv. Subsp.
undulatifolius (commonly known as Wavyleaf basketgrass).
(10) Orobanche L. SPP., EXCEPT FOR NATIVE SPECIES
(commonly known as broomrape).
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(11) Pueraria DC. LOBATE (WILLD.) OHWI (commonly known
as kudzu).
(b) Class B noxious weeds.--The following are Class B
noxious weeds:
(1) Carduus nutans L. (commonly known as musk thistle).
(2) Cirsium arvense L. (commonly known as Canada
thistle).
(3) Cirsium vulgare L. (commonly known as bull thistle).
(4) Exotic Lythrum species, including Lythrum salicaria
L. (commonly known as purple loosestrife), the Lythrum
salicaria complex and Lythrum virgatum L. (commonly known as
European wand loosestrife), their cultivars and any
combination thereof.
(5) Persicaria perfoliata (L.) H. Grass (formerly known
as Polygonum perfoliatum L.) (commonly known as mile-a-minute
weed).
(6) Rosa multiflora L. (commonly known as multiflora
rose).
(7) Sorghum bicolor L. Moench (commonly known as
shattercane).
(8) Sorghum halepense (L.) Pers. (commonly known as
Johnson grass).
(c) Class C noxious weeds.--Class C noxious weeds are any
Federal noxious weeds listed in 7 CFR 360.200 (relating to
designation of noxious weeds) not established in this
Commonwealth which are not referenced above.
(D) COMMITTEE DETERMINATION.--ANY PLANT OR WEED DESIGNATED
AS A NOXIOUS WEED UNDER THIS SECTION AND AS AUTHORIZED UNDER
SECTION 301.
Section 308. Fees.
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(a) General rule.--The following fees, which shall be
deposited into the account are established:
(1) General permit, $150 per permit with a $50 annual
renewal fee.
(2) Individual permit, $250 per permit with a $100
annual renewal fee.
(3) Inspection fees for field locations - $50 minimum
inspection fee for up to 10 acres, with a $5 per acre fee for
each additional acre up to a maximum fee of $500.
(4) Inspection fees for greenhouses - Greenhouse
locations shall be assessed a fee based on square footage as
follows:
(i) $50 for less than 5,000 square feet.
(ii) $100 for 5,000-25,000 square feet.
(iii) $150 if greater than 25,000 square feet.
(5) Plant identification - $40 per sample.
(6) Laboratory testing - Fees as established in 3
Pa.C.S. Ch. 71 (relating to seed).
(b) Adjustment of fees.--The department may promulgate
regulations to fix, adjust, assess and collect, or cause to be
collected, fees as established in this act. The fees shall be
large enough to meet the reasonable expenses incurred by the
department or its agents in administering this act, including
issuing permits, conducting inspections and carrying out
necessary testing. If the secretary determines that money
derived from all authorized fees are either greater or less than
that required to administer this act, the secretary may reduce
or increase the fees so as to maintain revenues sufficient to
administer this act.
(c) Payment of fees.--Fees shall be paid by check or money
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order made payable to the Commonwealth of Pennsylvania. Failure
to pay a fee on time shall be a violation of this act. A late
fee of $25 shall be assessed for every month that a fee is past
due.
Section 309. Powers and duties of the secretary and department.
(a) General rule.--The secretary shall enforce this act and
may employ all proper means for the enforcement of this act,
including issuing notices of violation and orders, filing
violations for criminal prosecution, seeking injunctive relief,
imposing civil penalties and entering into consent agreements.
(b) General powers and duties of department.--The
department, in carrying out the provisions of this act and in
addition to all other authority granted to the secretary and the
department by this act, shall have the authority to:
(1) Issue and enforce a written control order to any
person in possession of a noxious weed or controlled plant.
(2) Issue and enforce written permits and permit
requirements to any person who wishes to research, market,
hold, warehouse, retail, wholesale, propagate, transport,
cultivate or distribute a NOXIOUS WEED OR controlled plant
under such terms and conditions as are reasonably required to
carry out the provisions of this act.
(3) When utilizing UTILIZE any enforcement tool
authorized by this act to control, remediate, contain or
eradicate a noxious weed or controlled plant, or to recover
PLANT.
(4) RECOVER, from the noncomplying person or landowner,
expenses and costs incurred in such enforcement and
compliance actions. The department may impose additional
civil or criminal penalties for failure to comply. Such
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penalties shall include the reasonable cost of eradication
and compliance expenses incurred by the department.
(5) IF THE DEPARTMENT IS DENIED ACCESS TO ANY BUILDING,
CONVEYANCE, EQUIPMENT, LAND OR VEHICLE WHERE SUCH ACCESS WAS
SOUGHT FOR THE PURPOSES AND UNDER THE AUTHORITY SET FORTH IN
THIS ACT, THE SECRETARY MAY APPLY TO ANY ISSUING AUTHORITY
FOR A SEARCH WARRANT AUTHORIZING ACCESS TO SUCH BUILDING,
CONVEYANCE, EQUIPMENT, LAND OR VEHICLE FOR THAT PURPOSE. THE
COURT MAY, UPON APPLICATION BY THE DEPARTMENT, ISSUE THE
SEARCH WARRANT FOR THE PURPOSES REQUESTED.
(B.1) RIGHT OF ENTRY AND INSPECTION.--IN THE PERFORMANCE OF
THE DUTIES REQUIRED BY THIS ACT, THE DEPARTMENT AND ITS
INSPECTORS, EMPLOYEES AND AGENTS SHALL HAVE ACCESS, DURING
REASONABLE HOURS, TO INSPECT THE LAND AND PREMISES AND ANY AREAS
OF THE LAND AND PREMISES, INCLUDING BUILDINGS AND CONVEYANCES,
THAT ARE OR WILL BE UTILIZED FOR PERMITTED ACTIVITIES.
(c) Search warrants.--
(1) If an inspector, employee or agent of the department
has probable cause to believe a noxious weed or controlled
plant exists on a property or premises, the department's
inspector, employee or agent may, upon oath or affirmation,
declare before a court of competent jurisdiction that the
inspector, employee or agent has probable cause to believe
that noxious weeds or controlled plants exist on the land or
premises.
(2) Upon review of such declaration, the court may issue
a search warrant for the property or premises. The search
warrant shall describe the property or premises, which may be
searched under authority of the search warrant, but need not
describe the exact or all possible noxious weeds or
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controlled plants that exist or may exist on the property or
premises.
(3) It shall be sufficient probable cause to show either
of the following:
(i) That in cases involving a person who holds an
individual permit or general permit under this act, the
inspector, employee or agent has been refused or delayed
entry for the purpose of inspection.
(ii) The inspector, employee or agent has reasonable
grounds to believe that a violation of this act or
regulations promulgated or orders issued under the
authority of this act has been or is occurring.
(d) Inspections and sampling authority.--
(1) The department, through its inspectors, employees
and agents, may inspect any land, premises, buildings,
vehicles, vessels, articles, locations, machinery,
conveyances or other places of a person holding a permit
under this act.
(2) The department may inspect any records required to
be kept under an individual permit or general permit and any
attendant orders and regulations.
(3) The department may collect samples and take pictures
of any noxious weeds or controlled plants.
(e) Delegation.--The secretary may delegate any power or
duty under this act to an agent acting on behalf of the
department, with the exception of the powers and duties of the
committee.
Section 310. Stop-sale orders.
(a) General rule.--The department may issue and enforce a
stop-sale order to any person holding or required to hold a
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permit under this act or to any person where a noxious weed or
controlled plant exists. The stop-sale order shall require a
person to hold, at a designated place, any noxious weed or
controlled plant. Noxious weeds or controlled plants subject to
a stop-sale order issued under the authority of this subsection
shall continue to be held at the designated place until the
department is notified by the person to whom the stop-sale order
was directed that the prescribed treatment measure or action has
been taken and a reinspection of the premises indicates the
treatment measure has been completed and was effective.
(b) Official marking of noxious weeds and controlled plants
subject to a stop-sale order.--
(1) Noxious weeds and controlled plants under a stop-
sale order shall be clearly identified and, where
practicable, conspicuously marked.
(2) It shall be unlawful for a person to remove markings
placed by the department for this purpose unless instructed
by the department to do so.
(c) Violation of a stop-sale order.--It shall be unlawful to
violate a stop-sale order issued under this section. The
department may impose any and all penalties authorized under
this act for a violation of such order.
Section 311. Seizure and condemnation.
(a) General rule.--Where the distribution, transportation,
cultivation, propagation, marketing, retail, wholesale, holding,
warehousing, research or educational practices of a noxious weed
or controlled plant is not in compliance with the provisions of
this act, A PERMIT, or any regulation promulgated or order
issued under this act, the department, in addition to any other
action authorized under this act, may file a complaint before a
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court of competent jurisdiction in the area in which the noxious
weed or controlled plant is located, or before the Commonwealth
Court, requesting such injunctive relief as necessary to prevent
harm and requesting an order of seizure and condemnation be
issued.
(b) Relief.--In the event that the court finds the noxious
weed or controlled plant to be in violation of this act, A
PERMIT, or any regulation promulgated or order issued under this
act, the court shall order the condemnation of the noxious weed
or controlled plant. Upon execution of such court order, the
condemned noxious weed or controlled plant shall be disposed of
in any manner consistent with the laws of this Commonwealth.
Section 312. Appeal process.
An administrative appeal shall be taken and hearing conducted
in accordance with the provisions of 2 Pa.C.S. Chs. 5 Subch. A
(relating to practice and procedure of Commonwealth agencies)
and 7 Subch. A (relating to judicial review of Commonwealth
agency action). A person must file an appeal of an enforcement
action by the department within 15 days of the date of the
enforcement action.
Section 313. Cooperation with other entities.
The department may cooperate and enter into agreements with
any individual, person, organization or Federal, State, county,
or municipal agency for the purpose of implementing the
provisions of this act. The department may assist in the
enforcement of any Federal noxious weed quarantine established
under Federal act or regulations.
Section 314. Rules and regulations.
The department may promulgate rules and regulations and
establish and enforce orders necessary for administration and
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implementation of this act in accordance with the act of July
31, 1968 (P.L.769, No.240), referred to as the Commonwealth
Documents Law, the act of October 15, 1980 (P.L.950, No.164),
known as the Commonwealth Attorneys Act, and the act of June 25,
1982 (P.L.633, No.181), known as the Regulatory Review Act.
CHAPTER 5
ENFORCEMENT
Section 501. Unlawful conduct.
It shall be unlawful for a person to fail to comply with or
to cause or assist in the violation of A PERMIT, an order or
provision of this act OR ANY ATTENDANT REGULATION.
Section 502. Interference with inspector, agent or employee of
department.
A person who willfully or intentionally interferes with an
inspector, employee or agent of the department in the
performance of the inspector's, employee's or agent's duties or
activities authorized under this act commits a misdemeanor of
the third degree and shall, upon conviction, be subject to a
term of imprisonment of not more than one year or a fine of not
more than $2,500, or both.
Section 503. Enforcement and penalties.
(a) Criminal penalties.--Unless otherwise specified, a
person who violates a PERMIT, A provision of this act or a rule
or regulation adopted under this act or any order issued under
this act:
(1) For the first offense, commits a summary offense and
may, upon conviction, be sentenced for each offense to pay a
fine of not less than $100 and costs of prosecution or to
undergo imprisonment for a term which shall be fixed at not
more than 90 days, or both.
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(2) For a subsequent offense committed within three
years of a prior conviction for a violation of this act or a
rule, regulation or order made under this act, commits a
misdemeanor of the second degree and shall, upon conviction,
be sentenced to pay a fine of not less than $500 and costs of
prosecution or to imprisonment for not more than two years,
or both.
(b) Civil penalties.--
(1) In addition to any other remedy available at law or
in equity for a violation of this act, the department may
assess a civil penalty of not more than $10,000, plus cost of
remediation, containment or eradication, upon a person for
each violation of this act, A PERMIT, or a regulation
promulgated or order issued under authority of this act. The
civil penalty assessed shall be payable to the department for
deposit into the account. The penalty amount shall be
collectible in any manner provided by law for the collection
of debt, including referring any collection matter to the
Office of Attorney General, which shall recover such amount
by action in the appropriate court.
(2) No civil penalty shall be assessed unless the person
assessed the penalty has been given notice and an opportunity
for a hearing on the assessment in accordance with the
provisions of 2 Pa.C.S. Chs. 5 Subch. A (relating to practice
and procedure of Commonwealth agencies) and 7 Subch. A
(relating to judicial review of Commonwealth agency action).
Section 504. Injunctive relief.
In addition to any other remedies provided for in this act,
the Attorney General, at the request of the secretary, may
initiate, in the Commonwealth Court or the court of common pleas
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of the county in which the defendant resides or has his place of
business, an action in equity for an injunction to restrain any
and all violations of this act, A PERMIT, ORDER, or the rules
and regulations promulgated under this act.
Section 505. De minimis violations.
Nothing in this act shall be construed as requiring the
department to report a violation or to institute seizure
proceedings or other enforcement actions under this act as a
result of de minimis violations of this act if the department
concludes that the public interest will be best served by a
suitable notice of violation or warning in writing.
CHAPTER 7
MISCELLANEOUS PROVISIONS
Section 701. Disposition of funds.
(a) Plant Pest Management Account.--Money received from
permitting fees, control work reimbursement, fines and penalties
under this act shall be paid into the Plant Pest Management
Account.
(b) Supplements.--The account may be supplemented by money
received from the following sources:
(1) Federal funds appropriated to the department for
purposes of this act.
(2) State funds appropriated to the department for
purposes of this act.
(3) Gifts and other contributions from public or private
sources for purposes of this act.
Section 702. Preemption.
All local laws contrary to this act are preempted.
Section 703. Abrogation.
The regulations under 7 Pa. Code §§ 111.22 (relating to
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prohibited noxious weed seeds) and 111.23 (relating to
restricted noxious weed seeds) are abrogated insofar as they are
inconsistent with this act.
Section 704. Repeals.
Repeals are as follows:
(1) The General Assembly declares that the repeals under
paragraphs (2) and (3) are necessary to effectuate this act.
(2) The act of April 7, 1982 (P.L.228, No.74), known as
the Noxious Weed Control Law, is repealed.
(3) 3 Pa.C.S. Ch. 71 is repealed insofar as it is
inconsistent with this act.
Section 705. Effective date.
This act shall take effect in 60 days.
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