A.R.S. tit. 3 ch. 2 — Arizona Revised Statutes Title 3 Chapter 2 — Regulatory Provisions

3-201. Definitions In this article, unless the context otherwise requires: 1. "Associate director" means the associate director of the division. 2. "Diseases" includes any fungus, bacterium, virus or other organism of any kind and any unknown cause that is or may be found to be injurious, or likely to be or to become injurious to any domesticated or cultivated plant, or to the product of any such plant. 3. "Division" means the plant services division of the Arizona department of agriculture. 4. "Noxious weed" means any species of plant that is, or is liable to be, detrimental or destructive and difficult to control or eradicate and shall include any species that the director, after investigation and hearing, shall determine to be a noxious weed. 5. "Nursery" means real property or other premises on or in which nursery stock is propagated, grown or cultivated or from which source nursery stock is offered for distribution or sale. 6. "Nursery stock" includes all trees, shrubs, vines, cacti, agaves, succulents, herbaceous plants whether annuals, biennials or perennials, bulbs, corms, rizomes, roots, decorative plant material, flowers, fruit pits or seeds, cuttings, buds, grafts, scions and other plants intended for sale, gift or propagation, either cultivated or collected in the wild, except seeds as regulated by article 2 of this chapter, fruit and vegetables regulated by chapter 3, articles 2 and 4 of this title and cotton plants. 7. "Pests" includes all noxious weeds, insects, diseases, mites, spiders, nematodes and other animal or plant organisms found injurious, or likely to be or to become injurious, to any domesticated, cultivated, native or wild plant, or to the product of any such plant. 8. "Plant" or "crop" includes every kind of vegetation, wild or domesticated, and any part thereof, as well as seed, fruit or other natural product of such vegetation. 9. "Shipment" includes anything that is brought into the state or that is transported within the state and that may be the host or may contain or carry or may be susceptible of containing, carrying or having present on, in or about it any plant pest or plant disease. 3-201.01. Associate director; powers and duties A. The associate director may, as authorized by the director: 1. Quarantine, treat, eradicate, destroy or reject out of state pests and all plants that are infested or infected with pests or that are the host or carrier or the means of propagating or disseminating a pest. 2. Enforce all rules and orders necessary to carry out the purposes of this article: (a) To prevent introduction of a pest into the state. (b) To prevent propagation or dissemination of a pest from one locality to another in this state. (c) To control, eradicate or suppress a pest or prevent introduction into this state of a pest from out of state. (d) To fix the terms and conditions on which plants or any other article or thing of any nature whatever likely to be infested or infected with or be the carrier of, or the means of propagating or disseminating, a pest that may be shipped or brought into this state, or moved from one locality or place to another in this state. (e) To prohibit plants or things likely to be infected with, be the carrier of or be the means of spreading, propagating or disseminating a pest from being shipped or brought into this state or moved from one locality to another in this state. 3. Cooperate with the United States secretary of agriculture and the secretary’s representatives in interstate matters pertaining to the objects of this article. 4. Proceed according to law to abate any public nuisance prohibited by this article. 5. Establish fees pursuant to section 3-217 and adopt rules necessary to effect and administer an Arizona nursery certification program, for any person who requests to participate, to certify that a participating nursery meets the criteria established by the associate director or the entry criteria established by another state, commonwealth or country. 6. Require records to determine the origin and quarantine certification status of nursery stock sold, offered for sale or transported by any person into or within this state. B. The associate director shall: 1. Keep the director informed concerning dangers to the agricultural and horticultural interests of this state from pests. 2. Faithfully enforce and execute all rules and orders of the department pertaining to the division, using all necessary and proper means including court action. 3. Prepare, publish electronically, post and make available at least once each year bulletins containing such information as the associate director deems proper and the current rules and orders of the department. 4. Enter in or on any premises or other place, train, vehicle or other means of transportation in or entering this state that is suspected of containing, harboring or having present one or more pests. 5. Make inspections to determine if a pest is present. 6. Open, without unnecessary injury to property, any box, container or package at any time during business or operating hours, and, after notifying the owner or person in charge, if the owner or person in charge is found in the county, open any car, enclosure or building that the associate director suspects contains, harbors or has present a pest, and examine and inspect the contents as may be necessary to determine if a pest is present. 7. If in performing other duties the associate director determines that plant materials inspected and being delivered or transported or shipped by mail or courier are dead, dying or otherwise inferior in quality, mark the plant or package, or both, advising the recipient and sender that, in the judgment of the associate director, the plant materials were found to be dead, dying or of inferior quality. This paragraph does not authorize the associate director to perform inspections solely for the purposes set forth in this paragraph. 3-202. Infested or infected plants as public nuisances All plants, soil and other things found infested or infected with a crop pest or disease or which are the host or carrier or means of disseminating or propagating a crop pest or disease is declared a public nuisance, and may be abated, suppressed, controlled or regulated as provided in this article and by the rules and orders of the director. 3-203. Quarantine of infected and diseased plants; notice; hearing A. When a plant or any other thing is found infested or infected by or to contain or harbor a crop pest or disease, the director shall place thereon a written warning or notice, stating: 1. That the plant or thing is held under quarantine by the department. 2. That all persons are forbidden to remove or otherwise disturb the plant or thing pending further action by the department under section 3-204 or 3-205. B. The director shall, as soon as practical, notify in writing the owner or person in charge of the plant or thing, if he can be found within the county, of his finding the crop pest or disease, stating the name thereof, and giving a sufficient description of the plant or thing by name, location or otherwise in order that it may be readily identified. C. An owner or person in charge of a plant or thing that is subject to this section may request a hearing pursuant to title 41, chapter 6, article 10, but the request for a hearing shall not stay necessary abatement action under section 3-204 or 3-205. 3-204. Summary abatement of imminently dangerous nuisance; procedure; expense; lien; public sale; reimbursement costs and penalties to state for certain abatements; civil penalty A. If, in the opinion of the director, the danger to the agricultural and horticultural industry of the state is imminent if the nuisance caused by a plant or thing is not speedily abated or suppressed, and if the director finds it is practical to summarily abate the nuisance, either by the destruction of the plant or thing or by the treatment thereof so as to destroy or eradicate the crop pest or disease without actually destroying the plant or thing, the director shall in writing direct the owner or person in charge of the nuisance, if the owner or person is found in the county, forthwith and at the owner's or person's expense to abate and suppress the nuisance in the manner provided in the written direction. If the owner or person in charge fails or neglects to comply with the direction for a period of five days after the date on which the direction was delivered to or served on the owner or person, the director shall summarily abate the nuisance in the manner specified in the written direction. B. If the owner or person in charge or control of the nuisance is a nonresident of the state or cannot, after reasonable diligence by the director, be found within the county where the nuisance exists, the director shall publish the notice and the direction one time in a newspaper published in the county, and shall post a copy at, on or in the immediate vicinity of the nuisance, and after seven days from the first publication and posting, the director shall abate the nuisance in the manner specified in the direction. C. If the nuisance is abated by the director, the expense shall be borne by the state, but, when the abatement does not involve the destruction of the plant or thing and it has some value after the crop pest or disease has been eradicated, the state shall have a first claim and lien thereon for the payment of expenses incurred in the abatement of the nuisance. D. The director shall notify the owner or person in charge or control of the nuisance of the amount of the expenses, and that unless the amount is paid within ten days after the date of service of the notice on the owner or person in charge, the plant or thing will be sold at public sale, and the proceeds, or so much thereof as may be necessary, applied to the payment of the expenses. The notice shall be personally served or posted as required in this section for notices to abate. E. If the owner or person in charge of the plant or thing fails to pay the expenses within the time specified in the notice, the director shall give public notice of the time and place of sale with a description of the plant or thing to be sold, and the amount of expenses against it, which shall include costs of publication, posting and service of notice. The notice of sale shall be published and posted as provided in this section for the publication and posting of direction to suppress the nuisance. F. The owner or person in charge of a plant or thing constituting the nuisance may waive in writing the service of all directions and notices in connection with the abatement or sale thereof. G. If the director is required to abate the nuisance of stub, soca or volunteer cotton following the refusal by the owner or person in charge or control of the nuisance to do so, the owner or person in charge or control of the nuisance shall reimburse the department for the actual costs of the state's abatement of the nuisance. An injunction shall not be granted to stay this state from abating the nuisance. The director may request the cotton research and protection council to provide monies pursuant to section 3-1085, subsection B to help defray the department's cost of abatement until the owner or person in charge reimburses the department for those costs. If the actual costs of abatement are not paid within ten days after the owner or person in charge receives notice of the amount of the costs, the director may impose a civil penalty of fifty per cent of the costs of abatement. At the director's request, the attorney general shall file an action in superior court to recover civil penalties assessed pursuant to this subsection. All civil penalties collected under this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the dangerous plants, pests and diseases trust fund established by section 3-214.01. 3-204.01. Council plow-up request; civil penalty A. At the request of the cotton research and protection council, the director, acting as an agent of the council, shall plow up cotton fields that are not in compliance with section 3-1086, subsection D. An injunction shall not be granted to stay this state from plowing up the fields. The director may request the cotton research and protection council to provide monies pursuant to section 3-1085, subsection B to help defray the costs of the plow up until the owner or person in charge reimburses the department for the actual costs of the plow up. B. If the actual costs of the plow up are not paid within three months after the owner or person in charge receives notice of the amount of the costs, the department may impose a civil penalty of one hundred fifty per cent of the costs of the plow up. At the director's request, the attorney general shall file an action in superior court to recover civil penalties assessed pursuant to this subsection. C. A producer may appeal to the council the order of the council for the plow up of noncompliant cotton fields by the department pursuant to title 41, chapter 6, article 10. D. All costs and civil penalties collected under this section shall be deposited, pursuant to sections 35-146 and 35-147, in the dangerous plants, pests and diseases trust fund established by section 3-214.01. 3-205. Abatement of nuisance not imminently dangerous; procedure; lien; foreclosure; release of lien; reimbursement costs and penalties to state for certain abatements; civil penalty A. If the director believes the danger to the agricultural and horticultural industry is not imminent, or if impractical for any reason to summarily abate the nuisance, as described in sections 3-203, 3-204, 3-206 and 3-207, the director shall not require summary destruction or eradication, but shall set forth the measures required to be taken by the owner or person in charge to control, suppress or eradicate the danger, and shall require the person, at the person's expense, to take and comply with the measures specified in the direction and subsequent directions. B. The directions shall be made, given and served as prescribed for summary abatement, and if they are not complied with, the director may proceed as provided by the directions, and the expense shall be charged against the state. C. If the plant or thing constituting the nuisance consists only of personalty and is not attached to land or contained in a building, enclosure, vehicle or place belonging to the person, the state shall have the same lien and it is enforceable in the same manner as provided for summary abatement of the nuisance under section 3-204. D. If the plant or thing is attached to land or contained in a building, enclosure or vehicle that is the property of the person, the lien shall also attach to the land, building, enclosure or vehicle, and the director shall prepare and file in the office of the county recorder where the property is situated a notice of the lien, setting forth the amount and the name of the owner or person in charge, and stating that the amount of the lien shall be paid within thirty days from filing the notice, or otherwise the property will be subjected to payment thereof. E. The lien shall be prior to all other liens against the property except liens for state and county taxes. If the amount of the lien is not paid within the thirty days, the county attorney, on written request of the director, shall foreclose the lien against the property impressed therewith as other liens are foreclosed. F. On satisfaction of the lien, the director shall issue a release of the lien to the person against whom the lien was claimed. Such release shall be a document in a form as specified in section 11-480. G. If the director is required to abate the nuisance of stub, soca or volunteer cotton following the refusal by the owner or person in charge or control of the nuisance to do so, the owner or person in charge or control of the nuisance shall reimburse the department for the actual costs of the state's abatement of the nuisance. An injunction shall not be granted to stay this state from abating the nuisance. The director may request the cotton research and protection council to provide monies pursuant to section 3-1085, subsection B to help defray the department's cost of abatement until the owner or person in charge reimburses the department for those costs. If the actual costs of abatement are not paid within ten days after the owner or person in charge receives notice of the amount of the costs, the director may impose a civil penalty of one hundred fifty per cent of the costs of abatement. At the director's request, the attorney general shall file an action in superior court to recover civil penalties assessed pursuant to this subsection. All civil penalties collected under this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the dangerous plants, pests and diseases trust fund established by section 3-214.01. 3-205.01. Summary abatement of noxious weeds, crop pests or diseases under preapproved programs The director may treat, spray, control, suppress or eradicate noxious weeds, crop pests or diseases through a countywide, area-wide or statewide program or programs that have been approved or authorized by the department. If such countywide, area-wide or statewide program or programs affect cotton, the program or programs must also be approved by the cotton research and protection council. The director may take whatever actions that are necessary to assist, support or enforce such programs including entering any fields to treat, spray, control, suppress or eradicate noxious weeds, crop pests or diseases under these authorized or approved programs. 3-205.02. Regulating production of colored cotton; civil penalties A. The director may adopt rules to regulate the production of colored cotton. The rules shall include registering producers, production requirements, field separation, cotton appliances used to produce, transport and handle colored cotton and ginning and seed requirements. B. The director may impose the following sanctions for violating colored cotton rules: 1. A civil penalty assessed against a grower of not more than seven hundred fifty dollars per acre for each planted acre of colored cotton unless the grower voluntarily abates the colored cotton crop before the first bloom. 2. A civil penalty assessed against the owner or operator of a cotton gin of not more than one hundred dollars per bale of colored cotton for violating ginning rules. 3. A civil penalty assessed against the owner or operator of a cotton appliance of not more than five hundred dollars per violation for violating the cotton appliance rules. 4. Suspension or revocation of a grower's colored cotton registration. C. All civil penalties assessed pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. 3-206. Destruction of noninfected crops on abatement of nuisance; procedure; hearing; evidence A. If the plants constituting the nuisance consist of growing crops, trees, orchards, vines or shrubbery, and the infestation or infection is by a plant pest or disease of such a nature, or if the location of the plants with respect to other plants not infested or infected is a part of the same crop, or is growing immediately adjacent to the infested or infected plants, and the director believes it is impractical to abate the nuisance, and to suppress, eradicate or control the crop pest or disease without destroying the whole of the crop, trees, orchard, vines or shrubbery of which the infested or infected plants are a part, or without serious injury to uninfected or uninfested plants, the director may adopt proper measures to control, eradicate and suppress the crop pest or disease, although it causes a destruction of the crops, trees, orchards, vines and shrubbery or an injury to uninfected or uninfested plants that are a part of the crops, trees, orchards, vines or shrubbery. B. Before proceeding with abatement of the nuisance or suppressing, eradicating or controlling the crop pest or disease, the director shall serve written notice on the owner or person in charge of the premises on which the nuisance is located, specifying the infestation or infection and directing the person to appear at a hearing to be held at a time and place within the county where the nuisance exists, and show cause why the crop, trees, orchard, vines or shrubbery should not be destroyed in whole or in part. C. The notice shall be personally served on the person, if the person is found within the county where the nuisance exists, at least five days before the hearing. If the person is a nonresident or cannot be found in the county, the notice shall be published in a newspaper published in the county for at least seven days before the hearing, and in addition, a copy thereof shall be posted in a conspicuous place on or at the premises involved for a like period. D. Any interested party may appear at the hearing and be heard, either in person or by attorney. The hearing officer shall preserve a record of all evidence introduced, and at the conclusion of the hearing shall enter an order conforming to the hearing officer's findings. 3-207. Crop pest or disease menacing state; notice of hearing; publication A. When a crop pest or disease is discovered within this state, or any section of an adjoining state or country, which the director believes menaces or threatens serious injury to the horticultural or agricultural industry of this state unless the crop pest or disease is eradicated, suppressed or controlled so as not to cause the threatened injury, and if the director believes it impractical to prevent the threatened injury except by destruction in whole or part of uninfested or uninfected plants within this state which would, if not destroyed or injured, permit the crop pest or disease to be introduced into this state or cause its spread and dissemination either within or without the state, he shall give public notice of the menace stating the character thereof, its present location and the crops to which it is injurious. The notice shall direct all persons interested: 1. To appear at the division office at a time therein specified to consider measures for the suppression, eradication or control of the threatened injury. 2. To show cause why the director should not order the destruction or injury of all or such portion of the plants, which, if not destroyed or injured, will become the means of introducing the crop pest or disease into the state or of spreading it to other places, or to show cause why a quarantine zone should not be established. B. The notice shall be published at least seven days prior to the hearing in at least one newspaper for at least one insertion in each county wherein the director deems it necessary to destroy or injure the plants, and in a newspaper published at Phoenix. 3-208. Hearing on plant menace; evidence; quarantine zones; violation A. Any interested party may be heard at the hearing, either in person or by attorney. The department shall preserve a written record of all evidence introduced at the hearing. B. If the director finds that a menace exists, he may make and enforce rules and orders and establish quarantine zones or districts to eradicate, suppress or control the menace. C. When the director finds the danger which caused the establishment of a prohibited zone is no longer present, he shall revoke the order establishing the zone, and may by order change or modify the order establishing a zone or applicable rules without notice or hearing, but no additional territory shall by subsequent order be added to or included within the boundaries of the zone except by notice and hearing as required for establishing the zone. D. After the date on which the director enters the order establishing a zone, it shall be unlawful to plant, grow or cultivate, or have in, or to transport from or into the district any plant of the kind specified in the order except in accordance with the order or subsequent orders. 3-209. Quarantines; notice to common carriers; duty to hold for inspection; certificate of release; inspection A. When the director believes the importation from designated countries, states or localities of specified varieties of plants, fruits, vegetables, seeds, soil or agricultural or horticultural products is dangerous to this state or to the agricultural or horticultural industry of this state because of the likelihood of infestation with crop pests or diseases, the director may declare a quarantine against all varieties from those places. Common carriers shall be immediately notified of the declaration of quarantine and are prohibited from transporting quarantined products or pests and diseases associated with the quarantined products from the designated places into the state. B. Any person who brings or causes to be brought into the state plants, fruits, vegetables or agricultural or horticultural products is subject to either of the following procedures: 1. The inspector may issue a certificate of release to the person at a properly signed border inspection station. 2. The inspector may instruct the person, at a properly signed border inspection station, to hold the shipment at the place where it is to be received, without unnecessarily moving or placing it where it may be harmful, for immediate inspection of the inspector, and shall not deliver the shipment to the person entitled to it until furnished with a certificate of release by the inspector. C. If a person does not obtain a certificate of release as prescribed by subsection B, the person shall, immediately after arrival in this state, notify the inspector of the place where the shipment will be received, and hold it, without unnecessarily moving or placing it where it may be harmful for immediate inspection of the inspector, and shall not deliver the shipment to the person entitled to it until furnished with a certificate of release by the inspector. D. The director, the associate director or the inspector may enter into any place where the products are received, as described in subsection C, for the purpose of making the investigation or examination. 3-210. Destruction of infected shipments A. When a shipment of any plant, plant product, soil or other thing imported or brought into the state is found to be infested by or to harbor insects, noxious weeds or other pests dangerous to the interests of the state, the director shall notify, in writing, the shipper, consignee or owner, and shall require the shipper, consignee or owner, at the owner's option, immediately to reship from the state, treat or destroy the plant or other thing in whole or in part as the director deems necessary, at the owner's expense. If the shipper, consignee or owner neglects or refuses to reship from the state or treat or destroy the infested shipment the director shall order the infested shipment to be destroyed. B. A shipper, consignee or owner of any plant, plant product, soil or other thing that is subject to this section may request a hearing pursuant to title 41, chapter 6, article 10, but the request for a hearing shall not stay necessary treatment action under this section. 3-211. Imported nursery stock; labeling; certificate of inspection Nursery stock shipped into this state from another state or country shall be prominently labeled with the name and address of both the shipper and consignee, and shall be accompanied by a certificate of inspection dated within one year, or a copy of the certificate, made by a duly authorized official of the state or country in which the stock was grown. Shipments of plants, fruits, vegetables or seeds, not grown in the locality from which shipment was made, shall, in addition, specify where the plants or products were grown. Shipments into the state shall conform to rules adopted by the director. 3-212. Infested plants; sale or transportation prohibited; disposition of infested or wormy apples and pears A. It is unlawful to offer for sale, sell, give away or transport, except from the state as provided in section 3-211, plants, fruits, vegetables or seeds known to be infested by dangerously injurious insects or plant diseases or known to harbor any pest whatsoever. B. When apples or pears are infested by the coddling moth, plain evidence of injury by this insect to the fruit shall constitute a condition of infestation. C. When the director believes the protection of the industry requires such action, fruit commonly known as "wormy," together with other apples or pears in the same container or lot together with the containers, shall be declared a public nuisance by the director, and offering for sale, selling, giving away or transporting the fruit after it is declared a public nuisance is unlawful. 3-213. Concealment of plants or agricultural products It is unlawful for a person to conceal from a quarantine officer any plant or plant product or to fail to present such plant or plant product or any quarantined article for inspection at the request of such officer. 3-214. Failure to stop at inspection station It is unlawful for a person in possession or in control of a vehicle to fail to stop the vehicle at a properly signed border inspection station, or upon demand of a plant quarantine officer, for the purpose of determining whether any quarantine established pursuant to the provisions of law is being violated or whether the vehicle may harbor pests or diseases associated with a quarantine. 3-214.01. Dangerous plants, pests and diseases trust fund A. A dangerous plants, pests and diseases trust fund is established for the exclusive purpose of implementing, continuing and supporting the agricultural program established by this article. All monies collected under this article except civil penalties assessed pursuant to section 3-205.02 or 3-215.01 shall be deposited in the dangerous plants, pests and diseases trust fund. B. The director shall administer the trust fund as trustee. The state treasurer shall accept, separately account for and hold in trust any monies deposited in the state treasury, which are considered to be trust monies as defined in section 35-310 and which shall not be commingled with any other monies in the state treasury except for investment purposes. On notice from the director, the state treasurer shall invest and divest any trust fund monies deposited in the state treasury as provided by sections 35-313 and 35-314.03, and monies earned from investment shall be credited to the trust fund. C. The beneficiary of the trust is the agricultural program established by this article. All monies in the dangerous plants, pests and diseases trust fund are to be used by the department exclusively to carry out this article, including salaries, fees and office, administrative, bonding and travel expenses incurred. D. The unexpended and unencumbered balance of monies, if any, remaining in the dangerous plants, pests and diseases trust fund at the end of each fiscal year shall not revert to the state general fund. 3-215. Violations; classification A. It is unlawful to knowingly refuse or fail to comply with any rule or order adopted by the director to protect the agricultural or horticultural industry, or adopted to control a quarantine zone established by the director. A violation of this subsection is a class 2 misdemeanor. B. A person obstructing or conspiring to obstruct the director or his representatives, in the performance of their duties, or who violates any provision of this article is guilty of a class 1 misdemeanor. Each separate violation shall constitute a separate offense. C. This section does not apply to a person who fails to destroy cotton or cotton stubble before an established date or who plants cotton before an established date. 3-215.01. Violation; civil penalty A. A person who knowingly transports or causes the transportation of a crop pest or crop disease into this state is subject to a civil penalty as prescribed by subsection B of this section. A person who receives a certificate of release under section 3-209 is exempt from this section. B. The director may bring an action under this section in superior court in the county in which a violation is alleged to have occurred. On finding a knowing violation, the court may assess the civil penalty in an amount it considers appropriate, but not exceeding five thousand dollars for each violation. In determining the amount of the penalty, the court shall consider at least the following items: 1. Any prior violations of the same nature within the preceding twenty-four months. 2. The actual consequences and danger of the crop pest or crop disease to the state or to the agricultural or horticultural industry in this state. 3. The commodity or other thing that carries the crop pest or crop disease into this state. 4. The class of crop pest or crop disease introduced. 5. Whether the defendant possesses a certificate of release. 6. Any abatement action taken by the defendant. 7. The extent of the infestation. C. All civil penalties assessed pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. 3-216. Enforcement powers of deputy, inspector or agent; cooperation A. When any power or authority is given by any provision of this article to the director, it may be exercised by any deputy, inspector or agent duly authorized by the director. B. Any person in whom the enforcement of any provision of this article is vested has the power of a peace officer as to such enforcement. C. By interagency agreement, the department of agriculture and the motor vehicle division of the department of transportation shall cooperate at the ports of entry to carry out the provisions of this article. 3-217. Nursery or nursery stock certification; fee; denial, revocation or suspension; hearing A. The associate director shall: 1. Establish a nursery certification program. 2. By rule, set and collect a variable fee for each nursery or nursery stock certification inspection based on a schedule of costs for services as may be appropriate to recover the actual direct costs incurred by the division, but not more than fifty dollars for each inspection. B. If the state agricultural laboratory performs tests under a nursery certification program, the laboratory may collect fees prescribed by rule for the tests established as follows: 1. The associate director shall establish by rule the extent and type of testing required for the Arizona certified nursery program including only tests that the department would not otherwise have performed to determine if the nursery or nursery stock is infested or infected with a crop pest or disease. 2. The extent and type of testing required for the export criteria program shall be established according to the requirements of another state, country or commonwealth. C. The associate director may issue, refuse to issue, revoke or suspend a nursery certificate under the nursery certification program. D. A person who is aggrieved by any action under the nursery certification program may request a hearing pursuant to title 41, chapter 6, article 10. 3-218. Citrus budwood certification; fee A. The director may direct a state citrus budwood certification program. Under the program, inspectors may: 1. Monitor the fumigation of blocks of citrus trees. 2. Monitor the transplanting of seedlings from the seed bed. 3. Monitor the cutting of budwood from mother blocks or other certified blocks within a twenty-four hour period. 4. Tag certified citrus trees with certified tags. 5. Map blocks in a certified nursery. 6. Audit records that are kept by the nursery and by private inspection associations. B. The director may assess a fee of not more than ten cents per budwood to cover the costs of implementing the citrus budwood certification program. The director shall establish the amount of the fee by rule pursuant to a cooperative agreement among the department, private inspection associations and the university of Arizona, Yuma Mesa agricultural center. The director shall deposit revenues collected from the fee in the dangerous plants, pests and diseases trust fund established by section 3-214.01. 3-221. Agreements for joint exercise of powers; review by attorney general; continuing obligation A. The director may enter into agreements with adjoining states for the joint exercise of power in the construction and operation of inspection stations or other necessary facilities within the boundaries of this state or the adjoining state and the director may contract for such construction by an adjoining state if such method is determined to be economically feasible. B. Any such agreement made with an adjoining state shall be submitted to the attorney general who shall determine whether the agreement is in proper form and is within the powers and authority of the laws of this state. C. No agreement made under the provisions of this article shall relieve the department of any obligation or responsibility imposed upon it by law or by the Constitution of Arizona. D. The director may by administrative arrangement or by contract make agreements for the operation of the inspection station which are not precluded by law or the constitution. 3-222. Employees assigned to adjoining state Employees of the department who are assigned to inspection stations or other facilities operating under a joint state agreement and located within an adjoining state shall retain all rights and privileges of, and shall be subject to all laws, rules and regulations governing, other state employees. 3-223. Interdivision livestock inspection The plant services division, the animal services division and the office of inspections shall cooperate to provide livestock inspections at border inspection stations or department offices as required under section 3-1332, subsection E and to train the appropriate personnel to perform the livestock inspections. 3-231. Definitions In this article, unless the context otherwise requires: 1. "Advertisement" means all representations, other than those on the label, made in any manner relating to seed within the scope of this article. 2. "Agricultural seed" means the seeds of grass, forage, cereal, and fiber crops and any other kinds of seeds commonly recognized within this state as agricultural seeds, lawn seeds and mixtures of such seeds, and may include noxious-weed seeds when the department determines that such seed is being used as agricultural seed. 3. "Cease and desist order" means an administrative order provided by law restraining the sale, use, disposition and movement of a definite amount of seed. 4. "Certified seed" or "registered seed" means seed that has been produced and labeled in accordance with the procedures and in compliance with the rules and regulations of an officially recognized seed-certifying agency. 5. "Custom application" means an application of pesticide to a seed by a pesticide applicator who does not hold title to the seed. 6. "Dealer" means any person who sells seed. 7. "Division" means the environmental services division of the Arizona department of agriculture. 8. "Established plant, warehouse, or place of business" means any permanent office headquarters maintained by an importer, broker, seller or authorized manufacturer's agent, or any permanent warehouse, building or structure in or from which a permanent business is operated, at which stocks of agricultural seed, vegetable seed or ornamental plant seed regulated by this article are sold, distributed, processed, mixed, stored or kept. 9. "Hybrid" means the first generation seed of a crossbreed produced by controlling pollination and by combining two or more inbred lines, or one inbred or a single crossbreed with an open pollinated variety, or two varieties or species, except open pollinated varieties of corn (zea mays). The second generation, or subsequent generations from such crosses, shall not be regarded as crosses. Hybrid designations shall be treated as variety names. Any kinds or varieties that have pure seed which is less than ninety-five per cent but more than seventy-five per cent hybrid seed as a result of incompletely controlled pollination in a cross shall be labeled to show the percentage of pure seed that is hybrid seed, or shall be labeled with a statement such as "contains from seventy-five per cent to ninety-five per cent hybrid seed". No one kind of seed shall be labeled as hybrid if the pure seed contains less than seventy-five per cent hybrid seed. 10. "Inoculant" means a commercial preparation containing nitrogen-fixing bacteria that is applied to seed. 11. "Kind" means one or more related species or subspecies which singly or collectively are known by one common name, such as corn, oats, alfalfa and timothy. 12. "Label" means any label or other written, printed or graphic representations, in any form whatsoever, accompanying or pertaining to any seed whether in bulk or in containers and includes representations or invoices. 13. "Labeler" means any person whose name and address appear on the label pertaining to or attached to a lot or container of agricultural, vegetable or ornamental plant seed sold, offered for sale, exposed for sale or transported for sowing purposes. 14. "License" means an Arizona state seed license that is obtained from the department. 15. "Lot" means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling. 16. "Noxious-weed seeds" means "prohibited noxious-weed seeds" and "restricted noxious-weed seeds" as defined as follows and as listed in the rules adopted under this article. (a) "Prohibited noxious-weed seeds" are the seeds of perennial or annual weeds which, when established, are highly destructive and difficult to control by ordinary good cultural practice and the seed of which is prohibited by this article subject to recognized tolerances. (b) "Restricted noxious-weed seeds" are all noxious-weed seed not classified as prohibited noxious-weed seed. 17. "Ornamental plant seed" means the seed of any plant used for decorative or ornamental purposes and includes flower seed. 18. "Person" means any individual, partnership, corporation, company, society or association. 19. "Pure seed", "germination" and other seed labeling and testing terms in common usage shall be defined as in the federal seed act (53 Stat. 1275; 7 United States Code sections 1551 through 1611) and the rules and regulations promulgated under that act. 20. "Record" means all information relating to the shipment or shipments involved and includes a file sample of each lot of seed. 21. "Sell" means offer for sale, expose for sale, possess for sale, exchange, barter or trade. 22. "Treated" means that the seed has received an application of a substance or process that is designed to reduce, control or repel certain disease organisms, insects or other pests attacking such seeds or seedlings growing from the seeds. 23. "Type" means either a group of varieties so similar that the individual varieties cannot be clearly differentiated except under special conditions or, when used with a variety name, seed of the variety named which may be mixed with seed of other varieties of the same kind and of similar character. If type is designated, the designation may be associated with the name of the kind but in all cases shall be clearly associated with the word "type". If the type designation does not include a variety name, it shall include a name that describes a group of varieties of similar character, and the pure seed shall be at least ninety per cent of one or more varieties all of which conform to the type designation. 24. "Variety" means a subdivision of a kind characterized by growth, yield, plant, fruit, seed or other characteristics by which it can be differentiated from other plants of the same kind. 25. "Vegetable seeds" means seeds of those crops which are grown in gardens and on truck farms and are generally known and sold under the name of vegetable seeds in this state. 26. "Weed seeds" means the seeds of all plants generally recognized as weeds within this state and includes noxious-weed seeds. 3-232. Enforcement of article A. The director shall enforce the provisions of this article. The director shall: 1. Sample, inspect, analyze and test agricultural, vegetable and ornamental plant seed transported, sold or offered or exposed for sale for sowing purposes, as provided by section 3-233 and to the extent he deems necessary to determine whether the agricultural, vegetable and ornamental plant seeds are in compliance with the provisions of this article, and he shall notify promptly the person who transported, sold, offered or exposed the seed for sale of any violation. 2. Prescribe and, after public hearing following due public notice, adopt rules governing: (a) The methods of sampling, inspecting, analyzing, testing and examining agricultural, vegetable and ornamental plant seed and the tolerances to be followed in the administration of this article that comply with the federal seed act (7 United States Code sections 1551 through 1611; 53 Stat. 1275) and the rules and regulations promulgated under that act. (b) A prohibited and restricted noxious weed list and subsequent revisions to the list. (c) Reasonable standards of germination for vegetable seeds. (d) Such other rules as are necessary to secure the efficient enforcement of this article. 3. Designate seed-certifying agencies which he finds qualified to certify agricultural or vegetable seeds as to variety, purity, quality or other related designations. The director shall consult with the director of the university of Arizona agricultural experiment station before approving the qualifications of any agency to certify as to variety, strain or other genetic character of agricultural or vegetable seeds. B. The director may assign personnel from the office of inspections to perform any of the inspection-related activities prescribed by this article. 3-233. Powers and duties; fees; penalty A. For the purpose of carrying out this article, the director may: 1. In order to have access to seeds and the records pertaining to seeds subject to this article and the rules adopted under this article, enter upon: (a) Any established plant, warehouse or place of business during customary business hours. (b) Any truck or other conveyance operated on land, on water or in the air on probable cause or reasonable suspicion to believe that a violation of this article has occurred. 2. Issue and enforce a written cease and desist order to the owner or custodian of any lot of agricultural, vegetable or ornamental plant seed that the director finds is in violation of this article, as provided in section 3-238, and any lot or lots of seed sold, or transported for sale, that do not meet all requirements of the plant variety protection act (P.L. 91-577; 84 Stat. 1542; 7 United States Code sections 2321 through 2582). 3. Provide through the state agricultural laboratory for seed testing facilities, employ qualified persons and incur expenses necessary to comply with this article. 4. Through the state agricultural laboratory: (a) Provide for making purity, germination, noxious weed, tetrazolium and pathology tests of seeds for farmers and dealers on request pursuant to rules prescribed by the director governing such testing. (b) Collect charges for the tests as prescribed by the director. 5. Cooperate with the United States department of agriculture and other agencies in seed law enforcement. 6. Revoke, suspend, restrict, deny or choose not to renew a license issued under this article or fix periods and terms of probation for a license holder after a hearing at which the license holder is found by a preponderance of the evidence to have violated this article or any of the rules adopted under this article. 7. Establish by rule fees that are sufficient to cover the costs of interstate and international exportation inspection activities under section 3-232, subsection A, paragraph 1, but annually not more than one dollar fifty cents per acre. Monies received under this paragraph shall be deposited in the seed law trust fund pursuant to section 3-234. B. For the purposes of this article, the director, after an opportunity for a hearing, shall establish and collect the following fees: 1. For a seed dealer's license, not more than fifty dollars per year. 2. For a labeler's license, not more than five hundred dollars per year. C. The director shall assess a license holder who does not submit the annual license renewal fees to the department by July 1 a penalty of ten per cent of the amount of the license fee per month for not more than three months. Penalties collected under this subsection shall be deposited in the seed law trust fund pursuant to section 3-234. 3-234. Seed law trust fund A. A seed law trust fund is established for the exclusive purpose of implementing, continuing and supporting the agricultural program established by this article. All monies collected pursuant to section 3-233 shall be deposited in the seed law trust fund. B. The director shall administer the trust fund as trustee. The state treasurer shall accept, separately account for and hold in trust any monies deposited in the state treasury, which are considered to be trust monies as defined in section 35-310 and which shall not be commingled with any other monies in the state treasury except for investment purposes. On notice from the director, the state treasurer shall invest and divest any trust fund monies deposited in the state treasury as provided by sections 35-313 and 35-314.03, and monies earned from investment shall be credited to the trust fund. Surplus monies, including any unexpended and unencumbered balance at the end of the fiscal year, do not revert to the state general fund. C. The beneficiary of the trust is the agricultural program established by this article. All monies in the seed law trust fund are to be spent as directed by the director to carry out the provisions of this article. 3-235. Seed dealer and labeler licenses; fee; exception A. An Arizona seed dealer or an out-of-state seed dealer who sells, distributes, processes or mixes for the use of others any agricultural, vegetable or ornamental plant seed, except vegetable and ornamental plant seed in packages of less than one pound, shall obtain a license from the division, authorizing the dealer to sell, distribute, process or mix such seed. A dealer is not entitled to have a license unless the dealer has an established plant, warehouse or place of business. A separate seed dealer license is required for each place of business in this state from which seed regulated by this article is sold. B. A seed labeler who labels any agricultural, vegetable or ornamental plant seed for sale, distribution or processing shall obtain a seed labeler license from the division for each place of business at which seed regulated by this article is labeled. C. An application for a license shall be accompanied by the fee prescribed by section 3-233. A license shall be renewed annually not later than July 1, and the application for renewal shall be accompanied by the fee prescribed by section 3-233. D. This section does not apply to a farmer growing seed crops for sale to a seed dealer or labeler. The portion of crops received by an individual who harvests the producer's crop and receives part of the crop as payment for services rendered in the harvesting shall be exempt from this section. 3-236. Retention of invoices and records Each person whose name appears on the label of and handles agricultural and vegetable seeds subject to this article shall keep for a period of two years complete records of each lot of agricultural or vegetable seed handled, and keep for one year a file sample of each lot of seed after disposition of the lot. All records pertaining to the lot or lots involved shall be accessible for inspection during customary business hours. All invoices, receiving records and records of purchases must have the kind, variety and lot number of seed sold in the state of Arizona. 3-237. Label requirements; rules The director shall adopt rules to specify labeling requirements for each container of agricultural, vegetable and ornamental plant seed sold, offered for sale, exposed for sale or transported in this state for sowing purposes. The labeling requirements shall include: 1. Germination. 2. Purity. 3. Noxious weed content. 4. Precautionary statements the director considers to be necessary. 5. Labeler or packager information. 6. Seed origin. 7. Other issues the director considers to be necessary. 3-238. Cease and desist order; appeal A. The director may issue and enforce a written cease and desist order to the owner or custodian of any lot of agricultural, vegetable or ornamental plant seed which the director finds is in violation of any of the provisions of this article, which order shall prohibit further sale, processing and movement of the seed except on approval of the director, until the director has evidence that the law has been complied with and the director has issued a release of the seed from the cease and desist order. B. The owner or custodian of seeds which have been denied further sale, processing and movement may request a hearing pursuant to title 41, chapter 6, article 10. C. This section shall not be construed as limiting the right of the director to proceed as authorized by other sections of this article. 3-239. Seizure and disposition of noncomplying seed A. Any lot of agricultural, vegetable or ornamental plant seed not in compliance with the provisions of this article is subject to seizure upon complaint of the director to a court of competent jurisdiction in the locality in which the seed is located. B. If the court finds the seed is in violation of this article and orders condemnation of the seed, it shall be denatured, processed, destroyed, relabeled or otherwise disposed of in compliance with the laws of this state. Before the court orders such disposition of the seed, it shall first give the claimant an opportunity to apply to the court for release of the seed or permission to process or relabel it to bring it into compliance with this article. 3-240. Prosecutions; classification; publication of results; injunction A. Any person violating any provision of this article is guilty of a petty offense. B. A person who violates any provision of this article with the intent to commit fraud is guilty of a class 6 felony. C. When the director finds that a person has violated any of the provisions of this article, the director may institute proceedings in a court of competent jurisdiction in the locality in which the violation occurred to have the person prosecuted for the violation, or may file with the county attorney, with the view of prosecution, such evidence as the county attorney deems necessary. D. The county attorney of the county in which the violation occurred shall institute proceedings at once against any person charged with a violation of this article if, in his judgment, the information submitted warrants such action. E. After judgment by the court in any case arising under this article, the director shall publish any information pertinent to the issuance of the judgment by the court in such media as he may at any time designate. F. The director may enjoin any violation of this article in a court of competent jurisdiction without commencing any other action. 3-241. Exemptions; exceptions A. The provisions of sections 3-237 and 3-242 do not apply: 1. To seed or grain not intended for sowing purposes. 2. To seed in storage in, or being transported or consigned to a cleaning or processing establishment for cleaning or processing, if the invoice or labeling accompanying any shipment of such seed bears the statement "seed for processing," and if any labeling or other representation which may be made with respect to the uncleaned or unprocessed seed shall be subject to this article. 3. To any carrier in respect to any seed transported or delivered for transportation in the ordinary course of its business as a carrier, if the carrier is not engaged in producing, processing, or marketing agricultural, vegetable or ornamental plant seed subject to provisions of this article. B. No person shall be subject to the penalties of this article for having sold or offered or exposed for sale in the state any agricultural, vegetable or ornamental plant seeds, which were incorrectly labeled or represented as to kind, variety, type or origin, which seeds cannot be identified by examination thereof, unless he has failed to obtain an invoice or grower's declaration, if required, and to take such other precautions as are necessary to insure the identity to be that stated. 3-242. Violations; civil penalties A. The director may assess a civil penalty of at least fifty dollars but not more than three hundred dollars for each violation, with each affected customer constituting a separate violation, against a seed dealer or labeler who, after a hearing, is found by a preponderance of the evidence: 1. To have not completed the test to determine the percentage of germination required by section 3-237 immediately before the sale, offering for sale or transportation: (a) Within a nine month period, exclusive of the calendar month in which the test was completed, for any agricultural, ornamental or vegetable seed intended for wholesale or commercial producer purchase. (b) Within a fifteen month period, exclusive of the calendar month in which the test was completed, for any agricultural, ornamental or vegetable seed intended for retail purchase. 2. To have not obtained any license that is required by this article. B. The director may assess a civil penalty of not more than two thousand five hundred dollars for each violation, with each affected customer constituting a separate violation, against a seed dealer or labeler who, after a hearing, is found by a preponderance of the evidence: 1. To have labeled or sold seed represented to be certified seed, registered seed or foundation seed unless it has been produced and labeled according to the rules and regulations of an officially recognized seed certification or registration agency. 2. To have labeled or sold seed that has been treated with any approved substance designed to control or repel plant disease organisms or insect pests attacking the seeds, unless each container bears a label giving information in the form the director prescribes by rule, showing the commonly accepted name and the kind or nature of the substance and, if the substance may be harmful to humans or other vertebrate animals, a warning or cautionary statement that is adequate to protect the public. 3. To have hindered or obstructed an authorized agent of the department from performing official duties under this article. 4. To have failed to comply with a cease and desist order. 5. To have labeled or sold seed that has a false or misleading label. 6. To have labeled or sold seed that has been advertised in a false or misleading manner. 3-243. Seed labeling regulation; state preemption The regulation and use of seeds are of statewide concern. The regulation of seeds pursuant to this article and their use is not subject to further regulation by a county, city, town or other political subdivision