Revised
September, 1997
Administration: This Act is administered by the Nebraska Department of Agriculture, Bureau of Plant Industry, State Office Building, 301 Centennial Mall South, Lincoln, Nebraska 68509; telephone: (402) 471-2394.
Revisions: The provisions of this Act were revised during the 1997 session of the Nebraska Legislature.
Rules: A regulation has been promulgated under this Act known as Title 25, Chapter 13, Nebraska Administrative Code - Plant Protection and Plant Pest Act Regulations.
2-1072. Act, how cited. Sections 2-1072 to 2-10,117 shall be
known and may be cited as the Plant Protection and Plant Pest Act.
2-1073. Public policy declaration. It is hereby declared to be the
public policy of the State of Nebraska to protect and foster the health, prosperity, and general
welfare of its people by preserving and protecting the plant industry. Because of the importance
of the plant industry to the welfare and economy of the state and the damage which can result
from the uncontrolled proliferation of plant pests, there is a need to impose standards and
restrictions on the movement and care of plants within the state. The Department of Agriculture
shall be charged with administering and enforcing such standards and restrictions through the
Plant Protection and Plant Pest Act.
2-1074. Definitions, where found. For purposes of the Plant
Protection and Plant Pest Act, unless the context otherwise requires, the definitions found in
sections 2-1074.01 to 2-1089 shall be used.
2-1074.01. Biological control, defined. Biological control shall
mean:
(1) The use by humans of living organisms to control or suppress undesirable animals,
plants, or microorganisms which affect plants or plant pests; or
(2) The action of parasites, predators, pathogens, or competitive organisms on a host or
prey population which affect plants or plant pests to produce a lower general equilibrium than
would prevail in the absence of the biological control agents.
2-1075. Biological control agent, defined. Biological control agent
shall mean a parasite, predator, pathogen, or competitive organism intentionally released by
humans for the purposes of biological control with the intent of causing a reduction of a host or
prey population.
2-1075.01. Broker, defined. Broker shall mean any person who
solicits or takes orders for or sells nursery stock in the state other than a grower, dealer, person
employed by and while acting as an employee of a grower licensed in this state or a dealer
licensed in this state, or person employed by and while acting as an employee of a person
meeting the requirements of subsection (1) of section 2-10,104.
2-1076. Collector, defined. Collector shall mean any person who
only gathers wild plants for the purpose of distribution.
2-1077. Dealer, defined. Dealer shall mean any person who does not
grow nursery stock in Nebraska but is involved in:
(1) The acquisition and further distribution of nursery stock;
(2) The utilization of nursery stock for landscaping or purchase of nursery stock for
other persons; or
(3) The distribution of nursery stock with a mechanical digger, commonly known as a
tree spade, or by any other means.
2-1078. Department, defined. Department shall mean the
Department of Agriculture.
2-1078.01. Director, defined. Director shall mean the Director of
Agriculture or his or her designated employee, representative, or authorized agent.
2-1079. Distribute, defined. Distribute shall mean selling,
exchanging, bartering, moving, or transporting; offering to sell, exchange, barter, move, or
transport; holding nursery stock for sale, exchange, or barter; acting as a broker; or otherwise
supplying. Distribute shall not include moving or transporting on contiguous real estate that is
owned, leased, or controlled by the same person.
2-1079.01. Distribution location, defined. Distribution location
shall mean each place nursery stock is offered for sale or sold and shall also include all locations
of a vehicle from which nursery stock is offered for sale or sold directly. Distribution location
shall not include each location from which an order is made by a purchaser ordering by mail,
telephone, or facsimile transmission but shall include the location where such orders are received
within the state.
2-1079.02. Genetically engineered plant organism, defined.
Genetically engineered plant organism shall mean an organism altered or produced through
genetic modification from a donor, vector, or recipient organism using recombinant
deoxyribonucleic acid techniques.
2-1080. Grower, defined. Grower shall mean any person growing
and distributing nursery stock or actively involved in the management or supervision of a
nursery.
2-1081. Nuisance plant, defined. Nuisance plant shall mean any
plant not economically essential to the welfare of the people of Nebraska, as determined by the
department, and which may serve as a favorable host of plant pests or may be detrimental to the
agricultural interests of the State of Nebraska.
2-1082. Nursery, defined. Nursery shall mean any property where
nursery stock is grown, propagated, collected, or distributed and shall include, but not be limited
to, private property or any property owned, leased, or managed by any agency of the United
States, the State of Nebraska or its political sub-divisions, or any other state or its political
subdivisions where nursery stock is fumigated, treated, packed, or stored by any person.
2-1083. Nursery stock, defined. Nursery stock shall mean all
field-grown or container-grown perennial plants, including, but not limited to, vegetative or
propagative parts or perennial plants dug from the wild, so labeled, and distributed, and
excluding, among other things, greenhouse plants grown for indoor use, annual plants, biennial
plants, florist stock, cut flowers, sod, turf, onions, or potatoes, or seeds of any such plant.
2-1084. Person, defined. Person shall mean any body politic or
corporate, society, community, the public generally, any individual, partnership, limited liability
company, joint-stock company, or association, or any agent of any such entity.
2-1084.01. Place of origin, defined. Place of origin shall mean the
county and state where nursery stock was most recently grown for a period of not less than one
cycle of active growth.
2-1085. Plant, defined. Plant shall mean any plant, plant product,
plant part, or reproductive or propagative part of a plant, plant product, or plant part including,
but not limited to, trees, shrubs, vines, forage and cereal plants, fruit, seeds, grain, wood, or
lumber. This shall include all growing media, packing material, or containers associated with the
plants, plant parts, or plant products named in this section.
2-1086. Plant pest, defined. Plant pest shall mean any insect,
arthropod, nematode, mollusk, fungus, bacteria, virus, mycoplasma, parasitic plant, physiological
disorder, or other infectious agent which can directly or indirectly injure or cause damage or a
pathological condition to plants.
2-1087. Property, defined. Property shall mean any real estate or
personal property, including any vessel, automobile, aircraft, rail car, other vehicle, machinery,
building, dock, nursery, orchard, or other place where plants are grown or maintained or the
contents of such place.
2-1088. Rules and regulations, defined. Rules and regulations shall
mean rules and regulations adopted and promulgated by the department pursuant to the Plant
Protection and Plant Pest Act.
2-1089. Wild plants, defined. Wild plants shall mean nursery stock
from any place other than a nursery.
2-1090. State Entomologist; position created; duties. There is
hereby created in the department and under the direction of the Director of Agriculture the
position of State Entomologist. Such person shall be a graduate of a recognized university with a
major, or its equivalent, in entomology, plant pathology, or an equivalent biological science and
have not less than two years of experience in such field and administrative work. It shall be the
duty of the State Entomologist through the Plant Protection and Plant Pest Act to protect the
interest of Nebraska as stated in section 2-1073, to regulate the distribution of plants, and
to assist exporters of plants in meeting the requirements imposed by other states or countries.
2-1091. Enforcement of act; department; powers. For the purpose of
enforcement of the Plant Protection and Plant Pest Act or any rule or regulation, the department
may:
(1) Enter and inspect at reasonable times and in a reasonable manner without being
subject to any
action for trespass or damages, if reasonable care is exercised, all property where plants are
grown, packed, or distributed and all vehicles, equipment, packing materials, containers, records,
and labels on such property. The department may inspect and examine all records and property
relating to compliance with the act. Such records and property shall be made available to the
department for review at all reasonable times;
(2) In a reasonable manner, hold for inspection and take samples of any plants and
associated materials which may not be in compliance with the act;
(3) Inspect or reinspect at any time or place any plants that are in the state or being
shipped into or through the state and treat, seize, destroy, require treatment or destruction of, or
return to the state of origin any plants in order to inhibit or prevent the movement of plant pests
throughout the state;
(4) Obtain an inspection warrant in the manner prescribed in sections 29-830 to
29-835 from a court of record if any person refuses to allow the department to inspect pursuant to
this section;
(5) Issue a written or printed withdrawal-from-distribution order and post signs to
delineate sections not marked pursuant to subdivision (6) of section 2-1092 or sections of
distribution locations and to notify persons of any withdrawal-from-distribution order when the
department has reasonable cause to believe any lot of nursery stock is being distributed in
violation of the act or any rule or regulation;
(6) Apply for a restraining order, a temporary or permanent injunction, or a mandatory
injunction against any person violating or threatening to violate the act or the rules and
regulations. The district court of the county where the violation is occurring or is about to occur
shall have jurisdiction to grant such relief upon good cause shown. Relief may be granted
notwithstanding the existence of any other remedy at law and shall be granted without bond;
(7) Issue a quarantine or establish a quarantine area;
(8) Cooperate and enter into agreements with any person in order to carry out the
purpose of the act;
(9) Establish a restricted plant pest list to prohibit the movement into the state of plant
pests not known to occur in Nebraska and to prohibit the movement of those plant pests present
in the state but known to be destructive to the plant industry;
(10) Issue phytosanitary and export certificates on plants for individual shipment to
other states or foreign countries if those plants comply with the requirements or regulations of
such state or foreign country;
(11) Inspect plants that any person desires to ship into another state or country when
such person has made an application to the department for such inspection. The inspection shall
determine the presence of plant pests to determine the acceptance of the plants into other states or
countries. The department may accept the inspections of laboratories authorized by the
department or field inspectors of the department;
(12) Certify plants or property to meet the requirements of specific quarantines imposed
on Nebraska or Nebraska plants. The quarantine certification requirements shall be set forth in
the rules and regulations;
(13) Assess and collect charges for inspections, services, or work performed in carrying
out subdivisions (10) through (12) of this section. Such charges shall not exceed the
actual cost of accomplishing such work. The department may for purposes of administering
subdivisions (10) through (12) of this section establish in rules and regulations such items
as charges, inspection requirements, standards, and issuance, renewal, or revocation of
certificates or permits necessitated by such subdivisions;
(14) Conduct continuing survey and detection programs on plant pests to monitor the
population or spread of plant pests;
(15) Issue, place on probation, suspend, or revoke licenses required by the act or deny
applications for such licenses pursuant to the act; and
(16) Issue orders imposing administrative fines or cease and desist orders pursuant to the
act.
2-1091.01. Licenses; when required; application; contents; licensee
duties; lapse of license. (1) A person shall not operate as a grower, a dealer, or a collector
without a valid license issued by the department. A person licensed as a grower shall not be
required to obtain a separate dealer's license.
On or after December 31, 1993, a person shall not operate as a broker without a
valid license issued by the department.
(2) Application for a license required by subsection (1) of this section shall be
made to the director on forms furnished by the department. Such application shall include the
full name and mailing address of the applicant, the names and addresses of any partners, limited
liability company members, or corporate officers, the name and address of the person authorized
by the applicant to receive notices and orders of the department as provided in the Plant
Protection and Plant Pest Act, whether the applicant is an individual, partnership, limited liability
company, corporation, or other legal entity, the location of the operation, and the signature of the
applicant. A person distributing greenhouse plants grown for indoor use, annual plants, biennial
plants, florist stock, sod, turf, onions, or potatoes, or seeds of any such plant, shall not be
required to obtain a license but may do so pursuant to section 2-10,105.
(3) Each applicant for a license shall furnish a signed written statement that such person
will acquire and distribute only nursery stock which has been distributed by a person who is duly
licensed pursuant to the act or approved by an authorizing agency within the state of origin
recognized by the department.
(4) Every licensee shall continually maintain a complete and accurate list with the
department of all sources from which nursery stock is obtained.
(5) Each licensee shall keep and make available for examination by the department for a
period of three years an accurate record of all transactions conducted in the ordinary course of
business. Records pertaining to such business shall at a minimum include the names of the
persons from which nursery stock was received, the receiving date, the amount received, and the
variety and place of origin of the nursery stock received. A broker's records shall also include the
names of the persons to which nursery stock was delivered, the delivery date, the amount
delivered, and the variety and place of origin of the nursery stock delivered.
(6) A license shall lapse automatically upon a change of ownership, and the subsequent
owner must obtain a new license. The license of a grower, dealer, or collector shall lapse
automatically upon a change of location, and such licensee must obtain a new license. A licensee
shall notify the department in writing at least thirty days prior to any change in ownership, name,
or address. A licensee shall notify the department in writing before there is a change of the name
or address of the person authorized to receive notices and orders of the department. When a
licensee permanently ceases operating, he or she shall return the license to the department.
2-1092. Grower; requirements; license; fee. All growers in the State
of Nebraska shall conform to the following requirements:
(1) Each grower shall apply for a grower's license, on forms furnished by the
department, prior to March 15 for the following fiscal year. The application shall include
the applicant's social security number. Each fiscal year shall begin on October 1;
(2) All grower's licenses shall expire on September 30 each year unless
previously revoked;
(3) Prior to license issuance, all applicants shall submit an inspection fee, not to exceed
twenty-five dollars per acre inspected, as set forth in the rules and regulations;
(4) Applications not received prior to April&nbp;15 and initial applications not received
prior to beginning distribution shall be considered delinquent and shall have an inspection fee of
all actual costs assessed to the person making the application, not to exceed thirty-five dollars per
acre inspected, fifty cents per mile traveled for the purpose of inspection, and twenty-five dollars
per hour for travel and inspection time, as set forth in the rules and regulations;
(5) A copy of the valid grower's license shall be posted in a conspicuous place at the
distribution location; and
(6) Each grower shall post sign markers which delineate sections of nursery stock. A
section shall be no larger than five acres.
2-1093. Growers; nursery inspections. All growers within the state
shall have their nursery inspected by the department at least once each year for compliance with
the Plant Protection and Plant Pest Act.
2-1094. Grower's license; issuance; distribution locations. Upon
inspection of a representative amount of nursery stock and the satisfaction of requirements
prescribed in sections 2-1091.01 and 2-1092, the department shall issue a grower's license,
with any applicable restrictions prescribed in section 2-1095, to the grower. Each grower
shall be allowed one distribution location per valid grower's license. Each additional distribution
location shall require a separate application, inspection, and license, as set forth in
section 2-1091.01, with fees assessed as set forth in section 2-1092.
2-1095. Grower; nursery stock; distribution; restrictions; treatment or
destruction of stock. (1) Following the inspection, the department shall provide a copy of
the plant inspection report to the grower specifying any area of the nursery from which nursery
stock cannot be distributed or any plants which may not be distributed as nursery stock. When
deemed necessary to maintain compliance with the purposes of the Plant Protection and Plant
Pest Act, the department shall require the grower to withdraw from distribution any variety or
amount of nursery stock. A reinspection may be conducted by the department at the grower's
request and cost. The department may also reinspect to determine compliance with the act. To
determine the cost of any reinspection, the department shall use rates as outlined in
subdivision (4) of section 2-1092. The grower shall comply with the
recommendations of the department as to the treatment or destruction of nursery stock.
(2) The department may require the treatment or destruction of any nursery stock that is
infested or infected with plant pests, nonviable, damaged, or desiccated to the point of not being
reasonably capable of growth.
(3) Any nursery stock on which a withdrawal-from-distribution order has been issued
shall be released for distribution only by authorized department employees or after written
permission has been obtained from the department. Each grower shall promptly report to the
department, in writing, the amount and type of plants treated or destroyed under requirements on
withdrawal-from-distribution orders. The department may withhold a grower's license until
conditions have been met by the grower as specified in the plant inspection report or any other
order issued by the department. A grower's license may be issued covering portions of the
nursery which are not infested or infected if the grower agrees to treat, destroy, or remove as
specified by the department those plants found to be infested or infected.
2-1096. Grower; nursery stock distribution; requirements. All
nursery stock distributed by any grower shall be only sound, healthy nursery stock that is
reasonably capable of growth, labeled correctly, free from injurious plant pests, and stored or
displayed under conditions which shall maintain its vigor as outlined in the rules and regulations.
2-1097. Dealer; requirements; license; fee. Every dealer shall
conform to the following requirements:
(1) Each dealer shall apply for a dealer's license, on forms furnished by the department,
prior to December 31 for the following calendar year;
(2) A dealer's license shall expire on December 31 each year unless previously
revoked;
(3) All applications shall be accompanied by a fee not to exceed one hundred dollars as
set forth in the rules and regulations and, if the applicant is an individual, shall include the
applicant's social security number;
(4) Applications not received prior to February 1 and initial applications not
received prior to beginning distribution shall be considered delinquent and shall have an
additional delinquent fee assessed of twenty percent per month of the total amount of the fee for
the license, not to exceed one hundred percent;
(5) A copy of the valid dealer's license shall be posted in a conspicuous place at the
distribution location; and
(6) Every dealer distributing nursery stock from more than one location shall secure a
dealer's license for each distribution location.
2-1098. Nursery stock distributed by dealer; inspection. The
department may inspect nursery stock being distributed by any dealer at any time for care,
viability, labeling, and the presence of plant pests.
2-1099. Dealer's license; issuance. If the applicant satisfies the
requirements of sections 2-1091.01 and 2-1097, the department shall issue a dealer's
license to the applicant.
2-10,100. Dealer; nursery stock; distribution; restrictions; treatment or
destruction of stock. If upon inspection nursery stock is found to be nonviable, mislabeled,
or infested or infected with plant pests, the department may specify any area of the distribution
location from which nursery stock cannot be distributed or any plants at the distribution location
which may not be distributed as nursery stock. The department may post signs pursuant to
subdivision (5) of section 2-1091 to specify any such area. A written or printed
withdrawal-from-distribution order shall be issued identifying any nursery stock which cannot be
distributed. A reinspection may be conducted by the department at the dealer's request and cost.
The department may also reinspect to determine compliance with the act. To determine the cost
of any reinspection, the department shall use rates as outlined in subdivision (4) of
section 2-1092. The dealer shall comply with the recommendations of the department as
to the treatment or destruction of nursery stock. Each dealer shall promptly report to the
department, in writing, the amount and type of plants treated or destroyed under requirements in
withdrawal-from-distribution orders. Nursery stock on which such orders are placed by the
department shall be released for distribution only by authorized department employees or after
written permission has been obtained from the department.
2-10,100.01. Broker; requirements; license; fee. Every broker
shall conform to the following requirements:
(1) On or before December 31, 1993, and prior to each December 31
thereafter, a broker shall apply for a broker's license for the following calendar year;
(2) A broker's license shall expire on December 31 each year unless previously
revoked;
(3) All applications shall be accompanied by a fee of fifty dollars until the director
determines the fee shall be increased. Such fee shall not exceed one hundred dollars. All fee
changes shall be set forth in the rules and regulations adopted and promulgated by the
department. If the applicant is an individual, the application shall include the applicant's social
security number; and
(4) The broker's license shall be made available to the department upon request.
2-10,100.02. Broker's license; issuance. If the applicant satisfies
the requirements of sections 2-1091.01 and 2-10,100.01, the department shall issue a
broker's license to the applicant.
2-10,101. Dealer or broker; nursery stock distribution;
requirements. All nursery stock distributed by any dealer or broker shall be only sound,
healthy nursery stock that is reasonably capable of growth, labeled correctly, free from injurious
plant pests, and stored or displayed under conditions which shall maintain its vigor as outlined in
rules and regulations.
2-10,102. Collectors; grower's license required. Collectors shall be
required to obtain a grower's license and shall be subject to all the requirements that apply to the
inspection of nursery stock. All collected nursery stock shall be labeled as such.
2-10,103. Licensee; duties. A licensee shall:
(1) Comply with the Plant Protection and Plant Pest Act and the rules and regulations:
(b) In the distribution of nursery stock including nursery stock that has been withdrawn
from distribution;
(c) Regarding treatment or destruction of nursery stock as required by a
withdrawal-from-distribution order;
(d) In maintaining the nursery stock in a manner accessible to the department; and
(e) In the payment of license fees;
(3) Not distribute nursery stock obtained from an unlicensed grower or dealer;
(4) Not allow the license to be used by any person other than the person to whom it was
issued; and
(5) Not interfere with the department in the performance of its duties.
2-10,103.01. Licensee; disciplinary actions; procedures. (1) A
licensee may be placed on probation requiring such person to comply with the conditions set out
in an order of probation issued by the director or be ordered to cease and desist from failing to
comply or be ordered to pay an administrative fine pursuant to section 2-10,103.02 after:
(b) The licensee is given written notice to comply and written notice of the right to a
hearing to show cause why the specified order should not be issued; and (c) The
director finds that issuing the specified order is appropriate based on the hearing record or the
available information if the hearing is waived by the licensee.
(b) The licensee is given written notice to comply and written notice of the right to a
hearing to show cause why the license should not be suspended; and (c) The
director finds that issuing an order suspending the license is appropriate based on the hearing
record or the available information if the hearing is waived by the licensee.
(b) The licensee receives written notice to comply and written notice of the right to a
hearing to show cause why the suspension should not be sustained. Within fifteen days after the
suspension, the licensee may request in writing a date for a hearing and the director shall
consider the interests of the licensee when the director establishes the date and time of the
hearing, except that no hearing shall be held sooner than is reasonable under the circumstances.
When a licensee does not request a hearing date within such fifteen-day period, the director shall
establish a hearing date and notify the licensee of the date and time of such hearing.
(b) The licensee is
given written notice to comply and written notice of the right to a hearing to show cause why the
license should not be revoked; and (c) The director finds that issuing an order
revoking the license is appropriate based on the hearing record or on the available information if
the hearing is waived by the licensee.
(6) The director may terminate a proceeding to suspend or revoke a license or subject a
licensee to an order of the director described in subsection (1) of this section at any time if
the reasons for such proceeding no longer exist. A license which has been suspended may be
reinstated, a person with a revoked license may be issued a new license, or a licensee may no
longer be subject to the director's order if the director determines that the conditions which
prompted the suspension, revocation, or order of the director no longer exist.
(7) Proceedings to suspend or revoke a license or subject a licensee to an order of the
director described in subsection (1) of this section shall not preclude the department from
pursuing other civil or criminal actions.
2-10,103.02. Administrative fine; collection; use. (1) Pursuant to
section 2-10,103.01, the director may issue an order imposing an administrative fine on a
licensee in an amount which shall not exceed five hundred dollars. In determining whether to
impose an administrative fine and, if a fine is imposed, the amount of the fine, the director shall
take into consideration (a) the seriousness of the violation, (b) the extent to which the licensee
derived financial gain as a result of his or her failure to comply, (c) the extent of intent,
willfulness, or negligence by the licensee in the violation, (d) the likelihood of the violation
reoccurring, (e) the history of the licensee's failure to comply, (f) the licensee's attempts to
prevent or limit his or her failure to comply, (g) the licensee's willingness to correct violations,
(h) the nature of the licensee's disclosure of violations, (i) the licensee's cooperation with
investigations of his or her failure to comply, and (j) any factors which may be established by the
rules and regulations.
(2) All money collected by the department as an administrative fine shall be remitted on
a monthly basis to the State Treasurer for credit to the permanent school fund.
(3) Any administrative fine imposed under the Plant Protection and Plant Pest Act and
unpaid shall constitute a debt to the State of Nebraska which may be collected by lien foreclosure
or sued for and recovered in any proper form of action in the name of the State of Nebraska in the
district court of the county in which the violator resides or owns property. The lien shall attach
to the real estate of the violator when notice of such lien is filed and indexed against the real
estate in the office of the register of deeds or county clerk in the county where the real estate is
located.
2-10,103.03. Cease and desist order; hearing. Whenever the
director has reason to believe that any person has violated any provision of the Plant Protection
and Plant Pest Act or any rule or regulation, an order may be entered requiring the person to
appear before the director to show cause why an order should not be entered requiring such
person to cease and desist from the violation charged. Such order shall set forth notice of such
hearing. Hearings shall be conducted as provided in section 2-10,103.04. After such
hearing, if the director finds such person to be in violation, he or she shall enter an order
requiring the person to cease and desist from the specific act, practice, or omission which
violated the act.
2-10,103.04. Notice or order; service; notice; contents; hearings;
procedure; new hearing. (1) Any notice or order provided for in the Plant Protection and
Plant Pest Act shall be personally served on the licensee or on the person authorized by the
licensee to receive notices and orders of the department or shall be sent by certified mail, return
receipt requested, to the last-known address of the licensee or the person authorized to receive
such notices and orders. A copy of the notice and the order shall be filed in the records of the
department.
(2) Any notice to comply provided for in the act shall set forth the acts or omissions
with which the licensee is charged.
(3) A notice of the licensee's right to a hearing provided for in the act shall set forth the
time and place of the hearing except as otherwise provided in subsection (3) of
section 2-10,103.01. A notice of the licensee's right to such hearing shall include notice
that the licensee's right to a hearing may be waived pursuant to subsection (5) of this
section. A notice of the licensee's right to a hearing to show cause why the license should not be
revoked shall include notice to the licensee that the license may be revoked or suspended, that the
licensee may be subject to an order of the director described in subsection (1) of
section 2-10,103.01, or that the license may be suspended and the licensee subject to such
an order if the director determines such action is more appropriate. A notice of the licensee's
right to a hearing to show cause why the license should not be suspended shall include notice to
the licensee that the license may be suspended or that the licensee may be subject to an order of
the director described in subsection (1) of section 2-10,103.01 if the director
determines such action is more appropriate.
(4) The hearings provided for in the act shall be conducted by the director at a time and
place he or she designates. The director shall make a final finding based upon the complete
hearing record and issue an order. If the director has suspended a license pursuant to
subsection (3) of section 2-10,103.01, the director shall sustain, modify, or rescind
the order. All hearings shall be in accordance with the Administrative Procedure Act.
(5) A licensee shall be deemed to waive the right to a hearing if such licensee does not
come to the hearing at the time and place set forth in the notice described in subsection (3)
of this section without requesting the director at least two days before the designated time to
change the time and place for the hearing, except that before an order of the director becomes
final, the director may designate a different time and place for the hearing if the licensee shows
the director that the licensee had a justifiable reason for not coming to the hearing and not timely
requesting a change in the time and place for such hearing. If the licensee waives the right to a
hearing, the director shall make a final finding based upon the available information and issue an
order. If the director has suspended a license pursuant to subsection (3) of
section 2-10,103.01, the director shall sustain, modify, or rescind the order.
(6) Any person aggrieved by the finding of the director shall have ten days from the
entry of the director's order to request a new hearing if such person can show that a mistake of
fact has been made which affected the director's determination. Any order of the director shall
become final upon the expiration of ten days after its entry if no request for a new hearing is
made.
2-10,104. Foreign distributor; reciprocity; department; reciprocal
agreements. (1) Any person residing outside the state and desiring to solicit orders or
distribute nursery stock in Nebraska may do so if:
(b) Such person complies with the Plant Protection and Plant Pest Act and the rules and
regulations on all nursery stock distributed in Nebraska.
2-10,105. Optional inspections; grower's license; optional issuance.
(1) Optional inspections of plants may be conducted by the department upon request by any
persons desiring such inspection. A fee as set forth in subdivision (4) of
section 2-1092 shall be charged for such an inspection.
(2) Any person who desires a grower's license for any greenhouse plants grown for
indoor use, annual plants, biennial plants, florist stock, cut flowers, sod, turf, onions, or potatoes,
or seeds of any such plant, may apply for such license to the department. The inspection of such
plants shall conform to the same requirements that apply to the inspection of nursery stock as set
forth in sections 2-1091.01 to 2-1096. For persons who grow or distribute both nursery
stock and greenhouse plants grown for indoor use, annual plants, biennial plants, florist stock, cut
flowers, sod, turf, onions, or potatoes, or seeds of any such plant, one license shall be issued if
the annual inspection of such plants is conducted concurrently with the nursery stock inspection
and the other requirements of the Plant Protection and Plant Pest Act are met. If a reinspection
trip is required, the applicant shall be assessed a reinspection fee as outlined in
subdivision (4) of section 2-1092.
2-10,106. Importation and distribution; labeling requirements;
exception; department; powers. (1) It shall be unlawful for any person, including any carrier
transporting nursery stock, to bring into or cause to be brought into Nebraska any nursery stock
unless such shipment is plainly and legibly marked with a label showing the name and address of
the consignor and consignee, the nature and quantity of the contents, the place of origin, and the
license or its equivalent issued by the recognized authorizing agency stating that the nursery from
which the nursery stock originates has been inspected.
(2) It shall be unlawful for any person to distribute in Nebraska nursery stock for the
purpose of resale in Nebraska without meeting the labeling criteria stated in this section.
(3) The requirements of this section shall not apply to nursery stock distributed to the
final consumer at a distribution location where a valid grower's or dealer's license has been
conspicuously posted.
(4) The department may cause to be held for inspection any plants, regardless of proper
labeling according to the Plant Protection and Plant Pest Act, if there is reason to believe they
are infested or infected with plant pests. Such plants shall be held only for a period of time
reasonable for proper inspection and any treatment deemed necessary by the department. The
department shall not be held responsible for costs incurred by treatment or delay.
(5) In carrying out this section, the department may intercept or detain any person or
property including vehicles or vessels reasonably believed to be carrying any plants or any other
articles capable of carrying plant pests. The department may hold for treatment, destroy, or
otherwise dispose of any plants, if found infested or infected with plant pests, at the owner's cost.
2-10,107. Nuisance plants; department; powers. Any person
owning or controlling property shall keep such property free from all species of plants declared
by the department to be nuisance plants. If the department determines that any species or variety
of plant is a nuisance plant and that such plant should be eradicated in order to safeguard the
agricultural interests of the state, the department shall give public notice of proposed eradication
by publication in one or more newspapers of general circulation throughout the area over which
such nuisance plant exists, designating the species or variety in question, the proposed
eradication area, and the reasons for the eradication. Such notice shall designate a place and time
for a public hearing at which all interested parties may be heard. After such hearing has been
held, the department may cause to be served by first-class mail individual notices upon the owner
of record of such land at that person's last-known address stating (1) that the species or variety of
plant is a nuisance plant and (2) that the department is authorized to destroy or order the
destruction of such plant. It shall be the duty of every person affected by the notice to use
measures of arrest and control required of such person by the instructions of the department.
2-10,108. Plant pests; department; powers. (1) Whenever the
department finds that there exists, in any other state, territory, country, or part thereof, any plant
pests detrimental to the agricultural interests of the state and that the control, eradication,
retarding, or prevention of such pests is necessary to protect the plant industry of the state, the
department may impose and enforce a quarantine prohibiting the transportation into, within, or
through Nebraska of such pests. Quarantine enforcement shall apply to any plants or any other
property capable of carrying such plant pests regardless of whether the plants are distributed by a
person holding a valid license or its equivalent issued by an authorizing agency within the state
of origin recognized by the department. Nursery stock and all other plants shall be subject to any
quarantine measures deemed necessary by the department.
(2) When it has been determined that an area of the state is infected or infested with
plant pests which may be detrimental to the agricultural interests of the state, such area may be
quarantined by the department. Under such quarantine the department may restrict or prevent the
movement or transportation of any plants or any other property capable of carrying such plant
pests originating in or having been maintained in any area infested or infected with such plant
pests. Public notice of any quarantine shall be given by the department by publication in one or
more newspapers in circulation within the area of the state affected by such order.
(3) Any plants or other property moved or transported in violation of a quarantine
imposed pursuant to this section may be seized, treated, destroyed, or returned to the state of
origin without compensation by the department.
2-10,109. Withdrawal-from-distribution order; issuance. If the
department finds that plants are distributed in violation of the Plant Protection and Plant Pest
Act, the department may issue a written or printed withdrawal-from-distribution order to the
person in charge of such plants for the protection of the public health, safety, or welfare and may
enforce such order. Such an order shall specify the nature of each violation and the precise
action required to bring the plants into compliance with the applicable provisions of the act.
Such an order shall advise the person that he or she may request an immediate hearing before the
department on the specified violation.
The department may issue a withdrawal-from-distribution order on plants that are perishable,
even if the result of such order will bring about the involuntary disposal of such items, when, in
the opinion of the person issuing such order, no alternative course of action would sufficiently
protect the public health, safety, or welfare under the circumstances.
2-10,110. Implementation or enforcement agreements authorized.
The department may cooperate and enter into agreements with the United States Department of
Agriculture or any other federal or state agency in the implementation or enforcement of the
Plant Protection and Plant Pest Act and the 1944 Organic Act of Congress, as amended, on
October 1, 1988.
2-10,111. Costs; owner's liability; when. All costs associated with
a withdrawal-from-distribution order or the quarantine, treatment, or destruction of plants shall
be incurred by the owner of such plants. The department shall not be liable for any actual or
incidental costs incurred by any person due to such departmental actions. The department shall
be reimbursed by the owner of such plants for the actual expenses incurred by it in carrying out a
withdrawal-from-distribution order or the quarantine, treatment, or destruction of any plants.
2-10,112. Excess fees; disposition. If the department determines
that any fee has been erroneously collected or computed, the department shall credit the excess
amount collected or paid to any fees then due and owing from the person under the Plant
Protection and Plant Pest Act. Any remaining balance may be refunded to the person by whom it
was paid.
2-10,113. Foreign nursery stock; foreign soil or plant pests for research
or educational purposes; biological control agent or genetically engineered plant organism;
permit requirements; trade secrets; confidentiality. (1) Any person receiving any shipment of
nursery stock from any foreign country that has not been inspected and released by the United
States Department of Agriculture at the port of entry shall notify the department of the arrival of
such shipment, its contents, and the name of the consignor. Such person shall hold the shipment
unopened until inspected or released by the department.
(2) No person shall import or cause to be brought into Nebraska any soils or plant pests
or distribute within the state any nonindigenous plant pests to be used in the open environment
for research purposes or other educational uses without permission from the department.
(3) No person shall import or cause to be brought into Nebraska or distribute within the
state any nonindigenous biological control agent or genetically engineered plant organism to be
used in the open environment without a permit as set forth in rules and regulations. Such rules
and regulations may provide for reasonable exemptions from permit requirements. A permit
shall not be required under this section if a permit has been issued under the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., or any
regulations adopted and promulgated pursuant to such act.
An application for a permit shall include information regarding where the biological control
agent or genetically engineered plant organism will be released and any other information
required by the department. An application for a permit to import or distribute an arthropod to be
used as a biological control agent shall be accompanied by a voucher specimen. Permits may be
issued only after the department determines that the proposed shipment or use will not create
sufficient hazard to warrant the refusal of a permit. Sufficient hazard shall include, but not be
limited to, a substantial hazard to the environment or to plant or animal life not intended to be
affected by the agent or organism. The department may rely upon the findings of interested
federal agencies or any experts that the department may deem appropriate in making a
determination about the threat posed by such agents or organisms. The department may also
request confidential business information.
(4) An applicant submitting information required by this section may mark clearly
portions of data which in his or her opinion are trade secrets and submit the marked material
separately from other material required to be submitted under this section. The department shall
keep such material confidential and in a manner that makes it not accessible to anyone who does
not need to have access to it in order to adequately protect the public health, safety, or welfare.
2-10,114. Agents or employees; liability of principal. In construing
and enforcing the Plant Protection and Plant Pest Act, omission or failure of any individual
acting for or employed by any other person or other principal within the scope of his or her
employment or office shall in every case be deemed the act, omission, or failure of such person
or other principal as well as that of the individual.
2-10,115. Violations; penalties; appeal of department order; procedure.
(1) Any person shall be guilty of a Class IV misdemeanor for the first violation and a Class
II misdemeanor for any subsequent violation of the same nature if that person:
(b) Receives nursery stock for further distribution from any person who has not been
duly licensed or approved under the act;
(c) Uses any license issued by the department after it has been revoked or has expired,
while the licensee was under suspension, or for purposes other than those authorized by the act;
(d) Offers any hindrance or resistance to the department in the carrying out of the act,
including, but not limited to, denying or concealing information or denying access to any
property relevant to the proper enforcement of the act;
(e) Allows any plant declared a nuisance plant as outlined in section 2-10,107 to
exist on such person's property or distributes any such plants or materials capable of harboring
plant pests;
(f) Acts as a grower, dealer, or broker and:
(ii) Distributes any quarantined nursery stock or nursery stock for which a
withdrawal-from-distribution order has been issued;
(iii) Distributes nursery stock for the purpose of further distribution to any person in
Nebraska not licensed as a grower or dealer; or
(iv) Fails to pay all fees required by the act and the rules and regulations;
(h) Distributes plants which have been quarantined or are in a quarantined area;
(i) Violates any item set forth as unlawful in section 2-10,106;
(j) Distributes biological control agents or genetically engineered plant organisms
without a permit if a permit is required by the act;
(k) Fails to keep and make available for examination by the department all books,
papers, and other information necessary for the enforcement of the act;
(l) Violates any order of the director after such order has become final or upon
termination of any review proceeding when the order has been sustained by a court of law; or
(m) Violates any other provision of the Plant Protection and Plant Pest Act.
(3) It shall be the duty of the Attorney General or the county attorney of the county in
which any violation occurs or is about to occur, when notified by the department of a violation or
threatened violation, to pursue appropriate proceedings without delay pursuant to this section,
subdivision (6) of section 2-1091, or subsection (3) of
section 2-10,103.02 or any combination thereof.
(4) Any person adversely affected by an order made by the department pursuant to the
Plant Protection and Plant Pest Act may appeal such order, and the appeal shall be in accordance
with the Administrative Procedure Act.
2-10,115.01. Political subdivision; ordinance or resolution;
restrictions. A political subdivision shall not enact an ordinance or resolution which is in
conflict with the Plant Protection and Plant Pest Act.
2-10,116. Rules and regulations. The department shall have
authority to adopt and promulgate such rules and regulations as are necessary to the effective
discharge of its duties under the Plant Protection and Plant Pest Act. The rules and regulations
may include, but shall not be limited to, provisions governing:
(1) The issuance and revocation of licenses as authorized by the Plant Protection and
Plant Pest Act;
(2) The assessment and collection of license, inspection, reinspection, and delinquent
fees;
(3) The withdrawal from distribution of nursery stock;
(4) The care, viability, and standards for nursery stock;
(5) The labeling and shipment of nursery stock;
(6) The issuance and release of plant pest quarantines and withdrawal-from-distribution
orders;
(7) The establishment of a restricted plant pest list;
(8) The preparation, maintenance, handling, and filing of reports by persons subject to
the act;
(9) The adoption of the American Association of Nurserymen's American Standard for
Nursery Stock insofar as it does not conflict with any provision of the act; and
(10) Factors to be considered when the director issues an order imposing an
administrative fine.
2-10,116.01. Fees; when due; penalty fees. All inspection fees,
reinspection fees, and delinquent fees shall be due and payable upon the department's notification
of the licensee of the amount of such fees due. The department may impose additional penalty
fees after the fees are more than one month late. The penalty fees shall not exceed twenty
percent of the fees due for each month such fees are late.
2-10,117. Plant Protection and Plant Pest Cash Fund; created; use;
investment. All money received from any source pursuant to the Plant Protection and Plant
Pest Act shall be remitted by the department to the State Treasurer and by the State Treasurer
credited to the Plant Protection and Plant Pest Cash Fund which is hereby created. The fund
shall be used by the department to aid in defraying the expenses of administering the act. Any
money in the fund available for investment shall be invested by the state investment officer
pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
(a) In the care of nursery stock;
(2) Comply with any order of the director issued pursuant to the act;
(a) The director determines the licensee has not complied with
section 2-10,103;
(2) A license may be suspended after:
(a) The director determines the licensee has not complied with
section 2-10,103;
(3) A license may be immediately suspended and the director may order the licensee's
operation to cease prior to hearing when:
(a) The director determines an immediate danger to the public health, safety, or welfare
exists in the licensee's operation; and
(4) A license may be revoked after:
(a) The director determines the licensee has committed serious, repeated, or multiple
violations of any of the requirements of section 2-10,103;
(5) Any licensee whose license has been suspended shall cease operations until the
license is reinstated. Any licensee whose license is revoked shall cease operating until a new
license is issued.
(a) Such person is duly licensed under the nursery laws of the state where the nursery
stock originates and the laws of that state are essentially equivalent to the laws of Nebraska as
determined by the department; and
(2) The department may cooperate with and enter into reciprocal agreements with other
states regarding licensing and movement of nursery stock. Reciprocal agreements with other
states shall not prevent the department from prohibiting the distribution in Nebraska of nursery
stock which fails to meet the minimum criteria for nursery stock of Nebraska-licensed growers,
dealers, or both.
(a) Distributes nursery stock and has not been duly licensed under the Plant Protection
and Plant Pest Act;
(2) Any lot or shipment of plants not in compliance with the Plant Protection and Plant
Pest Act, the rules and regulations, or both shall be subject to seizure on complaint of the
department to a court of competent jurisdiction in the county in which such plants are located. If
the court finds the plants to be in violation of the act, the rules and regulations, or both and orders
the condemnation of the plants, such plants shall be disposed of in any manner deemed necessary
by the department. In no instance shall the disposition of the plants be ordered by the court
without first giving the claimant an opportunity to apply to the court for release of such plants or
for permission to treat or relabel the plants to bring such plants into compliance with the act, the
rules and regulations, or both.
(i) Fails to comply with provisions for treatment or destruction of nursery stock as
required by withdrawal-from-distribution orders;
(g) Distributes nursery stock which is not sound, healthy, reasonably capable of growth,
labeled correctly, and free from injurious plant pests;