Bill Text: CA AB443 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Apple pests: pest and disease prevention.
Spectrum: Bipartisan Bill
Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB443 Detail]
Download: California-2009-AB443-Amended.html
Bill Title: Apple pests: pest and disease prevention.
Spectrum: Bipartisan Bill
Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB443 Detail]
Download: California-2009-AB443-Amended.html
BILL NUMBER: AB 443 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 17, 2009
AMENDED IN SENATE JUNE 17, 2009
AMENDED IN ASSEMBLY APRIL 20, 2009
INTRODUCED BY Assembly Members Galgiani and Tom Berryhill
FEBRUARY 24, 2009
An act to amend Sections 75507 and 75595.5 of, and to add Chapter
14 (commencing with Section 6300) to Part 1 of Division 4 of, the
Food and Agricultural Code, relating to apple pests.
LEGISLATIVE COUNSEL'S DIGEST
AB 443, as amended, Galgiani. Apple pests: pest and disease
prevention.
Existing law provides that there is in state government the
California Apple Commission, comprised of apple handlers and
producers, which may recommend to the Secretary of Food and
Agriculture maturity standards, enforce laws related to apple
production, and promote the sale of apples.
This bill, the California Apple Pest and Disease Prevention Act of
2009 (the act), would provide that no person may handle apples in
this state to which certain adopted regulations apply, except as
specified. The bill would also provide that it is a crime to handle
apples from certain areas or to fail to meet
specified reporting duties or pay required assessments in violation
of these provisions. Because this bill would create new crimes, this
bill would impose a state-mandated local program.
This bill would require the secretary to appoint a committee of 11
individuals from nominations received from the California Apple
Commission to administer these provisions. The bill would provide
that the duties of the committee, with concurrence by the secretary,
include making recommendations to the secretary of designated pests
and diseases not already present or identified in California as of
January 1, 2007, and of the adoption of regulations establishing
terms and conditions for handling apples to prevent the introduction
and spread of designated pests or diseases. The bill would also
require the secretary to establish a panel to advise the committee
and the secretary by providing information regarding the biology and
known control methods for the pests and diseases under consideration
by the committee.
This bill would provide that the Department of Food and
Agriculture may investigate complaints referred by the commission and
levy civil penalties against persons who violate the act not
exceeding $5,000, as specified. The bill would require the secretary
to use all funds received under the act for purposes of the act. The
bill would make other conforming changes.
Existing law authorizes the commission to establish an annual
assessment rate to defray the operating costs of the commission.
This bill would instead require the commission to be responsible
for funding the act and authorize the commission to establish an
annual assessment rate to defray the costs of the act.
The bill would instead require the commission to be responsible
for all costs associated with the act and require the commission to
establish an annual assessment rate to defray the costs of the act if
the commission's current assessment is deemed not sufficient to
cover the costs of the commission or the department associated with
the act.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 14 (commencing with Section 6300) is added to
Part 1 of Division 4 of the Food and Agricultural Code, to read:
CHAPTER 14. CALIFORNIA APPLE PEST AND DISEASE PREVENTION ACT
OF 2009
Article 1. Declarations and Legislative Intent
6300. This chapter shall be known, and may be cited, as the
California Apple Pest and Disease Prevention Act of 2009.
6300.01. The production and handling of apples constitute an
important industry of this state that provides substantial and
necessary revenues for the state and employment for its citizens. The
California apple industry has the potential to be one of the leading
segments of the state's agricultural industry. To realize this
potential, there is a need to ensure that the integrity and healthful
properties of apples produced, either by conventional or organic
practices, and handled in this state, are preserved and protected
from pest infestation and disease.
6300.02. Destructive pests and diseases pose a significant and
imminent threat to California agriculture, including its important
apple industry, and serious damage could occur if measures are not
taken to mitigate this threat. If the threat is not mitigated,
progress made by the apple industry in the adoption of integrated
pest management and sustainable farming practices may be adversely
affected, the use of pesticides may increase, and the quality of
California's apples may be harmed by these destructive pests and
diseases.
6300.03. The program established pursuant to this chapter is
essential to ensure that apples produced or handled in the state are
pest and disease free so that consumer confidence in California's
apples is maintained throughout the nation and the world.
6300.04. This chapter is declared to be enacted in the public
interest and in the exercise of the police power of the state for the
purpose of protecting the health, peace, safety, and general welfare
of the people of this state.
Article 2. Definitions
6300.10. Unless the context otherwise requires, the definitions
in this article govern the construction of this chapter.
6300.11. "Apple" means any variety of apple, wherever grown, and
includes fresh and processed apples.
6300.12. "Chapter" means any provision of this act or regulations
adopted pursuant thereto.
6300.13. "Commission" means the California Apple Commission
created pursuant to Chapter 13.5 (commencing with Section 75501) of
Part 2 of Division 22.
6300.14. "Commissioner" means a county agricultural commissioner.
6300.15. "Committee" means the committee established in Section
6300.30.
6300.16. "Department" means the Department of Food and
Agriculture.
6300.17. "Designated pests and diseases" means pests and diseases
presenting a threat to the California apple industry, public health
and safety, or the environment that are not federally regulated pests
or diseases.
6300.18. "Handler or handling" means any person engaged in the
business of receiving, purchasing, importing, transporting, shipping,
grading, packing, storing, selling, marketing, distributing,
processing, or changing the form of apples in any manner for
commercial purposes.
6300.19. "Districts" are defined as follows:
(a) District 1 consists of the Counties of Imperial, Kern, Los
Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis
Obispo, Santa Barbara, and Ventura.
(b) District 2 consists of the Counties of Alpine, Fresno, Inyo,
Kings, Madera, Mariposa, Merced, Mono, Monterey, San Benito, Tulare,
and Tuolumne.
(c) District 3 consists of the Counties of Alameda, Calaveras,
Contra Costa, El Dorado, Sacramento, San Francisco, San Joaquin, San
Mateo, Santa Clara, Santa Cruz, Sierra, Solano, Stanislaus, and Yolo.
(d) District 4 consists of the Counties of Amador, Butte, Colusa,
Del Norte, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc,
Napa, Nevada, Placer, Plumas, Shasta, Siskiyou, Sonoma, Sutter,
Tehama, Trinity, and Yuba.
6300.20. "Panel" means the Scientific Advisory Panel created
pursuant to Article 5 (commencing with Section 6300.50).
6300.21. "Person" means any individual, partnership, limited
liability company, limited liability partnership, corporation, firm,
company, or any other entity doing business in California.
6300.22. "Secretary" means the Secretary of Food and Agriculture.
Article 3. Administration
6300.30. The secretary shall appoint a committee of 11
individuals, from nominations received from the commission, to
administer this chapter, except as otherwise provided. The committee
shall consist of one California licensed agricultural pest control
adviser, four producers, and four handlers, one of which shall be a
processor. One producer and one handler shall be nominated from each
district. The secretary shall also appoint one representative from
the University of California and one representative from the public.
If the secretary finds any of those persons nominated to be
unacceptable, he or she shall notify the commission and request that
another person be nominated. The commission may appoint any other ex
officio member deemed reasonably necessary to implement this chapter.
6300.31. (a) The committee shall meet periodically for the
purposes specified in Article 4 (commencing with Section 6300.40).
(b) As a committee of the commission, the committee shall conduct
itself according to the bylaws and procedures of the commission or
any successor entity, except that the chair of the committee shall be
nominated by the commission and appointed by the secretary.
(c) Sections 75532, 75535, 75543, and 75546 shall apply to the
committee.
6300.32. (a) Upon receipt of a recommendation from the committee
for the adoption of regulations describing designated pests and
diseases, or establishing terms and conditions for handling produce,
the secretary shall do one of the following within 30 working days:
(1) Initiate the rulemaking process to adopt the recommendation of
the committee.
(2) Decline to initiate the rulemaking process and provide the
committee with a written statement of reasons for the decision.
(3) Request that the committee provide additional information
regarding the recommended regulations.
(b) All regulations adopted pursuant to this chapter shall be
adopted in compliance with the Administrative Procedure Act (Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code), and may be subsequently repealed or
amended as provided for in that act.
(c) In adopting regulations, the secretary shall consult with
appropriate federal and state government agencies regarding
applicable statutes, regulations, and scientific findings. Any
recommendation which includes a federal quarantine of a significant
pest or disease shall not be considered by the secretary.
6300.33. No member or agent of the committee or the commission
shall be personally liable for the actions of the committee, the
commission, or the department. No member or agent of the committee or
the commission is responsible individually in any way to any other
person for errors in judgment, mistakes, or other acts, by either
commission or omission, as a principal, agent, or employee except for
his or her own individual acts of dishonesty or crime. No member or
agent of the committee or the commission is responsible individually
for an act or omission of any other member or agent of the committee,
the commission, or the department. Liability is several and not
joint, and no member or agent of the committee or the commission is
liable for the default of any other member or agent of the committee,
the commission, or the department.
Article 4. Duties
6300.40. The duties of the committee, with concurrence by the
secretary, shall include the following:
(a) Recommend to the secretary designated pests and diseases not
already present or identified in California as of January 1, 2007
, and designated areas to be defined by regulation
.
(b) (1) Recommend to the secretary the adoption of regulations
establishing terms and conditions for handling apples to prevent the
introduction and spread of designated pests and diseases.
(2) In determining whether to recommend to the secretary adoption
of regulations, the committee shall consider available scientific
information and other relevant factors, including, but not limited
to, whether it is reasonable to find that designated pests or
diseases will be introduced into the state and that the designated
pests or diseases will cause harm if introduced into the state.
(c) Periodically review the efficacy of the terms and conditions
using the most current industry standards and generally accepted
scientific principles.
(d) Provide recommendations to the secretary on all matters
pertaining to this chapter unless specific authority is reserved to
the commission.
6300.41. Recommendations by the committee to the secretary and
regulations adopted by the secretary shall be designed to accomplish
all of the following:
(a) Maintain the integrity of apples produced, whether by
conventional or organic practices, and handled in this state.
(b) Prevent the introduction and spread of designated pests and
diseases not already present or identified in California as of
January 1, 2007.
(c) Ensure that all persons handling apples comply with all terms
and conditions imposed pursuant to this chapter in order to prevent
the introduction or spread of designated pests and diseases.
(d) Ensure the health and safety of California producers,
consumers, and the environment.
6300.42. No provision in this chapter may be construed as
authorizing the secretary or the committee to prevent or ban the
importation of apples into California.
Article 5. Scientific Advisory Panel
6300.50. (a) The secretary shall establish a panel of not less
than two and not more than five members, each of whom is recognized
as an expert on the apple pests and diseases under consideration by
the committee and is not already a member of the committee. The
secretary may change the membership of the panel as needed to obtain
the best available scientific advice with respect to the pests and
diseases under consideration by the committee.
(b) The panel shall advise the committee and the secretary by
providing information regarding biology, life cycle, range,
reproduction, and known control methods for the pests and diseases
under consideration by the committee pursuant to paragraph (2) of
subdivision (c) (b) of Section 6300.40.
Article 6. Handling of Apples from Designated Areas
6300.60. No person may handle apples in this state to which
regulations adopted pursuant to Section 6300.32 apply, except in
compliance with this chapter.
Article 7. Violations
6300.70. (a) It is unlawful for any person to do any of the
following acts:
(1) Handle apples from designated areas in
this state in violation of this chapter.
(2) Render or furnish a false report, statement, or record
required pursuant to this chapter.
(3) Fail to obtain, render, or furnish a report, statement, or
record required pursuant to this chapter.
(4) Secrete, destroy, or falsely alter records required to be
maintained pursuant to this chapter.
(5) Fail or refuse to pay any assessments levied pursuant to this
chapter.
(b) Notwithstanding subdivision (a), a person engaged in the
retail sale of apples who, in good faith, sells, offers for sale,
labels, or advertises any apples in California by relying on the
representations of a producer or handler that the apples are in
compliance with this chapter shall not be found in violation unless
he or she knew or should have known that the sale of apples was in
violation of this chapter.
6300.71. All remedies provided by this chapter are cumulative and
not exclusive of any other remedy.
Article 8. Investigations and Actions by the Department
6300.80. The department may investigate complaints referred by
the commission regarding alleged violations of this chapter. The
department may enter and inspect the premises of any person subject
to this chapter for the purpose of inspecting apples governed by this
chapter. If the department determines that a violation has occurred,
it may take action authorized by this chapter including, but not
limited to, seizing and destroying apples. Apples may not be
destroyed by the department without notice to the person whose apples
were seized and an informal hearing before the secretary pursuant to
procedures adopted by the department.
6300.81. The department may commence civil action and use all
remedies provided in law or equity for obtaining a writ of
attachment, specific performance, or injunctive relief regarding
violations of this chapter.
6300.82. (a) The department may levy a civil penalty against any
person who violates this chapter in an amount not exceeding five
thousand dollars ($5,000) for each violation. The amount of the
penalty assessed for each violation shall be based upon the nature of
the violation, the seriousness of the effect of the violation upon
the effectuation of the purposes and provisions of this chapter, and
the impact of the penalty on the violator, including the deterrent
effect on future violations.
(b) Upon a finding that a violation was unintentional, the
department may levy a civil penalty of not more than two thousand
five hundred dollars ($2,500) for each violation.
(c) For a first offense, and upon a finding that the violation is
minor and unintentional, in lieu of a civil penalty as described in
subdivisions (a) and (b), the department may issue a notice of
violation.
(d) A person against whom a civil penalty is levied shall be
afforded an opportunity for a hearing before the secretary, upon a
request made within 30 days after the date of issuance of the notice
of penalty. At the hearing, the person, the person's representative,
or both, shall be given the right to present evidence. If no hearing
is requested, the civil penalty shall constitute a final and
nonreviewable order.
(e) If a hearing is held, review of the decision of the secretary
may be sought by the person against whom the civil penalty is levied
within 30 days of the date of the final order of the secretary
pursuant to Section 1094.5 of the Code of Civil Procedure.
(f) A civil penalty levied by the department pursuant to this
section may be recovered in a civil action brought in the name of the
state.
6300.83. (a) The department shall be entitled to receive
reimbursement for any reasonable attorneys' fees and other actual
related costs, including, but not limited to, investigative costs,
involved in enforcement of this chapter.
(b) The secretary shall use all funds received pursuant to this
chapter for the purposes of this chapter.
SEC. 2. Section 75507 of the Food and Agricultural Code is amended
to read:
75507. A commission form of administration created by this
chapter is designed to deal with the broad fields of advertising,
promotion, marketing research, and production research of apples, and
any other activity authorized in this chapter and in Chapter 14
(commencing with Section 6300) of Part 1 of Division 4.
SEC. 3. Section 75595.5 of the Food and Agricultural Code is
amended to read:
75595.5. The commission shall be responsible for funding the
California Apple Pest and Disease Prevention Act of 2009 (Chapter 14
(commencing with Section 6300) of Part 1 of Division 4), including
any administrative costs incurred by the department associated with
activities created by this chapter, and may establish an annual
assessment rate to defray the costs of that act.
75595.5. (a) The commission shall be responsible for all costs
associated with the California Apple Pest and Disease Prevention Act
of 2009 (Chapter 14 (commencing with Section 6300) of Part 1 of
Division 4), including any administrative, regulatory, and
enforcement costs incurred by the department.
(b) If the assessment, established pursuant to Article 6
(commencing with Section 75630), is deemed not sufficient to cover
the costs of the commission or the department associated with the
California Apple Pest and Disease Prevention Act of 2009, the
commission shall establish an annual assessment rate to defray the
costs of that act.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
