Agr 2500

CHAPTER Agr 2500 NURSERY AND NURSERY STOCK

Statutory Authority: RSA 433:22

PART Agr 2501 NEW HAMPSHIRE ADMINISTRATIVE NURSERY REQUIREMENTS

Agr 2501.01 Statement of Purpose. The division of plant industry of the New Hampshire department of agriculture, markets and food is charged with the function of nursery stock inspection and regulation under the immediate supervision of the state entomologist and commissioner of agriculture. The purpose of these rules is to clarify the procedures and methods used for licensure, compliance agreements, and issuance of export certificates, and used by inspectors of the division of plant industry in dealing with infections, diseases, and insect pests of nursery stock.

Source. #5359, eff 3-17-92; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.02 Definitions. In addition to the definitions in RSA 433:21, the following shall apply:

(a) “Audit” means an inspection by the inspectors authorized by the department to verify compliance with the terms conditioned in a compliance agreement;

(b) “Best management practices” means processes and actions based on the best available science that provide the most cost-effective and efficacious way to address an issue, such as preventing or reducing pest and pathogen problems;

(d) "Certificate of origin" means a document authorized or prepared by a duly authorized federal or state regulatory official that affirms, declares, or verifies that an article, nursery stock, plant, product, shipment, or any other officially regulated article originated from the location as stated;

(e) “Compliance agreement” means any written agreement between a person and the department to achieve compliance with any set of requirements being enforced by the department;

(f) “Critical control point” means a step in the nursery production cycle, based on risk analysis, where best management practices could be used to reduce or eliminate pest risk;

(g) “Department” means the New Hampshire department of agriculture, markets and food;

(h) “Director” means the state entomologist, qualified by scientific training and practical experience, directly answerable to the commissioner, in charge of and responsible for the activities of the division of plant industry;

(i) "Disposal" means disposed of in an appropriate manner that will not allow the pest to survive or spread. Methods include, but are not limited to, encapsulating plants in plastic bags and disposing of the plant material through trash pickup, open burning, incineration, or burial of infested nursery stock;

(j) “Emergency” means any situation in which the department has declared a public nuisance or when in the opinion of the department a plant pest, pathogen, noxious weed, or arthropod endangers or threatens the horticultural or agricultural interests of the state;

(k) "Federal phytosanitary certificate" means a document prepared by a duly authorized federal or state regulatory official that affirms, declares, or verifies that nursery stock, plant, product, shipment, or any other officially regulated article meets the phytosanitary requirements of the import country;

(l) "Invasive species" means all plant, insect and fungal species that any person or persons are prohibited from collecting, transporting, selling, distributing, propagating, or transplanting, including all of their cultivars and varieties as prohibited under RSA 430:53, III;

(m) "Landscaper" means any person involved in the practice of buying, transporting, planting, cultivating, or selling nursery stock for landscape purposes;

(n) "License" means an authorization from the director to sell plant stock;

(o) "Nursery" means any location where plants with roots are propagated, grown, stored, or sold. These include, but are not limited to, nurseries, garden centers, greenhouses, landscape facilities, florists, roadside dealers, supermarkets, and stores;

(p) "Nurseryman" means any person who owns, leases, manages, or is in charge of a nursery for the purpose of selling or offering nursery stock for sale;

(q) "Nursery stock" means any woody or herbaceous plant material being offered for sale. Woody plant material includes, but is not limited to: ornamental and fruiting trees, shrubs, vines, and all viable parts of these plants; and any other plant or plant part designated by the commissioner. Herbaceous plant material includes, but is not limited to: annuals, perennials, bulbs, tubers, root stock, or any other type of plant or plant part designated by the commissioner. Nursery stock does not include cut Christmas trees, wreaths, seeds, dried herbs, vegetables, cut flowers, or such plant products;

(r) "Person" means any individual, governmental entity, firm, partnership, corporation, company, society, association, or any organized group of persons whether incorporated or not, and every officer, agent, or employee thereof;

(s) "Plant dealer" means any person, firm, partnership, association, or corporation not a grower or an original producer of nursery stock in New Hampshire who buys, acquires, or receives on consignment nursery stock for the purpose of re-selling, transporting, or otherwise disposing of the stock;

(t) "Quarantine tags, labels, and certificates" means documents bearing a statement addressing specific insects, arthropod pests and/or plant diseases;

(u) "Sell or offer for sale" means to offer for sale, expose for sale, possess for sale, exchange, barter, or trade. All entities that engage in such conduct “sell or offer for sale”, including but not limited to nurseries, wood-using industries, persons, or landscapers;

(v) "State exterior quarantine" means a quarantine regulation adopted by a noninfested state to prevent or delay the introduction of a pest into the state;

(w) "State interior quarantine" means a quarantine regulation adopted against a pest to prevent spread of the pest within state borders; and

(x) “State phytosanitary certificate” means a document prepared by a duly authorized state regulatory official that affirms, declares, or verifies that nursery stock, plant, product, shipment, or any other officially regulated article meets phytosanitary requirements of the state or any US territory where the shipment is being sent.

Source. #5359, eff 3-17-92; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.03 Licensing.

(a) The nurseryman, plant dealer, or landscaper shall acquire and further distribute only nursery stock obtained from a certified or licensed grower or dealer, or an entity approved by the authorizing agency within the state of origin for the sale of plants.

(b) Any nurseryman, plant dealer, or landscaper that temporarily or permanently retains nursery stock in his or her possession shall obtain a plant dealer / landscaper license from the department.

(c) The license shall be valid for one-year beginning on January 1 and ending on December 31 of the following year, unless the department suspends the plant dealer / landscaper license pursuant to RSA 433:35.

(d) An applicant for a plant dealer / nursery license shall complete and submit Form “Plant Dealer / Landscaper Application”, as amended 1-20-2017.

(e) The annual fee for a plant dealer / landscaper license shall be $25.

(f) The license fee shall accompany the application. Payment shall be made by check, money order, or cash, payable to the Treasurer, State of New Hampshire.

(g) Fees required by Agr 2501.03(e) shall not apply to:

(1) A person who is a nurseryman, dealer, or collector and who makes no more than $3,000 in gross sales of all rooted plant material during the calendar year;

(2) Any public or private arboretum operated not-for-profit which exchanges nursery stock inspected by a duly authorized agent of a state or federal department of agriculture in limited quantities for experimental or permanent arboretum plantings;

(3) New Hampshire state agencies or universities; and

(4) Any landscape company that does not import out of state nursery stock, and does not temporarily or permanently store nursery stock.

(h) The applicant shall attest on the plant dealer / landscaper application form that they meet the licensing fee requirements and shall acquire and further distribute nursery stock obtained only from a certified and, or licensed grower or dealer approved by the authorizing agency within the state of origin.

(i) A nurseryman, plant dealer, or landscaper shall hold a valid plant dealer license for each sales location.

(j) A plant dealer / landscaper license shall not be transferable.

(k) A copy of the plant dealer / landscaper license shall be posted in a conspicuous place at the sales location.

Source. #5359, eff 3-17-92; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.04 Inspections.

(a) By accepting the plant dealer / landscaper license, the licensee shall agree to periodic inspections of the nursery stock being offered for sale at the business location or any other applicable location pursuant to RSA 433:28 and 433:30.

(b) The department shall inspect any nursery as determined necessary by the director to ensure that:

(1) Nursery stock offered for sale within New Hampshire is free of plant diseases, is not infested with plant pests, and meets the requirements of RSA 433:28;

(2) Nursery stock shipped from New Hampshire is free from pests under quarantine or declared a public nuisance, and has all non-quarantine plant pests under effective control; and

(3) Nursery stock shipped to New Hampshire is free from pests under quarantine or declared a public nuisance, with all non-quarantine pests under effective control.

(c) The department shall have authority during reasonable times to inspect a business location that might become infected or infested with plant pests.

(d) The department or any duly authorized agent of the department shall have the authority to place, monitor and retrieve traps and samples for identification or verification as part of an inspection.

(e) When an inspector finds injurious plant pests or plant diseases present in a nursery, greenhouse, plant dealer or landscaper's premises, the inspector shall issue a stop-sale order to prevent the sale of such stock if the inspector determines that a stop-sale order is necessary to remove the threat posed by the pests or plant diseases and assure sound, healthy nursery stock for sale pursuant to RSA 433:30.

(f) Nursery stock placed on stop-sale shall be identified by the inspector, either individually or in blocks. Infested stock shall be separated from noninfested stock and that physical separation shall be effected and maintained by the nursery.

(g) The issuance of a stop-sale order shall state the following:

(1) The reason for issuance of the stop-sale order;

(2) A description of the nursery stock placed on stop-sale; and

(3) The date upon which such stop-sale order became effective.

(h) Stop-sale ordered nursery stock shall not be moved from its location unless otherwise mandated by a department inspector for isolation purposes, and shall not be sold until the following conditions have been met:

(1) The nursery stock has been re-inspected and found to be apparently free from pests and diseases; or

(2) The plant dealer has provided evidence of complying with required treatments; and

(3) The inspector provides a written statement releasing the stop sale ordered nursery stock.

(i) If stop-sale ordered nursery stock does not meet the conditions of (h), or if the risk from the infested or infected stock is considered an emergency, then the inspector shall issue a written statement ordering the disposal of the nursery stock.

(j) Disposal of infested nursery stock shall be witnessed or approved by a state inspector.

(k) Unless otherwise provided for by law, the department shall not provide compensation for damages to any owner for damages resulting from the loss or disposal of infested or infected plants, plant products, or other regulated articles, nor shall it reimburse licensees for any expenses incurred incidental to the application of prescribed preventative or remedial measures.

Source. #5359, eff 3-17-92; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.05 Quarantines.

(a) When injurious insects, plant diseases or both are found in any geographic area, which pose a threat to natural, residential or commercial resources, commodities, or both in New Hampshire, the commissioner shall establish an interior quarantine, and exterior quarantine, or both.

(b) The following quarantine measures shall be taken by the NH department of agriculture, markets & food:

(1) Identify by scientific name the organism under quarantine;

(2) Identify the quarantined counties;

(3) Indicate the resource or commodity under quarantine; and

(4) Specify restrictions on movement of host material or infected stock from quarantined areas.

Source. #5359, eff 3-17-92; amd by #5617, eff 4-27-93; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.06 Nursery Stock Certification for Export.

(a) Licensed plant dealers may ship nursery stock to other nurseries, brokers, and out-of-state customers only if the nursery stock is free from pests under quarantine or declared a public nuisance, and has all non-quarantine plant pests under effective control.

(b) A plant dealer may enter into a compliance agreement with the department to ship plants using a systems approach, based on best management practices addressing critical control points in the nursery production cycle. Compliance with the terms of the compliance agreement shall be verified by inspectors with the department through audits.

(c) Any nurseryman, plant dealer, landscaper, or person within the state of New Hampshire may apply for a federal or state phytosanitary certificate for plants and plant parts, in order to meet the plant health import requirements of other states and nations.

(d) The application for a federal or state phytosanitary certificate shall be made through the official federal phytosanitary certificate issuance and tracking system. The applicant may create an account with this system and access the application form(s) on-line at www.pcit.aphis.usda.gov/pcit/ or any other web address published and promulgated by the United States department of agriculture, animal and plant health inspection service, plant protection and quarantine for that purpose.

(e) The federal phytosanitary certificate issuance and tracking system is a complete cost-recovery system. The fees for such a certificate shall be as follows:

(1) A federal administrative fee per certificate; and

(2) A state fee of $39 per certificate for shipments of less than $1,250 in value; or

(3) A state fee of $74 per certificate for shipments of greater than or equal to $1,250 in value; or

(4) A state fee of $8 per certificate for replacing an issued certificate at the applicant’s request.

(f) There are no fees associated with issuing state phytosanitary certificates using the federal phytosanitary certificate issuance and tracking system.

(g) The application for federal or state phytosanitary certification shall be submitted no less than one week prior to the requested inspection date.

(h) Fees shall be collected at the time that the certificate is issued.

(i) Payment shall be made by credit card through the official federal phytosanitary certificate issuance and tracking system.

Source. #5359, eff 3-17-92; ss by #6708, eff 3-4-98, EXPIRED: 3-4-06

New. #9323, eff 11-21-08; ss by #12114, eff 2-21-17

Agr 2501.07 Violations.

(a) Any person who violates the provisions of these rules shall be subject to the penalty provisions in RSA 433:32.

(b) It shall be a violation for any nurseryman, plant dealer, or landscaper who fails to apply for and obtain a plant dealer / landscaper license prior to buying and selling any nursery stock.

(c) It shall be a violation to move, sell, distribute, or destroy any nursery stock which has been placed on stop-sale without first notifying and receiving written approval from the department.

(d) It shall be a violation for any person to violate the provisions of any internal or external state or federal quarantine.

(e) The director shall refuse, suspend, or revoke a plant dealer / landscaper license by notifying the licensee in writing if, after considering the following factors, the director determines that prevention or removal of an infestation of dangerous insects or plant diseases cannot be assured:

(1) Failure to comply with all of the provisions of RSA 433:21-433:36;

(2) Failure to renew the plant dealer / landscaper license;

(3) Violation of state and, or federal quarantines;

(4) Violation of a stop-sale order;

(5) Failure to comply with state, federal, or state and federal invasive species laws; or

(6) Failure to consent to an inspection pursuant to these rules.

(f) The plant dealer may file an appeal of the refusal, suspension, or revocation of the plant dealer license by letter to the commissioner within 15 days after receiving the order. The letter shall state any grounds for the appeal.

(g) If, following inspection, it is determined by the director that the plant dealer has addressed the conditions outlined in Agr 2501.07 (e), the director shall issue or reinstate a plant dealer license.

Source. #12114, eff 2-21-17 (from Agr 2701.06)

APPENDIX

Rule	Specific State or Federal Statute which the Rule Implements
Agr 2501.01-Agr 2501.02	RSA 433:21; RSA 433:24
Agr 2501.03	RSA 433:22, II, III; RSA 433:23; RSA 433:25; RSA 433:27; RSA 433:29-a; RSA 433:31
Agr 2501.04	RSA 433:28; RSA 433:29; RSA 433:30; RSA 433:33
Agr 2501.05	RSA 433:34
Agr 2501.06	RSA 433:22, III, IV; RSA 433:24; RSA 433:25; RSA 433:30
Agr 2501.07	RSA 433:28; RSA 433:29-a; RSA 433:30; RSA 433:32; RSA 433:34; RSA 433:35; RSA 433:36