Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO:
KRS
246.030,
246.650,
246.660,
246.990(9),
260.020,
260.030,
363.610,
50 C.F.R. Part 23
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
246.660 requires the Department of
Agriculture to administer a program for ginseng in Kentucky. This
administrative regulation establishes the ginseng program including licensing
and record keeping requirements for dealers, a limited harvesting season,
certification procedures, administrative violations and civil penalties, and
procedures for the suspension or revocation of a dealer's license.
Section 1. Definitions.
(1) "Artificially propagated" means ginseng
grown from seeds or rootlets that:
(a)
1. Are exempt from the provisions of the
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) as implemented by 50 C.F.R. Part 23 ; or
2. Were derived from cultivated parental
stock; and
(b) Were
woodsgrown or cultivated.
(2) "Certified ginseng" means ginseng that
has been issued an American Ginseng Export Certificate by the department or
other governmental certifying organization.
(3) "Cultivated" means ginseng grown under
artificial shade and in tilled soil.
(4) "Dealer" means any person or agent of an
entity buying ginseng for resale or export.
(5) "Department" means the Kentucky
Department of Agriculture.
(6) "Dry
ginseng" means ginseng roots that have been dried to remove moisture.
(7) "Export" means to transport, ship, carry,
haul, take, or otherwise move ginseng collected in Kentucky outside of
Kentucky.
(8) "Ginseng" is defined
by
KRS
246.650(2).
(9) "Green ginseng" means ginseng roots
retaining moisture, not dried.
(10)
"Harvest" is defined by
KRS
246.650(1).
(11) "Purchase" means to take possession of
ginseng in exchange for cash, cash equivalents, or barter.
(12) "Sell" means to transfer possession of
ginseng to another person or entity in exchange for cash, cash equivalents, or
barter.
(13) "Uncertified ginseng"
means ginseng that has been harvested, but has not been issued a certificate
for export.
(14) "Wild" means:
(a) Ginseng grown with minimal interference
by humans and under natural canopy in forest or woodlands; or
(b) Mature ginseng plants if they are derived
from seeds of wild ginseng that were planted as required by Section 4(3) of
this administrative regulation.
(15) "Wild Simulated" means ginseng grown:
(a) From seed that was not planted as
required by Section 4(3) of this administrative regulation;
(b) With minimal interference by humans;
and
(c) Under natural
canopy.
(16)
"Woodsgrown" means ginseng:
(a) Grown under
natural canopy; and
(b)
Purposefully managed.
Section 2. Dealer License Requirements. A
person shall not purchase uncertified ginseng for resale or export unless he or
she possesses a Kentucky ginseng dealer's license.
(1) Annual application. All persons or agents
of entities purchasing uncertified ginseng in any amount at any time shall file
a complete Ginseng Dealer Application for a ginseng dealer's license.
(2) Fee. An annual fee of seventy-five (75)
dollars for Kentucky residents or one hundred fifty (150) dollars for
non-residents shall be submitted to the department prior to issuance of a
ginseng dealer's license. Residency shall be determined by the state of
issuance of a driver's license or other government issued photo
identification.
(3) Licensing
period. A ginseng dealer's license shall be valid from September 1 until August
31 of the following calendar year. The department shall not issue a license if
an applicant has outstanding penalties due under Section 9 of this
administrative regulation.
(4) A
dealer may only be an agent for an entity that is duly authorized to do
business in the Commonwealth.
(5)
All dealer purchases shall be made using a certified scale as required in
KRS
363.610.
Section 3. Record Keeping.
(1) Purchase of ginseng. Ginseng dealers
shall document all purchases of ginseng on a Ginseng Purchase Form. The KDA
shall issue twenty-five (25) forms to each dealer. For additional forms, the
dealer shall execute a Ginseng Purchase Form Log and submit to the KDA prior to
additional form issuance. The form shall be legible, shall be completed in its
entirety by the dealer, other than the seller's signature or mark, in the
presence of the seller, and shall include:
(a) Printed name, signature, or mark and
address of the seller;
(b) Month
purchased;
(c) Month
harvested;
(d) County where
harvested;
(e) Weight of purchase
or sale;
(f) Designation of ginseng
as cultivated, woodsgrown, wild, or wild simulated and whether dried or green
at the time of the transaction; and
(g) The seller's government issued photo
identification number (drivers license number etc).
(2) Records of sales between dealers.
(a) A ginseng dealer purchasing uncertified
ginseng from another dealer shall:
1. Complete
a Dealer to Dealer Transaction Form to document the purchase; and
2. Obtain from the other dealer Ginseng
Purchase Forms completed by the dealer of origin.
(b) The Dealer to Dealer Transaction Form
shall include:
1. The month of purchase from a
dealer;
2. The weight of the
ginseng purchased at the time of the transaction;
3. The signature and registration number of
the dealer from whom the purchase is made;
4. The designation of ginseng as cultivated,
woodsgrown, wild, or wild simulated and whether dried or green at the time of
the transaction; and
5. The form
identification numbers from the Ginseng Purchase
Forms.
(3)
Retention. A person required to maintain records under this section shall
retain the forms for a period of at least five (5) years from the end of that
year's growing season.
(4)
Availability. Records required to be maintained under this section shall be
made available to the department upon request.
Section 4. Harvest.
(1) Ginseng shall only be harvested between
September 1 and December 1 of each year.
(2) Ginseng shall not be harvested that is
less than five (5) years old or has less than three (3) five (5) leafed
prongs.
(3) Seeds adhering to a
plant taken during the season shall be planted within fifty (50) feet of the
location of the plant with no tool used other than the finger.
Section 5. Sale of Ginseng.
(1) Uncertified green ginseng may only be
sold from September 1 of each year until March 31 of the following
year.
(2) Uncertified dry ginseng
may only be sold from September 15 of each year until March 31 of the following
year.
(3) Ginseng dealers may
obtain American Ginseng Export Certificates from the department during the
ginseng selling season.
(4) A
ginseng dealer may sell certified ginseng at any time.
Section 6. Unsold Ginseng.
(1) Uncertified ginseng not sold by March 31
of the year after harvest shall be documented by the dealer. It shall be:
(a) Weighed and issued a weight receipt by
the department; or
(b) Certified in
accordance with Section 7 of this administrative regulation.
(2) A ginseng dealer shall not
possess:
(a) Undocumented green ginseng from
April 1 through August 31; or
(b)
Undocumented dry ginseng from April 1 through September 14.
(3) Uncertified weighed ginseng
shall not be sold until the following season's selling period.
Section 7. Certification of
Ginseng.
(1) Before ginseng harvested in
Kentucky can be exported, it shall be certified by the department on an
American Ginseng Export Certificate.
(2) Ginseng may only be certified by a dealer
holding a Kentucky dealer's license.
(3) To obtain certification, a dealer shall:
(a) File with the department an American
Ginseng Export Certificate form;
(b) File with the department associated
purchase forms covering the amount of ginseng to be certified in accordance
with subsection (5) of this section;
(c) Undergo a random sample inspection of
ginseng roots by a department official; and
(d) Pay the certification fee in accordance
with subsection (7) of this section.
(4) Export Certificate. The certificate shall
include the:
(a) State of origin;
(b) Serial number of certificate;
(c) Dealer's state license number;
(d) Dealer's shipment number for the harvest
season;
(e) Year of
harvest;
(f) Designation as dried
or green ginseng;
(g) Designation
as cultivated, woodsgrown, wild, or wild simulated;
(h) Weight of ginseng;
(i) Statement of state or tribal certifying
official that the ginseng was obtained in that state or on those tribal lands
in accordance with all relevant laws for that harvest year; and
(j) Name and title of state or tribal
certifying official.
(5)
Associated purchase forms.
(a) For ginseng
purchased from harvesters, the dealer shall file Ginseng Purchase Forms
covering the amount of ginseng to be certified.
(b) For ginseng purchased from other dealers,
the dealer shall file Dealer to Dealer Transaction Forms and Ginseng Purchase
Forms obtained from the dealers of origin covering the amount of ginseng to be
certified.
(c) Ginseng Purchase
Forms shall be submitted to the department by April 15 of the year after
harvest.
(6) The
department may obtain samples of roots in order to obtain a root
count.
(7) Certification fee. The
fee for certification and processing by the department shall be two (2) dollars
per pound. Payment shall be made prior to the release of the certification of
the ginseng to the dealer, and shall be tendered by check or money orders only.
Cash shall not be accepted.
(8) A
copy of the certificate shall be:
(a) Enclosed
with the shipment that is the subject of the certification;
(b) Retained for a minimum of five (5) years
by the licensed ginseng dealer; and
(c) Retained by the certifying agent of the
department for seven (7) years.
Section 8. Prohibition on Uncertified
Non-Kentucky Grown Ginseng. Ginseng that is harvested outside the border of
Kentucky and not certified in its state of origin shall not enter
Kentucky.
Section 9. Violations and
Penalties.
(1) The following acts shall be
considered a violation of this administrative regulation, and each violation
shall carry a civil penalty of $100 to $1,000 dollars:
(a) Harvesting ginseng out of
season;
(b) Selling uncertified
ginseng out of season;
(c)
Possessing underage ginseng;
(d)
Seed collection, not relocating within fifty (50) feet of parent;
(e) Purchasing uncertified ginseng out of
season;
(f) Falsification of a
Ginseng Dealer Application, a Ginseng Purchase Form, a Dealer to Dealer
Transaction Form, or an American Ginseng Export Certificate;
(g) A dealer purchasing ginseng from a
harvester without accurately documenting the purchase on a Ginseng Purchase
Form in accordance with Section 3(1) of this administrative
regulation;
(h) A dealer purchasing
uncertified ginseng from another dealer without:
1. Accurately documenting the purchase on a
Dealer to Dealer Transaction Form in accordance with Section 3(2) of this
administrative regulation; or
2.
Obtaining from the other dealer Ginseng Purchase Forms completed by the dealer
of origin;
(i) Reselling
or exporting ginseng without a dealer's license;
(j) A dealer failing to certify or obtain
weight receipt of ginseng at the end of the uncertified ginseng selling
season;
(k) Transporting or
exporting of uncertified ginseng in or out of Kentucky;
(l) Possession of undocumented ginseng by a
ginseng dealer out of season;
(m)
Acting as a dealer or agent of a dealer without a license; and
(n) Purchasing uncertified ginseng out of
season.
(2) Persons who
commit the same violation within thirty (30) days of being cited for the first
violation shall be assessed up to double the civil penalty accessed in Section
9(1) of this administrative regulation, not to exceed $1,000.
(3) Persons who commit a third same violation
within sixty (60) days of being cited for the first violation shall be assessed
up to triple the civil penalty accessed in Section 9(1) of this administrative
regulation, not to exceed $1,000.
(4) This section shall not prohibit the
department from suspending or revoking a license or certificate at any time in
accordance with Section 10 of this administrative regulation.
(5) A person cited with a violation may
contest the violation by requesting a hearing in writing within ten (10) days
of receiving the notice of violation. The hearing shall be conducted in
accordance with KRS Chapter 13B.
Section 10. Ginseng Dealer License Suspension
or Revocation.
(1) A ginseng dealer may
contest a proposed license suspension or revocation by requesting a hearing in
writing within ten (10) days of receiving the notice of suspension or
revocation. The hearing shall be conducted in accordance with KRS Chapter
13B.
(2) If a hearing is not
requested as provided for in subsection (1) of this section, the department may
suspend or revoke the license once the ten (10) day hearing request filing
period has passed.
(3) The
department may suspend a license for up to one calendar year, or revoke a
license after the provisions of subsections (1) and (2) of this section have
been satisfied.
Section
11. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "Ginseng Dealer Application",
12/2019 ;
(b) "American Ginseng
Export Certificate", 8/2016;
(c)
"Dealer to Dealer Transaction Form", 12/2019;
(d) "Ginseng Purchase Form",
12/2019;
(e) "Ginseng Purchase Form
Log", 12/2019; and
(f) "Weight
Receipt", 08/2015.
(2)
These materials may be inspected, copied, or obtained, subject to applicable
copyright law, at the Kentucky Department of Agriculture, Division of Plant
Marketing, 111 Corporate Drive, Frankfort, Kentucky 40601, Monday through
Friday, 8 a.m. to 4:30 p.m.
9 Ky.R. 292; Am.
572; 917; eff. 1-6-83; 13 Ky.R. 1713; 14 Ky.R. 431; eff. 8-5-87; 18 Ky.R. 743;
1840; eff. 11-26-91; 27 Ky.R. 1061; 1774; eff. 1-15-2001; 38 Ky.R. 659; 903;
eff. 11-3-11; Crt eff. 2-18-2020; 46 Ky.R. 2315, 2917; eff.
7-9-2020.
STATUTORY AUTHORITY:
KRS
246.660,
260.020