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Home My WebLink AboutCOM 0271.150 2012-2014 Margaret Wille „� ,, Phone No. Hilo: (808)961-8027 w, Phone No. Waimea: (808) 887-2043 � � %`� Council:1/ember District 9- North and South Kohala ''e Fax No (808) 887-2072 •: ��'s�,.�r:+t E-Mail: mwille4co.hawaii.hi.us o +sue HAWAII COUNTY COUNCIL County of Hawai`i Hawaii County Building Holoniva Center tt'est liawai'1 Civic('enter Bldg. .1 25.lupuni Street 64-1067,ucunalahoa Highway, Suite C-5 74-5044.,Ine Keohokulole Hnv. Hilo, Ilawai'i 96720 Waimea, Hawaii 96743 Kailua-Kona, Hcnrui'i,96740 P C') w n MIC 17;CD p )-C TO: J Yoshimoto, Chair , and Members of the Hawai`i County Council C,- oc FROM: Margaret Wille, Council Member j/� /t' x DATE: May 29, 2013 J"V SUBJECT: Additional Information Regarding Bill 361, Draft 2 Please find attached a copy of a letter dated October 28, 2008, from Deputy Corporation Counsel Molly A. Lugo providing their comments concerning Bill 361, Draft 2, relating to the restriction of genetically engineered taro and coffee. Attachment Comm. Not, "' Serving the Interests of the People of Our Island Ref. To: rt MA C ' no Haw County ai`i Count Is An Equal Opportunity Provider And Employer Ref. Dote : Lincoln S.T.Ashida d!'•�� M'=�`!y Corporation Counsel Harry Kim '.r,� � 'r!/, \• Gerald Takase Mayor _ _ 's • Assistant Corporation •• N;1- Counsel• ■cif COUNTY OF HAWAI`I OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 October 28, 2008 Honorable Harry Kim Mayor, County of Hawai'i 891 Ululani Street Hilo, HI 96720 Dear Mayor Kim: Re: Summary of Bill 361, Draft 2 This memorandum is in response to your request that our office provide you with a thorough review of Bill 361, Draft 2 ("Bill 361"), relating to the restriction of genetically engineered taro and coffee. Summary of Bill 361 Bill 361 makes it unlawful to test, propagate, cultivate, raise, plant, grow, introduce or release genetically engineered taro or coffee anywhere in the County of Hawaii. The duty of enforcement lies with the Police Department and the Prosecuting Attorney and any person found guilty of violating the bill is punishable by a fine of up to $1,000. Issues/Concerns • Preemption It is my opinion that Bill 361 is not preempted by state or federal law. The state legislature considered a bill last session (SB 958) that would have preempted any county regulatory action banning or otherwise regulating the genetic modification of any plant organism, but that bill did not pass. I have had the opportunity to speak with Ms. Elizabeth Haws Connally, attorney for the Hawaii Farm Bureau Federation, and I understand that it is her opinion that federal law, specifically the Plant Protection Act, preempts Bill 361. I have thoroughly researched this issue and I do not agree that the "Hawai`i County is an Equal Opportunity Provider and Employer" Honorable Harry Kim Mayor, County of Hawai'i October 28, 2008 Page -2- preemption provision contained in the Plant Protection Act is applicable to Bill 361.1 A very brief discussion of the Plant Protection Act is useful here: The Plant Protection Act is a federal law that was enacted in 2000 as a consolidation of various plant quarantine laws. The main purpose of the Act is to protect states from invasive and harmful plants and plant pests.2 The Act gives the Secretary of the United States Department of Agriculture ("Secretary") the authority to impose regulations over the movement in the stream of commerce of plants and plant products in order to control the spread of plant pests or noxious weeds.3 The Act's preemption provision restricts states from infringing upon the Secretary's authority by imposing regulations over the movement of plants and plant products that are contrary to or stricter than federal regulations.4 Under this preemption provision, a state is limited in its ability to establish, for example, quarantine and inspection requirements more onerous than federal law. Put very simply, Bill 361 does not come within the scope of the Plant Protection Act's preemption provision as it is not a regulation over the movement of plants or plant products in interstate or foreign commerce enacted for the purpose of controlling plant pests or noxious weeds. Asa final note on the preemption issue, numerous local governments around the country have enacted laws restricting or banning genetically modified organisms and, to my knowledge, none of these laws have been struck down on federal preemption grounds. For example, Mendocino County, California, passed an ordinance in 2004 making it unlawful to propagate any genetically engineered crops.5 Several states have responded to these local initiatives by enacting preemption laws—as our state has considered but not yet done. 1 The provision Ms. Haws Connally cites to is 7 U.S.C.A. §7756 (b)(1),which states:"Except has provided in paragraph (2), no State or political subdivision of a State may regulate the movement in interstate commerce of any article, means of conveyance, plant, biological control organism, plant pest, noxious weed,or plant product, in order to control a plant pest or noxious weed, eradicate a plant pest or noxious weed,or prevent the introduction or dissemination of a biological control organism,plant pest,or noxious weed, if the Secretary has issued a regulation or order to prevent the dissemination of the biological control organism, plant pest, or noxious weed within the United States." 2 7 U.S.C.§7701 3 7 U.S.C. §7701(3) 4 7 U.S.C. §7756 5 For the text of the ordinance and discussion on its merits, see: http://gmofreemendo.com/moreh.html#proposed Honorable Harry Kim Mayor, County of Hawai'i October 28, 2008 Page -3- • Overbreadth A concern has been raised that, as written, Bill 361 would prohibit the use of fertilizer, cross-breeding, or any other process which changes the genetic makeup of the plant. The bill is intended to apply to the direct manipulation of the genes of coffee and taro(i.e. manipulation in a laboratory), not prohibit farmers from engaging in practices that indirectly manipulate the genetic makeup of the plant. Although I think the intent is clear from the legislative history of this bill, I do see how the bill's language leaves a slight degree of ambiguity. The concern that the bill has an overly broad application would be addressed by simply replacing the term "genetic engineering" with the term "genetic modification," and defining the latter as "alteration to a life form or its living progeny at the nucleic acid level using the techniques collectively referred to as recombinant DNA technology." This is the terminology and definition that was used in SB 958, referred to above. • Unenforceability This bill will be enforced by the Police Department and the Prosecutor's Office. I appreciate that there may be real difficulties with enforcement and would suggest seeking input from these departments in order to more fully understand the challenges presented. For your background information, in one of its earlier drafts, the penalty for violation of Bill 361 was an administrative fine. However, no department was designated as being responsible for enforcement, which was problematic because the imposition of an administrative fine would require that there be notice, a request to correct, and opportunity for a hearing.b Our office raised • these issues with Councilmember Pilago's office. The subsequent draft we received for review re-classified the penalty as a "violation" to be enforced by the Police Department and Prosecutor's Office. 6 H.R.S.§46-1.5(24)(A) Honorable Harry Kim Mayor, County of Hawai'i October 28, 2008 Page -4- Conclusion I understand that this bill involves very controversial issues. However, from a legal perspective, it is valid legislation. In the event this bill becomes law, I would suggest that the definition of"genetic engineering" be amended in order to clarify any ambiguity as to its application, as discussed above. Thank you for the opportunity to advise you on this matter and please let me know if I can be of any further assistance. Very truly yours, Jt Molly . Lugo Deputy Corporation Counsel MAL:ch LF:lugo\WRK08-1949\Itr harry kim 10-28-08 MALch