Loading...
HomeMy WebLinkAboutCOM 0393.166 2012-2014 J Yoshimoto o+tY;•`",� Telephone. (808)961-8272 Chair& Presiding Officer °°•' ��� �j;� Facsimile- (808)961-8912 Council District 2 +' Email•jyoshimoto a,co.hawaii.hi us �rE cs•M►.M HAWAII COUNTY COUNCIL Office of the County Clerk County of Hawai'i 25 Aupuni Street Hilo, Hawaii 96720 � rT� w` C_-) -a. —C73 MEMORANDUM :w DATE: November 5, 2013 L" TO: Members of the Hawaii County Council FROM: J Yoshimoto, Council Chair V C0% RE: Proposed Amendments to Bill No. 113, Draft 3; Relating to Genetically Engineered Crops and Plants Please find attached proposed amendments to Bill No. 113, Draft 3. The proposed amendments are illustrated below by Ramseyer format (material to be deleted is bracketed and stricken; material to be added is underscored). 1. Bill No. 113, Draft 3, is amended by amending "Section 14-_. Definitions." by deleting the definition for"Register" or "Registration": ['"'Register-2 « Registfation shall inelude: the tax map key and the ecitineil distriet of the pr-Opel4y-Of er-ops or plan4s are being eultivated, propagated, developed, or-tested, whieh deser-iption shall inelude the size of the loeation and seope of usage; the name of the owner of the pr-apefty or pfoperties; the lessee of any other party in eopAr-el of the gene6eally engineered plant of efop opefatioH or usage; the type of genetieally modified organism of tfansg . .'Hilation used; the produce or-produets involved;the type, f+egtten�ey, and e-ustofnary afflou vi preeedures employed; and r-eleiant eontaetgnmation.'] Comm. No Ref.To: Pry R ef.Date NU Hawai`i County Is An Equal Opportunity Provider And Employer November 5, 2013 Page 2 2. Bill No. 113, Draft 3, is amended by amending "Section 14-_. Prohibition" to read as follows: "Section 14-_ Prohibition. No person shall knowingly engage in the open air cultivation, propagation, development, or testing of genetically engineered crops or plants[.] intended for human or animal consumption. 3. Bill No. 113, Draft 3, is amended by amending "Section 14- . Exemptions."to read as follows: "Section 14-_ Exemptions. The following persons shall be exempt from the provisions of this article: (1) Persons engaged in the open air cultivation, propagation, or development of genetically engineered crops or plants, other than genetically engineered papaya, but only in those specific locations where genetically engineered crops or plants have been customarily open air cultivated, propagated, or developed by that person prior to the effective date of this article [, pr-evided that those speeifie loeations or f4eilities afe registefed within ninety da� the eff-eetive date of this a4iele]; [a-ad] (2) Any person engaged in the open air cultivation, propagation, or development of genetically engineered papaya, whether prior or subsequent to the effective date of this artiiccll�eg,[, provided that ° eh location ^r f4eil ty „herein E�tiya4ion, propagation, of development of geneticafly engineered papa), aeeurs or- 4 ^ is ° st °a as provided in this ,,..a,le.] , and Any person engaged in the open air cultivation, propagation, or development of genetically engineered crops or plants, other than geneticallengineered papaya, upon approval by the planning commission, and approval by the council. For the purposes of this section, planning commission shall mean either the windward planning commission or the leeward planning commission, or both acting as a joint commission, as provided in the Charter." Notwithstanding any other provision of law, these exemptions shall not allow for open air testing of genetically engineered organisms of any kind. 4. Bill No. 113, Draft 3, is amended by amending "Section 14- . Emergency exemption." to read as follows: "Section 14-_. Emergency exemption. (a) A person who is engaged in the cultivation, propagation, or development of a non- genetically engineered crop or plant that is being harmed by a plant pestilence as defined in this article may apply to the council for an emergency exemption from the provisions of this article to use a genetically engineered remedy. The council may grant an emergency exemption by way of resolution, provided the council makes an affirmative finding that: November 5, 2013 Page 3 1) The cited plant pestilence is causing substantial harm to that person's crop or plant; 2) There is no other available alternative solution; and 3) All available measures will be undertaken to insure that non-genetically engineered crops and plants, as well as neighboring properties and any water sources, will be protected from contamination or any other potentially adverse effects that may be caused by the genetically engineered organism or associated pesticides. (b) Any exemption granted pursuant to subsection (a) shall include reasonable restrictions and conditions, including, but not limited to, [full eemplia-mee with the °*ratio^ requiftments of this aftiele a ] that the exemption shall expire on a certain day occurring within five years from the date of its issuance. Prior to expiration of the exemption, the council may adopt a resolution to extend the exemption for a specified period of time." 5. Bill No. 113, Draft 3, is amended by deleting "Section 14- . Registration." in its entirety: ["Seetie„ 14 Registration. (a) All per-sons engaged in any form of oultivation, pr-apagation, developfllent-,� indear- testing of genetieally engineer-ed er-ops of plants of an), kind shall r-egiste annually begipming within ninety days of the effeetive date of this 7 7 the �, and shall pay .,1 «cgist�tien fee of =peer—leeat�able—to the direeter-vi icnC2—A1l rE6itiguous l shall be treated as a single lee a4e . Tzczdi-rcEt6r of the depai4fnent—o —reseal GY and development, o the direet6r-'sautho (b) All per-sons engaged in non eommer-eial eultivation or- propagation of genetieally er-ed papaya in • > any stage > shall be exempt ffem this seetion. T__ fegistfa4ien exem ion doess not exempt per-sons engaged in r-esea A7 or-testing of genefieally engineefed papaya. (e) PttfstiapA to seetion 92F 13 of the 14awai'i Revised Statutes, information sueh a infeffnation A.A.,ould other-wise f+ttstr-a4e the ability of the County to obtain aeeu "] A draft copy of Bill No. 113, Draft 4, is attached with these amendments incorporated. JY:jdh Att. AN ORDINANCE AMENDING CHAPTER 14 OF THE HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO GENETICALLY ENGINEERED CROPS AND PLANTS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Findings. (1) The public trust doctrine is memorialized in the Hawaii State Constitution, Article XI, Section 1 "Conservation and Development of Resources," and in the Charter of the County of Hawaii, Article XIII, Section 13-29 "Conservation of Natural and Cultural Resources." Pursuant to the public trust doctrine, our natural resources, including land and water, are entrusted to our care for the benefit of both current and future generations. The county government in its trustee capacity is subject to the precautionary principle and therefore must exercise a higher level of scrutiny in establishing reasonable measures and making appropriate assessments in order to avoid harmful impacts to our public trust resources. The Council therefore recognizes the right of the people and their government to guard against the intrusion of potential contaminants and prevent the contamination of non-genetically engineered crops, plants and lands by genetically engineered crops and plants without having to first wait for definitive science. As the United States Supreme Court made clear in Maine vs. Taylor (1986), the government is not required "to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees on what disease organisms are or are not dangerous before it acts to avoid such consequences." In this context the precautionary principle requires that if a new technology poses threats of harm to human or environmental health, the burden of proof is on the promoter of the technology to demonstrate that the technology is safe, not on the public or governments to demonstrate that the technology is unsafe; (2) The Council finds that policies relating to agricultural practices are most appropriate to be determined by each county of the State of Hawaii given the island-by-island variation in customary and generally accepted agricultural practices and opportunities, the variation in topography and land ownership patterns, and in light of the natural geographic ocean barriers that allow for these distinctions. (3) The Council finds that optimizing a local agricultural policy that promotes non- genetically engineered crops and seeds along with eco-friendly agricultural practices affords the County of Hawaii a unique economic opportunity to capture a niche market for non-genetically engineered produce, seeds, and meats. Optimizing this opportunity is consistent with the Hawaii County General Plan (Economic policies 2.2(h)): "Promote and develop the island of Hawaii into a unique scientific and cultural model, where economic gains are in balance with social and physical amenities. Development should be reviewed on the basis of total impact on the residents of the County, not only in terms of immediate short run economic benefits." (4) The Council finds it is important to protect the rights of farmers engaged in non- genetically engineered crop cultivation from the uncontrolled spread of genetically engineered organisms and associated pesticides. (5) The Council finds that an expanded exemption for genetically engineered papaya is reasonable and appropriate because the genetic modification of papaya over the past decade has become so pervasive across this island that restricting cultivation of genetically engineered papaya would be near impossible at this time, the likelihood of genetically engineered cross pollination of papaya is reduced given the customary controlled manner of propagation, and in light of the substantial investment in controlled testing of this one crop over the past decade as the means of choice to address certain papaya diseases. SECTION 2. Authority. The Council finds that its authority to impose restrictions on the cultivation, propagation, development, and testing of genetically engineered crops and plants to protect public and private property as well as surface waters, vulnerable watersheds, and our Island's coastal waters, is granted to it by: (1) The Hawaii Revised Statutes, Section 46-1.5(13), which states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State."; (2) The Hawaii State Constitution, Article XI, Section 9 "Environmental Rights," which states: "Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law." SECTION 3. Chapter 14 of the Hawaii County Code 1983 (2005 Edition, as amended) is amended by adding a new article to be appropriately designated and to read as follows: "Article_. Restriction of Genetically Engineered Crops and Plants. Section 14-_ Purpose. The purpose of this article is to protect Hawaii Island's non-genetically modified agricultural crops and plants from genetically modified organism cross pollination and to preserve Hawaii Island's unique and vulnerable ecosystem while promoting the cultural heritage of indigenous agricultural practices. The prohibition of open air cultivation, propagation, development, or testing of genetically engineered crops and plants is intended to prevent the transfer and uncontrolled spread of genetically engineered organisms on to private property, public lands, and waterways. Section 14-_ Definitions. As used in this article, unless otherwise specified: "Genetically engineered" means an organism that has been modified at the molecular or cellular level by means that are not possible under natural conditions or processes. Such means include recombinant DNA and RNA techniques, cell fusion, microencapsulation, macroencapsulation gene deletion and doubling, introducing a foreign gene, and changing the position of genes. Such organisms are sometimes referred to as "genetically modified organisms" or "transgenic organisms." Genetically engineered or genetically modified crops and plants include crops and plants for human consumption or for any other purpose. Genetic engineering does not include modification that consists exclusively of breeding, conjugation, fermentation, hybridization, in vitro fertilization, or tissue culture. "Open air" means a location or facility that is not enclosed in a greenhouse or in another completely enclosed structure so as to prevent the uncontrolled spread of genetically engineered organisms. "Person" includes natural persons, partnerships, joint ventures, societies, associations, clubs, trustees, trusts, or corporations or any officer, agent, employee, or any other personal representative thereof, in any capacity, acting either for himself, his heirs, or for any other person under personal appointment pursuant to law. "Plant pestilence" means a virulent plant disease or infestation that is causing substantial harm to one or more crops or plants. Section 14-_ Prohibition. No person shall knowingly engage in the open air cultivation, propagation, development, or testing of genetically engineered crops or plants intended for human or animal consumption. Section 14-_ Exemptions. The following persons shall be exempt from the provisions of this article: (1) Persons engaged in the open air cultivation, propagation, or development of genetically engineered crops or plants, other than genetically engineered papaya, but only in those specific locations where genetically engineered crops or plants have been customarily open air cultivated, propagated, or developed by that person prior to the effective date of this article; (2) Any person engaged in the open air cultivation, propagation, or development of genetically engineered papaya, whether prior or subsequent to the effective date of this article; and (3) Any person engaged in the open air cultivation, propagation, or development of genetically engineered crops or plants, other than genetically engineered papaya, upon approval by the planning commission, and approval by the council. For the purposes of this section, planning commission shall mean either the windward planning commission or the leeward planning commission, or both acting as a joint commission, as provided in the Charter. Notwithstanding any other provision of law, these exemptions shall not allow for open air testing of genetically engineered organisms of any kind. Section 14-_. Emergency exemption. (a) A person who is engaged in the cultivation, propagation, or development of a non- genetically engineered crop or plant that is being harmed by a plant pestilence as defined in this article may apply to the council for an emergency exemption from the provisions of this article to use a genetically engineered remedy. The council may grant an emergency exemption by way of resolution, provided the council makes an affirmative finding that: 1) The cited plant pestilence is causing substantial harm to that person's crop or plant; 2) There is no other available alternative solution; and 3) All available measures will be undertaken to insure that non-genetically engineered crops and plants, as well as neighboring properties and any water sources, will be protected from contamination or any other potentially adverse effects that may be caused by the genetically engineered organism or associated pesticides. (b) Any exemption granted pursuant to subsection (a) shall include reasonable restrictions and conditions, including, but not limited to, that the exemption shall expire on a certain day occurring within five years from the date of its issuance. Prior to expiration of the exemption, the council may adopt a resolution to extend the exemption for a specified period of time. Section 14-_ Penalties. Any person who violates any provision of this article shall be guilty of a violation, and upon conviction thereof, shall be sentenced to a fine of up to $1,000 for each separate violation. The person shall be deemed to be guilty of a separate offense for each and every day a violation of this article is committed, continued, or permitted for each location. To the extent permitted by law, the person found in violation of this article shall also be responsible for all costs of investigation and testing, as well as for court costs, including but not limited to witness fees and witness expenses. Section 14_ Declaratory and injunctive relief. A court of competent jurisdiction may hear proceedings for declaratory relief or injunctive relief, or both, for violations or potential violations of this article. To the extent permitted by law, the person found in violation of this article shall be responsible for all costs of investigation and testing, as well as for court costs, including, but not limited to, attorney's fees, witness fees, and witness expenses. Section 14—. Cumulative remedies. The provisions of this article are cumulative. Nothing in this article shall affect any other remedy or relief that may be available to any adversely affected person or to the County or other governmental entity." SECTION 4. If any provision of this ordinance, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 5. This ordinance shall take effect upon approval. 1) The cited plant pestilence is causing substantial harm to that person's crop or plant; 2) There is no other available alternative solution; and 3) All available measures will be undertaken to insure that non-genetically engineered crops and plants, as well as neighboring properties and any water sources, will be protected from contamination or any other potentially adverse effects that may be caused by the genetically engineered organism or associated pesticides. (b) Any exemption granted pursuant to subsection (a) shall include reasonable restrictions and conditions, including, but not limited to, that the exemption shall expire on a certain day occurring within five years from the date of its issuance. Prior to expiration of the exemption, the council may adopt a resolution to extend the exemption for a specified period of time. Section 14-_ Penalties. Any person who violates any provision of this article shall be guilty of a violation, and upon conviction thereof, shall be sentenced to a fine of up to $1,000 for each separate violation. The person shall be deemed to be guilty of a separate offense for each and every day a violation of this article is committed, continued, or permitted for each location. To the extent permitted by law, the person found in violation of this article shall also be responsible for all costs of investigation and testing, as well as for court costs, including but not limited to witness fees and witness expenses. Section 14_ Declaratory and injunctive relief. A court of competent jurisdiction may hear proceedings for declaratory relief or injunctive relief, or both, for violations or potential violations of this article. To the extent permitted by law, the person found in violation of this article shall be responsible for all costs of investigation and testing, as well as for court costs, including, but not limited to, attorney's fees, witness fees, and witness expenses. Section 14—. Cumulative remedies. The provisions of this article are cumulative. Nothing in this article shall affect any other remedy or relief that may be available to any adversely affected person or to the County or other governmental entity." SECTION 4. If any provision of this ordinance, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 5. This ordinance shall take effect upon approval.