Report Title:

Genetically Modified Organisms; Taro; Other Plant Organisms

 

Description:

Places a five-year moratorium on the: (1) genetic modification within the State of any Hawaiian taro; and (2) testing, planting, or growing within the State of any Hawaiian taro that has been genetically modified outside the State. Prohibits any state statute, rule, permit condition, or executive or administrative directive or order that bans or restricts the (1) genetic modification within the State of any non-Hawaiian taro or other non-taro plant organism; or (2) testing, planting, or growing within the State of any genetically modified non-Hawaiian taro or other genetically modified non-taro plant organism. Prohibits certain other types of county regulation of a genetically modified plant organism. Provides that the Act is not severable. Takes effect on 07/01/08. (SB958 HD2)

 


THE SENATE

S.B. NO.

958

TWENTY-FOURTH LEGISLATURE, 2007

S.D. 1

STATE OF HAWAII

H.D. 2

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO GENETICALLY MODIFIED ORGANISMS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. (a) Kalo (colocasia esculenta), the Hawaiian word for taro, is a culturally significant plant to the kanaka maoli, Hawaii's indigenous people. According to the kumulipo, the Hawaiian creation chant, kalo grew from the first-born son of Wakea, the sky father, and Papa, the earth mother, through Wakea's relationship with his and Papa's daughter, Hoohokulani. This son, named Haloa, was stillborn and buried. From Haloa's grave grew the first kalo plant. Wakea and Hoohokulani named their second son Haloa, after his older brother. From the second Haloa came the genesis of man. Kalo provides the kanaka maoli's life-giving sustenance, poi, and is seen as the older brother of mankind.

Over three hundred kalo varieties may have existed at the time of the arrival of European explorers. Today, there are approximately seventy varieties of taro and, of these, the majority are unique to the Hawaiian islands due to the horticultural skills of native Hawaiian farmers.

The important cultural relationship between kalo and the kanaka maoli continues today in the cultivation of kalo and ohana, the Hawaiian word for family. The cut stalk of the kalo, called the huli, is planted to become the next generation. Huli means to turn or turn-over. When "ohana" is broken into root words, "oha" is the smaller taro corms growing from the older part of the taro plant that is used to feed one's family and "ana" is a conjunctive word connoting regeneration or procreation.

Therefore, kalo intrinsically ties the interdependency of the past, the present, and the future, the essence of procreation and regeneration, as the foundation of any sustainable practice. Kalo expresses the spiritual and physical well-being of not only the kanaka maoli and their heritage, but also symbolizes the environmental, social, and cultural values important to the State. This relationship is symbolized in the use of the kalo plant upon the crown of King Kalakaua and today in the logo of the office of Hawaiian affairs and many commercial enterprises throughout the State.

This Act recognizes the importance of the kalo to the heritage of the State by imposing a five-year moratorium on:

(1) Genetically modifying any Hawaiian taro within the State of Hawaii; and

(2) Testing, planting, or growing any Hawaiian taro within the State that has been genetically modified outside the State.

The list of "Hawaiian taro" in this Act consists of varieties of taro known to have been grown in Hawaii over the past sixty years.

(b) Taro, however, is not unique to Hawaii. Other countries around the world cultivate taro. Since the taro varieties from those countries are not part of the native Hawaiian culture, those varieties may not be as important in the native Hawaiian culture as Hawaiian taro varieties. Some of these non-Hawaiian taro varieties have economic value because they are grown commercially by farmers in the State. These farmers may someday need to take advantage of improvements to the non-Hawaiian taro varieties that have been genetically modified.

Furthermore, other crops are currently being genetically modified, tested, planted, and grown in the State. Seed crop is now the largest agricultural commodity in the State when measured by value. Hawaii has attracted many out-of-state companies to invest in the industry and contribute to the growth and diversification of the State's economy.

Those companies need assurance that they will still be able to invest and operate in Hawaii. A moratorium on the genetic modification of Hawaiian taro may be interpreted as a signal to the world that biotechnology will no longer be welcomed in Hawaii. This notion must be negated.

Accordingly, this Act also prohibits any state statute, rule, permit condition, or executive or administrative directive or order from:

(1) Banning or restricting the genetic modification within the State of any non-Hawaiian taro or other non-taro plant organism if performed in accordance with a valid federal permit; and

(2) Banning or restricting in a discriminatory manner the testing, planting, or growing within the State of any genetically modified non-Hawaiian taro or other non-taro plant organism.

(c) The legislature has included in this Act another provision intended to better control the regulation of the biotechnology industry in the State. This provision preempts a county ordinance, charter provision, rule, permit condition, or executive or administrative directive or order from banning or otherwise regulating the:

(1) Genetic modification of any plant organism; or

(2) Planting, growing, testing, advertisement, labeling, packaging, handling, transportation, distribution, use, notification of use, certification, or registration of any genetically modified plant organism. An exception from this prohibition is provided for a county zoning ordinance or land use permit condition that does not treat the planting or growing of any genetically modified plant organism in a discriminatory manner.

This provision is based upon the preemption laws of certain other states.

(d) The moratorium imposed in this Act is expressly not severable from the other provisions. If the prohibition on banning the genetic modification within the State of any non-Hawaiian taro or other non-taro plant organism is repealed by a subsequent legislature or ruled invalid by a court, then the moratorium concerning Hawaiian taro shall be automatically terminated. This Act is a compromise between opponents of the genetic modification of Hawaiian taro and advocates of biotechnology. By designating this Act as non-severable, the legislature has formulated a measure under which the moratorium is intended to fall if any other provision falls. The legislature does not intend that there be a "winner" should proponents of the moratorium succeed in altering this Act to the detriment of biotechnology advocates.

The legislature recognizes that a subsequent Act may repeal or amend the non-severability language. The legislature, however, expresses the hope that future legislatures will refrain from doing so out of respect for the compromise reached under this Act.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

GENETICALLY MODIFIED TARO AND OTHER PLANT ORGANISMS

   -A Definitions. For the purposes of this chapter:

"County regulatory action" means a county ordinance, charter provision, rule, permit condition, or executive or administrative directive or order.

"Genetic modification" means alteration to a life form or its living progeny at the nucleic acid level using the techniques collectively referred to as recombinant DNA technology.

"Growing" includes cultivating, propagating, and raising.

"Hawaiian taro" means the following varieties of taro:  aweu, mana ula, mana opelu, mana weo, mana ulaula, mana lauloa, mana keokeo, mana kukuluhema, piko lehua-apei, piko ulaula, piko kea, piko keokeo, piko uaua, piko uliuli, piko eleele, elepaio, uahiapele, manapiko, kai uliuli, kai ala, kai kea, apuwai, apu, piialii, paakai, moana, lauloa eleele-omao, lauloa eleele-ula, lauloa palakea-eleele, lauloa palakea-ula, lauloa palakea-papamu, lauloa palakea-keokeo, lauloa keokeo, eleele makoko, eleele naioea, manini-owali, kumu-eleele, nawao, ulaula kumu, ulaula poni, ulaula moano, oopukai, manini uliuli, manini kea, papakolea-koae, ula, nihopuu, manini-opelu, hinupuaa, ohe, lehua maoli, lehua keokeo, lehua eleele, lehua palaii, apowale, wehiwa, papapueo, kuoho, leo, maea, haokea, kalalau, hapuu, laaloa, lauloa uliuli, lihilihimolina, mana eleele, mana okoa, moi, oene, pikoele, pololu, Maui lehua, and red moi.

"Recombinant DNA technology" means the transfer of genes, regulatory sequences, or nucleic acid between hosts by the use of vectors or laboratory manipulations and includes the insertion, excision, duplication, inactivation, or relocation of specific genes, regulatory sequences, or sections of nucleic acid. This term does not apply to a material or an organism developed exclusively through traditional methods of breeding, hybridization, or nondirected mutagenesis.

"State regulatory action" means a state statute, rule, permit condition, or executive or administrative directive or order.

   -B Moratorium on genetic modification of Hawaiian taro and testing, planting, or growing of Hawaiian taro genetically modified outside the State; conditions for earlier termination. (a) Until June 30, 2013:

(1) No person shall genetically modify within the State any Hawaiian taro; and

(2) No person shall test, plant, or grow within the State any Hawaiian taro that has been genetically modified outside the State.

(b) Any person who violates subsection (a) shall be subject to a civil fine of not more than $1,000 for each day a violation occurs. The department of the attorney general shall enforce this section and may establish procedures to administratively adjudicate an alleged violation and recover from a violator the department's cost to investigate and adjudicate the violation and collect the fine. When requested by the department of the attorney general, the department of agriculture shall assist the department of the attorney general in the performance of these duties.

(c) After June 30, 2013, the activities described under subsection (a) shall no longer be prohibited.

(d) The prohibitions of subsection (a) shall be terminated before June 30, 2013, without legislative action upon either of the following:

(1) The effective date of any state statute or constitutional amendment that expressly or implicitly repeals or supersedes any provision of section    ‑C or section    ‑D; or

(2) The entry of judgment by a court of competent jurisdiction that invalidates any provision of section    ‑C or section    ‑D.

-C Prohibition on state regulatory action banning or restricting certain activities relating to genetic modification of plant organisms. (a) No state regulatory action shall ban or restrict a person from genetically modifying within the State any non-Hawaiian taro or other non-taro plant organism if the genetic modification is performed in accordance with a valid permit from the relevant federal agency.

(b) Except as provided under subsection (c), no state regulatory action shall ban or restrict a person from testing, planting, or growing within the State any genetically modified non-Hawaiian taro or genetically modified non-taro plant organism; provided that, if a valid permit from a federal agency is required for testing, planting, or growing the genetically modified non-Hawaiian taro or other non-taro plant organism, the person shall perform the testing, planting, or growing in accordance with the permit.

(c) A state regulatory action may regulate the testing, planting, or growing of a plant organism in a manner not discriminatory against any genetically modified plant organism. A state regulatory action shall be deemed "discriminatory against any genetically modified plant organism" if the action has a prohibitory or regulatory effect on a genetically modified plant organism that differs from the effect on a similar non-genetically modified plant organism.

(d) Any state regulatory action in contravention of this section shall be void as against public policy.

   ‑D Preemption of county regulatory action banning genetic modification of plant organisms or regulating certain other activities relating to genetically modified plant organisms. (a) No county regulatory action shall ban or otherwise regulate the genetic modification of any plant organism.

(b) Except as provided under subsection (c), no county regulatory action shall ban or otherwise regulate the planting, growing, testing, advertisement, labeling, packaging, handling, transportation, distribution, use, notification of use, certification, or registration of any genetically modified plant organism.

(c) A county zoning ordinance or land use permit condition may regulate agricultural uses and activities at a site in a manner not discriminatory against any genetically modified plant organism. A county zoning ordinance or permit condition shall be deemed "discriminatory against any genetically modified plant organism" if the ordinance or permit condition has a prohibitory or regulatory effect on a genetically modified plant organism that differs from the effect on a similar non-genetically modified plant organism.

(d) Any county regulatory action in contravention of this section shall be void as against public policy.

   ‑E Court proceedings to enforce chapter. (a) If the attorney general reasonably believes that a state or county regulatory action violates section    ‑C or section    ‑D, as applicable, the attorney general may commence appropriate action in circuit court to invalidate the state or county regulatory action.

(b) Any other person who is or may become aggrieved by a state or county regulatory action that violates section    ‑C or section    ‑D, as applicable, may join in the action filed by the attorney general or file the person's own action in circuit court to invalidate the state or county regulatory action.

   ‑F Chapter not severable. This chapter shall not be severable. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, then all provisions of this chapter shall be invalid."

SECTION 3. This Act shall take effect on July 1, 2008.