Report Title:

Genetically Modified Organisms; Preemption; Exceptions

 

Description:

Prohibits state administrative regulatory actions and county regulatory actions from banning or otherwise regulating activities related to genetically modified plant organisms, with certain exceptions (HB1226 HD1)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1226

TWENTY-FIFTH LEGISLATURE, 2009

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO GENETICALLY MODIFIED PLANT ORGANISMS.

 

 

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

 


SECTION 1. The purpose of this Act is to address genetically modified plant organisms. More specifically, this Act preempts any state administrative regulatory action or county regulatory action that bans or restricts certain activities relating to genetically modified plant organisms.

This Act, however, provides an exception from the preemption. This Act states that it is not superior to any county ordinance that became effective before January 1, 2009, that makes it unlawful for any person to take certain actions relating to particular species of genetically engineered plant organisms. This Act is not intended to supersede or nullify such a county ordinance. The legislature finds that ordinance No. 08-154 of the county of Hawaii is such an ordinance.

This Act also provides another exception from the preemption by stating that it is not superior to any state statute that prohibits the development, testing, propagation, release, importation, planting, or growing in the State of Hawaii of any genetically modified Hawaiian taro. This Act is not intended to supersede, nullify, or implicitly repeal such a state statute.

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 PLANT ORGANISMS

   ‑1 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.

"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. The term does not apply to a material or an organism developed exclusively through traditional methods of breeding, hybridization, or nondirected mutagenesis.

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

   ‑2 Prohibition of state administrative regulatory action. (a) No state administrative regulatory action shall ban or restrict a person from genetically modifying within the State any 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 administrative regulatory action shall ban or restrict a person from testing, planting, or growing within the State any genetically modified plant organism; provided that, if a valid permit from a federal agency is required for testing, planting, or growing the genetically modified plant organism, the person shall perform the testing, planting, or growing in accordance with the permit.

(c) A state administrative 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 administrative 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 administrative regulatory action in contravention of this section shall be void as against public policy.

   ‑3 Preemption of county regulatory action. (a) Except as otherwise provided under section    -5, no county regulatory action shall ban or otherwise regulate the genetic modification of any plant organism.

(b) Except as provided under subsection (c) or section    ‑5, 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.

   ‑4 Court proceedings to enforce chapter. (a) If the attorney general reasonably believes that a state administrative regulatory action or a county regulatory action violates section    ‑2 or section    ‑3, as applicable, the attorney general may commence appropriate action in circuit court to invalidate the state administrative regulatory action or the county regulatory action.

(b) Any other person who is or may become aggrieved by a state administrative regulatory action or a county regulatory action that violates section    ‑2 or section    ‑3, 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 administrative regulatory action or the county regulatory action.

   ‑5 Exceptions. (a) This chapter shall not be superior to any county ordinance that:

(1) Took effect before January 1, 2009; and

(2) Made it unlawful for any person to test, propagate, cultivate, raise, plant, grow, introduce, or release particular species of genetically engineered plant organisms.

The provisions of the county ordinance relating to the particular species of genetically engineered plant organisms shall not be affected by this chapter.

(b) This chapter also shall not be superior to any state statute that prohibits the development, testing, propagation, release, importation, planting, or growing within the State of Hawaii of any genetically modified Hawaiian taro."

SECTION 3. This Act shall take effect on July 1, 2009.