Note: The following is a response to a letter to GMO Free Humboldt by Ag Commissioner Jeff Dolf, and an edited version of the group's draft ordinance addressing his feedback. – Ed.
October 24, 2013
Commissioner Jeff Dolf
Humboldt County Department of Agriculture
5630 S. Broadway
Eureka, CA 95503
Dear Commissioner Dolf:
Thank you very much for your thoughtful review of the draft Humboldt County Genetic Contamination Prevention Ordinance and for the resulting comments contained in your letter dated October 11, 2013. Thank you, also, for taking the time to meet on October 22, 2013, to discuss the Ordinance.
We have carefully reviewed the six comments you provided. Below are our responses to each comment. It is our goal to answer the questions you have posed, address the concerns you have articulated, and identify specific changes we are making to the language of the Ordinance in response to some of those concerns. Also attached, for your reference, is a “red-lined” version of the Ordinance showing those specific changes.
We recognize that genetic engineering is a complex and emerging area of technology, and we appreciate that this will be a new endeavor for the Agricultural Commissioner’s Office. However, as a result of the way we have written the Ordinance and based on the experiences of other counties in our region with similar ordinances, we believe that enforcement of the Ordinance will be relatively straightforward and will not require staff with specialized knowledge in this area. Nevertheless, we have written substantial flexibility into the Ordinance in Section 7(a) by allowing for the Commissioner to seek advice from other County agencies or to request that enforcement of a particular case be assigned to another agency by the Board of Supervisors when appropriate. We hope that the experiences of other local governments, along with this built-in flexibility, help to address any concerns you may have on the subject of staff expertise.
It is our intent to minimize any potential enforcement costs which the Commissioner or the County may bear. As noted in your letter of October 11, costs related to abatement activities will be recovered through established nuisance abatement procedures. However, we appreciate your concern about costs arising from administrative procedures stemming from reports which do not result in substantiated violations. We are confident that such costs will be minimal, for three reasons. First, we anticipate that, per the procedures specified in the Ordinance, most of the information required for the Commissioner to determine a violation will be provided directly and voluntarily by the person who files a report under Section 7(b) and the person alleged to have violated the Ordinance, with little need for active investigation. Second, based on the experience of other local counties with similar ordinances, we don't expect a high volume of reports or of actual violations. Third, even in cases where the Commissioner must actively investigate, we anticipate that matters will often be resolved without resorting to lab tests or other more costly procedures.
Even though we are confident that non-recovered enforcement costs for the Ordinance will be minimal, we nevertheless appreciate that even small and temporary unexpected expenditures can be difficult in the present budget environment. Therefore, we are editing Section 7(f) of the Ordinance to include specific language enabling the Commissioner’s use of the revolving fund(s) for nuisance abatement which the County has already created pursuant to Humboldt County Code Section 351-31. This will help to ensure that the Commissioner's budget isn’t required to bear even the small or short-term costs which may accrue through any administrative or enforcement proceedings under the Ordinance.
We first respectfully note that this is not a criminal ordinance, and the standards for criminal evidence need not necessarily apply. In fact, we believe that it will often be difficult for those suspecting a violation of the Ordinance to obtain evidence to support those suspicions, whether valid or not. Therefore, it is important that even "hearsay" allegations be entertained. However, we agree that the Commissioner should have some level of discretion in determining whether a particular report merits the commencement of enforcement proceedings. Therefore, we are editing Section 7(c) of the Ordinance to specify that the Commissioner need only act on a report if it leads him to believe there may actually be a violation. To ensure that valid but less-than-perfectly documented complaints are not dismissed out of hand, we have also added language specifying that in making such determination, the Commissioner must consider the difficulty for the filer of the report in gathering relevant evidence.
The Commissioner would possess the same power and authority and be required to follow the same legal procedures as any other County official enforcing any other code violation or investigating any other potential nuisance. We do not believe that investigation or enforcement under this Ordinance will pose any new challenges which are not addressed under existing legal frameworks.
We appreciate your concern that sufficient time be allowed for a thorough investigation. We would note that testing for contamination, where required, is not a lengthy procedure. For example, one of the closest laboratories which specializes in GMO testing, OMIC in Portland, has a normal turnaround time of 4-5 business days listed on its website. Therefore, we believe that the 30-day evidence collection period in response to allegations will generally be sufficient. However, in light of your concern, we have added to Section 7(d) an optional 30-day extension of the evidence collection period which the Commissioner could grant should circumstances require.
As you likely inferred, the inclusion of adjudicative and administrative procedures by reference was intentional. We believe that it is best to rely on existing rules and procedures, which have been tested and proven over time, wherever possible. In other words, we chose not to "reinvent the wheel," but rather to rely on existing nuisance abatement procedures to complete the details of the enforcement program not laid out in the ordinance itself. The existing procedures establish that in the case of summary abatement, matters proceed directly to a Notice of Assessment and hearing on such Notice, and that the action of the Board on such matters "shall be final and conclusive." This is the reason we have not included specific appeal procedures. We would note, however, that of course those aggrieved by final actions of the County generally have recourse to the courts for appeals.
Again, we are grateful for your thoughtful input on the draft Ordinance, and we sincerely hope that we have addressed your concerns to your satisfaction. We also hope that you will not hesitate to again contact us directly should you have any further questions, comments, or concerns as our initiative moves forward.
Committee for a GMO Free Humboldt
P.O. Box 5145
Arcata, CA 95518
The edited ordinance
THE PEOPLE OF THE COUNTY OF HUMBOLDT ORDAIN AS FOLLOWS:
Section 1 – Title
This ordinance shall be known as the Humboldt County Genetic Contamination Prevention Ordinance.
Section 2 – Findings and Purpose
The People of the County of Humboldt, desiring to protect our agricultural and natural resource industries, our natural environment, the private property rights of our citizens, and the health, safety and welfare of our people, deem it advisable and appropriate to restrict the propagation, cultivation, raising and growing of genetically engineered crops, livestock, and other organisms in the County.
Genetically engineered organisms and products are being developed with precipitous speed, and have been introduced into the marketplace before the potential risks and long-term health and environmental effects of these organisms and products have been adequately studied.
It is undeniable that genetically engineered organisms have the potential to contaminate other organisms, both cultivated and wild, through normal reproductive processes. In the case of crops and other plants, such contamination can occur at a great distance through cross-pollination. Such contamination becomes virtually certain once the introduction of genetically engineered organisms is widespread, and once it occurs is irreversible.
Many companies and markets do not accept genetically engineered food products. Therefore, the danger of contaminating and thereby reducing the value of neighboring crops by genetically engineered crops creates a serious economic threat to Humboldt County farmers. Conversely, minimizing the risk of such contamination can provide our farmers with a valuable marketing tool for their products.
Organic agriculture is a vital and growing industry in Humboldt County. As of 2011, 19% of the total value of the County’s agricultural products was attributable to organic agriculture. Furthermore, the organic dairy market is growing at 9% per year nationally, and Humboldt County has made a particular niche for itself in organic dairy production. Organic farmers are prohibited from using genetically engineered products. Nevertheless, the risk of contamination can erode public confidence in organic products, significantly undermining the job-creating, economy-boosting growth of the organic market.
Contamination and potential contamination by genetically engineered crops threatens generations of seed-saving and selection of diverse, locally adapted varieties by Humboldt County farmers and gardeners. Furthermore, the ownership of many genetically engineered traits by private entities means that such contamination may create a threatening and onerous legal situation for affected farmers and gardeners, through no fault of their own.
The cultivation of genetically engineered crops to date has had a serious negative impact on the natural environment, in part because the vast majority of such crops are designed to withstand herbicide use. This has promoted indiscriminate herbicide use, causing an additional 527 million pounds of additional herbicides to be applied to our nation’s farmland.
Other impacts on our natural environment from genetically engineered organisms, their production, and contamination from such are unpredictable, potentially serious, ultimately uncontrollable, and have received little study.
The impacts of the direct introduction into Humboldt County of genetically engineered organisms such as trees or fishes, or contamination by the same, would be unknowable in advance. However, such introduction or contamination would have the potential to seriously imperil local ecosystems, to threaten traditional ways of life in our rural county, and to undermine critical local industries including forestry, fisheries, and tourism.
Recognizing the serious risks inherent to the introduction and use of genetically engineered organisms, many countries and regions around the world have prohibited or strictly regulated their cultivation, use and/or importation. In the absence of such appropriate, effective regulation in California or the broader United States, many local governments in our region have acted to restrict or prohibit the growing of genetically engineered organisms within their borders. Such local governments include the Counties of Mendocino, Marin, Trinity and Santa Cruz, and the City of Arcata.
For these reasons, the People of Humboldt County find that the propagation, cultivation, raising or growing of genetically engineered organisms in the County is not consistent with proper and accepted agricultural customs and standards and constitutes a public nuisance. Furthermore, because the risk of genetic contamination or ecosystem invasion increases the longer a genetically engineered organism remains in an uncontrolled environment, the People find that the public nuisance caused by the propagation, cultivation, raising or growing of genetically engineered organisms can only be remedied by means of the summary abatement procedures set forth under Humboldt County Code Section 351-1.2, as set forth below.
Section 3 – Definitions
“Commissioner” means the Humboldt County Agricultural Commissioner.
“DNA” means deoxyribonucleic acid, the material naturally found within living cells which contains the genetic code and transmits hereditary patterns.
“Genetic engineering” means altering or amending the genetic material of an organism through the application of: (a) in vitro nucleic acid techniques, which include but are not limited to recombinant DNA techniques, direct injection of nucleic acids into cells or organelles, encapsulation, gene deletion and doubling; or (b) methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction and hybridization.
“In vitro nucleic acid techniques” include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into organisms of hereditary material prepared outside the organisms, such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion.
“Organism” means any biological entity capable of replication, reproduction or transferring of genetic material, exclusive of human beings and human fetuses.
“Genetically engineered organism” means an organism, or the offspring of an organism, the DNA of which has been altered or amended through genetic engineering. Such organisms are also sometimes referred to as “genetically modified organisms” or “GMOs.” For the purposes of this definition, an animal which has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any food or drug that has been produced through means of genetic engineering, shall not be considered genetically engineered.
Section 4 – Prohibitions
It is unlawful for any person, partnership, corporation, firm or entity of any kind to propagate, cultivate, raise or grow genetically engineered organisms in the County. Any act in violation of this provision is declared to constitute a public nuisance.
Section 5 – Exemptions
(a) Nothing in this Ordinance shall make it unlawful for:
any person or other legal entity in the County to purchase, sell, or distribute genetically engineered human food or animal feed;
any licensed health care practitioner to provide any diagnosis, care or treatment to any human patient; or
any research institutions, laboratories or manufacturing facilities in the County to conduct research involving genetically engineered organisms whose reproduction in the environment can be physically contained. Such research activities must be conducted under secure, enclosed indoor laboratory conditions, with utmost precautions to prevent release of genetically engineered organisms into the outside environment.
Section 6 – Effective Date and Transitional Period
This Ordinance shall take effect immediately upon approval by the voters of Humboldt County, except as set forth here and below.
Any person or other legal entity who is already propagating, cultivating, raising or growing genetically engineered organisms in the County on or before the date this Ordinance is approved by the voters of Humboldt County shall be permitted to maintain such organisms until January 1, 2016. As of that date, any person or other legal entity who has continued propagating, cultivating, raising or growing genetically engineered organisms in the County during this transitional period shall be required to destroy and safely dispose of, or remove completely and permanently from the County, any remaining genetically engineered organisms.
None of the provisions of this Ordinance shall be construed to permit any person or other legal entity who is not already propagating, cultivating, raising or growing genetically engineered organisms in the County to begin to do so after this Ordinance takes effect.
None of the provisions of the Ordinance shall be construed to permit any person or other legal entity who is already propagating, cultivating, raising or growing genetically engineered organisms in the County to propagate, cultivate, raise or grow any genetically engineered organisms not already living and established in the County, or otherwise to begin any new activity prohibited by Section (4) of this Ordinance, after it takes effect.
Section 7 – Enforcement
The Commissioner shall be the official charged with enforcement of this Ordinance and may exercise such powers as may be necessary or convenient to carry out and effectuate the purposes and provisions of this Ordinance. However, the Commissioner may request enforcement assistance or advice from other County officials. The Commissioner may also request that the Board of Supervisors direct any other County department or official to enforce this Ordinance in any case or set of cases where such action may be necessary or appropriate.
The Commissioner shall create and provide for a procedure for any person to report any known or suspected violation of this Ordinance.
Upon the receipt of a report described in Section 7(b) or any other information which leads the Commissioner to believe that there may be a violation of this Ordinance, the Commissioner shall immediately notify any person or other legal entity that may be in violation of this Ordinance pursuant to Humboldt County Code Section 351-12. In determining whether such report or information justifies the commencement of enforcement proceedings, the Commissioner shall consider the difficulty which may face the filer of such report in collecting evidence to support such allegation.
Any person or other legal entity who receives such notice described in Section 7(c) of this Ordinance shall have thirty (30) days to respond to such notification with evidence that such person or entity is not in violation of this Ordinance, or to destroy such genetically engineered organisms as they are cultivating, propagating, raising or growing in violation of this Ordinance or remove them completely and permanently from the County and provide evidence of such destruction or removal. Any person or other legal entity who receives such notice described in Section 7(c) of this Ordinance may request, and the Commissioner may at his or her sole discretion approve, an additional thirty (30) days to respond to such notification should such additional time be reasonably required to gather and submit required evidence.
Upon receipt of any evidence submitted pursuant to Section 7(d), or upon the expiration of the relevant time period described in Section 7(d), whichever comes first, the Commissioner shall review such evidence and any other relevant evidence. Within fifteen (15) days of commencing such review, the Commissioner shall determine if the person or entity is in violation of this Ordinance.
Any violation of this Ordinance shall constitute a public nuisance. Any finding of continuing violation of this Ordinance by the Commissioner shall also constitute a finding of immediate threat to public health and safety, and the Commissioner shall immediately order summary abatement as set forth in Humboldt County Code Section 351-1.2 in order to destroy or permanently and completely remove any such genetically engineered organisms. Any costs of enforcing the provisions of this Ordinance may be paid out of the revolving fund(s) established pursuant to Humboldt County Code Section 351-31, and any costs recovered pursuant to Humboldt County Code Section 351-16(g) may be deposited into such fund(s).
The provisions of this Ordinance are cumulative, and nothing in this Ordinance affects any other remedies any individual or government entity may have against any person resulting from a violation of this Ordinance.
The Commissioner shall submit an annual report to the Board containing a brief description of all complaints received and enforcement actions taken under this Ordinance, if any, along with any other relevant information or analysis the Commissioner may choose, at his or her discretion, to include. A copy of such report shall be posted on the County Department of Agriculture’s official website.
Section 8 – Severability
The provisions of this Ordinance are severable. If any provision of this Ordinance or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
Committee for a GMO Free Humboldt
Fairness. Prosperity. Protection.