SENATE BILL 560
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Cisco McSorley
AN ACT
RELATING TO AGRICULTURE; ENACTING THE FARMER PROTECTION ACT; IMPOSING LIABILITY; ESTABLISHING DEFENSES; REQUIRING REPORTS; PROHIBITING CERTAIN CROPS; PROVIDING AN INSPECTION AND SAMPLING PROTOCOL; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Farmer Protection Act".
Section 2. DEFINITIONS.--As used in the Farmer Protection Act:
A. "department" means the New Mexico department of agriculture;
B. "director" means the director of the department or the director's designee;
C. "DNA" means deoxyribonucleic acid;
D. "farmer" means the person responsible for planting a crop, managing the crop and harvesting the crop from land on which a breach of contract or patent infringement is alleged to have occurred;
E. "genetically engineered plant" means a plant or any plant part or material, including seeds and pollen, in which the genetic material has been changed through modern biotechnology in a way that does not occur naturally by multiplication or natural recombination;
F. "manufacturer" means a person that develops or creates a genetically engineered plant for field trials or for commercial purposes, but does not include a person that is a farmer;
G. "modern biotechnology" means the application of in vitro nucleic acid techniques, fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive or recombination barriers and that are not techniques used in traditional breeding and selection, including the following:
(1) recombinant DNA;
(2) direct injection of nucleic acid into cells or organelles; and
(3) recombinant DNA techniques that use vector systems and techniques involving the direct introduction into the organism of hereditary materials prepared outside the organism, such as microinjection, macroinjection, chemoporation, electroporation, microencapsulation and liposome fusion;
H. "open field production" means the planting, growing, propagation or cultivation of any genetically engineered plant outside an enclosed structure, such as a greenhouse, indoor laboratory or other self-contained production system;
I. "pharmaceutical crop" means a seed or plant that is genetically engineered to produce compounds for which commercial use requires approval from the following:
(1) the federal food and drug administration center for biologics evaluation and research;
(2) the federal food and drug administration center for drug evaluation and research;
(3) the federal food and drug administration center for veterinary medicine; or
(4) the United States department of agriculture center for veterinary biologics;
J. "seed" means agricultural seed or vegetable seed used to grow a commercial agricultural or a commercial vegetable crop;
K. "seed contract" means a written contract between a seed supplier and a farmer that a farmer must sign to obtain the seed or the right to plant the seed; and
L. "seed supplier" means a person engaged in commercial production, manufacture or supply of seed or technology genetically engineered into seed.
Section 3. MANUFACTURER LIABILITY--DEFENSES--JOINT LIABILITY--WAIVER OF LIABILITY.--
A. The release by a manufacturer, directly or through its licensees or agents, of a genetically engineered plant shall constitute a private nuisance for which the manufacturer shall be liable if the following conditions are met:
(1) the release causes the presence of the plant within the property owned or occupied by a person for whom the plant presence was not intended and with whom the manufacturer has not entered into a seed contract or a license, and thereby constitutes an unreasonable interference with the use and enjoyment of that person's property; and
(2) the release results in damages in any calendar year that exceed five hundred dollars ($500), thereby constituting substantial interference with the use and enjoyment of the person's property.
B. Defenses at law or equity available in a private nuisance action apply to actions brought pursuant to this section, except it shall not be a defense to an action based on the liability set forth in Subsection A of this section that genetically engineered plants are in common or general use in the geographic region in which the property on which the nuisance occurs are located, nor shall the person owning or occupying the property have a duty to establish buffer zones, segregation protocols or otherwise initiate measures to protect specifically against the potential release of genetically engineered plants onto that person's property.
C. A person who is not in breach of a seed contract regarding the purchase or use of a genetically engineered plant and that unknowingly comes into possession of a genetically engineered plant or that uses a genetically engineered plant as a result of natural reproduction, cross-pollination, seed mixing or other commingling or unintended presence or other contamination shall not be liable for any damages, attorney fees or costs caused by the possession or use of that genetically engineered plant.
D. A manufacturer shall have a defense to liability for an action based on the liability set forth in Subsection A of this section if the court finds that all of the following conditions are met:
(1) the property from which the genetically engineered plant was released can be determined;
(2) the owner of the property from which the genetically engineered plant was released, or the owner's agent, signed a seed contract with the manufacturer for the genetically engineered plant and received a training manual from the manufacturer;
(3) the damages would not have occurred had the property owner or the property owner's agent followed the terms of the manufacturer's seed contract and training manual; and
(4) the property owner or the property owner's agent willfully or with gross negligence contaminated the plaintiff's property, products or facilities.
E. A person found to have willfully or with gross negligence contaminated the plaintiff's property, products or facilities shall be liable for damages in lieu of, and to the same extent as, a manufacturer.
F. A prevailing plaintiff in an action under this section may recover damages as are recoverable at common law in an action for private nuisance, reasonable attorney fees and other litigation expenses and costs, including expert witness fees.
G. The liability created by this section shall not be waived or otherwise avoided by contract or other means.
H. A cause of action arising pursuant to this section shall be in addition to and not in lieu of existing actions at law and equity; provided, however, there shall be only one recovery of any specific damages as defined in this section.
Section 4. GENETICALLY MODIFIED PLANT DATABASE--REPORTING DUTIES--PENALTIES.--
A. Not less than thirty days prior to the open field production of a genetically engineered plant, a person intending to undertake that production shall notify the director. Notice to the director shall be provided on a form made available by the department. The department shall make every reasonable effort to reduce the burden of submitting the notice, including making the form available and allowing it to be submitted by hard copy and in an electronic format.
B. The notice required pursuant to Subsection A of this section shall include the following information regarding the open field production of a genetically engineered plant:
(1) proposed date of open field production;
(2) proposed location and number of acres;
(3) the kind, variety, type and lot number, as those terms are defined in Part 201 of Title 7 of the Code of Federal Regulations, of a seed or plant;
(4) trait or traits for which the plant is genetically engineered; and
(5) any additional information requested by the director.
C. The department shall include in an annual report to the legislature information collected during the year pursuant to Subsection B of this section on the number of acres of open field production of genetically engineered plants, the types of crops produced and the genetic traits of those crops. Information shall be presented as a countywide aggregate.
D. The director may levy a civil penalty against any person who violates the reporting requirements set forth in Subsections A and B of this section or any rules adopted pursuant to those subsections in an amount not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) for each violation. The amount of the penalty assessed for each violation shall be based upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of the Farmer Protection Act, the violator's history of previous violations and the impact of the penalty on the violator, including the deterrent effect on future violations. For a first offense, in lieu of a civil penalty as set forth in this subsection, the director may issue a notice of violation. Following a third or subsequent violation, the violator shall be restricted from planting in New Mexico for a period of twelve months.
Section 5. PROHIBITED ACTIONS--INVESTIGATIONS.--
A. The production within New Mexico of a pharmaceutical crop that meets both of the following conditions is prohibited:
(1) the pharmaceutical crop is produced by means of open field production; and
(2) the pharmaceutical crop is of a plant species that is commonly produced for use as food for humans or animals.
B. The department shall investigate suspected violations of Subsection A of this section based upon a reasonable belief that the subject of the investigation is not in compliance with that subsection.
C. The director may levy a civil penalty against any person who violates Subsection A of this section or any rules adopted pursuant to that subsection, in an amount not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) for each violation. The amount of the penalty assessed for each violation shall be based upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of the Farmer Protection Act, the violator's history of previous violations and the impact of the penalty on the violator, including the deterrent effect on future violations. Following a third or subsequent violation, the violator shall be restricted from planting in New Mexico for a period of twelve months.
Section 6. INSPECTIONS.--
A. This section and Sections 7 through 9 of the Farmer Protection Act apply to the inspection of seed and the crop growing from seed by a seed supplier pursuant to the seed supplier's rights pursuant to a seed contract.
B. A seed contract shall not give or be interpreted to give a seed supplier or an agent of a seed supplier the right to enter real property owned or occupied by the farmer to acquire samples of the crop grown from the seed or any other plant growing on that real property. A seed supplier of genetically engineered plant seed may only enter upon real property farmed by another person for the purpose of obtaining crop samples if both of the following conditions are met:
(1) the seed supplier notifies the farmer and the director of the seed supplier's desire to enter onto the real property and of the purpose the requested entry and requests written permission from the farmer or the farmer's agent to enter upon the farmer's real property; and
(2) the seed supplier obtains the written permission of the farmer to enter upon the real property of the farmer; the farmer shall grant or deny the request of the seed supplier within a reasonable period of time.
C. If a seed supplier or a farmer requests the director to participate in or conduct the collection of samples or any other aspect of the sampling or analysis process, the director shall designate an employee of the department or enter into an agreement with another person to participate in or conduct the specified activity.
Section 7. SAMPLING PROTOCOL.--
A. The seed supplier shall reasonably cooperate with a farmer and the director or their agents in the course of the activities set forth in this section.
B. The seed supplier shall permit the farmer and the director or their agents to accompany the seed supplier or the seed supplier's agent while samples are taken. An employee of the department shall oversee the collection of samples. If the director or an agent of the director accompanies the seed supplier on the real property to take samples under this section, the seed supplier shall reimburse the reasonable costs incurred by the director or the director's agent, as determined by the director, in connection with such activity.
C. Plant material samples shall be acquired in a manner that is agreed upon by the parties involved. In the event that an agreement cannot be reached, the manner for sample acquisition shall be prescribed by the director. The samples may only be taken from a standing crop, from representative standing plants in the field or from crops remaining in the field after harvest. Samples shall be taken by department personnel. The department may select another entity to collect samples if all parties agree.
D. A seed supplier shall take no more samples than those deemed by the director to be reasonably necessary. An equal number of samples shall remain in the custody of the director or the farmer for future comparison and verification purposes.
E. All samples taken shall be placed in containers and labeled as to the date, time and location from which they were taken, and the labels shall be signed by the farmer or farmer's agent, the person who took the samples and the director or director's agent.
F. Within sixty days from the date the samples are taken, an independent laboratory shall conduct all tests on the samples.
G. The parties shall mutually agree upon the laboratory and the methods used for the analysis of samples. If the laboratory or methods cannot be agreed upon, an independent third party agricultural mediator shall make the final determination of the laboratory and methods to be utilized. The seed supplier shall pay the reasonable costs incurred by the need for mediation. The results of all tests on the seeds shall be reported by the testing laboratory to the director.
H. Any plant material remaining after analysis is complete shall be retained by the laboratory or the department in an appropriate manner.
I. The results of testing shall be sent by registered letter to the seed supplier and the farmer within thirty days after the results are reported from the testing laboratory to the director.
Section 8. DENIAL OF PERMISSION TO INSPECT--NOTICE OF SUITS.--
A. If a farmer denies permission for a seed supplier to enter upon the farmer's real property for an inspection pursuant to Section 6 of the Farmer Protection Act, the seed supplier may petition the district court for the county in which the real property is located for an order granting permission to enter upon the farmer's real property. If the court issues such an order, the order shall require that the sampling protocol set forth in Section 7 of the Farmer Protection Act be implemented. A court order shall not interrupt or interfere with normal farming practices, including harvest and tillage.
B. The parties may participate in mediation at any time. The mediation shall be conducted by a mediator jointly selected by the parties. If the parties cannot agree on a mediator, the mediation shall be conducted by an independent agricultural mediation service.
C. If a seed supplier files suit against a farmer, the seed supplier shall provide simultaneous written notice of the suit to the director. The director shall keep a file of all notices of suits received pursuant to this section.
Section 9. RIGHT OF ACTION FOR VIOLATIONS--DAMAGES--ATTORNEY FEES AND COSTS--CHOICE OF LAW--JURISDICTION--VENUE.--
A. A farmer has a right of action against a seed supplier if the seed supplier or an agent of the seed supplier violates the provisions of the Farmer Protection Act.
B. If a farmer prevails in an action filed pursuant to this section, the farmer is entitled to recover from the seed supplier the following:
(1) actual damages proven by the farmer resulting from the seed supplier's violation of the Farmer Protection Act; and
(2) the farmer's reasonable attorney fees and other litigation costs, including expert witness fees, incurred in connection with the action.
C. A seed contract authorizing the use of a genetically engineered plant in New Mexico is governed by the law of New Mexico. New Mexico law shall govern any dispute relating to or arising out of the use of a genetically engineered plant in New Mexico, notwithstanding any contrary choice of law contractual provision. Any provision in a contract purporting to waive or preclude the application of New Mexico law and to choose the laws of another jurisdiction to govern the contract, or to choose a forum for adjudication of disputes arising out of the contract that would not otherwise have jurisdiction over the parties to the contract, is void and unenforceable.
D. The proper venue for an action pursuant to the Farmer Protection Act is the district court in the county in which the damage occurred. Any contractual provision purporting to waive or preclude New Mexico as the proper venue is void and unenforceable.
E. Any provision in a contract purporting to waive or preclude the application of New Mexico law and to choose the laws of another jurisdiction to govern the contract, or to choose a forum for adjudication of disputes arising out of the contract that would not otherwise have jurisdiction over the parties to the contract, is void and unenforceable.
Section 10. SEVERABILITY.--If any part or application of the Farmer Protection Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
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