Legislative Recap (2008 – 2009)

Maine’s 124th Legislature On Organic Farming & Gardening
By Heather Spalding

The first session of Maine’s 124th Legislature had our state’s economic health at the forefront of its activities. Going into the session, most policy advocates understood that bills with fiscal notes attached to them were likely going nowhere. While we felt that promoting healthy, local, organic foods could only benefit the economic health of Maine, we were prepared to focus on bills with little or no immediate financial implications for the State.

Members of the Joint Standing Committee on Agriculture, Conservation and Forestry (ACF), chaired by Senator John Nutting (D – Leeds) and Representative Wendy Pieh (D – Bremen), had a huge slate of agricultural legislation to consider. Despite some very challenging and complicated bills and debates, this was, overall, a successful session in the Legislature. We appreciate the leadership and support that came from the ACF, and are especially impressed by the dedication, creativity and vision shown by freshmen legislators Jeff McCabe (D – Skowhegan), Andy O’Brien (D – Lincolnville), and Peter Kent (D – Woolwich), and the continued support of Ben Pratt (D – Eddington), Nancy Smith (D – Monmouth), and Leila Percy (D – Phippsburg). We also are grateful to Representative Seth Berry (D – Bowdoinham), who sponsored the successful and pioneering pesticides notification bill.

For the first time in many years, MOFGA took the lead on several bills presented to the ACF. This year, MOFGA decided to step up our presence in Augusta and dedicate more time in the Capitol. We contracted with Logan Perkins, who has spent the past couple of years lobbying against the proliferation of genetically modified organisms in Maine agriculture. Logan did a wonderful job for all of us, as you’ll see in the summary of legislation results below. Logan is preparing for her first year at Lewis and Clark Law School in Portland, OR. We wish her the best, already miss her, and hope she returns to Maine in three years!

Also this year, MOFGA took the lead on one of the major bills of the Maine’s Environmental Priorities Coalition – a group of 27 conservation and public health organizations representing more than 100,000 members in Maine. The Coalition’s Common Environmental Agenda included seven priorities: to clean up Maine rivers, to prevent exposure to dangerous chemicals, to build greener energy and transportation systems, to create a legacy for today and future generations, and to prevent rollbacks on any existing environmental regulations. MOFGA’s role in the Coalition was to organize constituents around LD 1293: An Act To Require Citizen Notification of Pesticide Applications Using Aerial Spray or Air-carrier Application Equipment. See details on that in the New Laws/Rules That MOFGA Supports section below!

Here is a recap of the legislative session:

New Laws/Rules That MOFGA Supports

LD 708: An Act To Create a Moratorium on the Open-air Production of Genetically Engineered Pharmaceutical Crops in Maine. Description: This bill defines “pharmaceutical or industrial crop” and restricts production to indoor laboratory and research settings to prevent release of genetically engineered material from these crops. It requires the Commissioner of Agriculture, Food and Rural Resources to monitor and report changes in the federal regulation of these crops. Significance: Once again, Maine takes the lead in establishing environmental and human health protections for farmers, gardeners and consumers. This law places a 3-year moratorium on biopharmaceutical/industrial genetically engineered crops grown outdoors. It also protects our agricultural economy. Genetic contamination could devastate farmers, food processors and manufacturers, harming both domestic and overseas markets. These industries are proven economic drivers in our state. Maine products fetch a premium in the marketplace due to our reputation for high-quality, safe, healthy food. We should keep it that way. We all want safe, effective, lower-cost drugs. More than 100 new drugs have been developed using biotech techniques in contained, controlled facilities, but not one from 14 years of biopharm crop testing. We can have the benefits of biotechnology in drug and chemical production without undue risk.

LD 965: An Act To Establish Annual Reporting for Genetically Engineered Crops. Description: This bill requires a manufacturer to report annually to the Commissioner of Agriculture, Food and Rural Resources an estimate of the potential acreage of genetically modified crops that could be planted based on sales. Significance: This reporting will provide policymakers with baseline information and the ability to track trends in the use of this technology. Currently, there is no data on how much or what kind of genetically engineered crops are grown in the state. Farmers, consumers and policymakers need this basic information in order to make good decisions. There have been ongoing debates about the use of this technology for more than 10 years in this state and the Department of Agriculture has never presented policymakers with this basic information.

Appropriations Bill: Dairy Funding. Description: The Appropriations Bill changed the formula for dairy price support. Because of low dairy prices and high support payments, the Legislature approved changes that will limit the amount of money paid to dairy farmers over the next two years. Significance: MOFGA deferred to the Maine Organic Milk Producers and other farmers who supported a system that maintained payments as high as possible as long as possible. The Legislature passed a changed funding formula, and established a study commission to look at options for the future.

LD 1460: Resolve, Regarding Legislative Review of Portions of Chapter 41: Special Restrictions on Pesticide Use, a Major Substantive Rule of the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control. Description: Specifically, this bill added certain restrictions to crops that contain plant incorporated protectants. Significance: We were dismayed that the Board chose to approve Bt sweet corn for commercial production before the Board’s Medical Advisory Committee had adequate time to review it and make a decision. Farmers have planted it for sale and consumption this year.

LD 495: Resolve, Regarding Legislative Review of Portions of Chapter 10: Definitions and Terms, a Major Substantive Rule of the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control. Significance: The Board of Pesticides Control (BPC) established the concept of a “Sensitive Area Likely To Be Occupied” or a “SALO.” This presents an important distinction among areas in which pesticide spraying and drift should be avoided. “Sensitive Areas” are areas where pesticides shouldn’t drift. “SALOs” are areas where pesticides shouldn’t drift because people are in them. The BPC used this term in proposed amendments to another rule (see next bill summary), and is considering using it in proposed amendments to its spray notification rule in the next legislative session.

LD 494: Resolve, Regarding Legislative Review of Portions of Chapter 22: Standards for Outdoor Application of Pesticides by Powered Equipment in Order To Minimize Off-target Deposition, a Major Substantive Rule of the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control. Significance: Passage of this resolve establishes better protections for people concerned about pesticides drifting onto their properties. The amendments add important specificity about what applicators must to do ensure familiarity with sensitive areas in the spray zone. They also establish more strict standards for aerial spray applications including: positive identification of the target site; site plan requirements; and a site-specific application checklist. The ACF rejected a proposed 200 foot buffer zone around SALOs, opting instead for site-specific buffer zones around SALOs sufficient to prevent unlawful pesticide drift. In other words, the buffer could be more or less than 200 feet, depending on the site. MOFGA advocated for establishment of a clear and consistent buffer zone and pointed out that 200 feet should be an absolute minimum. The ACF expressed unanimous concern about the existing evidence of drift rule, which allows 20% of an intended application rate to fall on a neighboring property without violation. MOFGA supported the BPC’s recommendation to shift the policy to any detectable residue being evidence of drift, but the ACF majority voted to go with a 1% detection level. Clearly, this is a vast improvement over 20%, but ironically, this will result in much greater testing requirements and expense for the state than the originally proposed policy of a “detectable pesticide residue.”

LD 1293: An Act To Require Citizen Notification of Pesticide Applications Using Aerial Spray or Air-carrier Application Equipment. Description: This bill requires land managers to notify neighbors prior to the application of pesticides using aircraft or air-carrier equipment. It requires Maine’s Board of Pesticides Control to establish a registry of citizens for persons desiring additional information when pesticides are being applied using aircraft or air-carrier equipment within 1,320 feet of land owned, leased or resided upon by those persons. Significance: This is a common sense, right-to-know law that will help Maine citizens learn about and protect themselves from pesticides that may drift onto their properties. Under existing rules, Maine citizens wishing to know what pesticides are being sprayed in their neighborhoods have to make the initial effort to determine who owns the land being sprayed, and then request information from the landowners. LD 1293 puts the onus of initial notification on the persons causing the spray to happen. This law also will help protect Maine citizens from drift from air carrier (air blast) applications of pesticides. This was a priority bill of Maine’s Environmental Priorities Coalition. A special thank you goes out to Representative Seth Berry (D – Bowdoinham), who sponsored the bill, to Andy O’Brien (D – Lincolnville), who offered very important amendments that strengthened and clarified the bill for advocates on all sides of the bill, to Peter Edgecomb (R – Caribou) who offered a motion leading to unanimous support from the Joint Standing Committee on Agriculture, Conservation and Forestry (ACF), and, of course, to all the members of the ACF who carefully considered the interests of different farmers, gardeners and the general public. This is a precedent-setting bill for other states across the nation!

LD 692: Resolve, Directing the Commissioner of Agriculture, Food and Rural Resources To Develop Best Management Practices for Poultry Production. Description: This resolve directs the Commissioner of Agriculture, Food and Rural Resources to develop best management practices for poultry production and adopt rules to allow the Maine quality trademark to be used on poultry products. Significance: This is a first-level attempt to improve the welfare of chickens raised for egg production. It also seeks to leverage the use of the Maine Quality Seal as an indicator that the farmers using the seal meet a higher humane management standard. The proposed standards still need to be developed and put out for public comment. We will follow this closely in the months ahead.

LD 1034: An Act To Create Regulatory Exemptions for Poultry. Description: This bill allows a poultry producer to sell uninspected poultry at the producer’s farm, at farmers’ markets, or to members of the producer’s CSA. It also allows a producer to deliver the poultry to a customer’s home. It establishes labeling requirements for uninspected poultry. Significance: Maine has extremely limited processing facilities for poultry, making it difficult for producers to have their birds slaughtered and taken to market. For producers with fewer than 1,000 birds, it is logistically challenging and can be cost prohibitive to take birds to a licensed poultry processing plant. This law, while requiring producers to meet standards for the physical facilities and sanitary processes, will make it much easier for small scale producers to bring their poultry to market. Compliance regulations include: obtaining a license from the Department of Agriculture, Food and Rural Resources who would be allowed to inspect the facility at the time of licensing and periodically thereafter; labeling the whole birds through the point of sale with the producers name, and name and address of the farm, as well as safe handling instructions; and keeping records of and labeling each bird with the lot number of the processing event, and where that lot was sold. This system of labeling, record keeping and local sales creates a traceable and safe local food system. Producers have an enormous incentive to deliver a clean, safe and high quality product to the consumer because their reputation, and ultimately their business, is at stake. Consumers have the right to make an educated and clear choice about where their food comes from, and how it is produced.

LD 557: Resolve, Directing the Department of Agriculture, Food and Rural Resources To Study Potential Uses of a Potato Plant That Is Toxic to the Colorado Potato Beetle. Description: This resolve directs the Department of Agriculture, Food and Rural Resources to conduct a study to examine the potential uses of a locally developed potato plant that is toxic to the Colorado potato beetle, a significant pest to potato crops. Before conducting the study, the department must obtain the appropriate approval, names or other legal permission from the developer. The department shall report its findings and recommendations to the Joint Standing Committee on Agriculture, Conservation and Forestry by December 15, 2009. Significance: Many MOFGA farmers are very interested in varieties that have the potential to repel the Colorado potato beetle. The Prince Harry variety, developed by Cornell, has demonstrated strong resistance. Finding another with commercial potential would be a big step forward for Maine’s potato industry. If the variety also meets the needs and standards of our major processors, it potentially could be very helpful to the entire industry. Development of this product also fits within the parameters of the Maine Technology Institute’s Seed Grant program for new product commercialization. MOFGA supported this legislation with one caveat — ensuring that the potato variety is not a remnant of, or cross with, the genetically-engineered New Leaf Potato, a restricted propriety variety.

LD 1159: An Act Relating to Industrial Hemp. Description: This bill allows a person to grow industrial hemp if that person holds a license issued by the Commissioner of Agriculture, Food and Rural Resources, and the hemp is grown under a federal permit in compliance with the conditions of that permit. Except for employees of the Maine Agricultural Experiment Station and the University of Maine System involved in research and related activities, a criminal history record check must be completed on an applicant for licensure. A person with a prior criminal conviction is not eligible for licensure. Industrial hemp is subject to being tested during its growth, and the growing and harvesting of industrial hemp is subject to supervision. Significance: Seven of the eight G8 countries produce and export industrial hemp; only the United States does not. Allowing Maine farmers to grow industrial hemp under a license from the Commissioner of Agriculture, Conservation and Forestry and under a federal permit would give Maine farmers one more crop with which to diversify their farms. Industrial hemp is a crop that is relatively environmentally friendly to grow and has a multitude of potential uses that fit with Maine’s increasing interest in producing healthful, organic grains and oils and in fabricating biologically-based products, such as bioplastics.

LD 1140: Resolve, Directing the Department of Education and the Department of Agriculture, Food and Rural Resources To Convene a Work Group To Strengthen Farm-to-school Efforts in the State. Description: This resolve requires the Department of Education and the Department of Agriculture, Food and Rural Resources to convene a work group consisting of agencies, groups and organizations involved in supporting Maine agriculture, public health, the environment and the Maine economy to study farm-to-school initiatives and programs in the State and develop recommendations for strengthening farm-to-school efforts in the State. Significance: This Resolve basically blessed the work of the Maine Farm to School Work Group. Their duties include: assessing the status of regional and statewide farm-to-school efforts throughout the State, including policies, practices and curricula; reviewing the existing barriers to the purchase and use of local products; reviewing the networking channels that connect farm-to-school efforts throughout the State; reviewing best practices and evaluating methods from other farm-to-school programs outside the State; and preparing recommendations for strengthening farm-to-school initiatives and programs within the State. The Work Group believes this will advance Farm to School efforts across the state and will help us get healthier local produce into our schools, while supporting local farms.

LD 1133: An Act To Implement the Recommendations of the Commission To Study the Protection of Farms and Farmland. Description: This bill establishes a process for the voluntary designation of farms as “Farming for Maine” farms. The Commissioner of Agriculture may establish a pilot program to examine the effectiveness of agricultural districts in keeping farmland in agricultural production and enhancing the profitability of farming. “Pilot program” means an agricultural districts program that allows farmers to propose that the department designate their farmland as an agricultural district where commercial agriculture is encouraged and farmland protected through collaborative efforts at the state and local level. Significance: Maine has preserved about two percent of the State’s farmland through easements. This law will encourage farmers to join together to create voluntary agricultural districts, and try to give the farmers special recognition and incentives in return. Unfortunately, financial incentives will be limited while the State budget is under pressure.

Bills That Failed Or Died In Committee

LD 804: An Act To Ensure the Integrity of Organic Agricultural Crops. Description: This bill would have required all producers engaged in organic crop production to file an organic system plan within 30 days of planting. The plan would have included evidence that sufficient buffer zones were incorporated into the operation to ensure the integrity of the organic crop operation. If the Commissioner of Agriculture, Food and Rural Resources were to find that an organic system plan did not provide evidence of sound measures to ensure the integrity of the organic crop operation, the commissioner would have been authorized to report inadequate buffer zones to the United States Department of Agriculture, National Organic Program. If the commissioner found that a farmer using genetically engineered plant parts, seeds or plants is not adhering to the use of best management practices or that the organic system plan filed by a producer did not ensure the integrity of the organic crop operation, the commissioner would be directed to recommend best management practices to the farmer or the producer. MOFGA stance: This was a mischief bill if ever there were one. It attempted to insinuate the Maine Department of Agriculture into the already complex process of organic certification. At its heart was the idea that organic farmers should have to prevent the drift of genetic material or pesticides onto their property by establishing large buffers. MOFGA identified nine specific objections to the bill, but suffice it to say that the bill was intended to muddy the waters for organic growers by creating unenforceable guidelines and putting an unnecessary burden of proof on growers who don’t use pesticides or genetically modified organisms. What happened: The bill died quickly in Committee.

LD 1202: An Act To Establish a Farmer’s Rights in an Investigation of Intellectual Property Theft of Genetically Engineered Material. Description: This bill would have provided for a process by which a manufacturer of a genetically engineered plant part, seed or plant could investigate a violation of a technology use agreement and the rights of a farmer during an investigation. Further it would have created a right of action and damages for a private nuisance against a manufacturer of a genetically engineered plant part, seed or plant that cross-contaminates a person’s land and limits the liability of knowing and unknowing users and possessors of a genetically engineered plant part, seed or plant. MOFGA stance: MOFGA supported LD 1202 and saw it as an important pathway to protecting farmers in Maine from the kinds of legal conflicts that have accompanied the use of biotech crops in other parts of the country. Through 2007, Monsanto filed over 112 lawsuits against farmers in 29 states and maintains an annual budget of over $10 million and a full time staff of 75 people dedicated solely to investigating and prosecuting farmers. While none of those lawsuits have been filed in Maine yet, given the proliferation of this technology, including the recent licensing of Bt field and sweet corn in Maine, the possibility definitely exists for these kinds of actions to be taken against Maine farmers. This bill was designed to protect Maine’s farmers from unreasonable search and seizure, and to confine investigators to a set of basic courtesies and fair practices. Giving notice, allowing a neutral party to observe the investigation, and providing for third-party verification of test results simply would ensure that investigations would be respectful, fair and accurate. What happened: The Legislature killed the bill when three different versions were proposed: one that we supported, one we strongly opposed, and a third that made only minor changes to existing laws. The Legislature was unable to resolve the different perspectives.

LD 972: Resolve, Regarding Legislative Review of Portions of Chapter 28: Notification Provisions for Outdoor Pesticide Applications, a Major Substantive Rule of the Board of Pesticides Control. Description: The BPC presented amendments to Chapter 28 that would increase from 500 feet to 1500 feet the distance within which one may reside and request general and specific information about aerial spraying. The BPC also proposed to establish a Maine Aerial Pesticide Application Notification Registry for individuals wishing to receive advance notice of pending aerial applications. MOFGA stance: MOFGA supported this bill, while advocating for the much stronger bill, LD 1293 (see above). What happened: The ACF reviewed this resolve at the same time it considered LD 1293, and decided to go with the more strict provisions of LD 1293. LD 972 died in Committee.

LD 68: An Act Regarding the Composition of the Board of Pesticides Control. Description: This bill would have added a representative of a statewide organization of organic farmers and gardeners to the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control. It also would have increased from 4 to 5 the number of members that constituted a quorum. MOFGA stance: While MOFGA appreciated the gesture from Senator Nutting (D – Leeds, Chair of the ACF Committee), who sponsored the bill, we felt that it was more important to fill the existing almost two-year vacancy in one of the environmental expertise seats. We expressed some reservations about increasing the size of the Board, which could complicate decision-making. What happened: The bill died in Committee.

LD 559: An Act To Update the Board of Pesticides Control. Description: This bill proposed to clarify and make consistent the language describing the qualifications for members of the BPC. It also proposed to require that the member who is a commercial applicator have expertise in structural pest management. Finally, it would have prohibited the BPC from advocating for or against nominees to the BPC. MOFGA stance: We felt that the bill was unnecessary and unconstitutional. What happened: The bill died in Committee.

LD 1294: An Act To Amend the Laws Governing the Public Hearing Process for the Board of Pesticides Control. Description: This bill would have required the Board of Pesticides Control to hold a public hearing on the application for registration of certain pesticides and also on the application for registration of a product that contains a plant-incorporated protectant (PIP). MOFGA stance: While MOFGA regularly advocates for freedom of information, we recognize that holding a public hearing for roughly 2500 products each year would create an unrealistic burden and exorbitant expenses for the BPC. MOFGA suggested that, instead, the BPC hold public hearings for restricted use chemicals and for PIPs up for new or re-registration. Generally, the BPC does hold a public hearing when companies apply to register PIPs. What happened: The bill died in Committee.

LD 351: An Act Regarding the Regulation of Agricultural Composting Operations. Description: This bill would have required commercial agricultural composting operations to register with the Department of Agriculture, Food and Rural Resources, and directed the Commissioner of Agriculture, Food and Rural Resources to adopt rules concerning best management practices for commercial agricultural composting operations. It would have authorized the commissioner or the commissioner’s designee to enter the premises of a commercial agricultural composting operation to inspect for compliance with best management practices. It would have removed commercial agricultural composting operations from regulation by the Department of Environmental Protection (DEP) as waste facilities but would not exempt commercial agricultural composting operations from state or federal environmental laws. MOFGA Stance: Legislative attempts to move regulation of commercial composting operations from the DEP to the Department of Agriculture have been underway for several years. MOFGA is most concerned about environmentally responsible composting and strong enforcement when violations occur. Because this seemed to be centered on a conflict around one compost facility, MOFGA did not testify on the bill. We do continue to support efforts to help create more composting facilities in the State. What happened: The bill died in Committee.

LD 75: Resolve, Directing the Department of Agriculture, Food and Rural Resources To Streamline Agricultural Regulation. Description: This resolve would have directed the Department to review regulatory processes affecting agricultural businesses and to examine the feasibility of developing a one-stop, streamlined regulatory process and publicly accessible website portal. MOFGA stance: While we supported the concept, the cost of this project makes it infeasible right now. What happened: The bill died in Committee.

Bills Carried Over To The Next Session

Natural resource agencies consolidation. Description: The Legislature considered three different proposals for merging or rearranging the four natural resource agencies. The Governor proposed putting all four into one; another would have merged Inland Fisheries and Wildlife and Marine Resources; and a third moved Forestry from Conservation to Agriculture. MOFGA stance: We opposed the specific proposals because none would provide overall focus to the natural resource sector. What happened: The Legislature held over one bill as a vehicle for the Legislature to continue these discussions in the next session.

LD 628: An Act To Allocate Prospective Federal Funding To Support Maine’s Dairy Industry. Description: This bill is an emergency measure and proposes to allocate prospective federal funding to support the State’s dairy industry. MOFGA stance: We viewed this bill as a placeholder in case Federal policy changed and led to funding. What happened: This bill was held over in case Federal dairy policy changes during the coming year.

LD 1238: An Act Concerning the National Animal Identification System. Description: This bill would require the Commissioner of Agriculture, Food and Rural Resources to adopt rules to implement a national animal identification system ONLY if federal law makes the system mandatory, and the rules should inform farmers of their right to opt out of the system if the system has an opt-out provision. If the national identification system is voluntary, this bill prohibits the commissioner from forcing participation in the system, withholding indemnity from a person who does not participate in the system or denying or revoking permits, licenses, services, grants or other benefits or incentives to a person who does not participate in the system. The bill prohibits a municipality or political subdivision from enacting or maintaining an ordinance requiring participation in an animal identification system except to conform to a state requirement and the commissioner from disseminating any confidential information to the national animal identification system unless to prevent or control a disease or to protect the public health, safety or welfare. This bill does not prohibit the Commissioner of Agriculture, Food and Rural Resources from participating in a disease control program or implementing an animal identification system or prohibit a private agricultural industry organization from establishing a voluntary source verification program. MOFGA stance: MOFGA supported this bill as a way to limit the Department’s ability to force an NAIS system unless federally-mandated. What happened: Because USDA announced a series of public hearings on NAIS around the country to review the program, the bill was held pending a decision about the program’s continuance.

LD 1239: An Act To Establish a Revenue Source for the Maine Pesticide Education Fund. Description: This bill would establish a 15¢ per container fee on the retail sale of pesticides. The proceeds of the fee would be deposited in the Maine Pesticide Education Fund, which is used to fund the Integrated Pest Management Fund, the Board of Pesticides Control and the University of Maine Cooperative Extension for pest management education programs. MOFGA stance: We have supported this approach to supplementing the funding for these important state bodies. What happened: This bill was carried over.

LD 993: An Act To Implement the Recommendations of the Commission To Study the Protection of Farms and Farmland Pertaining to Taxation. Description: This bill would provide that amounts used to demonstrate eligibility under the farm and open space tax laws would be from the sale of agricultural products as defined in the Maine Revised Statutes, Title 7, section 152. It also would provide for towns to be reimbursed 90% of the revenue lost for farmland classified under the farm and open space tax laws. It also would provide a transferable income tax credit for voluntary contributions of farmland for conservation and for conservation easements of farmland that qualify as charitable donations under the federal income tax. The credit would be equal to 15% of the value of the donation up to $250,000 for corporate donors and $100,000 for other donors. The credit would be refundable up to 20% per year. MOFGA stance: Russell Libby served on the Task Force that created these recommendations, and we generally support their enactment. What happened: The bill was carried because of its potential fiscal impact. It may be narrowed before a final decision is made during the second session.

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