Bill Text: NJ ACR101 | 2018-2019 | Regular Session | Introduced
Bill Title: Determines that the Department of Agriculture beekeeping regulations, proposed November 20, 2017, are inconsistent with legislative intent.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2018-02-01 - Introduced, Referred to Assembly Agriculture and Natural Resources Committee [ACR101 Detail]
Download: New_Jersey-2018-ACR101-Introduced.html
ASSEMBLY CONCURRENT RESOLUTION No. 101
STATE OF NEW JERSEY
218th LEGISLATURE
INTRODUCED FEBRUARY 1, 2018
Sponsored by:
Assemblyman RONALD S. DANCER
District 12 (Burlington, Middlesex, Monmouth and Ocean)
SYNOPSIS
Determines that the Department of Agriculture beekeeping regulations, proposed November 20, 2017, are inconsistent with legislative intent.
CURRENT VERSION OF TEXT
As introduced.
A Concurrent Resolution concerning legislative review of certain Department of Agriculture proposed regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
Whereas, Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement and, upon a finding that the rule or regulation is not consistent with legislative intent, may transmit the finding to the Governor and the head of the agency; and
Whereas, On November 20, 2017, the Department of Agriculture, contrary to assurances offered concerning revision of the draft regulations informally circulated in July 2017, proposed for public comment in the New Jersey Register rules and regulations affecting beekeeping practices in the State; and
Whereas, The Department of Agriculture was advised in July 2017 by several legislators, the New Jersey Farm Bureau, and the New Jersey Beekeepers Association that the draft regulations, now proposed regulations, were contrary to the legislative intent of laws affecting bees compiled in Titles 4 and 40 of the Revised Statutes; and
Whereas, Preserving the State's bee populations and apiary activities are of the utmost importance to the agriculture in the State and the public welfare; and
Whereas, There have been many news reports on the environmental dangers affecting bees and pollinators as well as dire predictions involving climate change, reports of alarming depletions of bee populations that may be connected with these changes, butterfly die-offs and alterations to butterfly migration patterns, and the serious threat to human survival that the loss of pollinators represents regardless of the causes; and
Whereas, Beyond the specifics of any statute, there is a clear indication of the Legislature's intent to protect bees and the apiary industries in the State expressed by its efforts to respond to the crisis by not only introducing numerous bills but enacting no less than seven new laws in the past four years to protect pollinators, five of which specifically protect bees and facilitate apiary activities in the State; and
Whereas, The plain language and intent of the Legislature expressed in these laws also indicate that the proposed regulations are inconsistent with legislative intent; and
Whereas, Section 2 of P.L.2015, c.76 (C.4:6-24) requires the Department of Agriculture, when developing standards for beekeeping to be set forth in regulation, to "consult with the New Jersey League of Municipalities, the New Jersey Beekeepers Association, and the Mid-Atlantic Apiculture Research and Extension Consortium, or successor organizations with similar purposes"; and
Whereas, Contrary to this direction and the department's reference in the summary of its proposed regulations to meetings held concerning development of the regulations, the New Jersey Beekeepers Association and the Mid-Atlantic Apiculture Research and Extension Consortium were not meaningfully consulted concerning the standards or regulations or included in developing the standards and the regulations; and
Whereas, When this fact was brought to the attention of the Department of Agriculture in July 2017, its immediate response was to recognize its oversight by withdrawing the draft regulations and assure concerned legislators and the New Jersey Beekeepers Association that the department would not be moving forward with the proposed regulations; and
Whereas, Nevertheless, no significant changes were made to the regulations prior to the November 20, 2017 proposal to avoid a challenge to their validity; and
Whereas, If the New Jersey Beekeepers Association had been meaningfully consulted as required by law, the association would have brought to the department's attention that the proposed regulations are contrary to the Legislature's intent to protect apiary activities in the State and to consider sound science, bee biology, and bee behavior as well as to work with municipalities to facilitate, not prohibit, beekeeping in suburban and urban areas of the State; and
Whereas, The letter of the law set forth in section 2 of P.L.2015, c.76 (C.4:6-24) requires the Department of Agriculture to "consult" with the specified entities concerning the standards; and
Whereas, The dictionary definition of "consult" includes "to seek advice or information from," "ask guidance from," "to consider or deliberate; take counsel; confer," and definitions of "counsel" and "guidance" include "instruction given in directing the judgement or conduct of another," "leadership," and "direction," but no such counsel, guidance, instruction, leadership, or direction was sought or considered in this case, and therefore the proposed regulations and the proposed standards to be implemented by them are inconsistent with the intention of the law; and
Whereas, Coupled with the Legislature's expressed intent and policy to protect pollinators, the Legislature clearly intended in directing this consultation to have entities intimate with the behavior, habits, health, and needs of bees to be not only solicited for their input but to have their input, informed judgment, and direction incorporated into the development of any standards and regulations affecting bees in the State; and
Whereas, Section 2 of P.L.2015, c.76 (C.4:6-24) also requires the Department of Agriculture to consult with the Mid-Atlantic Apiculture Research and Extension Consortium, which further indicates legislative intent to incorporate sound science and apiary research into the standards and regulations proposed by the Department of Agriculture; and
Whereas, That law also requires that the standards "reflect consideration of: (1) the population densities in rural, suburban, and urban areas of the State; (2) the densities and intensities of development and differing land uses in communities throughout the State; and (3) any other characteristics of various regions of the State that the department determines to be significant to the regulation of apiary activities in the State"; and
Whereas, The proposed regulations do not set forth standards that reflect sound science and research or consideration of suburban and urban areas of the State or regional characteristics of the State as they relate to beekeeping; and
Whereas, The proposed standards and regulations are contrary even to the department's own established "Best Management Practices for Beekeepers in Populated Areas" which have long guided and supported urban and suburban beekeeping, and therefore all the more clearly do not reflect consideration of the elements specified to be considered pursuant to subsection c. of section 2 of P.L.2015, c.76 (C.4:6-24); and
Whereas, The proposed regulations also ignore the Legislature's intent expressed in section 1 of P.L.2015, c.76 (C.40:48-1.5), prohibits a municipality from establishing "any restriction or requirement that would result in the prohibition of the breeding or keeping of honey bees, the use of honey bees for pollination, or any activities related thereto, in the municipality," except as provided pursuant to subsection b. or c. of that section of law; and
Whereas, Subsection b. of section 1 of P.L.2015, c.76 (C.40:48-1.5) authorizes the State to regulate apiary activities in the State pursuant to other State laws concerning bees, including section 2 of P.L.2015, c.76 (C.4:6-24), but the proposed regulations are inconsistent with the Legislature's intent expressed in section 2 of P.L.2015, c.76 (C.4:6-24); and
Whereas, Subsection c. of section 1 of P.L.2015, c.76 (C.40:48-1.5) requires a municipality addressing a condition or circumstance not resolved by the State standards to consult with the Department of Agriculture, the New Jersey League of Municipalities, the New Jersey Beekeepers Association, and the Mid-Atlantic Apiculture Research and Extension Consortium, or successor organizations with similar purposes; and
Whereas, This provision also requires the subsequent municipal standard adopted by ordinance to address the condition or circumstance and reflect consideration of "honey bee biology and behavior" in addition to population density, the density and intensity of development, and type of land use; and
Whereas, These provisions reinforce the Legislature's intent for consultation with the New Jersey League of Municipalities, the New Jersey Beekeepers Association, and the Mid-Atlantic Apiculture Research and Extension Consortium and the basing of any standard in sound science and understanding of honey bee biology and behavior; and
Whereas, Section 1 of P.L.2015, c.76 (C.40:48-1.5) establishes a process for a municipality to adopt the new standards established pursuant to that law and the Department of Agriculture to delegate to the municipality monitoring and enforcement of those standards; and
Whereas, Section 2 of P.L.2015, c.76 (C.4:6-24) expressly prohibits municipalities from adopting an ordinance, resolution, rule, or regulation concerning the breeding or keeping of honey bees, or any activities related thereto, that does not incorporate the new standards; and
Whereas, The proposed regulations ignore the expressed intent of the Legislature in that law by allowing a municipality to grandfather through a petition to the department municipal apiary standards in effect prior to the enactment of P.L.2015, c.76; and
Whereas, Chapter 6 of Title 4 of the Revised Statutes specifically authorizes the Department of Agriculture to inspect hives and monitor bee health through inspection and enforcement; and
Whereas, The proposed regulations supersede this statutory authority by establishing a new subchapter 7 in the department's regulations, entitled "Apiary and Municipal Administrative Standards for Breeding and Keeping of Bees and Related Activities," under which the proposed regulations establish standards of administrative procedure for delegating the authority to monitor and enforce ostensibly all regulations concerning bee health and inspections; and
Whereas, If the Legislature had intended to delegate such authority to municipalities, it would have amended the laws concerning control of diseases among bees found in chapter 6 of Title 4 of the Revised Statutes; and
Whereas, The comment period for the proposed regulations closed January 19, 2018, and to date the department has not withdrawn the proposed regulations; and
Whereas, The New Jersey Beekeepers Association, the Burlington County Board of Agriculture, the Department of Entomology and Wildlife Ecology at the University of Delaware, and the Village of Ridgewood in Bergen County have all submitted comments on the proposed regulations which demonstrate that the proposed regulations are inconsistent with legislative intent because they would have a significant negative impact on beekeeping, agriculture, and the environment; they do not reflect sound science and understanding of honey bee biology and behavior; they allow for the grandfathering of municipal apiary standards that were enacted prior to P.L.2015, c.76; they improperly allow for delegation to municipalities of hive inspections and monitoring and enforcing of bee health; they were proposed without proper consultation with the New Jersey Beekeepers Association and the Mid-Atlantic Apiculture Research and Extension Consortium; and they are overly restrictive and prohibitive for the breeding or keeping of honey bees, and the use of honey bees for pollination, or any activities related thereto, in a municipality; and
Whereas, The proposed regulations, for all the reasons enumerated above, are inconsistent with the intent of the Legislature; now, therefore,
Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):
1. The Legislature declares that the rules and regulations proposed and published in the New Jersey Register on November 20, 2017 by the Department of Agriculture concerning beekeeping are not consistent with the legislative intent.
2. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Secretary of the Senate or the Clerk of the General Assembly to the Secretary of Agriculture.
3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Department of Agriculture shall have 30 days following transmittal of this resolution to amend or withdraw the proposed rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.
STATEMENT
This concurrent resolution embodies the finding of the Legislature that the Department of Agriculture proposed regulations concerning beekeeping, published for public comment in the New Jersey Register on November 20, 2017, are not consistent with the intent of the Legislature. The Department of Agriculture has 30 days following transmittal of this resolution to amend or withdraw the proposed rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part, pending their adoption.
