Important Bills for Agriculture from the 2013

Legislative Session

Senate Bill 638 (S.L. 2013-265) North Carolina Farm Act

• The North Carolina Farm Act was the most comprehensive piece of legislation passed this session for the farm community. It is a large bill that encompasses several areas of the law and is aimed to help our state’s most successful industry.

• Part 2 of the bill provides commodity producers a rebuttable presumption against negligence if a certified third party such as USDA GAP, GHP Audit Verification, or a similar program designated by the Commissioner of Agriculture has audited them. This language only deals with farmers selling to third parties such as a wholesaler or retailer and the presumption may be overcome by clear and convincing evidence. This language provides famers an opportunity to prove they were using sound agriculture practices when presented with a lawsuit.

• Part 3 helps to alleviate the worry that petting zoos, animal exhibitions, and educational programs using animals in their curriculum have with insurance. Before this bill, petting zoos had a difficult time acquiring insurance because of inherent and other types of risk. Additionally, this bill clarifies that equine recreation where the landowners receive no compensation is subject to the recreational use statute and not the equine activity liability statute. The landowners now owe the same duties as a trespasser; namely, a landowner is only liable for willful and wanton or intentional injury to a participant.

• Part 4 gives the North Carolina Depart of Agriculture boards, commissions, and officials with authority to assess civil penalties the power to assess nonmonetary penalties when appropriate to address the underlying violation. This provision gives the appropriate officials the discretion to address monetary and nonmonetary penalties when they deem appropriate. Many times, farmers act in good faith and do not deserve a fine for a “gotcha” type mistake. The department can make these mistakes into a learning opportunity opposed to a punitive action.

• Part 5 decreases the frequency of the survey of persons who withdraws 10,000 gallons per day or more for agricultural purposes from annually to biennially. The department currently has a large number of samples from years of drought, heavy rain, and normal years and to continue to collect samples every year is no longer necessary. This provision will help save the department of Agriculture time and money.

• Part 6 provides that information collected by the Department of Agriculture for its animal health programs, including certificates of veterinary inspection, animal medical records, laboratory reports, or other information that may identify a person or private business subject to regulation by the Department, are confidential. However, this information may be disclosed without the permission of the owner if the State Veterinarian determines the disclosure is necessary to prevent the spread of animal disease or disclosure is necessary for public safety.

• Part 7 is a technical change that codifies the correct name of the Structural Pest Control and Pesticides Division in General Statutes.

• Part 8 allows retailers to advertise eggs for sale in the same manner as other products sold by the retailer. This is a simple and common-sense regulatory reform piece.

• Part 9 repeals the Interstate Pest Control Compact found in Article 4E of Chapter 106; and the statutes dealing with cleanliness and purity standards for ice cream plants, creameries and cheese factories. The IPCC was formed as an interstate compact in 1968, but has not been active. Earlier this year, the IPCC chose to dissolve because of an issue with their tax-exempt status, and these statutes are now obsolete.

• Part 10 conforms setback distances and burn times for debris, stumps, brush, or other flammable material resulting from ground clearing activities. The Department of Agriculture requested these changes, as they did not properly reflect the changes made in House Bill 119, which passed in 2011. Burning setbacks are decreased from at least 1000 feet to at least 500 feet from dwellings or structures besides those on the property.

• Part 11 repeals the sulfur content standards in gasoline found in G.S. 119-26.2. The Department of Agriculture asked to repeal this section because it was adopted prior to the promulgation of EPA standards for sulfur content in gasoline.

• Part 12 exempts forestry and silviculture operations from the Department of Transportation’s temporary driveway permit process for State roads, except for controlled access facilities, if the temporary driveway operator has completed an educational course on timbering access and obtained a safety consideration. This provision helps streamline the permit process so there is consistency throughout the state for our timber industry.

• Part 13 exempts migrant housing from requirements for installation of an automatic sprinkler system if the building meets certain requirements. To be exempt, the building must be one floor, meet all federal Occupational Safety and Health Administration regulations for temporary labor camps, and meet all State requirements for the Migrant Housing Act of North Carolina. This bill puts migrant housing in line with the current state and federal health and housing requirements. This section of the bill also allows a farm building that is used for public or private events such as weddings, receptions or meetings to maintain its farm building status for purposes of the State Building Code. This section helps to clarify a gray area of the law.

• Part 14 repeals the prohibition on retailers displaying more than 400 square feet of nursery stock in their parking lots. This provision, like others, is a good regulatory reform provision that provides customers the opportunity to see the products and the plant industry can use this space as great advertising and marketing opportunities.

• Part 15 provides that the current exemption from the Dam Safety Act of dams constructed to provide water for agricultural use that were designed and constructed by or under the supervision of a professional engineer also applies to such dams designed and constructed by or under the supervision of a person who is employed by the Natural Resources Conservation Service, County or local Soil and Water Conservation District and has federal engineering job approval authority under Chapter 89C of the General Statutes.

• Part 16 provides that nothing in the statute governing water shortage emergencies could limit a landowner from withdrawing water for use in agricultural activities when the water is withdrawn from surface water sources located wholly on the landowner’s property and from groundwater sources. This allows farmers to use water located solely on their property at their discretion.

• Part 17 directs the Department of Environment and Natural Resources and the Department of Transportation to jointly petition the United States Army Corps of Engineers to allow for greater flexibility and opportunity to perform wetlands mitigation outside of the watershed where development occurs.

• Part 18 accelerates the sunset date of the Petroleum Displacement Plan to the effective date of this act. The Petroleum Displacement Plan requires all state agencies, universities and community colleges that have State owned vehicle fleets to develop and implement plans to reduce the amount of petroleum products consumed to 20%. Currently the State has achieved 19.92% reduction in petroleum use and it now costs more resources to create the report and perform the functions than the benefits of achieving the remaining .08%. These entities are still expected to achieve the 20%, but the reporting requirement is now removed.

• The Governor signed this bill on July 17, 2013.

Senate Bill 505 (S.L. 2013-347) Clarify Agriculture Zoning

• Senate Bill 505 clarifies that the exemption from zoning for a bona fide farm includes grain storage facilities. Under G.S. § 106-581.1, the definition of agriculture is amended to include a new subsection that states, “a public or private grain warehouse or warehouse operation where grain is held 10 days or longer and includes, but is not limited to, all buildings, elevators, equipment, and warehouses consisting of one or more warehouse sections and considered a single delivery point with the capability to receive, load out, weigh, dry, and store grain.” The Governor signed this bill on July 23, 2013 and is now law.

House Bill 774 (S.L. 2013-75) Exempt Certain Primitive Structures from the Building Code

• House Bill 774 amends the North Carolina State Building

Code (§143-138), allowing for the exemption of certain primitive structures, which it defines as:

A “primitive farm building” shall include any structure used for activities, instruction, training, or reenactment of traditional or heritage farming practices. "Primitive farm buildings" include, but are not limited to, sheds, barns, outhouses, doghouses, or other structures that are utilized to store any equipment, tools, commodities, livestock, or other items supporting farm management. These specific types of farming activities, structures, and uses set forth by this subdivision are for illustrative purposes and should not be construed to limit in any manner the types of activities, structures, or uses that are exempted from building rules.

Special Thanks

• The NCDA&CS is grateful to the support it received from the members of the NC General Assembly this legislative session. In addition, we would like to thank Ray Starling, Towers Mingledorff, Chris Saunders, and the entire “Barnyard Team” for their cooperation and efforts on agriculture legislation. Lastly, a special thanks is owed to the members of the Campbell Law Agricultural Law Association for their help on this project (notably, Mariamarta Conrad, Grant Cannington, Carrie Browder, Chris Waivers, and Chad Rhoades).

Jonathan T. Lanier Assistant General Counsel

NCDA&CS

1001 Mail Service Center Raleigh, NC 27699

jonathan.lanier@ncagr.gov