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Press Release:
Farmers Fight Back in Fauquier County
Hearing was held on August 2, 2012
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ATTORNEY WRITES LETTERS TO VILSACK AND CUCCINELLI COMPLAINING OF ILLEGAL FEDERAL SCRAPIE REGULATION FOR GOATS AND SHEEP
Provided By: Christine
Solem
(Letters by Norman Lamson, Attorney at Law)
INTRODUCTION:
Norman
Lamson, attorney for Wayne Russell (administrator of the
estate of Kathryn Russell and Christine Solem of Satyrfield
Goat Farm, has written a letter on behalf of Solem to
Secretary Wilsack and other officials of the U.S. Department
of Agriculture.
The letter
charges in detail that the federal scrapie regulations for
goats and sheep are illegal in that, among other things,
they were not authorized by statute, they coerce the states
into adopting intrastate regulations through illegal "inconsistent" vs. "consistent" schema, and
they are a violation of the Tenth Amendment to the U.S.
Constitution.
On behalf
of Russell, attorney Lamson sent a copy of his Vilsack
letter along with a cover letter to Ken Cuccinelli, Attorney
General for the State of Virginia, and asked for his help in
the matter. A copy of the cover letter to Cuccinelli is
printed below.
If anyone
has any questions or would like to see the letter to
Secretary Vilsack, please contact Christine Solem at (434)
973-6505.
Re:
2VAC5-260 - Regulation of the Board of Agriculture and
Consumer Services for Eradication of Scrapie in Sheep and
Goats
Dear
Attorney General Cuccinelli:
I write as
counsel for Wayne Allen Russell, Administrator of the estate
of Kathryn Russell, who is the petitioner in the case of
Wayne Allen Russell, Administrator of the estate of Kathryn
Russell v. Virginia Board of Agriculture and Consumer
Services, now pending in the Virginia Supreme Court, Record
No. 120150 (a published opinion of the Va. Court of Appeals
appears in Russell v. Virginia Bd. of Agriculture, 59 Va.
App. 86, 717 S.E.2d 413 (2011)).
Enclosed is
a copy of a letter of mine on behalf of another client of
mine, Christine Solem, to the federal Secretary of
Agriculture and others concerning 9 Code of Federal
Regulations, Part 79, whose adoption in 2001 was the impetus
to the above Virginia regulation adopted in 2008. This is to
request your office to see the issue arising from the 2001
federal regulation, namely, that it constituted an
unprecedented and blatant unauthorized action and involves
coercion of the states, and to join Ms. Solem in fighting
the federal government, and to stop fighting Mr. Russell in
his efforts to have the state action invalidated.
I have
advised Mr. Russell that he may win his appeal now pending
and get 2VAC5-260 invalidated on state law grounds (the
circuit court never reached the merits because she ruled Mr.
Russell's now deceased wife had not timely appealed, and the
Court of Appeals upheld the circuit court in that regards),
but the Board of Agriculture and Consumer Services (or the
Commissioner of Agriculture and Consumer Services) will,
inevitably come up with another scrapie regulation as long
as the 2001 federal regulation, 9 C.F.R., Part 79. is on the
books. They will come up with such a variant not because
there is or ever has been a disease problem, but because
they cannot allow the federal Secretary of Agriculture to
adjudge Virginia an "inconsistent state." And that is
the point, namely, that the federal Secretary of Agriculture
had no right under old acts of Congress of 1884, 1903, 1905
and 1962 to create a "consistent state-inconsistent
state" schema as a means of forcing the states to adopt
intrastate regulation of goat and sheep movement. Unable
under his authority to act intrastate, the Secretary devised
a scheme to force the states to do it for him. What Virginia
did was not to "cooperate," but to capitulate to a
wrongful power grab, or at best to join hands with illegal
action.
Thus,
action under color of federal office has led to action under
color of state office which harmed Kathryn Russell and now
harms or threatens harm to my clients. But the action by an
individual, Hawks, acting without authority under color of
federal office is the root of the problem. Please give the
matters in the enclosed letter your thoughtful
consideration, instruct your staff, including Steven P.
Jack. Esq., Assistant Attorney General, to stop fighting Mr.
Russell, Administrator, in the Virginia court system, to
counsel the Board and Commissioner that purported federal
action in this area is illegal and that Virginia will not
succumb to it, cater to it, or attempt to comply with it in
any manner, and take the offensive to have the 2001
purported federal regulation and amendments thereto
annulled.
Thank you,
and best wishes to you, and we wish you success in all your
efforts to protect Virginians from private individuals who
act illegally under color of federal office.
May 4,2012
Dear
Secretary Vilsack, Under Secretary Avalos, Administrator
Gregory Parham, and
Mr. Shea:
I write on
behalf of Christine Solem of Satyrfield Goat Farm,
Charlottesville, Virginia, a long time goat owner and
well-known Virginia activist on behalf of small farmers
seeking freedom from unduly burdensome government
regulations. She intends, as she has in the past, to
transfer to others, or to acquire, domestic goats which
appear healthy. She has a complaint against your offices and
Mr. Shea, namely, that provisions of the federal scrapie
regulation, 9
C.F.R. Part
79, first adopted in 2001 by Bill Hawks, have induced,
caused, and led to the Virginia Board of Agriculture and
Consumer Services adopting a regulation to eradicate scrapie
from sheep and goats, 2VAC5-206 (actually the body adopting
the regulation and acting throughout was illegally
constituted, but that is a separate state matter, and we
intend to refer to the body as "the Board"), effective
October 3, 2008. The animal transfer provisions of 2VAC5-
260 (2VAC5-206-20, Identification of Sheep and Goats in
Commerce) force her to obtain an animal identification
number each time she transfers or buys a goat intrastate
(except in the case of a "low risk commercial goat,"
which she does not intend to transact in), and make and keep
records, at the risk of criminal prosecution, including 12
months in jail if she fails to do so. That is, your actions
have caused Virginia actions which harm her.
Her
objection is to the following provisions of 9 C.F.R. Part
79:
1. ; 79.1
- the following defined words and their definitions:
"Consistent state," "Inconsistent state," "Scrapie
Eradication Program," "Scrapie Eradication Uniform Methods
and Rules (UM&R),"
2, ; 79.2
and ; 79.3,
3. ;79.5,
and
4. ; 79.6.
Ordinarily,
I would ask you (by "you" I intend primarily the
Secretary, hut also the Under Secretary and Administrator to
the extent they have power to act) to amend Part 79 by
deleting the objectionable provisions. But, as discussed
below, these provisions are part of Bill Hawks's 2001
regulation, adopted under old statutes, which the 2002
Animal Health Protection Act repealed, said latter Act
including at 7 U.S.C. ; 8317 that regulations adopted under
the old acts continue in effect until the Secretary issues
regulations which "supersede" the old ones.
Thus, as I
see it, simply repealing Part 79 totally, without replacing
it with something else, appears not an option, for in such
event under the plain language of ; 8317 the old regulation
would nevertheless continue in effect, that is, continues
until "superseded." And I don't see how you can amend
it, for "amending" is fundamentally different from "superseding." Thus, the request is that you repeal
totally Part 79, as purportedly revised by Hawks in 2001,
and as purportedly amended by JCevin Shea in 2007 and Cindy
Smith in 2008, and replace it with wording identical to Part
79 as such appeared in the Code of Federal Regulations in
the year immediately prior to Hawks's action, namely, in
2000.
Your so
superseding the Hawks regulation, as twice amended, will
leave Virginia free to have the regulatory level it wishes
without coercive interference from you. This in turn will
enable Ms. Solem and people like her to lobby state
officials for rescission of the state regulations, and
likely obtain a lowering of the special regulatory burden,
if not a total elimination of it. Then she can buy or sell a
seemingly healthy goat without having to obtain a number and
make and keep records.
I. BILL
HAWKS, UNDER SECRETARY FOR MARKETING AND
REGULATORY
PROGRAMS, IN 2001 ADOPTED THE PERTINENT PROVISIONS OF
9 C.F.R.
PART 79, CREATING A CONSISTENT STATE-INCONSISTENT STATE
SCHEMA,
WITHOUT ANY AUTHORITY IN THE STATUTES HE CITES AS
CONFERRING
AUTHORITY, AND HENCE THEY ARE INVALID.
The reason
for this request is as follows: Historically, for over a
century, your office promulgated voluntary cooperative
regulations in 9 C.F.R. Part 54, based primarily upon ; 3
of the Animal Industry Act of 1884 (formerly 21 U.S.C. ;
114). Thus, if we look at the CFR for 2000, we see under
Title 9, Ch. 1 (APHIS), Subchapter B (Cooperative Control
and Eradication of Livestock or Poultry Diseases, Parts
49-56), including Part 54, Control of Scrapie.
At the same
time, the compulsory, mandatory, and coercive provisions of
law, dealing with interstate trafficking, appeared in Part
79. These provisions were based primarily on the Cattle Act
of 1903, which for the first time authorized the Secretary
to regulate interstate trafficking, as well as on the Acts
of 1905 and 1962. Thus, if we look in said volume at
Subchapter C (Interstate Transportation of Animals
(Including Poultry) and Animal Products (Parts 70-89)), we
see Part 79, Scrapie in Sheep and Goats. These provisions
are mandatory in that a person seeking to move the animal
across state lines must comply with them.
When Bill
Hawks, Undersecretary for Marketing and Regulatory Programs
of the Department of Agriculture ("Under Secretary for M
& RP"), acting on behalf of the Secretary of
Agriculture, revised Part 79 in 2001, he cited as his
statutory authority: "21 U.S.C. 111 - 113, 115, 117,120,
121, 123-126, 134b, and 134flj" 66 FR43990, August21, 2001
(omitting2l U.S.C. ; 114, the historic underpinning of
federal-state cooperation). The key distinguishing feature
of this revision was to create a distinction between "consistent states" and
"inconsistent states," the
former being those which have the level of intrastate
trafficking regulations that you feel is necessary to
eradicate scrapie from sheep and goats in America, while the
latter lack such level. For the former there exists a lesser
burden on farmers in interstate transportation of animals.
Thus, under this new schema, the first step in ascertaining
the regulatory burden for an animal attempting to cross
state lines is to ask whether it is coming from a consistent
state or an inconsistent state, and, after making that
assessment, one then goes to the applicable chart in ; 79.3
to ascertain the specific regulatory burden.
But none of
the cited statutes is authority for such a revolutionary
schema, which is plainly illegally beyond and in excess of
your authority there under, as follows:
(1) 21
U.S.C. ; 111 (; 2 of the Cattle Act of 1903) - This
section authorizes the Secretary to make regulations to
prevent the spread of the contagion of contagious diseases
interstate. There is simply nothing in this section that
authorizes the Secretary to divide states into those having
one type of laws and those having another, and then
regulating interstate activity based upon the type of state
the animal comes from, rather than whether it is healthy or
not. Your office's pertinent authority is to "make
regulations" pertaining to diseases, that is, an authority
to act in a legislative capacity.
Such an
authority implies an authority to act in a quasi-judicial
capacity to determine whether any particular animal proposed
for interstate crossing is diseased or not. And, if you
adjudge it diseased, the owner may appeal, all the way up to
the courts. But you have no authority to act in a
quasi-judicial capacity, adjudging whether a state has met
your office's standards in ; 79.6, "reviewing a State for
Consistent State status," and then adjudging whether
it is or is not a consistent state.
What would
you do if a state was not "cooperating"? Show cause it,
and give it an opportunity to be heard? Have its attorney
general come to your office to argue that it was a
consistent state? If you continued in adjudging it
inconsistent, would it then appeal under the APA?
"[A]n
agency cannot by administrative fiat assign itself
quasi-judicial decision-making authority or create a
subordinate agency to assist in performing this role."
Chopper Express, Inc.
v.
Department of Insurance. 681 A.2d 1226 (N.J. Superior Ct.
1996). There would be no point in debating whether your
judgment, exercised in a quasi-judicial capacity, that a
state was inconsistent was correct or not, because you
don't have authority to divide the states into consistent
states and inconsistent states, and then act
quasi-judicially to adjudge whether they are consistent or
not.
It can be
debated whether the Congress's power to regulate
interstate embraces a power to regulate intrastate as
necessary to achieve effective interstate regulation. But
the Congress has only given you power to regulate
interstate. Therefore, you can't regulate intrastate, nor
can you create a consistent state-inconsistent state schema,
and then create coercive pressure on the states that forces
them to do indirectly what you cannot do directly.
(2) 21
U.S.C. ; 112 ( 4 of the Animal Industry Act of 1884) -
This section authorizes you to make regulation for "exportation and transportation." For example, your
office can say the stock cars of railroad trains
transporting the animals have to be clean. This section is
no authority.
(3) 21
U.S.C. ; 113 ( 5 of the Animal Industry Act of 1884) -
This section authorizes your office to "take such steps
and adopt such measures, not inconsistent with the
provisions of this Act, as he may deem necessary." As the
Animal Industry Act in ; 3 authorizes the then Commissioner
of Agriculture to "prepare such rules and regulations as he
may deem necessary," and in ; 4, as noted above,
authorizes your office to "establish such
regulations...", it is evident this section doesn't
authorize "regulations" at all - it authorizes "steps" and
"measures." It basically authorizes you
to inspect and test animals that are intended for export to
foreign countries, to be sure that American owners don't
send diseased animals to foreign lands. This section is no
authority.
(4) 21
U.S.C. ; 115 ( 6 of the Animal Industry Act of 1884) - This
section states that no railroad company shall ship diseased
animals interstate, nor shall any person transport to a
railroad carrier a diseased animal, knowing such to be
diseased. And it says no persons shall drive on foot
interstate diseased animals knowing them to be diseased. But
it then continues one can do these things as long as one
does it in compliance with your office's regulations. This
section is no authority.
(5) 21
U.S.C. ; 117 ( 7 of the Animal Industry Act of 1884) -
This is simply a penal and civil penalty provision. This
section is no authority.
(6) 21
U.S.C. ; 120 ( 1 of the Cattle Act of 1903) - This
section authorizes you to make rules and regulations
concerning the exportation and transportation of livestock
from places where you have reason to believe diseases exist
"into and through any State..." Thus, it authorizes you
to make interstate regulations pertaining to diseases, not
pertaining to the 50 states and what laws they must have
regarding intrastate activity. This section is no authority.
(7) 21
U.S.C. ; 121 ( 1 of the 1903 Act) - This section states
that when an inspector has issued a certificate pertaining
to an animal, it may then be transported interstate without
further inspection. This section is no authority.
(8) 21
U.S.C. ; 123 ( I of the Cattle Contagious Diseases Act of
1905) - This section authorizes your office to quarantine
animals based on a determination of fact of disease. It does
not authorize your office to quarantine based on a
determination of law that a State's laws do not conform to
; 79.6. This section is no authority.
(9) 21
U.S.C. ; 124 ( 2 of the 1905 Act) - This section states
no transportation carrier shall receive animals from a
quarantined state, nor shall any person deliver such animals
to a transportation carrier for interstate shipment or
transport them on foot interstate. This section is no
authority.
(10) 21
U.S.C. ; 125 ( 3 of the 1905 Act) - This section requires
your office to make rules, when the public safety permits,
for the movement of animals from "a quarantined State...
into any other State..." This section is no authority.
(11) 21
U.S.C. ; 126 ( 4 of the 1905 Act) - This section states
that quarantined animals may be moved "from a quarantined
State... into any other State..." in accordance with your
office's regulations, but not otherwise. This section is
no authority.
(12)21
U.S.C. ; 134b ( 3 of the Act of 1962, Pub. L.
87-518) - This section authorizes your office to promulgate
regulations for the cleaning and disinfection of
transportation vehicles "interstate." This section is no
authority.
(13) 21
U.S.C. ; 134f( 11 of the Act of 1962) - This section
authorizes your office to issue regulations necessary to
carry out the provisions of the Act of 1962. Such Act
consisted of sections 134, 134a(a)-(h), 134b., 134c., 134d.,
134e., 134f., 134g, 134h, 135, 135a, 135b., 136 and I 36a as
follows:
1. ; 134
- This is a definitional section.
2. ; 1
34a. (a) - This subsection authorizes your office to seize
animals being moved interstate in violation of the
office's rules.
(b) -
This subsection authorizes your office to seize and
quarantine any animals if your office finds an "extraordinary emergency" exists, but only if you find
the state officials are not adequate to the task and after
notice to them.
(c) -
This subsection authorizes your office to notify in writing
the owner of an animal moved interstate in violation of
rules or that is diseased to quarantine the animal.
(d) -
This subsection requires you to compensate the owner.
(e) -
This subsection prohibits compensation where the owner has
knowingly moved the animal in violation of law.
3. ;
134b. - [supra].
4. ; 1
34c. - This section authorizes your office to promulgate
regulations pertaining to "the movement into the United
States of any animals..."
5. ; 1
34d. - This section authorizes employees to stop and
inspect animals moving into the United States from a foreign
country, to stop and inspect conveyance moving interstate on
probable cause, and to enter upon premises with a warrant.
6. ; I
34e. (a) - This subsection provides that any person who
violates section 134 through 1 34d shall be subject to
penalty.
(b) -
This subsection authorizes your office to enjoin violations.
7. ; l34f.
- [supra].
8. ; 134g.
- This section states authority is in addition to other
authority.
9. ; 1
34h. - This section states if any provision is invalid,
the remainder of the Act is not affected.
10. ; 135
- This section authorizes your office to maintain an
international quarantine station.
11. ; 13
5a. (a) - This subsection provides for smuggling criminal
penalties.
(b) -
This subsection provides for smuggling civil penalties.
12. ;
135b. - This section authorizes appropriation of such sums
as are necessary to carry out section 135 to 135a.
13 ; 136
- This section authorizes your office to enter into
agreements with owners of vessels for additional
inspections.
14. ;
136a. - This section authorizes fee collection by your
office.
None of
said sections or subsections, which total 26 in all, is
authority. With due respect, statutes are not like mud, that
one dips one's hand into and then flings, hoping that one
piece of the resulting splatter will stick. Because the
Hawks regulation of 2001 is without authority, and has
resulted in the Virginia regulation affecting my client (or
at least affecting her at the precise moment she formulates
an intent to transact in a goat), you are denying her
property and liberty without due process of law in violation
of the federal 5 Amendment, and the state is denying her
liberty and property without due process of law in violation
of the federal 14th Amendment.
As noted
above, when the Congress envisioned federal-state
cooperation, it knew how to express itself, stating in
section three of the 1884 Act (later 21 U.S.C. ; 114), a
statute which Mr. Hawks did not cite as authority:
It shall be
the duty of the Secretary of Agriculture to prepare such
rules and regulations as he may deem necessary for the
speedy and effectual suppression and extirpation of
pleuropneumonia and other dangerous, contagious, infectious,
and communicable diseases, and to certify such rules and
regulations to the executive authority of each State and
Territory, and invite said authorities to cooperate in the
execution and enforcement of the provisions of this Act.
Whenever the plans and methods of the Secretary of
Agriculture shall be accepted by any State or Territory in
which pleuropneumonia or other contagious, infectious, or
communicable disease is declared to exist, or such State or
Territory shall have adopted plans and methods for the
suppression and extirpation of said diseases, and such plans
and methods shall be accepted by the Secretary of
Agriculture, and whenever the governor of a State or other
properly constituted authorities signify their readiness to
cooperate for the extinction of any contagious, infectious,
or communicable disease in conformity with the provisions of
this Act, the Secretary of Agriculture is authorized to
expend so much of the money appropriated for carrying out
the provisions of this Act as may be necessary in such
investigations, and in such disinfection and quarantine
measures as may be necessary to prevent the spread of the
disease from one State or Territory into another.
Under Mr.
Hawks, the situation changed from, "States: you may make
whatever laws you want regarding intrastate activity, but if
you make such-and-such laws, then we will give you federal
tax dollars," to "States: if you don't make the kind of laws
regarding intrastate activity we want you to make, then I
will hurt your citizens by acting in a quasi-judicial
capacity to declare you an inconsistent state, inflicting on
them harmful burdens in selling their animals interstate."
An
illustration of the coercive and unlawful nature of Mr.
Hawks's actions can be seen in the following publication
of the American Sheep Industry:
Back in
August 2001, all states were given two years in which to
complete Consistent State status. A grace period was added
to the deadline.
"But now
the grace period is coming to an end," says Sutton. Diane
Sutton, the National Scrapie Program coordinator, for the
USDA. Animal and Plant Health Inspection Service (APHIS),
Veterinary Services] "States have just one legislative cycle
left to implement their program and achieve Consistent State
status."
Producers
Burdened If Stale Fails
If a state
does not meet Consistent State status requirements, then the
burden falls to the producers. Individual producers who wish
to move sheep over state lines in a non- compliant state
will, be required to enroll in the Scrapie Flock
Certification Program. The producer's flock will have to
be inspected annually by USDA or state personnel, the
producer will be required to implement a record keeping
system and keep more comprehensive animal identification
records.
Sutton
notes that producers in a non-compliant state may face time
delays in moving sheep out of the state. USDA and state
animal health departments will need to allocate staff',
time and budget to inspect individual flocks.
"There
are only so many flocks that will be able to be inspected
per month" says Sutton.
American
Sheep Industry Association, State Effort Needed to Reach
Scrapie Eradication. Goal, March 31, 20O5 by Emily Tescher-Johnston.
Essentially. the situation is analogous to Mr. Hawks
pointing a gun at a man's wife, and telling him that he is
free to make laws as he wishes, but if he doesn't make the
kinds of laws that Mr. Hawks wants then Mr. Hawks intends to
shoot the man's wife.
My client
has been trying for years to lobby to keep a low regulatory
level, but Mr. Hawks's actions have resulted in her facing
competition from advocates of a Virginia scrapie law so that
they won't get shot! Mr. Hawks has no right to interfere
in the political affairs of the sovereign state of Virginia,
and even if the statutes authorized such, his actions are a
Violation of the Tenth Amendment.
Moreover,
none of' the statutes that Mr. Hawks cites as authority
authorizes animal disease eradication as a goal without
cooperation of the states. As noted, the 1903 Act authorizes
regulation solely of interstate activity (the U.S. Supreme
Court ruled in Illinois Central Railroad Company v.
McKendree, 203 U.S. 514 (1906) that the Secretary could not
under authority of such Act quarantine a state or portion of
a state), the 1905 Act authorizes quarantine1 and the 1962
Act demonstrates sensitivity for the sovereignty of the
states (indeed, the requirement that the Secretary find an
emergency exists, as well as inadequacy of the state's
measures and notice to the state, demonstrate a view by
Congress that the Secretary cannot regulate as to intrastate
matters unless there is a clear danger of an interstate
effect). Mr. Hawks's actions are a clear end run around
statutory limitations - believing eradication to be a
laudable goal. but lacking authority to achieve such without
state cooperation, and believing the goal cannot be achieved
without all 50 states cooperating, he went about forcing "cooperation".
The obvious
idea behind Mr. Hawks's action is that if he can't make
a regulation that regulates intrastate activity, then he
will accomplish the same goal by forcing all the states to
do it for him. In Maine v. Thiboutot, 448 U.S. 1 (1980),
Justice Powell attached to his dissenting opinion an
Appendix of federal statutes. including "Joint Regulatory
Endeavors," listing 10 Acts. A cursory examination of any
of these statutes reveals the vast differences between them
and the statutes that Mr. Hawks relied upon. Back in the
1800's and the early 1900's, and even into 1962, one
simply did not see the Congress making the types of
statutes, more frequently seen today, that involve
interlocking federal and state laws.
Moreover,
the Hawks revision of Part 79 results in a regulation that
is invidiously discriminatory. As the U. S. Supreme Court
has made clear, the ultimate question, when. it comes to
whether animals may cross state lines, is whether they are
diseased or not. Thus, when the state of Missouri adopted a
statute that Texas cattle could not enter the state during
certain times of the year, whether they had ticks or not,
such was in violation of the Commerce Clause. Railroad
Company v. Husen, 95 U.S. 465 (1878). And when the states of
Minnesota and Virginia imposed burdens ci bringing fresh
meat into the state by requiring a local inspection, such
violated the Commerce Clause. Minnesota v. Barber, 136 U.S.
313 (1 890); 3rimr v. Rebman, 138 U.S. 78 (1891).
Thus, for
example, if I am at the state line with "low risk
commercial goats" arid they are not scrapie positive,
suspect, high risk or from an infected flock, you have no
right to say I may not cross them unless I have a
certificate where I come from an inconsistent state ( 79.3),
but if I was coming from a consistent state, then I could
move them across the line with no restrictions (Id..). I
can't help it if my state is consistent or inconsistent.
The question is irrelevant. The question is whether the
animals are diseased or not. Moreover, you have no right to
pressure me to pressure my state representatives to become a
consistent state, just so I can then move them across the
line without hassle.
Further.
Hawks' actions were fraudulent as follows: At the time of
his actions, 2001, Virginia's only laws pertaining to
diseases of' sheep or goats appeared in statutes
pertaining to livestock generally, that is statutes did not
exist pertaining specifically to sheep or goats or to
scrapie. And the only regulations that existed pertaining to
animal diseases were regulations pertaining to brucellosis
and tuberculosis in cattle.
The
essential laws pertaining to intrastate activity, appearing
in then Title 3.1 of the Code of Virginia., were that the
Veterinarian could investigate on "reliable information"
of a contagious or infectious disease (Va. Code ; 3.1-727),
that he had power of entry ( 3.1-73 1), that he could
examine the animal ( 3.1-727), that he could order caring
for the animal ( 3.1- 730), that he could order quarantine
of the animal (Id..), that he could order cleaning and
disinfection ( 3.1-727), and that he could order separation
of the animal from other animals ( 3.1-730). Formerly,
Virginia had a law that a person could not move his "distempered cattle" off his premises, but that law was
repealed. Also, Virginia did not in 2001 have any statute
requiring a person having a diseased animal, and knowing it
to be a diseased animal, to report such - essentially, the
goal of reporting was achieved by assuming the owner would
take the animal to a vet out of love of his animal, and the
law then putting the onus on the vet to report.
The Board
did not adopt a Notice of Intended Regulatory Action for
scrapie in sheep and goats until 2004, and did not publish a
proposed regulation until 2007. When Mr. Hawks, in 2001,
certified Virginia as a "consistent state," he had
actual knowledge or should have known that Virginia nowhere
came close to having the types of laws that it must have to
be a consistent state.
Furthermore,
his actions contribute to Virginia's laws fraudulently
being presented as Virginia's laws. Regulations like
Virginia's scrapie regulation that have been forced upon
the stat are not laws of Virginia at all. In actuality, they
are laws of the federal government dressed up as laws of
Virginia.
Some
examples of the statements by Virginia officials en route to
creation of the "Virginia" scrapie regulation are as
follows:
"The
federal regulation which became effective in September,
2001, restricts interstate movement of sheep and goats from
states that have not initiated intrastate regulatory action
concerning scrapie eradication." Notice of Public Comment
Period of Roy Seward, Board Secretary, filed June 6, 2007,
with the Virginia Registrar of Regulations; VIRGINIA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES SUMMARY, 2
VAC 5-206, REGULATION FOR SCRAPIE ERADICATION.
"The
federal regulation, which became effective in September
2001, restricts interstate movement of sheep and goats from
states that have not initiated intrastate regulatory action
concerning scrapie eradication within two years." Virginia
Regulatory Town Hall, Final Regulation, Agency Background
Document, Form TH-03, p. 3, dated April 17, 2008.
The entire
focus in Virginia throughout the regulatory process wasn't
that there was a disease problem or might be a disease
problem. but that the federal government would burden its
citizens in interstate trafficking if Virginia didn't make
itself a consistent state.
At a
hearing held December 6. 2007, Dr. Richard Wilkes, Director,
Division of Animal & Food Industry Services (DAFIS),
testified,
The purpose
of this proposed regulation is to make the rules that USDA
described in those Uniform Methods and Rules a part of
Virginia regulations in order for our state to be consistent
with the scrapie eradication program from a USDA
perspective. Without these rules, Virginia will become an
inconsistent scrapie state, and will be the only
inconsistent state in the country. Amongst possible negative
effects that I can envision would be the producers that
currently are in our state, which is treated as a consistent
State, that choose to sell out of state directly to
slaughter. and are selling animals less than 18 months old,
can move those animals without individual identifications or
certificate of veterinarian inspection.
If we
become an inconsistent state, those producers will have to
individually identify each one of those animals before they
go to slaughter, and have a certificate of veterinarian
inspection from an accredited veterinarian within the state.
Producers that like to exhibit or sell animals out of the
state will be required to be part of a Scrapie Certified
Flock Program at least at the monitored status in able to
market, merchandise or exhibit their animals out of the
state.
Transcript.
pp. 6-8.
According
to the APHIS Web site, The incidence of scrapie seems low
only a few dozen cases are reported annually. Blackfaced
sheep, including Suffolks4 have had the majority of the
cases detected nationwide.
There has
never been a documented case of scrapie in a goat in
Virginia, and but few in sheep. virtually all in black faced
sheep. Your office has essentially created a problem where
no problem existed.
There exist
10 contagious diseases peculiar to sheep and goats:
Caprine
arthritis/encephalitis
-
Contagious agalactia
-
Contagious caprine pleuropneumonia
- Enzootie abortion of ewes (ovine chiamydiosis)
- Maedi-visna
- Nairobi
sheep disease
- Ovine epididymitis (Brucella ovis)
- Peste
des petits ruminants
- Salmonellosis (S. ahortusovis)
- Scrapie
Furthermore,
goats and sheep are subject to a host of multi-species
contagious diseases as follows: Sheep: Caseous Lymphadenitis
(CLA, CL, boils, abscesses, cheesy gland); Epididymitis
(Brucella
Ovis); Scabies (sheep scab, psoroptic mange, wet mange);
Foot-and-mouth disease
(FMD,
hoof-and-mouth disease); Footrot; Pink eye (infectious
keratoconjunctivitis); Ringworm
(club
lamb fungus, wool rot, and lumpy wool); and Soremouth
(contagious ecthyma, scabby
mouth,
pustular dermatitis, orf); rinderpest.
Goats:
Soremouth (contagious ecthyma, scabby mouth, pustular
dermatitis, orf); Pink- eye; and Foot rot; rinderpest.
Why is
there a Virginia scrapie regulation for sheep and goats, but
no regulation for any other diseases that only sheep and
goats are susceptible to? There can only be but one answer:
Coercion by the federal government to adopt a scrapie
regulation pertaining to goats and sheep. This coercion is
illegal and has led to Virginia acting. which in turn has
caused harm to Solem.
But let us
assume that you are not coercing Virginia. Still, if she
voluntarily and willingly (whether with or without actual
knowledge that Hawks acted without authority) complied with
illegal federal directives, then she becomes a
co-conspirator, an aide and abettor of illegal federal
conduct. And you are still responsible for what she has
done, as all partners are responsible for the acts of any of
the partners done in pursuance of the partnership activity.
II. THE
ACTS OF KEVIN SHEA, ACTING ADMINISTRATOR OF APHIS, 72 FR
39,301-39,306,
PURPORTING TO AMEND THE HAWKS REGULATION OF 2001, ARE A
NULLITY.
A. AN
ATTEMPTED AMENDMENT OF A NULLITY IS A NULLITY.
Public Law
107-171, The Farm Security and Rural Investment Act of 2002,
116 Stat. 134, adopted May 13. 2002, included TITLE
X - MISCELLANEOUS, Subtitle E--Animal Health Protection,
containing as follows:
Sec. 10418.
REPEALS AND CONFORMING AMENDMENTS.
(a)
Repeals.--The following provisions of law are repealed:..
(7) <21
Usc 111-113, 120-122> The Act of February 2 1903 (21
U.S.C. 111. 120 through 122).
(8)
Sections 2 through 9q 11. and 13 of the Act of May 29,
1884(21 U.S.C. 112, 113, I 14 1 14a. I 14a - 1, 115 through
12O 130)...
(17) The
first section and sections 2 through 6 and 11 through 13 of
Public Law 87-518 ( 21 U.S.C. 134 through 134h)....
(c) < 7
USC 83 17> Effect on Regulations.--A regulation issued
under a provision of law repealed by' subsection (a) shall
remain in effect until the Secretary issues a regulation
under section 10404(b) [7 U.S.C. ; 8303(b) or 10416 [8315]
that supersedes the earlier regulation.
Since the
pertinent provisions of Mr. Hawkss regulation are unlawful,
they are a complete nullity, and hence not a "regulation
issued under a provision of law repealed by subsection
(a)." Thus, it is not the case that they "shall remain
in effect." In other words, since they are unlawful, their
existence is not saved by the savings clause which saves
them from the effects of the repeal of the enabling
statutes.
B.
REGULATIONS UNDER THE OLD ACTS REMAIN I.N EFFECT UNTIL A
REGULATION "SUPERSEDES" THEM, AND AN AMENDMENT CANNOT
SUPERSEDE.
On July 18,
2007, Kevin Shea4 Acting Administrator of APH.IS, purported
to modify the 2001. Hawks regulation. 72 FR 39301. As noted,
under 7 U.S.C. ; 8317, the Hawks 2001 regulation stays in
effect until "superseded" by a regulation issued by the
Secretary, and the Shea action of 2007 purported to amend.
but not supersede. the 2001 regulation. Hence, it is of no
effect. In ifumanci Inc. v. Forsyth, 525 U.S. 299 307
(1998), the Supreme Court wrote, "And the term
‘supersede' ordinarily means ‘to displace (and thus
render ineffective) while providing a substitute rule."
Under the 2002 Acts nowhere was the Secretary given
authority to "amend" regulations under the old acts.
The statute
says "a regulation" remains in effect; it doesn't say
a part of a regulation remains in effect until that part has
been amended. The intent of the Congress was in eliminating
the 4 old acts and replacing them with a new comprehensive
act, that if the Secretary wanted to change a regulation
under the old acts, then he would repeal it and draw a whole
new regulation from scratch, thus "superseding" the old
regulation.
C. THE ACT
OF KEVIN SHEA AS "ACTING ADMINISTRATOR OF APHIS" IN 2007
Is NOT THE ACT OF THE SECRETARY, AND IS INVALID.
(1) SINCE
THE SOURCE OF AUTHORITY OF KEVIN SHEA TO ACT
FOR THE
ADMINISTRMOR Is 7 C.F.R. PART 371 OF CRAIG A. RE1),
ADMINISTRATOR,
65 FR 1298 JANUARY 10, 2000, INCLUDING 7 C.F.R. ; 371.13(B),
THAT THE
ADMINISTRATOR MAY "DESIGNATE" AN "INDIVIDUAL" TO ACT
FOR HIM,
PURPORTEDLY ADOPTED UNDER AUTHORITY OF 5 U.S.C. ; 301, BUT
THE
ADMINISTRATOR 1.5 NOT "THE HEAD OF AN EXECUTIVE DEPARTMENT"
UNDER SUCH
STATUTE, PART 371 Is INVALID, AND SHEA HAD NO AUTHORITY
TO ACT FOR
THE ADMINISTRATOR.'
It is
evident that Kevin Shea, by styling himself "Acting
Administrator of APH1S" in making the 2007 amendment,
purported to act under authority of 7 C.F.R. ; 371.13,
which states: The
following are reserved to the Administrator, or to the
individual designated to act for the Administrator:
Ms. Solem
had not actual knowledge of the existence of 7 C.F.R. Part
371 until undersigned called it to her attention as part of
his research in preparing this letter.
(b) The
issuance of regulations pursuant to law.
Such
provision appears as part of 7 C.F.R. Part 371 purportedly
adopted by Craig A. Reed, Administrator of AP[IIS at 65 FR
1298, January 10, 2000. 7 C.F.R. Part 371 describes itself
as a "new internal APIHS organization..." 66 FR ]29, and
thi speaks of "major changes in the statement of
organization, functions, and delegations of
authority...'" Id.. Mr. Reed claimed as authority 5
U.S.C. ; 301, which states,
The head of
an Executive department or military department may prescribe
regulations for the government of his department, the
conduct of its emp1oyees the distribution and performance of
its business, and the custody, use, and preservation of its
records. papers and property.
However,
under 5 U.S.C. ; 101 "The executive departments are...
the Department of Agriculture." Mr. Craig simply was not
the "head of an Executive department," and hence he had
no authority under 5 U.S.C. ; 301 to act.
The
pertinent "head of an Executive department" is the
Secretary. This statute has been described as the
housekeeping statute, and under it he has authority to put
his house in order. This statute nowhere gives to the
Secretary authority to delegate his powers there under, and
nowhere has the Secretary purported to delegate to anybody
his powers under 5 U.S.C. ; 301.
(2) SINCE A
DELEGATION OF GENERAL RULE-MAKING
AUTHORITY
IS NOT AN "INTERNAL MATTER" UNDER 5 U.S.C. ; 301, CRAIG
REED,
ADMINISTRATOR OF APHIS, HAD NO AUTHORITY TO ARROGATE TO
HIMSELF A
POWER TO DELEGATE HIS RULE MAKING POWER, AND ANY
DELEGATION
TO KEVIN SHEA WAS INVALID.
5 U.S.C. ;
301 does not authorize the making of "substantive ru1es"
that is rules "affecting individual rights and
ob1igations" Schism v. U.S., 316 F.3d 1259, 1281 (Fed.
Cir., 2002). [f the question is whether Abraham Lincoln or
Joseph Stalin as his delegate will rule the people, the
people themselves are vitally interested in that question,
and such is not a mere internal matter. Hence. Mr. Reed
could not arrogate to himself authority to delegate a rule
making power to any "individual" whom he "designates," and any designation of Mr. Shea in 2007
was invalid.
(3) EVEN IF
CRAIG REED'S DETERMINATION TO ARROGATE TO
HIMSELF A
POWER TO DELEGATE RULE MAKING POWER TO AN
"INDIVIDUAL"
WHOM HE "DESIGNATES" WERE INTERNAL, STILL 5 U.S.C. ;
301
DOES NOT
TRUMP SPECIFIC STATUTES WHICH REQUIRE OPPORTUNITY FOR
PUBLIC
COMMENT, INCLUDING 7 U.S.C. ; 6912(C), AND HENCE ANY
DESIGNATION
TO SHEA TO ACT WAS INVALID.
As noted
above, the ‘Secretary" has authority to make
regulations. Under the Department of' Agriculture
Reorganization Act of' 1994, ; 21 2 (7 U.S.C. ; 691
2(a)( 1) and (c)).
Subject to
paragraph (2), the Secretary may delegate to any agency,
office. officer, or employee of the Department the authority
to perform any function transferred to the Secretary under
section 211(a) [7 USCS ; 6911(a)] or any other function
vested in the Secretary as of the date of the enactment of
this Act [Oct. 13, 1994]....
(c) Public
comment on proposed reorganization. To the extent that the
implementation of the authority provided to the Secretary by
this chapter to reorganize the Department involves the
creation of new agencies or offices within the Department or
the delegation of major functions or major groups of
functions to any agency or office of the Department (or the
officers or employees of such agency or office), the
Secretary shall, to the extent considered practicable by the
Secretary -
(1) give
appropriate advance public notice of the proposed
reorganization action or delegation; and
(2) afford
appropriate opportunity for interested parties to comment on
the proposed reorganization action or delegation.
Under ; 285
of that Act (7 U.S.C. ; 7005),
(a)
Authorization
The
Secretary is authorized to establish in the Department the
position of Under Secretary of Agriculture for Marketing and
Regulatory Programs.
(b)
Confirmation required
If the
Secretary establishes the position of Under Secretary of
Agriculture for Marketing and Regulatory Programs authorized
under subsection (a) of this section, the Under Secretary
shall be appointed by the President. by and with the advice
and consent of the Senate.
(c)
Functions of Under Secretary
(1)
Principal functions
Upon
establishment the Secretary shall delegate to the Under
Secretary of Agriculture for Marketing and Regulatory
Programs those lunctions and duties under the jurisdiction
of the Department that are related to agricultural
marketing. animal and plant health inspection, grain
inspection, and packers and stockyards.
We will
assume that the word ‘delegate" under ; 6912(a)(l)
embraces re-delegation and re-re- delegation.
The
Secretary exercised his authority under the above in 7 C.F.R.
; 2.7% giving to any general officer and agency head
authority to re-delegate, and in 7 C,FR. ; 2.22(a)(2)(xlvii),
vesting in the Under Secretary of M & RP functions under
the Animal Health Protection Acts. The Under Secretary of M
& RP in turn exercised his authority to re-delegate by
delegating to the Administrator of APHIS powers under such
acts in 7 C.F.R. ; 2.80(a)(37).
Mr. Craig
states. ‘This rule relates to internal agency management.
Therefore4 pursuant to 5 U.S.C. 553. notice of proposed
rulemaking and opportunity for comment are not required,..."
66 FR 1299.
Under 5 U.S.C. ; 553,
Rule making
(a) This
section applies according to the provisions thereot except
to the extent that there is involved - ...
(2) a
matter relating to agency management or personnel or to
public property. loans, grants, benefits, or contracts.
(b) General
notice of proposed rule-making shall be published in the
Federal Register, unless persons subject thereto are named
and either personally served or otherwise have actual notice
thereof in accordance with law...
Except when
notice or hearing is required by statute, this subsection
does not apply - (A) to interpretative rules, general
statements of policy, or rules of agency organization,
procedure, or practice;...
Assuming,
again, that "delegation" under ; 6912 embraces
re-delegation and re-re-delegation, it is evident that if
the Secretary. personally, in his capacity as Secretary had
made a rule delegating general rule-making power from
himself to the Under Secretary of M & RP, and then from
the latter to the Administrator of APHIS (as he has) and
then from the Administrator of API IIS to "the individual
designated to act for the Administrator" (here,
supposedly, Kevin Shea), that under ; 6912 (c) he would
have to "afford appropriate opportunity for interested
parties to comment." Under 5 U.S.C. ; 553, a proposed
delegation of general rule-making power is not a matter of
"internal management," but, even if it were, ; 6912 is
a statute" which requires notice, and hence it is not the
case that Craig Reed, Administrator of APHIS, could adopt
Part 371 without notice to the public and opportunity to
comment.
The
Administrator, being a sub-sub-agent of the Secretary, has
no greater statutory powers than the Secretary. and, the
Secretary being bound to afford opportunity to comment on a
proposal to give to the Administrator power to delegate a
rule-making function to any individual designated, the
Administrator himself was bound to give such notice, and the
purported regulation at 66 FR 1298, is invalid as in
conflict with ; 6912(c). As such regulation is invalid.,
the Administrator could not validly designate Kevin Shea as
an individual to act for him in making general regulations.
and Kevin Shea's 2007 effort to do so is invalid.2
2 According
to APHIS' s website, Kevin Shea was the Associate
Administrator of APHIS in
2007. Under
7 C.F.R. ; 371 .1, the API-US ‘management team"
includes an "Associate Administrator," and 7 C.F.R. ;
371.2 states.
(b) The
Associate Administrator, The Associate Administrator of
APHIS shares responsibility with the Administrator for
general direction and supervision of APHIS programs and
activities. The Associate Administrator may act for the
Administrator.
Id.. The
Associate Administrator is granted authorities in 7 C.F.R.
; 371.11. Id..
(4) CRAIG
REED, ADMINISTRATOR OF APHIS, HAD NO POWER IN
2000 TO
ARROGATE TO HIS OFFICE A POWER TO DELEGATE A GENERAL
RULE-MAKING
AUTHORITY TO AN "INDIVIDUAL" WHOM HE "DESIGNATED,"
AND HENCE
ANY DESIGNATION OF TO KEVIN SHEA WAS IN VALID.
While 3.371
.13 (b) purports to be a "reservation" of' power in
the Administrator, it is simultaneously also an arrogation
by the Administrator to himself of a power to delegate to "any individual he designates" a general rule-making
power. It is axiomatic that power, adhering in an office,
can never he delegated to an individual, but must remain in
an office. Thus power can flow from the office of Secretary
to the office of Under Secretary of N'l & RP. and
thence down to the office of Administrator, but it cannot
get out of an office and into an individual.
Further,
the purported exercise of power by Mr. Reed in 2000
substantively conflicts with the Secretary's 7 C.F.R. ; 2.7
which states,
Unless
otherwise provided, a general officer or agency head may.
subject to his or her continuing responsibility for the
proper discharge of delegations made to him4 in this part,
delegate and provide for the redelegation of his or her
authority to appropriate officers and employees.
Nothing in
the text of 7 C.F.R. ; 3.37 1.13(b) limits the
Administrator, when he chooses to designate an "individual" to exercise his general rule-making power,
to limit his choices to appropriate officers or employees,
or even to officers or employees of the department. If his
golf caddie is illiterate and has a sixth grade education,
he could designate his golf' caddie as "the
individual" to exercise the rule-making power.
Finally,
undersigned has grave concerns whether even the grant of
power of redelegation in 7 C.F.R. ; 2.7 is valid. Congress
in the Act of 1994 used the word "delegation," but
increasingly has demonstrated it knows how to use the word "redelegation." It has specifically authorized the
Secretary to delegate to the Under Secretary of M & RP,
an office requiring presidential appointment and concurrence
of the Senate. A strong argument can be made that the
Congress intended the general rule making power descend no
Lower than the Under Secretary of
It is
apparent by Mr. Shea's signing as "Acting
Administrator." rather than as Associate Administrator,'
that he was of the view that that the language of ;37113(b),
that the "individual" designated can act with respect to
a general rule-making power trumps the language of ;
371.2(b) that he can act for the Administrator. Otherwise,
he would have signed as Associate Administrator. However, it
is axiomatic that if a person operates in a number of
different capacities (he validity of his actions must be
governed by the capacity in which he claimed to act. Thus,
we may assume that the Administrator could validly delegate
his general rule-making power to the office of Associate
Administrator, and that Kevin Shea in his capacity as
Associate Administrator might have validly signed the 2007
amendment. Still, he did not sign as "Associate
Administrator," and hence the question of whether his acts
in such capacity' would have been binding upon and inured
to the benefit of the Administrator are not before us.
III. THE
ATTEMPTED AMENDMENT OF 9/12/2008 BY CINI)Y J. SMITH,
ADMINISTRATOR
OF APHIS, OF THE 2001 REGULATION, 74 FR 54059-63, IS A
NULLITY.
A. AN
ATTEMPTEI) AMENDMENT OF A NULLITY IS ITSELF A NULLITY.
B. CINDY J.
SMITH CANNOT AMEND THE 2001 REGULATION BUT ONLY
SUPERSEDE
IT.
IV.
CONCLUSION
In sum, the
actions of Under Secretary Bill Hawks in 2001, purporting to
create the pertinent provisions of 7 CFR Part 79, as well as
those of Acting Administrator of APHIS, Kevin Shea. in 2007.
purporting to amend such provisions, and those of Cindy J.
Smith, Administrator of APHIS in 2008, also purporting to
amend the provisions, are without and in excess of
authority, and hence are null and void. Furthermore, 7 CFR
Part 371, as created in 2000, is void in its entirety. Your
office should recognize the invalidity of Fart 79 and should
supersede it in its entirety, namely, repeal Part 79 and
replace it with a new Part 79 worded identically to Part 79
as it existed in 2000.
Respectfully submitted,
4.27.12
UPCOMING EVENT: Virginia Cooperative Extension:
Better Process Control School Acidified Foods Training May
21-22, 2012 Virginia Tech Food Science and Technology
Building
Successful
completion of the Better Process Control School certifies
supervisors in the requirements of the Code of Federal
Regulations Title 21 Part 114 which states:
"All
plant personnel involved in acidification, pH control,
heat treatment, or other critical factors of the operation
shall be under the operating supervision of a person who
has attended a school approved by the Commissioner for
giving instruction in food handling techniques, food
protection principles, personal hygiene, plant sanitation
practices, pH controls, and Critical factors in
acidification…"
All qualified food processors are encouraged to take
advantage of this training opportunity.
This
two-day school includes text book, training and lunch for
a fee of $250 per person. Lodging, breakfast, and evening
meals are not included.
Download/View
Brochure and Registration Form here.
2.25.11
ATTENTION: Proposed Regulations to REQUIRE Animal
Identification of ALL Agricultural Animals
Virginia
has proposed regulations to require identification of all
agricultural animals entering Virginia. This includes
poultry.
The
proposed regulations can be viewed here.
If you have difficult accessing the link above, you
may also visit and browse the main page of the Virginia
Register of Regulations.
There
will be a public hearing on March
24, 2011
at 10:00 a.m. in the 2nd floor Board Room, of the Virginia
Department of Agriculture and Consumer Services, located
at:
102 Governor Street
Richmond, Virginia.
The deadline for public comment is April 1, 2011.
Contact:
Dr.
Dan Kovich
Staff Veterinarian, Animal Care and Health Policy
Department of Agriculture and Consumer Services
P.O. Box 1163
Richmond, VA 23218
Telephone: (804)786-2483
FAX: (804) 371-2380
TTY: (800) 828-1120
email:
dan.kovich@vdacs.virginia.gov.
Comments may be submitted on the Town Hall website.
It
is very important to make your views known. Please
plan to attend the public hearing whether you wish to
speak or not!
2.1.11
Be Present During Voting of SB920
Update
Voting
has been rescheduled
for SB920
Home-Processing Bill
to Monday,
February
1, 2011
at 9:00 in the Senate Agriculture Committee Room, on the
1st floor. They will have signs on the door will read:
"Senate Agriculture Committee".
It is essential that we have warm bodies present at
this vote. Please plan to join us. If you are
unable to attend the vote, please call the senators listed
below as soon as possible!
1.27.11
Contact Your Senator!
The SB920
Home-Processing Bill will
be voted on Monday, January 31st at 9:00 in the Senate
Agriculture Committee Room, on the 1st floor. They will
have signs on the door will read: "Senate Agriculture
Committee".
First,
please call all the senators on the
list below. They
are representing Agriculture in Virginia; and your opinion
counts. Then, call your senator
and ask him to support SB920 the home-processing bill.
This
bill gives us the right have direct farmer-to-consumer
trade of homemade pickles, canned vegetables and fruits
with the pH of 4.6 or less without
a state inspection.
Here
are some talking points:
1.
CONSUMERS DEMAND FOR LOCAL FOOD:
There
are increasing demands for locally prepared, small batch
foods. Not only is their taste superb, but also the
public has suffered increasingly from numerous food
poisoning outbreaks resulting from large scale
commercially processed foods.
2.
LOCAL PRODUCED FOOD IS SAFER:
Congress
responded this year to the problems of the food industry
by passing S510, The Food Safety Bill, which mandates more
regulation on large agribusiness food producers. However,
Congress recognized that locally-produced food is safer
and provided exemptions in the bill for small local direct
producer to consumer sales. Also, recently several
other states have passed laws containing such exceptive
language.
3.
PRIVATE HOME INSPECTIONS ARE OPPRESSIVE AND UNNECESSARY:
Regulations
mandating
inspections of private homes where the resident processes
and prepares food for sale to an individual for
his own consumption are oppressive and unnecessary. Such
inspections inhibit small local enterprises. Virginia
inspectors should spend their time where it is
needed--inspecting large agribusiness operations and food
conglomerates.
4.
SUPPORT FAMILIES AND BOLSTER LOCAL ECONOMY:
Allowing
the sale of some home-made products would provide a
valuable source of supplemental income to families,
It would also bolster the local economy. According
to an economic analysis
report conducted by the Virginia
Cooperative Extension, if every household in the state
spent just $10 on local food per week, the Virginia
economy would receive an additional $1.65 billion.
5.
AGRIBUINESS USES SCARE TACTICS TO KILL LOCAL FOOD
LEGISLATION:
Agribusiness
lobbyist raised the specter of botulism as a reason for
not passing home processing legislation in the past,
However, statistics simply do not support their argument.
For instance, the risk of botulism in homemade pickles is practically
nil. Pickles, since they are acidic, have been
safely made in the home for generations. Botulism
was once a problem in some-canned vegetables, but with the
advent of the pressure cooker, incidences plummeted.
6. 2008
EXEMPTION:
In
the 2008 legislative session, a bill was passed
exempting candies, jams, jellies and certain baked goods
from inspection if those items were sold at the home or at
farmers' markets and labeled "NOT FOR
RESALE-PROCESSED AND PREPARED WITHOUT STATE
INSPECTION." There have been no public health
problems resulting from this legislation. Yet,
agribusiness fought against this bill all the way.
These are the Senators on the Agriculture Committee:
Senator
Patricia Ticer - 804-698-7530
Part
of Alexandria, Arlington and Fairfax County
Senator
Mary Whipple- 804-698-7531
Falls
Church, part of Arlington and Fairfax County
Senator
Emmett Hanger - 804-698-7524
Augusta,
Greene, Highland, Lexington, Staunton, and
Waynesboro,
Part of Rockbridge, and Rockingham
Senator
John Watkins - 804-698-7510
Amelia,
Powhatan, and part of Chesterfield, Cumberland,
Goochland,
Henrico and Richmond City
Senator
Roscoe Reynolds - 804-698-7520
Carroll,
Floyd, Galax, Henry, Martinsville, and Patrick,
Part
of Grayson and Wythe
Senator
Phillip Puckett - 804-698-7538
Bland,
Buchanan, Dickenson, Russell and Tazewell
Part
of Pulaski, Smyth, Wise andy Wythe
Senator
Frank Ruff - 804-698-7515
Appomattox, Charlotte, Fluvanna, Halifax, Mecklenburg and
Prince
Edward, Part of Amherst, Brunswick, Buckingham,
Cumberland,and
Lunenburg
Senator
Harry Blevins - 804-698-7514
Part
of Chesapeake and Virginia Beach
Senator
Mark Obenshain-804-6987526
Harrison,
Page, Rappahannock,
Shenandoah and Warren
Senator
Donald McEachin - 804-698-7509
Charles
City, Part of Henrico and Richmond City
Senator
Chap Petersen - 804-698-7534
Fairfax
City, Part of Fairfax County
Senator
Ralph Northam - 804-698-7506
Accomack
County (All);
Mathews County (All); Norfolk City (Part);
Northampton County (All); Virginia Beach City (Part)
Senator
Richard Stuart - 804-698-7528
Fauquier
County (Part); Fredericksburg City (Part);
King George County (All);
Lancaster County (All);
Northumberland County (All);
Prince William County (Part);
Richmond County (All); Stafford County (All);
Westmoreland County (All)
Senator
McDougle - 804-698-7504 = Bill Sponsor
Caroline,
Essex, Hanover, King and Queen, King William;
Middlesex,
Part of Spotsylvania
1.12.11
Legislative Breakfast - JOIN US!
Event: Legislative
Breakfast:
Where: General Assembly 7th floor, West
Conference Room
When: January 18th, 2011
Time: 9:30 to 11:30 (please arrive at 8:30
am)
Bring: a Breakfast item from your own or
local farm
We are lobbying to restore our right to sell pickles, canned vegetables and fruits with the pH of 4.6 or less. As you, know freedom isn't free. It takes sacrifice to keep our freedoms. We need volunteers to come and bring locally-made and produced products to our Legislative Breakfast. We have worked hard for this chance to take back our freedoms. If not you, then who will come? Please call Lois Smith at (804)366-6051 or email us to let us know what you can bring to this event!
11.21.10
Update: VICTORY on S.510 Food Safety Bill
An agreement has been reached in the amendments for the S.510 Food Safety Bill, creating a tremendous victory for our nation's small farmers! Without your support, phone calls and e-mails - none of this would have happened.
This IS a direct result of consumers stepping up, voicing their opinions and making it known that the FDA can't just trounce all over our small farmers! What IF there had been no outcry from the public... just silence? The FDA, the lobby for the huge industrial farms, and those who want to control your access to local food - would have WON! You would have been directly impacted, your family (if they are farmers), your farmer neighbors would be affected. The entire local food system in this country, every small farmer, CSA, farmer's market, local restaurants and small grocery market would have to change.
Our small farmers, the very backbone of this country, and the only place where we can get good, fresh, local food that is free from the contamination risks -- could have been forced out of business. Read more about it here. Instead, VICFA spoke out and amendments were made. It's a time to spread the good news, but not a time to rest on our laurels! The battle for our food is not over! Constant pressure and vigilance is needed. We cannot give up.
10.20.10
Scrapie Regulations Update
On October 13th, 2010, Judge Cheryl Higgins, Albemarle Circuit Court, granted the State the Motion to Dismiss the challlenge to the Virginia Scrapie Regulations for goats and sheep. Since it appears that the Judge erred in this decision, an appeal is seriously being considered. Information on the exact status of the case will be available by our November, 2010 VICFA Voice newsletter.
10.18.10
; 3.2-5130. Inspections Required to Operate Food
Establishment - Update October 18,
2010 (formerly
referred to as The Pickle Bill 2011)
A. It is unlawful to operate a food manufacturing plant, food storage warehouse, or retail food store until it has been inspected by the Commissioner. This section shall not apply to:
1. Food manufacturing plants operating under a grant of inspection from the Office of Meat and Poultry Services or a permit from the Office of Dairy and Foods in the Department; and Grade A fluid milk manufacturing plants and shellfish and crustacea processing plants operating under a permit from the Virginia Department of Health;
2. Nonprofit organizations holding one-day food sales;
3. Private homes where the resident processes and prepares candies, jams, and jellies not considered to be low-acid or acidified low-acid food products and baked goods that do not require time or temperature control after preparation if such products are: (i) sold to an individual for his own consumption and not for resale; (ii) sold at the private home or at farmers markets; and (iii) labeled "NOT FOR RESALE - PROCESSED AND PREPARED WITHOUT STATE INSPECTION." Nothing in this subdivision shall create or diminish the authority of the Commissioner under ; 3.2-5102; and
4. Retail establishments that: (i) do not prepare or serve food; (ii) sell only food or beverages that are sealed in packaging by the manufacturer and have been officially inspected in the manufacturing process; (iii) do not sell infant formulas; (iv) do not sell salvaged foods; and (v) certify to the Department that they meet the provisions of this section. Retail establishments that meet the provisions of this subdivision shall be exempt from inspection and the inspection fees. Nothing in this section shall prevent the Department from inspecting any retail establishment if a consumer complaint is received.
B. Any person who violates any provision of this section is guilty of a Class 1 misdemeanor.
(1993, c. 936, ; 3.1-398.1; 2003, c. 420; 2004, c. 953; 2008, cc. 459, 860.)
10.7.10
The Pickle Bill 2011 [as
originally proposed - updated above]
1. Consumer Demand for Local Food
There are increasing demands for locally prepared,
small batch foods. Not only is their taste superb, but
also, the public has suffered increasingly from numerous
food poisoning outbreaks resulting from large-scale,
commercially-processed foods.
2. Support Families and Bolster Local
Economy
Allowing the sale of some homemade products would provide
a valuable source of supplemental income to families. It
would also bolster the local economy. According to an
economic analysis report conducted by the Virginia
Cooperative Extension, if every household in the state
spent just $10 on local food per wee, the Virginia economy
would receive an additional $1.65 billion. Several other
states just passed similar legislation in 2010.
3. Private Home Inspections Are
Oppressive and Unnecessary
Regulations mandating inspections of private homes where
the resident processes and prepares food for sale to an
individual for his own consumption are oppressive and
unnecessary. Such inspections inhibit small, local
enterprises. Virginia inspectors need to spend their time
where it is needed - inspecting large agribusiness
operations and food conglomerates.
4. Agribusiness Uses Scare Tactics to
Kill Local Food Legislation
Agribusiness lobbyists raised the specter of botulism as a
reason for not passing this bill in 2010. However,
statistics simply did not support their argument. The risk
of botulism in homemade pickles is practically nil.
Pickles, since they are acidic, have been safely made in
the home for generations.
5. 2008 Exemption
In the 2008 legislative session, a bill was passed
exempting candies, jams, jellies, and certain baked goods
from inspection, if those items were sold at the home or
at farmers' markets and labeled "NOT FOR RESALE -
PROCESSED AND PREPARED WITHOUT STATE INSPECTION."
There have been no public health problems resulting from
this legislation. Still, agribusiness fought against this
bill all the way.
A Bill to amend and reenact ;3.2-5130 of the Code of Virginia relating to food inspection.
Be it enacted by the General Assembly of Virginia:
1. That ;3.2-5130 of the Code of
Virginia is amended and reenacted as follows: ;3.2-5130.
Inspections required to operate food establishment.
A. It is unlawful to operate a food manufacturing plant,
food storage warehouse, or retail food store until it has
been inspected by the Commissioner. This section shall not
apply to:
1. Food manufacturing plants etc........
2. Nonprofit organizations etc...........
3. Private homes where the resident processes
and prepares candies, jams, jellies, not
considered to be low-acid or acidified low acid food
products pickles made from the produce of the
resident's own garden and baked goods that do not
require time or temperature control after preparation if
such products are: (i) sold to an individual for his own
consumption and not for resale; (ii) sold at the private
home or at farmers markets; and (iii) labeled "NOT
FOR RESALE-PROCESSED AND PREPARED WITHOUT STATE
INSPECTION." Nothing in this subdivision shall create
or diminish authority of the Commissioner under ;3.2-5130;
and
4. Retail establishments etc..........
B. Any person etc........................
9.13.10
The S510 food safety bill is coming up for a vote. Please
call your senators (contact information provided below)
to ask them to amend the S510 bill with the Tester-Hagan
amendments.
"The Managers' Package does not
include the Tester-Hagan Amendments. These amendments
remain under negotiation, but (if adopted), they would
provide an exemption for small direct-market farms and
facilities from the new HACCP-type requirements and
on-farm produce standards. The amendments only address the
new requirements that FDA can impose under S.510; they do
not exempt small farms and processors from existing state
and local health requirements."
- (quoted from www.farmandranchfreedom.org)
When you contact your senators, use your own words and let your senators know how much it means to you to be able to buy directly from the farmer. Let them know that there needs to be a two tier system, One for big Ag, and one for your neighbor farmer.
CONTACT INFORMATION:
-
Webb, Jim - (D - VA) Class I
248 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-4024
http://www.senate.gov/general/contact_information/senators_cfm.cfm?State=VA
-
Warner, Mark R. - (D - VA) Class II
459A RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-2023
http://www.senate.gov/general/contact_information/senators_cfm.cfm?State=VA