© Doreen Hannes 2009
The staff of Congress said HR 2749, the Food Safety Enhancement Act of 2009, didn't authorize the National Animal Identification System. Many organic groups agreed with them. However, they weren't telling the truth. At least not the whole truth. It certainly doesn't mention "the" National Animal Identification System by name, but it definitely authorizes the program. It also doesn't state that it is legally authorizing Good Agricultural Practices, or GAP, partially comprised of Codex guidelines on traceability and food safety and the OIE's Guide to Good Farming Practices including auditing, certification and inspections as well as disincentives for not participating in the form of fines, penalties, and loss of access to market; but it most certainly does. Is it possible that Congress doesn't have the slightest idea what they were voting on? Possibly. It doesn't come as any surprise that Congress didn't read the bill as it was changed three times in a 24-hour period before it was passed out of the House with a 283-142 vote. Never mind that they don't read the bills any way.
Are these wild and unsubstantiated assertions about HR 2749? I wish they were. It's actually fairly easy to prove that this bill does all that I stated above and even more. All one needs to do is understand what is involved in Good Agricultural Practices and how the agencies of the World Trade Organization operate within member countries to get this. Don't worry, I will explain that to you in very brief detail, and there are only a few pieces from the legislation itself that are necessary to read to fully comprehend that this is indeed what we are dealing with in HR 2749. The international guidelines are much lengthier than the legislation itself.
HR 2749 is 160 pages in its final version. If you search through it, you will find the following references to international standards and guidelines.
"(B) INTERNATIONAL STANDARDS.—In issuing guidance or regulations… the Secretary shall review international hazard analysis and preventive control standards that are in existence on the date of the enactment of this Act and relevant to such guidelines or regulations to ensure that the programs…..are consistent……with such standards." (page 35)
"CONSISTENCY WITH INTERNATIONAL OBLIGATIONS.—The Secretary shall apply this paragraph consistently with United States obligations under international agreements." (page81)
"The Secretary shall issue regulations to ensure that any qualified certifying entity and its auditors are free from conflicts of interest. In issuing these regulations, the Secretary may rely on or incorporate international certification standards." (page 82)
What this actually means is that there will be a layer of auditors, certifiers and inspectors over every aspect of food production in this country and that these inspectors and certifiers will be trained in ISO (International Standards Organization) management program certification. The ISO has been working with Codex Alimentarius on Food Safety Standards and in particular, a technical standard for Global Food Safety Initiative (GFSI) which is a consortium of the seven largest food retailers in the world, and that is ISO22000:2005. All traceability falls under the purview of Codex, the OIE (World Animal Health Organization and the IPPC (International Plant Protection Convention) for global trade agreements.
The following excerpt from 2749 shows the fully interoperable global network already in existence regarding food and its production:
"Development of such guidelines shall take into account the utilization of existing unique identification schemes and compatibility with customs automated systems, such as integration with the Automated Commercial Environment (ACE) and the International Trade Data System (ITDS), and any successor systems." (page 142)
So it is clear that international standards and guidelines are implicit in this legislation. Note the usage of the command form SHALL. This isn't a 'might', 'may' or in anyway a voluntary issue on the part of the Secretary. Then there is the section on Traceability. This is a code word in the National Animal Identification System and when one reads Sec.107 of this bill, it definitively describes components of NAIS even down to 48 hour trace back. which cannot even be fantasized about with out individual animal identification.
"…..the Secretary shall issue regulations establishing a tracing system that enables the Secretary to identify each person who grows, produces, manufactures, processes, packs, transports, holds, or sells such food in as short a timeframe as practicable but no longer than 2 business days." (=note that it says "grows"=) (page 70)
"……use a unique identifier for each facility owned or operated by such person for such purpose…" (page69)
So we have PIN and 48 hour traceback harmonizing with international standards and guidelines along with this:
"….‘‘(C) COORDINATION REGARDING FARM IMPACT.—In issuing regulations under this paragraph that will impact farms, the Secretary ‘‘(i) shall coordinate with the Secretary of Agriculture; and ‘‘(ii) take into account the nature of the impact of the regulations on farms." (page 71)
Now that I've killed you with legalese, it's time to let you find out just what these international standards and guidelines mean to those engaged in agriculture in this country.
Good Agricultural Practices are not a standard in and of themselves. They are more of a combination of standards and guidelines set forth by the FAO, Food and Agriculture Organization of the UN, through both the OIE (World Animal Health Organization) and Codex Alimentarius (Food Code) to meet the certification and auditing side of the international trade aspects of the standards set forth. The OIE and Codex are charged with setting global standards and guidelines for the member countries of the WTO to meet to satisfy the SPS (Sanitary and Phyto-Sanitary), TBT (Technical Barriers to Trade) and Equivalency agreements of the WTO for participation in international trade. Both the OIE and CODEX have guidelines for traceability that, with the passage of HR2749 into law, would be written into regulations governing all interstate commerce within the boundaries of the United States. The components of traceability are the pillars of NAIS that many of us have become so familiar with in the course of the battle over the past several years. Those being 1)Premise Identification, 2) Animal Identification and 3) Animal Tracking. You can't have traceability under international standards without having those three components.
One of the main issues in the implementation of these standards and guidelines within a member nation of the WTO is that they must have a legal framework through which to regulate and enforce these guidelines and standards. HR 2749 would meet the criteria for that legal framework via the excerpts from the bill above.
In the OIE's "Guide to Good Farming Practices" the management of a livestock facility are clearly spelled out. Some of these recommendations that would become defacto law in the US under agency rule-making on passage of HR2749 (GGFP delineates international guidelines for food safety at the farm level) are:
- For each animal…Require and keep all commercial and health documents enabling their exact itinerary to be traced from their farm or establishment to their final destination…
-Keep a record of all persons entering the farm…..
-Keep medical certificates of persons working with the animals……
-Keep documents proving the water you give to the animals meet specific criteria
-Keep samples of all feed given to the animals
-Keep all documents from official inspections
-Keep records of treatment and procedures on all animals (castration, disbudding, calving, medications, etc.)
-Prevent domestic animals (cats and dogs) from roaming in and around livestock buildings
-Place all these documents at the disposal of the competent authority (Veterinary Services) when it conducts farm visits.
Some of the other guidelines and standards that would come into play after the implementation of traceability for all agricultural products would be : (from FAO COAG/17 "Development of a Framework for Good Agricultural Practices") "the adoption and implementation of international standards and codes for which Codex food safety standards and guidelines have been designed, and the associated capacity building, training, development and field implementation in the context of the different production systems and agro-ecozones. These include: Enhancing Food Quality and Safety by Strengthening Handling, Processing and Marketing in the Food Chain (214A9); Capacity Building and Risk Analysis Methodologies for Compliance with Food Safety Standards and Pesticide Control (215P1); Food Quality Control and Consumer Protection (221P5); Food Safety Assessment and Rapid Alert System (221P6); and Food Quality and Safety Throughout the Food Chain (221P8)."*
To be certified as meeting the requirements of "GAP", which is synonymous with being in compliance with international standards and guidelines, we can check out GlobalGAP.org. This is "the" certifying methodology for international trade in ag products. Here are a few excerpts from their 122 page general regulations booklet has links to checklists for those who would be certifiers and auditors under the principles of GAP. This is an organization, not a governing body under WTO agreements, but working with nations and businesses to meet the criteria regarding these GAP practices for international trade. Here is a bare minimum of excerpts from their regulation document:
-(ii) Developing a Good Agricultural Practice (G.A.P.) framework for benchmarking existing assurance schemes and standards including traceability. (iii) Providing guidance for continuous improvement and the development and understanding of best practice. (iv) Establish a single, recognised framework for independent verification.
-Production Location: A production unit or group of production units, covered by the same ownership, operational procedures, farm management, and GLOBALGAP (EUREPGAP) decision-making activities.
-Within the context of GLOBALGAP (EUREPGAP) Integrated Farm Assurance this means tracing product from the producer’s immediate customer back to the producer and certified farm.
-Within the context of GLOBALGAP (EUREPGAP) Integrated Farm Assurance this means tracking product from the producer to his immediate customer.
In simple English, which appears to be highly lacking in all these guidelines, it means NAIS for everything, and for anyone who wishes to be engaged in agriculture….Remember the "grows" phrase from the earlier excerpt from HR2749. Now let's look at some of the 'exception' clauses in HR2749. This bill is a terrifically crafty piece of legislation that is designed to cloud the reader's understanding of the impact of the law being proposed in it. All of the exception clauses give the exception under this Act so long as you are ready to be regulated under a different Act. We'll just look at a couple of these clauses to allow you to get the gist of the lack of exception available through the exceptions….
Farms- A farm is exempt from the requirements of this Act to the extent such farm raises animals from which food is derived that is regulated under the Federal Meat Inspection Act, the Poultry Products Inspection Act, or the Egg Products Inspection Act.
‘‘(I) such an operation that packs or holds food, provided that all food used in such activities is grown, raised, or consumed on such farm or another farm under the same ownership;
‘‘(II) such an operation that manufactures or processes food, provided that all food used in such activities is consumed on such farm or another farm under the same ownership; (pages9 and10)
Thus, if you grow everything you feed and consume everything you grow, and use no minerals or salts that you don't mine yourself, you may be exempt. Or, in plain English, don't even try to make a living in agriculture if you won't comply with these rules.
One more exception to contend with here is:
‘(A) DIRECT SALES BY FARMS- Food is exempt from the requirements of this subsection if such food is--
‘(i) produced on a farm; and
‘(ii) sold by the owner, operator, or agent in charge of such farm directly to a consumer or to a restaurant or grocery store. (page 71)
This sounds good. However, there are several problems with this that are not evident without some knowledge of how things are done in the traditional avenues open for market to growers. First of all, cattle, whom you may recall as the primary target of the NAIS Business Plan, are sold either at auction barns or via potload to feedlots. It is illegal to sell beef directly from the farm to consumers in every state that I know of. People often will sell a calf ready to butcher in halves or quarters to people and deliver the calf to the slaughter facility for the consumer, but this is far from the normal route of commerce in cattle or other species of meat animals. Even if you can securely wedge your operation into this particular exemption, they get you later via the record keeping section of this bill:
‘(E) RECORDKEEPING REGARDING PREVIOUS SOURCES AND SUBSEQUENT RECIPIENTS- For a food or person covered by a limitation or exemption under subparagraph (B), (C), or (D), the Secretary shall require each person who produces, receives, manufactures, processes, packs, transports, distributes, or holds such food to maintain records to identify the immediate previous sources of such food and its ingredients and the immediate subsequent recipients of such food.
‘(F) RECORDKEEPING BY RESTAURANTS AND GROCERY STORES- For a food covered by an exemption under subparagraph (A), restaurants and grocery stores shall keep records documenting the farm that was the source of the food.
‘(G) RECORDKEEPING BY FARMS- For a food covered by an exemption under subparagraph (A), farms shall keep records, in electronic or non-electronic format, for at least 6 months documenting the restaurant or grocery store to which the food was sold.’. (page 74 and 75)
So being exempt means you are required to keep records. Keeping required records means you may be required to release those records. So how exempt can a person get under this legislation?
Then of course, as with any law, there are the fines and penalties. These are from $20,000 to $1,000,000 per violation. (page 122)
There is also the change under the seizure section that takes away judicial overview…(double quotations indicate amending language)
…….procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury, ""and except that, with respect to proceedings relating to food, Rule G of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions shall not apply in any such case, exigent circumstances shall be deemed to exist for all seizures brought under this section, and the summons and arrest warrant shall be issued by the clerk of the court without court review in any such case""……pg 116
So we can just throw out that pesky Fourth Amendment to the Constitution and while we're at it, let's get rid of probable cause as well via this wording from page 117:
by striking ‘‘credible evidence or information indicating’’ and inserting ‘‘reason to believe’’;
There are many other dangerous aspects to HR 2749, like seizures, quarantines, and licensing and whistle blower provisions, but this should leave no doubt that this bill will indeed affect farms and has the potential to affect even home food production if an agency decides to apply the international risk analysis schemes to that venue.
Now, the questions that everyone involved in agriculture, meaning everyone who eats, must ask themselves are these:
Can regulating, fining and destroying the freedom of people to grow food create food safety?
Have the impacts of Free Trade on this nation been beneficial for the citizens of this country?
Have food safety concerns increased or decreased since we have begun to import more food under these trade agreements?
And ultimately, does the US Constitution provide for the voidance of the Bill of Rights to participate in global trade?
My copy of the Constitution clearly does not allow for any law to void the Bill of Rights which is unalienable and Constitutionally guaranteed. It's time to let our Federal representatives know in no uncertain terms, that everything to do with governance ultimately comes down to the consent of the governed, and we will not consent to being run by international agencies.
My deep thanks to Paul Griepentrog, who helped in going through the legislation and many of the ramifications and amendments to current law under this Act.