Is Texas seeking to add to FSMA burdens?

Although Congress passed the Food Safety Modernization Act (FSMA) in 2010, it’s just now coming into effect. While we knew that there would be problems with the real-world implementation of many of the regulations, we are facing an unexpected twist: mandatory farm registration.  Mandatory registration is not part of FSMA, but at least one state agency is looking to add it.

In recent weeks, different staff members of the Texas Department of Agriculture have stated in public meetings that the agency intends to make farm registration mandatory, even for small producers who are exempt from FSMA rules. We know that several state agriculture departments are deeply opposed to the Tester-Hagan (qualified) exemption for small-scale, direct-marketing producers. The exemption is written into the statute, so FDA can’t undo it – but if state ag departments claim authority that go beyond FSMA, they could possible undermine it.

This is why we have sent the following letter to Texas Department of Agriculture Commissioner Sid Miller, asking him to clearly state that mandatory registration will not be required. We are awaiting his response.


Commissioner Sid Miller
Texas Department of Agriculture
P.O. Box 12847
Austin, TX 78711-2847

March 19, 2018

Dear Commissioner Miller:

The Farm and Ranch Freedom Alliance (FARFA) worked with you in opposing the National Animal Identification System in Texas – a program whose first step was mandatory registration.  We know you are well aware from that experience that Texas farmers, ranchers, and landowners have significant objections to being forced to register their property with the government.  Indeed, you were one of the leading voices in the Texas Legislature against NAIS.

So we were very surprised to learn that the TDA is considering mandatory registration for everyone who grows produce.

In discussing the issue with your staff, the basis for this requirement would be the TDA’s implementation of the Food Safety Modernization Act (FSMA).  Yet farm registration is not required under FSMA.

When TDA sought FARFA’s support for legislation to empower the agency to implement FSMA in Texas (rather than have FDA as the primary enforcement entity in our state), the agency assured us that it would not impose additional requirements beyond the already very extensive and intrusive burdens of FSMA.  The resulting bill, HB 3227, was drafted to provide TDA with the authority to implement FSMA in FDA’s place, not to impose additional requirements.  Because FSMA does not include mandatory registration of farms, any consideration of mandatory registration is beyond the language and intent of HB 3227.

The topic of voluntary registration was discussed at one of the meetings that preceded the introduction of HB 3227.  I and others provided comments then, and later, about how to communicate about the voluntary registration, as well as urging the agency to consider how registration could provide benefits for farmers in order to maximize participation. At the time, it appeared understood that registration would not be required.

The lack of farm registration under FSMA was not simply an oversight, but rather a deliberate decision by Congress.  Consider the language of the qualified exemption, often referred to as the Tester-Hagan amendment for the two Senators who championed it.  The qualified exemption is a two-piece provision, both of which exempt small-scale, direct-marketing producers from major provisions of FSMA.

The first provision addresses the requirements for qualified exemptions from the new hazard analysis and risk-based preventive controls (HARPC) rule, which applies to “facilities.”  Consistent with the 2002 Bioterrorism Act, farms are not classified as facilities.  See 21 USC 350d(c)(1) (“The term ‘facility’ … does not include farms ….”)  The 2002 Bioterrorism Act required facilities (but not farms) to register with the FDA.  See 21 USC 350d(a).  FSMA added the HARPC requirements to that pre-existing registration provision for facilities. In exempting small-scale facilities from the new HARPC rule, the Tester-Hagan Amendment required the facility to submit a statement to FDA attesting to the fact that he/she/it meets the requirements for the qualified exemption or providing a simplified HARPC plan.  See 21 USC 350g(l)(2)(B) (requiring qualified facilities to submit documentation to the FDA).

In contrast, the Tester-Hagan provision that governs farms does not require registration nor any submittal to the agency.  The FSMA language simply sets out which farms are exempt from the new produce safety requirements and requires that the farms provide notification to consumers – but not the government.  See 21 USC 350h(f).  The produce safety rule is the portion that is within TDA’s jurisdiction, and Congress’ decision to not require exempt producers to register or submit proof of their exemption controls TDA’s implementation of this provision.

The FSMA provisions for qualified exemptions from the produce safety rule are clear that no registration is required for exempt farms.  Moreover, the fact that FSMA requires non-exempt facilities to register, but contains no such requirement for non-exempt farms, indicates that no farms (regardless of their size) should be required to register under the produce safety rule.

FARFA has worked cooperatively with TDA to educate and support Texas farmers about FSMA, and we wish to continue doing so.  Mandatory registration is not an acceptable new requirement.  To continue moving forward in a cooperative manner, it is vital that TDA provide a public, written statement that registration will remain voluntary.

Please respond and let us know how TDA plans to proceed.

Sincerely,

Judith McGeary
Executive Director
Farm and Ranch Freedom Alliance