Comments to FSMA Listening Session

FSMA Public Meeting Concerning Proposed Rules for Preventive Controls in Human Food and Produce Safety Standards; February 28, 2013 in Washington, DC

Public Comments by: Brian Snyder, Executive Director, Pennsylvania Association for Sustainable Agriculture (PASA), regarding both proposed rules

My name is Brian Snyder. I am executive director of the Pennsylvania Association for Sustainable Agriculture, better known as PASA, in representing over 6,000 mostly farmer members in Pennsylvania and throughout the Mid-Atlantic region.

I have personally been involved in the process of moving the Food Safety Modernization Act (FSMA) through Congress and into the rulemaking phase since early in 2009 when our members began expressing intense concerns about the potential effects of new food safety legislation on their very diverse farming operations. At that time we were assured by FDA, as was Congress, that FSMA would have very little effect on farms generally speaking. We now know that to be mostly untrue, that FSMA will surely impact the entire breadth of the farming landscape engaged in providing food for human consumption. And that’s why I am here.

I want to clarify right at the outset that every farmer I work with feels responsible for the health and safety of his or her customers, and also that they are on the whole dedicated to a scientific approach to food safety, to the extent that unbiased and scale-appropriate science is available. The very sad fact is, as I believe FDA has discovered in this process, there is very little good science available, looking at food safety risks as related to the type and scale of operations.

There has been much said about farmers who wish to be exempted from federal, and even state authority in terms of their food safety responsibility. While some do feel that way, it has nothing to do with wishing to produce an inferior product for their customers, but a desire to be relatively independent in doing so. However, the vast majority of our farmers would never feel exempted from any responsibility, even if technically allowed that privilege in the letter of the law. Put simply, every farmer is responsible to do the best job possible according to the knowledge base currently available. For the purposes of these comments, please assume that whenever I use the word “exemption,” I mean to say a limited type of boundary set up within the law to provide as much independence and adherence to local and statewide authority as possible.

The question of exemptions brings me to the various provisions of FSMA related to the so-called Tester-Hagan Amendment that was included in the final bill. In fact, as I’m sure most everyone understands, this amendment was one of the final pieces of the legislation that, when completed, allowed the law to pass Congress. Let me state clearly right now that, not only was this amendment a key to bringing FSMA into being, it will be even more critical for us to get the rules associated with its provisions correct for the law to be successful in the future. There are millions of farmers out there counting on the fact that you will get this right, and perhaps a majority of them worrying that you will not.

I am not prepared to say what all of those exemption provisions should be just yet – it’s still early in the process of reviewing the proposed rules – but I do have a list of comments that I believe must be addressed by the May 16 deadline and beyond for FSMA implementation to succeed. Following are my thoughts:

1. The rules must be stated clearly, without equivocation, about what an exemption means, when it applies, and when it does not. We must know exactly how and by whom exemption will be determined.

2. There must be an equal degree of clarity regarding how and when an exemption is revoked, what the appeal process will be, to whom or what entity that revocation accrues, and how long it will last.

3. It is assumed that, like any successful rehabilitation effort, there would be a clearly identified process for farms or food processing businesses that lose an exemption to gain it back, or have it extend through several stages before anything would become permanent.

4. The “material conditions” under which an exemption can be revoked, as provided for in FSMA, must be defined as scientifically measurable traits that can be identified on a single farm or processing facility, and never by conjecture applied to a whole class of persons, types of operations or broad description of food being produced. The determination of material conditions can never be left open for construal as a fishing expedition or stereotyping exercise on the part of FDA.

5. As with other aspects of government, the balance of federal and state authority is a consideration of utmost importance. The writing and implementation of FSMA rules must be clear regarding where the boundaries reside, even if different in different states, and wherever possible be aimed at supporting and building on state-based food safety authority structures. Exempt operations will depend on such structures implicitly.

What it really comes down to is this. Can we determine to work together to improve and protect the safety of our nation’s food supply without also threatening its food security? The real impending crisis will involve our ability to replace an entire generation of farmers on the land with younger folks who are enthused about feeding their customers and far more versed in the science of food safety than those who have preceded them. It is beginning to happen; the new generation is stepping up. But our overall worry, and greatest concern on behalf of the general public, is that improperly applied rules promulgated through the FSMA process will have a dampening effect on the enthusiasm and success of newer farmers in particular. Let’s get the Tester-Hagan provisions right, and prevent that from happening.

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