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FSMA Rules Pose Unique Hardships for Tribal Communities

The proposed Food Safety Modernization Act (FSMA) regulations have sparked debates about the costs of compliance and other impacts on small- to medium-sized producers. But American Indian tribes face notably unique challenges under the new rules.

Recently, the U.S. Food and Drug Administration (FDA) hosted a two-hour webinar to consult with tribes on FSMA. In the webinar, tribal representatives touched upon some key concerns. For instance, Colby Duren with the National Congress of American Indians (NCAI) highlighted the costs of compliance, enforcement issues, and water rights.

Other tribal representatives at the webinar emphasized concerns related to the law’s variance provisions. Under FSMA, FDA can grant variances on its proposed rules to state and foreign governments, which would allow for statewide or regional exemptions. But, despite tribal sovereignty, the variance provisions do not reference tribes.

While the recent webinar briefly discussed a number of issues, tribal representatives have many more concerns.

“The economic impacts of the proposed rule on tribal farmers are magnified because many tribal farmers are in isolated communities and do not have access to mainstream markets,” said A-dae Romero of the Cochiti Pueblo, an attorney with an extensive background in traditional pueblo farming.

She added that Indian reservations have some of the most pronounced food deserts — areas without ready access to fresh, healthy, affordable foods — in the U.S. Over the past 10 years, reservations have tried to combat food deserts by building local food economies, Romero said. And, while some have seen improvements, she believes that new compliance costs could cripple economic activity generated by tribal farmers.

Romero is also concerned about the proposed water testing standards. Treating or standardizing agriculture water is not realistic when many reservations struggle to treat drinking water, she noted. And, to her knowledge, no agency or official has fully explored the impacts on existing water-rights controversies.

“Access to record-keeping technology is another issue,” Romero said. “Many reservation producers do not keep records, and, if they do, they are likely hand-written because they do not have consistent access to digital technology. Some remote producers on reservations do not have electricity; some lack reliable Internet access.”

Additionally, Romero is troubled by FDA’s proposal to enforce the Produce Safety Rule by contracting with qualifying states and tribes. Tribes will not likely qualify for self-enforcement because they lack the resources to create certification programs, she pointed out. Consequently, Romero believes the states will have enforcement power. This will likely leave Tribal governments with a harsh ultimatum: let the state enforce rules on their sovereign lands or not sell their produce to outside markets.

“Tribes have extensive experience enforcing federal regulations on Tribal lands, and many federal agencies have worked with tribes to create a legal framework to do so, but FDA has not,” she said.

Finally, and at the core of her concerns, Romero pointed out that the exclusion of tribes from the development of these rules ignores tribal sovereignty and federal case law.

In a recent opinion article, Romero wrote: “[A]ny tribe knows that the unintended consequences of federal regulation can lead to major concerns in the future. Federal regulatory history has demonstrated to tribal communities that any small chip at existing sovereignty tribes claim is one too many. And these regulations will have a real and chilling effect on tribes creating new or expanding existing food and agriculture businesses.”

This list of potential impacts is not exhaustive, Romero said, who recently posted an analysis of FSMA regulations with recommendations related to tribal communities.

She is not alone in recognizing the potential impacts of the proposed rules on tribes. Tribal organizations working with FDA on FSMA issues include, but are not limited to: NCAI, Columbia River Inter-Tribal Fish Commission, First Nations Development Institute , Oneida Tribe of Indians of Wisconsin , and The University of Arkansas School of Law Indigenous Food and Agriculture Initiative.

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