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Constitutional Amendment Takes Center Stage For 2015
 [Download Printable Version]

By: Christine Solem

After more than 20 years of wrangling in the Virginia General Assembly over the people's right to have farm-produced food, it has finally come down to this - not that a Constitutional Amendment has not been tried before. In 2005, Delegate Tom Gear introduced a Constitutional Amendment with respect to the right to acquire farm-produced food. The legislation had 20 co-sponsors, but died in the House Privileges and Elections Committee with only 2 voting for it-Delegate Richard Black (now Senator Black) and Delegate Bob Marshall.

But this was before everyone started dropping like flies from agribusiness food production. When I first started lobbying in 1992 I had to haul around this huge stack of reference materials to prove that large scale food production was the culprit. I don't have to do that anymore; it's common knowledge. The CDC reports that 1 out of 6 will get sick from food poisoning each year. Heck, if you went to Court, you probably would not even have to prove it. You would just have to ask the Court to take judicial notice of the matter as it is common knowledge.

And who hasn't seen Food, Inc? Now, 10 years later, everyone is much more informed, the local food movement is monumental and it is time to try the Constitutional Amendment again.

But Why a Constitutional Amendment? There have been several attempts to introduce broad legislation to exempt all on-farm sales of food or food products. The first was an on-farm exemption for all farm-produced food in 1997 introduced by Senator Emmett Hanger, the second in 2005 by Delegate Albert Pollard, and thirdly the Food Processing Bill introduced this year by Delegate Rob Bell and championed by Bernadette Barber, which actually included more than just farm-produced products. All three Bills were very broad and none passed. The most successful was Delegate Pollard's-it did pass the House but lost in the Senate Ag Committee. Bills such as these are very difficult to draw up as there are so many laws and regulations in Virginia on food production that it is analogous to dealing with Pandora's Box.

Smaller more specific bills such as the Home Kitchen Bill in 2008 have been more successful. You lose you rights a little at a time, and in the food theater we have lost a lot; therefore, incremental progress seems to work better to get these rights back. But who can wait a lifetime for this to happen. Since a Virginia Constitutional Amendment would trump any statute or regulation it would hopefully provide faster relief.

The Proposed Constitutional Amendment would read,

"That the people shall have a right to acquire, for their own consumption, farm-produced food, directly at the farm from the farmer who produced it."

"Of course" everyone says, that is the gut reaction. Notice that nothing's stated about the farmers' right to sell it. This is on purpose. It is undoubtedly an intentional quirk of the law that it is not illegal to buy certain farm-produced food, it is only illegal for the farmer to sell it. This proposed Amendment would give the consumer what is called "standing" in Court to challenge the fact that they cannot get, for instance, raw milk from their local farmer. See, Courts aren't really interested in you if you're not illegal.

I hate to burst everyone's bubble, including my own, who believes that farmers should have a Constitutional right to sell their farm-produced food, but Courts have ruled that any business may not operate if what they are selling or doing is deemed to be injurious to the public health and safety. The government doesn't even need a warrant if emergency circumstances exist to enter and shut the business down. Since the legislature has been so difficult to deal with because of all the outside monetary pressure from big business interests, a Constitutional Amendment such as this one could move the battle into another branch of government, i.e., the judicial branch, which may provide a more advantageous arena for change.

The Constitutional Amendment Involves a Fundamental Right

Surely the right for a person to contract for his own food directly from the farmer who produced it is a fundamental right. The Amendment further restricts the acquisition to "at the farm"-no internet or delivery or farmers' market sales. This restriction focuses the right. We are not talking about the general public here. Individuals have the right to life, liberty and property and no State can take that away without due process of law. Years ago most everyone raised their own food; that is not the case today. We the people must have the freedom to seek out and obtain the type of food we want from the farmer of our choice. After all, there is only one person in the world who knows truly what food he wants and that one person is you, because you and only you experience how it goes down, goes through and comes out. Yuck.

In July of 1980 I was taken to Court by the Virginia Department of Agriculture and Consumer services and the Health Department in an attempt to obtain an Injunction prohibiting me from renting my goats on a daily basis so that people who came to me for raw goat milk could have it. I couldn't legally sell it. In denying the Injunction Albermarle Circuit Court Judge, David Berry, ruled that, as he construed the law and regulations that it was the general public that is to be protected by laws and regulations from the consumption of disease carrying milk, but that in this case,

"...everyone of these people who have engaged in this transaction on the other side have sought Mrs. Solem out. She has not placed her goods or products in commerce. She has sold them, if it's a sale, on the premises and the customer has sought her out, and I am unprepared and certainly unwilling to say that the customer is to be protected from himself when he knows what he is getting and is asking for it. The Injunction therefore is denied."

That ruling was overturned on other grounds by the Supreme Court of Virginia in April of 1983-so the farm food fight has really raged on for the last 35 years-and now-it all comes down to the Constitutional Amendment.


Please click here to view and/or download printable information flyer



VICFA President, Lois Smith on Pure Momentum Network Radio Show

In the 1st hour Lois Smith interviews Anthony Bavuso and Tom Deweese regarding food availability on a local level and how Conservation Easement is hurting farmers.




A suggestion has been made by the President of the Board of Agriculture to people attending the Agriculture Board Meeting that we should recommend who we think will make a great Commissioner of Agriculture!
This would be wonderful news for all Virginians
Joel Salatin, of Polyface Farms, is a critically-acclaimed author, activist, and farmer who understands the rights of both farmers and consumers.
Please write or call Gov. McAuliffe as soon as possible!
Ask our governor to appoint Joel Salatin as our next Commissioner of Agriculture.
1111 East Broad Street, Richmond, VA 23219



VICFA Is Quoted by


By Kenric Ward - Virginia Bureau

WINDSOR, Va. - The state of Virginia is helping an agricultural giant sell non-genetically modified soybeans to South Korea - while reaping little value at home.

Gov. Terry McAuliffe this week announced $14,100 in matching funds to "enable Montague Farms to enter a new market, increasing and diversifying its opportunities for selling these value-added soybeans abroad." Another $14,100 is provided by Isle of Wight County, home of a Montague processing facility.

Montague has exported non-genetically modified organism (GMO) soybeans for more than 25 years. Heretofore, the privately owned firm focused on the Japanese market, "widely recognized for its demanding quality standards," according to McAuliffe's office.

Though Montague is netting a relatively small share of public dollars, critics say the export subsidy does even less for food security or quality stateside.

"The real shame is that they are making more money selling non-GMO to the Asian market," said Lois Smith, president of the Virginia Independent Consumers and Farmers Association.

"Ninety percent of soybeans in America are GMO'd. Now we are granting money to grow non-GMO for other countries," Smith told in an interview.

While neither Virginia nor the nation requires GMO labeling, Timothy Wise of Tufts University says it's ironic the state is subsidizing GMO-free efforts overseas.

"The state's largest soy exporter probably does not need small public financing...but small farmers trying to supply certifiably non-GMO soy could probably use support to participate in a certifiably non-GMO value chain, and not just for export," said Wise, director of the Research and Policy Program at Tufts' Global Development and Environment Institute.

GMO crops continue to spur vigorous scientific and political debate over chemically engineered "Frankenfood." The World Health Organization acknowledges concern over "an undesirable level of control of seed markets by a few chemical companies."

"Bottom line: We are giving grant money to farms to grow non-GMO for poorer countries," Smith said.

Montague executive Tom Talliaferro said in a statement:

"Exports are what drives our business, so we are glad to have this assistance from the commonwealth of Virginia that enables us to continue to develop these markets."

The company said it has invested $600,000 on a new packaging system, a testing laboratory and warehouse.

Yet the payoff is peanuts for Virginians. McAuliffe's office acknowledged that only three jobs will be added at Montague's Windsor facility as a result of the state subsidy.

Steve Stanek, research fellow for budget and tax policy at the free-market oriented Heartland Institute, said:

"The federal government since the 1930s has made agriculture one of the nation's most heavily subsidized and trade-protected industries, and now Governor McAuliffe has decided Virginia should add more weight to the nation's government-backed agricultural bloat."

Montague received its grant through the state's two-year-old Agriculture and Forestry Investment Fund. It was the first disbursement under the McAuliffe administration.

Officials at Montague and McAuliffe's office did not respond to interview requests.

Kenric Ward is chief of's Virginia Bureau. Contact him at or at (571) 319-9824. @Kenricward

Highlighted VICFA Accomplishments - Updated 3.18.14

2013 - VICFA was asked to be a part of the On-farm activity work group that resulting in legislation SB 51 and HB268 that helps protect Virginia from counties requiring farmers to have a permit for usual and customary activities such as lawful direct farm to consumer sells and agri-tourism

2013 - VICFA worked with Delegate Orrock to amend his home-processing bill to specific language. We were concerned because Delegate Orrock had failed to vote on the bill in the past. This bill included pickles and fermented vegetables, pasta, dried herbs, flavored vinegars etc. This bill passed unanimously both houses and was signed into law 3/13/13 and went into effect July 1, 2013.

2012 - VICFA help get direct sales of pickles, pasta, granola, teas, flavored vinegars etc... legal to sell without the government in our kitchen, VICFA lobbied for pickles for 4 years before passage.

2012 - VICFA continues to lobby for the "Pickle Bill" introduced by Delegate Habeeb. The bill died in Sub-committee without a motion. Subcommittee members Orrock, Marshall, Poindexter, Knight, Moorefield, James, Sickle, seemed not to like the bill.

2011 - VICFA Holds a special sit down dinner at Hilton McLean Tysons Corner prepared by Chef Thomas Elder using locally farmed ingredients, with guest speakers Joel Salatin of Polyface Farms and John Whitehead of The Rutherford Institute, educating people about the importance of food freedom.

- VICFA hires a professional graphic artist to do newsletter and website.

2011 -  VICFA lobbies to pass "Pickle Bill" in Senate. We withdraw because of amendments that will take away more rights. Senator McDougle sponsors bill. Sen. Hanger tries to amend the bill to have more regulations. Good thing we made Senator McDougle put in writing that we have the right to pull bill because he did not want to pull it after amendments were put on.

2010 - VICFA members challenged the state over scrapie regulations.

2010 - VICFA has Delegate Tuscano sponsor "Pickle Bill". Bill dies without a motion in sub- committee floor.

2008 - VICFA opposes the scrapie regulations which make all sheep and goat owners subject to regulations of animal identification. Violators will be charged with a class 1 misdemeanor. VICFA supported Kathryn Russell and her court challenge of these regulations which was taken all the way the United Stated Supreme Court to no avail.

2008 - VICFA passes the Kitchen Bill that allows the sale of baked goods, jams and jellies, candies without government inspections directly to the consumer.

- VICFA monetarily supports the radio program "Farmers' Market Reporter" hosted by VICFA's president Wayne Bolton.

- Bad husbandry practices from big Ag made Avian Flu become a real threat to their industry. Virginia Department of Agriculture and Consumer Services (VDACS) tried to pass a bill that would make outdoor poultry a crime. VICFA was able to get the bill amended that protected for now the growing numbers of pasture-based poultry producers.

2006 to present - VICFA continues to oppose the National Animal Identification System (NAIS). Our efforts help block a provision in the farm bill that would have allowed the government to make (NAIS) mandatory.

2005 - Our first annual Farm Food Voices is held in Albemarle County. This is a success with great speaker and a farm fresh food banquet. Great crowds and education!

2005 - When Governor Mark Warner signed regulation that would make it a crime for citizens to make products from their dairy animals, VICFA's efforts help get a law that stated dairy owners could make products for their own consumption.

From VICFA Voice (August 2013)

Read the full article referenced in the August issue of VICFA Voice:

When Must a Person Appealing an Administrative Agency
Regulation under the Administrative Process Act File the Notice of Appeal in Order to Appeal Timely? By Norman H. Lamson 


7.26.13 - ACTION ALERT:


VICFA welcomes your participation in our 2013 Farm Food Voices event!  

If you"re interested in being a vendor at this unique event, please contact Susan Verbeeck at (804) 347-8827.

Questions about this upcoming event?  Please call  Richard Bean at (434) 260-2527.
This special event is happening on August 8, 2013 from 3 PM until 9 PM.
Please make plans to join us.  Simply bring a covered dish to share.

7.9.13 - ACTION ALERT:  

Farm Food Voices - 2013:

Join us August 8th from 3 pm - 9 pm at Monticello High School in Charlottesville, VA, located at
1400 Independence Way, Charlottesville, VA 22902
for our Farm Food Voices event! 

We will be featuring guest speakers, door prizes and much more!  Please bring a dish to share. 

A $25 donation would be greatly appreciated.

5.31.13 - ACTION ALERT:  

VICFA to Participate in "On-The-Farm" Workshop:

VICFA has been invited to participate in an On Farm Activity Work Group. As a result of several bills considered by the 2013 session of the Virginia legislature, a working group has been formed to discuss the on-farm activities that should be protected as well as how local governments can assist farmers. 

The purpose of this group is to facilitate discussions and ideas and to formulate recommendations for the 2014 legislative session. This group has no authority to change current policy or regulations. A report will be made to the House Committee on Agriculture, Chesapeake and Natural Resources and to the Senate Committee on Agriculture, Conservation and Natural Resources. 

VICFA"s participation will help to focus on what other counties have or have not done to promote on-farm activities and how we can better ensure that our legislature protects and assists working farms throughout the nation. 

We encourage you to help us!  Do you have ideas or suggestions to share with this Work Group?  Please click here to visit the VDACS website and share your comments and suggestions.

3.15.13 - ACTION ALERT:  

Virginia"s vote is a swing vote - so your ACTION is critical!  

Please contact your senator ASAP!


Monsanto and Agribusiness companies have managed to insert two dangerous provisions into the Continuing Resolution ("CR") that is about to be voted on by the U.S. Senate. 


The first provision is the "Monsanto rider" that destroys the few protections that currently exist against the planting of new genetically engineered crops.


The second provision will allow giant Agribusiness companies to continue abusive and deceptive practices that hurt livestock and poultry farmers.


The good news is that Senator Jon Tester (D-MT) is introducing amendments to strike both of these riders!


Can you take a few minutes to call your U.S. Senators today to 
urge them to support the Tester Amendments?
The vote is going to happen very shortly, 
so we need your help right now!




Contact both of your U.S. Senators, and urge them to support the Tester Amendments and strike both of these riders.


  **  If you don"t know who represents you, you can find out online at or by calling the Capitol Switchboard at 202-224-3121.  **





My name is ___, and I am a constituent.  I am calling to ask that Senator ____ support both of the Tester Amendments to strike the biotech and anti-competitive riders from the Senate Continuing Resolution.


The Tester Amendments protect family farmers from abuses by the meat industry and support review of biotechnology products.  These two amendments will stand up for family farmers, ensure that independent producers have a fair chance in the livestock market, and ensure that courts can review biotechnology products  Please vote yes on the Tester Amendments.





Though wrapped in a "farmer-friendly" package, the biotech rider (section 735) is simply an industry ploy to continue to plant GMO crops even when a court of law has found they were approved illegally.


The provision is intended to force USDA to grant temporary permits and deregulations of GMO crops even if a Federal court rules that USDA hadn"t adequately considered the environmental or economic risks to farmers. This would negate any meaningful judicial review of USDA"s decisions to allow commercialization of GMO crops.


If a GMO crop approval was shown to violate the law and require further analysis of its harmful impacts (as several courts have concluded in recent years, for example with GMO alfalfa and GMO sugar beets) this provision would override any court-mandated caution and allow continued planting and commercialization while further review takes place.


The provision is completely unnecessary. No farmer has ever had his or her crops destroyed following such a court ruling. Every court to decide these issues has carefully weighed the interests of farmers, as is already required by law.



The anti-competitive rider (section 742) deals with a law from the 1920s, the Packers and Stockyards Act ("PSA"), which was intended to provide protections against anti-competitive behavior in the livestock and poultry industries.  In essence, the PSA was the Sherman Antitrust Act for agriculture.  Although the PSA is a good statute, the USDA never properly implemented it.  And that failure over the years has allowed large corporations to practice a variety of abusive, unfair, and deceptive practices that undermine the free market.


A coalition of family farmer, independent rancher, and consumer groups fought for a provision in the 2008 Farm Bill directing the USDA to issue implementing regulations under the PSA.  And we won.  But the fight wasn"t over.  The big meatpackers managed to hamstring many of the proposed regulations.  And now they want to completely eliminate the few protections we did get, leaving the meatpackers free to continue their abusive practices that hurt farmers.


Please help us stop these riders!



HB 1852 Passes - Read More!


Why HB 2048 (Patron: Sherwood) and SB 1279

(Patron: Hanger) are BAD for VICFA"s mission:

  • Bills seek to shift responsibility from the Department of Conservation and Recreation to the Department of Environmental Quality. The reason? ENFORCEMENT! The DEQ contains tons of verbiage such as "voluntary", "flexible" and "assist" - which should make farmers leery of what, SPECIFICALLY, could be involved in the enforcement of certain elements of the law(s).

  • Several sections of this bill adversely impact all agricultural producers. Specifically, Article 1.2 Nutrient Management Plans, Sections 10.1-1187.8 thru 10.1-1187.10 and 10.1-1187.103; Sections 10.1-1187.8 thru 10.1-1187.10 are rooted in the enforcement that everyone in government is well-trained and certified. These sections all work to ensure that nitrogen application rate regulations are developed and that the Clean Water Farm Award program is in place.

  • From a farmer"s point of view, a DEQ bureaucrat may come to a farm and create an on-farm assessment and nutrient management plan for hayland and pasture lands - plans that require riparian buffer strips and, in the case of pastures, a "system that limits or prevents livestock access to perennial streams".

  • The DEQ will seek "voluntary" compliance and offer "assistance" (whatever that means!) This leads us to wonder: At what point does the DEQ shift from "voluntary" to "mandatory"?

  • Cost to the farmer of landowner: There are no provisions included in all of the regulatory verbiage that outline how the riparian buffer implement affects costs, how the loss of a productive buffer land usage, installation of perennial stream fencing, water well drilling and livestock watering systems will be paid for. Farmers with several perennial streams on their farms may be facing HUGE costs.

  • Most farmers and producers in Virginia are already good land stewards. Virginia farmers do NOT need more bureaucrats and self-appointed politico wannabes demanding unrealistic compliance with poorly thought-out regulations that cannot be implemented as written.

  • This is simply a BAD BILL!

  • Click here to read the actual verbiage and a breakdown of why you should be concerned by both HB 2048 and SB 1279 (very similar pieces of legislation), both impacting our Virginia producers.

Over the recent weeks, we"ve been updating you on various legislation that impact our mission.  
Notably, we"ve been talking a lot about HB 1852.  In addition to your continued support of this bill, we would also like to remind you that HB 1430 continues to need your attention...and your ACTION!

On February 14, 2013, both HB 1430 and HB 1852 will go before the Senate Agriculture Committee.


If you can plan to join us for this meeting, please do so!  Come and share your support for 
BOTH HB 1852 AND HB 1430.

The meeting will take place:
Thurs.  February 14, 2013
Senate Room B
Time: 1/2 hour after adjournment
 (may be as early as 1:00 PM)
Please contact the 
Senators on the Agriculture Committee 
AS SOON AS POSSIBLE to express your SUPPORT for HB 1430! 

If you have any questions concerning HB 1852 or HB 1430, 
please contact Christine Solem:  (434) 973-6505

Senate Agriculture Committee 
Contact Information:



We invite you to read our December 2012 VICFA Voice Newsletter for more information on what these info-graphics mean to you:


Press Release: Farmers Fight Back in Fauquier County
Hearing was held on August 2, 2012  Read additional information!


Provided By: Christine Solem (Letters by Norman Lamson, Attorney at Law)


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.






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.




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:


(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.


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.




ADMINISTRATOR, 65 FR 1298 JANUARY 10, 2000, INCLUDING 7 C.F.R. ; 371.13(B),






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.






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.







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..





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.







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,

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.


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. 

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

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!

Be Present During Voting of SB920

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!

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 t
he 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:

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.

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.

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.

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.

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

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!

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. 

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.

; 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.)

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........................


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.

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



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