By Dan Flynn, Food Safety News
Shannon McDaniel, executive director of tribal operations, has made a simple and straightforward request on behalf of the Choctaw Nation of Oklahoma. He wants all 565 federally recognized tribes exempted from the Food Safety Modernization Act (FSMA).
Or, to put it in his own words and more specifically, McDaniel wants the U.S. Food and Drug Administration (FDA) to review the produce rule “expressly to exempt tribal nations, their lands, and their members from application of the proposed rule.”
“Alternatively,” McDaniel said, “we strongly urge FDA to schedule formal consultations with tribal nations and, until such consultation is complete, we urge FDA from enforcing the final rule on tribal nationals, their lands, and their people.”
The Choctaw Nation, which, since the “Trail of Tears” in 1830, has been located in southeastern Oklahoma, is a longtime fruit and vegetable producer. It is one of a dozen or so Tribal Nations that, during the past two years, has pressured FDA and the White House for meaningful consultation over FSMA implementation.
American Indian tribes are sovereign nations, and their authority stems from treaties, acts of Congress, and presidential authorities. President Bill Clinton signed Executive Order (EO) 13175 in 2000, which was reaffirmed by President Obama in 2009, and requires federal agencies to consult with tribes when promulgating rules and regulations impacting their reservations.
To comply with EO 13175, FDA’s parent agency, the U.S. Department of Health and Human Services (HHS), has its own plan to consult, saying that the tribes will be consulted “to the extent practicable and permitted by law … .”
This is not the first time tribal leaders have raised their request for “meaningful consultation.” And, it’s not as if FDA has not been listening.
In November 2013, FDA conducted a two-hour webinar with the tribes on the FSMA rule package. Afterward, Raymond Foxworth of the First Nations Development Institute told Food Safety News that the webinars were small steps and that there was a long way to go for “meaningful consultation.”
Then, last April, FDA met with tribal leaders for a half-day consultation session in New Mexico. The discussion centered on the produce rule, the Environmental Impact Statement for the produce rule, and questions and other feedback on all seven FSMA rules. A side meeting was held with the Navajo Nation in Window Rock, AZ.
But, as the recent Choctaw letter indicates, those meetings, along with all the normal public input opportunities, are still considered inadequate by tribal leaders. They say that FDA, which is also under federal court orders for completing the rules, opted not to follow the established Tribal Consultation Policy and did not engage the tribes during the development stage for the rules.
