[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
IS USDA ACCOUNTING FOR COSTS TO FARMERS CAUSED BY CONTAMINATION FROM
GENETICALLY ENGINEERED PLANTS?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DOMESTIC POLICY
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MARCH 13, 2008
__________
Serial No. 110-165
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
----------
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49-777 PDF WASHINGTON : 2009
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Washington, DC 20402-0001
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
Subcommittee on Domestic Policy
DENNIS J. KUCINICH, Ohio, Chairman
TOM LANTOS, California DARRELL E. ISSA, California
ELIJAH E. CUMMINGS, Maryland DAN BURTON, Indiana
DIANE E. WATSON, California CHRISTOPHER SHAYS, Connecticut
CHRISTOPHER S. MURPHY, Connecticut JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts CHRIS CANNON, Utah
BRIAN HIGGINS, New York BRIAN P. BILBRAY, California
BRUCE L. BRALEY, Iowa
Jaron R. Bourke, Staff Director
C O N T E N T S
----------
Page
Hearing held on March 13, 2008................................... 1
Statement of:
Howington, Harvey, conventional and GE grain grower, Lepanto,
AR; Todd Leake, conventional and GE grain grower, Emerado,
ND; Don Cameron, conventional, organic and GE crop grower,
Helm, CA; Fred Kirschenmann, organic grain grower, Medina,
ND; Colin Carter, Ph.D., agricultural economist, University
of California, Davis; and Ray Clark, the Clark Group LLC,
Washington, DC............................................. 12
Cameron, Don............................................. 28
Carter, Colin............................................ 45
Clark, Ray............................................... 55
Howington, Harvey........................................ 12
Kirschenmann, Fred....................................... 36
Leake, Todd.............................................. 19
Smith, Cindy, Administrator, Animal and Plant Health
Inspection Service, U.S. Department of Agriculture,
accompanied by Michael Gregoire, Deputy Administrator for
Biotechnology Regulatory Services, Animal and Plant Health
Inspection Service, U.S. Department of Agriculture......... 76
Letters, statements, etc., submitted for the record by:
Cameron, Don, conventional, organic and GE crop grower, Helm,
CA, prepared statement of.................................. 31
Carter, Colin, Ph.D., agricultural economist, University of
California, Davis, prepared statement of................... 48
Clark, Ray, the Clark Group LLC, Washington, DC, prepared
statement of............................................... 59
Howington, Harvey, conventional and GE grain grower, Lepanto,
AR, prepared statement of.................................. 14
Kirschenmann, Fred, organic grain grower, Medina, ND,
prepared statement of...................................... 38
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio:
Letter dated September 16, 2008.......................... 99
Memo dated May 31, 2005.................................. 108
Prepared statement of.................................... 4
Leake, Todd, conventional and GE grain grower, Emerado, ND,
prepared statement of...................................... 21
Smith, Cindy, Administrator, Animal and Plant Health
Inspection Service, U.S. Department of Agriculture,
prepared statement of...................................... 79
IS USDA ACCOUNTING FOR COSTS TO FARMERS CAUSED BY CONTAMINATION FROM
GENETICALLY ENGINEERED PLANTS?
----------
THURSDAY, MARCH 13, 2008
House of Representatives,
Subcommittee on Domestic Policy,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:13 p.m., in
room 2247, Rayburn House Office Building, Hon. Dennis J.
Kucinich (chairman of the subcommittee) presiding.
Present: Representatives Kucinich and Issa.
Staff present: Jaron R. Bourke, staff director; Jean Gosa,
clerk; Jim Moore, minority counsel; Larry Brady, minority
senior investigator and policy advisor; Benjamin Chance,
minority clerk; and Chris Espinoza, minority professional staff
member.
Mr. Kucinich. The committee will come to order.
This is a meeting of the Domestic Policy Subcommittee of
the Oversight and Government Reform Committee. I am Dennis
Kucinich, Chairman of the committee. Congressman Darrell Issa
is the ranking minority member.
The hearing title today ``Is the USDA Accounting for Costs
to Farmers Caused by Contamination from Genetically Engineered
Plants?'' We have a rather lengthy witness list. What I am
going to do is read an opening statement, then defer to my
colleague Mr. Issa. It is quite possible votes are going to be
called, and in that case we will recess for votes, and then we
will come back and continue.
Contamination of conventional crops by genetically
engineered [GE] plants can occur in several ways. They can
pollinate non-genetically engineered plant species by wind or
insects. They can grow as ``volunteers'' from seed that was
unintentionally left in soil from a previous growing season. Or
they can be mixed together with nongenetically engineered
products in the harvesting, handling, distribution, and/or food
processing systems. When genetically engineered plants
contaminate the crops of conventional and organic farmers, the
farmers pay a heavy price.
Today's hearing will not be about whether GE crops are
``good or a bad'' thing. Today's hearing is about whether the
chief regulator and advocate for the farmers, USDA, and its
subagency, the Animal and Plant Health Inspection Service
[APHIS], is taking into account the cost to farmers and
realities of contamination risk by the GE plants it regulates.
In 2000, America's corn farmers faced a sudden collapse of
international and domestic demand for all varieties of U.S.
corn. Prices fell considerably when genetically engineered
StarLink corn was detected in taco shells by a private
laboratory. StarLink had been approved for commercial use by
APHIS, though limited to animal feed by the Environmental
Protection Agency. Japan temporarily halted imports of U.S.
corn. One of our witnesses estimated that the short-term cost
to farmers was $500 million. A class action suit was settled
for $110 million against the manufacturer of StarLink.
In 2006, America's rice farmers faced a sudden collapse of
international demand for U.S. rice. Prices fell considerably
when experimental genetically engineered LibertyLink was
detected in the commodity rice supply by a foreign customer.
APHIS investigated--over 7 months after the contamination was
first detected--and concluded that the contamination originated
at a field test plot in Louisiana. However, APHIS never
determined how the contamination occurred. APHIS took no
enforcement action, and, on its own initiative, deregulated
LibertyLink rice after the contamination event. One of our
witnesses today is an affected grower of conventional rice.
Two-and-a-half weeks ago, APHIS announced another
contamination event, this time involving a genetically
engineered corn variety called ``Event 32.'' USDA's press
release indicates that the cause of the contamination was the
sale to farmers of contaminated seed, and that 53,000 acres of
contaminated seed were planted in 2007.
According to APHIS, contamination events are rare. But it
is unclear if this is accurate. Not a single government agency
detected the contamination in any of these events. This is not
surprising because the Federal Government doesn't test for crop
contamination. We only know about crop contamination when
private actors discover it by testing and decide to report it
to the public. Sometimes contamination that is discovered by
them is not reported.
APHIS is supposed to play a role in preventing
contamination. But when the Inspector General, in 2005,
published its audit of APHIS's controls over the issuance of
permits for field testing of genetically engineered plants, it
found, ``APHIS had little assurance that field tests are being
conducted safely, in a way that minimizes the potential for GE
plants to persist in the environment.'' In all, the Inspector
General made 28 recommendations to APHIS. APHIS eventually
agreed to corrective action on each of the recommendations.
The National Environmental Policy Act of 1969 [NEPA],
requires APHIS to analyze and report in Environmental Impact
Statements [EIS] significant environmental impacts and any
related economic impacts of decisions to deregulate or field
test genetically engineered crops. APHIS has approved 13,500
field tests for GE crop varieties, occurring at more than
79,000 sites around the country, and has also deregulated more
than 70 GE plant varieties. Yet APHIS has initiated only four
environmental impact studies, all of them in the past year or
so. One of them was ordered by a Federal court.
According to APHIS, the reason for the small number of
environmental impact studies, in contrast to thousands of
notifications, permits, and deregulations it has issued, is
that in nearly all cases APHIS determined that its proposed
action did not have a significant impact as defined by the
National Environmental Policy Act. However, two recent Federal
court judges, reviewing APHIS's determination of, ``no
significant impact,'' for proposed agency actions related to
two genetically engineered plants, Roundup Ready alfalfa and
creeping bentgrass, found that APHIS had acted in an arbitrary
and capricious manner, APHIS's determination was inconsistent
with the National Environmental Policy Act, and APHIS violated
the act.
In a Federal court decision, Geertson Seed Farms v.
Johanns, the judge found that APHIS violated the National
Environmental Policy Act by failing to account for the
potential economic impact that would result from contamination
of non-GE alfalfa by Roundup Ready alfalfa. The court ruled
that APHIS had an obligation to evaluate economic costs
stemming from a genetic contamination because they were so
closely related. The Federal court concluded that the economic
effects on the organic and conventional farmers of the
government's deregulation decision are a direct result of the
transmission of the genetically engineered gene to organic and
conventional alfalfa. APHIS was required to consider those
effects in assessing whether the impact of its proposed action
is significant.
Today's hearing will focus on where APHIS goes from here.
How will APHIS incorporate the guidelines provided by these
judicial decisions in reforming the way it regulates the GE
crop industry? Will APHIS account for the economic impact on
farmers caused by GE plant contamination? Will APHIS take
seriously the National Environmental Policy Act's
recommendations to produce environmental impact statements that
analyze environmental impacts and related economic impacts.
Now is the time to pose these questions and conduct
oversight. In the wake of these two significant judicial
rebukes, the USDA is in the process of overhauling both its GE
crop and National Environmental Policy Act regulations.
I thank you very much.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT
Mr. Kucinich. The Chair recognizes Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. And thank you for
holding this hearing on two important subjects, one clearly
within the purview of this committee, one perhaps not within
the purview of this committee, but certainly worthwhile
discussing here today.
I am always pleased when the Committee on Government
Oversight and Reform deals with the question of whether or not
the administration is properly adhering to laws passed by the
Congress and regulations often created by the administration or
passed the administration themselves. Clearly, today that is
the focus of this hearing.
I appreciate the fact that genetically modified plants have
and continue to be a lively discussion around the world. When I
was first elected to Congress in the year 2000, one of the
first trips I took was to Europe, and to discover that the
Europeans were not just objecting to GMOs in Europe, but
actually objecting to the United States giving away free food
in Africa if it was the product of GMOs. I found that amazing
then; I find it amazing now.
I believe that, in fact, we must try to find better crops
for better feeding of the people of the world, and a reduction
in erosion and other problems caused by conventional plants.
I might note that contamination is not limited to one crop
versus another. In my own home in California, we have been
struggling for decades with the glassy-winged sharpshooter,
which would not be passing on Pierce's disease for our wine
industry and grapes and raisins if it were not for the fact
that we are also a citrus producer. The glassy-winged
sharpshooter lives in mass quantities without significant
damage to oranges, so they make a perfect breeding ground.
Unfortunately, oranges and our grape vines often grow close
together, and we have been struggling trying to find a way to
have those two crops, clearly historic crops, but crops, not be
damaged by their collocation. Additionally, California has
often been unfairly told by the Japanese that, in fact, our
long-grain rice or even California short grain, is somehow
indigestible by the Japanese, clearly a protectionist maneuver,
and not a legitimate complaint about the quality of what we
grow in California.
Having said that, we also know that many naysayers suggest
the world is running out of space to produce the world's food
supply. I agree that if we cannot get past the 6 billion-plus
today, and we get to 12 billion, we will have to produce more
food in less space. So, then, why would anyone argue against GM
advancements that promise increased yield per acre?
The International Service for the Acquisition of Agri-
biotech Applications, the ISAAA, shows that in 2006 the number
of hectares globally cultivated with GM crops increased by 12
million hectares. More importantly, that doubled the amount of
food produced on those same hectares.
Many argue that pesticides harm our health. I agree. If you
believe this, you must ask the question of why would you not
want to have improved crops that need less pesticides? The
National Center for Food and Agriculture Policy, the NCFAP,
concludes in 2004 alone, biotechnology in the United States
reduced pesticide use by 34 percent. If soil and water
conservation is of concern to you, then how could you argue
against biotech crops which reduce soil erosion and reduce
water storage and treatment needs?
The Conservation Technology Information Center reports an
increase of no-till acreage farmland due to biotech agriculture
reduces soil erosion by 1 billion tons per year. Now, I might
note Speaker Pelosi used Federal funds allocated by the House
of Representatives to buy carbon credits that were produced by
no-till agriculture.
If you believe the growing trade deficit is a problem worth
addressing, then how can you argue that curtailing the
agriculture community's ability to increase exports somehow
serves that purpose? Ag Secretary Ed Schafer announced this
week that exports are forecasted to reach a record $104 billion
in fiscal year 2008, up $10 billion from November's forecast,
and $19 billion from 2007.
Today Don Cameron, a California grower, will tell us
exactly how he is able to balance conventional, organic and
biotech crops, reaping economic and environmental benefits for
all. Mr. Cameron is proof that the use of these new
technologies properly can, in fact, allow them to harmoniously
work together.
There is a risk. I am here today to say that the government
has an obligation to oversee that risk, to constantly monitor
it, because, in fact, our food supply is too important not to
have the USDA and other Federal agencies adhering to acts of
Congress and their own regulations.
So, Mr. Chairman, I look very much forward to this
oversight hearing because I do believe that Congress has an
absolute oversight responsibility, and I congratulate you for
focusing on that today and yield back.
Mr. Kucinich. I thank the gentleman from California.
Without objection, Members and witnesses will have 5
legislative days to submit a written statement or extraneous
materials for the record.
Again, for those who have just joined us, today's hearing
will not be about whether GE crops are good or bad. Today's
hearing is going to be about whether the chief regulator and
advocate for the farmers, USDA, and its subagency, the Animal
and Plant Health Inspection Service [APHIS], is taking into
account the cost to farmers and realities of contamination risk
by the GE plants it regulates.
Now, there are no additional opening statements. The
subcommittee will receive testimony from the witnesses before
us today. I want to start by introducing our first panel. Mr.
Harvey Howington jointly owns a family farm operation with his
parents. Until 2006, Mr. Howington farmed 1,200 acres on 3
tracts of land near Lepanto, AR. The farming operation
consisted of 500 acres of rice, 700 acres of Roundup Ready
soybeans. After the LL601 contamination event in 2006, he
decided to quit farming and now rents his farmland to
neighboring farmers. He is vice president of the Arkansas Rice
Growers Association, and a member of the board of directors of
the U.S. Rice Producers Association. From 2002 to 2003, he was
president of the Arkansas Seed Growers Association, and remains
on its board of directors.
Mr. Todd Leake----
Mr. Leake. Leake.
Mr. Kucinich [continuing]. Leake is a family farmer from
Emerado, ND. Mr. Leake annually grows approximately 1,000 acres
of wheat, and approximately 500 acres of soybean and 500 acres
of navy bean and sunflower. Since 2000, Mr. Leake has been
involved in policy issues surrounding the development and
potential deregulation of genetically modified wheat.
Mr. David Cameron owns and farms Prado, is it? I am sorry.
Mr. Issa. Don Cameron.
Mr. Kucinich. Strike that, I am sorry. Mr. Don Cameron owns
and farms is it Prado?
Mr. Cameron. Prado.
Mr. Kucinich. Prado. Owns and farms Prado Farms located in
Fresno County, CA. Since 1981, he has been the vice president
and general manager of the Terranova Ranch, Inc., and farms
approximately 5,500 acres of conventional, organic, and biotech
crops ranging from organic pima cotton, biotech corn and
alfalfa, along with a diversity of other annual crops.
Mr. Fred Kirschenmann farms 3,500 acres of certified
organic crops in North Dakota. His family farm was certified in
1980, making it one of the early operations to make the
transition. He is also a distinguished fellow for the Leopold
Center for Sustainable Agriculture at Iowa State University.
Mr. Kirschenmann holds a Ph.D. from the University of Chicago,
and has written extensively about ethics in agriculture. He has
also held national and international appointments, including
the USDA's National Organic Standards Board.
Professor Colin Carter was born and raised on a farm in
Alberta, Canada. He obtained a Ph.D. in agricultural economics
from the University of California Berkeley in 1980. Professor
Carter is currently professor of agriculture and resource
economics at the University of California Davis. He has
published more than 120 research papers, authored or edited 15
monographs and books, and contributed dozens of chapters to
books. He has published in areas of international trade,
agricultural policy, futures and commodity markets, and
economics of China's agriculture, and the economics of
biotechnology adoption in agriculture. Professor Carter was
named fellow of the American Agricultural Economics Association
in 2000 in recognition of his many contributions to the field
of agricultural economics.
Finally, Mr. Ray Clark is a National Environmental Policy
Act expert, with more than three decades of environmental
management experience. As Associate Director of the Council on
Environmental Quality, he implemented the Council's mandate for
oversight of the National Environmental Policy Act, reviewed
and approved Federal agency regulations with respect to that
act, and mediated interagency disputes regarding compliance. As
Acting Assistant Secretary of the Army for Installations and
Environment, and Principal Deputy Assistant Secretary of the
Army, he was responsible for over 14 million acres of land. As
an adjunct faculty member at Duke University, Mr. Clark
develops NEPA courses and teaches at the Nicholas School of the
Environment.
I want to thank all the witnesses for being present,
appearing before this subcommittee today. It is the policy of
the Committee on Oversight and Government Reform to swear in
all witnesses before they testify. I would ask that you rise
and raise your right hands.
[Witnesses sworn.]
Mr. Kucinich. Let the record reflect that the witnesses
answered in the affirmative.
I will now ask that we begin. I want to give the first
witness an opportunity to get his testimony in, and then I am
going to have to recess to go to vote, and I will be back.
Mr. Howington, I ask that you give a brief summary of your
testimony, to keep the summary to 5 minutes in duration. Your
entire written statement--this goes to all the witnesses--even
though I ask you keep your testimony to 5 minutes, your entire
written statement will be included in the record of this
hearing. So Mr. Howington, if you would begin.
STATEMENTS OF HARVEY HOWINGTON, CONVENTIONAL AND GE GRAIN
GROWER, LEPANTO, AR; TODD LEAKE, CONVENTIONAL AND GE GRAIN
GROWER, EMERADO, ND; DON CAMERON, CONVENTIONAL, ORGANIC AND GE
CROP GROWER, HELM, CA; FRED KIRSCHENMANN, ORGANIC GRAIN GROWER,
MEDINA, ND; COLIN CARTER, PH.D., AGRICULTURAL ECONOMIST,
UNIVERSITY OF CALIFORNIA, DAVIS; AND RAY CLARK, THE CLARK GROUP
LLC, WASHINGTON, DC
STATEMENT OF HARVEY HOWINGTON
Mr. Howington. I would like to thank the Chair,
Representative Kucinich; the ranking member, Representative
Issa; and the members of the subcommittee for the opportunity
to speak on this matter of great importance to American
farmers. This is my first time to testify before Congress, and
it is an honor to be here.
By far and away the most important title I have is father.
The greatest gift I have to pass on is the family farm legacy.
I am here today to talk to you about a serious threat to that
legacy.
I grow GMO crops. Unfortunately, consumer acceptance for
all GMO crops is not universal. Rice is the least accepted of
all GMO crops. As farmers, we have to grow products consumers
want and try to do it at a profit.
In early August 2006, farming was looking pretty good. We
had a good crop, and prices were headed up. Then on August 19,
2006, USDA announced Bayer's LibertyLink LL601, a herbicide-
tolerant, genetically engineered variety, had been found in
non-GMO rice. At the time LL601 had not been approved for human
consumption. Reaction was immediate. Japan banned importation
of all long-grain U.S. rice. The European Union imposed strict
testing requirements on all U.S. rice shipments. That had the
effect of stopping all sales to that market. In the 7 days
following the announcement, the American rice crop lost $168
million in value, with the futures price dropping from $9.83 a
hundredweight to $8.99 a hundredweight.
At the time of the contamination event, global rice prices,
supplies were becoming increasingly tight, and the futures
price was tracking upward. It is not inconceivable that rice
prices approaching $12 a hundredweight could have been realized
had it not been for the contamination event. Even if you don't
include this loss in price potential, based on a conservative
estimate calculated by the USRPA, the U.S. rice industry loss
$1.2 billion due to this contamination event. That figure is
consistent with the findings of Dr. Neal Blue, an agricultural
economist at Ohio State University.
Farmers were in a quandary. Is my rice contaminated? Can I
sell it if it is? What sort of price hit am I going to take?
And that was just the rice just harvested. What to plant next
year? What varieties are going to be available? Is the seed
going to be safe? How much more is the seed going to cost me?
What is testing going to cost me? What tests should I have? At
what level should it be tested? Are the fields planted in rice
last year going to be contaminated this year?
Through all this ordeal the LL601 contamination event
caused, three questions remained at the forefront of the minds
of rice farmers: How did the contamination occur? Who is
responsible? How did it get so widespread before detection
occurred?
One thing is perfectly clear. These answers will not be
forthcoming from the USDA, whose mandate it is to administer,
manage and monitor field trials to ensure that contamination
events don't occur. In that regard, the Agency has failed
miserably. After spending 8,500 staff hours conducting their
investigation, they did not answer a single one of these
questions. No enforcement action was taken against Bayer, or
anyone else for that matter.
I listened to the USDA's findings on a conference call. It
was very difficult listening to the USDA say they didn't know
who, they didn't know how, and it happened so long ago we can't
do anything about it even if we did. This is not an isolated
incident. The LL601 event resulted in a decision to leave
farming for many rice producers. Nearly 600 rice farms were
lost between 2006 and 2007. While not all quit because of
LL601, it had to be a major factor. The impact on local rural
economies cannot be calculated.
The USDA needs to conduct more comprehensive environmental
analysis before embarking on field trials that pose major
economic threats to an agriculture industry or commodity. The
decisionmaking process needs to be more transparent, with an
opportunity for farmers to speak and be heard. And most
importantly, the burden must be placed on the biotech company
to demonstrate how contamination will be prevented in the
farming industry.
I appreciate this opportunity. Your efforts to help solve
this problem are sincerely appreciated by all the rice farmers
I represent here today. I will be happy to answer any questions
as best I can.
Mr. Kucinich. Thank you very much, Mr. Howington.
[The prepared statement of Mr. Howington follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT
Mr. Kucinich. We are going to recess right now. There are
two votes on. I think that means that I could be back here in
20 minutes at the earliest. So if we all--I ask all the
witnesses don't go too far, but we have about 20 minutes. And
so the committee is in recess, and we will resume testimony
with Mr. Leake when we return. Thank you.
[Recess.]
Mr. Kucinich. The committee will come to order. We are
going to resume the testimony here with Mr. Leake. Thank you
very much for your patience. Let's resume. Thank you.
STATEMENT OF TODD LEAKE
Mr. Leake. I would like to thank the Chair, Representative
Kucinich; and the ranking member, Representative Issa; and the
members of the committee for the opportunity to testify on this
matter.
My name is Todd Leake. I own and operate a family farm near
Emerado, North Dakota. I farm 2,000 acres, half of that to
wheat. North Dakota is the Nation's No. 1 producer of wheat.
The crop is critical to our economy and the communities that we
support.
Because wheat is so critical to my livelihood, I became
concerned when it was revealed in 1999 that North Dakota State
University and other ag universities in the region were
developing genetically engineered wheat. The basis of my
concern was that since the introduction of GE corn, soybeans,
and canola in 1996, many of our largest consistent market
countries had enacted restrictions or moratorium on the
importation of GE crops.
In 2002, U.S. Wheat Associates conducted a survey that
concluded that, ``buyers in Japan, the EU and Korea have
repeatedly and definitively stated that they would not accept
genetically modified wheat at any tolerance.'' These three
countries accounted for 44 percent of hard red spring wheat
exports. Also in 2002, USDA Foreign Ag Service assessed the
information compiled in overseas branch offices regarding buyer
attitudes and governmental regulations of GE crops. The
findings provided further support to the conclusions contained
in the U.S. Wheat Associates surveys. Of the top 10 U.S. wheat-
importing countries, all had laws regarding the importation of
GE crops.
During that same period, a study of the impact of
commercialization of GE wheat was undertaken by Dr. Rob Wisner
of Iowa State University, one of the country's most respected
agriculture economists. Dr. Wisner's report concluded that if
GE wheat were commercialized, U.S. wheat growers would lose
between 43 and 52 percent of their total exports, resulting in
a net loss of between 32 and 35 percent of the income from that
crop. To my farming operation this would clearly result in
growing wheat at a loss.
Even with it firmly established the production of GE wheat
would be an economic disaster for wheat producers nationwide,
research into GE wheat continued unabated. All the major
agricultural universities in the region conducted and
contracted research and field testing of GE wheat at their
extension research centers. Great media attention was paid to
the issue of cross-pollination of GE wheat with the breeder
stock and the foundation stock also grown at the extension
centers. Those breeder and foundation stocks are the basis from
which all future wheat varieties grown in North Dakota are
derived.
When Monsanto Corp. petitioned for the deregulation of
their Roundup Ready GE wheat, concerns were escalated over the
possibility of widespread GE contamination or adventitious
presence of GE wheat in the commercial wheat supply as
commercialization came one step closer to reality. Farmers and
grain buyers alike knew that the segregation would be
impossible, that cross-pollinating seed would be spread by
machinery. Research from the University of Manitoba predicted
that the commercial wheat crop would be contaminated beyond the
limits of the importation tolerances of the major importing
countries within 5 years.
Between 2001 and 2004, farm group leaders had conversations
with USDA/APHIS. When informal discussions failed to produce an
agreement on the need for an EIS on GE wheat deregulation,
farmers and farmer groups signed a formal petition requesting
an EIS be conducted.
In March 2004, accompanied by our legal representatives,
Dr. Robert Wisner and other wheat growers and grain
merchandisers and farm group leaders, I met with Under
Secretary Bill Hawkes and the Acting Director for APHIS on the
issue of an EIS on Roundup Ready GE wheat deregulation
petition. Ultimately, despite our concerns, our request was
denied.
This issue did not end there. Because of the deregulation
petition pending before USDA, grain companies from other
countries restricting the importation and use of GE wheat began
accessing their supplies elsewhere than the United States, in
particular from the former Soviet Republics in the Black Sea
region. Citing market concerns of nonacceptance, Monsanto
shelved its Roundup Ready wheat program in May 2004 and pulled
their deregulation at APHIS shortly thereafter.
While I applaud Monsanto's ultimate decision to pull the
Roundup Ready wheat deregulation petition based on the
sensitivity of the international GE marketing issue, I feel
that it should not have been left solely as a corporate
decision. The environmental contamination issues and the
economic loss issues were clearly within the purview of USDA.
These should be addressed under the National Environmental
Policy Act. This would allow farmers like myself, who would pay
the price for GE contamination, the opportunity to be heard in
that process. Thank you.
[The prepared statement of Mr. Leake follows:]
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Mr. Kucinich. Mr. Cameron, you may proceed. Thank you.
STATEMENT OF DON CAMERON
Mr. Cameron. Thank you, and good afternoon, Mr. Chairman.
Thank you for providing me the opportunity to share with you
and this distinguished subcommittee my experience as a farmer
who grows both organic and biotech crops on my farm.
My name is Don Cameron. I am general manager of Terranova,
a diversified farming operation located in Fresno County's San
Joaquin Valley. At Terranova we farm approximately 26 different
crops, including cotton, alfalfa, tomatoes, carrots, garlic, on
nearly 5,500 acres.
On our farm we grow organic, conventional, and biotech
crops. About 10 percent of our overall production is grown for
organic markets, including organic cotton and alfalfa. The
remaining 90 percent of the farming at Terranova is a
combination of conventional farming practices and crops derived
from agricultural biotechnology, which includes biotech cotton,
corn, and alfalfa. Our farming operation is living proof that
organic and biotech farming practices can coexist in near
proximity without one negatively impacting the other.
Over the last decade, millions of acres of biotech crops
have been grown in the United States which coexist with organic
crop production. In fact, the growth of agricultural
biotechnology has been accompanied by a surge in both organic
acreage and profits derived from the organic production in this
country. Indeed, organic farming has been a profitable
component of our farming operation.
What is true for farmers across the United States is also
true for me; namely, that farming is a business. Like good
businesspeople, we seek to be good stewards of our land while
maximizing the opportunities in the marketplace. When we
determine each year what crops will be planted, we look at all
aspects of each potential crop from expected price, yield, crop
rotation, income, expense ratios, and whether we can compete on
a global basis with other countries. We have chosen to
specialize in organic farming on a portion of our farm to
increase diversity and fill a niche in the marketplace. The
risk is much higher in organic farming due to the lack of
effective treatments for various insects, diseases, and weed
problems. We have accepted the risks with the potential for
increased profitability. Most insecticides, herbicides,
fungicides, and commercial fertilizers are eliminated in
organic farming. Hand weeding with contracted labor is our
major expense.
Organic farming is a process we have chosen to put in place
on a portion of our farm. On the remainder of the farm, we
chose to farm with conventional techniques. We use modern
technology, with advanced practices, including GPS tractors,
plant mapping, integrated pest management, and irrigation
management. We also use biotech seed varieties when available
for corn, cotton and alfalfa.
The trait we find most useful is the Roundup Ready trait,
which allows the plant to resist herbicide Roundup or
glyphosate. Why is this so important to us? Because our
economic savings that we realize through the use of the Roundup
Ready system have been tremendous. Compared to conventional
crops, Roundup Ready alfalfa saves us about $110 per acre,
Roundup Ready cotton $165 per acre, and Roundup Ready corn $17
per acre. These savings include the reduction of overall
chemical use on our farm, reduced labor costs, and fewer trips
across the fields with tractors, which conserves our farm
equipment and reduces diesel use, along with emissions and dust
particles released into the environment. If we were comparing
Roundup Ready weed costs with weed control from our organic
production, the savings would be even greater.
To elaborate on that point, here in the United States our
labor costs are expensive because we provide a fair wage, safe
working conditions, and insurance benefits for our workers. To
hand-weed organic crops, I have spent up to $2,000 per acre, as
there was no alternative available. This is not an effective
use of a dwindling supply of labor. With Roundup Ready crop, my
total weeding bill is less than $35 per acre. My crop is clean
and free of weeds. For the American farmer and for me to
compete in a world marketplace where labor elsewhere may only
cost $1 per day, we need technologies like this to remain
competitive.
I believe that the flexibility that biotechnology can
provide is a major reason that I can successfully grow the
variety of crops that we do. The Roundup Ready cropping system
leaves no chemical residue that will interfere with the
following crops. In the past, we would use herbicides that had
long residuals in the soil, which would preclude the planting
of sensitive crops following their use. We now have the
flexibility to change crops rapidly with major changes in the
markets without risk from previous herbicide applications.
I am always asked how we keep pollen flow from one type of
farming operation from interfering with the other. We grow many
crops for their seeds, both organic and conventionally, and
each one is different. We have been dealing with these issues
long before the advent of biotechnology crops. If farmers were
not successful with this, there would be only one color of
corn, one variety of melon, and one type of cotton. We know the
biology of each crop we grow, where we need to grow it to
maintain and preserve its integrity and its identity. We
maintain necessary separation when needed, especially in seed
production. In some cases there is no interaction, and in other
cases there may be, but we know when to anticipate the
interaction and separate the varieties according to their
characteristics. We clean our planters, harvesters, bins and
trucks to maintain this purity, the same way we separate our
organic from our nonorganic or our biotech crops. We talk with
our neighbors, we communicate, we work out the issues that may
arise. We are also required by our commercial contracts to
provide a crop that is virtually free of other varieties, be it
biotech to organic or organic to conventional. We maintain
separation to ensure this does not happen.
On our farm we consistently maintain a higher level of
standards, which exceed the National Organic Standards, to
fulfill contract requirements from our buyers. In all my years
of farming, I have never lost a market nor income because I
grow organic, conventional or biotech varieties on my farm. In
short, we were coexisting long before the term was coined.
It is my hope that the United States will remain
competitive, and that our Nation's leaders will provide the
foresight to keep us in the forefront of modern agriculture
production for many years to come. As an American, I do not
want to rely on another country for my food and fiber supply.
We are the most productive Nation in the world in agriculture,
and we need the tools to remain leaders. I know we can grow
organic and biotech crops without one jeopardizing the other. I
know this because I have been doing it successfully on our farm
over the last decade.
Thank you again for the opportunity to share my views. I
look forward to answering any questions you may have. Thank
you.
Mr. Kucinich. I thank the gentleman.
[The prepared statement of Mr. Cameron follows:]
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Mr. Kucinich. I just would like to remind the witnesses if
they could try to keep their testimony to within 5 minutes to
help us facilitate this. Thank you very much.
OK. Mr. Kirschenmann.
STATEMENT OF FRED KIRSCHENMANN
Mr. Kirschenmann. Yes. Thank you. And thank you for
inviting us to this hearing.
I would like to add just three observations to those that
have been made by my farmer colleagues, and they are all based
on our experience on our own farm, farming organically for the
last 30 years.
The first observation is that there is perhaps not a
misconception, but a misappropriation of information within
USDA regarding whether or not organic farmers are harmed in the
marketplace by contamination. And USDA quite correctly points
out that organic certification is based on a process
certification; that is, our product is not routinely tested to
find out if there is contamination. We are simply inspected and
certified to make sure that we don't use transgenic
technologies in our production system, and that is what is
meant by process certification.
The problem is that while that is true, there are
increasingly people in the organic market who buy our products
who are not satisfied with simply the fact that we are
certified organic. They, in fact, do their own testing because
they know that their consumers are not just concerned about
whether we use the technology on our farms, but they simply
don't want the GMO in their food. And so increasingly now the
customers that we sell to are routinely testing. They have very
sophisticated laboratories, and they test to the lowest
possible degree that technology allows. And if there is
contamination, they simply reject the product.
To give you a case in point, we sell virtually all of our
organic Durham wheat to Eden Foods, and Eden Foods is one of
those companies that feel that they have a covenant with their
customers that they do not want to violate, and so they
guarantee to their customers that when they buy their organic
pasta, that there are no GMOs in that pasta, and so they
routinely test. And I have been to their plant, I have seen
their laboratory. It is very sophisticated, uses the most
recent technology and science. And I have seen the records of
rejecting loads of soybeans when they were delivered when they
had small levels of contamination. And, of course, the farmers
then had no choice but to take the load back. And, of course,
as you can imagine, that is a considerable cost to the grower
not only because of the lost market, but also because of the
transportation costs, etc., to the plant and back.
So I think it is important for this committee to recognize
that in the marketplace increasingly now the buyers are in
there because they want to maintain their confidence and their
relationship with their customers, are increasingly now testing
the product. This is also true, has been routinely true, of
organic products exported to Europe, where it routinely gets
tested. And all of the companies that we sell our grain to
apprise us of the fact that we had better make sure that there
are no contaminants in the product before it ever leaves our
shores.
Now, all of that, of course, has led us on our farm to
simply make a firm decision, and that is that we will not grow
any crops on our farm now that have a counterpart that has a
GMO crop. So for that reason we had to stop raising canola
about 10 years ago, despite the fact that it was a very good
crop in our rotation. And the rotation is important, because
something that is not often understood by nonorganic farmers is
that in order to make an organic system work, you have to have
a very complex rotation, which is the way that you prevent
infestation from weeds and diseases and other contaminants. And
so we have found on our farm that we need to alternate cool-
season and warm-season crops, we need to alternate grassy
plants with broadleaf plants, we need to alternate leguminous
crops with other cash crops. And there are only so many
alternatives that we have in making those decisions, because we
are limited by climate and other constraints, and also, of
course, most importantly, by the market.
So giving up canola was a big loss to our farm. It was a
great crop. It worked well in the rotation. It is one of the
few broadleaf, cool-season crops that we can grow, and it was a
crop that was very lucrative because we were selling it into a
high-end organic oil market. And we had to give it up.
The thing that concerns us most at this point is that
alfalfa and wheat are now again being threatened to come into
the GMO market, and these are two crops which are absolutely
essential to our rotation. A third of our production is in
wheat, and if we were to lose that, it would be a serious
economic blow to our farm.
Mr. Kucinich. I thank the gentleman.
[The prepared statement of Mr. Kirschenmann follows:]
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Mr. Kucinich. Professor Carter, please.
STATEMENT OF COLIN CARTER
Mr. Carter. Thank you, Chairman Kucinich.
Despite the successful commercialization of genetically
modified crops in the U.S. agriculture and the successful
coexistence of GM and non-GM, farmers in our Nation have
suffered huge financial losses due to accidental contamination
of their crops with unapproved GM material. The most serious
accidents were the contamination of the U.S. corn supply in
2000 and the 2006 contamination of the U.S. long-grained rice
supply. In both of these cases, farmers were innocent victims
of lax government regulations and poor stewardship by companies
developing, testing and selling GM seeds.
StarLink corn was found in hundreds of food products. The
problem spread internationally. StarLink contamination was very
disruptive, because a large share of the market had zero
tolerance for its use, and zero tolerance is virtually
impossible to obtain. Less than 1 percent of the U.S. corn
acreage was planted to StarLink, yet 70 percent of the in-bound
corn samples tested by Japan, our most important foreign
market, were positive. I have found that the StarLink
contamination resulted in a 6 percent drop in the price of corn
that lasted for at least 6 months, costing corn farmers $500
million.
In August 2006, U.S. rice farmers were surprised when the
USDA announced that unapproved GM rice had been found in export
shipments, and that carrier variety was Cheniere. Apparently,
the U.S. Government knew about this accidental contamination
for some time before farmers were informed in August. Why the
delay in informing farmers?
Just like StarLink, the LibertyLink fiasco has demonstrated
that it takes a very long time to clean up contaminated
samples. As long as a contamination like LibertyLink drags on,
farmers are losing money.
The U.S. exports about 50 percent of its long-grain rice,
so foreign market tolerance levels for adventitious presence in
GM material is very important. The European Union's imports of
U.S. rice came to a virtual halt following the LibertyLink
contamination. In a matter of a few business days following the
contamination announcement, the Chicago rice futures price
dropped sharply, by about 10 percent. Unfortunately for
farmers, they were just beginning their harvest, and they
suffered a loss to the value of the crop before they had a
chance to market it. LibertyLink found its way into the rice
foundation seed supply. And unfortunately, the USDA could not
explain how this happened.
Then in March 2007, the USDA announced that an additional
popular variety of long-grain rice, CL131, was also
contaminated with Bayer's LL604 unapproved. The Chicago futures
price dropped sharply again.
Cheniere and CL131 were planted on about 30 percent of the
southern long-grained rice acreage in 2006. These varieties
could not be planted in 2007, causing additional financial
losses for rice farmers.
The economic question boils down to the following: What are
the benefits and costs of deregulation? In my view, the USDA is
not necessarily taking a hard look at all aspects of this
question. Last year Judge Breyer ruled in a case regarding the
USDA's deregulation of GM alfalfa, highlighting some important
gaps in the current system. The alfalfa case is instructive,
but we have to be careful to distinguish between situations of
unapproved GM crops used in confined field trials from those
approved for commercialization. Both situations can be affected
by accidental contamination, but in the first case all farmers
stand to lose, and it is often the legal responsibility of the
developing company. In the second case it is a coexistence
issue between GM and non-GM.
One major problem underscored by the alfalfa case is a lack
of Federal rules regarding accidental contamination of organic
products. Apparently the USDA does not even know how to handle
this issue, as the Agency argued that producers may not
necessarily lose their organic certification if they
unintentionally sell unorganic crops contaminated with GM. Some
organic producers may not agree. As Judge Breyer implies in the
ruling, even if the USDA allowed contamination of organic
alfalfa through high tolerance levels for adventitious
presence, and sellers could still claim organic status when
contamination occurs accidentally, this would not guarantee
that organic production is sustainable.
The rules should ensure that the production of organic is
possible with a reasonably low contamination level. The USDA
should provide better evidence on the benefits and costs of
deregulation, especially when exports are an important market
for the crop in question and there are barriers in those
foreign markets. As we learned from StarLink and LibertyLink,
this technology is not easily reversible. The USDA might find
that new GM crops could be grown, but with certain geographical
restrictions, buffer zones, and traceability and segregation
rules.
I am not arguing that the Roundup Ready alfalfa case should
be generalized to all future releases of GM crops and that a
full-blown environmental impact assessment be conducted in all
cases. However, in going forward, the USDA should strive to
consider which new crops constitute a significant net economic
risk and which do not. Even in Europe, or in Canada for that
matter, approval of a new GM crop does not entail a formal
assessment of commercial market risks of introducing a new
crop, but these other countries do consider contamination
tolerance thresholds and aim to develop coexistence measures
that comply with threshold levels. However, I do caution that
stringent market tests could easily transform into a
precautionary principle approach, which would be a huge
mistake.
To summarize, our mistakes over the StarLink and
LibertyLink contamination incidents were major setbacks to the
global biotechnology revolution in agriculture. Our trading
partners point to these two incidents as evidence that GM crops
are not being properly managed in the United States. They are
right. We are not doing a great job. The stakes are too high to
put our heads in the sand and defend the status quo.
Genetically engineered crops hold tremendous promise for the
future of United States and world agriculture, but they must be
managed and regulated in a way that assures the marketplace
that any risks are properly managed.
Mr. Kucinich. Thank you, Professor Carter.
[The prepared statement of Mr. Carter follows:]
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Mr. Kucinich. We will now hear from Mr. Clark. I would ask
Mr. Clark if he could keep his testimony to 5 minutes, and then
we will go directly to questions. Thank you.
STATEMENT OF RAY CLARK
Mr. Clark. Thank you, Mr. Chairman. It is certainly a
pleasure to appear here once again before you, before the
Domestic Policy Subcommittee, on another issue regarding the
National Environmental Policy Act. And you have stated my
background, that I am senior partner at The Clark Group after
leaving the administration in 2001. My expertise, therefore,
lies in the responsibilities and obligations of the executive
branch of government as it relates to decisions affecting the
human environment, and I am not an expert in genetically
modified organisms, but have spent my career studying difficult
and complex issues and the resolution of those issues, such as
biological defense research and some others that I could name.
APHIS regulates certain genetically engineered organisms
that may pose a risk to plant or animal health. And I have
said--and I used the word ``may.'' APHIS Biotechnology
Regulatory Services regulates introduction of genetically
engineered organisms that may pose a risk to plant health. It
is a huge responsibility to oversee an industry that is rapidly
growing and rapidly becoming more complex. The decisions that
APHIS is making now, however, can have long-term beneficial or
negative effects on the natural environment, the human
community, and the economy.
When Congress passed the National Environmental Policy Act
in 1969, the country was feeling the effects of a rapidly
growing technology in other areas similar to what we are
experiencing today. The rise of the chemical and nuclear
industry of the 1950's and 1960's and some of the unintended
consequences is in part what led to the passage of the National
Environmental Policy Act in 1969.
Congress was prescient enough to know that Federal agencies
will respond to requirements rather than oratory aspirations.
The statute requires agencies to take a hard look at the
impacts of major Federal actions, such as changes to
legislation or regulation, approval of projects, and management
of the Nation's resources. The Council on Environmental Quality
developed the regulations that require agencies to prepare
environmental assessments or environmental impact statements on
broad actions so they are relevant to policy and are timed to
coincide with meaningful decision points in agency planning.
And sometimes it seems like agencies are being asked to
peer into a crystal ball, but the courts and the public have
understood that the hard-look doctrine does not require
agencies to be perfect or to understand absolutely the
secondary, tertiary or cumulative effects of programs or
policies. But the courts and the public do expect them to at
least try. They want to know that the agencies are not captured
by a special interest, but are thinking about the balance that
must be struck between economic and environmental well-being.
And these stakeholders want to know that all of us are being
taken into consideration as agencies make decisions.
After agencies consult with the public, they're required to
make an informed choice among a reasonable range of
alternatives. Again, the agencies are not being asked to make a
perfect decision, they are asked to follow a logic trail using
a defensible methodology presented in a document that is clear
and concise, supported by evidence and understandable to the
public.
For complex decisions like disposing of chemical weapons or
permitting genetically modified organisms, NEPA provides a
structure and a discipline to think rationally and to make a
decision that takes multiple objectives into account. NEPA is a
tool for agencies that is so intuitive that even if the law did
not exist, they would have to create a similar decisionmaking
process to help them through these complex decisions.
One of the mistaken practices by the Federal agencies in
doing NEPA analysis allows them to believe that NEPA does not
apply to economic impacts. The purpose of the impact is--and I
quote directly from the statute--``to declare a national policy
which will encourage productive and enjoyable harmony between
man and his environment; to promote efforts that will prevent
or eliminate damage to the environment and the biosphere and
stimulate the health and welfare of man; to enrich the
understanding of the ecological systems and natural sources
important to the Nation.''
The Congress recognized the profound impact of human
activity on the interrelationships of all of the components of
the natural environment, including the indirect effects on
human dependence--humans' dependence economically on the
environment. And in particular, Congress acknowledged the
profound influences that population growth, high-density
urbanization, industrial expansion, resource exploitation and
technological advances will have on a natural environment
should be considered and given a hard look.
In NEPA, there is clearly an intention to understand the
relationship between the environment and our economic welfare.
In addition, there is a requirement in the CEQ regulations to
balance the economic and environmental factors in
decisionmaking. For genetically modified organisms, the
socioeconomic effects are likely to be interrelated with
environmental effects. For example, the genetic drift of
genetically engineered traits to nongenetically engineered
crops, while an environmental effect, could also have
socioeconomic impacts, such as potential effects on the
marketability of products in organic markets or with trade
partners.
A recent court case affirmed that the modification of a
plant's genetic makeup through genetic engineering is an effect
on the environment.
The linkage between environment, social and economic
effects is precisely the kind of analysis that Congress
intended with the statute, and it is precisely the kind of
linkage that CEQ saw when the regulations were drafted in 1979.
Whether or not those impacts were significant remains a
question for the analysts, who must measure significance
through an understanding of context and intensity.
Addressing cumulative effects has been a difficult task in
the simplest of projects, but the regulation of genetically
modified organisms is not the simplest of actions, but is an
issue where understanding the potential of cumulative effects
is critically important. One way that I've always thought that
we could do something like this is a--taking a hard look--is a
programmatic approach to environmental impact analysis, and it
will help reduce paperwork and streamline the NEPA process.
Programmatic analyses are appropriate in order to implement
broad decisions for Agency programs, policies or plans. It
seems particularly useful in broad decisions such as
genetically modified organisms. However, I remind you of my
earlier statement that significance is measured by both context
and intensity. So a programmatic approach would be helpful, but
if these decisions are applied in a local environment, an
analyst must look at the biological, physical and socioeconomic
context where that decision would be applied. In a natural
ecosystem, a decision may be beneficial to the environment, but
the same decision analyzed in a different socioeconomic context
could have a negative effect. That is why programmatic analyses
must include tiered analyses to look at the local environment.
Mr. Chairman, I commend APHIS for renewing and revitalizing
their NEPA regulations. It is needed, and it is past due. I
have reviewed the APHIS NEPA matrix for the regulated release
of a genetically modified plant, and I must say this continues
to be an old way of looking at NEPA, checking a box to get a
document done. There is not any consideration of context or
intensity of the potential impact as related to environmental
or socioeconomic factors.
You know, APHIS needs to be--needs to move past these old
ways. They are at a cutting edge of our new world, our new
economy, and they need to embrace new ways of making these
crucial decisions that affect all of us.
There has been much work done in this field in the last 5
to 7 years, much of it led by the Council on Environmental
Quality and NEPA practitioners throughout the Federal
Government, and there are three things that I would think that
seem directly applicable to APHIS of which I would recommend a
closer look. One is that APHIS should incorporate an ecosystem
approach to the decisionmaking beginning at the policy level.
This requires a more holistic look at what and who are in the
ecosystem and how the biota are responding to natural and man-
made changes. Regulations are the real opportunity for agencies
to set policies regarding the NEPA process, and they need to be
expansive in their thinking about these new regulations.
Two, incorporate a monitoring and adaptive management
approach to NEPA. APHIS can therefore spend more time and more
money on monitoring impacts and less on predicting with
absolute certainty.
And finally, incorporate a collaborative way of
decisionmaking. Organic farmers, farmers using genetically
modified crops and consumers all have an interest in the
ecosystem in which they live and work. CEQ has issued a
handbook on developing collaborative processes, and APHIS
should examine how better to engage the public.
In conclusion, Mr. Chairman, thank you for the opportunity
to provide my thoughts on the matter. APHIS, I believe, has an
important and unique role to play in the future of our food
supply and the protection of plants. I am sure that their
expertise, the willingness of the industry and your oversight
will produce valuable results for Americans.
Mr. Kucinich. Thank you very much.
[The prepared statement of Mr. Clark follows:]
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Mr. Kucinich. We're going to go to questions. Professor
Carter has asked the indulgence of the committee and the other
witnesses since he has a flight to catch. I'm going to go to
you directly with questions.
Mr. Carter. Thank you.
Mr. Kucinich. I take it that you're not opposed to GE crops
in principle; is that correct?
Mr. Carter. That's correct.
Mr. Kucinich. OK. And nevertheless you believe that field
testing and deregulation of GE crops can have a costly impact
on farmers when contamination occurs?
Mr. Carter. Absolutely.
Mr. Kucinich. You advised USDA to, ``consider which new
crops constitute a significant economic risk.'' Elsewhere in
your testimony you state, ``especially when exports are an
important market outlet,'' and, ``possible buyer resistance in
the foreign market.'' You said those things, right?
Mr. Carter. I did.
Mr. Kucinich. OK. As you know, APHIS almost never prepares
an environmental impact statement when it permits field testing
or deregulation of genetically engineered plants. In your
opinion, have you ever reviewed any other forum where APHIS
might already do what you advise?
Mr. Carter. I have not seen any other forum where they've
done that, no.
Mr. Kucinich. That is not the point of the EIS, right? That
is the point, rather, of the EIS?
Mr. Carter. Correct. But I've not seen that elsewhere.
Mr. Kucinich. As an economist, do you think that
preparation of an EIS poses an economic threat to the
commercialization of GE crops?
Mr. Carter. Not necessarily. We heard about GM wheat and GM
rice. I mean, the initial release of, for example, GM wheat, in
my opinion, should involve an EIS, and ditto for rice. And it
would not be a threat to the commercial production of that
crop.
Mr. Kucinich. Could it have a favorable effect on
commercialization?
Mr. Carter. It could.
Mr. Kucinich. How so?
Mr. Carter. Well, it could--it could change attitudes and
views of firms or individuals that buy the crop. If the EIS is
done properly, and it shows that the benefits far exceed the
costs, that could change some attitudes and lead to
commercialization and greater acceptance.
Mr. Kucinich. What role, Professor Carter--so overall
you're saying that an environmental impact statement might have
a favorable--favorable role in influencing consumer
acceptance----
Mr. Carter. That's what I'm saying. Thank you.
Mr. Kucinich. OK. I want to thank the gentleman.
Mr. Clark, you've had the chance to review APHIS' draft
programmatic EIS on new regulations pertaining to genetically
engineered crops.
Mr. Clark. Yes, I have.
Mr. Kucinich. It was published 5 months after the Roundup
Ready alfalfa and creeping bentgrass Federal court decisions,
which rebuked APHIS for violating NEPA. I wondered if you
noticed, as I did, that the entire discussion of socioeconomic
impact is relegated to a 10-page appendix at the end of a 310-
page document?
Mr. Clark. I couldn't help but notice that, because I was
looking for--looking for some social economic impact analysis
within the body. And I have no objection to putting detail
studies in an appendix of an environmental impact statement;
however, you're obligated to at least put the meaning of that
and to simplify that and to make it understandable to the
public in the main document itself.
Mr. Kucinich. Would you agree that Judge Breyer's decision
in Geertson ordered APHIS to make consideration of
socioeconomic impact central to determination of whether
APHIS's action is significant under NEPA and requires the
preparation of an EIS?
Mr. Clark. I think Judge Breyer's decision was uncommonly
clear for a Court decision, and it was absolutely the central
point of the entire opinion.
Mr. Kucinich. So in your opinion, does APHIS's draft
programmatic EIS incorporate the directive from Judge Breyer's
decision?
Mr. Clark. If I were the decisionmaker, I wouldn't put it
out the way it is now because I don't think it informs the
decisionmaker, nor the public.
Mr. Kucinich. Now, Mr. Clark, Mr. Leake, the grower who is
here from North Dakota outlined in his testimony a number of
routes of contamination other than pollination. These other
routes would include seed left behind in a harvest; the throw-
over from straw choppers, from trucks transporting the
harvested wheat. And at every link of the chain from field to
grain elevator to consumer, these routes of contamination are
more mechanical than the biological routes of contamination
such as cross-pollination. In your opinion, should these
mechanical routes of contamination receive equal consideration
as cross-pollination or the biological routes of contamination
for the purposes of determining significance under the National
Environmental Policy Act?
Mr. Clark. I think clearly the CEQ regulations anticipate
that you'd follow the impacts wherever they came from. But the
central point about NEPA and CEQ regulations, that these are
about decisions, and if a decision by APHIS results in cross-
contamination, it doesn't really matter where it comes from. It
is either a direct, an indirect or cumulative impact. It still
must be analyzed in the EIS so that the decisionmaker and the
public can understand the full import of the decision of APHIS.
Mr. Kucinich. So you're saying that--you're saying it
doesn't matter where it comes from. Your answer to the question
would be, yes, that the mechanical routes should receive equal
consideration----
Mr. Clark. It must receive it. It must receive it.
Mr. Kucinich. So in your testimony you identify a possible
shortcoming of the decision matrix APHIS developed in response
to two Federal court decisions last year which rebuked APHIS
for having no record of consideration of potential
environmental impact from decisions to permit field testing and
deregulation of genetically engineered plants. You've said,
``there is not any consideration of context or intensity of
potential impact as related to environmental and social
factors.'' And you've asked, ``how is the timing of the
proposed GMO release considered in the matrix; how does the
matrix account for any synergistic or indirect impacts.''
Do you believe, Mr. Clark, that the decision matrix now
used by APHIS ensures that its reviewers will fully comply with
the National Environmental Policy Act?
Mr. Clark. I don't see for the life of me how that matrix
will do anything for the decisionmaking because it looks at the
action. It is looking at the plant itself down to the ground
and not looking at the environment--not looking at either
context or intensity.
Mr. Kucinich. So is that decision matrix sufficient to
ensure that APHIS complies with the National Environmental----
Mr. Clark. No, no.
Mr. Kucinich. And in your testimony you advise APHIS to
incorporate a collaborative way of decisionmaking and refer
APHIS to a new handbook on developing collaborative processes
issued recently by CEQ. Your testimony to farmers, some of whom
met with and petitioned APHIS to prepare environmental impact
statements in the past, while APHIS refused their request for
petitions, at least APHIS met with the farmers. Is that
sufficient?
Mr. Clark. That is not collaborative decisionmaking, not on
anybody's----
Mr. Kucinich. So describe again a collaborative decision.
Mr. Clark. Well, collaborative decisionmaking--and let me
give you some amount of context here--is that there has been a
very strong push by the Council on Environmental Quality to
develop collaborative decisionmaking, including cooperating
agencies, so that counties--counties in which farmers reside
could easily ask to be a cooperating agency of APHIS so that
they can use their special expertise with regard to economic
impacts on the county, on the farming, on the farming community
there. So being a cooperating agency would be a much more
collaborative way of doing that. There would be--there is a lot
more sophisticated collaborative processes that are described
very well in the CEQ handbook.
Mr. Kucinich. Thank you, Professor Carter. I appreciate you
being here. Thank you.
Mr. Clark. And is available to all of the Federal agencies.
I won't take the time here to describe them, but I will say
that the Administrative Procedures Act passed in 1947. Even
that--even the way that APHIS handled that particular issue
wouldn't even comply with the Administrative Decisions Act of
1947.
Mr. Kucinich. I thank the gentleman.
I want to go to questions now to Mr. Leake. You said that
the crop options available to you are limited due to where you
are. Climate and latitude are factors in your planning options.
Now, if you couldn't grow hard spring wheat profitably, as you
fear would occur if a genetically engineered wheat variety is
approved by APHIS, what could you and others grow profitably in
its place given your climate and latitude?
Mr. Leake. I don't think we could continue, because about
two-thirds of the acreage of North Dakota has planted a wheat
annually, and the rest of North Dakota, at least northern North
Dakota, north of Interstate 94, is not suited to corn and
soybeans. 1994--or 2004, 2005 or 2006 we had failures or
disappointing yields for corn in the northern two-thirds of
North Dakota because it requires a lot of moisture and a lot of
heat to grow corn and soybeans to get the yields necessary to
be profitable.
So we are, as has been mentioned before, very dependent on
cool-weather crops, small grains being one of those. However,
we do have some other options, which are specialty crops, such
as navy beans, pinto beans, black beans, edible bean crops and
sunflower. However, there is limited demand for those
particular commodities, so we wouldn't be able to substitute
those crops into the acreage that wheat now is grown on and
still have a price because the supply would exceed the demand.
Mr. Kucinich. Now, you've written in your testimony that if
a contamination event like the StarLink case would happen to
wheat crops, the effects would be much worse on farmers. You
note that a greater share of the wheat crop is sold on the
export market, and the animal feed market isn't a viable
backstop for wheat that can't be--that wheat can't be sold for
human consumption. Did you make those arguments to APHIS when
you were seeking an EIS for Roundup Ready wheat?
Mr. Leake. Yes, we did.
Mr. Kucinich. What did APHIS say?
Mr. Leake. Basically when we met with--in March 2004 with
Undersecretary Hawkes and the Acting Director of APHIS, we put
that argument forth to them. Their final decision on that was
not to grant an environmental impact statement. I guess that
says it.
Mr. Kucinich. What did they say to you, though? Was there
anything else said?
Mr. Leake. Basically the Under Secretary said it was--that
they didn't have the authority to pursue an EIS to give us the
input into the decision on the petition for deregulation.
Mr. Kucinich. Did APHIS show you any evidence that they had
seriously considered the concerns you were raising?
Mr. Leake. No. No, they did not.
Mr. Kucinich. How did that make you feel? What did you
think about that?
Mr. Leake. I felt very shut out of the process. I felt like
it wasn't a democratic process, that I was a stakeholder--it
was my livelihood at stake, and that I wasn't given any
consideration, and that the company that was pursuing the
deregulation of the Roundup Ready wheat was given
consideration, but I as a grower was not.
Mr. Kucinich. And when that happened--because growers by
nature have to look forward--what was going on in your mind
when you looked forward from that moment based on the way it
was being handled where they didn't really show any real, you
know, connection to your concerns?
Mr. Leake. Well, in the past, the other Roundup Ready
crops, such as soybeans and corn, had been deregulated and
introduced into the marketplace. Using that as an example, I
fully expected them to deregulate Roundup Ready wheat, and it
would be introduced within a year or two. We had been warned
directly by our customers in numerous formats, numerous times
and places, that they would not access our wheat supplies for
importation if we were to be--have GE--or GE crops growing
commercially in the United States. And that actually started to
happen. So I felt----
Mr. Kucinich. Would you say--what? Would you repeat that?
Mr. Leake. Prior--prior to the introduction of any GE
wheat, some of the milling companies in Europe, Ranco was one
of them, I believe, was starting to develop commercial ties
with wheat suppliers in Kazakhstan and the Ukraine in
anticipation of a GE wheat supply from the United States and
Canada. This is just business. They anticipated that it would
be commercialized; therefore, they could not utilize U.S. wheat
supplies. They sought them elsewhere, as they said they would.
Mr. Kucinich. Now, how--has this affected you financially?
Mr. Leake. The--of course, the Roundup Ready wheat
deregulation never occurred. So we are still GE-free, and
GIPSA, the Grain Inspection, Packers and Stockyards
Administration, still issues its letterhead statement that U.S.
wheat supplies are GE-free. And that is required by most of the
customers that we export our harvest spring wheat to. That has
become the--a pivotal document for them to keep accepting U.S.
wheat exports.
Mr. Kucinich. Your testimony states that the EIS,
``provided the best opportunity to present,'' the case of
concerned wheat growers about the risk of Roundup Ready wheat.
Why, in your opinion, is the public comment period for an
environmental assessment or meetings that you have had with
APHIS officials not an adequate forum for presenting your case?
Mr. Leake. Well, a comment period doesn't have the same
ability to garner comments as would be the scoping process of
an EIS. During a--scoping meetings, they are held in the areas
where people would be affected. They're invited to come and
voice their concerns. That is incorporated into the EIS draft.
And we also have an opportunity to comment on the draft EIS.
This isn't necessarily available in the EA. So I felt that, you
know--as a person of North Dakota, I've seen a lot of EIS
scoping notices go out on a lot of projects, etc. People have
the opportunity to come en masse to voice their concerns. The
administrative process of an EA basically shuts out most of the
concerned people.
Mr. Kucinich. Do you think that APHIS based their rejection
of your petition on--to prepare an EIS to, you know, hard look
at the risk, they base that on science and economics, in your
opinion?
Mr. Leake. I don't think so, because it is quite apparent
to everyone, especially anyone who is involved in farming--
Under Secretary Hawkes, when we talked to him, he told me that
he was a wheat farmer. I'm quite sure that he was cognizant of
the simple process of the economic implications of not being
able to export wheat when wheat is--when half the wheat crop in
this country is exported. We would find a drop in price.
Mr. Kucinich. Thank you, Mr. Leake.
Mr. Howington, you raise GE soybeans, but you're here
testifying on the effects of unauthorized GE rice release.
Mr. Howington. Yes, sir.
Mr. Kucinich. I take it you're not opposed to GE crops in
principle?
Mr. Howington. In principle, no, sir.
Mr. Kucinich. OK. Do you think your advocacy with APHIS for
an environmental impact study that analyzed the effects of
contamination is anti-GE crop in principle?
Mr. Howington. No, sir, not at all.
Mr. Kucinich. Why would a grower of GE crops have a concern
about the development of new GE crops?
Mr. Howington. My concern is not with--my concern is with
contamination. When they call it contamination, and it comes
out of my pocketbook, that is my concern.
Mr. Kucinich. You state that many rice farmers--I think you
said about 600 in your testimony--went out of business after
the LibertyLink rice contamination event. You yourself now
lease out your own land to neighboring farmers, and you don't
farm rice anymore.
Mr. Howington. That's correct.
Mr. Kucinich. When one farmer quits and another gets
bigger, the total number of farmers decreases, and
concentration in the industry increases. This has historically
been a great deal of--there has historically been a great deal
of concentration in the farming business. Is additional
concentration in farming attributable to the economic effects
of contamination by GE crops as an impact people should be
concerned about?
Mr. Howington. Yes, sir. There are a number of things that
contribute to that, but certainly the genetic event we had in
2006, farmers quit simply because of the economic effects of
that event.
Mr. Kucinich. I want to go into this just a little bit. You
had the Liberty rice--LibertyLink rice contamination event.
Mr. Howington. Yes, sir.
Mr. Kucinich. Once you learned of that, walk me through
what happened. You know, how did you find out about it?
Mr. Howington. We found out about it, and it was--in our
part of the world, agriculture is--it is like politics in
Washington. It's what goes on. It was on in every paper, it was
on every news, it was on all of the reports. It was everywhere.
Mr. Kucinich. As soon as that happened, what did you do?
Mr. Howington. I tried to find out what the consequences
were going to be for me; wondered what my crop was going to--
what was going to happen to my crop, my price, my market.
Mr. Kucinich. Would you tell this committee for the record
what did happen?
Mr. Howington. The price dropped. It dropped precipitously
and very quickly. Unfortunately, I didn't have a lot of my crop
priced, which was very common at that time. Rice prices were
headed up. We were hoping for a rise in prices. It went the
other way.
Mr. Kucinich. What happened to you?
Mr. Howington. They went the other way.
Mr. Kucinich. What happened to you?
Mr. Howington. That year I didn't get as much for my rice
as I was hoping I would.
Mr. Kucinich. How much of a loss did you take?
Mr. Howington. I would say in the $50,000, $60,000 range.
Mr. Kucinich. What does that mean for a small farmer?
Mr. Howington. A fellow like me whose disposable income is
less than that, meant a lot.
Mr. Kucinich. Did it wipe you out?
Mr. Howington. I don't want to use the term ``wiped me
out.'' I'd say it----
Mr. Kucinich. Damaged you severely?
Mr. Howington. It damaged me severely. Farming is a huge
risk.
Mr. Kucinich. It is a family thing, too. What can you tell
us about--what kind of effect did this have on your family?
Mr. Howington. Well, I mean, this is a farm that has been--
my grandfather literally cleared this land. My father developed
it and leveled it, put wells on it. I came along and farmed it.
And I farmed it, started full time in 1980, and it just--the
economics of the situation just--and the risk. That is the big
thing about farming, it is a huge risk. As I say, my disposable
income was less than the $50,000, $60,000 I lost in that event.
Mr. Kucinich. So tell us about how you felt, though,
because, you know, a lot of times this stuff gets academic
until it comes down to a personal level. How did it feel?
Mr. Howington. It was a horrible feeling. It is a--when you
realize that where you stand on the totem pole in this deal--
obviously throughout this deal, what was going to happen to the
farmer was the last consideration. And when you realize where
you stand on the totem pole, it is devastating to you. As
farmers, we go out every day and we work hard. We work very
hard. We risk a lot, you know. And when something like this
happens, it is very depressing, very demoralizing.
Mr. Kucinich. You know, I appreciate you and the witnesses
here telling their personal stories because it helps people
connect with it. They've got to be in your place. This is your
grandfather's farm.
Mr. Howington. Yes.
Mr. Kucinich. I mean, this is why I've gone into
questioning you in a little bit different way here because I
think we need to really understand the impact this had on you.
This is--again, there is a lot about this debate that cannot be
academic. This affects people's lives in huge ways.
Mr. Howington. Well, this is a family farm that went by the
wayside. It was not the only one by any means that was--that
this event contributed to.
Mr. Kucinich. I want to thank you for your testimony, Mr.
Howington, as well as all the other witnesses.
I have some questions for Mr. Kirschenmann. In their EA for
Roundup Ready alfalfa, APHIS made the following statements with
regard to RR alfalfa's negligible impact on organic alfalfa.
They said, ``fields''--talking about alfalfa--``are typically
harvested before the seed is set and allowed to mature because
high-quality forage is the desired product.'' That is page 14.
And they also said, ``organic production operations require to
have distinct, defined boundaries and buffer zones to prevent
unintended contact with prohibited substances from enjoining
land that is not under organic management.'' That is on page
13.
Now, do these statements from USDA persuade you that USDA
gave serious consideration to the question of impact on organic
farming?
Mr. Kirschenmann. I think they gave serious consideration
to an abstract farm. They didn't give serious consideration to
a real farm because--the reason I say that is----
Mr. Kucinich. What do you mean by that?
Mr. Kirschenmann. What I mean by that is what they describe
is true in theory, but on a real farm you have events like
unusual rainfalls, when you can't get in to harvest your
alfalfa crop in time before it goes to bloom; or you may have a
low area in a corner of a field that you can't get into for
several weeks if you have had a lot of rain. Or you may have a
drought situation where your alfalfa never gets to a point
where it is worth cutting. And so, then, you know, are we
really going to expect farmers to cut all that alfalfa just so
it doesn't go to bloom? I mean, I think that is pretty
unrealistic. So in a real farm, you have those kinds of real
situations that don't always work as they seem they should work
in theory.
Mr. Kucinich. So is it possible that they developed this
approach with the advice of farmers?
Mr. Kirschenmann. A little doubtful.
Mr. Kucinich. I'd like to add to the record----
Mr. Cameron. Mr. Chairman, could I add something to that?
Mr. Kucinich. Yes. I mean, I'd be happy to have you join
into this. Please do.
Mr. Cameron. I am a real farmer. I grow Roundup Ready
alfalfa 200 yards away from my organic alfalfa. I'm not saying
that you couldn't come up with a situation to where you could
have a problem, but I think good stewards of the land, good
farmers, we cut our hay actually prior to bloom.
I agree. We live in California. It doesn't rain much. When
it does, it rains in the winter. But I feel confident I could
grow Roundup Ready alfalfa side by side to organic alfalfa and
not have an issue with contamination or adventitious presence.
So what I do understand--there are other situations in the
United States, but----
Mr. Kucinich. Well, I think he has kind of implied that
your conclusions would be defined by the climate and latitude a
little bit. I mean, they have to have some impact on it, right?
Mr. Cameron. True. But I agree. If you're going to be an
economic farmer, you not going to--you don't want your alfalfa
to bloom in the first place. If it does bloom, the time between
there and the time that you set the seed is quite some time.
Mr. Kucinich. I'm not a farmer, but here is the thing I
want to ask you, if I may, Mr. Cameron. This same question that
we're talking about, the Federal judge, here is what this
Federal judge concluded. I want to quote this to see what you
think, and then I'd like Mr. Kirschenmann to comment on it,
too. Talking about APHIS: ``APHIS made no inquiry into whether
those farmers who do not want to grow genetically engineered
alfalfa can, in fact, protect their crops from contamination,
especially given the high geographic concentration of seed
farms and the fact that alfalfa is pollinated by bees that can
travel more than 2 miles. Neither the EA nor the FONSI
identify--FONSI, it is called--identify a simple method that an
organic farmer can employ to protect his crop from being
pollinated by a bee that travels from a genetically engineered
seed farm, even assuming the farmer maintains a buffer zone.''
Now, that is what the Federal judge said in this case. What
do you think about that?
Mr. Cameron. I think your seed requirements are much
different than your typical growing of the forage requirements
should be. I think separation of a seed grower should be much
different than a traditional forage grower.
Mr. Kucinich. Well, Mr. Kirschenmann, what do you think
about that in terms of the impact on organic farming?
Mr. Kirschenmann. Well, the thing that--I mean, I want to
commend Mr. Cameron, because he is apparently managing his
system very well, but, again, when you look at the situation in
terms of rank-and-file farmers, not every farmer, as in any
other field, is equally competent, is equally capable of
controlling systems.
The thing that is disturbing to me is that we keep having
these claims that we have this under control, that there is no
problem and no danger of contamination, and yet just here 2
weeks again we had, you know--so, you know, it is--the fact
that--Charles Perot at Yale University published a book back in
the late 1980's called Normal Accidents, and the case that he
made in that was--the reason he called them normal accidents is
because they happen. You can't manage any system constantly
perfectly. There are going to be mistakes that are going to be
made. And the problem in this system, you know, for me and my
farm, if somebody makes a mistake, I can't--I can't undo that
mistake. It harms me economically. And this is why we made the
decision on our farm not to grow any crops that have a GMO
counterpart. Now, that works for us now as long as we continue
to have a range of crops that we can grow effectively in our
rotation and have markets for them. That probably is not going
to be the case very far into the future if we continue, you
know, bringing new crops into the situation.
And so, you know, I agree that there may be an individual
case here and there where you can demonstrate that you can
manage it, there isn't a problem. But if you look at the
situation and the market as a whole, you can't make that case.
The evidence is too clear.
Mr. Kucinich. Well, I want to thank all of the witnesses
for their participation. Each of you came here to communicate
experience, which is going to be valuable in the committee
being able to make some determination as to where we go. And we
have a variety of experience here, and I think that it is very
helpful.
Again, this is not the hearing to determine whether the GE
technology is good or bad. We're looking at what is APHIS doing
or what is USDA doing. That is the committee's charge here. So
I want to thank you for shedding some light on this.
I'm going to dismiss the first panel with the gratitude of
the committee. Thank you. And we're going to--as they're
leaving, we're going to get ready for the presentation from the
next panel, which will consist of the Administrator of the
Animal and Plant Inspection Service [APHIS], U.S. Department of
Agriculture, Cindy Smith.
[Recess.]
Mr. Kucinich. Before we begin, The administrator has
informed the committee that one of her assistants is going to
be present. You know, I want to acknowledge that there are
areas here that can become very complex, and if I was in the
shoes of the Administrator, I would certainly want to have
someone nearby who could assist in making sure that the
committee gets the, you know, best information that we can. So
I want to acknowledge the gentleman. And since you'll be
assisting in this, I would ask you to also be sworn so that we
can have concurrence in our testimony here. Would both of you
please stand and raise your right hands?
[Witnesses sworn.]
Mr. Kucinich. Thank you. Let the record show that the
witnesses answered in the affirmative.
I'd like the gentleman to give his name and his position
and his function in the office of the Animal and Plant
Inspection Service.
Mr. Gregoire. Mr. Chairman, I'm Michael Gregoire.
Mr. Kucinich. And would you bring your microphone closer?
Would you spell Gregoire for the staff here?
Mr. Gregoire. Yes. It is spelled G-R-E-G-O-I-R-E. Michael
Gregoire. I'm the Deputy Administrator for Biotechnology
Regulatory Services in the Animal and Plant Health Inspection
Service.
Mr. Kucinich. OK. OK. And with us is Cindy Smith, who is
the Administrator of the Animal and Plant Inspection Service of
the U.S. Department of Agriculture. I want to thank both of you
for being here, and I would like Ms. Smith to commence with her
testimony.
STATEMENT OF CINDY SMITH, ADMINISTRATOR, ANIMAL AND PLANT
HEALTH INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE,
ACCOMPANIED BY MICHAEL GREGOIRE, DEPUTY ADMINISTRATOR FOR
BIOTECHNOLOGY REGULATORY SERVICES, ANIMAL AND PLANT HEALTH
INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE
Ms. Smith. Mr. Chairman, thank you for the opportunity be
here today.
APHIS is responsible for ensuring that biotechnology-
derived crops are as safe for agriculture and the environment
as their traditionally bred counterparts. Over the last 20
years, APHIS has effectively overseen the safe adoption of
products of biotechnology, with 12,000 field trials grown under
our notification procedures and 1,500 field tests grown under
the permitting process, encompassing field trials at 79,000
different locations. In addition, we have deregulated more than
70 products in that time.
APHIS is a leader globally in biotechnology regulatory
experience. In 2002, we recognized, though, that there were
still more--that there was still more that we could do to
better position the Agency to respond to the evolving science
and growth of biotechnology. That was when BRS was created, and
I became the Deputy Administrator of the program.
Since then, we've made a number of significant improvements
to APHIS's biotechnology regulation. APHIS has committed
increased resources to our regulatory activities. BRS's budget
has grown by more than 200 percent in the past 6 years. Staff
levels have increased from 25 to 60 employees. We have placed
more focus on key regulatory areas and created dedicated staff
for these functions. For example, we established a dedicated
compliance and enforcement unit in BRS in 2003. We've automated
the regulatory and compliance processes and made a number of
significant regulatory changes, as well as numerous revisions,
to permit requirements. We now have in place stricter measures
for crops producing pharmaceutical and industrial compounds,
not only increasing requirements for the regulated community,
but also APHIS's role in the oversight of these products.
Additionally, we recently launched a new voluntary quality
management system for biotechnology developers to foster--to
help foster industry commitment to quality controls, quality
management and quality compliance.
I share this committee's respect for the National
Environmental Policy Act [NEPA]. We have made a number of
changes to ensure environmental impacts of our proposed actions
are fully considered. We are undertaking comprehensive
programmatic as well as product-specific EISs. Our first
programmatic draft EIS, which was published in July 2007, will
lay the groundwork for a comprehensive updating of our Federal
framework.
Our environmental assessments now contain much more
detailed scientific analysis and include more scientific
references, analysis of effects on organic protection, and a
toxicity table for effects of biotechnology-derived crops on
nontarget insects. We have also enhanced our documentation for
categorical exclusions from NEPA, more closely analyze
cumulative impacts, and put in place a formalized process with
the U.S. Fish and Wildlife Service to ensure compliance with
the Endangered Species Act. We made a number of these changes
even before the court rulings directing us to better document
our environmental analysis, and other changes came after as our
understanding of what the courts expected of our NEPA
documentation evolved and we continued our commitment to
meeting our environmental obligations.
Mr. Chairman, let me focus the remainder of my remarks on
last year's situation regarding Roundup Ready alfalfa, as well
at NEPA regulatory changes we're considering, as those were
areas you were interested in.
APHIS had prepared an environmental assessment [EA], to
determine whether deregulating the alfalfa could have a
significant impact on the environment, and issued a finding of
no significant impact [FONSI]. In order to comply with the
preliminary injunction, APHIS brought Roundup Ready alfalfa
back under regulation until the Agency issues a new
determination consistent with the court's requirements. The
court did not overturn Federal conclusions regarding the safety
of the crop for food or feed purposes, but rather concluded
that APHIS had not adequately documented potential
environmental effects.
Again, we are taking this opportunity to examine and
strengthen our NEPA processes. APHIS already considers the
social and economic impacts of a proposed action in those cases
where there is a clear relationship with environmental impacts.
We are strengthening our documentation in this area, both in
our recent regulatory decisions and in the alfalfa EIS being
drafted. And I look forward to our continued learning in this
area as we gain a better understanding of how to apply the NEPA
process to inform our decisionmaking.
APHIS is also in the process of promulgating a proposed
rule that will make changes to how we implement procedures
under NEPA aimed at providing further clarity to this process.
These potential changes would more closely tie our decision to
prepare an EIS to the language in NEPA. These and other changes
we are considering would also clarify that we base our
decisions to prepare an EIS or EA on an action's potential
effect on the environment.
Mr. Chairman, my statement for the record includes much
more detailed information regarding our regulatory system for
biotechnology crops, as well as steps we are taking now to
enable us to continue regulating the next generation of
products. Let me conclude by saying that our actions today to
revise and strengthen our regulations, as well as learn from
our previous experiences, will hold us in good stead for the
future.
I look forward to answering your questions. Thank you again
for the opportunity to testify before the subcommittee.
[The prepared statement of Ms. Smith follows:]
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Mr. Kucinich. Thank you very much.
I have some prepared questions. But before I get to them,
you sat back there and you heard the testimony of the farmers.
And you know, you heard Mr. Howington talk about how his
grandfather had that farm and then what happened with the
LibertyLink rice. What about that? When you hear that from a
farmer, do you think that maybe somebody failed somewhere?
Ms. Smith. Well, I guess I have a number of reactions. It
certainly emphasizes how seriously we took this situation when
it occurred. It emphasized the decisions we made at the time to
go contrary to some of our historical procedures in terms of,
we historically complete an investigation in terms of a
situation such as this before we start talking publicly about
it so we don't compromise the nature of the investigation. But
what became very clear to us was that we wanted to make sure
the farmers knew everything they could to help them prepare for
the planting season. And so we made two separate announcements,
kind of contrary to what our historic policy had been, letting
farmers know about what we had learned. And in addition,
another thing that we did was when we learned about the second
rice-related event, we took immediate measures, within hours,
and we stopped--I may not have the number exactly right--but I
think it was in the neighborhood of 98 percent of all the
Clearfield rice that was moving to farmers to plant, so that
what happened was very--I think there may have been potentially
one farmer that planted a very small spot of Clearfield. So we
are very empathetic absolutely, and that is partly what drove a
lot of the actions that we took during the situation.
Mr. Kucinich. Well, I mean, after all, two Federal judges
concluded that APHIS was in violation of NEPA in two separate
genetically engineered plant cases. And in these cases, APHIS
review of the deregulation application for Roundup Ready
alfalfa and the field testing of Roundup Ready creeping
bentgrass were deemed by the courts to be inadequate,
``arbitrary and capricious,'' and in violation of NEPA. Now,
you have not appealed these judges' decisions as relate to
violations of NEPA; have you?
Ms. Smith. Actually, we are not. We have an appeal on one
of the cases, but we are not disagreeing with the judges'
determination that we were in violation of NEPA.
Mr. Kucinich. Well, APHIS is now preparing an EIS in both
cases, though, is that right?
Ms. Smith. That is correct.
Mr. Kucinich. And I wanted to ask you a question about
APHIS's reaction to those judges' decisions. As you are aware,
in the alfalfa case, Judge Breyer concluded, ``APHIS made no
inquiry into whether those farmers who do not want to grow
genetically engineered alfalfa can in fact protect their crops
from contamination.'' He went on to say neither the EA nor the
FONSI identify a single method that an organic farmer can
employ to protect his crop from being pollinated by a bee that
travels from a nearby genetically engineered seed farm even
assuming the farmer maintains a buffer zone. And Judge Breyer
said, ``Neither the EA nor the FONSI contain any reference to
any material in support of APHIS's conclusion that gene
transmission is highly unlikely to occur with reasonable
quality control.''
Ms. Smith, do you now feel that APHIS had to make such an
inquiry to comply with the National Environmental Policy Act.
Ms. Smith. The Court directed us to do so, so that's
exactly what we are doing, and that's what we have been doing
in all of our regulatory decisions since that time.
Mr. Kucinich. And do you now feel that APHIS has to show
the analysis involved in making the inquiry to comply with
NEPA?
Ms. Smith. Absolutely. One of the realities that we faced
is that we have a staff of scientists that are top notch
experts in terms of science. What we have not historically done
as good a job with is to help them understand how to document
our requirements under NEPA. And so while our scientists have
looked at these issues, have discussed them, we have had much
conversation and dialog and research happen, we have not
adequately documented in this case what we needed to.
Mr. Kucinich. Well, let's go back to Judge Breyer for a
second. I am going to read some more things, see if we can come
to agreement here. Judge Breyer, ``an action which potentially
eliminates or at least greatly reduces the availability of a
particular plant, here nonengineered alfalfa, had a significant
effect on the human environment.'' And he said, ``the
significant impact that requires the preparation of an EIS is
the possibility that the deregulation of Roundup Ready alfalfa
will degrade the human environment by eliminating a farmer's
choice to grow nongenetically engineered alfalfa.'' Does APHIS
now agree that the possibility of genetic contamination causing
a narrowing of farmer choice is a significant impact under the
National Environmental Policy Act?
Ms. Smith. What we are doing is looking at any situation in
which an environmental decision will have a significant
environmental impact and that will also have a related economic
impact, which is what the judge directed us to do.
Mr. Kucinich. So you are saying you basically agree then?
You agree?
Ms. Smith. You are asking, do we agree that there could be
a significant impact of a contamination situation? Is that what
you are asking?
Mr. Kucinich. I will ask it again. I just want to make sure
that we have precision here. Does APHIS agree now that the
possibility of genetic contamination causing a narrowing of
farmer choice is a significant impact under NEPA?
Ms. Smith. What we have to do is look at the environmental
decision, environmental impact, and then look at the economic
impacts associated with that. And so that's what we are doing.
And so you could envision a situation in which that could be
the case.
Mr. Kucinich. But do you agree with that? Do you agree with
Judge Breyer's assessment?
Ms. Smith. You know, since the judge gave us the order, we
are going to do exactly what the judge has told us to do. So we
are looking in that avenue, and we are putting the resources
into making sure that we have done a very thorough
environmental analysis as well as economic analysis for all
aspects of that.
Mr. Kucinich. You haven't appealed that aspect of the
judge's decision.
Ms. Smith. No, we have not.
Mr. Kucinich. OK. Just again, using Breyer's decision to
look at the way you look at these things, he said, ``APHIS
argues in its brief that the extent of any gene transmission is
in any event irrelevant because NEPA requires an agency to
consider physical environmental impacts, not economic or
financial impacts. APHIS overstates the law.'' He goes on to
say the economic effects on the organic and conventional
farmers of the government's deregulation decision are
interrelated with, and indeed a direct result of, the effect of
the physical environment, namely the alteration of a plant
species' DNA through the transmission of a genetically
engineered gene to organic and conventional alfalfa. APHIS was
required to consider those effects in assessing whether the
impact of its proposed action is significant. But its reasons
for concluding that the effect on organic and conventional
farmers is not significant are not convincing. Now, when Judge
Breyer refers to economic effects being interrelated with
environmental impacts and significant, he is quoting from the
National Environmental Policy Act's implementing regulations.
Does APHIS now agree with Judge Breyer that determining the
significance of a proposed action under NEPA requires
considering economic impacts interrelated with environmental
impacts?
Ms. Smith. We do agree that if there are environmental
impacts and economic impacts associated with those, that they
need our full analysis, and we will do so in our NEPA analysis,
whether it is in an environmental assessment or an
environmental impact statement.
Mr. Kucinich. We have just reviewed a number of areas of
Judge Breyer's decision. And it appears that APHIS is ready to
incorporate those judicial rulings into your interpretation of
your NEPA obligations. Is that correct?
Ms. Smith. It is correct that we recognize that where there
is an environmental impact, a significant environmental impact,
that we have to consider the economic impacts related to that,
yes, sir.
Mr. Kucinich. So what are the lessons that you have learned
about NEPA obligations from Judges Breyer and Kennedy?
Ms. Smith. The fundamental thing that we have learned is
that we have to do a better job of documenting the work that we
are doing. In the previous case, it led us to develop a number
of documents to document more precisely whether we need to do a
categorical exclusion or an environmental assessment. And just
in terms of a point of clarification regarding the previous
testimony you heard regarding our documentation we provided
you, the documentation we provided you is not intended in any
way to be our environmental analysis that we conduct, an
environmental assessment or an EIS. That documentation is to
very clearly----
Mr. Kucinich. I am glad you pointed that out.
Ms. Smith [continuing]. Very clearly to help us determine
if that regulatory decision is something that can be
categorically excluded from NEPA, from a full NEPA analysis, or
if it needs an environmental assessment. And so it is just a
start in terms of our just looking at just the categorical
exclusion decision.
Mr. Kucinich. You have a new decision matrix?
Ms. Smith. We have the matrix we gave you, but that is only
in terms of only determining whether a categorical exclusion
applies or if we need to do an environmental assessment, which
would be an alternative to that.
Mr. Kucinich. Since the Breyer and Kennedy decisions, is it
fair to say you have a new decisionmaking matrix?
Ms. Smith. We have strengthened our documentation, that's
correct.
Mr. Kucinich. But it is also--I just, you know, just to
make sure we are going in the right direction here, the
decision--any decision matrix could be calling for minimal
compliance. Are you, in terms of the compliance meter, are you
looking for minimal compliance or are you looking to really
comply fully?
Ms. Smith. Right. I don't want to confuse issues here. The
purpose of these matrices that we have developed, and I think
one has 30-some specific aspects that we are looking at, we
have questions in that matrix to help us make sure that we
consider every aspect that is relevant in terms of a decision
on a categorical exclusion. And in one case, we learned--our
lesson learned from one case is that we had to do a better job
of documenting that something qualifies for a categorical
exclusion. We made changes. We did a good job of that. In the
next case, the judge ruled we did document the categorical
exclusion appropriately, but we failed to document the
exceptions to that categorical exclusion. And so that is the
new matrix that you see that we developed as a result of the
second case.
Mr. Kucinich. Will APHIS broaden its interpretation of
significant impact so it comes into line with the court's
interpretation in Geertson----
Ms. Smith. I think historically we have, and in the EA that
you saw, we took a more closely related to plant pest authority
evaluation of the situation, which is what our regulatory
authority is. What we heard clearly from the judge is that for
any situation in which there is a significant environmental
impact, we have to consider the economic impacts. And so we are
doing that.
Mr. Kucinich. So let's talk about Geertson again. Are you
looking at the economic impact on farmers resulting from
potential contamination?
Ms. Smith. Yes, we are.
Mr. Kucinich. OK.
Ms. Smith. Specifically, I could add, if you are
interested, when we announced the EIS, one of the specific
areas that we announced that we are scoping for is the economic
impacts of Roundup Ready on nonbiotech adopters.
Mr. Kucinich. A nonbiotech----
Ms. Smith. Adopters. So in other words, your organic
farmer, your traditional farmer that is not growing any
biotech.
Mr. Kucinich. Are deregulation decisions of GE plants
inherently likely to have significant environmental impact?
Ms. Smith. That would be based entirely on the nature of
the crop and the trait that has been incorporated into the
crop. And that is why we do a very specific deregulation
decision for each one of those applications.
Mr. Kucinich. I mean, you look at the International Center
case and what Judge Kennedy said, he said he considers the
significance that the size of test plots, the number of test
plots with field tests have in determining environmental
impacts. Logically, wouldn't deregulation decisions which allow
the unrestricted commercial transport of GE crops, thereby
enabling the unlimited planting of GE crops, pose an even
greater environmental impact?
Ms. Smith. That is possible. And we would not make a
deregulation decision unless we determine that crop that is
being proposed was entirely safe for the environment and
agriculture.
Mr. Kucinich. So should proposed deregulations in this--you
know, in these areas require an environmental impact?
Ms. Smith. In September 2004, as the deputy of BRS, I made
a decision that the creeping bentgrass petition application was
such that, due to the nature of the crop, it was necessary for
us to conduct an environmental impact statement.
Mr. Kucinich. As you know, APHIS has prepared a draft
programmatic EIS in connection with its intention to promulgate
new biotech crop regulations. Now, my staff has reviewed the
draft EIS carefully, and we are left wondering if it reflects
any lessons learned from the rebuke that APHIS received from
two Federal courts last year. For instance, take its discussion
of socioeconomic impacts. Discussion of those impacts again
goes to that 10-page appendix at the end of the 310-page
document. And you have already responded to that. Is that----
Ms. Smith. No, you are asking now, why is that information
in an appendix in that document? And I give you two answers for
that. First, you referenced the size of that document. And so
that should give you a sense of the commitment that we took in
terms of the scientific analysis that we conducted to complete
that EIS. We had some challenges, though, and we worked with a
consultant on how to make that document something that would be
very easy for the public to read, because it is very important
for us as a regulatory agency in terms of the public confidence
in the system and in terms of our making sure that we are
complying with NEPA to the spirit of NEPA that document can be
as very transparent and can be read well. And I think what we
heard from Judge Breyer was the recognition that we need to
look at those environmental impacts, but the critical thing for
us to consider is the environmental impacts, and then we are
considering the economic impacts as they relate to the
environment. So that would make sense that the environmental is
the main core of your EIS. One thing, though, that we should
clarify, too, is that Judge Breyer's decision was on a product-
specific EIS as opposed to our programmatic EIS, which is on
our full regulatory system. And I would tell you, we place no
less importance on the analysis wherever it is in the document.
We did all that analysis, conducted that all in a very
comprehensive way over a period of years. And the fact that it
ended up in an appendix was really more of a decision to help
the document be easier to read.
Mr. Kucinich. OK. We have a 310-page document we are
talking about here. There is an assertion, on page 121, ``four
factors were considered in the evaluation of biological
impacts: too negative of an impact; the geographic extent; its
duration and frequency; and the likelihood of its taking
place.'' There was no mention of economic impacts, or take the
fact that apart from the 10-page appendix, there are only five
mentions of the phrase socioeconomic impacts and only 10
mentions of the word contamination. I am just wondering, in
light of Judge Breyer's decision, if economic impacts of
contamination should have been integrated into the body of the
EIS and the analysis of significance and had been discussed
more extensively. It still makes me wonder, did you really get
the message when I don't see it discussed in any extensive
manner?
Ms. Smith. I would say one point is that it is important to
recognize, in order for us to do good analysis, we have to have
enough specificity in what we are analyzing----
Mr. Kucinich. Indeed.
Ms. Smith [continuing]. To be able to project. So where we
are going to have the ability to have much more specificity is
going to be on a crop-specific EIS as opposed to a
programmatic. In the programmatic EIS, we have to look very
broadly at the whole regulatory system and look very broadly at
the kinds of issues we are evaluating. And then what we will be
doing is using this as the basis to tier to very specific crop-
based analysis. In addition, it is important to recognize that
when we issue our proposed rule, which we hope to do before too
long, there will be a separate very specific economic analysis
that will associate, be associated with the issuance of that
rule.
Mr. Kucinich. When you say separate----
Ms. Smith. We are required to publish at the same time an
economic analysis as one of the types of analysis that
accompany a proposed regulation.
Mr. Kucinich. Well, thank you. As you know, the USDA has
prepared a draft programmatic environmental impact statement
pursuant to its plan to rewrite its regulations for GE
organisms. In the future, when USDA is operating under new
regulations, you will again face many petitions for permitting
field trials and for the deregulation of GE crops. Does
anything in your proposed regulations change the kinds of
decisions that are subject to preparing an EA or an EIS?
Ms. Smith. Does the--do our new regulation changes----
Mr. Kucinich. Anything in your proposed regulations change
the kinds of decisions that are subject to either an EA or an
EIS?
Ms. Smith. We have not finalized the regulation yet, so we
can't speak to exactly what is in it.
Mr. Kucinich. OK.
Ms. Smith. But what we will have is a significant amount of
information, a broader regulatory system, one that is based on
tiers, a multi-tiered risk-based permitting system. And so the
kinds of decisions, depending upon what tier you are in, will
be what will determine--they will differ depending upon what
the crop is that you are looking at. So if you are looking at a
crop that has more risk, potential risk, associated with it or
less familiarity, then in those cases, it is more likely that
we will be conducting a higher level of analysis.
Mr. Kucinich. You know, what we are interested in as a
subcommittee is under what circumstances you will or would
assert that your preparation for a programmatic EIS would
relieve APHIS of the requirement to prepare an EA or an EIS.
Ms. Smith. Oh, no, it would not be our intention to
develop--make these regulation changes to do anything that
would be contrary to CEQ regulations or our own NEPA-
implementing regulations, whether it is developing this EIS and
regulations or others.
Mr. Kucinich. Thank you. I would like to talk about
isolation distances.
Ms. Smith. OK.
Mr. Kucinich. In connection with this, I have a letter that
I am going to submit for the record without objection. It is a
memorandum to USDA APHIS Regulatory Analysis and Development.
Just for the purposes of the staff, it is dated May 31, 2005.
Can we make sure they have a copy of that? Mr. Gregoire, would
the staff make sure Mr. Gregoire has a copy of this so you know
what we are putting in the record in case you have anything
that you want to comment on it.
Ms. Smith, as you know, Federal, State and private rice
research programs operate a specialized nursery called the Rice
Quarantine Nursery near Plymouth, North Carolina, where
potentially useful traits are taken from rights germplasm from
foreign sources. This activity is obviously sensitive. The
germplasm in soil at the nursery could become contaminated,
and/or an unauthorized release from the nursery could cause a
very serious contamination of the U.S. commercial rice supply.
For these reasons, the nursery was located 650 miles east of
any commercially produced rice crop. The location was selected,
in other words, to isolate the nursery spatially from
commercial rice production to prevent contamination.
In 2005, Ventria Bioscience applied to APHIS to field test
genetically engineered pharmaceutical rice on a large scale in
close proximity to the rice quarantine nursery. APHIS prepared
an environmental assessment of the application and concluded
there would be no significant impact and approved the
application. Now, right here, this document that I will submit
for the record is a memorandum protesting the deficiencies of
the EA. It comes from a USDA research leader with the
Agricultural Research Plant Science Research Unit. So, again,
without objection. Specifically, this memorandum alerted APHIS
that its EA had failed to consider the potential of, one,
Ventria's field tests introducing pathogens that would imperil
the Rice Quarantine Nursery; and two, Ventria's field tests
posed a small risk that stray rice pollen could be carried by
wind currents into the Rice Quarantine Nursery. Could you tell
us, if you recall, how did APHIS regard the concerns raised in
this memorandum?
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Ms. Smith. I know we took these concerns seriously. I
remember us talking about it within the staff. I remember one
of our division directors talking with Mr. Marshall, contacting
him about the situation. I can't tell you, I will have to get
information back to you on how we resolved this issue.
Mr. Kucinich. That would be great. I am wondering if you
performed additional analysis in the areas identified as
deficient. I want to know if you prepared a full blown
environmental impact statement. I want to know what the
evidence that APHIS took a serious look at the environmental
economic impacts identified in the memorandum. And what I am
actually asking for is the entire record of that communication
to be delivered to the subcommittee so that we can see how that
was handled. I would appreciate your cooperation on that.
Ms. Smith. OK. Sure. I will tell you that this year we are
in the process right now of doing an environmental assessment
for that same crop in that same area. So we can provide you
with that as well.
Mr. Kucinich. That would be very helpful. And your
cooperation is appreciated.
Ms. Smith. Sure.
Mr. Kucinich. As you know, APHIS considers applications to
release pharmaceutical and industrial crops through its permit
process. Pharmaceutical crops are genetically engineered to
produce a drug or a component of a drug for the pharmaceutical
industry. That review process is more rigorous than the
notification process, reflecting the greater risk posed by
pharmaceutical crops. What would be the likely consequences to
farmers if a contamination event occurred involving a
pharmaceutical crop?
Ms. Smith. Let me tell you a little bit about, there was a
situation that occurred previously involving a company, and our
inspectors identified for that company that problem that
happened. The company had three different problems that came up
where they didn't fully comply with our requirements. And in
each case, our inspectors were on hand to identify for the
company that they were--they had created a problem and that
they would have to address it. In this situation, despite the
fact that our inspectors found the problems, told them about
the problems--we gave them clear information on how to address
the problems. It created a situation in which some soybeans
were contaminated as a result. We took very quick action. We
stopped the movement of those soybeans in place so that they
didn't move into the food supply. But as a result, we had been
in the process of putting together a variety of--a very good
evaluation of how we should be regulating field testing of
pharmaceutical and industrial types of crops. And we came out
with both a new regulation that required our--new requirements
to apply to all crops that contained industrial genes. And we
also put new requirements in place that year where we
significantly increased both our oversight as well as the
requirements on the company. And so an example of the oversight
we put in place for us is, while low-risk crops are--a
percentage of low-risk crops are personally inspected by APHIS
inspectors, these that we have less familiarity with, so they
could potentially have more risk associated, we made a decision
that for each of these pharmaceutical field trials that we
would inspect seven times or more for each of these
inspections. And the way we came up with those inspections was
that we thought about what each of the critical control points
or the critical decision points were in that research they were
conducting.
Mr. Kucinich. Is this the area--excuse me if you had
mentioned this, because I got paged, and we have a vote come
up.
Ms. Smith. OK.
Mr. Kucinich. Is this the case where APHIS had to buy about
half a million bushels of soybeans in order to keep them from
going to market?
Ms. Smith. This is the case where the company didn't have
enough assets to immediately cover the cost of the destruction
of those soybeans. And so, in order to hold them accountable so
that they had to pay close to $4 million in expenses to destroy
them, we paid for the cost first, and then, as we do in our
types of plant health situations, they entered into a contract
with us to repay us back that money.
Mr. Kucinich. How were they destroyed?
Ms. Smith. How were they destroyed? Well, we took them to--
there was a local facility where they were burned in like an
energy facility. And APHIS inspectors oversaw the whole process
to make sure that is what happened to them. All of those
soybeans were burned.
Mr. Kucinich. Did anyone do an environmental report on the
destruction of half a million bushels of pharmaceutical crops?
Ms. Smith. I remember that we were in consultation with the
Environmental Protection Agency, talking about what was
acceptable from their perspective in terms of disposal.
Mr. Kucinich. Did they give you any documentation? I mean,
is there anything documented----
Ms. Smith. I will have to check and see.
Mr. Kucinich. Is there any documentation on the exchange
between you and the EPA on the destruction of these half a
million bushels? I would like to see that.
Ms. Smith. All right.
Mr. Kucinich. The committee would like that. Thank you.
And if this is the same case, tell me. Is this the
Inspector General found a pharmaceutical crop growing as
volunteers in a plot of conventional soybeans, and then there
was another State where he found that a soybean field had been
harvested before the pharmaceutical crop volunteers had been
removed from the field?
Ms. Smith. This is the same case, but it wasn't the
Inspector General that found that. Those were APHIS inspectors
who found both of those problems and alerted the company to
them.
Mr. Kucinich. Staff just told me that APHIS inspectors may
have had company on their inspection from the Inspector
General's Office. It is not something--it is something I have
just been told. Take it for what it is worth. It is just that
the Inspector General apparently has had some kind of a role
here. What would have happened, do you suppose, to the U.S.
soybean industry if those pharmaceutical crops had been
detected in the marketplace?
Ms. Smith. Well, I imagine it would have been problematic,
which is why we took such immediate action. I personally called
the CEO of that company within minutes of us learning that they
had harvested those and sent them on to a grain elevator. And
that allowed us to stop them before they had a chance to move.
Mr. Kucinich. What were those pharmaceutical crops? Do you
remember what were they? What were they growing?
Ms. Smith. I will have to get that back to you. I don't
remember now what the were.
Mr. Kucinich. I would like to see that.
Ms. Smith. OK.
Mr. Kucinich. And how many instances do requests to--hold
on--how many times do you end up reviewing pharmaceutical crop
issues? Does that happen frequently? Is this like more of a
concern of APHIS now? Are you getting more and more
pharmaceutical crop inquiries and you have to do more testing?
What is happening with that?
Ms. Smith. Actually, we could get you the numbers, but what
happened as a result of this particular event, this technology
was moving forward at a--it was really getting started in terms
of moving forward, this technology of using plants to develop
pharmaceutical or industrial proteins. As a result of the
problem that was associated with this company, and I think as
part of the very serious action that we took, this company
actually eventually went out of business. And that gave, I
think, a very clear message to the industry that this
technology needed to be addressed very carefully. In addition,
the requirements that we have put in place have slowed the
technology as well, because--and what we have talked about with
the technology providers is, this is not just your average
biotech; this is very different. We need to have extreme
isolations, very stringent, extreme measures in place, and they
need to approach this very differently, even to the point of
what kinds of farmers they offer to grow these kind of crops.
Mr. Kucinich. I am glad to hear that you are trying to keep
apace of this very specific technology. And what the
subcommittee is going to do is to be working with your staff so
that we can be able to determine who is applying for the
permission to grow what kind of pharmaceutical crops, where
they are being grown, what kind of permission, when the
permission was granted, and looking at any studies that may
exist of any complaints that may have come from farmers, you
know, a distance to see if it is possible that--to see if the
isolation has kept the crop intact.
Ms. Smith. Sure.
Mr. Kucinich. Because, you know, we are talking about
pollination by insects, by wind, whatever. I just want you to
know we are going to move toward that a little bit more. I want
to thank you for your testimony. Mr. Issa has questions that he
is submitting for the record. The subcommittee will give to you
some followup questions. And we will be in touch on this. I
want to thank you, Ms. Smith, for the forthcoming nature of
your presentation. It is refreshing and much appreciated. So we
will continue this dialog with your agency. And I want to thank
all the members of your staff, Mr. Gregoire, for their presence
here. We will continue our interest in this.
And at this point, this committee stands adjourned.
Ms. Smith. Thank you, sir.
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[Whereupon, at 5:12 p.m., the subcommittee was adjourned.]
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