okPORK Requests ODAFF Withdraw Proposed Emergency Rules to Create Poultry House SetbacksMon, 10 Dec 2018 15:34:14 CST
On Tuesday morning, the Oklahoma Board of Agriculture will consider adopting emergency rules to establish setbacks for new poultry house construction in northeastern Oklahoma. These emergency rules regarding setbacks for poultry feeding operations have been met with opposition by agricultural groups filing comments in advance of the meeting.
Two groups, including the Oklahoma Farm Bureau and the Oklahoma Cattlemen's Association have already submitted their comments opposing the emergency rulemaking. Prior to the Monday morning deadline, the Oklahoma Pork Council submitted comments as well to the Oklahoma Department of Agriculture, Food & Forestry on behalf of pork producers in the state.
According to okPORK Executive Director Roy Lee Lindsey, OkPORK is not opposed to the idea of setbacks, but has questions about the considerations described in the proposed emergency rules. He insists that more time is needed to fully evaluate these measures before any regulatory action is taken. Lindsey remarked in his letter that, "...this process has been anything but inclusive and has definitively not been inclusive of all interested parties. OkPORK first saw the rules not five days ago." Lindsey also suggests that ODAFF consult with the State Legislature for further consent.
"We would respectfully request the Department withdraw these rules and seek input from the legislature to address any concerns with setbacks for poultry operations," the letter states.
The complete text of the comments submitted by the Oklahoma Pork Council, is as follows:
December 7, 2018
Mr. Jim Reese, Secretary of Agriculture
Oklahoma Department of Agriculture, Food and Forestry
2800 N. Lincoln Blvd.
Oklahoma City, OK 73105
Re: Proposed Emergency Rules. Chapter 35:17-5-3.1.
Setbacks for New or Expanding Construction of Poultry Barns.
Dear Secretary Reese,
On behalf of Oklahoma’s pork producers and the Oklahoma Pork Council, we are submitting the following comments in opposition to the proposed emergency rules in Chapter 35:17-5-3.1 regarding setbacks for new or expanding construction of poultry barns.
Emergency rules by their very nature indicate the situation they are addressing can only be addressed by immediate action. This is clearly not the case this situation. We believe all rules should be created through a deliberative process that solicits input from all interested parties. While comments are being accepted at this time, this process has been anything but inclusive and has definitively not been inclusive of all interested parties. OkPORK first saw the rules not five days ago.
When the legislature adopted the statutes for registered poultry feeding operations in 1998, they did not include setbacks in those statutes. At the same time, they were adopting graduated setbacks for swine feeding operations demonstrating they were thinking about how setbacks impact neighbors. It is our belief this shows the legislature did not intend to create setbacks for poultry feeding operation.
While the legislature gave the Department the authority to promulgate rules to implement the Poultry Feeding Operations Act, since the legislature did not include setbacks in that Act, we believe adopting setbacks clearly exceeds the authority given to the Department. If we assume the Department has this authority, then we also assume the Department could determine the statutory setbacks in the Swine Feeding Operations Act are not sufficient and could extend those setbacks through emergency rules. That is clearly not what the legislature intended.
When people begin to consider building a new farm or expanding an existing farm, they start by considering the costs of building following the existing regulations. When the rules/regulations then change after the planning and investments have started, our citizens lose their investment. The adoption of setbacks could make some property that has already been purchased no longer suitable for the project. This costs the prospective new business owner significant money and time. Additionally, these rules propose to apply the setbacks to expanding operations. When families originally invested in poultry barns and followed the regulations of the Poultry Feeding Operations Act, they understood there would be opportunities to expand the operation in the future. These proposed rules eliminate the opportunity for many families to expand their operations. Changes that significant should only be done through statute or permanent rules.
OkPORK is not opposed to the idea of setbacks. However, we question the distances being recommended. When reviewing the setbacks in the largest poultry producing states in the country, only one of the top ten states has a setback of the distance being proposed in these rules. Oklahoma should not be establishing setbacks that put our farmers at a disadvantage when compared to other states.
The best solution is to ask the legislature to consider setbacks. That is a deliberative process that allows input from all interested parties. It gives certainty to the regulations emergency rules do not provide. It does not create a situation where the Department establishes a setback and then the legislature changes the setback either by adopting statutes or rejecting the rules. We are willing to work with all stakeholders during a legislative process to review and determine if setbacks are necessary and what distance those setbacks should be.
The Oklahoma Pork Council appreciates the opportunity to comment on the proposed rules. We would respectfully request the Department withdraw these rules and seek input from the legislature to address any concerns with setbacks for poultry operations.
Roy Lee Lindsey, Jr.
okPORK Executive Director
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