Tennessee Department Of Agriculture's Mark Powell On Why They Adopt Copyrighted AAFCO Material Into Their State Law
Below are notes from a September 9th, 2020 phone call I had with Mark Powell of the Tennessee Department Of Agriculture. I called Mr. Powell to get an understanding as to what Tennessee considers to be actual regulations in their state, and if they're adapting copyrighted AAFCO material into their law as well.
Kohl: I'm trying to understand how I can see pet food definitions in the state of Tennessee. I can't find the information on your website. So, I'm trying to see what the feed definitions are for the state of Tennessee for pet food and animal feed.
Mark Powell TN Department Of Agriculture: We have adopted the AAFCO feed ingredients.
Kohl: What does that mean, adopted?
Mark Powell TN Department Of Agriculture: Tennessee is a member of the Association Of American Feed Control Officials. They produce an official publication which contains rules and regulations. They go through a lengthy process to adopt feed ingredients and we just adopt those into our feed law.
Kohl: So, those are actually laws in your state?
Mark Powell TN: Yes
Kohl: Shouldn't those be posted publicly on your website though?
Mark Powell TN: It's in the Tennessee Rules and Regulations; feed rules and regulations. The wording, as far as the fact that we've adopted them.
Kohl: My question is different. The regulations you adopted into the law, I'm not seeing those feed definitions that are now regulations posted.
Mark Powell TN: The fact that we've adopted those is what is posted in the law.
Kohl: You've adopted the feed definitions of AAFCO, so they're now law in your state. So, all of that should be posted publicly.
Mark Powell TN: They're not. What are you trying to find out.
Kohl: The feed definitions that are now law in your state, where are they now posted publicly?
Mark Powell TN: I don't know where in the regulations they are. I do know that in the regulations, it says we adopted those.
Kohl: And that's not confusing. The confusing thing is you adopted feed definitions, and they're now your law. But those are not published anywhere.
Mark Powell TN: No, they're not. What do you want me to do now?
Kohl: Well, those are law. So, they should be published somewhere.
Mark Powell TN: Sir, I don't know what you're getting at. Do you have a feed ingredient question?
Kohl: Why are you guys adopting copyrighted material into your state law?
Mark Powell TN: I don't understand what you're saying.
Kohl: I suspect you do understand what I'm talking about in reference to adopting AAFCO material, which is not posted anywhere for citizens to access freely on your website after you adopt the material.
Mark Powell TN: I don't have a clue what you're talking about. You're being very vague.
Kohl: I'm not, sir. I can rephrase for you since you're confused. I'm happy to help you. You stated AAFCO. TN adopts those ingredients. So once you adopt those into law, they're your law. That's what you stated to me.
Mark Powell TN: Ok.
Kohl: And those are not published anywhere on your site for citizens to freely access. So in order for me to get a full list of all those regulations you adopted as your law, what do I do?
Mark Powell TN: No one has ever asked for every ingredient.
Kohl: Well, how do I find out if every ingredient went through proper rulemaking. Or do you guys just do things in bulk and not present it to the public? How does that process work?
Mark Powell TN: All I know is the wording is in our feed rules and feed laws.
Kohl: I'm asking for every single ingredient and the definition for the ingredient that is now law in your state. I understand the AAFCO material that you adopted to be copyrighted.
Mark Powell TN: I don't know that.
Kohl: I do.
Mark Powell TN: I don't know whether it's copyrighted or not.
Kohl: It is. And just confirm with me your name so I may follow up with you.
Mark Powell TN: Mark Powell.
Kohl: When you adopt this AAFCO stuff into your law, what do you guys do? Do you have public hearings? Do you put each ingredient up for public comment? How does that work?
Mark Powell TN: It would be like any other law.
Kohl: How do I find that? The history of that? I am not aware of that being done.
Mark Powell TN: It was done many years ago.
Kohl: Someone from the TN department of ag still goes to AAFCO meetings regularly.
Mark Powell TN: Yes.
Kohl: Would that be you?
Mark Powell TN: There's two or three of us usually.
Kohl: So let's take for example if new feed ingredients are made at AAFCO, is that automatically considered to be your law then? If it's passed there?
Mark Powell TN: Yes.
Kohl: But you didn't put it through proper rulemaking in your individual state.
Mark Powell TN: Like I said, we adopt those rules.
Kohl: So in the past few meetings when new ingredients are approved at AAFCO, you don't independently go back to your state and propose the ingredient as a new rule?
Mark Powell TN: No. And that's probably the reason why...so we don't have to constantly be going in and updating and changing the rules.
Kohl: How is that legal?
Mark Powell TN: I don't know.
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