Five Food and Agriculture Rules Caught Up in Trump's Regulatory Freeze

On Friday, January 21, the Trump Administration implemented a regulatory freeze directing agencies to delay by 60 days all new rules that have yet to be implemented and withdraw any rules that had been sent to, but not yet published, in the Federal Register. Delaying new rules is a pretty standard practice for a new presidential administration and is designed to allow a thorough review of regulations that have not yet gone into effect. What isn't standard, however, is the new Trump administration directive to US Department of Agriculture (USDA) and other federal agencies to enforce a new "two out, one in" regulatory policy requiring them to identify two regulations to be cut in order to make room for each additional new regulation. This is a tall order, considering that regulations can't simply be deleted from the code of federal regulations to be repealed. It's unclear how newly established rules and programs the USDA decides to keep will be implemented once a new secretary of agriculture is sworn in.  However, it is clear that these freezes, delays and restrictions will directly impact the future of several important food and farming initiatives the Obama administration completed in its final days. Below we've outlined a few of these rules and the impact the freeze will have on them.

Farmer Fair Practices Rules (aka GIPSA) 

On December 14, 2016, 95 years after Congress passed the Packers and Stockyards Act - a law designed to end abusive practices in the meatpacking industry - the USDA released the Fair Farmer Practices Rules which finally make key parts of the law enforceable. These three rules, also known as the Grain Inspection Packers and Stockyards Act (GIPSA) rules for the department in charge of enforcing them, are amongst the many delayed rules at USDA. When (and if) implemented, the GIPSA rules will provide important protections for contract farmers working in the poultry and livestock industry against unfair and anticompetitive practices, including: 

  • Locking farmers into a tournament payment system that pits them against one another, guaranteeing that half will always lose.
  • No protections from retaliation for farmers that speak out against abuses or seek to improve their working conditions.
  • Requiring farmers to demonstrate that an unfair, deceptive, or abusive practice harms the entire livestock market to prove a violation of the Packers and Stockyards Act. 

Since 2010, when the USDA originally issued the proposed rules, lobbyists from big meat and poultry corporations have kept the GISPA rules tied up through legislative riders to the annual agriculture appropriations bills.  During this time period, the meat and poultry processing industries have succeeded in further consolidating their assets and power. Greater consolidation in the meat industry has allowed poultry companies to drive up prices for consumers, limit supply and undercut farmer's wages, eating away at farmers' incomes and hurting rural economies.

There were two different types of rules put forward to enforce GIPSA: an interim final rule and two proposed rules. Even though interim final rules are enforceable as soon as they are published in the Federal Register (where all regulations are published) the USDA still takes public comments and feedback on them. USDA is even able change interim final rules after their comment period is over, but they would have to publish yet another interim final rule to do it.

The GIPSA interim final rule released in December 2016 prevents poultry and livestock farmers from having to prove damages to their whole industry when they're in court. It was originally scheduled to take effect February 21st. Now, according to an announcement posted February 6th on the Federal Register, the USDA will continue to take public comment on it until March 24 but the effective date of the rule has been delayed until April 22nd.

USDA also will take public comment on the two other related proposed rules for 60 days. Those rules address the poultry grower tournament system, unfair practices and undue preference violations. Once the comment period is over on the proposed rules, the USDA will have to address the public comments they receive on it, make changes to it and publish a final rule if/when they want to enforce it.

GMO Labeling 

In July 2016, President Obama signed the first national GMO labeling bill (S. 764 ) into law, preempting and preventing the enforcement of any existing and future state-level GMO labeling bills. S. 764 marked the end of many years of campaigning and lobbying efforts by the food and agriculture industries to get Congress to preempt state labeling efforts - and jumpstarted the next phase in the GMO labeling fight, which will take place at the USDA.

Before Obama left office, the USDA tried to get the new rules outlining how the GMO labeling rule will be enforced published in the Federal Register to make it available for public comment. However, USDA did not meet these goals, and now due to the regulatory freeze, the proposed GMO labeling regulations may have to be withdrawn. The regulatory freeze order could also push back the time line on a USDA study slated to be completed this year on the effectiveness of electronic labels such as QR codes to convey info about GMOs to consumers. Most importantly, however, is the fact that since the federal GMO labeling prevents states from passing their own GMO labeling laws and the new regulatory freeze prevents the federal law from being implemented, consumers could be faced with a situation where no GMO labeling laws on the state or federal level are enacted for the foreseeable future.  

Organic Checkoff 

On January 17th, the USDA opened a comment period on a proposal intended to help convince consumers to buy more organic food in the US. Modeled on similar programs for promoting beef,milk, pork and eggs (and which funded advertisements like the famous "Got Milk?" campaign), the proposed organic checkoff program would work by pooling money from organic farmers, handlers and processors to promote the sector, educate consumers and conduct research on organic production methods. The Organic Trade Association estimates the program could bring in more than $30 million annually to promote organic food. Supporters of the program say that demand for US organic products is much higher than supply due to the fact that the process for transitioning a farm over to organic production is complicated and expensive. In addition, supporters point to research showing that consumers are confused about the true meaning and value of organic labeling and certification standards. The proposal is intended to address those issues. Those opposed to the checkoff program, including some organic farm operators, consider it a tax on their operations.

Despite the fact that the Federal Register (regulations.gov) still says that the public is only able to submit comments on the proposed organic checkoff rules until midnight on March 20th, now that the rule has been delayed by 60 days under the regulatory freeze, comments on the proposed rule have been extended to May 20th. According to Melody Mayer of the UNFI Foundation, after the end of the extended comment period, USDA will not be obliged to take further action. Thus, it is unclear if and when this rule will be finalized.

USDA Organic Animal Welfare Standards

After decades of conversations between the Organic Trade Association, animal welfare organizations and consumer groups, on January 19th the USDA published its final rule to enhance Certified Organic animal welfare practices at farms in the US. Called the Organic Livestock and Poultry Practices, the new rules are intended to ensure that farmers use production practices that support the well-being and natural behavior of organically raised animals. The rule includes requirements such as providing minimum indoor and outdoor space for raising organic chickens, providing outdoor access that includes soil and vegetation and prohibiting physical alterations like de-beaking chickens or docking cows' tails. While the rule doesn't address all of the concerns raised by animal welfare advocates, it does at least raise and clarify several standards. Because the rule was printed in the Federal Register, it is now enforceable. However, with the administration's 60-day delay it won't take effect until May 19th ofthis year, and full implementation of the rule will take five years.

USDA Organic Label for Hydroponics? 

Back in 2010, the National Organic Standards Board (NOSB), an advisory body to the US Department of Agriculture, recommended that hydroponic systems are ineligible for organic certification because the produce does not grow in soil. Hydroponic systems, in which plants are grown in recirculating water, can have many benefits, depending on design and location, including high yields and less land, water, fossil fuel and fertilizer use. Despite these nods towards sustainability, many soil-based organic farmers and their supporters have come out strongly against USDA organic certification for hydroponics, saying that soil is the basis for organic farming. Hydroponic supporters say that the Organic Foods Production Act doesn't require soil in organic farming; rather, it says that organic farming practices either enrich soil or do not harm it. Due to the way USDA Organic certification works, some third-party agencies have gone ahead and certified a few dozen hydroponic operations with the organic label despite the NOSB recommendation. As you might imagine, both side of the debate have called for clarification from the USDA.

At its November 2016 meeting, the NOSB was expected to make a final decision about whether it would recommend that the USDA allow hydroponic systems to earn organic certification; however, it deferred making that decision until its upcoming meeting in April. The NOSB is purely an advisory board, so its final recommendation may, or may not, lead to regulatory changes by the USDA's National Organic Program. Since any change will have to go through a rulemaking process, the Trump administration's regulatory policies might mean that a resolution to the debate over organic certification for hydroponics could be deferred for quite some time.

 

Image "The Oval Office" by Joe Shoe on Flickr used under a Creative Commons Attribution-NoDerivs 2.0 Generic license.

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