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Implementing the Farm Bill will be a challenge

Commentary.

The pain in the rear that has been the evolving Farm Bill for three years didn’t end when President Obama signed the bill at Michigan State University (MSU) last week, which for those not in the know is Senate Ag Committee Chair Debbie Stabenow’s (D, MI) alma mater and the first U.S. land grant university. The lingering, dull ache overcome with that act may actually pale in comparison to sharp pain which may emanate from USDA’s implementation of the 2014 omnibus farm law.

In rereading that paragraph, it sounds as if I’m prejudging, i.e. unsure of, USDA’s ability to get the new programs up and running. Let me say up front, this is not the assumption. The true program experts within USDA are the career folks; they’ve survived other administrations, implemented a fair share of farm bills, so fingers crossed the Administration pays attention to these in-house experts.

What I’m concerned about is the sheer volume of work to implement the new Farm Bill given the massive rewrites of crop, dairy, crop insurance and various other key programs, particularly given some pretty tight deadlines the department faces. And it’s not just the volume of work USDA must accomplish in a relatively narrow time frame, but the fact it must achieve all this under the eagle eye of the industry it regulates, as well as the backseat driving of Congress.

Secretary of Agriculture Tom Vilsack did the first smart thing, beginning virtual implementation of the Farm Bill – in all its variations – some months ago. His second smart act was to put Deputy Secretary Krysta Harden – experienced and wicked smart – in charge of wrangling the department’s implementation working groups. Vilsack will take these collective good works and package them for White House sign-off. His third smart move was to “lend” the White House Domestic Policy Council several key USDA regulators and administrators to ensure the White House folks actually understand what they’re supposed to be approving.

As said, time is not on USDA’s side. The heaviest lift will be getting the two insurance-based income support programs that replace direct payments developed and in place by spring planting time, which for southern producers is just a few weeks away. The department must also factor in cross-compliance with crop insurance and conservation program participation.

The unfinished payment limitation section of the bill will be the true test of USDA’s political and program savvy. While the rewritten limits on how much an individual or couple may receive in federal payments are tucked into the new Farm Bill, the key to how this section operates is the phrase “actively engaged.” A producer or farm couple must demonstrate active engagement in the farm’s operation to qualify for any payments, and in past Farm Bill’s this definition was always fairly loose. Farm Bill conferees, however, couldn’t agree on how to tighten this definition, so they punted the rewrite to USDA. I don’t envy the poor soul charged with coming up with the words that will make Sen. Chuck Grassley (R, IA), the avenging spirit of payment limitations, and the crop and general farm groups happy.

The old menu of dairy support programs disappears and in its place will emerge the new dairy margin insurance program. The deadline for this transformation is September. However, to get from point A to point B, a new insurance product must be developed; base production acres for every individual producer in the new program must be calculated or updated, and the circumstances under which USDA will – “on the very rare occasion” – step in to buy surplus production need to be invented.

And while previous iterations of livestock disaster assistance programs existed in the 2008 Farm Bill, changes by lawmakers to these programs in the 2014 bill may interfere with achieving “expedited” implementation of these disaster assistance programs as requested this week by 24 Senators. Vilsack, following the law, told one publication this week the assistance programs in question, due to the rewrites, require USDA restudy to determine if new rules are needed to implement the programs.

Which brings us to the biggest procedural hurdle facing the department and “quick” Farm Bill implementation: The pesky Administrative Procedures Act (APA). It’s the APA that mandates rulemakings and other federal actions be published in the Federal Register in order to collect much needed public comment, among other things.

Nearly all of the new authorities mentioned above will take extensive rulemaking. At the very least this means 30 days of public comment on every single rule developed, and in some cases this could mean comment periods of 30 days for a notice to the affected parties the government intends to write a rule; 30-45 days for a proposed rule, 45-60 days for a proposed final rule, and in rare cases, as much as 60-90 days on the final rule. Consider this – at this writing, one rule implementing the Food Safety Modernization Act at FDA has been in the “notice/comment” phase for 11 months.