WASHINGTON, Oct. 2, 2017 - Don’t substitute guidance for rulemaking, and get federal agencies to work better together, USDA Secretary Sonny Perdue was told at a regulatory reform listening session held in the department’s Whitten building Monday.

As it happens, those comments dovetailed nicely with those made by Perdue and senior advisor Rebeckah Adcock, who is serving as the department’s regulatory reform officer.

Adcock said the issue of having guidance substitute for notice-and-comment rulemaking is not a major one at USDA but the department still wants to “avoid policy by guidance.” And Perdue said he and Interior Secretary Ryan Zinke have been talking about setting up “one-stop-shops” for landowners to get necessary federal permits.

The session, which lasted about an hour, was broadcast live on USDA’s Facebook page, where it can be viewed.

Many, if not all, of the concerns raised at the session have been raised before, sometimes for years. American Farm Bureau Federation senior counsel Danielle Quist urged Perdue to tackle the issue of Prior Converted Cropland regulation, which she said has been implemented in a “very disjointed” fashion by federal agencies. Lands that qualify as PCC are supposed to be exempt from Clean Water Act regulation.

Farmers, she said, are completing projects that have an environmental benefit only to have the Army Corps of Engineers come in “on the back end” with an enforcement action, forcing the grower to “undo everything they just did.”

“There’s a real opportunity for USDA to have a leadership role and once again have a unified federal government policy on how wetlands and Prior Converted Cropland are treated in this country,” Quist said.

The National Grain and Feed Association’s president, Randy Gordon, brought up an issue with the Food and Drug Administration’s implementation of the Food Safety Modernization Act, saying that although the statute is “very clear that raw agricultural commodity handlers are exempt from many of the provisions of FSMA,” FDA has not seen it that way.

Perdue said even when a regulatory issue involves another agency, if it “affects the business of American agriculture,” then USDA wants to hear about it. “We will advocate on your behalf to other agencies,” he said.

Like the Clean Water Act and Endangered Species Act, Perdue said FSMA has the potential to extend into areas beyond the plain language of the statute.

Another issue raised was the so-called GIPSA rule, which Michael Formica, National Pork Producers Council counsel and assistant vice president, domestic affairs, urged Perdue to rescind. Issued by the Grain Inspection, Packers and Stockyards Administration and also called the “farmer fair practices” rule, it is designed to protect livestock producers and poultry growers from unfair practices, but NPPC and the National Cattlemen’s Beef Association are firmly opposed to it, saying it would be a “bonanza” for trial lawyers.

Formica said he was grateful the rule had been delayed until Oct. 18 but “implored” Perdue to rescind it.

National Farmers Union President Roger Johnson, on the other hand, spoke in favor of the rule. “We believe that fair behavior is really important,” Johnson said.

In July, USDA issued a Federal Register notice asking for regulatory reform comments by July 17, 2018, but said it would accept comments in four batches. The first deadline was Sept. 15; the next two are Nov. 14 and Feb. 12. Comments submitted so far can be viewed in the online docket.


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