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Trump Administration Disappoints Farmer Advocates with Last-Minute Rulemaking

Amid the recent crush of historic news, you may have missed this additional departing shot from the Trump administration. President Trump’s Department of Agriculture (USDA) quietly finalized controversial rules [[link removed]] last month that will give corporate meatpackers even more power to abuse livestock farmers.

For more than a decade [[link removed]], farmer advocates have urged the USDA to update the 1921 Packers and Stockyards Act in order to better protect livestock farmers from retaliation, manipulation, and other abusive tactics of dominant meatpackers. Some limited reforms were enacted during the waning days of the Obama administration. But the Trump administration reversed even those and has now replaced them with narrow and industry-friendly rules that will leave farmers with little recourse if they are abused by meatpackers.

“There’s nothing in there, that I can see, that is going to help a contract grower suffering from … unbridled exercise of authority and power over them by their integrator,” says Tyler Whitley, manager of the contract agriculture reform program for Rural Advancement Foundation International-USA.

Highly consolidated meatpackers have recently come under fire for colluding to raise prices [[link removed]] and failing to protect their workers [[link removed]] from contracting COVID-19. But these powerful packers also have a history of tightly controlling [[link removed]] and cheating livestock farmers. At federal hearings [[link removed]] and in numerous investigations, livestock farmers have shared stories of packers targeting Black farmers [[link removed]] and farmers that speak to press [[link removed]] or join growers’ associations [[link removed]] by withholding feed [[link removed]], delivering sick birds [[link removed]], or forcing arbitrary and costly equipment upgrades [[link removed]].

The Packers and Stockyards Act (PSA) outlawed much of this behavior and established fair terms of trade in the industry, but decades of poor court rulings [[link removed]] have gutted farmers’ ability to bring cases under the act. In 2010, the Obama administration put forth a broad set of rules [[link removed]] to redefine unfair conduct in livestock markets and give farmers greater grounds to sue meatpackers for PSA violations, but Congress blocked the implementation [[link removed]] of the most meaningful parts of this proposal. USDA posted watered-down proposals [[link removed]] in the final days of the Obama administration, but these rules were swiftly discarded [[link removed]] and withdrawn [[link removed]] by the Trump administration.

This left a 2008 congressional mandate to amend the PSA partially unfulfilled. Specifically, Congress directed USDA to create new criteria for identifying when meatpackers unduly or unreasonably give preferences to some farmers over others. After facing a legal challenge [[link removed]], the Trump administration fulfilled the mandate with new criteria published in January 2020 [[link removed]] and finalized last month [[link removed]].

But the rules provide huge loopholes that abusive meatpackers can take advantage of. Specifically, if a packer can justify differences in farmer treatment as a “cost savings” or a “reasonable business decision” then they would not violate the law, according to these criteria.

“This rule [is] really flipped, it has nothing to do with the producer,” says Joe Maxwell, President of Family Farm Action. “It sets up criteria as a safe haven for how monopolies can operate within the parameters of the Packers and Stockyards Act.”

For instance, critics worry that packers will be able to justify discriminatory behavior, such as offering better business terms to larger producers, as a reasonable business decision. “I have literally had executives tell me, ‘I know we’re driving farmers off the land, but if Cargill is doing it, I’ve almost got to do it,’” Maxwell said. “It’s unreasonable for them not to follow that pattern of abuse to the producer.”

The rules also omit Obama-era language that ensured meatpackers could not treat farmers differently if they joined a growers’ association or spoke to the press, nor could they give preferences to farmers based on their race, national origin, sexual orientation, political beliefs, religion, age, or disability. Trump’s USDA argued [[link removed]] that this language was not necessary because “existing law prohibits retaliation and racial discrimination,” but Whitley argues this language is worth including in the PSA, given the prevalence of discrimination in the industry.

“We’ve heard time and time again from female growers, from growers of color, and from immigrant growers how they have been treated differently from white male growers,” Whitley says. “When you omit [anti-discrimination language] and you give the industry justification for their bad actions, it makes it even more difficult for farmers to seek justice.”

Looking ahead, advocates hope the Biden administration will override these rules and enact meaningful PSA reform that gives farmers greater legal ground to challenge meatpacker abuse. However, Whitley says USDA will need to begin a new rulemaking process to do so because the Trump administration’s ruling will be finalized before Biden takes office. Farmer advocates are also [[link removed]] worried [[link removed]] that Biden’s prospective USDA head, Tom Vilsack, won’t deliver strong reforms based on his record of capitulating to agribusiness [[link removed]] when he served as Obama’s agriculture secretary. Still, both Maxwell and Whitley expressed hope.

“I think that, for a lot of farmer advocates, we’d wished [Vilsack had] done more, however, … I am cautiously optimistic. He’s extremely familiar with these issues,” says Whitley. “This administration could give him an opportunity at redemption.”

Find and share this story originally published on [[link removed]] Food & Power [[link removed]] . [[link removed]]

What We're Reading

Updated every five years, the latest edition of the USDA’s “ Dietary Guidelines for Americans [[link removed]]” ignored a scientific advisory committee’s recommendation to encourage lower sugar and alcohol consumption. ( The New York Times [[link removed]])

In a win for farmworkers, a U.S. District Judge blocked a recent Department of Labor rule that would have suppressed wages across the industry. ( Lexis-Nexis [[link removed]])

The regenerative agriculture movement is facing criticism for appropriating Indigenous farming techniques while largely sidelining people of color and issues of racial justice. ( Civil Eats [[link removed]])

About the Open Markets Institute

The Open Markets Institute promotes political, industrial, economic, and environmental resilience. We do so by documenting and clarifying the dangers of extreme consolidation, and by fostering discussions of ways to reestablish America’s political economy on a more stable and fair foundation.

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Written by Claire Kelloway

Edited by Phil Longman

Open Markets Institute

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