Untangling red tape

12/17/2013 @ 12:47pm

In New York State, dairy farms are preparing for unannounced inspections by the Occupational Safety and Health Administration (OSHA) in 2014. In Washington, D.C., Farm Bureau lobbyist Don Parrish watches to see how EPA’s interpretation of Clean Water Act rules will affect farmers around nearby Chesapeake Bay and, ultimately, through the Corn Belt. The National Association of State Departments of Agriculture (NASDA) checks to see if a new Food Safety Modernization Act aimed at keeping lettuce and spinach safe will eventually hit farmers who grow feed grains.

Farmers once looked to Washington for help through disasters and lean times. USDA will still do that, in a role that seems to be shrinking as Congress tries to finish a farm bill. Yet in 2014 and years that follow, Washington may stand more for red tape.

The food safety law is an example of how public demand pushes regulations and why you need to learn some of those rules – if not today, as a New Year’s resolution for 2014.

After years of deadly food outbreaks, the food safety bill sailed through Congress in about a year and a half, becoming law in early 2011. It gives the Food and Drug Administration broad authority to regulate produce farms. FDA has been dribbling out its rules, for produce first, with a feed grains proposal just out this fall. Congress’ good idea of making food safer has morphed into a farmer nightmare in the executive branch. Last October, the National Sustainable Agriculture Coalition said proposed rules for produce could squeeze small and midsize farms out of the market. Large farms, too, are affected. At the American Farm Bureau, lobbyist Kelli Ludlum says those irrigating with surface water will have to meet recreational quality standards and may have to test more often for even relatively harmless strains of E. coli bacteria. “There are some parts that are not workable with growing food,” she says.

At NASDA in Washington, staffer Bob Ehart sees long-term issues for feed-grain rules.

FDA’s feed rule applies to makers of pet foods and livestock feed, but it exempts “farms that manufacture foods for their own animals” and grain warehouses that don’t make feed. Feed manufacturers must have plans to reduce or to prevent hazards like contamination.

Ehart says feed makers could eventually push some requirements back to their suppliers. “I don’t think it will be long before the feed industry starts to ask the same questions of those who sell grain to them.” This effect could take years, though. The rule won’t start until 2015 at the earliest and will be phased in over three years for smaller feed makers.

EPA’s new Clean Water Act rules are imminent. Early next year, “we may be looking at regulations being proposed to define waterways of the U.S. extremely broadly,” says Farm Bureau’s Parrish. Even though normal farming practices and irrigation are exempt from limits on nutrients entering streams, EPA can cap state levels of pollution, indirectly putting more pressure on crop farming. That’s happening in the Chesapeake Bay region. Iowa has a voluntary nutrient-reduction plan. Parrish expects tougher rules, perhaps this year, in other Corn Belt states.

OSHA could be more prominent in 2014, as well.

Recently, a New York dairy program warned farms with 10 employees or more to be ready for surprise inspections. Ten employees is the threshold for keeping safety records; OSHA is proposing 20 as a threshold for filing annual reports on a website.

Yet, any employer has the potential of inspections, even fines, if your workplace has a serious accident resulting in death, says Michelle Mellendorf, an attorney with the FamilyFarms Group in Brighton, Illinois. [Contact her by calling 618/372-7400 or by emailing]

Under the Occupational Safety and Health Act’s general-duty clause, “If you have one employee or 1,000, you have a duty to keep your workplace safe,” she says.

The law also has a separate section for agriculture. Some of its rules, such as keeping PTO shafts covered, are sensible and important. The good intentions of any law can bring headaches and expense for farmers who don’t have time to wade through pages of regulations.

“I really think OSHA is going to become a much bigger deal as farms get larger,” says Mellendorf, who spends a fair amount of time helping Family Farms Group clients with OSHA.

Getting good advice could be a challenge. Many attorneys versed in farm taxation may not have worked in regulatory issues. “If I were a farmer, I might start with my supplier,” Mellendorf suggests.

Your co-op and others are a few paces ahead of you into the red tape. They may be able to direct you to attorneys or advisers. I plan to revisit these subjects in more depth, as well.