California Ag Network

Category: Ag Legislation

  • Irrigation Districts’ Court Victory Reestablishes Certainty for Irrigation Water

    By Lauren D. Bernadett & Michael E. Vergara

    California’s recent drought challenged practically everyone in the state, and those challenges were most acutely felt by farmers and the agricultural industry. While the state and local districts made several significant law and policy changes during the drought, one decision that caused great concern and had significant effects for water providers and users was the State Water Resources Control Board’s (Water Board) issuance of curtailment notices to many water right holders. A recent court victory for several irrigation districts and water agencies (Public Agencies) helped maintain future certainty for water users and right holders.

    The Water Board is the state administrative agency tasked with managing the state’s water resources and regulating its tiered water rights. Although the Water Board disputed the nature of the curtailment notices it issued to water right holders in 2015, the notices clearly instructed right holders to stop diverting water immediately and report to the Water Board when diversions ceased.

    Many of the Public Agencies who received the curtailment notices were initially baffled by the notices. They essentially gave Public Agencies two choices: (1) accept, without a hearing, the Water Board’s stated basis for the directive to stop diverting water, which would harm residential, commercial and agricultural customers; or (2) defy the notice and risk substantial administrative penalties for every day of diversion. Some Public Agencies decided to continue diverting. Some stopped diverting and purchased water from other sources, if available. Others complied and ceased diversions entirely.

    Neither the Public Agencies, nor the water users to whom they supply water, were given the opportunity to conduct a hearing and review the Water Board’s determinations or findings allegedly supporting the directive to cease diverting water immediately. Public input, including the opportunity for the public and regulated community to be heard regarding administrative decisions, is a fundamental tenant of American due process and was completely lacking in the Water Board’s decision to issue the curtailment notices. Instead, the putative evidence supporting the notices was untested, even though the curtailments greatly affected businesses and livelihoods throughout the state.

    Responding to the notices, several Public Agencies filed separate civil lawsuits against the Water Board in different state courts. Shortly after the lawsuits were filed, however, the Water Board initiated administrative enforcement proceedings against two Public Agencies that were pursuing litigation against the Water Board for issuing the curtailment notices—Byron-Bethany Irrigation District (BBID) and the West Side Irrigation District (WSID).

    In the administrative proceedings, several Public Agencies joined BBID and WSID to defend against the Water Board’s allegations that they illegally diverted water after the curtailment notices were issued. In support of the Public Agencies, several farmers from districts that had been curtailed attended the administrative hearing at the Water Board’s office in Sacramento, and they provided heartfelt testimony regarding the devastating impact of the curtailments on their operations, their employees and the communities they serve. After three days, the State Board’s Enforcement Team completed their case in chief, and BBID and WSID moved to dismiss the enforcement action. After considering the motion to dismiss, the Water Board determined that its own staff members failed to present sufficient evidence to carry its prosecutorial burden of proof and dismissed the administrative proceedings.

    This dismissal (an exceedingly rare event before the Water Board) was a tremendous victory for the Public Agencies. Had the Public Agencies lost at this administrative proceeding, BBID would have been subject to a fine of approximately $1.5 million (which was reduced from the $5 million threatened in the Water Board’s Administrative Civil Liability Complaint), and WSID would have been subject to a cease and desist order regarding their water diversions. Prevailing at the administrative level helped maintain some certainty for the water community, but several issues remained for litigation, including whether the Water Board could issue the same curtailments in the future. If so, did it have to give the recipient of the notice an opportunity to be heard?

    To answer these questions, the Public Agencies’ lawsuits against the Water Board were consolidated into one case and were set for trial in January 2018. The allegations against the Water Board were numerous and some were dependent on the outcome of others, so the parties agreed to separate the trial into three phases.

    To date, only the first phase has been tried, but it addressed the most immediate issues impacting water users and right holders.

    The threshold issue in the case is whether the Water Board has jurisdiction under a specific state statute to issue curtailment notices to riparian and pre-1914 appropriative water right holders, the most senior water right holders in the state. The court decided that the Water Board does not have that authority under the circumstances of the case. As a state agency, the Water Board’s actions must be within the scope of authority granted to it by the Legislature. Because the Water Board’s issuance of the curtailment notice was not supported by any state law, it did not have the authority to curtail riparian and pre-1914 water right holders.

    This portion of the decision is crucial to maintaining certainty in the water world. Most, if not all, senior water right holders depend on the predictability and consistency that comes with their senior water rights. Prior to the issuance of the curtailment notices, riparian and pre-1914 water right holders believed they understood the relationship between them, their rights and the Water Board. The issuance of the curtailment notices upset that predictability and undermined trust in the Water Board’s ability to manage water thoughtfully and in accordance with long-standing state law. The part of the court’s decision relating to the Water Board’s jurisdiction confirms for water users and right holders that the state’s actions during the 2015 curtailments were not in conformity with existing law.

    The second primary issue in the Public Agencies’ lawsuit is rooted in due process and questions whether the Water Board improperly deprived the Public Agencies of their opportunity to be heard prior to issuance of the curtailment notices directing immediate cessation of diversions. Again, the court sided with the Public Agencies and determined that the Water Board violated due process requirements and is required to provide those who receive curtailment notices with an opportunity to challenge the notices before imposing curtailments and issuing fines.

    Reinforcing fundamental due process rights is critical because these rights ensure that the government is responsive to its citizens first and foremost, rather than to an overreaching government agenda.

    Because only the first phase of the trial is complete, a final decision will not be issued until the remaining phases are complete. However, this early decision preserving established water rights law provides that, if the Water Board decides to curtail in the future, it must find a different method for implementing curtailments and must provide due process opportunities to water right holders.

     

    Lauren D. Bernadett is an associate with Somach Simmons & Dunn in Sacramento, CA. Bernadett is a natural resources lawyer who has counseled private and public clients through administrative processes and litigation in state and federal courts. She can be reached at lbernadett@somachlaw.com.

     

     

    Michael E. Vergara is a shareholder with Somach Simmons & Dunn in Sacramento. Vergara serves as outside litigation and general counsel to businesses and public entities that have environmental law issues. He can be reached at mvergara@somachlaw.com.

     

  • Mexican Dignitaries and UC 4-H Leadership Honored in the California State Senate

    Sacramento, Calif., (April 10, 2018) – Dignitaries from the Baja California department of agriculture were recognized along with representatives of the UC Agriculture and Natural Resources 4-H program by the California State Senate on April 2 for an agreement the two organizations forged last year to bring 4-H to children across the border.

    In presenting a resolution, Senator Ben Hueso, whose district includes the entire 156-mile border of California with Mexico, said the two countries share an agricultural legacy that has faced growing challenges in recent years, such as drought and climate change.

    “This requires California and Mexico to share resources by providing access to outstanding educational opportunities what will prepare leaders, scientists, educators, entrepreneurs and professionals with the knowledge and commitment to address these very important issues,” Sen. Hueso said to his colleagues in the State Senate.

    The resolution was presented on the California State Senate floor April 2.

    Sen. Hueso said education isn’t the only issue addressed by the 4-H-Mexico accord.

    “This is also a food scarcity issue, addressing food scarcity in our communities and in the world,” he said. “Both Imperial County and Baja California are very big players on the world stage for feeding people.”

    The first group of children in the Mexicali 4-H program learned where their food comes from. A second cohort will undertake a project related to science. The program is a model for establishment of similar 4-H experiences for youth in the rest of Baja California and Mexico.

    California State Senator Ben Hueso (far right) presented a resolution to Mexican dignitaries and UC ANR 4-H leadership. Pictured, left to right front row, are State Senator Jim Beall (15th District), Hortencia Medellin, Lupita Fabregas, Manuel Valladolid Seamanduras and Carlos Orozco. Back row, left to right, are Mark Bell, Claudia Diaz Carrasco and Shannon Horrillo.

    Sen. Hueso introduced the delegation from Mexico, led by Manuel Vallodolid Seamaduras, Secretary of Agriculture Development in the State of Baja California, Mexico (Secretaría de Desarrollo Agropecuario del Estado de México – SEDAGRO), and others in attendance to accept the resolution, including:

    • Hortencia Medellin Acosta, Director of Rural Entrepreneurship, Mexicali, Baja California
    • Carlos Orozco Riesgo, Member of the UC ANR 4-H Multicultural and Community Engagement Advisory Committee, former Undersecretary of SEDAGRO
    • Belem Avendaño Ruiz, Director of Inspection, health and safety SEDAGRO
    • Guillermo Gonzalez Rubio, Director, Livestock health department SEDAGRO
    • Agustin Manuel Velazquez Bustamante, Legal Advisor SEDAGRO
    • Mark Bell, Ph.D., Vice provost, UC Agriculture and Natural Resources
    • Shannon Horrillo, Ph.D., 4-H Youth Development statewide director
    • Lupita Fabregas, Ph.D., 4-H Youth Development assistant director for diversity and expansion
    • Claudia Diaz Carrasco, 4-H Youth Development advisor, Riverside and San Bernardino counties

    “I hope that California, the nation’s leading agriculture producing state, will continue to foster cooperation with Mexico and train future leaders through the launch of the 4-H Club in Mexicali,” Sen. Hueso said. “Please join me in welcoming them to the California State Senate and thanking them for their work in advocacy in helping educate the future.”

  • Farmers Concerned About Potential New Tariffs

    Sacramento, Calif., (April 5, 2018) – China has threatened to impose retaliatory tariffs on American exports following President Trump’s plan to impose tariffs on steel and aluminum imports. Agricultural exports are in the crosshairs, reported Thaddeus Miller in the Merced Sun-Star.

    China’s tariffs would first hit U.S. products such as avocados and nuts with 15 percent duties, the article says.

    “It doesn’t really matter which one it is, whether it’s alfalfa, almonds or wherever it may go,” said David Doll, UC Cooperative Extension advisor in Merced County. “They’re as much political as they are anything else.”

    The potential tariff would have a significant impact on Merced County, where almonds are the second largest commodity valued at $578.5 million in 2016.

    The back and forth trade disputes happening between the U.S. and China make trade less predictable and could lead to disruptions that impact California food and wine producers, even before potential Chinese tariffs go into effect, said Dan Sumner, director of UC Agriculture and Natural Resources’ Agricultural Issues Center in an interview with Julia Mitric of Capital Public Radio.

    If China hits the U.S. with a 15 percent tariff on wine, that’s a problem, Sumner said.

    “We may think California wine is special, but not everybody does,” Sumner said. “And if it’s 15 percent more expensive than it used to be because of the tariff, there’ll be a substantial reduction in how much gets sold in China.”

    Sumner said the proposed tariffs would likely hurt California’s tree nut growers more than its wine producers because a larger proportion of almonds and pistachios are exported.

    In 2016, the value of pistachios sold to China was $530 million, more than three times the value of wine exports to that country, Mitric reported.

  • USDA Releases Final CA FMMO Decision

    Modesto, Calif., (April 4, 2018) – USDA released the long awaited final decision for a California Federal Milk Marketing Order today. The potential differences between the final decision and USDA’s draft recommended decision from February 2017 had been a source of speculation in the industry for many months. Exactly how different was the final decision from the previous version? The answer is: it was exactly the same! Ta-da! Those who attended WUD’s convention got to hear about the basics of USDA’s draft recommendation, which also apply to the final decision. Now that we know this is what we will be looking at for a vote, more analysis will be conducted to determine the potential impact for producers around the state. Specifically, WUD will host three informational sessions on April 16 (Petaluma), April 17 (Modesto) and April 18 (Tulare; details below). The analysis presented will be performed by two independent experts who do not come with any agenda about persuading attendees one way or another. The emphasis will be on education and answering questions. USDA will also host a session in Clovis on April 10 to highlight the mechanics of the program.

    USDA will conduct a referendum among dairy producers to determine whether they support the proposed FMMO; this referendum will be held from April 2, 2018 through May 5, 2018. The FMMO will become effective if approved by two-thirds of the voting producers, or by producers of two-thirds of the milk represented in the voting process.

    Dates and locations for WUD’s meetings to discuss the economic impact of the CA FMMO:

    • Monday April 16th 10am Sonoma County Farm Bureau (3589 Westwind Blvd, Santa Rosa, CA 95403)
    • Tuesday April 17th 9am Stanislaus County Harvest Hall (3800 Cornucopia Way, Modesto, CA 95358, Training Room Center DE)
    • Wednesday April 18th 10am Tulare Agri-Center, (4500 South Laspina Street, Tulare, CA 93274, Social Hall)

    Refreshments will be served each meeting. RSVP’s are greatly appreciated: molly@westernuniteddairymen.com, or (209)527-6453

  • Never Apologize For Being a Farmer – By Representative Adam Gray

    Sacramento, Calif., (April 4, 2018) – As someone who was born and raised in the Valley, the economic and social values of agriculture are part of who I am. Accountability for our actions is part of our way of life. If you don’t work hard, you don’t get paid. It’s as simple as that.

    Unfortunately, folks in Sacramento don’t always remember the rules of the game. They demonize successful farmers as “Big Ag.” They claim we waste water, forgetting that irrigation is what puts food on their tables. That’s not waste – it’s hard work.

    They want us to make sacrifices they would never ask of other industries, and they want us to make them without any of the help they provide to other industries. When Hollywood started filming more of its movies outside of California, the Legislature provided hundreds of millions of dollars worth of incentives to bring them back.

    I once asked if we could do something similar for the dairy industry, which is being forced to either consolidate or leave the state. My proposal went nowhere.

    Farmers in the Valley know the truth, but even we are guilty of sometimes buying into Sacramento’s untrue narrative. When now-Senator Kamala Harris was running for office, she came to Modesto to meet and discuss agricultural issues at a round-table forum. As local farmers introduced themselves, each one qualified their success by referring to their operations as “small, family farms” even though many were large operations.

    When it was my turn, I felt compelled to share an observation with the Senator: Valley farmers feel the need to apologize for their success. Surely, major companies in the Bay Area are not referring to themselves as “small, family tech firms.”

    These farmers are major employers in a region lacking enough jobs. They are the primary economic engine in a region desperate for investment. They give back to the communities that have given so much to them, and they provide food security for the entire nation.

    We live in truly interesting times when an industry so valuable to the people and history of California is openly attacked. We should not apologize for our success. We should not undersell the value of our industry— and we should not be afraid to stand up for our way of life.

    When we keep our heads held high, farmers, ranchers, dairymen, and agriculture demonstrate our strength. When the governor proposed cutting the Ag Incentive Grant, which funds FFA, the capitol was flooded with over 1,000 FFA members in their blue corduroy jackets. We won that fight. When environmentalists tried to pass a multi-billion dollar water bond without a single cent for new water storage, we stuck together and secured $2.7 billion to build new dams. And last year, representatives from the Valley stood together and passed legislation guaranteeing no future state budgets would leave out a dedicated source of funding for California’s network of 78 fairs.

    We are strong when we stand together, but our strength will be tested. There is an active agenda by some in Sacramento and elsewhere to destroy California agriculture as we know it. We are seeing it now in the California Water Commission’s decision to delay awarding funds to build new water storage. We are seeing it in the state’s continued exclusion of hydro power from being considered clean energy, requiring us to dump the electricity we have in order to buy energy from others. We are seeing it in the State Water Board’s irresponsible and dangerous decision to take our water and flush it out to sea – never mind the harm to our economy and drinking water supplies their plan will cause.

    We must keep up the fight against this agenda. If we are willing to do the hard work to win in Sacramento, we will be rewarded, just like when we work hard back home on the farm.

    Adam Gray represents California’s 21st Assembly District, which includes all of Merced County and a portion of Stanislaus County.

  • California State Board Of Food And Agriculture To Hear Updates On Current Water Conditions

    Sacramento, Calif., (April 4, 2018) – The California State Board of Food and Agriculture will hear updates by federal and state officials on current water conditions and the outlook for this summer at its upcoming meeting on Tuesday, April 3, 2018 from 10 a.m. to 3 p.m. The meeting will be held at the California Department of Food and Agriculture, 1220 N Street – Main Auditorium, Sacramento, CA 95814. In addition to an update on California’s water situation, the board will hear perspective from South Africa on the impending ‘Day Zero’ in Cape Town – where drinking water supplies could run out in the coming months.

    “Over the last two years I’ve had the opportunity to visit several countries impacted by drought as well as limited groundwater supplies,” said CDFA Secretary Karen Ross. “What sets California apart, is our forward thinking approach to long term challenges and a commitment by farmers and ranchers to be part of the solution. Water availability is critical to all sectors of our economy, including cities, agriculture and the environment.”

    Invited speakers include: Region Director David Murillo, U.S. Bureau of Reclamation Mid-Pacific Region, Director Karla Nemeth, California Department of Water Resources; Erik Ekdahl, State Water Resources Control Board; Ronald Samuelian, Provost & Pritchard Consulting Group; Jason Pucheu, Maricopa Orchards; and Christina Babbitt, Environmental Defense Fund (EDF).

    The board will also hear presentations by Jeremy Gorelick (USAID Program/South Africa) and Anton Rabe (HORTGRO) via skype discussing ‘Day Zero’.

    In addition, the board will hear an update on sustainable groundwater management.  Representative from Maricopa Orchards and Provost & Pritchard Consulting Group will provide perspective on groundwater challenges from a critical over drafted groundwater basin.

    “While recent weather conditions have been beneficial, we are still below average on statewide snowpack,” said President Don Cameron, California State Board of Food and Agriculture. “Hearing from federal and state water officials on our water outlook is critical to growers not just in the Central Valley, but throughout the state as we plan for the next water year.”

    The California State Board of Food and Agriculture advises the governor and the CDFA secretary on agricultural issues and consumer needs. The state board conducts forums that bring together local, state and federal government officials, agricultural representatives and citizens to discuss current issues of concern to California agriculture.

    All meetings are open to the public and attendance is welcome.

    Follow the board on Twitter at: www.twitter.com/Cafood_agboard

  • Electronic Log Mandate for Ag Drivers-Extension Granted

    Sacramento, Calif., (March 28, 2018) – On March 13th, the Federal Motor Carrier Safety Administration (FMCSA) officially announced an additional 90-day waiver from ELDs for haulers transporting agricultural commodities. The new 90-day temporary delay will take effect March 18th, as the previous delay expires.

    ISSUE: The Electronic Logging Device (ELD) mandate went into effect in December 2017. However, after petitioning by CFBF, AFBF and our partners in industry, DOT granted an initial agricultural exemption that was set to expire on March 18, 2018. With the granting of another extension, it will provide additional time for haulers to comply and the opportunity for us to address the underlying Hours of Service (HOS) challenges.

    IMPACT: Additionally, during this time period, FMCSA indicated it will publish final guidance on both the agricultural 150 air-mile hours-of-service exemption and personal conveyance. FMCSA announced it will continue its outreach to provide assistance to the agricultural industry and community regarding the ELD rule.

    The waiver and guidance will be published in the Federal Register in the near future; CFBF will share as it becomes available. It should be noted that drivers who are operating under this waiver must carry a copy of the notice and present it to motor carrier safety enforcement officials upon request. In addition, any carriers operating under this waiver must notify FMCSA within 5 business days of any accident.

    ADDITIONAL INFORMATION:  On February 20th, AFBF submitted comments that included CFBF’s recommendations to the Hours of Service Regulatory Guidance Concerning the Transportation of Agricultural Commodities. This included concerns about hauling live animals and perishable crops.

    Farm Bureau continues to work with FMCSA and USDA during these next 90 days on the possibility of a long-term exemption for haulers transporting agriculture commodities. Conversations with our allies in the legislative body continue to develop language for a one-year delay, which could be included in the omnibus bill.

     

  • New Report Details How Cap-and-Trade Proceeds Benefit California

    Sacramento, Calif., (March 26, 2018) – A new report details the dramatic growth last year in Cap-and-Trade investments that are reducing greenhouse gas emissions while strengthening local economies and improving public health and the environment across the state, especially in disadvantaged and low-income communities.

    More than $720 million in new funding last year went to projects that were either under way or completed across all of California’s 58 counties, a two-thirds increase in implemented investments. From rebates for electric cars to affordable housing units, completed projects totaled 75,000, including doubling the number of home energy efficiency installations and nearly tripling the number of trees planted.

    The report tracking the progress of California Climate Investments was released today by the California Air Resources Board (CARB) and the California Department of Finance.

    Signed by Governor Edmund G. Brown Jr. in July, Assembly Bill 398 extended and improved the state’s world-leading Cap-and-Trade program to ensure California continues to meet its ambitious climate change goals and that billions of dollars in auction proceeds keep flowing to communities across the state through California Climate Investments.

    “The investment of Cap-and-Trade proceeds is an important part of the state’s overall climate efforts, reducing climate-changing gases and improving quality of life especially in the state’s most vulnerable communities,” said CARB Chair Mary D. Nichols. “California communities across the state are reaping the fruit of these investments in better air and improved transit. Governments around the world are looking to California as a model for how protecting the environment can strengthen their economies”

    Since 2014, $6.1 billion has been appropriated to 17 state agencies that have distributed $2 billion to projects that are completed or under way. Agencies have awarded more than 80 percent of funds appropriated before September 2017. Additionally, implemented funds (not including the High-Speed Rail Project) have attracted over $8.2 billion from other sources representing an average of nearly $6 leveraged for every dollar invested.

    Among the projects:

    • A 44-unit affordable housing development in Tulare County with integrated vanpooling service and discount transit passes is among more than 1,600 housing units funded statewide.
    • The Cecchini Farm in Contra Costa County, whose fifth-generation owners decided not to sell after they were approved for a conservation easement, is among more than 250,000 acres of land statewide that will be preserved, from coastal watersheds and wetlands to mountain meadows.
    • Los Angeles County’s Foothill Transit is purchasing 15 zero-emission electric buses to advance the agency’s goal to go all-electric by 2030 to reduce GHG emissions and improve air quality in the inland communities it serves.

    In California’s forests, California Climate Investments are protecting more than 1.4 million acres, funding projects to reduce fire risk, limit loss of life and property damage, and lower the cost of fighting wildfires. More than 14,000 trees have been planted to provide shade and limit the heat island effect in urban areas from Oakland and Stockton to San Bernardino and Los Angeles counties.

    Grants to farmers, businesses and individuals for more water-efficient technology will not only cut greenhouse gas (GHG) emissions but save more than 370 billion gallons of water throughout the state. And more than 150,000 rebates for zero-emission and plug-in hybrid cars are expected to reduce over 5,000 tons of criteria and toxic air pollutants in addition to GHG emissions.

    The report features profiles that highlight the impact these investments are having on individuals and communities, particularly those in California’s most disadvantaged communities.

    Benefits to Disadvantaged Communities

    Fifty-one percent of the $2 billion in implemented projects ($1 billion) is providing benefits to disadvantaged communities, including 31 percent ($615 million) going to projects located within these communities. This exceeds the requirement under SB 535 (De León) that at least 25 percent of investments are allocated to projects that benefit disadvantaged communities.

    The report also found that projects are underway in 98 percent of the 2,000 census tracts in the state that the California Environmental Protection Agency designated as disadvantaged. And state agencies are actively working to make investment opportunities more accessible to disadvantaged communities through technical assistance grants and increased outreach.

    In 2016, Governor Brown signed AB 1550 establishing new investment minimums for disadvantaged communities, and low-income communities and households. The Legislature directed the 2019 Investment Plan to allocate funding in accordance with AB 1550. In 2017, CARB released guidance to help administering agencies to begin implementing AB 1550.  Future reports will include AB 1550 outcomes as agencies implement more funding.

    Reducing Greenhouse Gas Emissions

    Projects funded to date are expected to reduce GHG emissions by more than 23 million metric tons of carbon dioxide equivalent (CO2e), roughly the equivalent of taking four million cars off the road for a year. In addition, the High Speed Rail Project is estimated to reduce GHG emissions by almost 59 million metric tons of CO2e over its operating life.

    The report includes detailed information on cost-effectiveness and metrics for evaluating program effectiveness. It also includes new statistics and information on co-benefits quantified to date and an update on plans for more comprehensive future reporting.

    Accompanying the report is an updated interactive map that allows users to track where Cap-and-Trade funds are being invested across in the state. Users can view the locations of individual projects and aggregate them by program and by the state’s 120 legislative districts and 58 counties.

    Note – CDFA receives Cap-and-Trade investments for four programs in its Office of Environmental Farming and Innovation. They are the Dairy Digester Research and Development Program, the State Water Efficiency Enhancement Program (SWEEP), the Healthy Soils Program, and the Alternative Manure Management Program.

    Project-level data for all projects included in the 2018 Annual Report and featured on the interactive map is available on the California Climate Investments website, including project locations, GHG reductions and benefits to disadvantaged communities.

    The 2018 Annual Report to the Legislature on California Climate Investments Using Cap-and-Trade Auction Proceeds can be found here.

    California Climate Investments Website

    2018 California Climate Investments Annual Report

    Interactive Map of California Climate Investments Statewide

    2018 Project Profiles

  • Farm Bureau Calls for Clarity on Exemptions for Agricultural Haulers

    Washington, D. C., (March 6, 2018) – While again urging the Department of Transportation to grant agricultural haulers a waiver and limited exemption from the electronic logging device mandate, Farm Bureau in recent comments responded to the department’s efforts to provide clarity to the 150-air mile agricultural commodity exemption and the hours of service regulations.

    Until recently, very few Farm Bureau members or agricultural haulers were aware of their ability to use the newly interpreted 150-air mile agricultural commodity exemption, which provides exceptions from the HOS rules for the transportation of agricultural commodities within a 150-air mile radius from the source of the commodities. Enforcement officials, too, likely have very little knowledge about this exemption. This lack of awareness, combined with the unforgiving realities of ELD technology, makes the need for clarity all the more pressing, Farm Bureau emphasized.

    In terms of what products are categorized as agriculture commodities, all nonprocessed food, feed, fiber, livestock and nursery and greenhouse crops qualify, according to Farm Bureau. Agricultural commodity “sources” are farms, ranches and other locations where agricultural commodities are loaded for transport, including livestock markets and grain elevators.

    “Animals are unpredictable at livestock markets. Just like at a ranch, they can balk at the loading chute, be uncooperative, and need to be loaded carefully in accordance with appropriate animal husbandry techniques. All of this coupled with oftentimes long post-sale or load-out lines makes applying the flexibility afforded to a ‘source’ of livestock to livestock markets or agricultural commodity at a grain elevator a logical conclusion,” Farm Bureau said.

    Had congressional lawmakers wanted to exclude grain elevators or livestock markets from the definition of an agricultural commodity source, they could have easily done so, the group noted.

    Farm Bureau is also urging the department to expand its interpretation of the 150-air mile exemption. Current informal Federal Motor Carrier Safety Administration guidance limits a driver’s use of the exemption to once per trip. However, the concept of such a “trip” is not defined in either the statute or the related regulation, so limiting the exemption only to the first “source” of any given “trip” is a narrower interpretation than the statute calls for.

    “Such an interpretation also opens the use of the exemption to additional confusion in situations where some agricultural commodities or livestock are unloaded and others are picked up and calls for further subjective interpretation as to when a ‘trip’ is started and concluded,” according to Farm Bureau.

    In a similar vein, the organization challenged proposed guidance that indicates once the hours of service rules have begun to apply on a given trip, they continue to apply until the driver crosses back into the area within 150 air-miles of the original source of the commodities and is returning to that source.

    According to Farm Bureau, the law clearly indicates that each farm, ranch, grain elevator, livestock market or other location where an agricultural commodity is loaded for shipment is a “source” of an agricultural commodity and, as such, each act of “transporting agricultural commodities from the source” is entitled to the 150-air mile radius exemption described in the applicable regulation.

    In addition, time spent operating unladen vehicles traveling to or from the source of an agricultural commodity should be considered exempt time, as the proposed guidance states.

    As Farm Bureau continues to encourage the administration to give agricultural haulers relief from the ELD mandate, the organization is also working with Capitol Hill lawmakers on a legislative solution to the ELD mandate and HOS challenges.

  • Western Growers Board of Directors Votes Unanimously to Oppose Flawed Immigration Bill

    Irvine, Calif., (March 5, 2018) – Legislation that would worsen the worker shortage crisis for farmers throughout the country has received unanimous opposition from the board of directors of Western Growers, whose members supply more than half the fresh fruits, vegetables and tree nuts, grown both conventionally and organically, in the United States.

    Western Growers members are based in California, Arizona, Colorado and New Mexico. Member companies have farming and other operations in 28 states. The fresh produce industry employs the largest share of agriculture workers in the nation.

    The bill would force long-time existing workers in agriculture to return to their countries of origin in order to apply for a new H-2C visa or stay in the shadows. Western Growers directors believe few of their employees would leave spouses and children behind in the U.S., many subject to deportation, on the questionable assumption that the federal government will efficiently readmit them as temporary seasonal guest workers. Additionally, those who do raise their hands to return to a country they no longer know may face difficulty with reentry after so many years.

    The bill also imposes an unworkable cap on new visas – effectively 410,000 the first year and 820,000 the second year for fresh produce and other sectors – which would be insufficient for the estimated need. Studies indicate that there are currently two million undocumented farm workers in the U.S., with 400,000 to 500,000 in the west alone.

    Western Growers President and CEO Tom Nassif issued the following statement following the board of directors’ vote: “We will remain engaged with any and all legislators who seek workable solutions to our labor crisis, but given the harm that would come to our growers from provisions of H.R. 4760, we must oppose the bill.”

    About Western Growers:
    Founded in 1926, Western Growers represents local and regional family farmers growing fresh produce in Arizona, California, Colorado and New Mexico. Our members and their workers provide half the nation’s fresh fruits, vegetables and tree nuts, including half of America’s fresh organic produce. For generations we have provided variety and healthy choices to consumers. Connect with and learn more about Western Growers on our Twitter and Facebook.