In this day and age, the administrative state touches our lives more and more, especially in agriculture, where we have seen more regulations around water, natural resources and labor. However, regulations in the agricultural industry and the enforcement of those regulations are not new. Reframing how you participate in the process can be beneficial to you, your operation and the industry.
Many reading this may have already participated in the regulatory process or have already encountered an administrative enforcement action. The purpose of this article is to provide some tips and tricks to be effective and more impactful in your interactions and communications with federal and state agencies.
1. Commenting on rules and regulations
The rule-making process is the procedural steps agencies take to create new regulations. As a general rule, agencies follow these steps when creating a rule or regulation:
- Identify an issue that needs to be addressed.
- Draft regulations.
- Seek preliminary stakeholder input.
- Propose draft regulations.
- Solicit public comments and feedback from stakeholders (including industry advocacy groups, individual farmers and ranchers, and other impacted parties).
- Host a public hearing where agencies take additional comments.
- Revise regulation based on comments.
- Finalize the regulation and adopt the regulation.
While some may feel overwhelmed or not encouraged to participate in the process, it is important to know that it is the people on the ground – in the pastures and working with livestock every day – that provide great value to policy discussions. Knowing where your voice can be heard and how to structure your concerns or position will make you effective and impactful in your communications with agencies. A farmer or rancher can take steps to ensure that their voice is heard in the policy-making process by engaging with the agency and providing feedback in Steps 1, 3, 5 and 6 above. A farmer or rancher can bring issues to the agency that they and others believe need to be resolved, or they can be a sounding board while regulations are being drafted. Before writing a comment, read the regulations to get a better understanding of the impacts and intentions of the proposed regulations. From there, identify the areas you support, areas you have concern about and areas that do not work for your operation. Provide reasons for these positions. Once you have wrapped your head around the proposed regulations and know what parts impact you, you can start drafting your comments to the regulation. There is no word minimum or maximum, as your comment can be as long or as short as you need it. However, remember that being concise will make your comment more impactful, and measured brevity is appreciated.
Here are some tips for drafting your comments: First, make sure at the beginning of your comment you identify yourself and your interests. State your name, what part of the state or country you are from, describe your operation and how the regulations will impact your operation (e.g., increase or decrease costs, limit or improve your ability to operate on your property, etc.). This will personalize your comment and build your credibility in the eyes of the reader.
Second, state your position at the beginning and end of your comment (e.g., support, oppose or desire changes be made). It will help the reader better understand the context of your feedback as they read your comment.
Third, provide your feedback on the regulations in an orderly fashion. This will be the body of your comment. Organize your comment chronologically by addressing each section of the regulation or grouped by certain relevant topics (e.g., Section 1 and 4, or cost impacts and impacts on activities), and use paragraphs to distinguish between each comment and topic.
As a suggestion, here are facts to include in each paragraph:
- State your position on the relevant provision.
- Quote the relevant parts that you are highlighting in your comment.
- Explain how and why the regulation impacts you.
- Provide alternative approaches to the regulation (e.g., do not move forward, take a different workable approach to addressing an issue or support that approach, etc.).
It is incredibly important to suggest your own changes, as it is helpful for agencies to provide new ideas or express why an approach will not work. You might reference something they did not initially consider, but the new information might change their approach for a better approach. You never know, the language you propose might be incorporated after the agency considers your comment. Be sure to include relevant information and cite reputable sources for data and facts for how the regulation might or will impact you. Tangible data further aides in agency considerations.
Finally, finish your comment by restating your position and a brief “ask” (e.g., “I ask that these regulations be reconsidered, changed or adopted for these reasons …”). If you would like to provide contact information, you can state that you are willing to answer any questions and how you can be reached.
Once you have drafted your comment, you can ask for a friend to review it. If you are a member of a trade association – for instance, a state commodity association, livestock association, Farm Bureau, farmers union, etc. – you can reach out to their office to ask for their advice or have them review your comment. When you have finalized your comment, you will submit your comment through the required channel of delivery (e.g., online submission on an agency website or mailed to agency). If you desire, you may also have your voice heard at the public comment when the public hearing is held. Be sure to emphasize your top points, but you do not need to reread your written comment. All the information related to a proposed regulation can be found on the agency's website.
2. Administrative actions
Moving from the rule-making phase to the enforcement phase, agencies enforce their regulations through penalty orders for violations or enforcement actions. This occurs when a licensee violates a statute or regulation that the agency is authorized to enforce, such as using water in excess of their water right allocation or pesticide drift matters. Be advised that these matters are governed by state administrative procedure statutes or judicial review statutes, and each state has their own variations of these statutes. Thus, this article provides general advice for dealing with agencies and their legal division.
Your heart rate quickens and blood pressure rises as you open the envelope addressed to you from an agency. You read the title, “Order assessing civil penalty,” “Summary order” or a similar title. Your heart sinks as you read the order describing the violation and penalties. Don’t lose hope, as here are some tips!
First, remain calm and read the order. The order should include the facts of the matter, applicable law, conclusions of the law (which will highlight what actions violated which statute or regulation), the penalties and the notice of how to move forward with the matter.
Second, reread the notice sections of the order to understand what your rights and obligations are under the order. This section usually includes who to call if you want to pay the penalty or what steps you need to take to appeal the matter to the administrative hearing.
If you decide to move forward with an appeal, the following suggestions will help you better address the matter. First, be advised that many states allow for an informal conference hearing between the agency and the party to determine whether or not there are mitigating factors or legal matters that the order may have missed. This informal conference is your opportunity to attempt to settle the matter as early as possible, so be sure to ask if an informal conference or settlement conference is available. In preparing for an informal conference or a hearing, collect all records, documents and other evidence that support your side of the case (e.g., pumping records, communications with officials or workers, time sheets, maps, photographs, etc.).
In the conference, you will be given the opportunity to explain your side of the story. Be sure to discuss all matters in an organized fashion, and be sure to include any mitigating efforts you attempted prior to or after the violation. Showing remorse or sincere effort to improve your practices could help in reducing the penalties or amending the violation to a lower offense. Additionally, practice your ask before the meeting. Whether that is a reduction in the penalty or to amend the order by offering additional measures to ensure compliance in the future, this could show the agency that you have thought about this matter and could be a starting point of negotiations. A party willing to work with the agency and ensure future compliance goes a long way in encouraging the agency to negotiate with you.
If you do move forward with an appeal to an administrative law judge or a court, it is highly advised that you consult an attorney who has experience dealing with agency actions. Attorneys will take much of the stress away from you, will know how best to approach the matter and have a higher likelihood of achieving your desired outcome or mitigating the penalties. You can reach out to your state advocacy organizations that were referenced above for help with attorney referrals.
