When President Donald Trump took office in 2017 for the first time, his Agriculture Department swiftly rolled back Obama-era efforts to strengthen enforcement of the Packers and Stockyards Act. Now that he's won reelection, his administration will once again decide the fate of a new set of Biden Administration competition proposals and rules.
His next administration may well follow a similar course, scrapping a slate of proposals aimed at bolstering grower protections under the Packers and Stockyards Act. But with many new advisers at Trump's side and more to be named, it’s possible the policies of his next term will diverge from those of the past.
“We clearly believe that, at this point in his transition back to the White House, he is not going to repeat his last administration,” Farm Action Fund President Joe Maxwell told Agri-Pulse.
Under the leadership of Biden-appointed Agriculture Secretary Tom Vilsack, the agency has finalized two rules aimed at increasing grower protections under Packers and Stockyards. Two more rules have been proposed but not finalized.
Joe MaxwellThe fate of the rules will likely rest on Trump's choice for agriculture secretary, said Peter Carstensen, a law professor at the University of Wisconsin-Madison. A traditional limited-government Republican would likely seek to roll them back. But R-CALF USA CEO Bill Bullard told Agri-Pulse he hopes that the “very aggressive” antitrust enforcement rhetoric used by Robert F. Kennedy Jr., who has been picked to be Health and Human Services secretary, is a signal Trump will opt for an agriculture secretary with similar views.
“It’s too early to tell,” Bullard said of prospects for the rules. “We’re extremely hopeful."
Of the Packers and Stockyards rules made final, one requires poultry integrators to disclose average annual gross payments over a five-year span and information about variable costs associated with broiler production, a five-year litigation history involving growers, bankruptcy filings and average annual turnover rates for broiler growers in the previous five years.
The second prohibits packers, swine contractors and live poultry dealers from taking actions based on a producer’s race, color, religion, national origin, sex, disability, marital status and age, according to a USDA fact sheet. It also prohibits packers from retaliating against producers for communicating with government agencies, joining a producer association and exploring business relationships with other companies. In addition, it bars packers from using false or misleading statements when creating or terminating contracts or in refusals to contract.
If it were to seek to undo these rules, Trump’s USDA would need to do it through the federal rulemaking process, which requires a public comment period. “It’s a big hurdle, because you have to counter why what was already on the books needs to be changed,” Maxwell said.
Still it’s possible the next administration will seek to undo these rules, Carstensen said. “If this is a repeat of what things were like the last time,” he said of Trump's previous administration, “the Packers and Stockyards stuff will go away."
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Final rules can be overturned by majorities in the House and Senate through the Congressional Review Act. These rules, however, would likely be safe from this process since Congress needs to vote for such measures within a 60-day window. The poultry transparency rule was final Nov. 28, 2023, while the inclusive competition and market integrity rule was finalized March 6.
Two more rules were proposed in June. One would bar integrators from paying producers reduced or discount payment rates in tournament ranking systems, while also establishing “a duty of fair compensation to ensure that grower comparisons are conducted in a reasonable and equitable way” and requiring poultry dealers to “adopt policies and procedures in furtherance of operating a fair ranking system for broiler growers.” It would also require dealers to provide information to growers before requesting that they invest in capital improvements.
The other seeks to further define practices that can be deemed "unfair" under the P&SA, allowing the livestock antitrust law to prohibit conduct that “harms market participants” and “harms the market.” The agency sought to address these definitions during the Obama years but the rule was never finalized.
If these proposed rules are not completed in the days left in Biden’s term, the next agriculture secretary can simply choose to withdraw them, Maxwell said.
USDA has published an advance notice of proposed rulemaking seeking feedback on "regulatory options that AMS could employ to address concerns regarding price discovery and fairness in fed cattle markets," but it's more than unlikely it will result in a rule by the end of Biden's term.
In an email to Agri-Pulse, Meat Institute Vice President of communications Sarah Little said it’s difficult to predict how the second Trump Administration will approach the regulations at this point, but added that the group is “certainly letting the transition team know of these rules and other regulations that are opposed by both livestock groups and the Meat Institute.”
“We look forward to working with the Trump administration on our priorities, including preventing these unnecessary changes to the Packers and Stockyards Act, and other government overregulation,” said Tom Super, senior vice president of communications for the National Chicken Council, which has been critical of several of the measures. "These rules, already scrapped once under Trump and resurrected under the Biden administration, are ill-advised, vague, would inflict billions of dollars of economic harm on American agriculture, line the pockets of plaintiffs’ lawyers, and increase costs for consumers.”
Tom SuperThe rules have been unpopular with some meat and poultry groups, though advocates for increased competition are hoping to see them stay in place.
"We’re hopeful that the next administration, that the incoming administration, understands that fair and competitive markets are really essential for family farmers and ranchers to thrive and for our farm and food system to be strong and resilient,” Aaron Shier, government relations director for the National Farmers Union, told Agri-Pulse. "There’s no reason the incoming administration can’t continue the work to strengthen the Packers and Stockyards Act and we look forward to working with them on that.”
If the remaining proposed rules were to be finalized before the end of Biden's term, it’s possible they could be subject to a CRA resolution in a Republican Congress, Maxwell said. .
“To us, there is a real threat of a CRA,” he said.
The Supreme Court’s reversal of the Chevron doctrine also may pose a challenge to the Packers and Stockyards rules, with Carstensen calling it “an additional club in the armory of courts that don’t like regulations.” But he added that USDA has “done a really nice lawyering job” crafting the rules.
“If you take a textualist view, the Congress clearly delegated to the secretary of agriculture the duty to adopt market structuring rules to deal with problems of fairness, discrimination, etc.,” he said. But finding whether rules lie within agency jurisdiction will be up to the courts, he added.
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