FROM THE BGES — A Washington Update (A Year Divisible by Two)

August 26, 2014 - 09:17

How will immigration reform, the Affordable Care Act and other legislative issues affect your business?

As those of us who deal with Congress often say, it’s a year divisible by two. The entire House of Representatives is up for grabs, as is one-third of the Senate. Republicans seem to have a tailwind. They are likely to hold the House, and have a very good shot at taking control of the Senate. In some of the early contests, the “establishment-backed” GOP candidates have prevailed over Tea Party candidates, which bodes well for Republican Senate hopes and dreams. Still, in politics, four months is an eternity.  

Election years are often unproductive in terms of actually moving legislation to the President’s desk, but fortunately for horticulture, the Farm Bill was an exception. Of course, the path to enactment was anything but linear, but it did pass and was signed into law. For the horticulture industry, important provisions include funding for pest and disease prevention and rapid response, research, marketing, energy efficiency, and more.  

We’re now well on the road to implementation. AmericanHort is working closely with Congress and various USDA agencies to ensure that the law’s potential benefits to the horticulture industry are realized.

Congressional Challenges

Securing the workforce through immigration reform is a federal legislative issue that is still languishing despite repeated promises of action. Conventional wisdom says that won’t happen in an election year. Yet history debunks the conventional wisdom: virtually every major piece of immigration reform that has passed during the last several decades did so during an election year!  

The Senate has, of course, acted, and the earned legalization and future worker visa programs applicable to our industry are among the best features of the Senate’s comprehensive immigration bill. Meanwhile, several House committees have considered bills dealing with border security, interior enforcement, E-Verify and visa programs for highly educated and agricultural workers. None of these bills has yet made it to the House floor for a vote.  

Despite the challenges, there are a few reasons for a measure of optimism. The coalition pushing for reform has never been stronger. Collaborative efforts among agriculture, business, faith and law enforcement stand out. The economy is improving, as are public attitudes. In the House, the “hell no caucus” seems much smaller, though it is still noisy and aggressive. For Republicans, there is a growing sense that they’ll pay a long term political price if they continue to obstruct reform.  

Then there’s the economy! Immigration reform would be good for the American economy, especially at the high end (like the tech sector) and in agriculture. Without reform, more and more jobs and expanded production will happen someplace else. In fact, a recent study co-produced by the Agriculture Coalition for Immigration Reform, which AmericanHort co-chairs, revealed that U.S. consumption of fresh fruits and vegetables increased dramatically between 2000 and 2012. Yet, most of that consumption happened outside the United States, labor scarcity being a factor. Had U.S. growers simply held market share, we would have enjoyed $5 billion in additional farm income. About 90,000 new jobs would have been created, two-thirds of them off the farm.

Long story short, there is a cost to waiting. The cost comes in lost opportunity, lost economic competitiveness, lost job creation.  

Take Action & Be Prepared

With a window for further action in the House in June and July, growers should pull out the stops urging House members to act. Bills that can attract some bipartisan support, which will be needed to succeed, should be brought to the floor for votes. The window is real, but it won’t be open very wide nor for very long.  

On the Affordable Care Act front, a very subtle shift seems underway. Since the law’s original passage, Republicans have sought to repeal it, and Democrats have resisted reopening it. But in recent weeks, small bipartisan groups of House members are talking about legislation that would make limited tweaks to the law. One example is a bill Reps. Jim Renacci (R-OH) and Kurt Schrader (D-OR) are considering that would codify in statute a recent Treasury Department determination defining “seasonal” worker for the purposes of determining to whom coverage must be offered, and aligning the definition of seasonal in the “large employer” calculation, which is now 120 days. Both would be set at six months.  

While the change is of some limited direct benefit to most of our member employers, it will be symbolic if incremental improvements to the law can begin to be made. There will be more to discuss on this issue in the days and weeks ahead.  

As we had predicted, in the face of relative gridlock in Congress, the Administration is resorting to regulations to advance its goals. One example is an EPA-proposed revision to the Worker Protection Standard, which covers all types of agricultural operations that apply pesticides, of course including greenhouses.  Sweeping revisions cover areas such as training, posting of applications, recordkeeping, buffers, and more. 

The proposed WPS revision published just as the peak spring season was arriving, and the official comment period was to end in mid-June. What terrible timing for reviewing a 90-page notice! AmericanHort and allies requested a 90-day comment extension; EPA granted a 60-day reprieve, to August 18, so we are collaborating to develop comments between now and then. 

Another Obama administration proposal from EPA would redefine what are considered “waters of the U.S.” and subject to regulation under the Clean Water Act. The proposed definition dramatically extends EPA’s reach, and could sweep in virtually every retention pond and drainage ditch.  

Finally, the administration is very actively auditing businesses — we’re still hearing of a few immigration/I-9 audits and a lot of Labor Department wage/hour audits. Like a good Boy Scout, you should be prepared, and if you find yourself under the microscope, AmericanHort has resources available to help.  

Best wishes for a successful and productive summer, and hope to see you at Cultivate ’14 in Columbus!

About The Author

Craig Regelbrugge is senior vice president — industry advocacy and research for AmericanHort. He can be reached at

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