93
Let’s hear the story of Nebraska, its communities, its number one industry Agriculture, and the people who make it happen. Sponsored by Nebraska's Law Firm® - Rembolt Ludtke.
93
Kristi Boswell--Federal Ag Policy
This episode features native Nebraskan Kristi Boswell, one of the nation's best and brightest ag policy and H-2A visa experts. Kristi previously served as a senior advisor to the Secretary of the U.S. Department of Agriculture, held a policy role at the White House, and is currently counsel at Alston & Bird in Washington, DC. Listen in to find out whether we'll get a new Farm Bill soon, get the latest on the H-2A visa program and discover her one word that best describes Nebraska.
Welcome to 93 the podcast, where we talk about Nebraska, its communities, its number one industry agriculture, and the people who make it happen. I'm Mark Falton, your host for today's episode brought to you by the Rimble Lefty Law Firm. Today we're going to talk about federal ag policy, especially policy as it relates to farm labor and the H2A visa program. We're joined by a native Nebraskan who knows more about these issues than anyone I know, Christy Boswell. Christy, our podcast is named 93, which comes from Nebraska's 93 counties. What county did you grow up in?
SPEAKER_02:First of all, Mark, thank you so much for having me look forward to our discussion today. I hail from Shickley, Nebraska, located in Fillmore County.
SPEAKER_00:And what's the license plate prefix for Fillmore County?
SPEAKER_02:34. And when I'm back home in Nebraska, I still double take every 34 county license plate and assume that I know those people.
SPEAKER_00:One of our previous guests actually said that their mother had a game that they played as a kid doing road trips across Nebraska where they had to try and find all 93 counties. I think I need to remake that game. So Chrissy, I know you're a very, very busy person, so I'm very grateful that you would take some time out of your schedule to visit with our listeners. You've given a little background to our listeners about yourself, but go ahead. You mentioned you grew up on a farm or out by Shickley, Nebraska. How did you get to hold the position you hold today?
SPEAKER_02:I did. I grew up on a farm, a corn and soybean farm near Shickley, Nebraska, a family farm. I was the youngest of three daughters, and we worked on the farm. We got a lot of experience working side by side with my dad and my mom, and it really developed a passion for agriculture. I went to the University of Nebraska in Lincoln for undergrad and law school. I joke, I'm a husker through and through, but was an agricultural economics major and political science minor at UNL and undergrad, and was fortunate to focus my legal education also on agricultural law and administrative law, obtaining an ag legal certificate as well, which I think is very unique and a testament to Nebraska law for really having programs within the industry and also tailoring your programs to the student needs. But I was a little bit odd, I would say, as a kid from small town Nebraska. I knew I wanted to be involved in agriculture and policy. I traveled to Washington, D.C. as I was a junior in high school, and from there it was a done deal. I think all next steps were focused on career and education to get to Washington, D.C. I moved out here in 2012 and took an opportunity with the American Farm Bureau Federation, the largest general ag trade association in America, and was a director of congressional relations for American Farm Bureau in 2017, had the opportunity and was selected to serve as a political appointee to the Secretary of Agriculture, Sunny Purdue, in the Trump 45 administration. I was one of his senior advisors, which were five inner circle that advised him on policy topics and also made sure that his policy decisions were carried out throughout the department. I also served six months at the White House during that time as well. I handled a variety of issues for the Secretary, trade, farm programs, research, but throughout the time at USDA and my experience at White House, ag labor, H2A issues, and immigration was a thread that was a key part of my portfolio and a huge issue for agricultural producers. Coming out of the admin, I'm now at Alston and Bird Law Firm. I have an agricultural-based regulatory compliance and policy advocacy practice. I help farmers make sure that they're following the rules. And when we don't like the rules, I work with uh regulating bodies and also Congress to try to change uh and improve those laws and regulations.
SPEAKER_00:So growing up on Nebraska Farm, how old were you when you first operated a tractor by yourself?
SPEAKER_02:Oh, um, I definitely remember driving the tractor, truck, um, hauling pipe like in the field, but probably five, six, sitting on phone books kind of thing.
SPEAKER_00:So when you tell people you live in DC now, you do you tell people that and do what kind of looks or or response do you get when you pee tell people you're operating a tractor at the age of five?
SPEAKER_02:Well, my fun fact is always that I graduated with 17 people in my high school class, typically followed then by the fact that that was the largest class in the school at the time. And um, yeah, I you know, I've also handled farm safety issues while um at in these various roles and even testified in front of Congress about youth opportunities in agriculture, uh, sometimes referred to as child labor uh regulations. And, you know, these experiences are the foundation of who I am. And, you know, I learned so much about work ethic and time management and um you know just grit from working on the farm and seeing my my mom and my dad work side by side and my sisters. It was just these are life-changing experiences. And um, I do get some looks, but usually it's more of a novelty, and people want to learn more than um a complete, you know, a complete judgment.
SPEAKER_00:So I'm the father of three daughters, so I have some understanding of those dynamics. There are various stereotypes out there regarding birth order, especially when you have three daughters. Is there any truth to any of these stereotypes you've heard over the years regarding birth order and you being the youngest of the three?
SPEAKER_02:Uh absolutely. I think we are the the poster child for those stereotypes. Um, and I mean I think my both my parents would say it was no surprise that I, you know, as the youngest was the one that that flew the coop the fastest and um you know just got you know had big dreams and pursued them and and went wild. Um and you know it's I I feel kind of fortunate to have my big sisters supporting me along the way and always be my biggest cheerleader as I was making bold moves.
SPEAKER_00:So let's talk a little bit about your time at USDA. Now we're taping this episode before the president-elect has named his nominee for Secretary of Ag. I know that there's some uh we're in a lame duck Congress until the new Congress comes in. Is what's the status of the 2024 Farm Bill? Will will there be one?
SPEAKER_02:Uh I I think I'm bracing for an extension. Uh at USDA, I was part of the team that implemented the 2018 Farm Bill. And as you can imagine, when there's a farm bill that's passed, it's all hands on deck throughout the department, whether it's providing technical assistance to the Hill before the bill is passed or during drafting, and then implementing all of the various provisions. And some are easier than others to implement, some create new regulations, some create new programs. So it's a huge undertaking. Uh you looking at where we are with the election outcome, where we are just the calendar days left and the legislative days left, I think it is is uh unlikely that we will see a 2024 farm bill. Um we did have some you know activity in the last year. I mean, the House Agriculture Committee did pass their bill out of committee. Um it had a handful of Democrat supporters as well. Um there's been no indication that the speaker would put that on the floor before the year end. And then just this week, we had Chairwoman Stabenow release a draft of the Senate version. Um, you know, as I think in her words would signal a negotiation and hope that we can push this across the finish line for rural America. Uh, but I can say the GOP side of the aisle certainly felt that it was an 11th hour partisan proposal without a lot of um outreach to the AG committee members on the Republican side or notice that it was even being released. So some of the media reports and quotes coming from the committee members this morning seem to me to signal that you we're looking at an extension.
SPEAKER_00:So let's assume there's an extension and next year they take it back up again. Given that Republicans will control both the House and Senate, granted uh slim majorities in both, and have will have the White House. What issues do you see coming to the forefront if in fact we get the extension this year and we're looking at a five-year ag bill being debated and potentially to the floor next year?
SPEAKER_02:I think there's two big things that the you know GOP, the Republican um leaders of the committees are going to be looking at. Um, you know, the the first huge issue that has to be addressed is is the funding sources and the baseline. And um, you know, where do you find the money to make the changes that rural American farmers desperately need? You know, an example is reference prices. Um, you know, how do you how do you increase reference prices and have funding available for other key components of the farm bill? Um and it's a it's a balancing act, and you see different approaches taken, you know, some you're looking at the commodity credit corporation, which is a a um for in a very informal way of saying it's kind of a stash of money that the uh Secretary of Agriculture has that is paid, that is used to pay out uh commodity programs, formula programs, but also has been used in response to the trade, you know, the trade wars in the Trump administration on some climate smart proposals, this administration. So there is a discretion. Um there's talks about kind of removing some of that discretion and tailoring some of those dollars for more permanent programs. Um there's also um the inflation reduction act funding uh that is not allocated at this point. And then you know, those um where does that can that money get funneled into conservation programs or somewhere else into the farm bill? So that's the big overarching issue that um whoever's in in in charge with you know, chair it'll be Chairman Bozeman in the Senate and and um Chairman GT Thompson in the House, um pending any um ag secretary movement. But um, you know, that's the number one thing and and that they're they're having to navigate. Um, the big change on the second side of it that I think you'll see a different approach from where Democrats are to Republicans is uh is the nutrition program side of it. We saw a huge increase um in the thrifty savings plan. Um, this is the plan that USDA uses to set the allocation for supplemental nutrition assistance program. Um that use of the thrifty food plan has been met with some outcry by Republicans. Um it was uh ended up in a huge increase for um those benefits, uh, and Congress felt that there was not a lot of checks and balances in the way that it was done with the Biden administration. So I think that they're gonna be looking at the nutrition program, looking at work programs associated with benefits. Um, you you know Chairman Thompson grew up on the SNAP program and has a lot of unique personal perspective that gives him a strong voice in this narrative of ensuring that um your families are taken care of and and are given the resources that they need when they need them, but also making sure that they're given the tools to get off of those programs as well and to earn um you know for themselves and have the respect that um you know and self-respect that comes from those opportunities. So those are the two things I think, again, working in with the funding and where the funding is coming from and where it's allocated as priorities, and then looking into the nutrition pro title a little bit deeper to try to find some savings and reforms to the program.
SPEAKER_00:So let's segue for a moment into the H2A visa program. I consider you to be one of the nation's foremost experts on this program. Can you describe the H2A visa program to our listeners?
SPEAKER_02:Yeah, the H2A program is a seasonal visa program that allows farm employers to bring in foreign workers where there is not a U.S. worker available. I emphasize the word seasonal, um it's seasonal or temporary work because if you are a year-round uh operation or you have year-round needs, the H2A program is not available for you. The classic example is milking cows. While a dairy farm may have seasonal jobs that they can use H2A visa workers for, um the milking of cows itself is a year-round permanent job. And so that is sometimes a point of instability within that sector, especially when considering potential other immigration uh policies that we can we can discuss if we have time later as well. Um but again, the heart of the visa program is it is a safety net for employers when they need to find those workers. And there are regulations in place to first protect US workers, um, but that also layers some obligations on employers that you know make it more expensive and often bureaucratic to use. That includes housing, um, it includes transportation, it includes the payment of a set wage rate. Um but at the end of the day, the growers and farmers that have used the H2A program have found it to be a very reliable source of labor, and it is a critical tool when there are labor shortages. And as a result, we've seen great expansion in the program. When I started this in 2012, we had about 70,000 H2A visa workers. This year we'll be at about 375,000.
SPEAKER_00:Is there a cap like the other visa programs?
SPEAKER_02:So the one of the best things about the H2A program, and and I I I I the program again works really, really well for those who can figure it out and have the resources and dedicated, and maybe folks like me on retainer to help counsel and advise. But it is a complicated program. Um but the best thing about it is that there's there's not an arbitrary statutory cap on how many workers that can come in. With that said, there is a market test for every application that comes in. And a an farm employer cannot bring in a worker if there is a US worker available. And I think that's a little bit of a misperception of these visa programs that you're bringing in cheap foreign labor that's that's sub that's you know taking the place of US workers. A tenant of the H2A program is that domestic workers have first shot at these jobs. Um, but you know, as we've seen the program grow, um that's a testament to the labor shortages that exist in agriculture, and something I know the listeners know very well when they're trying to find seasonal help to drive trucks or help with harvest.
SPEAKER_00:So earlier this year, the Biden Department of Labor published a new final rule on the H2A program, had a number of really controversial provisions, including such things as housing, which I know you had mentioned earlier. Uh Nebraska and a whole host of other states actually sued, and a federal court has enjoined that rule as it relates to the states that actually sued, so meaning it doesn't currently apply in Nebraska. Is there a future for that rule under the new Trump administration?
SPEAKER_02:Yeah, I'll take a step back first. Um, the I mentioned the HVA program is a regulatory creature, and there have been regulatory changes stemming back from George W. Bush presidency to the Obama administration, to the Trump administration, to the Biden administration, and we certainly expect to see more in the Trump 47 administration. Uh as any business owner knows, when you have that much regulatory uncertainty, it makes it really hard to plan and know what to expect in your business planning. Um this rule that you mentioned is is um focused around worker protections. It's one of four major rules that the Biden administration put out on the H3 program specifically. Uh, and it is an incredibly expansive uh rule making that um by my clients and you, as you as you mentioned, those that are challenging the rule in court view that the Department of Labor went outside of its authority in implementing the protections that they did. Um a little wonky speak here, but the the the big picture of that of that rule is it it creates protections for H2A workers um under, technically under the immigration and national um the immigration and nationality act, the INA. Um however they borrow from the National Labor Relations Act in its precedent and in its um requirements, Congress has told um the world that farm workers are exempt from the National Labor Relations Act. So that's really the the heart of the litigation is you know the Department of Labor is is um outside of their authority by expanding these protections to H2A workers when domestic farm workers are exempt from these standards under um you know under statute. There has been some success in the litigation, as you mentioned. There is a partial injunction that's uh present in 17 states right now. What that means is the Department of Labor cannot implement or enforce that rule in those 17 states since the decision, and that was that came from the Southern District of Georgia. There have been uh three other lawsuits filed challenging the rule, one in North North Carolina, one in um Mississippi, and one in Kentucky. Um we're still kind of watching those and see where the the courts um decide. The Department of Labor, um, in light of this partial injunction, could have stayed the rule throughout the United States while the litigation played out. Um the Biden administration department of labor chose not to do that. So now we're at this patchwork of what regulations apply to H2A um employers around the country.
SPEAKER_00:How lawyers make their money, right?
SPEAKER_02:Yeah, exactly. Exactly. And you know, it it gets really complicated really quickly as you know, as farms are on the borders of states, and some states have these rules, some states don't. Um, it requires different filing requirements, and so literally the the applications are different if you're in different states and and And it has created a lot of confusion and headache on the on the administrative side. And I can only imagine what's going to happen on the enforcement side after you know the season and wage and hour starts doing enforcement. So to get back to your actual question, you know, will there be changes in the Trump administration? I think the worker protection rule is one that the Trump administration will look very closely at. I hope that the Department of Labor would immediately stay the rule all across the country while it's reviewed by the new administration and while the courts do their thing.
SPEAKER_00:So the H2A program, temporary seasonal ag workers, it's my understanding, at least initially, you saw a lot of it in California, Florida, vegetable fruit growers. It has expanded in Nebraska. To what extent and in sort of which industries do you see H2A visa holders working in the state of Nebraska?
SPEAKER_02:The program has expanded. It used to be a coastal issue. And you know, it really evolved in the 80s because of the needs in the Southeast, because they were not on the standard migratory stream of workers that you saw on the West Coast, more you know, workers that are coming in from Mexico and traveling up job to job the coast. The Southeast didn't quite have that same migratory workforce. Henceforth, we created this, you know, Congress created this seasonal agricultural visa program to help supplement that labor. Well, as there was increased labor shortages and labor instability caused by a um majority of workers being undocumented or falsely documented, there's just a lot of instability and people started turning more and more to the H2A program as a result. And like I mentioned at the outset, I mean, you see that in the numbers of visa workers coming in, but you do also see it in where they're being represented. Um, you know, in the top five states, I'm I'm going off memory here, but you know, um you have um North Carolina, you have California, you have Washington state, um Michigan, I believe, is up there as well. Um, and Florida is also in that mix. So those are the the top five states are still, I would say, kind of the bread and butter states of where you see migrant seasonal labor. Um, however, it has expanded. It is an all-of-America problem, um, especially in the Midwest and states like Nebraska, where you have such low unemployment rates, there is no bodies to do the jobs that um, you know, that are needed in rural America. And I would even say that's highlighted even further, exasperated further by seasonal needs.
SPEAKER_00:Let's go back to a word you mentioned at the outset, because I want to flesh that out a little bit. Use the term grit, and you learned grit while working on the farm as a child. I assume you were involved in 4-H and FFA?
SPEAKER_02:I was. I was.
SPEAKER_00:So, what types of things did you do? Is it raising livestock, things like that, that taught you grit that made you the person that you are today?
SPEAKER_02:So in 4-H and FFA, I showed cattle and hogs. I, of course, um also did the baking and the sewing, um, which I still am not very good at sewing a button on, but um I tried and I did, you know, and learned and got exposed to all sorts of different life skills. I mean, those programs, both 4-H and FFA, are just invaluable to youth in rural America and all over America, frankly, um urban, urban cities as well. Um, you know, and I also engaged outside of just the production side in public speaking and that type of um activity as well, parliamentary procedure. Um, yeah, I mean, it was about having those responsibilities, caring for an animal in my case, and you know, training the bucket calves to be halter broken, um, and just you know, know the value of a hard day's work, even when you know, maybe I didn't want to be out there in the heat. Um, you know, but you know, watching, you know, the pride that my family had in our business and um the results of harvest. I mean, harvest to this day is still my favorite time of of year to be able to watch all of that hard work come together and the smell of the dust and um just the you know, the CVs going back, even still the CVs going back and forth of grain cart drivers with with combine drivers. It it's just it is um memories that I have that I hold very fondly, and I just think that it evolved into a hard work ethic that has carried me into where I'm at today.
SPEAKER_00:So, Chris, do you one thing we ask all of our guests is to choose one word and just one word that describes and explains this great place where you were raised and you still call home the state of Nebraska? What's one word?
SPEAKER_02:It's very hard for me to say anything with one word. Um, and I even as I think about this, I want to explain it immediately. But um I would use the word peaceful. Can I explain?
SPEAKER_00:Absolutely. Of course you can.
SPEAKER_02:Okay. Um, yeah, I mean, there my husband teases me actually every time I step off a plane in Omaha, I just kind of take this fresh breath of air. And there is just something about that Nebraska air that brings me peace. Um, where, you know, and it starts in Omaha and where I see, you know, lots of friends and uh in Lincoln, where I, of course, through university have so many relationships as well, to sitting on my you know porch um at my farm. And there's just yeah, a piece about the fresh air, about what it means, you know, what the place means to me and and the memories I have there that um, you know, especially coming from a city like DC, where um you know it's oftentimes a rat race and you feel a little bit like you're on a hamster wheel and you know love our community and our neighborhood um dearly, but it's also on top of each other. And so it's it's just really nice to have that um you know peaceful feeling when I come back and visit.
SPEAKER_00:That's awesome. Christy, thanks for joining us today. Many blessings to you and your family. Thanks for joining. Please keep listening to 93 the podcast as we release additional episodes on Nebraska, its great communities, Nebraska's number one industry, agriculture, and the folks who make it happen.
SPEAKER_01:Thanks. This has been 93 the podcast. Sponsored by Nebraska's Welfare, Rumble Blood Gifts.
