JANUARY-APRIL 1996



The FAIR Act of 1996

This is it — one of our most informative issues of The Agricultural Law Letter that we've ever published. The new farm law, known as the Federal Agricultural and Improvement Reform (FAIR) Act of 1996, is this year's most important story for agriculture and agribusiness. As you know, we did not print the January-February newsletter in the hope that we could cover the entire farm bill in one large issue. We almost succeeded, but unfortunately, with such an enormous amount of information, we had to forego covering a few titles of the bill and some other provisions.

Our goal is to report on the most important aspects of the FAIR Act in two issues of the newsletter, thereby creating a very useful farm bill reference for our readers.

What's Covered In This Issue

With respect to the commodity programs, we have presented them in chart form, comparing the new FAIR Act with the previous law. If you are interested in reviewing the House, Senate, and proposed Conference comparisons, please see our past two issues of the newsletter. The Trade Title and the Conservation Title are presented in narrative form.

We were not able to include some commodity promotion sections, such as the creation of three new programs: popcorn, kiwi, and canola and rapeseed, nor did we cover the new generic program that would authorize the issuance of new promotion programs for other agricultural commodities. However, we did describe the section that was designed to affirm the constitutionality of commodity promotion programs.

What's Yet To Come

The next issue of the newsletter will cover the titles for: 1) Farm Credit, 2) Rural Development, and 3) Research, Extension and Education. We also plan to describe in greater detail some of the titles already covered in this issue.

Summary of Current Law With The FAIR Act of 1996

Provision Considered Previous Law Fair Act (p.l. 104-127)
Treatment of permanent law Permanent legislation for price support and production adjustment temporarily superseded by provisions of Food, Ag., Conservation & Trade Act of 1990 (FACTA). Retains permanent law (1938 and 1949 Acts). Suspends price support and production adjustment provisions for 1996 through 2002 crops of price support loan commodities, peanuts and sugar. The provisions of current law are also suspended for milk through Dec. 31, 2002. Repeals FACTA program provisions.
Eligibility to participate in farm programs Producers must be in compliance with production adjustment requirements of the programs, as well as highly erodible land and wetlands provisions (conservation compliance). At least a portion of crop land eligible for a contract must have been enrolled in the farm program for at least one of the 1991-95 crops or have been considered planted. The land cannot be used for a nonagricultural commercial or industrial use and the producer must comply with highly erodible land and wetlands provisions. Specific criteria are included to define eligible people clarifying owner and operator eligibility and the Secretary of Agriculture (Secy) is required to maintain adequate safeguards to protect tenant and sharecropper interests.
General terms of the programs Under current law, wheat, feed grains, cotton, and rice receive price support through nonrecourse loans and/or purchases and through deficiency payments that represent the difference between market prices and/or the loan rates and the "target" prices for the commodities set by law. Eligibility for such loans and payments is conditioned on voluntary participation by producers in a variety of production adjustment programs that limit plantings of program crops in order to adjust the supplies to market demands. Soybeans and other designated oilseeds are also eligible for nonrecourse price support loans, but not deficiency payments. The FAIR Act provides for a system of guaranteed annual payments to owners and operators under "production flexibility contracts" over the period 1996 through 2002. Each producer's payment represents a share of the funds allocated by law for the program in each of those years. The Secy is required to spend the following amounts for each fiscal year (FY Oct. 1 - Sept. 30):
FISCAL
YEAR
AMOUNT
(in millions)
1996 $5,570
1997 $5,385
1998 $5,800
1999 $5,603
2000 $5,130
2001 $4,130
2002 $4,008

The amount of funds available in a fiscal year may be adjusted by adding all repayments of deficiency payments required by the old farm program, adding any required contract refunds, or subtracting any 1994 or 1995 deficiency payments still owed to cotton, feed grain or wheat producers. Of the funds available in each FY, 46.22% will go for corn, 5.11% for grain sorghum, 2.16% for barley, 0.15% for oats, 26.26% for wheat, 11.63% for cotton, and 8.47% for rice. (Note: The share of the funds for rice will be increased by $8.5 million for FY 1997 through 2002.) Producers’ individual payments will equal 85% of the product of the farm’s contract acreage multiplied by the farm’s program payment yield for the commodity times the payment rate for the commodity (85% x Contract Acres x Program Yield x Payment Rate.) Planting is allowed of any program crops, oilseeds, industrial or experimental crop, mung beans, lentils and dry peas on contract acreage. Nonrecourse marketing loans will also be avail-able on contract commodities as well as on soybeans and some other oilseeds.

Life of section For rice, feed grains, wheat, and oilseeds, the current law expires with the 1995 crop. For cotton, the law expires with the 1997 crop. Provides for 7-year transition production flexibility contracts with producers which cover the 1996 through 2002 crops of rice, feed grains, cotton, and wheat.
Haying and grazing Permits haying and grazing on controlled acres except during a 5-month period during the growing season specified by state committees and at any time in case of natural disasters. No restrictions on haying and grazing of contract acres.
Loan availability For rice, feed grains, wheat, and oilseeds, price support is made available by CCC. For rice, feed grains, and wheat, the level is set at 85% of market prices. In the case of cotton, nonrecourse loans at 85% of U.S. price or 90% of world price are available. For oilseeds, the level of support is $4.92 per bushel for soybeans and not less than $0.78 per pound for the eligible oilseeds. Nonrecourse marketing assistance loans would be made available to eligible producers of wheat, feed grains, upland cotton and rice on all of their contract commodity production if they have signed a 7-year production flexibility contract. Nonrecourse loans on oilseeds and ELS cotton will be available on any production. Loan rates for wheat, corn and upland and ELS cotton will be at not less than 85% of preceding 5-year market prices. Wheat loan rate is capped at $2.58/bu., corn $1.89/bu., ELS cotton at $0.7965/lb. Upland cotton may not be less than $0.50/lb. nor more than $0.5192/lb. Other feed grain rates will be set off of corn. Wheat and corn loan rates may be reduced according to stocks to use ratios by up to 10%. The loan rate for rice is set by law at $6.50/cwt. The soybean loan rate will be 85% of 5-year olympic average market price but not less than $4.92/bushel nor more than $5.26/bushel. Sunflower, canola, rapeseed, safflower seed, mustard seed and flaxseed are eligible for marketing loans at 85% of 5-year olympic average market price, but not less than $0.087/lb. nor more than $0.093/lb. Other oilseed rates priced off of soybeans. 9-month loans for all except cotton which has 10-month loans. Recourse loans to be made available for high moisture feed grains and seed cotton.
Marketing Loan Repayment Rate Wheat, feed grains, cotton, rice and oilseeds price support loans all have a marketing loan option that permits repayment of price support loans at 70% of the loan rate or the prevailing world price, whichever is higher. Repayment rate for wheat and feed grain loans will be the lesser of the loan rate plus interest or the rate set to minimize: potential loan forfeitures; accumulation of government stocks; and government stock storage costs and to promote free and competitive markets. Upland cotton and rice repayment rates are the lesser of the loan rate or the prevailing world market price.
Deficiency payments Deficiency payments equal to the difference between the established or "target" price and the loan rate or market price (whichever is the greater) are made to participating producers. The minimum established price for wheat is $4.00/bu; rice is $10.71/cwt.; for cotton, $0.729/lb.; for corn, $2.75/bu.; for oats, $1.45; for grain sorghum, $2.61; and for barley, in reasonable relationship to corn.


Table Here
Loan deficiency payments Producers who forego entering loans may receive loan deficiency payments equal to the difference between the loan rate and the applicable repayment rate (generally the higher of 70% of the loan rate or the world market price.) Retains current law practice of making loan deficiency payments available for difference between loan rate and applicable repayment rate outlined above. ELS cotton is not eligible for these payments.
Maximum payment acres The maximum payment acreage is the lesser of the planted acres or 85% of the crop acreage base. Contract payments made on 85% of contract acreage regardless of whether acres are planted to the contract commodity or any commodity.
Acreage reduction program (ARP) Provides authority for the Secretary to conduct various acreage reduction programs. Repeals ARP authority.
Crop acreage bases Provides for crop acreage bases for program crops based on previous 5-year planting history, except the planting history for cotton and rice need cover only 3 years. Suspends current law for the 1996-2002 crops. The base acreage that would have been in effect for the 1996 crop if the farm program under the 1990 farm bill had been continued is used with program payment yield to determine amount of production covered by the 7-year production flexibility contracts.
Planting flexibility Without suffering a reduction, crop acreage base can be planted to any program crop, any oilseed, any industrial or experimental crop designated by the Secy, mung beans and any other crop (except fruits and vegetables), so long as such other crops do not exceed 25% of the base. Soybeans, if in excess supply, may not exceed 15% of base. Farmland under contract may be planted to any program crop as well as lentils, dry peas and mung beans. Fruits and vegetables may be planted on contract acreage under some circumstances when there is a history of such production on the farm. However, any planting of a fruit or vegetable, except in a historical double cropping situation, will reduce a contract payment acre for acre for each one planted to the fruit or vegetable.
Farm program payment yields Bases farm program payment yield on 1990 crop year. Permits establishment of actual yields and adjustment of yields by county committees. Suspends current law for the 1996-2002 crops. The farm program payment yield established for the 1995 crop of a contract commodity is used to compute the amount of production covered by the contract.
Marketing certificates Provides marketing certificates or cash payments to handlers when U.S. price fails to keep U.S. cotton fully competitive in world markets and the prevailing world market price is below the current loan repayment rate. Provides marketing certificates or cash payments to U.S. cotton users and exporters when U.S. price exceeds the Northern European cotton price by more than 1.25¢/lb. and the world price does not exceed 130% of the cotton loan level (known as "step 2" payments). Authorized through July 31, 1998. (In addition to eligibility for contract and marketing loan payments noted above.) The bill, with modifications, substantially extends current law through July 31, 2003, but limits total expenditures on "step 2" payments to $701 million during fiscal years 1996-2002. (In addition to eligibility for contract and marketing loan payments noted above.)
Special import quota Provides for special import quotas on cotton whenever the price of U.S. cotton delivered to Northern Europe exceeds the Northern Europe price by more than 1.25¢/lb. for 10 consecutive weeks. Authorized through July 31, 1998. The bill, with modifications, substantially extends current law through July 31, 2003.
Limited global import quota Provides for a separate import quota program whenever U.S. domestic prices exceed 130% of average price for the preceding 36 mos. Authorized through the 1997 crop. The bill, with modifications, substantially extends current law through July 31, 2003.
Life of Section 1991-1996 for price support. Indefinite for milk orders. 1996-1999 for price support. Indefinite for milk marketing orders.
Price Support Sets level of support at $10.10 per cwt. of milk for 1991-1996. Provides the Secretary with authority to adjust prices if supplies are excessive.

Sets the level of support for milk at:
$10.35/cwt. — 1996
$10.20/cwt. — 1997
$10.05/cwt. — 1998
$ 9.90/cwt. — 1999

Provides for a recourse loan program for commercial dairy product processors for butter, non-fat dry milk and cheddar cheese to begin Jan. 1, 2000 at the 1999 level of support for milk, i.e., $9.90/cwt.
Consolidation of Marketing Orders No comparable provision. Requires consolidation of milk marketing orders to not less than 10 nor more than 14 over next three years. California is to be established as a separate Federal order if its producers petition for and approve such a measure.
Limits on Manufacturing Limits manufacturing allowance a state may provide to similar allowance under Federal Marketing Orders. Manufacturing allowances (excess of product price over class price for milk) limited to $1.65 for butter and non-fat dry milk and $1.80 for cheese.
Fluid Milk Promotion Authority provided for promotion of fluid milk through 1996. Authority extended through 2002. Policy declarations amended to make clear that intention of statute is not to displace private advertising. Definition of "research" expanded, and referendum voting rules changed.
Northeast Interstate Dairy Compact No comparable provision. Provides congressional consent to implementation of the Northeast Interstate Dairy Compact by the Secretary on a finding of a compelling public interest, thereby creating a regional marketing group to regulate Class I milk prices in the six New England states until the Secretary completes consolidation and reform of marketing orders. Delaware, New Jersey, New York, Pennsylvania, Maryland and Virginia are permitted to join if Congress consents.
Dairy Export Incentive Program (DEIP) Directs CCC to make incentive payments on a bid basis for the period 1985-2001 to entities that sell U.S. dairy products for export. Provides for extension of the program through 2002 and requires use of CCC funds in amounts to provide the maximum volume of exports consistent with obligation of the U.S. as a member of the World Trade Organization. Expands scope of program to include market development objectives.
Life of section 1991-1997 1996-2002
Price support loans Provides for nonrecourse loans at not less than 18¢/lb. for raw cane sugar and comparable level for beet sugar. Sugar under loan may be forfeited to CCC without penalty. Changes current law to provide for price support through nonrecourse loans only when tariff rate quota on sugar imports is equal to 1.5 million or more short tons. If the tariff rate quota falls below this level only recourse loans shall be available. Sugar under loan may only be forfeited at a penalty equivalent to 1¢/lb. Loan rates set at 18¢/lb. for raw cane sugar and 22.9¢/lb for refined beet sugar. Provides for reductions in loan rate if other major sugar producing countries reduce their support for sugar.
Marketing assessments Provides for marketing assessments for domestically produced raw cane sugar of 1.1% of loan level (but not more than .198¢/lb.) and on domestically produced beet sugar of 1.1794% of loan level (but not more than .2123¢/lb.) Raises marketing assessment on raw cane sugar for fiscal years 1997-2003 to 1.375% of loan rate without any cap, and on beet sugar for FY 1997-2003 to 1.47425% of the beet sugar loan rate without any cap. Marketing assessment on 1996 crop remains at current rates.
Marketing allotments for sugar Whenever sugar imports are estimated to be less than 1,250,000 short tons for the fiscal year, the Secy is required to establish marketing allotments for processors of sugar cane, sugar beets and crystalline fructose so that imports will be not less than 1,250,000 short tons. Repeals existing law.
Life of section 1991-1997 1996-2002
Loans, purchases and other means Requires price support for quota peanuts at previous year's level, adjusted to reflect cost of production increases. Current level of support is $678 per short ton, farmers’ stock basis. Additional peanuts supported at rate Secy finds appropriate, taking into consideration oil and meal prices, as well as export markets. Current “additional” loan rate is $132 per ton. Provides a national average support rate of $610 per ton for quota peanuts for the life of the bill. Retains current law for support for additionals. Provides that producers who reject offers from handlers at price support prices or better for two years will be ineligible for price support for the next marketing year.
Area marketing associations Area marketing associations must be used by USDA to administer and supervise activities relating to price support and marketing of peanuts under the Act. Associations administer marketing pools and apply gains on additionals against losses on quota peanuts. Continues use of area marketing associations. Sets priorities for loss recovery from marketing pools: (1) producer proceeds to be reduced by any loss resulting from a disaster transfer; (2) producer losses on quotas to be offset by same producer's gains on additionals; (3) any CCC gains on additionals in that area; (4) marketing assessments paid by producers noted below to be applied; (5) gains from other areas first on quota peanuts, then on additionals; (6) marketing assessments due from handlers; and (7) increased assessments on producers in the area covered by the pool as necessary to cover the balance of losses.
Marketing assessments Assessments of 1.1% on the 1995 crop, 1.15% on 1996 crop, 1.2% for 1997 crop. Assessment split between producer (.55%, .6%, .65%) and first purchaser (.55%). Retains assessments with 1.2% on 1997 crop continued through 2002. Provision is also made for increased assessments to cover program losses on an area pool by area pool basis.
Poundage quotas Establishes national poundage quota on basis of peanuts for edible usage, seed and related uses, but not less than 1,350,000 tons. Eliminates minimum poundage quota. Provides that beginning with the 1998 crop, municipalities and other public entities such as airports, schools etc. shall not be eligible for quotas. Similarly, persons who are not producers and who live outside the state will be ineligible for quotas.
Seed peanuts Requires that seed peanuts be quota peanuts. Provides temporary allocation of quota to growers of additionals and others to produce seed.
Sales and leases of poundage quota Permits the sale or lease of peanut poundage quota only within the same county. Extends existing law to 2002 with minor changes. Expands Spring and Fall transfers of quota to permit them to move throughout a state in amounts not to exceed increasing, but cumulative, limits specified in the law for each year, with a total cap on transfers of not greater than 40% of the Jan. 1, 1996, total poundage quota in the county.
Disaster Transfers Permits transfer of additional peanuts to quota loan pool for full price support treatment if natural disaster prevented the harvest of quota peanuts. Retains existing law but disaster transfers capped at 25% of quota pounds and any such transfers will only receive 70% of the quota support rate.
Payment Limitations Payments a “person” may receive under one or more commodity programs, including oilseeds, may not exceed: 1) $50,000 for deficiency payments; 2) $75,000 for marketing loan gains and loan deficiency payments and any payments resulting from a reduction in basic loan level (Findley payments); and 3) a total of $250,000 for the above two limits. However, a “person” is permitted to hold a substantial beneficial interest (10% or more) in a total of 3 entities receiving payments. The total amount of contract payments to a person under one or more production flexibility contracts in any fiscal year may not exceed $40,000. Existing cap on marketing loan gains and loan deficiency payments is retained at $75,000. Three-entity rule retained. Overall cap of $250,000 repealed. Secretarial authority to make adjustments in the payment limitations or alter ARPs due to impact of payment limits is repealed.
Emergency Livestock Feed Assistance Program Provides assistance to livestock producers who due to natural disaster have lost a substantial amount of feed normally produced on the farm. Repeals current law.
Farmer Owned Reserve (FOR) If Secy permits its use, the FOR allows producers to store wheat and feed grains under loan in their own storage facilities and receive storage payments from CCC. Repeals current law.
Conservation Programs Conservation Reserve Program (CRP) - authorized through 1995 with 38 million acre cap. Wetlands Reserve Program (WRP) - authorized through 2000. Secy to enroll not less than 975,000 acres. Easements for 30 years or permanent. Reauthorizes CRP and WRP through 2002. The bill also adds many new conservation provisions, including an environmental quality incentives program (EQIP), creates and authorizes funds for a Natural Resources Conservation Foundation, and provides other changes to existing conservation laws. (See discussion on conservation measures below.)
Commodity Credit Corp-oration (CCC) Interest Rate Interest rate charged on CCC price support loans set by a specific formula. Adds 100 basis points or 1% to rate computed under existing formula.
Mandatory crop insurance coverage Requires that as a condition for receiving benefits, producers of tobacco, rice, ELS cotton, upland cotton, feed grains, wheat, peanuts, oilseeds and sugar must carry at least catastrophic (CAT) coverage if offered by the Federal Crop Insurance Corporation (FCIC). Would permit the Secy to require catastrophic coverage for eligibility for farm program benefits or permit the producer to waive all rights to any disaster benefits that may be available for the crop for which insurance is not secured. Begins with 1996 crops. An extended 2-4 week period post enactment provided for producers to secure CAT coverage, cancel CAT coverage, or secure new malting barley endorsement.
Optional USDA delivery of catastrophic coverage Permits the Secretary of Agriculture to use county USDA offices to deliver catastrophic insurance coverage to producers based on specific needs criteria. Requires elimination of USDA county office delivery unless the Secy finds private insurers do not provide adequate catastrophic risk protection.
Program management USDA Reorganization Act of 1994 merged FCIC and the former Agricultural Stabilization and Conservation Service (ASCS) into the new Farm Service Agency (FSA). Reestablishes FCIC as an independent agency in the form of the Office of Risk Management to administer the crop insurance and other risk management programs, including the options pilot program. Authority over the noninsured crop disaster assistance program (NAP) established by the Federal Crop Insurance Reform Act of 1994 remains in the FSA with funding from the CCC.
Funding of delivery expenses Beginning with Fiscal Year 1997, the sales commissions of insurance agents portion of program delivery expenses begin to require annual funding from discretionary sources. FAIR Act delays reliance on discretionary funding until Fiscal Year 1998, thereby fully funding all program aspects through mandatory accounts through crop year 1997.
Revenue Insurance Pilot Programs Existing Federal Crop Insurance Act permits FCIC to approve alternative and supplemental insurance products on a pilot or broader basis. Two revenue insurance based pilot programs are in effect for the 1996 and 1997 crop years. Requires the Secy to offer revenue-based insurance programs on a pilot basis on wheat, feed grains, soybeans, and such other commodities as determined appropriate through the year 2000. (Note: pilot programs on nursery crops and crops damaged by insect infestation and disease also mandated.)
Conservation Cross Compliance Insureds must certify compliance with highly erodible land conservation and swampbuster wetland regulations to be eligible for crop insurance coverage. Repeals conservation cross compliance as a crop insurance eligibility requirement.
Options Pilot Program Corn, wheat and soybean pilot programs providing farmers in selected counties with option of foregoing deficiency payments and marketing loans and using equivalent monies to purchase futures options to support farm income. Authority expired with 1995 crops. Reauthorizes the pilot program through 2002 as an alternative to other price support programs for one or more commodities supported by the FAIR Act. Program limited to not more than 100 counties, no more than 6 in any one state, and the operation of the program for a particular commodity is limited to three years. Secy required to work with Commodity Futures Trading Commission in providing increased risk management education.
Crops covered under NAP The noninsured crop disaster assistance program (NAP) is limited to crops grown for food and fiber for which crop insurance is not available, floricultural, ornamental nursery and Christmas tree crops, turfgrass sod, and industrial crops. NAP eligibility expanded to include seed crops, aquaculture, and ornamental fish.


Periodic Evaluations Required

In the FAIR Act, Congress has also added language to require periodic and independent evaluations of the effectiveness of promotion programs. These evaluations must be carried out no less often than every five years.

It remains to be seen how much weight the Supreme Court will give to the intent of Congress should the petition for writ of certiorari in the Wileman case be granted. However, with Congress stating emphatically in the FAIR Act that the promotion laws it has enacted have a clear and specifically-defined national objective that is not in conflict with individual producers’ rights to free speech, it would appear that the courts will have to give some deference to this statute.

Mr. McLeod is a partner in the firm and practices agricultural and agribusiness law. He is a former General Counsel and Staff Director for the Senate Agriculture Committee.


Conservation Title of The Farm Bill

By approving the new farm bill, Congress again demonstrated its strong commitment to enhancing the environment which is a cornerstone of American agriculture.

The newly approved conservation title continues the “soil resource” traditions first established in the decades old soil bank era. Progress in reducing soil erosion was greatly enhanced with enactment of the Conservation Reserve Program (CRP) and the conservation compliance provisions in the 1985 farm bill, and the 1996 legislation further refines these two significant conservation measures.

“Water resource” or water quality-related programs, such as the Wetlands Reserve Program (WRP), also are continued with some modifications. First created in the 1990 farm bill, the Water Quality Incentive Program has now evolved into the “Environmental Quality Incentive Program” (EQIP).

This farm bill goes even farther in establishing programs that are specifically designed to protect the Everglades ecosystem, wildlife habitat, private grazing land, farmland surrounding urban areas, and flood prone areas from being farmed.

Environmental Conservation

Acreage Reserve Program

The CRP, WRP and EQIP together provide three aggressive programs that will assist agricultural producers in meeting almost any environmental challenge. They are combined under an umbrella program called the “Environmental Conservation Acreage Reserve Program” (ECARP).

Under ECARP, the Secretary “may designate watersheds, multistate areas, or regions of special environmental sensitivity as conservation priority areas that are eligible for enhanced assistance.” This authority to establish conservation priority areas will provide, for the first time, a valuable mechanism to target resources in a coordinated area-wide effort to address non-point source pollution requirements under the Clean Water Act.

Conservation Reserve Program

The CRP, which pays farmers to idle highly erodible and other environmentally sensitive land, is capped at the current level of 36.4 million acres throughout the seven year life of the farm bill.

New authority is given to USDA to enter into new contracts and extend expiring CRP contracts, with discretion in setting rental payment rates. In addition, participants in the program for at least five years are allowed to terminate CRP contracts except on those lands that are deemed to be of high environmental value. This means that filterstrips, waterways, strips adjacent to riparian areas, windbreaks, shelterbelts and highly erodible lands (i.e. land with an erodibility index of more than 15) would not be eligible for early termination of an existing CRP contract.

Farmers will be eligible for the “early-out” provision on all or part of their enrolled acreage if they provide USDA with a “reasonable notice” of the request. Such termination of an existing contract would be effective 60 days after the farmer notifies USDA.

Wetlands Reserve Program

The WRP is a significant conservation program providing farmers with the opportunity to restore farmed or converted wetlands through enrollment in long-term or permanent conservation easements in exchange for annual or lump-sum payments. Enrollment in the WRP is limited to no more than 975,000 acres through 2002.

The new farm bill modifies the WRP to encourage the use of more temporary easements and cost-share restorations. To the maximum extent practicable, the Secretary is directed to enroll one-third of these WRP acres in permanent easements, one-third in 30-year easements, and one-third in restoration cost-share agreements. Additional permanent easements are permitted under the program, but only after the USDA enrolls at least 75,000 acres in 30-year easements.

“Restoration cost-share agreements” are available to finance 50-75% of the cost of restoring a wetland, but would not involve the purchase of easements or rental payments for land restored to wetlands.

Environmental Quality Incentive Program

The legislation creates a new “Environmental Quality Incentive Program” that targets in excess of $1.2 billion over seven years to crop and livestock producers for environmental/conservation improvements in their farm operations. The Commodity Credit Corporation (CCC) is to authorize a total of $130 million for the remainder of FY1996, and make $200 million available annually for 1997-2002. These funds are available for technical assistance, cost-share payments, incentive payments and education. For each fiscal year, 50% of the funds are to be used for “practices relating to livestock production.”

The financial assistance can be used for animal waste management facilities, terraces, waterways, filterstrips or other structural and management practices to protect water, soil and related resources. USDA will make incentive payments to producers for implementing various land management practices and cost-share assistance to fund the construction of certain structural features.

EQIP combines the functions of the Water Quality Incentive Program, the Great Plains Conservation Program and the Colorado River Basin Salinity Control Program into a single comprehensive program. Incentive payments or cost-share assistance to individual operations is capped at $10,000 per year and at $50,000 for a multi-year contract. In return for this assistance, producers are required to implement conservation plans for five to 10 years.

The maximum cost-share of any federal contribution to a producer implementing one or more structural features is 75%. The actual federal share of such assistance will be determined by the Secretary, with consideration for any payments received by the producer from State or local government.

A “large confined livestock operation,” as defined by USDA, is ineligible for cost-share assistance to build an animal waste management facility. Therefore, USDA will need to determine through regulation, the appropriate number of cattle, hogs, chickens, turkeys, and sheep in an operation that will be able to qualify for EQIP funds.

The USDA is required to allocate technical and financial assistance to producers in a region, watershed or designated conservation priority area based on the significance of their environmental problems. In addition, the USDA is required to administer the program to “maximize environmental benefits per dollar expended” and give priority to areas where the “State or local governments have provided, or will provide, financial or technical assistance to producers for the same conservation or environmental purposes.”

Conservation Farm Option

A new “Conservation Farm Option” offers producers participating in certain farm commodity programs (i.e. for producers of wheat, feed grains, cotton and rice) an additional alternative to meet conservation goals. This pilot program allows farmers to combine subsidies with conservation incentive payments. To be eligible to enter into a conservation farm option contract, producers must prepare and submit a conservation farm plan to USDA.

The farm plan must describe the resource-conserving crop rotations and all other conservation practices to be implemented on the acreage subject to the contract.

In exchange for payments under this optional program, the producer becomes ineligible to participate in the CRP, WRP and EQIP. Instead, producers will receive annual payments that are equivalent to the payments that would be provided pursuant to these three programs. Such contracts are for 10 years with a renewal period not to exceed five years, upon mutual agreement of the producer and USDA. To implement this program, Commodity Credit Corporation funds made available are $7.5 million in fiscal year 1997, $15 million in 1998, $25 million in 1999, $37.5 million in 2000, $50 million in 2001 and $62.5 million in 2002.

Everglades Ecosystem Restoration

The farm bill mandates that $200 million be made available from the U.S. Treasury on July 1, 1996, to the Interior Department to conduct restoration and fund resource protection activities in the Everglades ecosystem. In addition to this $200 million initiative that will buy land in south Florida to protect the Everglades, the federal government also could acquire as much as $100 million in additional lands through swaps and sales of other federally held lands in Florida.

Other New Conservation Programs

The final legislative package also included a number of the Senate conservation programs, including a new “Flood Risk Reduction Program” providing farmers with incentives to take frequently flooded lands out of production. USDA would contract with producers in the farm commodity program to discontinue farming in frequently flooded areas. In return for agreeing to such a contract, USDA will pay the producer an amount not more than 95% of the projected payments provided under the commodity program.

The “Farms for the Future Program” is designed to protect farmland near urban areas. This $35 million farmland preservation initiative provides funding through the CCC to buy easements on farmland threatened by commercial development. The conservation easements or other interests acquired under this program will not be less than 170,000 acres nor more than 340,000 acres of land “with prime, unique or other productive soil,” or farmland located near urban areas.

The “Wildlife Habitat Incentives Program” to be administered by the Natural Resource Conservation Service (NRCS) is also created by the legislation. Under this program, the NRCS would make cost-share payments to landowners “to develop upland wildlife, wetland wildlife, threatened and endangered species, fish, and other types of wildlife habitat approved by the Secretary.” A total of $50 million is made available for this program through year 2002.

Also authorized is a cooperative federal, state and local program to promote the conservation of private grazing land. The NRCS would provide the technical and educational assistance to farmers and ranchers. Funding levels of $20 million in fiscal year 1996, $40 million in 1997 and $60 million in 1998 and thereafter are authorized to implement this program.

Finally, the legislation establishes a non-profit “National Natural Resources Conservation Foundation” to pursue various “charitable, scientific and educational” activities to promote conservation. The foundation will be administered by a nine-member Board of Trustees appointed by the Secretary. Appropriations of up to $1 million per year for three years beginning in 1997 will serve as “seed money” to get the foundation started, and gifts may be accepted and money raised to sustain its efforts.

Conservation Compliance Reform

The new law modifies the “sodbuster” provisions or “conservation compliance” requirements on highly erodible land. Farmers are given enhanced flexibility to modify conservation practices if they can demonstrate that the new practices they want to use achieve equal or greater erosion control as the practices recommended by USDA.

A one-year “good faith exemption” is provided to farmers who do not deliberately violate their conservation plans. Moreover, variances from conservation compliance now can be granted from adverse weather or disease, and program payment penalties can be adjusted to be commensurate with the violation.

In fact, producers may request a technical determination and if a county or area committee determines that the application of the conservation system would impose an “undue economic hardship” on the producer, the committee could “provide the producer with relief to avoid the hardship.”

Swampbuster Reforms

USDA will have greater flexibility in assessing penalties under the “swampbuster” program, that protects wetlands from being farmed. Penalties now may be adjusted to fit the wetlands violation.

Exemptions from penalties may be granted for “good faith” violations. Farmers who violate swampbuster provisions but are found by the USDA to have “acted in good faith and without intent” to commit a violation are granted an exemption and have one year “to be considered to be actively restoring the subject wetland.” However, the new legislation will not exempt wetlands of one acre or less in size from swampbuster jurisdiction. The proposed exemption for wetlands that can be farmed six out of 10 years was not included in the final provisions.

USDA may implement a pilot mitigation banking program to help farmers comply with the wetlands conservation requirements of swampbuster for frequently cropped wetlands or wetlands on which crops can be grown under natural conditions. This program would be part of the CRP and administered at the local level.

The NRCS is designated as the lead federal agency in wetlands delineation and regulation of grazing lands. As the sole federal agency with authority to delineate, determine and certify all wetlands on agricultural land, USDA will no longer have to consult with the Department of Interior’s Fish and Wildlife Service in carrying out its wetlands responsibilities. In addition, current wetlands delineations remain valid until a producer requests a review.

Water Rights

In place of a controversial Senate provision that would have restricted the Forest Service from diverting water in western areas, conferees imposed an 18-month moratorium on the practice, pending further study. This interim moratorium temporarily will prohibit the Forest Service from requiring “bypass flows” as a condition of renewing a land use authorization permit. A “Water Rights Task Force” is established to study and make recommendations to protect water rights and minimum instream flows, to avoid conflicts with existing state laws and the Forest Service and to determine whether federal water rights should be acquired for environmental protection on national forest land.

Richard Pasco is an attorney in the firm specializing in legislative, environmental, agricultural, food safety, food labeling, and trade issues.


Congress Addresses Confusion Over Commodity Promotion Programs

As reported on page 12, the supporters of generic promotion programs scored a victory in the U.S. District Court for the District of Kansas. In that case, Goetz v. Glickman, the District Court strongly affirmed the constitutionality of the beef checkoff program. Now another victory has occurred that should also help ensure the future of commodity checkoff programs — the decision by Congress to clarify and define the purpose of the programs.

Background

The Ninth Circuit Court of Appeals delivered two blows to marketing orders that provide for generic advertising (see The Agricultural Law Letter, May-June 1995.) In a Dec. 1993 decision, the Ninth Circuit held that the USDA’s almond marketing order violated the First Amendment to the Constitution. Cal-Almond, Inc. v. USDA, 14 F.3d 429, 439 (9th Cir. 1993). Thereafter, in a June 27, 1995 decision, the Ninth Circuit held that USDA’s generic advertising program for California nectarines and peaches failed to meet a First Amendment test. Wileman Bros., et al. v. Espy, 58 F.3d 1367 (9th Cir. 1995). Subsequently, the U.S. Solicitor General petitioned the Supreme Court for a writ of certiorari on the Wileman Bros. case.

Congress Steps In

Because the position taken by the Ninth Circuit raised serious concerns about the future of commodity checkoff programs that provide for generic advertising of agricultural products, Congress felt compelled to address this issue in the Farm Bill, otherwise known as the Federal Agricultural Improvement and Reform (FAIR) Act of 1996. For several of the major farm commodities, such as cotton, dairy, beef, eggs, soybeans and pork, commodity promotion programs are an important feature of farm policy. It is believed that the generic advertising programs for those commodities are vital to maintaining and expanding markets.

The Provisions of the FAIR Act

In Section 501 of the FAIR Act, Congress defines commodity promotion laws and specifically references market promotion programs under the Agricultural Marketing Agreement Act of 1937, as well as the programs authorized under 13 commodity-specific statutes and the three new programs that the Act authorizes.

Congress specifically addresses the constitutional questions raised by the Ninth Circuit. In addition to declaring that promotion programs are in the national public interest and vital to the welfare of the agricultural economy, Congress attempts to answer a basic misconception held by the Ninth Circuit. Congress declares that the central purpose underlying each commodity promotion law has been to maintain and expand markets for the agricultural commodity covered by the law, rather than to maintain or expand the share of those markets for an individual producer or processor.

Since the Ninth Circuit has construed these programs to violate the First Amendment right of freedom of speech, the Congress specifically notes that commodity promotion laws were not designed to, and do not, prohibit or restrict individual advertising or promotion of the covered commodities by any individual producer, processor or group of producers or processors.

Additional language specifically states that it has never been the intent of Congress for generic commodity promotion programs to replace advertising and promotion efforts of individual producers or processors, and that the checkoff programs do not in fact replace such individual efforts.

Distinction Between Generic Advertising and Individual Advertising

Congress makes the distinction between an individual producer or processor’s own advertising initiatives, which are typically designed to increase that individual’s share of the market, and a generic promotion program, which is designed to maintain or increase the overall demand for the agricultural commodity covered by the program. By carefully making this distinction between individual advertising and generic advertising, Congress attempts to remove the test that the Ninth Circuit placed on the Secretary: “Does the mandatory generic advertising program sell the product more effectively than specific, targeted efforts of individual handlers?”

Congress characterizes these commodity promotion laws as self-help mechanisms for producers, under the required supervision and oversight of the Secretary of Agriculture, which both further specific national goals as established by Congress, and produce non-ideological and commercial communication, the purpose of which is to further governmental policy.

Programs Are Narrowly Tailored

In the Cal-Almond and Wileman cases, the Ninth Circuit applied the requirement that the programs must be narrowly tailored. Congress answered this contention by stating that, while some commodity promotion laws give a producer the right of crediting producer or processor advertising against their program assessments (while other promotion laws do not provide such credits), both programs are very narrowly tailored to fulfill the Congressional purposes of the commodity promotion laws without impairing, or infringing upon, the legal or constitutional rights of any individual producer or processor.

In addition, Congress stated that these generic commodity promotion programs are of particular benefit to small producers who often lack the resources or market power to advertise on their own and who are otherwise unable to benefit from the economies of scale available in promotion and advertising.

Generic Promotion Programs Win A Key Victory

Kansas Court Rejects Goetz’ Constitutional Challenge to Beef Act In late February, Judge Frank G. Theis of the U.S. District Court for the District of Kansas handed down a decision in Goetz v. Glickman that strongly affirmed the constitutionality of the Beef Checkoff Program. Filed in August 1994, Jerry Goetz’s lawsuit challenged the constitutionality of the Beef Promotion Act of 1985, commonly known as the Beef Checkoff. Mr. Goetz claimed that the Checkoff violated his free speech, free association, and other constitutional rights. Judge Theis rejected all of Goetz’ constitutional arguments.

In the face of two recent decisions that have struck down such programs on First Amendment grounds, this key decision gave renewed strength to supporters of these generic promotion programs. Our firm (McLeod, Watkinson & Miller) and Hogan & Hartson successfully represented the intervenors in Goetz, who entered the case on the side of the government. The intervenors were the Kansas Livestock Association, the National Cattlemen’s Association, the National Live Stock and Meat Board, and four Kansas cattle ranchers.

Decision Rendered in Highly-Charged Context

Wileman and Cal-Almond are the two decisions handed down (in 1995 and 1993) by the Ninth Circuit Court of Appeals in California that struck down the federal commodity promotion programs for nectarines and almonds. The Ninth Circuit ruled that the programs violated the First Amendment rights of the people who were assessed to fund them. The two decisions, particularly Wileman, sent shock waves throughout the agricultural community, especially those commodity producers on the West Coast that were most directly affected. (See “Ninth Circuit Delivers Another Blow to Marketing Orders,” Agricultural Law Letter, July-Aug, 1995). Since Wileman was handed down in June 1995, the Ninth Circuit has rejected the USDA’s request to reconsider that decision. In late January, however, the Solicitor General asked the U.S. Supreme Court to review and reverse Wileman. While we do not yet know whether the Supreme Court will review the Wileman decision, the Court historically has reviewed more than 75% of the cases the Solicitor has asked it to review.

In any event, both issuance and timing of the Goetz decision and the Solicitor General’s decision to seek Supreme Court review of Wileman provide a welcome boost to those who support producer-funded generic commodity promotion programs.

Judge Theis Refuses to Follow Wileman

In granting the motions of the government and the beef industry parties to dismiss Goetz’ constitutional challenges, Judge Theis relied largely on the 1989 Third Circuit precedent of U.S. v. Frame. He refused to adopt the Ninth Circuit’s Cal-Almond/Wileman First Amendment analysis. Indeed, not only did Judge Theis reject the Ninth Circuit’s approach, he did not even cite or discuss those two decisions anywhere in his 22-page decision.

Goetz’ Claims Dismissed, His Injunction Dissolved

Point by point, Judge Theis dismantled each of the constitutional challenges asserted by Goetz. Judge Theis rejected Goetz’ claim that the Beef Promotion Act and Order (1) violated the Constitution’s commerce clause; (2) constituted an unconstitutional direct tax; (3) created an unconstitutional delegation of legislative authority; (4) violated Goetz’ equal protection rights; (5) constituted an unconstitutional taking for non-public purposes without just compensation; (6) violated Goetz’ right to free speech; and (7) violated Goetz’ right to free association.

Commerce Clause

With respect to Goetz’ commerce clause challenge, Judge Theis held that the objectives of the Act were constitutionally valid ones, noting that “[t]he stimulation of trade in a particular industry is a proper regulatory activity,” and that “[i]t was a legitimate goal for Congress to seek to strengthen the beef industry.” The Court then disposed of Goetz’ key commerce clause argument by saying, “Plaintiff ignores reality by taking the position that the production of beef does not substantially affect interstate commerce.” Citing Frame, the Court concluded that “[t]he promotion of beef represents a valid exercise of Congress’ broad power to stimulate commerce.” In this regard, the Court noted:

The court finds it to be rational for Congress to seek to stimulate various sectors of the agricultural economy, including competitors of the beef industry. It would be rational for Congress to find that the stimulation of demand in all sectors of the agricultural economy would be in the public interest, benefiting the overall economy through increased domestic consumption and export of agricultural products.

Prohibition of Direct Tax

Goetz argued that the assessments authorized by the Beef Promotion Act were unconstitutional direct taxes that were not apportioned as required by the Constitution. Judge Theis rejected this argument, noting that a “regulatory scheme will not constitute a tax unless the real purpose and effect of the statute and regulations promulgated thereunder is to raise revenues for the general support of the government.” Noting that the Beef Promotion Act “does not raise revenue for the government,” that regulation (in the form of a promotion program for beef) was the primary purpose of the statute, and that the “mere fact that money changes hands” does not render the scheme a tax, the Court rejected Goetz’ direct tax arguments.

Delegation of Legislative Authority

Goetz asserted that in the Beef Promotion Act, Congress had impermissibly delegated its legislative powers to the Secretary of Agriculture, the Cattlemen’s Beef Board, and the Operating Committee. Relying on Frame, the Court rejected this argument, noting that the Secretary’s powers were limited by the detailed requirements imposed by Congress in the Act.

The Court also noted that the Beef Board and the Operating Committee were placed under the Secretary’s pervasive surveillance and authority and that these entities served only in an advisory and ministerial capacity to the Secretary.

Unconstitutional Taking for a Non-Public Purpose

Goetz argued that the Beef Promotion Act is an unconstitutional taking of property for a non-public use without just compensation. Goetz claimed that his property (money) had been taken to confer a private benefit on private interests within the beef industry. Consistent with Frame and contrary to Goetz’ argument, Judge Theis found that the Beef Promotion Act imposed assessments for a public purpose, not a private one, and that cattle producers received just compensation in the form of the promotion and research funded pursuant to the Act.

Freedom of Speech and Association

The Court also disposed of Goetz’ First Amendment claims. Once again relying on Frame, Judge Theis found that the speech contained in the generic beef promotions was “commercial speech.” This finding was required to satisfy the three-part test set forth in Roberts v. U.S. Jaycees, 466 U.S. 609, 623 (1984), since this particular commercial speech implicated the plaintiff’s rights of free association. “[T]he [plaintiff’s] free association claims triggered a higher standard of scrutiny than that applied in commercial speech cases.”

Significantly, Judge Theis did not cite or discuss the substantially different First Amendment analysis utilized by the Ninth Circuit in deciding that the generic promotion programs in Cal-Almond and Wileman violated the First Amendment.

The Roberts test, as articulated by Judge Theis, is as follows: [T]he Act would be constitutional only if the government could demonstrate that [1] the Act was adopted to serve compelling state interests, [2] that are ideologically neutral, and [3] that cannot be achieved through means significantly less restrictive of free speech or associational freedoms.

Noting that the Third Circuit found that the Act met the Roberts test and “was drafted in a way that infringes on the contributors’ rights no more than necessary to achieve the stated goal,” Judge Theis adopted the Third Circuit’s First Amendment analysis in Frame and rejected all of Goetz’ First Amendment claims.

Equal Protection

Finally, the Court rejected Goetz’ claim that he had been denied his right to the equal protection of the laws. Goetz argued that because his First Amendment and Fifth Amendment rights were implicated by the Act, the Act should be reviewed under the “strict scrutiny” test. Judge Theis rejected this argument, noting:

[U]nless a classification actually jeopardizes the exercise of a fundamental right, the equal protection clause requires only that the classification rationally further a legitimate government interest. Since the court has already ruled that the legislative classification does not infringe the plaintiff’s first and fifth amendment rights, the strict scrutiny standard of review does not apply.

Applying the rational basis test, Judge Theis found the Beef Promotion Act had a rational basis. In late March, Goetz filed notice that he would appeal Judge Theis' decision to the Tenth Circuit.

Conclusion

Now that Goetz’ constitutional claims have been firmly rejected, his complaint dismissed, and the injunction previously granted in his favor has been dissolved, many see this as the beginning of the end of Wileman/Cal-Almond.

Only time will tell whether Judge Theis’ decision was the beginning of the end of an era of judicial invalidation of commodity promotion programs, or whether the Ninth Circuit’s analysis of the Wileman/Cal-Almond case ultimately will become the law of the land.

Richard Rossier, a partner at McLeod, Watkinson & Miller, practices agricultural law and litigation and, as noted above, was one of the lawyers representing the intervenors in Goetz v. Glickman.


Trade Title of The Farm Bill

Title II of the Federal Agricultural and Improvement Reform (FAIR) Act of 1996 contains changes in the agricultural trade and food aid programs. The complete trade title is highlighted below. While the farm bill reported out of the House Agriculture Committee contained a limited number of trade provisions that only affected budget savings, an amendment was passed which added non-budgetary changes to trade and food aid programs. The Senate added a complete trade title to its bill during Senate floor action. Authority for the P.L. 480 food aid programs had actually expired on Oct. 1, 1995 and thus it was important to include at least a reauthorization in the final bill.

The Market Promotion Program, a program that has been the target of much media and Congressional scrutiny, received much attention during the conference. Authorized at $110 million under the 1990 FACT Act, it has faced an annual appropriations battle resulting in funding at less than that level for several years. An amendment on the Senate floor would have cut funding to $70 million, while the House provided $100 million. The results of that struggle are highlighted below. Another highly touted trade proposal noted in the last issue of The Agricultural Law Letter was the Agriculture Investment and Market Expansion or AIME proposal. It would have permitted USDA to fully utilize authorized trade program monies even if funds for a particular program, e.g. EEP, were not needed in a particular year due to high grain prices. In such a case, those funds could be shifted to market promotion, export credit, or other trade or food aid programs. However, the proposal was considered unaffordable and was not approved.

Highlights of Agricultural Trade and Food Aid Provisions

Commercial Agricultural Trade Programs

Export Credit Guarantee Programs

These programs guarantee repayment of credit extended to foreign importers to purchase U.S. farm products. The FAIR Act provisions:



Market Promotion Program

MPP partially reimburses participants’ costs of conducting approved export promotion activities in foreign countries. The legislation:



Export Enhancement Program



Dairy Export Incentive Program

The farm bill directs USDA to continue this dairy export subsidy program at the maximum volume and funding levels consistent with Uruguay Round limitations. Scope of the pro-gram was expanded to include market development objectives.

Foreign Market Development Coop. Program

The law formally authorizes the Foreign Market Development or Cooperator Program (FMD) to develop and maintain foreign markets for U.S. agricultural commodities and products and authorizes necessary appropriations to carry out the program for FY 1996-2002 but does not specify funding levels. The FMD has operated for years without specific authorization.

Emerging Markets Programs



Agricultural Export Promotion Strategy

A new trade strategy is authorized that establishes export goals for USDA. The Secretary is required to identify markets with the greatest potential for export increases, including markets that show such potential with the assistance of federal export programs.

Implementation of Uruguay Round



Trade Compensation and Assistance/Embargo Protection

If a future export embargo is imposed on any country for national security or foreign policy reasons, and, if no other country with an agricultural economic interest joins the U.S. sanctions within 90 days of the imposition of the embargo, USDA must compensate producers of the affected commodity or commodities. Compensation may be payments to producers, funds for export promotion, or commodities for developing countries.

Payments to producers will be based on USDA’s estimate of the loss suffered by producers due to a decrease in commodity prices resulting from the embargo. The amount of funds provided for export promotion or for food assistance to developing countries is to equal 90% of the average annual value of U.S. exports to the embargoed country for the most recent three years prior to the embargo.

Funds will be available to compensate producers for each fiscal year or part of a fiscal year that the embargo is in effect but for no longer than three years.

Edward Madigan U.S. Ag. Export Excellence Award

A U.S. agricultural export excellence award was established in memory of the late Secretary of Agriculture Ed Madigan, who also served as a Republican House member from Illinois, to recognize entrepreneurial efforts in the food and agricultural sector to advance U.S. agricultural exports. This is a great tribute to Secretary Madigan, who throughout his political career worked to make American farm policy more responsive to changing world markets.

Food Aid Programs

P.L. 480, Gen. Authorities & Requirements (USDA & USAID)



P.L. 480, TITLE I

Concessional Loan Program — (USDA)



P.L. 480, TITLE II

Emergency and Private Assistance Program — (USAID)



P.L. 480, TITLE III

Food for Development Program — (USAID)



TITLE V

Farmer-to-Farmer Program — (USAID)



Food Security Commodity Reserve



Conclusion

News of U.S. agricultural export growth continues to be positive. Many of these trade program amendments are designed to build on existing strengths and shore up weaknesses in U.S. export programs. Even the food aid program changes appear aimed to balance U.S. commercial export objectives and private sector involvement while maintaining our commitment to humanitarian food needs across the globe.

In the increasing global marketplace, strong exports are central to maintaining domestic commodity prices under the 7-year decoupled contract payment system.

John E. Sheeley is an associate at McLeod, Watkinson & Miller and has an extensive background in agriculture, trade, alternative fuels, farm credit, tax, environmental and transportation issues.



The Agricultural Law Letter is published to highlight recent changes and developments in the law and public policy. As with any publication of this type, it is essential that before any action is taken based upon this information, competent, individualized, and professional advice should be obtained. Copyright 1997 by McLeod, Watkinson & Miller. Reproduction in part or in whole is permitted with permission from McLeod, Watkinson & Miller. Contact Suzanne Bucciarelli at (202) 842-2345, or write to One Massachusetts Avenue, NW, Suite 800, Washington, D.C. 20001. Subscriptions to the newsletter are $25 per year.