Thursday, June 30, 2016

Agricultural Law Weekly review—June 30, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

GMO Labeling: Federal Legislation Reaches Senate Floor for Consideration
On June 29, 2016, Senate compromise legislation entitled a National Bioengineered Food Disclosure Standard, reached the Senate floor for consideration (S.Amdt.4936 to S.Amdt.4935).  If enacted, the legislation would create a national labeling law and thereby invalidate the State of Vermont’s GMO labeling law scheduled to go into effect July 1, 2016. 

Litigation: Federal Court Permits HSUS Suit against CAFO Owner to Continue
On June 17, 2016, the United States District Court for the Eastern District of North Carolina Eastern Division ruled against defendant Hanover Company of Wisconsin’s (Hanover) motion to dismiss and in favor plaintiff the Humane Society of the United States (Case No. 4:15-cv-109).  The case in question involves alleged violations regarding the release of ammonia from a Hanover owned concentrated feeding operation in North Carolina.

International Trade: Economists Express Concern over Brexit’s Effect on U.S. Agriculture
On June 28, 2016, Purdue University agricultural economists issued a news release regarding the effect Britain’s June 23, 2016 decision to leave the European Union might have on U.S. agriculture.  While the agricultural economists stated that “Britain’s departure from the European Union would have little direct effect on U.S. agricultural trade,” they did express concern that “an already-strong U.S. dollar would continue to rise in value and [that] access to global markets might be affected.” According to the agricultural economists, “a strong dollar makes U.S. exports more expensive to the rest of the world and that a widely held belief in the agricultural industry is that trade and a weak dollar are good for U.S. agriculture.”

Litigation: Court Sets Aside USDA Organic Compost Guidelines
On June 21, 2016, the United States District Court Northern District of California ruled that the United States Department of Agriculture’s (USDA) guidance document for using composted municipal green waste on organic farms must be set aside (Case No. 15-cv-01690).  The court agreed with plaintiffs that USDA “violated the Administrative Procedures Act…by issuing a guidance document without providing public notice and comment…[and] that formal rulemaking was required because the document amended existing national organic food regulations to permit certified organic producers to use compost materials that contain synthetic pesticides.”

Animal Welfare: Perdue Announces Animal Care Commitment Policy
On June 27, 2016, Perdue Foods issued a press release announcing that the company is committing to a four part animal care plan entitled: 2016 and Beyond: Next Generation of Perdue Commitments to Animal Care.  Accordingly, Perdue Foods asserts that the company will commit to: (1) the wants and needs of the animal; (2) the farmers that raise the chickens; (3) openness, transparency, and trust; and (4) a journey of continuous improvement.  According to the press release, “Animal advocacy groups such as Compassion in World Farming, Mercy For Animals and The Humane Society of the United States commended Perdue for taking this major step.”

Food Safety: FSIS Creates Electronic Application and Certification Process for Meat and Poultry Inspections
On June 29, 2016, United States Department of Agriculture Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a final ruleamending the meat and poultry inspection regulations to provide for an electronic export application and certification system” (81 FR 42225).  According to the final rule, “[t]he electronic export application and certification system will be a component of the Agency's Public Health Information System…[and] will be available as an alternative to the paper-based export application and certification process.  The effective date for the new regulations is August 29, 2016.

Wednesday, June 29, 2016

Crop Insurance Update: FCIC Issues Final Rule Regarding Double Cropping and Replanting

Written by M. Sean High—Staff Attorney

On June 22, 2016, the United States Department of Agriculture Federal Crop Insurance Corporation (FCIC) published notice in the Federal Register of a final rule and request for comment regarding the agency’s amendment to the Common Crop Insurance Regulations, Basic Provisions (81 FR40477). 

According to FCIC, the purpose of the final rule “is to provide policy changes and to clarify existing policy provisions to better meet the needs of policyholders.” Specifically, the final rule addresses “[i]ssues [that] have arisen regarding: The qualifications for double cropping; and when it is practical to replant.”

Under the final rule, FCIC is revising 7 CFR part 457 “to allow the allocation of comingled first and second crop production to the associated crop acreage in proportion to the liability for the acreage that was and was not double cropped.”  Additionally, under the final rule, FCIC is also revising 7 CFR part 457 regarding the definition of the term “practical to replant.”


Accordingly, the final rule stated that the final rule became effective on June 22, 2016 and “[t]he changes to the policy made in this rule are applicable for the 2017 and succeeding crop years for all crops with a contract change date on or after June 22, 2016, and for the 2018 and succeeding crop years for all crops with a contract change date prior to June 22, 2016.” Finally, the final rule specified that “FCIC will accept written comments on this final rule until close of business August 22, 2016.”

Monday, June 27, 2016

Crop Insurance Update: Disputes and Settlements

Written by M. Sean High—Staff Attorney

Federal crop insurance is a valuable risk management tool that may provide farmers with an extra layer of protection against many of the uncertainties of agricultural production.  Nevertheless, participation in the crop insurance program comes with a contractual agreement to abide by the rules set forth in the basic provisions of the common crop insurance policy.  Specifically, crop insurance contracts provide that when producers disagree with determinations regarding crop insurance claims, those disagreements are generally required to be settled, not through the court system, but through arbitration.[1]    

All federal crop insurance policies are issued under the terms of the Federal Crop Insurance Act (FCIA), underwritten by the Federal Crop Insurance Corporation (FCIC), and administered by the United States Department of Agriculture’s (USDA) Risk Management Agency (RMA).  Each crop insurance policy contains a clause written in accordance with the common crop insurance basic provisions.[2]

According to the common crop insurance policy basic provisions, if a disagreement arises regarding a crop insurance claim, the disagreement is generally permitted to be settled through the process of mediation.[3]

Representing an alternative form of dispute resolution, mediation involves a procedure where a neutral third party is employed “to help the disputing parties reach a mutually agreed upon solution.”[4] Importantly, during the mediation process the neutral third party only serves as a facilitator and does not have the power to decide the dispute.  

If an agreement regarding a crop insurance claim dispute cannot be settled through mediation, the common crop insurance policy basic provisions dictate that “the disagreement must be resolved through arbitration.”[5]

Unlike mediation, however, arbitration is an alternative dispute resolution process “involving one or more neutral third parties [called arbitrators] who are usually agreed to by the disputing parties and whose decision is binding.” Arbitration takes the place of conventional litigation and provides the disputing parties with a trial procedure.  Significantly, the disputing parties must abide by the final decision rendered by the arbitration and may not appeal to the courts simply because they disagree with the decision.

Arbitration is governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16; more commonly known as the Federal Arbitration Act (FAA).  Under FAA, any judicial review of an arbitral decision is extremely restricted.  Accordingly, FAA stipulates that the only grounds permitting a court to vacate an arbitral award are limited to:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.[6]

While FAA offers the possibility of having an arbirtral award vacated, in practice, most federal courts adhere to “the dictates of the emphatic federal policy favoring arbitration.”[7] As a result, decisions by arbitrators regarding crop insurance claims are almost always final and binding.



[1] 7 CFR § 457.8
[2] Id
[3] Id
[4] Black’s Law Dictionary, Ninth Edition pp. 1070-1071
[5] 7 CFR § 457.8
[6] 9 U.S.C. § 10(a)
[7] Arbitration in a Nutshell, Second Edition, Thomas E. Carbonneau (2007) p. 229

Thursday, June 23, 2016

Agricultural Law Weekly Review—June 23, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Referendum: North Dakota Votes against Corporate Farms
On June 14, 2016, North Dakota voters voted against Referred Measure 1 which appeared on the ballot as a veto referendum.  As a result of the vote, Senate Bill 2351, state legislation “designed to allow domestic corporations and limited liability companies to own and operate dairy farms and swine production facilities on no more than 640 acres of land,” was repealed.

Drones: FAA Announces New Rule
On June 21, 2016, the Federal Aviation Administration (FAA) issued a document announcing a Final Rule “amending its regulations to allow the operation of small unmanned aircraft systems in the National Airspace System.” According to FAA, “[t]hese changes address the operation of unmanned aircraft systems and certification of their remote pilots…[and] will also prohibit model aircraft from endangering the safety of the National Airspace System.” The document is currently being reviewed by the Office of the Federal Register; the Final Rule will become effective 60 days after the document is published in the Federal Register.

Animal Welfare: APHIS Updates Horse Disqualification and Civil Penalty List
On June 16, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published the latest updates to USDA’s Horse Protection Act Disqualification and Civil Penalty List which “identifies individuals and/or companies that have been assessed a Federal Disqualification under the Horse Protection Act.” According to APHIS, “[w]hile under Federal Disqualification, a person is prohibited from showing, exhibiting or entering any horse, directly or indirectly through any agent, employee, or other device, and from judging, managing or otherwise participating in any horse show, horse exhibition or horse sale or auction.”

Legislation: PA Senate Agricultural and Rural Affairs Committee Reports Two Bills
On June 23, 2016, the Pennsylvania Senate Agricultural and Rural Affairs committee voted to report Senate Bill 1110 (SB1110) and House Bill 967 (HB 967) to the Pennsylvania Senate for first consideration.  Accordingly, SB 1110 “would repeal the Noxious Weed Control Law (Act 74 of 1982) and replace it with the Controlled Plant and Noxious Weed Act to better control existing and potentially noxious weeds, maximizing the control resources of invasive species and protecting state lands,” while HB 967 would legalize, for research purposes, the growth and cultivation of industrial hemp.

Thursday, June 16, 2016

Agricultural Law Weekly Review—June 16, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

HPAI: PDA Lifts Poultry Quarantine for Farm Show, Competitions, Shows, Fairs, and Exhibitions
On June 11, 2016, the Pennsylvania Department of Agriculture published notice in the Pennsylvania Bulletin that the department was rescinding the “General Quarantine Order; Virus Control for Highly Pathogenic Avian Influenza Poultry and Poultry products at Competitions, Shows, Fairs and Exhibitions established at 45 Pa.B. 3716, July 11, 2015.” Accordingly, all restrictions delineated under the General Quarantine Order are withdrawn as of June 11, 2016.

Legislation: PA House Agricultural Committee Votes to Report Bills
On June 15, 2016, the Pennsylvania House of Representatives Agricultural and Rural Affairs committee voted to report HB 872 and SB 1123 for consideration.  Accordingly, HB872 is a “resolution encouraging the use of peer-reviewed, science-based data to assess the impacts and the regulation of agricultural technologies,” while SB1123 is an amendment to “Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in weights and measures, further providing for standards for automotive fuel.”

FSMA: Oregon Passes Resolution Regarding Produce Safety Rule Implementation
On June 8, 2016, the Oregon State Board of Agriculture (OSBA) passed a resolution entitled: Oregon Department of Agriculture’s role in the Food Safety Modernization Act produce rule implementation (Resolution Number 317).  According to the resolution, because “the new Food and Drug Administration (FDA) Food Safety Modernization Act (FSMA) produce safety rule will have tremendous impacts to Oregon agriculture,” OSBA will only support the Oregon Department of Agriculture’s participation in the implementation of the produce safety rule if “federal resources are available to fully cover the costs of the department’s work.”

Crop Insurance: Final Rule Issued for Texas Citrus Fruit Crop Insurance Provisions
On June 13, 2016, the United States Department of Agriculture Federal Crop Insurance Corporation published notice in the Federal Register that the agency had “finalize[d] the Common Crop Insurance Regulations, Texas Citrus Fruit Crop Insurance Provisions, to provide policy changes to better meet the needs of policyholders, to clarify existing policy provisions, and to reduce vulnerability to program fraud, waste, and abuse” (81FR 38061).  According to the Final Rule, “[t]he changes will be effective for the 2018 and succeeding crop years.

Friday, June 10, 2016

ACRE Update: Latest Attorney General Report Now Available

The Penn State Center for Agricultural and Shale Law has posted the 2015 ACRE Report from the Pennsylvania Attorney General on the Center’s ACRE/Pennsylvania Act 38 webpage.  Entitled Tenth Annual Report ofthe Attorney General to the General Assembly Pursuant to Section 318 of Act 38 of2005 “ACRE” Agriculture, Communities and Rural Environment, the report provides an update of the Attorney General’s 2015 handling of requests for review of local ordinances pursuant to ACRE/Pennsylvania Act 38.

Thursday, June 9, 2016

Agricultural Law Weekly Review—June 9, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Biosolids: Bellefonte Borough Agrees to Delay Spreading of Biosolids
On June 6, 2016, the Centre Daily Times reported that Pennsylvania Centre County Judge Jonathan Grine had approved an agreement between Bellefonte Borough and Benner Township residents regarding the spreading of biosolids in Benner Township.  According to the article, under the approved agreement, Bellefonte Borough will forego original plans to spread biosolids on the property known as Spicer Family Farms “until a resolution is reached” in the separate civil action Swancer v. Spicer Family Farms and Bellefonte Borough Authority.

Animal Liability: Owner of Bull Charged With Manslaughter after Fatal Crash
On June 6, 2016, the Associated Press reported that a Vermont farmer was charged with involuntary manslaughter after his bull wandered onto a road and caused a fatal car crash.  According to the article, the state's attorney stated “that police had responded to reports of [the] bull in the roadway three times and out of its pasture once in June and July 2015.” According to the article, if convicted, the bull’s owner faces the possibility of 15 years in prison.

Organic: USDA Extends Comment Period for Organic Livestock Rule
On June 7, 2016, he U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) issued a press release stating that the agency “is extending the comment period for the proposed rule to amend organic livestock and poultry practices until July 13, 2016, to allow stakeholders additional time to provide feedback on the proposed rule.” According to USDA AMS, the purpose of the proposed rule is “to amend the organic livestock and poultry production requirements by: adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expanding and clarifying existing requirements covering livestock health care practices and mammalian living conditions” (FR 2016-08023)

PA Bulletin: PDA Establishes Fertilizer Nutrient Values
On June 4, 2016, the Pennsylvania Department of Agriculture published notice in the Pennsylvania Bulletin of the establishment of commercial fertilizer nutrient values (Pa.B. Doc. No. 16-949).  The new fertilizer nutrient values become effective July 1, 2016.

Legislation: PA House Agricultural and Rural Affairs Committee Schedules Voting Meeting
On June 15, 2016, the Pennsylvania House of Representatives Agricultural and Rural Affairs committee has scheduled a voting meeting on HB 872 and SB 1123.  Accordingly, HB 872 is a “resolution encouraging the use of peer-reviewed, science-based data to assess the impacts and the regulation of agricultural technologies,” while SB 1123 is an amendment to “Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in weights and measures, further providing for standards for automotive fuel.”