Thursday, January 17, 2019

Agricultural Law Weekly Review—January 17, 2019


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:

Ag-Gag Statutes: Court Strikes Down Iowa Law Criminalizing Undercover Investigations on Farms
On January 9, 2019, the U.S. District Court for the Southern District of Iowa struck down an Iowa law that blocked undercover investigations at farming operations (Animal Legal Defense Fund v. Reynolds, 4:17-cv-00362–JEG-HCA).  Under Iowa’s Agricultural production facility fraud law (Iowa Code § 717A.3A), any person that gains access to an agricultural production facility by false pretense could be convicted of a serious misdemeanor for a first offense or an aggravated misdemeanor for a second or subsequent offense.  The court determined that the Iowa law regulated speech protected under the First Amendment of the U.S. Constitution.  According to the court, “[t]he right to make the kinds of false statements implicated by § 717A.3A—whether they be investigative deceptions or innocuous lies—is protected by our country’s guarantee of free speech and expression.”

Agricultural Labor: DOL Announces 2019 Adverse Effect Wage Rates for H-2A Workers
On December 26, 2018, the U.S. Department of Labor (DOL) published notice in the Federal Register of the 2019 Adverse Effect Wage Rates (AEWR) for H-2A temporary nonimmigrant agricultural laborers (83 FR 66306).  The announced 2019 AWERs do not apply to agricultural labor or services involving the herding or production of livestock on the range.  AEWRs are published annually and are the minimum wage rates DOL has determined that must be offered and paid to both H-2A workers and workers in corresponding employment.  According to DOL, the purpose of AEWRs is to prevent the wages of similarly employed U.S. workers from being adversely affected.  Of note, the AEWR for Pennsylvania was increased from $12.05 in 2018 to $13.15 in 2019. 

Food Policy: SCOTUS to Decide if SNAP Redemption Data Should be Public
On January 11, 2019 the U.S. Supreme Court granted certiorari to determine if redemption data from the national Supplemental Nutrition Assistance Program (SNAP) should be made available to the public (Food Marketing Institute v. Argus Leader Media, No. 18-481).  The case involves a Freedom of Information Act (FOIA) request, filed by South Dakota newspaper Argus Leader, demanding that the U.S. Department of Agriculture (USDA) disclose redemption data from every store participating in SNAP between 2005 and 2010.  USDA has refused the request; stating that the data is “confidential” commercial information and exempt under FOIA.  According to USDA, if forced to disclose the information, thousands of food and grocery retailers will suffer irreparable harm.

Biotechnology: China Approves Five GM Crops
On January 7, 2019, Reuters reported that China has approved the importation of five genetically modified (GM) crops.  The approved products included DP4114 Qrome corn, DAS-44406-6 soybean (known as Enlist E3), RF3 canola, and MON 88302 canola.  Reuters stated, that previously, China had not approved the importation of any GM crops since July 2017 and had delayed the approval of MON 88302 canola for six years.  According to Reuters, a China representative of a U.S. agricultural industry association asserted that the approvals represented “a goodwill gesture” by the Chinese government aimed at resolving the trade issue.

International Trade: USDA Extends Deadline for Payments to Offset Losses Due to Tariffs
On January 8, 2019, the U.S. Department of Agriculture (USDA) announced that the agency was extending the application deadline for farmers seeking payments under the Market Facilitation Program, as provided by the trade mitigation program.  Previously, farmers had until January 15, 2019 to apply to USDA for payments to offset retaliatory tariffs imposed by foreign nations.  Due to the lapse in funding caused by the partial government shutdown, however, USDA Farm Service Agency (FSA) offices were closed at the end of business on December 28, 2018.  As a result, farmers have been unable to apply for program payments.  According to USDA Secretary Sonny Perdue, the application deadline will be extended “for a period of time equal to the number of business days FSA offices were closed, once the government shutdown ends.”

Pesticides: Arkansas State Plant Board Opens Public Comments on Dicamba Regulations
On January 7, 2019, the Arkansas State Plant Board (ASPB) announced a 30-day public comment period regarding the state’s proposed dicamba regulations.  Previously, on December 6, 2018, ASPB passed draft regulations to change Arkansas’ rules regarding the “over-the-top” application of dicamba for cotton and soybeans for the 2019 growing season.  The new rules would:
  • restrict applications of dicamba from May 21 to October 31;
  • require a one-mile buffer zone around research stations, organic crops, specialty crops, non-tolerant dicamba crops and other sensitive crops for applications taking place from April 16 to May 20; and
  • restrict the mixing of glyphosate with dicamba applications from April 16 to May 20

Following the a 30-day public comment period, ASPB will vote to approve this revised regulations.  Public comments can be submitted online or mailed to the following address:

Arkansas State Plant Board
Attn: Pesticide Division
P.O. Box 1069
Little Rock, AR 72203

From National Ag Law Experts:
“Cabinet Luncheon”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 10, 2019)

Pennsylvania Department of Agriculture:

Pennsylvania Legislation:
SB 29Legislation to establish the Pennsylvania Lost and Found Dog Registry (Referred to Senate Agriculture and Rural Affairs Committee, January 11, 2019)

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, January 10, 2019

Agricultural Law Weekly Review—January 10, 2019


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:

Animal Welfare: SCOTUS Denies Challenge to Massachusetts Animal Law
On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general challenging Massachusetts’s Prevention of Farm Animal Cruelty Act (PFACA) (Docket No. 22O149).  PFACA prohibits the confinement of certain poultry, caves, and hogs “in a cruel manner” within Massachusetts.  The law also prohibits the selling within Massachusetts of shell eggs, whole veal meat, or whole pork meat that has been produced from animals “confined in a cruel manner.” The attorneys general had alleged that by attempting to regulate farming in other states, PFACA violates the Commerce Clause.  PFACA is scheduled to go into effect on January 1, 2022.

Animal Welfare: SCOTUS Denies Challenge to California Egg Law
On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general seeking to block California’s egg law (Docket No. 22O148).  Enacted by voters in 2008, and later modified, the California law requires that eggs sold in the state may only come from laying-hens that are permitted the ability to lie down, stand up, fully extending their limbs, and turn around freely.  The attorneys general had alleged that the California law violated the commerce clause and had cost consumers up to $350 million annually since taking effect in 2015.

Animal Welfare: Michigan Gov. Vetoes Restrictions on Sales of Shell Eggs
On December 21, 2018, Michigan Governor Rick Snyder vetoed legislation that would have attached animal confinement restrictions to the sale of shell eggs (SB 660).  Under the proposed law, a business would have been prohibited from knowingly selling shell eggs produced from hens not housed in compliance with Michigan’s Animal Industry Act (AIA).  Accordingly, AIA prohibits the confinement of veal calves, gestating sows, and egg-laying hens “in a way that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.”

Transportation: DOT Exempts Livestock Haulers from ELD Requirement
On December 21, 2018, the National Pork Producers Council (NPPC) reported that the U.S. Department of Transportation has exempted livestock haulers from regulations requiring the use of electronic logging devices (ELDs) in their trucks.  According to NPPC, such ELDs, “record driving time, engine hours, vehicle movement and speed, miles driven and location information.” Because of the exemption, livestock haulers may continue use paper logs to record required information.  According to the Federal Motor Carrier Safety Administration, the exemption will remain in effect “until further notice.”

Packers and Stockyards Act: Court Finds Withdraw of Farmer Fair Practices Rules Proper
On December 21, 2018, the U.S. 8th Circuit Court of Appeals denied a challenge to the U.S. Department of Agriculture’s (USDA) withdrawing of the Farmer Fair Practices Rules (Organization for Competitive Markets v. USDA, No. 17-3723).  In 2016, USDA published a interim rule under the Packers and Stockyards Act (PSA) known as the Farmer Fair Practices Rules (FFPR).  Under the FFPR, USDA was to no longer require a showing that an unfair practice had harmed the entire market in order to prove a violation of PSA.  Subsequently, in 2017, USDA withdrew the interim rule.  According to the court, USDA acted properly in its action to withdraw the interim rule.

Food Labeling: BPI Permitted to Refer to Lean Finely Textured Beef as “Ground Beef”
On December 28, 2018, Feedstuffs reported that the U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) has granted Beef Products Inc. (BPI) permission to refer to its lean finely textured beef  product as “ground beef.” According to an FSIS spokesperson, the agency “has determined that Beef Products Inc. product meets the regulatory definition of ground beef under the law in 9 CFR 319.15(a) and may be labeled accordingly.” Relatedly, in 2012, ABC News published a series of reports that referred to BPI’s lean finely textured beef product as “pink slime.” Subsequently, in 2012, BPI closed three production facilities and filed a defamation lawsuit against ABC News.  In June of 2017, the parties settled for an undisclosed amount. 

Food Labeling: Court Rejects Claim that “Almond Milk” is Mislabeled
On December 20, 2018, the U.S. 9th Circuit Court of Appeals affirmed a lower court’s dismissal of a claim that an almond beverage had been mislabeled as “almond milk” (Painter v. Blue Diamond Growers 2:17-cv-02235).  The plaintiff alleged that the almond beverage should have been labeled as “imitation milk” because the product is nutritionally inferior to dairy milk.  According to the 9th circuit, no jury would conclude that the product is inferior under the Food and Drug Administration’s definition of nutritional inferiority (21 C.F.R. § 101.3(e)(4)).  Additionally, the 9th circuit affirmed the lower court’s determination that no “reasonable consumer would ‘assume that two distinct products would have the same nutritional content.’”

From National Ag Law Experts:
“Shutdown Significantly Impacting IRS and USDA”,  Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (January 4, 2019)
“Government shutdowns - Who dreamed up this crazy idea?”, Kenneth D. Ackerman, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 4, 2019)

Pennsylvania Case Law:
Corsnitz v. Department of Environmental Protection, No. 450 CD18_1-4-19, (Commonwealth Court quashed appeal as untimely because it was filed 33 days after the Environmental Hearing Board issued an order upholding a determination that a farm’s wetlands had been disturbed without a permit) (Filed January 4, 2018)

Pennsylvania Actions and Notices:
State Conservation Commission

Pennsylvania Department of Agriculture:

Penn State Research:

AgLaw HotLinks:
“Peterson Elected House Ag Chairman” – The Progressive Farmer      

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, January 3, 2019

Agricultural Law Weekly Review—January 3, 2019


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:

Farm Bill: President signs 2018 Farm Bill
On December 20, 2018, President Donald Trump signed into law the 2018 Farm Bill (H.R.2 - Agriculture Improvement Act of 2018).  According to a White House press release, the new legislation addresses crop insurance, maintains disaster programs for farmers affected by weather market disruptions, promotes agricultural exports, expands rural broadband efforts, promotes voluntary conservation, facilitates water infrastructure, and encourages forest management.  The White House stated that the 2018 Farm Bill, which passed the U.S. Senate by a vote of 87-13 and the U.S. House by a vote of 369-47, was the first farm bill since 1990 that was enacted in the same year it was introduced.

Food Labeling: USDA Issues GMO Labeling Final Rule
On December 21, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register of a final rule establishing the new national mandatory bioengineered (BE) food disclosure standard (83 FR 65814).  BE foods are also commonly known as genetically modified foods.  Under the new rule, food manufacturers, importers, and other entities that label foods for retail sale will be required to disclose information about BE food and BE food ingredients.  Disclosure options include text, symbol, electronic or digital link, and/or text message.  Additional options, however, are available for small food manufacturers.  Implementation of the new rule begins on January 1, 2020, though implementation for small food manufacturers begins on January 1, 2021.  For more information and to view the new BE labels, visit USDA here.

Conservation Easement: DOJ Brings Suit against Alleged Conservation Easement Tax Scheme
On December 19, 2018, the U.S. Department of Justice (DOJ) announced a complaint filed in the U.S. District Court for the Northern District of Georgia regarding an alleged illegal conservation easement syndication tax scheme.  According to DOJ, the alleged scheme involves donations of conservation easements and false or fraudulent tax benefits from those donations.  DOJ stated that the named defendants “sold at least 96 conservation easement syndicates resulting in the syndicates reporting over $2.0 billion of tax deductions…resulting in hundreds of millions of dollars of tax harm.”

FSMA: FDA Publishes Electronic User Guide for Accredited Third-Party Certification Program
On December 20, 2018, the U.S. Food and Drug Administration (FDA) announced the publication of an electronic user guide for the agency’s Accredited Third-Party Certification Program Portal.  Established under the FDA Food Safety Modernization Act, the Accredited Third-Party Certification Program allows FDA to recognize “accreditation bodies” that may accredit third-party “certification bodies.” Upon receiving accreditation, third-party certification bodies will be permitted to conduct food safety audits and issue certifications for food facilities.  According to FDA, the purpose of the guide is to help entities apply for recognition as accreditation bodies and to help recognized accreditation bodies manage their accounts.

Organic Agriculture: Farmer Charged for Falsely Marketing $140M Worth of Organic Grain
On December 19, 2018, the Associated Press (AP) reported  that a Missouri farmer was being charged for falsely marketing more than $140 million worth of corn, soybeans and wheat as certified organic grains.  According to the AP, Randy Constant marketed his grain products as certified organic even though at least 90% of the grain sold was non-organic.  The AP stated that Constant’s scheme dated back to at least 2004 and that the alleged victims included food companies and their customers who paid higher prices for organic products.

From National Ag Law Experts:
“Texas Court Stays Judgment Rendering ACA Invalid”, Kristine A. Tidgren, The Ag Docket- Iowa State University Center for Agricultural Law and Taxation (December 30, 2018)
“AgTech Year in Reverse: 2018”, Todd Janzen, Janzen Ag Law (December 27, 2018)

Pennsylvania Actions and Notices:
Department of Environmental Protection

Milk Marketing Board

Pennsylvania Department of Agriculture:

Penn State Research:

AgLaw HotLinks:
“Dairy Producers Receive a Boost from USDA” – U.S. Department of Agriculture
“Dairy farming is dying. After 40 years, I’m done.” – The Washington Post           

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Wednesday, January 2, 2019

Agricultural Law in the Spotlight – U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States”


Written by Chloe Marie – Research Specialist

The Obama administration promulgated the Clean Water Rule (CWR) on June 29, 2015, with a stated purpose of better defining the scope of “waters of the United States” that are protected under the Clean Water Act. This regulatory action was criticized by farm groups and others who viewed the entire approach as constituting government overreach. Shortly after being elected, President Donald Trump indicated his intention to loosen the bonds of environmental constraint on the industry, and as a result supported a revision of the CWR.

This article will provide some background on the regulatory process concerning the revision of the CWR as well as an overview of the content of recent proposed rulemaking. 

Background

On February 28, 2017, President Donald Trump issued a Presidential Executive Order to revise, amend, or rescind the Clean Water Rule (CWR) promulgated by the Obama administration. President Trump directed the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to initiate steps towards such revision in the national interest – the Executive Order emphasizes the necessity to “ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”

Consequently, on March 6, 2017, the two federal agencies published in the Federal Register a Notice of Intent to review and rescind or revise the CWR. The Notice states that the agencies will provide a revised interpretation of the term “navigable waters” in conformity with the opinion of Justice Scalia in Rapanos v. United States to allow for clarity on how the Clean Water Act applies to the stakeholders’ activities.

On July 27, 2017, the agencies issued a Proposed Rule setting out milestones for reviewing and revising the CWR. As a first step, EPA and the Corps proposed to rescind the 2015 definition of “waters of the United States.” They proposed to re-establish the regulatory definitions of U.S. waters that existed prior to the enactment of the 2015 CWR. The proposed rule also specified that “nothing in this proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more broadly than the federal law definition.” The second step was to develop a new definition of the U.S. waters subject to a separate notice and comment rulemaking. The public comment period on this Proposed Rule closed on September 27, 2017.

On June 29, 2018, the agencies published a supplemental notice of proposed rulemaking to the proposed repeal of the 2015 CWR providing further clarification and seeking additional comments on the impacts of permanently repealing the 2015 rule in its entirety. The additional public comment period closed on August 13, 2018.

Most recently, EPA and the Corps issued a pre-publication version of a proposed revised definition of “Waters of the United States” on December 11, 2018.

Proposed Revised Definition of “Waters of the United States”

The agencies propose to include the following terms into the definition of U.S. waters: “traditional navigable waters, comprising the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.”

The agencies also propose to redefine the terms tributary, ditches, adjacent wetlands, abut, and direct hydrologic surface connection. Further, the proposed rule clarifies the concept of “waters of the United States,” which would not be defined as broadly as in the 2015 CWR. In this regard, the agencies explained that U.S. waters must be understood within the ordinary meaning of the term and would include oceans, rivers, streams, lakes, ponds, and wetlands.

The definition of U.S. waters in the proposal would exclude water features “that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off; wastewater recycling structures constructed in upland; and waste treatment systems.”

The proposed rule suggests that developing geospatial datasets of U.S. waters could help in jurisdictional determinations. The proposal states that “these datasets, when fully developed, would promote greater regulatory certainty and relieve some of the regulatory burden associated with determining the need for a permit and play an important part in helping to attain the goals of the CWA.”

On December 28, 2018, EPA and the Corps announced that a public hearing will be held in Kansas City, KS, on January 23, 2019 to provide interested parties an opportunity to present their comments on the proposed revised definition.

Stay tuned for further legal and regulatory developments!

References:

-       Exec. Order No. 13778, 82 Fed. Reg. 12497 (Mar. 3, 2017)
-       Notice of Intent; Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12532 (Mar. 6, 2017)
-       Proposed Rule; Definition of “Waters of the United States” -Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899 (July 27, 2017)
-       Supplemental Notice of Proposed Rulemaking; Definition of “Waters of the United States” -Recodification of Pre-Existing Rules, 83 Fed. Reg. 32227 (July 12, 2018)
-       Proposed Rule; Revised Definition of “Waters of the United States,” U.S. EPA Pre-Publication Version (Dec. 11, 2018)
-       Notice of Public Hearing; Revised Definition of “Waters of the United States,” 83 Fed. Reg. 67174 (Dec. 28, 2018)

Additional resources on this topic from the Center for Agricultural and Shale Law:




This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.