Monday, July 25, 2016

Crop Insurance Update: FCIC Finalizes 2014 Farm Bill Crop Insurance Provisions

Written by M. Sean High—Staff Attorney

On June 30, 2016, the United States Department of Agriculture (USDA) Federal Crop Insurance Corporation (FCIC) published notice in the Federal Register of a final rule completing “changes to the General Administrative Regulations—Ineligibility for Programs under the Federal Crop Insurance Act, the Catastrophic Risk Protection Endorsement, the Area Risk Protection Insurance Regulations, and the Common Crop Insurance Regulations, Basic Provisions” (81 FR 42453).

According to a press release issued by USDA’s Risk Management Agency (RMA), the published final rule “completes provisions such as enterprise units for irrigated and non-irrigated crops, adjustment in actual production history to establish insurable yields, crop production on native sod, beginning farmer and rancher provisions, coverage levels by practice, and the authority to correct errors.” RMA stated that the changes issued under the final rule were the result of the 2014 Farm Bill which mandated that USDA “make some changes that would strengthen the safety net [the agency] provide[s] for America’s farmers and ranchers.”

According to the Federal Register, USDA received 364 comments from 74 commenters (including academics, farmers, trade associations and others) regarding an interim rule published July 1, 2014.  As a result of these comments, USDA stated that RMA made changes to the final rule dealing with native sod so as to provide clarity regarding “an exception that allows producers to break up to five acres of native sod and not receive reduced premium subsidy on coverage of native sod acreage.” According to RMA, “[a]ll other provisions of the final rule remain unchanged.

The final rule became effective on June 30, 2016.

Wednesday, July 20, 2016

Agricultural Law Weekly Review—July 20, 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:

PA Tax Code: Governor Signs Tax Legislation Favorable to Agriculture
On July 13, 2016, Pennsylvania Governor Tom Wolf signed into a law Act 84 which amended the Pennsylvania Tax Reform Code of 1971 and included three changes favorable to agriculture.  First, the sale and transfer of agricultural conservation easements are now exempt from Pennsylvania realty transfer taxes.  Second, the legislation provides for an inheritance tax exemption for family farm businesses where the transfer of assets involves a corporation or trust.  Third, the legislation provides for a tax exemption for commercial timbering operations.

Industrial Hemp: PA Governor Approves Growth and Cultivation
On July 20, 2016, Pennsylvania Governor Tom Wolf signed Act 92 which permits the growth and cultivation of industrial hemp for research purposes in Pennsylvania.  According to Bill's cosponsors, Reps. Russ Diamond (R- Lebanon County) and Marty Flynn (D- Lackawanna County), industrial hemp can provide “fibers for textiles,…[and be] used to manufacture biodegradable plastics, building materials, food, paper, environmental, and energy products.” The representatives stated that “[c]ompanies overseas are switching out potentially dangerous fiberglass insulation with hemp insulation…[and that] [f]armers are cultivating the plant in between growing seasons as a cover crop for its ability to keep valuable nutrients in the soil.”

Clean and Green: Use Value Changes become Law
On July 20, 2016, Pennsylvania Governor Tom Wolf signed Act 89 which amends the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (Clean and Green) providing preferential tax assessment of agricultural and farmland.  The new legislation prohibits the application of use values that result in assessments higher than fair market value.  

Pesticides: EPA Publishes Notice Regarding Certain Pesticides
On July 15, 2016, the Environmental Protection Agency (EPA) published a notice in the Federal Register entitled: Amendments to Terminate Uses for Certain Pesticide Registrations (81 FR 46075).  According to the Federal Register, the “notice announces EPA's final order for the amendments to terminate uses, voluntarily requested by the registrants and accepted by the Agency, [for certain pesticides] pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).” The cancellations under the order became effective July 15, 2016.

Proposed Rule: Importation of Sheep and Goats
On July 18, 2016, the United States Department of Agriculture (USDA) published notice in the Federal Register of a proposed rule “to amend the regulations that govern the importation of animals and animal products to revise the conditions for the importation of live sheep, goats, and certain other non-bovine ruminants, and products derived from sheep and goats, with regard to transmissible spongiform encephalopathies such as bovine spongiform encephalopathy (BSE) and scrapie” (81 FR 46619).  The comment period for the proposed rule closes September 16, 2016.

Final Rule: Non-Ambulatory Disabled Veal Calves
On July 18, 2016, USDA’s Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a final rule amending the agency’s requirements for the disposition of non-ambulatory disabled veal calves (81 FR 46570).  According to FSIS, the amendments remove a provision in the regulations requiring that ante-mortem inspection to be conducted in pens.  FSIS stated that the “final rule makes clear that FSIS inspectors have the authority to conduct ante-mortem inspection and condemn non-ambulatory disabled veal calves the moment they arrive on the premises of the establishment.”

European Union: EU Commission Announces €500 million Support Package for Farmers
On July 18, 2016, the European Union (EU) Commission issued a press release “present[ing] a new package of measures worth €500 million from EU funds to support farmers in the face of ongoing market difficulties, particularly on the dairy market.”  According to the press release, the package contained three main elements: (1) a scheme to provide incentives to reduce milk production; (2) conditional adjustment aid that will allow Member States to receive matching funds; and (3) technical measures to provide flexibility, cash-flow relief, and safety net resources.

Monday, July 18, 2016

FSMA Update: Amendments to Registration of Food Facilities

Written by Errin McCaulley — Research Assistant

On July 14, 2016, the Food and Drug Administration (FDA) announced a final rule under the Food Safety Modernization Act (FSMA) titled Amendments to Registration of Food Facilities (81 Fed. Reg. 45,911). Primarily, this final rule sets out the additional requirements for food facility registration set forth by § 102 of FSMA, which amended § 415 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (codified as 21 U.S.C. § 350d). This final rule now requires that, during an initial registration, subsequent renewals, updates, or cancellations, the owner, operator, U.S. agent (for foreign facilities), or other authorized individual must provide an email address to FDA along with the facility's Unique Facility Identifier (UFI) number. These registrations must be renewed every other year between October 1 and December 31 of every even-numbered year. FDA will require by January 4, 2020 all facility registrations, renewals, updates, or cancellations to take place online at http://www.fda.gov/furls, unless FDA has granted a waiver for electronic registration. For facilities to use a paper-based system for registration, renewals, updates, and cancellations, they must, on a case-by-case basis, obtain a waiver from FDA. In order to submit registrations, renewals, updates, or cancellations in paper format, the facility must first submit a request for a waiver to FDA at the following address: 

U.S. Food and Drug Administration
Center for Food Safety and Applied Nutrition
5001 Campus Dr. (HFS-681)
College park, MD 20740

Significantly, this final rule alters the definition of “retail food establishment” in 21 C.F.R. § 1.227 in accordance with the requirements set forth by Congress in § 102(c) of FSMA. According to FDA, a facility designated as a retail food establishment is exempted from the registration requirements of § 415 of FD&C Act (21 U.S.C. § 350d). The changes to the definition of “retail food establishment” in this final rule will increase the number of exemptions, especially for farm-related operations such as farmers’ markets, roadside stands, and Community Supported Agriculture (CSAs) programs. The exemption from registration requirements, however, does not mean a facility is exempted from any of the other final rules adopted by FDA under FSMA, such as the Preventive Controls for Human Food, Preventive Controls for Animal Food, the Produce Safety Rule, and others. These other final rules have separate exemption and applicability requirements.

Lastly, this final rule requires that any updates to registration information or cancellation of registration be submitted to FDA within sixty days of any change to required information for registration or state the reason for cancellation of registration.

Friday, July 15, 2016

Agricultural Law Weekly Review—July 15, 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 Moves Forward
Federal legislation establishing a “National Bioengineered Food Disclosure Standard” (S.Amdt.4935 to S.764) has steadily progressed through Congress.  On July 7, 2016, the U.S. Senate passed the bill by a vote of 63-30.  On July 14, 2016, the U.S. House of Representatives passed the bill by a vote of 306-117.  Significantly, Bloomberg has reported that President Obama intends to “sign [the bill] in its current form.” If enacted, the proposed legislation would create a national labeling standard for foods containing genetically modified organisms (GMO) and preempt state GMO labeling laws.

FSMA: FDA Issues Final Rule on Registration of Food Facilities
On July 14, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of a final rule amending the agency’s regulations regarding the registration of those food facilities that require FDA registration of "domestic and foreign facilities that manufacture/process, pack, or hold food for human or animal consumption in the United States” (81 FR 45911).  The final rule becomes effective September 12, 2016.

Animal Welfare: Court Allows Animal Confinement Ballot Initiative
On July 6, 2016, the Supreme Judicial Court of Massachusetts determined that the state attorney general properly certified a ballot initiative that proposed prohibiting: (1) the confinement, “in a cruel manner,” commercially raised egg-laying hens, calves raised for veal, and breeding pigs; and (2) the sale of such confined animals. (Dunn v. Attorney General, 474 Mass. 675).  As a result of the decision, the Massachusetts Farm Animal Containment Initiative may now appear on the November 8, 2016 ballot.

Legislation: Bill Introduced to Exempt Farms from Solid Waste Disposal Act
On July 8, 2016, federal legislation was introduced to amend the Solid Waste Disposal Act so as to redefine the term “solid waste” to specifically not include animal waste, manure, or fertilizer (H.R. 5685).  According to the bill, clarification is necessary because it was never the intent of Congress to include animal waste, manure, or fertilizer under the Solid Waste Disposal Act.

Thursday, July 7, 2016

Agricultural Law Weekly Review—July 7, 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: Senate Votes to Limit Debate on Labeling Legislation
On July 6, 2016, the United States Senate voted 65-32 for cloture on legislation establishing a “National Bioengineered Food Disclosure Standard” (S.Amdt.4935 to S.764).  By obtaining the 60 votes necessary for cloture, debate on the proposed legislation will be limited to no more than 30 hours.  If enacted, the proposed legislation would create a national labeling standard for foods containing genetically modified organisms (GMO) and preempt state GMO labeling laws.

Antitrust: Court Approves Settlement of Class Action against Egg Producers
On June 30, 2016, the United States District Court for the Eastern District of Pennsylvania approved five separate settlement agreements reached in a consolidated class action suit, brought against five different national egg producers, for allegedly manipulating the supply and domestic price of eggs (In re: Processed  Egg Products Antitrust Litigation, 2016 WL 3584632).  The combined amount of the five separate settlement agreements totaled $8.425 million.

Food Safety: FDA to Extend Comment Period Regarding Raw Manure and Produce
On June 30, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency was “extending the comment period for the notice entitled ‘Risk Assessment of Foodborne Illness Associated With Pathogens From Produce Grown in Fields Amended With Untreated Biological Soil Amendments of Animal Origin; Request for Scientific Data, Information, and Comments’ that appeared in the Federal Register of March 4, 2016” (81 FR 42715).  FDA stated that the extension is “due to maintenance on the Federal eRulemaking portal in early July 2016.” As a result, FDA will now accept submitted comments, either written or electronic, by July 19, 2016.

Pesticides: EPA Extends Comment Period for Ecological Risk Assessments of 3 Herbicides
On July 6, 2016, the United States Environmental Protection Agency (EPA) published notice in the Federal Register extending the “comment period for the draft ecological risk assessments of atrazine, simazine, and propazine…60 days, from August 5, 2016, to October 4, 2016.” (81 FR 44018).  According to EPA, the “comment period is being extended in response to a number of extension requests from various stakeholders citing difficulty commenting during the growing season, and the length, quantity, and complexity of the Risk Assessments.”

Worker Safety: OSHA to Increase Civil Penalties for Violations
On June 30, 2016, the United States Department of Labor (DOL) announced that DOL was adjusting civil penalties for the department’s Occupational Safety and Health Administration (OSHA).  According to DOL, “OSHA's maximum penalties, which were last adjusted in 1990, will increase by 78%...[and] [g]oing forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.” DOL stated, “[t]he new penalties will take effect after August 1, 2016…[and] [a]ny citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.”

Farm Inspection: Court Orders Government Access to “Private Membership Association” Facilities and Records
On July 6, 2016, the United States District Court for the Eastern District of Pennsylvania held that the United States Department of Agriculture and its Food Safety and Inspection Service (FSIS) can enforce “an April 4, 2016 FSIS administrative subpoena requiring…access to Miller’s Organic Farm’s facilities and records related to the farm’s meat and poultry products” (United State of America v. Miller’s Organic Farm and, Amos Miller, Civil Action No. 16-cv.2732)  According to the court, prior to the ruling, Miller’s Organic Farm, and its owner Amos Miller, had “refused to comply with the subpoena, on grounds that it infringed their First Amendment right to freedom of association, because Miller’s Organic Farm is a ‘Private Membership Association.’” The court stated that “Defendant Amos Miller,” who represented himself in court, “failed to show cause why Miller’s Organic Farm and he should not produce the summoned information and grant the summoned access.”      

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.4935 to S.764).  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 Hanor Company of Wisconsin’s (Hanor) motion to dismiss and in favor of 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 Hanor owned concentrated animal 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.”