Thursday, August 25, 2016

Agricultural Law Weekly Review—August 25, 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: USDA Issues New Guidance on Labeling of “Negative Claims” for Meat, Poultry, and Egg Products
On August 24, 2015, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published notice in the Federal Register of the availability and comment period regarding the agency’s “compliance guide for companies that seek to make label or labeling claims concerning the fact that bioengineered or GM ingredients were not used in a meat, poultry or egg product” (81 FR 57879).  Previously, as a matter of policy, FSIS only permitted the use of the terms “genetically modified organism” or “GMO” in “negative claims” on labels if the terms were part of the name of the third-party certifying organization (such as “Non-GMO Project”).  Due to language in the recently enacted National BioengineeredFood Disclosure Standard, “FSIS has reconsidered its position and will [now] allow the use of the terms ‘genetically modified organism’ or ‘GMO’ in negative claims provided that the label or labeling is otherwise truthful and not misleading.” The comment period is scheduled to close October 24, 2016.

FSMA: FDA Extends Compliance Date for Four Final Rules
On August 24, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of a final rule extending and clarifying compliance dates for certain provisions in four of the seven foundational FDA Food Safety Modernization Act (FSMA) final rules (81 FR 57784).  The four affected final rules are: (1) “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food”; (2) “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals”; (3) “Foreign Supplier Verification Programs for Importers of Food for Humans and Animals”; and (4) “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.”

FSMA: FDA Announces Availability of Draft Guidance for “Hazard Analysis and Risk-Based Preventive Controls for Human Food”
On August 24, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of “the availability of several chapters of a multi-chapter draft guidance for industry entitled ‘Hazard Analysis and Risk-Based Preventive Controls for Human Food: Guidance for Industry’” (81 FR 57816).  According to FDA, though the draft guidance document “does not establish any rights for any person and is not binding on FDA or the public,” the document explains FDA’s “current thinking on how to comply with the requirements for hazard analysis and risk-based preventive controls under our rule entitled ‘Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food.’”  

FSMA: FDA Announces Availability of Draft Guidance for “Current Good Manufacturing Practice Requirements for Food for Animals”
On August 25, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of the availability of draft guidance for industry #235 entitled: “Current Good Manufacturing Practice Requirements for Food for Animals” (81 FR 58519).  According to FDA, “[t]his draft guidance helps domestic and foreign facilities that are required to register as food facilities under the Federal Food, Drug, and Cosmetic Act (FD&C Act) determine whether and how they need to comply with the current good manufacturing practice requirements of the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals final rule.”

FSMA: FDA Announces Availability of Draft Guidance for “Human Food By-Products for Use as Animal Food”
On August 25, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of the availability of draft guidance for industry #239 entitled: “Human Food By-Products for Use as Animal Food” (81 FR 58521).  According to FDA, “[t]his draft guidance helps domestic and foreign facilities that are required to register as food facilities under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), because they manufacture, process, pack, or hold human food for consumption in the United States, determine what requirements to follow for their human food by-products for use as animal food and provides examples and recommendations for how to meet those requirements.”

FSMA: FDA Announces Availability of Draft Guidance for “Classification of Activities as Harvesting, Packing, Holding, or Manufacturing/Processing for Farms and Facilities”
On August 25, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of the availability of draft guidance for industry entitled: “Classification of Activities as Harvesting, Packing, Holding, or Manufacturing/Processing for Farms and Facilities; Draft Guidance for Industry” (81 FR 58421).  According to FDA, “[t]he draft guidance, when finalized, will help food establishments determine whether the activities that they perform are within the ‘farm’ definition established [under FDA’s] regulation for Registration of Food Facilities.”

EPA Inspector General: EPA has not met Renewable Fuel Standard Requirements
On August 18, 2016, the Environmental Protection Agency (EPA) Office of Inspector General issued a report entitled: “EPA Has NotMet Certain Statutory Requirements to Identify Environmental Impacts ofRenewable Fuel Standard.” The report stated that under the statutory reporting requirements of the Renewable Fuel Standard, every three years, EPA’s Office of Research and Development is required to provide Congress with a report regarding the impacts of biofuels.  The report stated that “EPA provided a report to Congress in 2011, but has not provided subsequent reports as required.”

NRCS: Proposed Changes to National Handbook of Conservation Practices
On August 22, 2016, the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) published notice in the Federal Register “of the intention of NRCS to issue a series of revised conservation practice standards in the National Handbook of Conservation Practices” (81 FR 56579).  Public comment on the proposed changes closes September 21, 2016.

Crop Insurance Update: Kentucky Court Rejects Negligent Misrepresentation Claim

Written by M. Sean High – Staff Attorney

On August 3, 2016, the United States District Court Western District of Kentucky issued a ruling rejecting a claim brought against an insurance company for the alleged negligent misrepresentation of a crop insurance policy (Buckman v. Nau Country Insurance, 2016 WL 4154463).

According to the Court, in March 2011, Marion County Kentucky farmer Joseph Buckman applied for a Federal Crop Insurance Act Group Risk Income Protection insurance policy for his 2011 corn crop.  At that time, Buckman was told by his crop insurance agent “that he would be entitled to receive an indemnity payment if Marion County’s 2011 actual corn crop yield was more than ten percent less than the expected yield…and [that] Marion County’s 2011 actual corn crop yield would be based on planted acres” (emphasis added).

The Court stated that on March 8, 2012, the same insurance agent informed Buckman that based on the crop yields for his 2011 planted acres Buckman would be receiving an indemnity payment in the amount of $104,961.  Sometime between March 8, 2012 and April 11, 2012, Buckman “leased his farm, disposed of his farm equipment, and exited farming.”

According to the Court, on April 11, 2012, the same insurance agent informed Buckman that the crop yields had been incorrectly calculated through the use of planted acres and instead should have been based on harvested acres.  As a result of the new calculation, the insurance agent informed Buckman that he would not be entitled to an indemnity payment.  Subsequently, Buckman brought suit against NAU Country Insurance Company alleging that the company’s agent negligently misrepresented the policy terms.

The Court held that “under federal law, Buckman is charged with knowledge of his corn crop policy” and because it is his responsibility to have this knowledge, Buckman “could not have reasonably relied on [the insurance] agent’s erroneous representations.”

Thursday, August 18, 2016

Agricultural Law Weekly Review—August 18, 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:

Food Safety: USDA Announces Preliminary Deregulation of GE Apple
On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency has reached a preliminary decision to extend deregulation to a genetically engineered line of apples known as Arctic® Fuji (81 FR 53396).  Developed by the company Okanagan Specialty Fruits Inc., Arctic® Fuji has been engineered to resist enzymatic browning.  The comment period for extending deregulation closes September 12, 2016.

Industrial Hemp: Notice Published for Federal Statement of Principles
On August 12, 2016, the United States Department of Agriculture (USDA), the United States Drug Enforcement Administration (DEA), and the United States Food and Drug Administration (FDA) published notice in the Federal Register that the three agencies have “developed a Statement of Principles on Industrial Hemp to inform the public how Federal law applies to activities associated with industrial hemp that is grown and cultivated in accordance with Section 7606 of the Agricultural Act of 2014” (81FR 53395).  According to the Federal Register notice, because the “Statement of Principles does not establish any binding legal requirements…[i]t is, therefore, exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b).”

Food Safety: FDA Issues Final Rule for Substances Generally Recognized as Safe
On August 17, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register of a final rule amending the regulations regarding “when the use of a substance in food for humans or animals is not subject to the premarket approval requirements of the Federal Food, Drug, and Cosmetic Act (the FD&C Act)” due to the substance “being generally recognized as safe (GRAS) under the conditions of its intended use” (81 FR 54959).  Additionally, FDA stated that the agency was amending the “regulations to replace the voluntary GRAS affirmation petition process with a voluntary notification procedure.  The final rule comment period closes on October 17, 2016.  The final rule becomes effective on October 17, 2016. 
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Pesticide Regulation: Court Orders EPA to take Final Action
On August 12, 2016, the United States Court of Appeals for the Ninth Circuit denied a United States Environmental Protection Agency (EPA) request for an “additional six month extension to take final action on its proposed revocation rule and its final response to Pesticide Action Network North America and Natural Resources Defense Council’s (collectively, “PANNA”) 2007 administrative petition.” According to the Court, EPA has delayed taking action for nine years and has received previous court extensions.  As a result, the Court stated that it will not grant any further extensions and instead ordered EPA to take final action by March 31, 2017. 

Dairy Order: USDA Reduces Number of Dairy Board Importer Members
On August 12, 2016, the United States Department of Agriculture (USDA) Agricultural marketing Service (AMS) published notice in the Federal Register of a final rule amending the Dairy Promotion and Research Order so as to reduce the number of National Dairy Promotion and Research Board (Dairy Board) importer members from 2 members to 1 member (81 FR 53245).  According to the final rule, the number of domestic Dairy Board members will remain at thirty-six.  The final rule became effective on August 12, 2016.

Avian Influenza: USDA Amends NPIP and Low Pathogenic Indemnity Regulations
On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register of a final rule “[a]mending the National Poultry Improvement Plan (NPIP), its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza (81 FR 53247).  According to USDA the final rule “clarifyi[es] who may participate in the NPIP, amend[s] participation requirements, amend[s] definitions for poultry and breeding stock, amend[s] the approval process for new diagnostic tests, and amend[s] slaughter plant inspection and laboratory inspection and testing requirements.” The final rule becomes effective September 12, 2016.

Mergers and Acquisitions: Sen. Grassley Sends Letter to DOJ and FTC Regarding Proposed Biotech and Seed Transactions
On August 17, 2016, Senate Judiciary Committee Chairman Charles Grassley (R-IA) issued a letter to Renata Hesse, Principal Deputy Assistant Attorney General, Antitrust Division, United States Department of Justice (DOJ) (which is reviewing the proposed merger between Dow Chemical Corp. and DuPont Co.) and Edith Ramirez, Chairwoman, Federal Trade Commission (FTC) (which is reviewing the proposed acquisition of Syngenta AG by China National Chemical Corp.).  According to Sen. Grassley, “[b]ecause of the complex nature of [the agricultural] industry it is important that these transactions not be viewed in isolation.” As a result, Sen. Grassley stated that DOJ and FTC should “collaborate” in their reviews, and where “appropriate solicit ‘input from the Department of Agriculture.”  

Monday, August 15, 2016

Crop Insurance Update: FCIC Finalizes Changes to Federal Crop Insurance

Written by M. Sean High - Staff Attorney

On August 12, 2016, the United States Department of Agriculture (USDA) Federal Crop Insurance Corporation (FCIC) published notice in the Federal Register (81 FR 53657) of a final rule changing the Code of Federal Regulation’s General Administrative Regulation—Subpart V—Submission of Policies, Provisions of Policies, Rates of Premium, and Non-Reinsured Supplemental Policies (7 CFR part 400, subpart V). 

According to FCIC, the final rule provides greater clarity of “existing regulations [and] lessen[s] the burden on submitters of crop insurance policies, provisions of policies, or rates of premium under section 508(h) of the [Federal Crop Insurance] Act (Act).” FCIC stated that the final rule also supplies “guidance on the submission and payment for concept proposals under section 522 of the Act” and furnishes “provisions for submission and approval of index-based weather plans of insurance as authorized by section 523(i) of the Act,” Finally, FCIC declared that the final rule “incorporate[s] changes that are consistent with those made in the Common Crop Insurance Policy Basic Provisions.”  

According to FCIC, the final rule’s changes to 7 CFR part 400, subpart V are the result of a notice of proposed rulemaking published in the Federal Register on February 25, 2015, which provided the public with a 60 day comment period (80 FR 10008—10022).  FCIC stated that the agency received 80 comments on the proposed rule from 10 commenters including: “insurance providers, insurance organizations, grower organizations, crop insurance product developers, and a business council.”

The effective date for the final rule is August 12, 2016.   

Thursday, August 11, 2016

Agricultural Law Weekly Review—August 11, 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: Vermont to No Longer Enforce State Labeling Law
On August 2, 2016, Vermont Attorney General William H. Sorrell announced that due to the July 29, 2016 federal enactment of the “National Bioengineered Food Disclosure Standard,” Vermont would no longer enforce Act 120 which required “the labeling of food produced with genetic engineering.” Act 120 became effective in Vermont on July 1, 2016.

Right to Farm: Oklahoma Supreme Court Allows Constitutional Amendment to Appear on Ballot
On August 8, 2016, the Supreme Court of Oklahoma held that Legislative Referendum No. 368 (LF 368) could be included on the November 2016 ballot (Save the Illinois River, Inc. v. State of Oklahoma, 2016 WL 4189500).  If approved by the voters, LF 368 would amend the Oklahoma constitution to prohibit the state “Legislature from passing any law ‘which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest.’” As a result of the Court’s decision, LF 368 is scheduled to appear on the November 2016 ballot as State Question No. 777.

Labor: DOL and PA Dept. of Labor and Industry Sign Agreement to Combat Employee Misclassification    
On August 4, 2016, the United States Department of Labor (DOL) issued a press release stating that DOL and the Pennsylvania Department of Labor & Industry have signed a three year agreement designed to “to protect employees’ rights by preventing their misclassification as independent contractors or other non-employee statuses.” According to the press release, “[t]he two agencies will provide clear, accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law.”

Environmental Litigation: EPA and Pennsylvania Announce Settlement with Consol Regarding Wastewater Contamination
On August 4, 2016, the United States Department of Justice (DOJ) issued a press release stating that the United States Environmental Protection Agency and the Commonwealth of Pennsylvania have reached an agreement with Consol Energy Inc., CNX Coal Resources and Consol Pennsylvania Coal Co. LLC (Consol) requiring that Consol implement practices that prevent the contaminated discharges of mining wastewater in Pennsylvania.  According to DOJ, under the terms of the agreement, Consol will “complete and maintain certain water management measures to prevent discharges from certain outfalls at the [company’s Bailey Mine Complex in Greene and Washington Counties]; monitor and report quarterly and annually, to ensure adequate storage capacity to prevent future discharges; submit and implement a plan for achieving long term compliance through advanced treatment in the event of projected exhaustion of storage capacity; develop and implement an environmental management system to ensure environmental compliance throughout the [Bailey Mine] Complex; and, pay a $3 million civil penalty.”

Invasive Species: PDA Announces Expanded Spotted Lanternfly Quarantine  
On August 5, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release stating that “Pennsylvania’s Spotted Lanternfly quarantine has been expanded to Maxatawny Township and Kutztown Borough in Berks County and Upper Milford Township and Emmaus Borough in Lehigh County after small populations of the invasive species were found in those areas.” According to PDA, “[t]he general quarantine of these infested areas restricts movement of any material or object that can spread the pest…[such as] firewood or wood products, brush or yard waste, remodeling or construction materials and waste, packing material like boxes, grapevines for decorative purposes or as nursery stock, and any outdoor household articles like lawnmowers, grills, tarps and other equipment, trucks or vehicles typically not stored indoors.”

Pesticides: EPA Announces Availability of Draft Pesticide Registration Notices
On August 5, 2016, the United States Environmental Protection Agency (EPA) published notice in the Federal Register of the availability of two draft Pesticide Registration Notices “for review and comment: One entitled ‘Guidance for Pesticide Registrants on Pesticide Resistance Management Labeling’ and the other entitled ‘Guidance for Herbicide Resistance Management Labeling, Education, Training, and Stewardship’” (81 FR 51880).  Additionally, according to EPA, the comment period for both notices has been extended from August 2, 2016 to September 1, 2016.

Animal Welfare: USDA Proposes Amendment to Animal Welfare Act to Empower Secretary of Agriculture
On August 4, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the department was issuing a proposed rule to amend the Animal Welfare Act (AWA) (81 FR 51386).  According to USDA APHIS, the proposed rule would amend AWA to provide “the Secretary of Agriculture with the authority to determine that animal dealers and exhibitors are not required to obtain a license under the Act and regulations if the size of the business conducting AWA-related activities is determined to be de minimis by the Secretary.” The comment period for the proposed rule closes November 2, 2016.

Food Standards: USDA Announces New Standards for Grades of Fruits and Vegetables
On August 4, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published a final notice in the Federal Register regarding revisions to “41 U.S. Standards for Grades of fresh fruits and vegetables, fruits and vegetables for processing, nuts, and specialty crops by removing the ‘Unclassified’ category from each standard” (81 FR 51297).  The effective date for the revised standards is September 6, 2016.

Organic Regulations: USDA Removes Program to Assess Organic Certifying Agencies
On August 8, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a direct final rule removing the “Program to Assess Organic Certifying Agencies” from 7 CFR Part 37 of the Code of Federal Regulations (81FR 52589).  The comment period on the direct final rule closes on September 8, 2016 and becomes effective November 7, 2016.

Livestock Reporting: Reauthorization and Revisions to Livestock Mandatory Reporting
On August 11, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a final rule regarding the reauthorization of the Livestock Mandatory Reporting program (81 FR 52969).  Additionally, the “final rule incorporates the swine reporting revisions contained within the 2015 Reauthorization Act and a minor revision to the lamb reporting requirements under the Agricultural Marketing Act of 1946, USDA Livestock Mandatory Reporting regulations.” The final rule becomes effective October 11, 2016.

Crop Insurance Update: USDA Corrects Definition of “Limited Resource Farmer”

On August 9, 2016, the United States Department of Agriculture (USDA) Federal Crop Insurance Corporation (FCIC) published notice in the Federal Register that the agency was issuing a final rule/correcting amendment to replace an invalid link previously appearing in the Code of Federal Regulations (CFR) (81 FR 52590).

According to the Federal Register notice, as previously published, 7 CFR 457.8 contained an outdated link appearing within the definition of the term “limited resource farmer.”

To correct the problem, the 7 CFR 457.8 definition of “limited resource farmer” now contains a revised link and appears as follows:

Limited resource farmer. Has the same meaning as the term defined by USDA at http://lrftool.sc.egov.usda.gov/LRP_Definition.aspx or successor Web site.

The effective date for the amendment to the 7 CFR 457.8 definition of “limited resource farmer” is August 9, 2016. 

Thursday, August 4, 2016

Agricultural Law Weekly Review—August 4, 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: President Obama Signs Federal GMO Labeling Legislation
On July 29, 2016, President Obama signed into law S.764 which creates the National Bioengineered Food Disclosure Law.  The new law authorizes a national labeling standard for foods containing genetically modified organisms (GMO) and preempts state GMO labeling laws.  As a result of the enacted legislation, the United States Department of Agriculture Agricultural Marketing Service announced that the department “has established a working group to develop a timeline for rulemaking and to ensure an open and transparent process for effectively establishing this new program.”

Water Quality: DEP Announces Availability of Draft 2016 Integrated Water Quality Monitoring and Assessment Report
On July 30, 2016, the Pennsylvania Department of Environmental Protection (DEP) published notice in the Pennsylvania Bulletin that the department is making available for public comment DEP’s draft 2016 Integrated Water Quality Monitoring and Assessment Report.  According to DEP, the draft report “includes both a narrative description of the Commonwealth's water quality management programs (formerly the Federal Clean Water Act section 305(b) Report) and waterbody-specific lists depicting the status of Commonwealth surface waters as required by section 303(d) of the Federal Clean Water Act (33 U.S.C.A. § 1313(d)).” Public comment on the draft report will be accepted by DEP through September 12, 2016.

GE Cultivation: Unapproved GE Wheat Discovered in Washington State
On July 29, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the department “has confirmed the discovery by a farmer of 22 genetically engineered (GE) wheat plants growing in an unplanted agricultural field in Washington State.” APHIS stated that the GE wheat in question “was developed by the Monsanto Company and is referred to as MON 71700.”  According to APHIS, no evidence exists that the GE wheat has entered into commerce.

Pesticide Ruling: EPA Appeals Board Upholds Cancellation of Flubendiamide
On July 29, 2016, the Environmental Protection Agency Environmental Appeals Board upheld a cancelation notice regarding the pesticide flubendiamide.  According to the ruling, Bayer CropScience LP and Nichino America, Inc., the registrants of flubeniamide, had improperly refused to voluntarily cancel flubendiamide after the Pesticide Program concluded that the pesticide had caused “unreasonable adverse effects on the environment.” The Appeals Board did hold, however, that the “Pesticide Program’s determination to prohibit the continued sale and distribution of existing stocks of flubendiamide end-use products by distributors and retailers other than Bayer and Nichino is not supported by the record.”

Food Safety: USDA Announces Final Rule for Peanut Handling
On August 1, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a final rule “implement[ing] a recommendation from the Peanut Standards Board (Board) to revise the minimum quality and handling standards for domestic and imported peanuts marketed in the United States” (81 FR 50283).  According to AMS, the final rule “revises the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards…[and] also makes numerous other changes to better reflect current industry practices and revises outdated language.” The effective date of the final rule is August 31, 2016.

International Trade: Brazil Reopens Market to U.S. Beef
On August 1, 2016, the United States Department of Agriculture (USDA) issued a press release announcing that an agreement has been reached with “Brazil's Ministry of Agriculture, Livestock and Food Supply to allow access for U.S. beef and beef products to the Brazilian market for the first time since 2003.”  According to USDA, “Brazil's action reflects the United States' negligible risk classification for bovine spongiform encephalopathy (BSE) by the World Organization for Animal Health (OIE) and aligns Brazil's regulations to the OIE's scientific international animal health guidelines.”