Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

M. Sean High—Staff Attorney

Audry Thompson—Research Assistant

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

Air Quality: EPA Issues Final Rule Exempting Animal Waste Air Emissions from EPCRA Reporting

On June 13, 2019, the U.S. Environmental Protection Agency (EPA) published notice in the Federal Register of a final rule amending the reporting regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) (84 FR 27533). Under the final rule, air emissions from animal waste at farms is specifically exempted from EPCRA reporting requirements. Additionally, EPA stated that the final rule adds definitions to the terms “animal waste” and “farm” to the EPCRA regulations so as “to delineate the scope of this reporting exemption.” The final rule will become effective July 15, 2019.

International Trade: EU to Increase Importation of U.S. Hormone-Free Beef

On June 14, 2019, the European Commission announced an agreement had been reached to increase the importation of U.S. hormone-free beef into the European Union (EU). Enacted in 2009, and revised in 2014, the EU had placed a 45,000 tonne (metric ton) quota on the importation of non-hormone treated beef into the EU for all qualified suppliers. Subsequently, the U.S. filed a dispute with the World Trade Organization (WTO). Under the terms of the announced agreement, which settles the filed WTO dispute, the U.S. will be allocated 35,000 tonnes of the 45,000 tonne quota. The new allotment will be phased in over a seven-year period.

Industrial Hemp/Cannabis: Tennessee Department of Agriculture Announces Hemp Rule Changes

On June 3, 2019, the Tennessee Department of Agriculture (TDA) announced new rule changes for Tennessee’s hemp program, enacted in 2014 through Public Chapter No. 916. According to Agriculture Commissioner Charlie Hatcher, D.V.M., the revisions were devised in response to changes in “the hemp industry and federal laws,” referring to the removal of hemp from the list of federally controlled substances. In accordance with Tennessee’s new rules,

Hemp processors are no longer required to register through TDA.
The hemp program will no longer issue licenses for certified seed breeders. Anyone manufacturing, distributing, or labeling seed should, however, be licensed through TDA’s Ag Inputs section.
Growers will still need movement permits when transporting rooted plants and are now required to be permitted when moving harvested hemp from their growing site.

Dairy Policy: U.S. Department of Agriculture Announces Dairy Margin Coverage Enrollment

On June 14, 2019, U.S. Secretary of Agriculture Sonny Perdue announced enrollment for the new Dairy Margin Coverage (DMC) program beginning June 17. According to the announcement, the “new program offers protection to dairy producers when the difference between the all-milk price and the average feed cost (the margin) falls below a certain dollar amount selected by the producer.” The DMC program was authorized in the 2018 Farm Bill to replace the Margin Protection Program for Dairy (MPP). The new program expands the offerings of coverage levels along with the covered percentage of production history. Dairy producers who previously purchased coverage through the former MPP program may choose to receive a cash refund for 50 percent of their repayment amount or can elect to receive DMC credit for 75 percent of premiums previously paid to the MPP program. The enrollment period ends September 20. (For further reading: see “The Key Differences between the Margin Protection Program and Dairy Margin Coverage”, by Emily Wilmes, University of Minnesota Extension).

Organic Agriculture: USDA Clarifies Certification of Organic Container Systems

On June 3, 2019, U.S. Department of Agriculture (USDA) issued a memo clarifying eligibility and compliance requirements regarding the organic certification of container systems. According to USDA, container systems can include hydroponic and pot-based systems regardless of whether soil is the growing media. Such container systems may be certified under the National Organic Program if they comply with the Organic Foods Production Act and the USDA organic regulations. Under current regulations, “any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic,’ must…. have had no prohibited substances…applied to it for a period of 3 years immediately preceding harvest of the crop” (7 CFR 205.202). According to USDA, the “memo clarifies that the legal requirements related to the three-year transition period apply to all container systems built and maintained on land.” Accordingly, no prohibited substance may be applied in the system or on the ground underneath the system.

Food Policy: USDA Reopens Comment Period on Proposed SNAP Rule

On June 14, 2019, the U.S. Department of Agriculture’s Food and Nutrition Service (FNS) published notice in the Federal Register that the agency is reopening the comment period regarding proposed changes to the Supplemental Nutrition Assistance Program (SNAP) regulations (84 FR 27743). Previously, on April 5, 2019, FNS proposed changes regarding the eligibility of certain SNAP retail food stores with a comment period that closed on June 14, 2019 (84 FR 13555). According to the agency, two supporting documents to the proposed rule—the Regulatory Impact Analysis and the Regulatory Flexibility Analysis—were inadvertently excluded from publication. As a result, the two publications have been added to the docket for the proposed rule and the comment period has been reopened until June 20, 2019.

From National Ag Law Experts:

“Indiana Court of Appeals Upholds Constitutionality of Right to Farm Act”, Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (June 10, 2019)

“2019 Brings Potential Changes to Hemp Production in Maryland”, Paul Goeringer, Maryland Risk Management Education Blog (June 11, 2019)

Federal Actions and Notices:

Animal and Plant Health Inspection Service

“Scrapie in Sheep and Goats; Correction”

“Concurrence With OIE Risk Designation for Bovine Spongiform Encephalopathy”

Farm Service Agency

“Dairy Margin Coverage Program and Dairy Indemnity Payment Program”

Food and Nutrition Service

“Announcement of Second and Subsequent Meetings of the 2020 Dietary Guidelines Advisory Committee and Request for Oral Comments”

Forest Service