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:

Food Policy: SCOTUS Rules USDA Does Not Need to Disclose Certain SNAP Information Under FOIA

On June 24, 2019, the U.S. Supreme Court held that under the Freedom of Information Act (FOIA), the U.S. Department of Agriculture (USDA) does not need to disclose certain private commercial or financial information from retail stores that participate in the Supplemental Nutrition Assistance Program (SNAP) (Food Marketing Institute v. Argus Leader Media, Docket No. 18-481). Previously, Argus Leader Media filed a FOIA request seeking the names and addresses of all retail stores that participated in SNAP for fiscal years 2005 through 2010. Additionally, Argus Leader Media sought each retail store’s annual SNAP redemption data for fiscal years 2005 through 2010. USDA declined to disclose the store-level SNAP data, claiming the information was exempted from disclosure under FOIA. According to the Court, “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’” and exempt from FOIA disclosure.

Right to Farm Laws: Lawsuit Challenges North Carolina Farm Nuisance Protections

On June 19, 2019, several non-profit environmental organizations filed a complaint in North Carolina state court alleging the unconstitutionality of two state statutes designed to protect farms from nuisance lawsuits (Rural Empowerment Assoc. for Community Health v. North Carolina, 19-CV-008198). The complaint alleged that the statutes (S.B. 711 and H.B. 467) disproportionately affect “low-wealth and non-white communities,” and were “introduced to protect Smithfield from pending nuisance suits,” thus violating Article II, Section 24 of the North Carolina Constitution, which prohibits “‘local, private, or special’ laws ‘[r]elating to health sanitation, and the abatement of nuisances.’” Both pieces of legislation were enacted after the state’s legislators overrode vetoes by North Carolina Governor Roy Cooper.

Crop Insurance: USDA Moves Cover Crop Harvest Date to September 1st

On June 20, 2019, U.S. Department of Agriculture’s Risk Management Agency (RMA) announced it has adjusted the 2019 date for cover crop haying and grazing on prevented plant acres from November 1 to September 1. Under the flood provisions for Prevented Planting Insurance, producers who are prevented from planting their regularly insured crop due to floods, hurricanes, or excess precipitation have the option to plant a cover crop during the late planting period and receive an insurance payment. These producers, however, may not normally hay, graze, or cut that crop for silage until November 1; thereby delaying their use of the crop. Due to excessive rain and flooding in the spring of 2019, RMA stated that it will permit producers to “hay, graze or cut cover crops for silage, haylage or baleage on prevented plant acres on or after September 1 and still maintain eligibility for their full 2019 prevented planting indemnity.” According to RMA, the adjustments are for 2019 only.

National Agricultural Policy: USDA Forms New Partnership to Promote U.S. Agriculture

On June 18, 2019, the U.S. Department of Agriculture (USDA) announced a formalized partnership with the U.S. Farmers and Ranchers Alliance to promote, and increase demand for, U.S. agricultural products. Established through a Memorandum of Understanding the partnership is an outgrowth of the recent Honor the Harvest Forum. According to USDA Under Secretary for Marketing and Regulatory Programs Greg Ibach, the partnership will serve to “enhance consumer confidence and drive demand for U.S. agricultural products, particularly among the 95 percent of consumers who live outside the United States.” The memorandum declares the parties’ intent to undertake “activities and programs, both jointly and separately” to:

Promote U.S. agriculture and U.S. agricultural products.
Build awareness of the importance of U.S. agriculture to the U.S. rural economy.
Reinforce the relationship between what U.S. farmers produce and what U.S. consumers eat.
Support awareness of U.S. agriculture's key role in an environmentally-sustainable food value chain.
Drive demand for U.S. agricultural products in both domestic and overseas markets.

Invasive Species: USDA Revises Plant Pest Regulations

On June 25, 2019, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) posted notice in the Federal Register of a final rule revising the regulations regarding the movement of plant pests (84 FR 29938). According to APHIS, the revisions remove obsolete requirements, provide a more efficient permitting process for low risk organisms, and update regulations regarding the import of foreign soil. APHIS stated that the changes will allow the agency to better focus resources on "high-risk organisms."

Invasive Species: USDA Announces Feral Swine Control Pilot Program

On June 20, 2019, the U.S. Department of Agriculture (USDA) announced $75 million in funding to eradicate and control feral swine through the Feral Swine Eradication and Control Pilot Program. In a joint effort between USDA’s Natural Resources Conservation Service (NRCS) and Animal and Plant Health Inspection Service (APHIS), NCRS will devote up to $33.75 million of the funds towards pilot projects in areas that have the highest feral swine population densities: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas. Pilot projects will consist of three coordinated components: 1) feral swine removal by APHIS; 2) restoration efforts supported by NRCS; and 3) assistance to producers for feral swine control provided through partnership agreements with non-federal partners. This year, NRCS will invest up to $1.5 million per project, which can last for one to three years, with awardees matching at least 25% of the partnership budget. Applications for project grants must be submitted through grants.gov by Aug. 19, 2019.

From National Ag Law Experts:

“Uncertainty in Agriculture”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (June 19, 2019)

“The Model Ag Data Use Agreement”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (June 12, 2019)

Federal Actions and Notices:

Agricultural Marketing Service

“Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Change in Membership, Nominations, Procedures, and Continuance Referenda Period”

Animal and Plant Health Inspection Service

“Swine Health Protection Act; Amendments to Garbage Feeding Regulations”

“Notice of Request for Revision to and Extension of Approval of an Information Collection; Horse Protection Regulations”

Environmental Protection Agency

“Glyphosate Proposed Interim Registration Review Decision; Extension of Comment Period”

Food and Drug Administration

“Determining the Number of Employees for Purposes of the ‘Small Business’ Definition (Current Good Manufacturing Practices and Preventive Controls Regulations for Human and Animal Food): Guidance for Industry; Availability”

Labor Department

“Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations”

Pennsylvania Legislation:

HB 1514: Legislation to revise and re-establish the existing Healthy Farms Healthy Schools program into the PA Farm-to-School Program (Referred to Senate for consideration, June 24, 2019)

HB 1516: Legislation to create the Pennsylvania Rapid Response Disaster Readiness Account (Referred to Senate for consideration, June 24, 2019)

HB 1590: Legislation to create the Dairy Investment Program (Referred to Senate for consideration, June 24, 2019)

HB 1517: Legislation to create the Conservation Excellence Program (Referred to Senate Agriculture and Rural Affairs Committee, June 20, 2019)

HB 1518: Legislation to revise and re-establish the former (expired) Agriculture and Rural Youth Development Program (Referred to Senate Agriculture and Rural Affairs Committee, June 20, 2019)

HB 1519: Legislation to establish a state-level Specialty Crop Block Grant Program (Referred to Senate Agriculture and Rural Affairs Committee, June 20, 2019)

HB 1520: Legislation to create a grant program to incentivize access to meat processing inspections (Referred to Senate for consideration, June 24, 2019)

HB 1521: Legislation to amend PA Preferred Program to encourage military veteran participation in the Homegrown by Heroes Program (Referred to Senate Agriculture and Rural Affairs Committee, June 20, 2019)

HB 1523: Legislation to establish the Pennsylvania Agricultural Business Development Center (Referred to Senate for consideration, June 20, 2019)

HB 1526: Legislation to revise and re-establish the Agriculture-Linked Investment Program (Referred to Senate for consideration, June 24, 2019)

SB 585: Legislation establishing the Pennsylvania Dairy Future Commission (Referred to Senate Rules and Executive Nominations Committee, June 19, 2019)

SB 634: Legislation establishing the Conservation Excellence Grant Program (Referred to House for consideration, June 20, 2019)

SB 661: Legislation to create the Commonwealth Specialty Crop Block Grant Program (Referred to House for consideration, June 20, 2019)

Pennsylvania Actions and Notices:

Department of Agriculture

“Pennsylvania Wine Marketing and Research Board; grant solicitation and application procedures”

Department of Environmental Protection

“Request for applications for watershed planning and restoration grants through the Section 319 Nonpoint Source Management Program”

Milk Marketing Board

“Sunshine meetings for fiscal year 2019-2020”

State Conservation Commission

“Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program”

Pennsylvania Department of Agriculture: