Agricultural Law Weekly Review - August 23, 2018

Written by:

Jackie Schweichler - Education Programs Coordinator

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

Biosecurity: USDA Issues Final Rule on HPAI Indemnity

On August 15, 2018, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a final rule on the conditions for indemnity payments under highly pathogenic avian influenza (HPAI) claims.  The final rule provides a formula allowing split payments between egg and poultry owners based on the proportion of the production cycle completed.  The rule also requires large egg and poultry operations to have a biosecurity plan in order to receive the indemnity payment.

Dairy Policy: USDA Announces Plan to Purchase Milk for Food Assistance Program

On August 14, 2018, the U.S. Department of Agriculture (USDA) announced its plan to purchase fluid milk for distribution to The Emergency Food Assistance Program.  USDA will be purchasing whole, 2 percent, 1 percent, and skim milk in half gallons.  The purpose of the program is to encourage the continued domestic consumption of milk.  Potential contractors for this program must meet USDA Agricultural Marketing Service standards

Raw Milk: Massachusetts Governor Vetoes Raw Milk Provision in Environmental Bill

On August 13, 2018, Massachusetts Governor Charlie Baker vetoed a raw milk provision in an environmental bond bill (Bill H.4835).  The provision would have allowed dairy farmers to sell unpasteurized, or “raw” milk at farm stands. In addition, the provision would have permitted distribution of raw milk through community supported agriculture systems.  Governor Baker expressed concern over potential foodborne illness caused by the consumption of raw milk.  The governor recommended rules and regulations that could include sanitary and operational standards for production, handling, labelling, and sale of raw milk.

Water Quality: Federal District Court Overturns Delay of WOTUS

On August 16, 2018, the U.S. District Court for the District of South Carolina, Charleston Division issued a ruling overturning the delay of the Waters of the United States (WOTUS) rule (South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2018 WL 2933811).  In light of several U.S. Supreme Court decisions, the Environmental Protection Agency (EPA) issued a final rule redefining WOTUS in 2015.  The 2015 final rule prompted a series of lawsuits which led to a 2017 Presidential Executive Order directing EPA to review and then rescind or revise WOTUS.  On February 8, 2018, EPA published a new final rule delaying enforcement of the 2015 final rule.  The current court order suspends this rule, stating that by not allowing meaningful opportunity for public comment, EPA’s 2015 final rule was arbitrary and capricious.

Food Labeling: USDA Announces Extension of Comment Period for Meat Products Labeling Petition

On August 17, 2018, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced it has extended the comment period for a petition to clarify meat products labeling. The petition requests that FSIS clarify the “Product of the U.S.A.” label used for meat products. In its petition, the Organization for Competitive Markets (OCM), states that current policy allows imported foreign meat to use the “Product of the U.S.A.” label if it passes through a USDA inspection plant.  OCM argues that this process allows an unfair market advantage that is deceptive to consumers and harms U.S. producers.  FSIS has extended the comment period to September 17, 2018.

Food Policy: California Senate Approves Bill to Limit Sale of Sugary Beverages to Children

On August 21, 2018, the California Senate passed SB 1192, a bill that would limit the sale of sugar sweetened beverages to children. If signed by the governor, the bill would restrict what restaurants could include as the default beverage in a children’s meal. Restaurants would be able to sell children’s meals with only water, sparkling water, unflavored milk, or a nondairy milk alternative.   Customers still would be able to request and purchase any sugar sweetened beverage with their meal. According to the bill text, the obesity rate in California has increased by 250 percent and obese children are twice as likely to become obese adults. The legislature also stated that the adverse health consequences of obesity has an economic cost of approximately $147 billion annually in medical spending in the United States.  Violations of the law would be punishable by a fine of not less than $25 or more than $1,000, or imprisonment not exceeding 6 months.

Agricultural Labor: District Court Rules in Favor of Livestock Herders

On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit held that the Hispanic Affairs Project (Project) had filed a timely claim in its case regarding H-2A visas (Hispanic Affairs Project v. Secretary of Labor, et al., No 17-5202).  The Project an organization that advocates for livestock herders. The Project alleges that the 364-day certification period for H-2A visas is unrealistic. H-2A visas allow nonimmigrants to enter the United States to perform seasonal or temporary work. According to Project, these visas are routinely extended for livestock herders, when that work does not qualify as temporary.   The court agreed that the Project had “plausibly shown that the agency’s de facto policy of authorizing long-term visas is arbitrary capricious, and contrary to law, in violation of the APA and the Immigration and Nationality Act.”

From National Ag Law Experts:

Tiffany Dowell Lashmet, What Documentation Should I have for Hunters on My Property?, Texas A&M AgriLife Extension (August 20, 2018).

Josh Wise, podcast: Gaming the Grass Fed Beef Market, Institute for Agriculture & Trade Policy (August 20, 2018)

Pennsylvania Regulations

Department of Health: Temporary Regulations for Medical Marijuana; Clinical Registrants and Academic Clinical Research Centers (August 18, 2018).

Pennsylvania Notices

State Conservation Commission: Action on Odor Management Plans for Concentrated Animal Operations (August 18, 2018)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

"Nestlé USA lawsuit highlights confusion over Non-GMO claims, say attorneys" - Food Navigator

"Glyphosate is here to stay in EU — at least for now" - Politico

"Farm groups call for swift farm bill passage" - Morning Ag Clips

"Labelling change would put animal welfare at the heart of purchase, campaigners urge" - Food Navigator

"Farmers Await Details on USDA Trade Assistance" - Farm Policy

"Report Finds Traces of a Controversial Herbicide in Cheerios and Quaker Oats"  - NY Times

"Neighbors of salmon farm file lawsuit" - Morning Ag Clips

"Bayer, Monsanto integration can now commence" - Feedstuffs

"Where's The Beef? Wyoming Ranchers Bet On Blockchain To Track It" - NPR

"Agricultural Debt Continues to Increase" - Farm Doc Daily

"R-CALF extends checkoff lawsuit to 13 additional states"  - Beef Magazine

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

Agricultural Law Weekly Review—October 6, 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:

GIPSA: Amendment Regarding Electronic Livestock Transactions Sent to President

On October 3, 2016, after unanimous consent by the United States Senate, President Barak Obama was presented with H.R. 5883 which would amend the Packers & Stockyards Act (GIPSA) “to expand the definition of ‘marketing agency’ to include any person engaged in the business of buying or selling livestock in commerce through online, video, or other electronic methods on a commission or other fee basis when handling or providing a means to handle receivables or proceeds from the sale of that livestock.” According to the Bill Summary, H.R. 5883 would also amend GIPSA “to specif[y] that funds for purchasing livestock may be transferred to the account of the seller by electronic funds transfer or any other expeditious method that the Department of Agriculture determines to be appropriate.”

Livestock Trading: AMS to Require Online Cattle Exchange Reporting

On September 29, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) issued a press release announcing that beginning October 5, 2016, AMS will include “in the National and Regional direct negotiated slaughter cattle reports, cattle purchased through the Fed Cattle Exchange by packers required to report according to the [Livestock Mandatory Reporting] Act and regulation.” According to AMS, the Fed Cattle Exchange was created early in 2016 as an online platform to provide “a web based interface where feedlots can offer pens of market ready cattle for sale, and packers can bid on those offerings in a timed format, similar to an online auction.” AMS stated that the inclusion of the Fed Exchange reports in the National and Regional direct negotiated slaughter cattle reports was at the request of the cattle industry. 

Labeling: FSIS Issues Guidance for Animal Raising Claims

On October 5, 2016, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published notice in the Federal Register “announcing the availability of an updated version of the Agency's compliance guideline on documentation needed to support animal-raising claims on product labels that must be submitted for Agency approval before they can be used on product labels” (81 FR 68933).  Comments on the guidance document must be submitted on or before December 5, 2016.  According to FSIS, although the agency “is requesting comments on this guideline and may update it in response to comments, FSIS encourages establishments that wish to submit request for approvals of animal raising claims on product labels to begin using this guideline.”

Indemnity: APHIS Announces Updated Calculator for Laying Hens

On September 30, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a press release announcing an update to the agency’s indemnity calculator formula for laying hens.  According to APHIS, the updated indemnity calculator formula “addresses concerns raised by egg layer producers following the 2014-2015 outbreak of highly pathogenic avian influenza (HPAI)” and is intended to “more closely resemble a fair market transaction.” The new APHIS indemnity calculator formula became effective October 1, 2016.

International: U.S. Senate Ratifies Genetic Resources Treaty

On September 28, 2016, the United States Senate passed a resolution of advice and consent ratifying the International Treaty on Plant Genetic Resources for Food and Agriculture adopted by the Food and Agriculture Organization of the United Nations on November 3, 2001, and signed by the United States on November 1, 2002 (the Treaty).  According to the resolution, “[t]he centerpiece of the Treaty is the establishment of a multilateral system under which a party provides access to other parties…to listed plant genetic resources held in national genebanks…solely for purposes of research, breeding, and training in agriculture.”

Agricultural Law Weekly Review—June 9, 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:

Biosolids: Bellefonte Borough Agrees to Delay Spreading of Biosolids

On June 6, 2016, the Centre Daily Times reported that Pennsylvania Centre County Judge Jonathan Grine had approved an agreement between Bellefonte Borough and Benner Township residents regarding the spreading of biosolids in Benner Township.  According to the article, under the approved agreement, Bellefonte Borough will forego original plans to spread biosolids on the property known as Spicer Family Farms “until a resolution is reached” in the separate civil action Swancer v. Spicer Family Farms and Bellefonte Borough Authority.

Animal Liability: Owner of Bull Charged With Manslaughter after Fatal Crash

On June 6, 2016, the Associated Press reported that a Vermont farmer was charged with involuntary manslaughter after his bull wandered onto a road and caused a fatal car crash.  According to the article, the state's attorney stated “that police had responded to reports of [the] bull in the roadway three times and out of its pasture once in June and July 2015.” According to the article, if convicted, the bull’s owner faces the possibility of 15 years in prison.

Organic: USDA Extends Comment Period for Organic Livestock Rule

On June 7, 2016, he U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) issued a press release stating that the agency “is extending the comment period for the proposed rule to amend organic livestock and poultry practices until July 13, 2016, to allow stakeholders additional time to provide feedback on the proposed rule.” According to USDA AMS, the purpose of the proposed rule is “to amend the organic livestock and poultry production requirements by: adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expanding and clarifying existing requirements covering livestock health care practices and mammalian living conditions” (FR 2016-08023)

PA Bulletin: PDA Establishes Fertilizer Nutrient Values

On June 4, 2016, the Pennsylvania Department of Agriculture published notice in the Pennsylvania Bulletin of the establishment of commercial fertilizer nutrient values (Pa.B. Doc. No. 16-949).  The new fertilizer nutrient values become effective July 1, 2016.

Legislation: PA House Agricultural and Rural Affairs Committee Schedules Voting Meeting

On June 15, 2016, the Pennsylvania House of Representatives Agricultural and Rural Affairs committee has scheduled a voting meeting on HB 872 and SB 1123.  Accordingly, HB 872 is a “resolution encouraging the use of peer-reviewed, science-based data to assess the impacts and the regulation of agricultural technologies,” while SB 1123 is an amendment to “Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in weights and measures, further providing for standards for automotive fuel.”

Agricultural Law Weekly Review—March 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:

Chesapeake Bay: Supreme Court Decides Not to Hear TMDL Case

On February 29, 2016, the Supreme Court of the United States denied petition for certiorari in the case American Farm Bureau Federation v. U.S. Environmental Protection Agency (Docket No.15-999).  In denying the petition for certiorari, the Court chose not to make a decision on the matter, and as a result, the lower court ruling remains law.  The case in question involved American Farm Bureau Federation’s contention that the United States Court of Appeals for the Third Circuit incorrectly determined that the U.S. Environmental Protection Agency had the authority to establish “total maximum daily loads” (TMDLs) in the Chesapeake Bay Watershed (American Farm Bureau Federation v. U.S. Environmental Protection Agency, 792 F.3d 28). 

GMO Labeling: Senate Committee on Agriculture Passes Draft Bill on GMO Labeling

On March 1, 2016, the United States Senate Committee on Agriculture, Nutrition, and Forestry issued a press release stating that, by a bipartisan vote of 14-6, the Committee had passed draft legislation designed to nationalize the labeling of genetically engineered food and seeds.  According to the Committee Chairman, Senator Pat Roberts, R-Kan., “the legislation before us provides an immediate and comprehensive solution to the state-by-state patchwork of labeling law [and]…sets national uniformity, based on science, for labeling food or seeds that are genetically engineered.” The draft legislation now heads to the full Senate for consideration.

Livestock Owner Liability: Missouri House Passes Bill on Trespassing Livestock

On February 29, 2016, by a vote of 108-45, the Missouri House of Representatives advanced legislation (H.R. 1827) designed to change Missouri’s law governing the liability of livestock owners when their livestock escapes from confined areas. Currently, under Missouri law, regardless of any precautions taken, livestock owners are strictly liable for any damages that may occur when their livestock escape and trespass on another’s property. Under H.R. 1827, however, a livestock owner would only “be liable for any damages sustained if the owner of the trespassing horses, cattle, or other stock was negligent.” H.R. 1827 now advances to the Missouri Senate for consideration.

Labor: Hormel Must Pay Employees for Time Donning and Doffing Clothing and Gear

On March 1, 2016, the Wisconsin Supreme Court ruled that Hormel Foods Corporation must pay its employees at its Beloit, Wisconsin processing plant for the time the employees take to put-on and take-off clothing and safety gear.  According to the court opinion, the parties agreed that the time in question took each employee an average of 5.7 minutes per employee per day and amounted to $500 per employee per year.  According to the court, “the employees' donning and doffing clothing and equipment at the beginning and end of the day brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees' principal work activities, namely food production.”

California May Enact Nation's Most Restrictive Laws Regarding Livestock Antibiotic Use

Written by Katharine Richter

On September 11, 2015, the California legislature passed SB No. 27, which proposes strict restrictions on antibiotic use in livestock.  The enrolled bill still needs to be signed by California Governor Jerry Brown (D) to be enacted. 

The bill, if signed by the Governor, would become operative starting January 1, 2018.  The bill would prohibit “medically important antimicrobial drugs” from being administered to livestock “unless ordered by a licensed veterinarian through a prescription or veterinary feed directive pursuant to a veterinarian-client-patient relationship.”  The bill would not allow the administration of antibiotics if the only purpose is “weight gain or improving feed efficiency.”

The bill further requires that the California Department of Food and Agriculture (CDFA) develop antimicrobial guidelines and best management practices.  CDFA will also be in charge of surveillance and gathering information.  Any violators will be “subject to a civil penalty of up to $250 for each day a violation occurs.”  A second and subsequent violations will be increased to a “fine of $500 for each day a violation occurs.”

According to the Consumers Union website, this bill will be the toughest law to date on limiting the use of antibiotics in livestock.  The website states that “approximately 80 percent of all antibiotics sold in the U.S. are fed to mostly healthy animals…to make them grow faster and to prevent disease in crowded and unsanitary industrial farms.”  According to a Food Chemical News article, industry groups “haven’t mounted strong opposition to the bill.”  Industry groups recognize the need to address the future effectiveness of antibiotics but the concern with the proposed legislation is the potential burden on rural farmer’s access to veterinarians.  

Crop Insurance Update: USDA Pasture, Rangeland, and Forage Crop Insurance Now Available in 48 States

Written by M. Sean High

On August 31, 2015, the United States Department of Agricultural (USDA) Risk Management Agency (RMA) announced an expansion of the agency’s Rainfall Index Pasture, Rangeland, Forage (PRF) pilot program.  As a result, PRF “will now be available [to livestock producers] in all 48 contiguous states beginning with the 2016 crop year.”

As with other crop insurance programs, PRF is designed to provide farmers and ranchers with a “safety net” that allows the agricultural producers the ability to better withstand “bad years.” Under PRF, a rainfall index is utilized to determine pasture, rangeland, and forage losses, and to trigger any indemnity payments.  Importantly, “PRF is an area based plan of insurance” and is “not based on individual rain gauges on [a] farm or a single weather station.” The current use of a rainfall index replaces the previously utilized vegetation index.

To be eligible for PRF, livestock producers must sign-up for the program by November 15, 2015.  A list of insurance agents that provide PRF is available at the USDA RMA Agent Locator webpage. 

More information regarding this crop insurance program is available on the PRF webpage.  

Animal Liberation Front releases hundreds of mink from a fur farm in Cambria Township

The Animal Liberation Front (ALF) is claiming responsibility for releasing more than 600 mink at a Cambria Township farm on September 24^th.  The farm raised mink are fully domestic animals that can’t survive in the wild and usually die of dehydration or stress within 24 hours.   90-95% of the mink were recovered within a few hours of their release.  The owner of the farm, a 93 year old gentleman, is devastated by what he describes is an act of terrorism.  The group’s actions are part of a larger “bite back” initiative that is outlined in its “Final Nail” publications.

To Read the full article click here.

To see the ALF website claiming responsibility click here.

To see the Final Nail (the AFL’s how to guide on raiding farms) and their by-state directory of fur farms click here

Written by Joseph Negaard - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

September 24, 2013

UN Food and Agriculture Organization Releases Study on Global GHG Emissions from Livestock Production

On September 26, 2013, the United Nations Food and Agriculture Organization (FAO) released a study claiming that wider use of existing best practices and technologies could reduce greenhouse gas emissions (GHG) by 30% in the livestock sector. According to FAO, the report is the most comprehensive estimate of livestock’s contribution to global warming to-date. FAO used the life cycle assessment method for the identification of all main emission sources along supply chains. Based on this method of data collection, it determined that the livestock sector contributes 14.5% of all human-caused GHG releases, and was able to pinpoint where emission release peaked within the life cycle of the supply chain.

The report asserts that the potential for reducing emissions will require all livestock producers to conform to practices already being used by the most efficient producers. These practices include:

-        improving feed quality and feeding techniques to reduce methane, CH4, and nitrous oxide

-        improving breeding and animal health interventions to allow herd size to shrink

-        better management of grazing lands to improve productivity and create carbon sinks to help offset emissions

-        switching to feed that requires less energy to produce

FAO offers solutions to the problem of incentivizing change, such as financial incentives to offset risks and initial investments for producers, among other suggestions.

For the full report please see the FAO’s Tackling Climate Change Through Livestock.

 

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

September 30, 2013

U.S. Senator Introduces Bill for Protection of Livestock Producers’ Information

On July 23, 2013, the Senate sent a bill (S.1343) introduced by Iowa Senator Charles Grassley to the Environment and Public Works Committee for review. The bill, intended to protect the information of livestock producers, has been read twice by the Senate thus far. The text of the bill is not yet available, but will be posted on the Library of Congress’s Thomas website.

For more information about this issue, please see our previous blog post on the American Farm Bureau Federation suit filed against the Environmental Protection Agency dealing with Freedom of Information Act requests.

Written by Sarah Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
@PSUAgLawCenter
July 25, 2013