Agricultural Law Weekly Review—November 1, 2018

Written by:

M. Sean High—Staff Attorney

Deanna Smith—Research Assistant

                 

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

Technology: 75.3 Lbs. Drone Approved for Precision Agriculture

On October 25, 2018, sUAS News reported that the Federal Aviation Administration (FAA) has approved a petition by Homeland Surveillance & Electronics, LLC (HSE) to operate a 75.3 lbs. unmanned aircraft system (UAS) for use in precision agriculture.  Under FAA regulations, UASs must weigh less than 55 lbs. at takeoff (14 CFR 107.3).  HSE, however, successfully received permission from FAA to commercially operate the 75.3 lbs. UAS model AG-V6A+ for use in precision commercial agriculture services including: crop and moisture analysis; spraying herbicides, pesticides and insecticides; aerial imagery; and 3D modeling.

Land Use: PA Governor Signs Bill Expanding Liability Protection for Recreational Land Use

On October 24, 2018, Pennsylvania Governor Tom Wolf signed into law legislation amending the state’s recreational use of land liability law (Act 98).  Under the commonwealth’s Recreational Use of Land and Water Act (RULWA), landowners who at no charge open their land for public recreational use are granted limits to their legal liability (68 P.S. §477-1 et seq.).  Under the new legislation, RULWA’s definition of “land” is expanded to provide coverage to areas including boating access and launch ramps, bridges, fishing piers, boat docks, ramps, paths, paved or unpaved trails, and hunting blinds.  Additionally, the definition of “land” is expanded to include parking and access to land areas provided coverage.  The new law also expands RULWA’s definition of “recreational purpose” to allow for coverage of activities such as snowmobiling, all-terrain vehicle riding, and motorcycle riding.  Finally, the new legislation further defines what types of contributions to the landowner are not considered to constitute a “charge.”      

Education: PA Governor Vetoes Ag Education Bill

On October 24, 2018, Pennsylvania Governor Tom Wolf vetoed proposed legislation addressing agricultural education in the commonwealth (HB 2157).  Governor Wolf stated that the proposed legislation would have rendered “certain agricultural education programs ineligible for state and federal funding…[because] the Pennsylvania Department of Education is the single state agency that is federally authorized to approve these programs.” According to the Governor, in 2017 his administration “distributed approximately $57,000,000 in state Career and Technical Education funding to schools across the commonwealth.” He stated that if enacted, HB 2157 would have removed program approval authority from the department; thereby impairing the ability of those schools to receive such funds in the future.  Governor Wolf further asserted that the legislation would have eliminated “funding for agricultural education programs approved under this bill’s provisions.” Finally, the Governor stated that under the legislation, schools that currently receive Federal Perkins funding for Agriculture Education programs would have been required “to forego such funds, costing those schools $6,345,299.” Prior to the Governor’s veto, HB 2157 passed in the House by a vote of 192-0 and in the Senate by a vote of 46-3.

Food Safety: FDA and USDA Hold Public Meeting on Cell Culture Technology Regulation

On October 23 and 24, 2018, the U.S. Department of Agriculture’s Food Safety Inspection Service (FSIS) and the U.S. Food and Drug Administration (FDA) held a two-day joint public meeting titled, “The Use of Cell Culture Technology to Develop Products Derived from Livestock and Poultry.” On September 10, 2018, U.S. Secretary of Agriculture Sonny Perdue and U.S. Food and Drug Administration Commissioner Scott Gottlieb, announced the joint public meeting regarding the two agencies teaming up to regulate cell cultured meat.  Gottlieb stated that “advances in animal cell cultured food products present many important and timely technical and regulatory considerations for [both] the FDA” and the USDA.   Accordingly, the joint-meeting’s agenda included discussions on the current regulatory frameworks of the USDA and FDA involving foods and products of cell culture technology.  The meeting also addressed the potential hazards of cell cultured meats and appropriate regulatory oversights.  Recordings of the two-day meeting are available online through the FSIS website.  Comments on this issue are due by November 26, 2018.

Antibiotic Use: EU Restricts Antibiotic Use in Farm Animals

On October 26, 2018, the Guardian reported that the European Union (EU) parliament has approved restrictions regarding the use of antibiotics on healthy farm animals.  According to the report, the restrictions are an attempt to prevent antibiotic resistant bacteria commonly referred to as “superbugs.” The Guardian stated that EU farmers have routinely used antibiotics on healthy farm animals as a way to prevent the potential spread of disease.  Scientist, however, assert that this common practice has increased antimicrobial-resistance and could result in antibiotics no longer being an effective source of medical treatment.  The new restrictions are scheduled to go into effect by 2022.

From National Ag Law Experts:

“Death of Ranch Hand Raises Important Legal Issues”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog, Texas A&M AgriLife Extension (October 28, 2018)

“Long-Term Leases Provide a Valuable Succession Planning Tool as Recent Court Case Highlights”, Paul Goeringer, Maryland Risk Management Education Blog (October 30, 2018)

Pennsylvania Legislation:

Act 162 (SB 1171): Nutrient management and odor management legislation addressing the Nutrient Management Advisory Board and the Agricultural Advisory Board (Signed by the Governor, October 24, 2018)

Pennsylvania Actions and Notices:

Department of Agriculture: Rules and Regulations

Weighmasters

State Conservation Commission: Notices

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

“PA Agriculture Celebrates Commitment to Food Manufacturing with Hershey Co., Walmart”

Penn State Research:

“College of Agricultural Sciences selected as host site for Mandela Fellows” – Penn State News

“Citizens play a vital role in spotted lanternfly management efforts” – Penn State News   

AgLaw HotLinks:

“Incidence of Financial Stress on Illinois Grain Farms” – Illinois farmdocdaily   

 “Online Grocery Sales Expected To Quadruple By 2023” – Brownfield Ag News

“USCA's top priority: Labeling of alternative proteins” – Morning AgClips 

“Smithfield expands 'manure-to-energy' projects” – Feedstuffs

“Behind Bayer’s Tough Defense of Roundup” – The Wall Street Journal

“Get ready for retail: Selling farm products at grocery stores and restaurants” – Farm and Dairy

“Regulatory regime for cell-cultured food is on agenda for 2019” – Food Safety News

“Farmers Know Trump's Trade War Is Hurting Them. That Doesn't Mean They'll Vote Democrat” – Time

“Ag mediation program celebrates 30 years” – Morning AgClips     

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Agriculture Big Data Legal Issues and Protections: Part 2 - What is Agricultural Big Data?

Written by M. Sean High - Staff Attorney

The term agricultural Big Data generally refers to the collection, aggregation, and analysis of incredibly large amounts of agricultural information.  This available agricultural information is so vast that it is difficult to work with and therefore cannot be processed according to traditional methods.  As a result, agricultural Big Data requires advanced computer software and innovative analysis techniques.  The ultimate goal of this collection and analysis is to provide farmers with a tool to increase production through a precise and efficient use of resources.

The first step in the agricultural Big Data process is the collection of agricultural information from individual farms. 

Recent developments in farming practices have served to provide an incredible wealth of agricultural information.  Today, it is common practice for farmers to employ Global Positioning System (GPS) satellites to guide their tractors and combines.  Farmers that utilize this technology simply sit in the equipment cabs and monitor the progress of the machinery from computer tablets.  As a result, many farmers have been freed form the tedious task of steering and are now able to plant significantly straighter rows.  

Significantly, the same machinery currently used to guide farm equipment also has the potential to collect soil and crop information.  These highly developed tractors and combines are able to display in real time, on the same computer tablets utilized for steering, detailed planting and harvesting information regarding  where every seed is placed and what the current yields are.  Importantly, this information can also be recorded and collected for later analysis and use.   

In addition to information collected from tractors and combines, information may also be gathered through the use of sensors placed in fields that measure the temperature and humidity of the soil and surrounding air.  Furthermore, crop maturity may be monitored from images acquired through the use of satellite imagery.

An area that offers significant potential for crop monitoring and information collection is through the use of drones.  Drones are flying devices that do not have an “onboard pilot, use global positioning satellites (GPS) for guidance, and establish a microwave (“wifi”) data link to a control station on the ground.” These unmanned aircrafts are able to effectively cover large areas and collect vast amounts of agricultural information through the use of mounted cameras (one of which usually has infrared detection).” Relatedly, as a result of the ever increasing use of drones, in December 2015, the Federal Aviation Administration established new regulations regarding drone registration. 

Agriculture Big Data Legal Issues and Protections: Part 1 - Background

Written by M. Sean High - Staff Attorney

In recent years, the term “Big Data” has been used with increased frequency.  In general, Big Data refers to the modern practice of collecting and using computers to process incredibly large amounts of information for a designed purpose.  A common example of this would be when online companies collect information, based on social media activities, in order to present likely consumers with targeted advertisements.

By processing the collected information, Big Data promises businesses the potential to increase profits through a more efficient use of their limited resources.  In the example of online advertisement, recording social media activities and habits allow businesses to present consumers with products they are inclined to purchase and not with those they are unlikely to buy.  By employing this approach, advertising dollars are concentrated where they are likely to have the greatest affect.  While the monitoring of social media activities may offer businesses a significant marketing tool, it also raises questions regarding control of the collected data and the personal privacy of those being observed.

Recently, Big Data has become widely associated with agricultural production.  Proponents of agricultural Big Data assert that better understanding of agricultural information (such as that related to crop production) will allow farmers, like other businesses, to more efficiently use their limited resources (such as land, water, seed, and fertilizer).  Others in the agricultural community have been reluctant to embrace agricultural Big Data because of concerns over control of the information collected and loss of personal privacy; the same apprehensions associated with the monitoring of social media activities.

While most farmers have heard of the term agricultural Big Data, large numbers of them do not fully understand how agricultural Big Data affects (or potentially affects) their own agricultural operations.  Nevertheless, farmers are now being approached by companies offering to sell their agricultural Big Data services.  Because these farmers are being asked to decide on whether or not to utilize agricultural Big Data, it is now necessary that they understanding the meaning of the term agricultural Big Data; that they comprehend the key legal issues regarding agricultural Big Data; and that they become aware of the potential legal protections available to those who decide to utilize agricultural Big Data.