Welcome to the Ag & Food Law Blog

This blog provides a comprehensive news, research, and information resource on agricultural and food law for the nation’s agricultural community. 

It is provided as a partnership of The National Agricultural Law Center, the nation’s leading source of agricultural and food law research and information, and the American Agricultural Law Association, the only national professional organization focusing on the legal needs of the agricultural community.  Located in Fayetteville, Arkansas the National Agricultural Law Center serves the nation's agricultural community and is a unit of the University of Arkansas System Division of Agriculture.  In addition, the Center leads the eXtension Community of Practice for Agricultural and Food Law.

Judge Finds EPA Water Transfers Rule Unlawful

Posted April 15, 2014

In Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. E.P.A., Nos. 08-CV-5606 (KMK), 08-CV-8430 (KMK), 2014 WL 1284544, S.D.N.Y. (March 28, 2014), the United States District Court for the Southern District of New York considered a case involving the U.S. Environmental Protection Agency’s (EPA’s) Water Transfers Rule.  The court remanded the Water Transfers Rule, which exempts certain water transfers from permitting requirements under the Clean Water Act, holding that the EPA’s interpretation was arbitrary and capricious for “multiple reasons.”

For a copy of the decision, please contact the National Agricultural Law Center at nataglaw@uark.edu.  For more information on the Clean Water Act, please visit the National Agricultural Law Center’s Reading Room on the subject here.

Background

This case is a consolidation of two cases filed by different plaintiffs, but addressing the same issues.  Id. at*11.  Plaintiffs, conservation groups, filed their lawsuit challenging the EPA’s Water Transfers Rule.  Id.  Later, several states filed a similar suit challenging the Rule.  Id. 

The Water Transfers Rule is an “exclusion” to the NPDES program, excluding discharges from water transfers from NPDES permitting.  40 C.F.R. § 112.3(i).  Id. at *10.  The final rule was issued on June 13, 2008.  Id

Analysis and Holding

The court analyzed the case under the two-step framework established in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. 467 U.S. 837 (1984).  Id. at *14.  In step one, the court addressed “whether Congress directly spoke to the issue of whether a water transfer is an “addition … to navigable waters” under § 502(12).  Id. at *15.  In step two, the court considered the CWA to contain a “delegation[] of authority to the agency to fill the statutory gap in reasonable fashion.”  Id. at *27.  When Chevron deference applies, an agency must “provide a reasoned explanation for its action.”  Id. at *28.  The reasons must be grounded in the statute.  Id. at *29. 

The court found EPA’s analysis arbitrary and capricious for “multiple reasons.”  Id. at *36.  The court concluded that EPA’s interpretation “was not supported by a reasoned explanation because it chose a flawed methodology from the start” and, thus, EPA was not entitled to deference because it did not actually answer the precise question at issue.  Id. at *42.  The court concluded that EPA’s interpretation also fails step two because it failed to support its ultimate conclusion by considering other alternatives and showing how the option it did choose was consistent with its analysis of congressional intent.  Id. at *42. 

The court stated, in “addition to finding that EPA did not provide a reasoned explanation for its decision in the context of its duty to balance the statute’s competing goals, the Court also finds that EPA failed to explain how its action was consistent and why it did not frustrate the one goal it did consider.”  Id. at *49. 

The court also found that the EPA did not provide a “reasoned explanation” for its interpretation of the term “navigable waters” as interpreted in the Water Transfers Rule.  Id. at *57.  The court stated, “because EPA may expand the scope of “navigable water” only within the limits identified in Rapanos, and because it appears in this case that the Water Transfers Rule goes beyond those limits, the Court rejects the EPA’s interpretation.  Id.

The court remanded the Water Transfers Rule to give EPA a chance to “reexamine and reevaluate some new ideas.”  Id. at *58.   

Dairy Industry, Breweries Ask FDA to Reconsider Animal Feed Regulation

Posted April 15, 2014

American dairy and brewery industries are urging the U.S. Food and Drug Administration (FDA) to reconsider a proposed livestock feed rule they say will make it difficult for brewers to sell their spent grain, according to an article by DTN Progressive Farmer available here.

Groups opposing the proposed rule include the American Malting Barley Association, the Beer Institute, the National Milk Producers Federation and the International Dairy Foods Association.

Chris Thorne, vice president of communications for the Beer Institute, said that the production of beer is already held to high standards, since beer is produced for human consumption.  Thorne also said that the regulation would put an undue financial burden on brewers. 

Legislators also voiced concerns over the rule in a Senate appropriations hearing, according to an article by the New York Times available here.

Senator Susan Collins (R-ME) asked Margaret A. Hamburg, commissioner of the FDA, why FDA was going to make it more difficult for brewers to donate or sell their leftover grain to livestock farmers, which is a practice that “has been going on for centuries.”

Senators Mark Udall (D-CO) and Charles E. Schumer (D-NY) have also voiced their concern about the rule’s impact on brewers.

The proposed rule, “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventative Controls for Food for Animals” available here, seeks to assure that food for animals is safe and will not cause illness or injure animals or humans.  The rule would require certain facilities to establish and implement hazard analysis and risk-based preventive controls.  In addition the rule would establish requirements for current good manufacturing practices in manufacturing, processing, packing, and holding of animal food. 

The proposed rule is part of FDA’s implementation of the Food Safety and Modernization Act (FSMA).

For more information on food safety, please visit the National Agricultural Law Center’s website here.

UDSA and HHS Disagree over Poultry Rules

Posted April 14, 2014

The U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) disagree over recent changes to poultry inspection procedures, according to an article by The Hill available here.

USDA’s proposed rule aims to implement new poultry inspection standards that would speed up production and lessen regulatory oversight, but critics say the rule would compromise worker protection and food safety. 

HHS criticized USDA for “misleading” the public about its research at a poultry plant which was part of the pilot program to test the proposed rule.  The director of the National Institute for Occupation Safety and Health (NIOSH), John Howard, wrote a letter expressing the department’s concerns.  The letter is available here.

NIOSH reviewed the poultry plant in South Carolina, where USDA tested the new rule and issued a report in March.  The report concluded that 42 percent of workers had evidence of carpal tunnel syndrome and 41 percent or workers worked in jobs involving “hand activity and force above the recommended limits for activity and force.”

USDA, however, points out that NIOSH did not find an increase in the rate of carpal tunnel syndrome over the 10 month study.  USDA’s blog post is available here.  “NIOSH found that working conditions, injury rates, and the number of birds processed per employee did not change between the baseline and the follow-up evaluations,” UDSA wrote.  “It also made several recommendations to improve worker safety at this facility, but slowing the evisceration line speed was not among them.”

NIOSH said that USDA misinterpreted the results, responding, “The truth of the matter is that the HHE Report draws no such conclusion.”

Agri-Pulse reports that USDA intends to finalize the proposed rule by the end of the year.  The rule would allow poultry plants to increase their line speeds up to 175 carcasses per minute with a single inspector on the line. 

For more information on food safety and labor, please visit the National Agricultural Law Center’s website here and here.  

USDA Announces Funding for Beginning Farmer and Rancher Program

Posted April 14, 2014

USDA recently announced the availability of over $19 million in grant funding for the Beginning Farmer and Rancher Development Program (BFRDP), according to the USDA News Release available here.  AgWeek also reported on the story here.

“USDA is committed to the next generation of America’s farmers and ranchers because they represent the future of agriculture and are the backbone of our rural economy.  As the average age of farmers continues to rise, we have no time to lose in getting more new farmers and ranchers established,” said Secretary of Agriculture Tom Vilsack. 

BFRDP is an education, training, technical assistance and outreach program designed to help farmers, ranchers and managers of non-industrial private forest land who want to start farming or have been farming or ranching for 10 years or fewer.  The program is managed by the National Institute of Food and Agriculture (NIFA).  More information on eligibility and how to apply for grants is available here.  Applications are due June 12, 2014.

Priority will be given to projects that are “partnerships or collaborations led by or including non-governmental, community-based, or school-based agricultural educational organizations.  All applicants are required to provide funds or in-kind support from non-federal sources in an amount that is at least equal to 25 percent of the federal funds requested.”

NIFA will host two webinars for interested applicants on April 30 and May 6 at 2:00 p.m. Eastern.  Webinar information is available here.

For more information on grant and loan programs for beginning farmers and ranchers, please visit the National Agricultural Law Center’s website here.

Federal Food Labeling Law Draws Ag Support

Posted April 11, 2014

Federal legislation requiring food with genetically modified ingredients to be labeled according to a national standard was recently introduced.  The bill is supported by some major farm groups, according to an article by the Southeastern Farm Press available here.

The “Safe and Accurate Food Labeling” bill, H.R.  4432, was sponsored by Rep. Mike Pompeo (R-KS) and introduced in the House on April 9.

The bill would give the U.S. Food and Drug Administration (FDA) the authority, as opposed to individual states, to mandate the labeling of any GMO food ingredients it determines would create a health, safety or nutrition issue.

“The GMO labeling ballot initiatives and legislative efforts that many state lawmakers and voters are facing are geared toward making people wrongly fear what they’re eating and feeding their children…With the introduction of this legislation…, Farm Bureau looks forward to a national-level discussion that will affirm FDA’s role in assuring consumers about GMO safety and reduce the confusion that would result from a patchwork of state labeling initiatives,” said Bob Stallman, president of the American Farm Bureau Federation.

“People like to read food labels in order to make their own personal decisions,” said Rep. Marsha Blackburn (R-TN) as reported by Politico here.  “It makes sense to have federal legislation that will inform consumers, eliminate any confusion, and advance food safety.”  The Hill also reported on the story here.

For more information on food labeling, please visit the National Agricultural Law Center’s website here.

AFBF Holds Meeting on Farm Data Privacy

Posted April 11, 2014

The American Farm Bureau Federation (AFBF) held a meeting on Thursday on how to protect farm data privacy after several members voiced concerns about contracts, according to a Reuters article available hereWisconsin Ag Connection and the St. Louis Business Journal also reported on the story.

After the meeting, AFBF said it had more work to do to find a consensus on setting standards for farm data privacy. 

The meeting was attended by executives from John Deere, Monsanto, DuPont Pioneer, and other farm products companies. 

Areas of concern included who will drive the common standard for data produced on farms, as corporations are “rolling out products and service that combine analysis of everything from the row spacing a farmer might use to plant his corn, to the soil conditions of various spots in a field and local weather patterns.”

Universal guidelines and licensing would make data services contracts easier to understand and common technical standards would allow interoperability for equipment of different brands.

“There were a lot of questions answered and a lot more questions asked,” said Martin Barbre, president of the National Corn Growers Association and one of about 35 meeting participants.  “We’re going to continue this dialogue and hopefully have more definitive answers in the future.”

“The meeting was a clear indication of the opportunities that the proper management of data holds for agriculture across the board,” said Monsanto spokeswoman Christy Toedbusch.

During the meeting, disagreement surfaced over which data security and privacy standards platforms should be the template for the industry.  Monsanto’s Climate Corporation helped to launch the Open Ag Data Alliance, but John Deere has not joined that group.  John Deere currently chairs the board of a different standards group called AgGateway.

For more information on biotechnology, please visit the National Agricultural Law Center’s website here.