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VOLUME 18, NUMBER 11, WHOLE NUMBER 216 OCTOBER 2001

Drra
akke
e announces agagr
reement with USDA
Agency
Risk Management Agenc support
y to support state
policy
food polic y councils
The Drake University Agricultural Law Center has entered a cooperative agreement
with the U.S. Department of Agriculture to support the work of state food policy
councils in four states. Professor Neil Hamilton, director of the center, will
coordinate the project in cooperation with officials from the Risk Management

INSIDE Agency (RMA) of USDA….
Iowa Gov. Thomas Vilsack created the 21-member Iowa Food Policy Council in
April 2000 and appointed Professor Hamilton to chair the effort. The goal of the
council is to examine the operation of Iowa’s food system and help identify how state
• Agricultural law and local governments can create opportunities for farmers and consumers.
In addition to the public members—which include farmers, retailers, distributors,
bibliography hunger advocates and food processors—the Iowa Food Policy Council has represen-
tatives from major state agencies. One goal of the council is to expand the market
• House of for Iowa-grown food. The council played a key role in helping Iowa receive a $560,000
Representatives grant from USDA to provide law-income seniors with coupons to purchase Iowa-
passes 10-year grown produce at farmers’ markets across the state.
Under the agreement, USDA will provide $200,000 to help support the operation
farm bill of food policy councils in Iowa, Connecticut, North Carolina, and Utah.
Under the new project, USDA funds will be used to hire staff to support existing
councils in Iowa and Connecticut and to help the departments of agriculture in North
Carolina and Utah create state food policy councils….
—Reprinted from the Iowa Food Policy Council News, Summer 2001, p. 3.

Editor’s note: see accompanying article entitled “Q & A: State food policy coun-
cils.”

Solicitation of articles: All AALA
members are invited to submit
articles to the Update. Please in-
clude copies of decisions and leg-
food
Q & A: State f policy
ood policy councils
What is a state food policy council?
islation with the article. To avoid
duplication of effort, please no-
· It is an officially sanctioned body made up of representatives from various
segments of a state or local food system, as well as selected public officials, who are
tify the Editor of your proposed asked to examine the operation of a local food system, and provide ideas or
article. recommendations for how it can be improved;
·It is an initiative which tries to engage representatives of all components of the
food system—consumers, farmers, grocers, restaurateurs, food processors, distribu-

IN FUTURE tors, anti-hunger advocates, educators, government officials—in a common discus-
sion and examination of how the local food system works.

I SSUES Why have one?
· To broaden the discussion of issues beyond simply agricultural production to
involve a more comprehensive, food system wide examination;
· To provide an opportunity for a focused examination of how state and local
• Notes on the Equal government actions shape the food system;
Access to Justice Act · To create a forum in which people involved in all different parts of the food
system—and government—can meet to learn more about what each one does and to
consider how their actions impact other parts of the system.

What exactly is a food policy?
·A food policy is any decision made or not made by a government or institution:
which shapes the type of foods used or available—as well as their cost, or which
Continued on page 2
COUNCILS/CONTINUED FROM PAGE 1

asked to be involved when farm and ment, inspections, education, human ser-
influences the opportunities for farmers
agricultural policy is discussed. vices, health, and transportation. State
and employees, or affects the food choices
available to consumers. · A food policy council can examine legislators and locally elected officials
may also be involved.
issues, which often go unexamined, such
Examples of food policies would in- as the effectiveness of food assistance
programs and the causes of hunger in a How is a council created and admin-
clude:
society. istered?
—the decision by school officials
whether to purchase foods raised by local · A food policy council can employ a ·A council is typically created through
more comprehensive approach to analyz- some official government action, such as
farmers;
ing issues, which recognizes the inter- the passage of a law, the issuance of an
—the eligibility standards for when
relation between different parts of the executive order or a proclamation. A coun-
low-income residents may participate in
food system and the need for coordina- cil can either be administered as an offi-
food assistance programs;
tion and integration of actions if policy cial part of the state government, or can
—the regulatory requirements placed
goals are to be achieved. For example, if be administered by a non-profit or educa-
on someone desiring to open a food-based
a key objective is to increase markets for tional institution as an advisory body. In
business;
locally produced food, a council can be a Connecticut the non-profit Hartford Food
—and, the food purchasing decisions of
vehicle to consider how the decisions at System helps administer the council in
institutional buyers as they relate to the
all levels of a food system—not just farm- cooperation with the state department of
use of locally produced items.
ers or government officials—but also food agriculture. In Iowa, the Agricultural
What can a food policy council do buyers, wholesalers, retailers, must be Law Center at Drake University admin-
that is not already being done some- considered in the equation. isters the council in cooperation with the
Office of Governor. Funding for the op-
where in government?
eration of the council may come from
·A food policy council can bring to the Who has them and how did they come
private sources, foundation or govern-
table a broader array of interests and into existence?
Currently the states of Connecticut ment grant, or state appropriations.
voices, many of which are not typically
and Iowa have official state food policy
councils, and North Carolina and Utah What are some examples of actions
are in the process of creating them. The food policy councils have taken?
council in Connecticut emerged from ef- The food policy idea can be employed at
forts led by the non-profit Hartford Food any level of government and there are a
System to examine the causes and solu- number of successful examples of local
tions to hunger in the city. In Iowa, the food policy councils, which operate at the
council grew out of efforts to create more city level. The most well-known examples
interest in using local food and from the are in Toronto, Los Angeles, and Hart-
VOL. 18, NO. 11, WHOLE NO. 216 October 2001
need to diversify and expand Iowa’s food ford. The Community Food Security Coa-
AALA Editor..........................Linda Grim McCormick system. The efforts in North Carolina lition, a national organization of hunger
Rt. 2, Box 292A, 2816 C.R. 16, Alvin, TX 77511 and Utah are part of a cooperative effort and food policy advocates has been an
Phone: (281) 388-0155 effective advocate for increased atten-
FAX: (281) 388-0155 between the USDA Risk Management
E-mail: lgmccormick@teacher.esc4.com Agency and the Drake University Agri- tion to community food system issues,
cultural law Center to examine how the and through this work has helped sup-
Contributing Editors: Neil D. Hamilton, Drake
University; Drew L. Kershen, The University of creation of state food policy councils can port creation of local food policy councils.
Oklahoma School of Law; Anne Hazlett, Washington,
DC.
improve the functioning of state food
systems. In addition, efforts have begun How can I learn more about these
For AALA membership information, contact William in several other states, including Ken- issues?
P. Babione, Office of the Executive Director, Robert A. You can learn more about community
Leflar Law Center, University of Arkansas, Fayetteville, tucky, Oklahoma, and Massachusetts, to
AR 72701. implement such councils. food security and the operation of food
policy councils by going to these web
Agricultural Law Update is published by the
American Agricultural Law Association, Publication Who typically serves on a food policy sites: Toronto Food Policy Council –http:/
office: Maynard Printing, Inc., 219 New York Ave., Des
council? /www.city.Toronto.on.ca/health/
Moines, IA 50313. All rights reserved. First class postage
paid at Des Moines, IA 50313. · Membership on a council is deter- tfpc_index.htm; Community Food Secu-
mined by the officials responsible for rity Coalition-http://
This publication is designed to provide accurate and www.foodsecurity.org/; Hartfood Food
authoritative information in regard to the subject matter forming it. The goal is to have broad
covered. It is sold with the understanding that the representation of the issues and inter- System—www.hartfordfood.org.
publisher is not engaged in rendering legal, accounting,
ests of people and institutions across the To learn more about the Iowa Food
or other professional service. If legal advice or other
expert assistance is required, the services of a competent food system. Typical representatives Policy Council, call the Agricultural Law
professional should be sought.
might include: farmers involved in direct Center at Drake University, 515-271-
Views expressed herein are those of the individual marketing of food, consumers, anti-hun- 2065.
authors and should not be interpreted as statements of ger advocates and food bank managers, —Reprinted from the Iowa Food
policy by the American Agricultural Law Association. Policy Council News,
labor representatives, members of the
Letters and editorial contributions are welcome and faith community, food processors, food Summer 2001, p. 3.
should be directed to Linda Grim McCormick, Editor,
Rt. 2, Box 292A, 2816 C.R. 163, Alvin, TX 77511. wholesalers and distributors, food retail-
ers and grocers, chefs and restaurant
Copyright 2001 by American Agricultural Law
Association. No part of this newsletter may be
owners, officials from farm organiza-
reproduced or transmitted in any form or by any means, tions, community gardeners, and aca-
electronic or mechanical, including photocopying, demics involved in food policy and law. In
recording, or by any information storage or retrieval
system, without permission in writing from the addition, the state governmental offi-
publisher. cials involved with the council include
representatives from the state depart-
ments of agriculture, economic develop-

2 AGRICULTURAL LAW UPDATE OCTOBER 2001
gr
Ag icultural
ricultur law
al la bibliogr
w bibliog aphy
raph third
y: thir quarter
d quarter 2001
Administrative law Environmental issues International trade
Kelley, The Agricultural Risk Protection Act of 2000: Note, The Role of Eco-labels in International Trade: Payne & Koehler, Peanut Butter— Sandwiched Be-
Federal Crop Insurance, the Non-Insured Crop Disaster Can Timber Certification be Implemented as a Means to tween Competing Country of Origin Marking Require-
Assistance Program, and the Domestic Commodity and Slowing Deforestation? 12Colo.J.Int’lEnvtl.L.&Pol. ments:AnAnalysisofBestfoodsv.UnitedStates,19Wis.
Other Farm Programs, 6 Drake J. Agric. L. 141-174 347-365 (2001). Int’lL.J.181-196(2001).
(2001). Note, Time to Bite the Bullet: A Look at State Imple- Note, Genetic Engineering and International Law:
mentation of Total Maximum Daily Loads (TMDLs) Under ConflictorHarmony?AnAnalysisoftheBiosafetyProto-
Agricultural law: attorney roles and educational pro- Section303(d)oftheCleanWaterAct,40WashburnL.J. col, GATT, and the WTO Sanitary and Phytosanitary
grams 480-531 (2001). Agreement, 20 Va. Envtl. L.J. 295-327 (2001).
Kelley, Agricultural Law: A Selected Bibliography, Rogers & Hazlett, TMDLs: Are They Dead Letters?,
2000, 54 Ark. L. Rev. 317-406 (2001). 18 Agric. L. Update 4-7 (Aug. 2001). Land use regulation
Studentarticle, Clean Water Act: EPA’s TMDL Pro- Land use planning and farmland preservation
Animals—animal rights gram, 28 Ecology L.Q. 297-325 (2001). techniques
Hannah, Animals as Property— Changing Concepts, Studentarticle, CleanWaterAct(Pronsolinov.Marcus, Comment, Evaluating Farmland Preservation Through
25 S. Ill. U. L.J. 571-583 (2001). 91 F. Supp. 2d 1337, N.D. Cal. 2000), 28 Ecology L.Q. Suffolk County, New York’s Purchase of Development
327-354 (2001). Rights Program, 18 Pace Envtl.. Rev. 197-220 (2000).
Biotechnology Taylor, The Emerging Merger of Agricultural and Morrisette, Conservation Easements and the Public
Abramson & Carrato, Crop Biotechnology: The Case Environmental Policy: Building a New Vision for the Good: Preserving the Environment on Private Lands,41
for Product Stewardship, 20 Va. Envtl. L.J. 241-266 FutureofAmericanAgriculture,20Va.Envtl..L.J.169-190 Nat. Resources J. 373-426 (2001).
(2001). (2001).
Comment, Genetically Modified Organisms,13Fla.J. Livestock and Packers & Stockyards
Int’l L. 231-241 (2001). Equine law Bader & Finstad, Conflicts Between Livestock and
Comment, The Merits of Ratifying and Implementing Comment, GlobalizedHorseTrade:ANeedForHeight- Wildlife: An Analysis of Legal Liabilities Arising From
the Cartagena Protocol on Biosafety,21Nw.J.Int’lL.& ened Sophistication in the Equine Industry, 69 UMKC L. Reindeer and Caribou Competition on the Seward Pen-
Bus. 491-517 (2001). Rev. 613-642 (2001). insula of Western Alaska, 31 Envtl. L. 549-579 (2001).
Comment, Precautionor Protectionism?The Precau- Note, And They’re Off: The Legality of Interstate
tionary Principle, Genetically Modified Organisms, and Pari-mutuel Wagering and Its Impact on the Thorough- Organizational forms for agriculture (business law &
Allowing Unfounded Fear to Undermine Free Trade,14 bred Horse Industry, 89 Ky. L.J. 711-741 (2001). development)
Transnat’l L. 295-321 (2001). Incorporation
Document Reprint, Cartagena Protocol on Biosafety Estate planning/divorce Feirick, Using a Limited Liability Company to Operate
to the Convention on Biological Diversity, 9 Mich. St. Note, Re-thinking the Estate Tax: Should Farmers a Pennsylvania Family Farm Business,18Agric.L.Up-
U.-Detroit C. L J. Int’l L. 227-254 (2000). Bear the Burden of a Wealth Tax? 9 Elder L.J. 109-139 date 4-7 (Sept. 2001).
Goklany, Precaution Without Perversity: A Compre- (2001).
hensive Application of the Precautionary Principle to Patents, trademarks & trade secrets
Genetically Modified Crops, 20 Biotech. L. Rev. No. 3 Farm labor Bookreview, Reviewing Philip W. Grubb, Patents for
(June 2001). Aliens Chemicals, Pharmaceuticals and Biotechnology: Funda-
Hamilton, Legal Issues Shaping Society’s Acceptance Holley, Disadvantaged By Design: How the Law Inhib- mentals of Global Law, Practice, and Strategy, 41
of Biotechnology and Genetically Modified Organisms,6 its Agricultural Guest Workers From Enforcing Their Jurimetrics J. 409-416 (2001).
Drake J. Agric. L. 81-118 (2001). Rights, 18 Hofstra Lab. & Employment L.J. 575-623 Comment, To Patent or Not to Patent: The European
Kershen, The Risks of Going Non-GMO,53Okla.L. (2001). Union’sNewBiotechDirective,23Hous.J.Int’lL.569-607
Rev. 631-652 (2000). (2001).
Kolehmainen, PrecautionBeforeProfits:AnOverview Federal loan programs (Farmers Home Administra- Comment, TheRoleofInternationalLawinProtecting
of Issues in Genetically Engineered Food and Crops,20 tion/Farm Service Agency) the Traditional Knowledge and Plant Life of Indigenous
Va. Envtl. L.J. 267-294 (2001). Schneider, Eligibility Requirements For Individuals: Peoples,19Wis.Int’lL.J.249-266(2001).
Note, The Dilemma of Genetically Modified Products FSA Direct Loan Programs, 18 Agric. L. Update 6-7, 3 Feitshans, AReviewofU.S.IntellectualPropertyLaw
at Home and Abroad,6DrakeJ.Agric.L.241-255(2001). (May 2001). Applicable to Inventions in Biotechnology: U.S. Intellec-
Note, The Mismatch Between the Biosafety Protocol tual Property Law Continues to Demonstrate Its Adapt-
and the Precautionary Principle, 13 Geo. Int’l Envtl. L. Food and drug law ability to New Technology, 6 Drake J. Agric. L. 7 -30
Rev. 949-982 (2001). Comment, Fear of Frankenfoods: A Better Labeling (2001).
Note,AgriculturalBiotechnology:WhyitCanSavethe Standard For Genetically Modified Foods,1Minn.Intell. Gitter, Led Astray By the Moral Compass: Incorporat-
Environment and Developing Nations, But May Never Prop. Rev. 153-181 (2000). ing Morality into European Union Biotechnology Patent
Get a Chance, 25 Wm. & Mary Envtl. L. & Pol. Rev. Jones, ForbiddenFruit:TalkingAboutPesticidesand Law,19BerkeleyJ.Int’lL.1-43(2001).
721-748 (2001). FoodSafetyintheEraofAgriculturalProductDisparage- Note, “ ... And on his farm he had a Geep”: Patenting
Symposium: BiotechnologyandInternationalLaw,14 ment Laws, 66 Brook. L. Rev. 823-859 (2001). Transgenic Animals, 2 Minn. Intell. Prop. Rev. 89-119
Transnat’l L. 77-134 (2001). Note, Got “Hormone-free” Milk? Your State May Have (2001).
· Jacob, The Cartagena Protocol--A First Step to a Enough Interest to Let You Know, 76 Ind. L.J. 785-801 Note, Finders’ Keepers: The Dispute Between Devel-
Global Biosafety Structure?—pp. 79-90 (2001). oped and Developing Countries Over Ownership of Prop-
· McCaffrey, Biotechnology: Some Issues of General erty Rights in Genetic Material, 7 Widener L. Symp. J.
International Law—pp. 91-102 Forestry 203-225 (2001).
· Ntambirweki, Biotechnology and International Law Breazeale, Is Something Wrong with the National
Within the North-South Context—pp. 103-128 Forest Management Act? 21 J. Land Res. & Envtl. L. Pesticides
· Szekely, ModifiedOrganismsandInternationalLaw: 317-330 (2001). Clark, EnforcementofPesticideRegulationinCalifor-
An Ethical Perspective—pp. 129-134 Lippe&Bailey, RegulationofLoggingonPrivateLand nia: A Case Study of the Experience With Methyl Bro-
in California Under Governor Gray Davis, 31 Golden mide, 31 Golden Gate U. L. R. 465-527 (2001).
Cooperatives Gate U. L. Rev. 351- 431 (2001).
General Lipschutz, Why is There No International Forestry Public lands
Goforth, ApplicationoftheFederalSecuritiesLawsto Law?: An Examination of International Forestry Regula- Book Review, Ranching Without Reason (Reviewing
Equity Interests in Traditional and Value-Added Agricul- tion, Both Public and Private,19 UCLA J. Envtl. L. & Pol. Debra L. Donahue, The Western Range Revisited: Re-
tural Cooperatives, 6 Drake J. Agric. L. 31-80 (2001). 153-179 (2000/2001). moving Livestock from Public Lands to Conserve
Kelley, Notes on the Capper-Volstead Act of 1922,18 Biodiversity), 5 Great Plains Nat. Resources J. 153-160
Agric. L. Update 4-5, 3 (May 2001). (2001).
Cont. on p.7

OCTOBER 2001 AGRICULTURAL LAW UPDATE 3
Repr
House of Re presentati
pr esentatives
esentati 10-year
ves passes 10-y farm
ear f arm bill
Anne Hazlett 2011. Producers can receive up to 50 percent four-year average is then reduced to reflect
of the fixed payments anytime on or after the increase in yields that has occurred
On Friday, October 5, 2001, the House of December 1st of a fiscal year. Further, H.R. between 1981-1985 and 1998-2001. While
Representatives passed a ten-year farm bill, 2646 raises the payment limit on fixed the Committee would have liked to update
H.R. 2646, by a vote of 291 to 120. Known as decoupled payments from $40,000 to $50,000. yields to current levels, budgetary con-
the “Farm Security Act of 2001,” H.R. 2646 It also maintains the current flexibility pro- straints dictated that payments continue to
would replace the current Freedom to Farm visions, which allow producers to grow nearly be determined based on yields adjusted back
framework, which expires in September of any commodity on contract acreage except to 1985 levels.
2002. H.R. 2646 contains $73.5 billion over fruits and vegetables. Finally, H.R. 2646 retains the current
ten years in new money for agriculture and Beyond fixed payments, H.R. 2646 pro- marketing assistance loan program. Cur-
nutrition programs. vides for counter-cyclical payments that will rent loan rates continue for nearly all crops,
Passage of H.R. 2646 represents the cul- be made whenever the “effective price” for a except that soybeans are set at $4.92 per
mination of over two years of work by the covered commodity is less than an estab- bushel to reflect the inclusion of oilseeds in
House Agriculture Committee. During the lished target price. The legislation sets the the fixed decoupled payment program. In
past two years, the Committee, under the target prices at slightly above those estab- contrast to other payments, loan eligibility
leadership of Chairman Combest (R-TX) and lished in the 1990 Farm Bill. The effective is 100 percent of a producer’s current pro-
ranking minority member Stenholm (D-TX), price is defined as the sum of (1) the higher duction. H.R. 2646 sets a combined payment
held more than forty hearings in every re- of the national average market price during limit of $150,000 for loan deficiency pay-
gion of the country and on Capitol Hill dur- the twelve-month marketing year for the ments and marketing loan gains for all crops.
ing which producers, commodity groups, commodity or the national average loan rate, It also retains the use of generic commodity
trade associations, and related interests de- and (2) the payment rate for the fixed certificates. Lastly, H.R. 2646 makes pro-
livered their “wish lists” for the future of decoupled payments of the commodity. The ducers on a farm with no production flexibil-
farm policy. Over the summer, the Commit- payment rate for the counter-cyclical pay- ity contract eligible to receive loan defi-
tee developed a farm bill proposal that was ments is then the difference between the ciency payments on 2001 crops.
passed by a voice vote on July 27th after only target price and the effective price for the
fifteen hours of debate. This bill was then commodity. Like the fixed decoupled pay- Commodity programs for sugar, dairy,
taken to the House Floor by Chairman ments, eligible producers are paid only on 85 peanuts, and fruits and vegetables
Combest on October 3, 2001 where it was percent of their base acres. In addition to the major program crops,
debated for several days. H.R. 2646 establishes a payment limit of H.R. 2646 reauthorizes the current programs
The purpose of this article is to highlight $75,000 for counter-cyclical payments. In for several other commodities. First, the bill
the major provisions of H.R. 2646. It details addition, it authorizes the Secretary of Agri- reauthorizes the sugar program, which pro-
aspects of the bill relating to commodity culture (“Secretary”) to make a partial pay- vides support for sugar beet and sugar cane
support, conservation, trade, nutrition, for- ment of up to 40 percent of the projected producers, with several modifications. The
estry, rural development, and research is- counter-cyclical payment to producers six bill eliminates marketing assessments on
sues. It then discusses several factors that months into the marketing year for an eli- sugar; allows reduced interest rates for price
could determine the ultimate direction of gible crop. Producers then must repay the support loans; requires the Department of
the farm bill process. amount, if any, by which the partial payment Agriculture (“USDA”) to administer the pro-
eventually exceeds the amount of counter- gram at no net cost to the government;
Highlights of H.R. 2646 cyclical payment actually received. provides the Secretary with authority to
Commodity programs for wheat, In order to carry out both the fixed implement marketing allotments for sugar
cotton, rice, feed grains, and oilseeds decoupled and counter-cyclical payments, producers; and authorizes the Commodity
H.R. 2646 reauthorizes both the current H.R. 2646 makes several changes in pro- Credit Corporation (“CCC”) to accept bids
fixed-rate payments, which are decoupled gram implementation. First, the legislation from processors for the purchase of sugar
from production, and the marketing loan provides for an update of base acres. Produc- inventory. In addition, H.R. 2646 requires
provisions. In addition, it re-establishes a ers may choose base acres that reflect the the CCC to establish a sugar storage facility
target price system, which was abandoned in four-year average of acreage planted or pre- loan program.
1996, to provide counter-cyclical support vented from being planted during the 1998 Second, H.R. 2646 extends the milk price
based on market prices. through 2001 crop years. In the alternative, support program through 2011 at $9.90 per
As to fixed payments, H.R. 2646 expands producers may opt to use the base acres that hundredweight. It also reauthorizes the
the current system of Agriculture Market would otherwise have been used to calculate Dairy Export Incentive Program through
Transition Act (“AMTA”) payments to in- the fiscal year 2002 AMTA payments. In no fiscal year 2011. This program assists do-
clude soybeans and other oilseeds. Produc- case will producers be forced to update acres mestic dairy producers facing competition
ers of oilseeds and other major program as the Committee recognizes that many farm- from products subsidized by other countries,
crops will receive fixed annual cash pay- ers opted to switch to non-program crops products such as milk powders, butter fat,
ments that are equal to the product of the once the 1996 Farm Bill permitted such and cheese. H.R. 2646 further amends the
payment rate, the payment acres, and the flexibility. Regardless of the acres selected, Dairy Promotion and Research Program to
payment yield. Note that producers of these payments made under the fixed decoupled enable the National Dairy Promotion and
commodities need not have been enrolled in and counter-cyclical programs will be made Research Board to assess importers of dairy
the AMTA program from the 1996 Farm Bill only on 85 percent of the base acres. products in the same manner as domestic
in order to be eligible for payments under the Second, H.R. 2646 clarifies that the Secre- producers with respect to the promotion of
new bill. If they were not in AMTA, they tary will use payment yields in effect for the dairy products. Finally, an amendment of-
must simply have grown one of the program 2002 crop. If no payment yield is available fered by Congressman Walsh (R-NY) directs
crops between 1998 and 2001. because the acreage at issue was not previ- USDA to conduct a comprehensive study of
H.R. 2646 provides that fixed decoupled ously enrolled in a relevant commodity pro- national dairy policy.
payments will be made no later than Sep- gram, the Secretary is directed to establish Third, H.R. 2646 makes substantial
tember 30th in fiscal years 2002 through an appropriate yield that takes into account changes to the peanut program. Over the
yields applicable to the commodity for simi- next ten years, the bill eliminates the mar-
lar farms in the area. With respect to soy- keting quota program and replaces the cur-
beans and other oilseeds, payment yields are rent system with several new support mecha-
Anne Hazlett is an attorney with the established by determining the average yield nisms. H.R. 2646 first designs a counter-
United States House of Representatives’ from 1998 to 2001, excluding years where cyclical payment that offers financial assis-
Agriculture Committee. the acreage planted to the crop was zero. The tance to producers when prices drop below

4 AGRICULTURAL LAW UPDATE OCTOBER 2001
an established target price. It then adds a assistance to construct animal waste man- helps domestic producers by removing sur-
fixed decoupled payment that provides pea- agement facilities. An amendment offered pluses from the market. H.R. 2646 increases
nut producers with compensation similar to by Congressman Inslee (D-WA) makes assis- the transportation cap for FFP from $30
the production flexibility contract payments tance to farmers and ranchers for the assess- million to $40 million in order to maximize
made to the major program commodities ment and development of on-farm renew- opportunities to ship more commodities. It
such as wheat and corn. H.R. 2646 further able resources, such as biomass production, also increases the limits on funding for ad-
offers a marketing assistance loan at $350 an allowable expense under the EQIP. Fur- ministrative costs to $15 million. Beyond
per ton. In addition to these supports, the ther, it authorizes the Cooperative State funding, the legislation increases limits on
bill includes a buy-out payment to compen- Research, Education and Extension Service the amounts of commodities made available;
sate quota owners for the lost value of their to provide education and technical assis- encourages the President to approve agree-
asset. These payments will be made in five tance with such matters. Finally, in order to ments that provide commodities for distri-
annual installments. assist producers facing water shortage chal- bution or sale on a multi-year basis; encour-
Fourth, H.R. 2646 retains the prohibition lenges, H.R. 2646 creates a $600 million fund ages the Secretary to finalize program agree-
on planting fruits and vegetables on pro- to address ground and surface water conser- ments and requests before the beginning of
gram crop acres. It also grants the Secretary vation issues, including cost sharing for more each relevant fiscal year; and makes surplus
sole decision-making authority to combat efficient irrigation systems. commodities available to developing coun-
outbreaks of plant and animal diseases and H.R. 2646 reauthorizes the Wetlands Re- tries.
invasive pests with emergency funds. H.R. serve Program (“WRP” through 2011. It also Third, H.R. 2646 reauthorizes the Export
2646 provides $200 million per year for sur- increases the current enrollment cap of 1.075 Enhancement Program at its current fund-
plus commodity purchases used to provide million acres by providing for an additional ing level of $478 million per year. It also
food for the needy. In addition, the bill sub- 150,000 acres to be enrolled annually. reauthorizes the Dairy Export Incentives
stantially increases the authorization for The bill reauthorizes both the Wildlife Program at the maximum level permitted
the Market Access Program, which aids in Habitat Incentives Program (“WHIP”) and under the United States’ trade obligations.
the creation, expansion, and maintenance of Farmland Protection Program (“FPP”). It Fourth, the legislation authorizes the For-
foreign markets for United States agricul- increases the funding to $50 million annu- eign Market Development Cooperator Pro-
ture products. It further establishes a tech- ally for each program. The legislation also gram (“FMD”) at $37 million per year. In
nical assistance fund to assist specialty crop makes agricultural land that contains his- addition, it directs the Secretary to carry out
producers in addressing export barriers. Fi- toric or archeological resources eligible for the FMD with a significant emphasis on the
nally, H.R. 2646 provides $15 million per the FPP. importance of exporting value-added agri-
year for the Senior Farmers’ Market Pro- In addition to existing programs, H.R. cultural products to emerging markets.
gram—a program administered by the states 2646 also creates two new programs. First, it Fifth, H.R. 2646 reauthorizes the Export
that gives vouchers and coupons to senior establishes a Grasslands Reserve Program, Credit Guarantee Program while maintain-
citizens for the purchase of fruits and veg- which authorizes two million acres to be ing the current requirement that not less
etables at farmers’ markets. enrolled in ten-, fifteen- and twenty-year than 35 percent of the export credit guaran-
contracts or thirty-year and permanent ease- tees issued be used to promote the export of
Conservation ments. This program is funded at $254 mil- processed or high-value agricultural prod-
H.R. 2646 increases the federal invest- lion over ten years. Second, H.R. 2646 cre- ucts. It also reauthorizes the Food For Peace
ment in soil and water conservation pro- ates a Farmland Stewardship Program Program (P.L. 480) with several technical
grams by nearly 80 percent above current (“FSP”) that will assist producers participat- changes including an increase in the mini-
program levels. For the most part, this money ing in multiple conservation programs ad- mum level of commodities to be made avail-
represents increases in funding for existing, ministered by USDA. Eligible programs for able from 2.025 to 2.250 million metric tons.
rather than new, programs. the FSP include the WRP, the WHIP, the Finally, the bill establishes an export as-
The legislation reauthorizes the Conser- FPP, and the new Forest Land Enhance- sistance program to address barriers to the
vation Reserve Program (“CRP”) with an ment Program. Under the FSP, local conser- export of specialty crops. Specifically, this
increase in the maximum enrollment cap vation districts, state or federal agencies, program will provide direct assistance
from 36.4 million acres to 39.2 million acres. and non-governmental organizations can through public and private sector projects as
In addition, it modifies several provisions enter into farmland stewardship agreements well as technical assistance to remove, re-
governing program implementation. First, with producers on behalf of the Secretary. solve, and mitigate sanitary and
H.R. 2646 makes lands on which ground or phytosanitary barriers to trade. H.R. 2646
surface water would be conserved eligible Trade authorizes $3 million annually for this ef-
for enrollment. Second, it permits limited H.R. 2646 contains a so-called “WTO cir- fort.
haying and grazing, use of wind turbines, cuit breaker,” which grants the Secretary
and harvest of biomass on CRP acreage. authority to limit spending on what the Nutrition
Third, the legislation replaces the existing World Trade Organization views as trade H.R. 2646 reflects a strong commitment to
priority areas with language directing the distorting payments to $19.1 billion, which nutrition programs in several ways. First,
Secretary to consider conservation interests is the United States’ limit under the current the bill establishes a $10 million grant pro-
in soil erosion, water quality, and wildlife agreement. It then makes significant in- gram for state agencies to develop and imple-
habitat in determining the acceptability of creases in several programs designed to aid ment simplified application and eligibility
contract offers. Fourth, an amendment of- in the creation, expansion, and maintenance determination systems. Such grants are in-
fered by Congressman Bereuter (R-NB) re- of foreign markets for United States agricul- tended to give states more flexibility and
quires land to be in production for at least tural products. efficiency in administering the food stamp
four years to be eligible for the CRP. Fifth, an First, the legislation reauthorizes the program.
amendment offered by Congressman Thune Market Access Program (“MAP”) and in- Second, H.R. 2646 changes the current
(R-SD) makes the farmable wetlands pilot creases funding to $200 million per year. quality control programs to use incentives to
program a permanent part of the CRP and MAP helps fund generic advertising for encourage states to improve their systems.
extends eligibility to all states. United States agricultural products in for- In particular, the bill restructures the sanc-
As to the Environmental Quality Incen- eign markets. H.R. 2646 more than doubles tion provisions for states with high error
tives Program (“EQIP”), H.R. 2646 provides MAP funding. rates. And, it provides for bonus payments to
for a six-fold increase in funding to $1.285 Second, the bill increases funding for Food states with superior administration of cer-
billion per year. The legislation retains cur- for Progress (“FFP”). This food aid program tain food stamp rules.
rent law, which earmarks 50 percent of this provides commodities on credit terms or on Third, the legislation increases commod-
money to livestock producers. It also re- a grant basis to developing countries and ity purchases for the Temporary Emergency
moves the prohibition on producers with emerging democracies. In so doing, it also Food Assistance Program (“TEFAP”). TEFAP
more than 1,000 animal units from obtaining Continued on p. 6

OCTOBER 2001 AGRICULTURAL LAW UPDATE 5
Farm bill/Cont. from p. 5
provides nutritious domestic food products Research crats are said to favor slightly higher com-
to needy Americans while at the same time H.R. 2646 increases mandatory spending modity loan rates for most program crops
helping producers by taking surplus product for the Initiative for Future Agriculture and with a slightly lower soybean loan rate in
off the market. H.R. 2646 provides $400 Food Systems by $145 million annually be- order to rebalance loan rate levels. Senate
million in additional funding. ginning in fiscal year 2004. This initiative Ag Committee to Take Up Farm Bill, Sparks
Fourth, H.R. 2646 reauthorizes the pro- covers research on critical issues such as Policy Report at 3, Oct. 15, 2001. By contrast,
gram for Community Food Projects. This is a plant and animal genomics, food safety, Republicans reportedly are against increas-
community-based program that is designed biobased products, and natural resources ing any loan rates. Id.
to meet the food needs of low-income fami- management. Further, H.R. 2646 reautho- With respect to individual Senators on the
lies, to increase the self-reliance of commu- rizes current and existing discretionary re- Committee, Senator Harkin (D-IA) has long
nities in providing for their own food needs, search programs. pushed for more robust conservation spend-
and to promote comprehensive responses to ing and commodity support targeted towards
local food, farm, and nutrition issues. Fund- Miscellaneous smaller producers. Senate Agriculture Works
ing is increased to $7.5 million per year. Amendments to H.R. 2646 that were on Farm Bill as House Backs $73.5 Billion
Lastly, H.R. 2646 increases the current passed or accepted during the floor debate Policy Plan, Bureau of National Affairs, Oct.
food stamp deduction from $134 to an amount cover a variety of subjects. Amendments of 9, 2001. Earlier this session, Senator Harkin
to be determined by household size. It also significance include the following: introduced the Conservation Security Act
authorizes states to provide six months of (1) Downed livestock—an amendment by under which producers could receive annual
transitional food stamp benefits for families Congressman Ackerman (R-NY) makes it payments ranging from $20,000 to $50,000 if
leaving the Temporary Assistance for Needy illegal to buy, sell, transfer, hold, or drag an they agree to implement specified conserva-
Families Program. This provision simplifies animal that is rendered non-ambulatory, tion practices. In order to incorporate this
the process for administrators and recipi- unless the animal has been euthanized by idea into the farm bill, Harkin would have to
ents by enabling recipients to receive six humane means. This would not apply to take money from other areas. In addition,
months of benefits without having to go animals under veterinary care or entities Harkin has expressed interest in writing an
through the food stamp re-certification pro- not regulated by the Grain Inspection, Pack- energy title to encourage the use of ethanol,
cess until they are established in a job. ers and Stockyards Administration. soy-diesel, and other biomass fuels. Senate
(2) Shared appreciation agreements—an Ag Panel May See Many Farm Bill Ap-
Forestry amendment by Congressman Watkins (R- proaches, Sparks Policy Report at 3, Oct. 16,
H.R. 2646 combines the existing Forestry OK) suspends foreclosures on property owned 2001. Harkin is also thought to favor a five-
Incentives Program and Stewardship Incen- by a borrower who has failed to make a year farm bill over the ten-year version
tives Program into a new Forest Land En- payment required under the Consolidated passed by the House. Id.
hancement Program (“FLEP”). This program Farm and Rural Development Act until De- Senator Lugar (R-IN) shares Harkin’s com-
is funded at $20 million per year. It will cember 31, 2002. mitment to conservation but is expected to
provide cost-share and technical assistance (3) Definition of “catfish” for labeling pur- have a major difference of opinion regarding
for the establishment, management, main- poses—an amendment by Congressman the commodity title. Next Steps in Farm Bill
tenance, enhancement, and restoration of Pickering (R-MS) clarifies that the fish Process Difficult to Predict, Sparks Policy
forests on non-industrial private forestlands. Pangasius Bocourti cannot be labeled as Report at 3, Oct. 11, 2001. On October 16th,
In addition to creating the FLEP, the bill “catfish” for purposes of the Federal Food, Lugar unveiled a proposal that would phase
reauthorizes the Renewable Resources Ex- Drug and Cosmetic Act. out the marketing assistance loan program
tension Act (“RREA”) at $30 million annu- (4) Country of origin labeling for fruits and end the decoupled AMTA contract pay-
ally and creates a Sustainable Forestry Out- and vegetables—an amendment by Congress- ments once the current farm bill expires.
reach Initiative within the RREA to provide woman Bono (R-CA) requires retailers to Jim Wiesemeyer, A Lot of Changes, But Does
education to landowners about sustainable label perishable agricultural products, both He Have a Lot of Support?, Oct. 16, 2001,
forestry practices. Further, H.R. 2646 pro- imported and domestic, with country of ori- http://www.agweb.com. Lugar would then
vides enhanced fire protection by directing gin information. Prepared foods are exempt provide a farm safety net by implementing a
the Secretary to coordinate with local com- from this requirement. farm revenue concept under which farmers
munities in implementing rural fire protec- (5) Concentration—an amendment by would receive vouchers to purchase one or
tion and control strategies; creating a Com- Congressman Thune (R-SD) creates an in- more of several financial protection strate-
munity and Private Land Fire Assistance teragency task force on agricultural compe- gies such as farm revenue insurance cover-
Program to prevent fires on non-federal tition to review the lessening of competition age. Id. Outside the commodity title, Lugar
lands; and giving the Secretary the author- among purchasers of livestock, poultry, and would add a working lands environmental
ity to enter into stewardship contracts to unprocessed agricultural commodities in the improvement option to the existing EQIP
implement the National Fire Plan on federal United States. that would provide incentives to producers
lands. (6) Biotechnology education—an amend- who implement comprehensive conservation
ment by Congressman Holt (D-NJ) directs systems going beyond their current level of
Rural development USDA to use “such sums as are necessary” to conservation. Id.
H.R. 2646 gives $1.15 billion for rural implement a public education campaign with Senate Majority Leader Daschle (D-SD)
development initiatives including drinking respect to the use of biotechnology in pro- has shown considerable interest in develop-
water assistance, telecommunications loan ducing food for human consumption. ment of the farm bill. Some sources say that
guarantees, and grants to start farmer- while Daschle is not actively working against
owned, value-added processing facilities. In Looking to the future Harkin, he intends to use the House version
addition to this money, an amendment of- Although the House passed H.R. 2646 by a as a backup plan if the Senate Agriculture
fered by Congressman Peterson (R-PA) and wide margin, the future of farm policy is all Committee fails to reach agreement. Senate
Congresswoman Clayton (D-NC) increases but certain. As the Senate Agriculture Com- Ag Panel May See Many Farm Bill Ap-
funding for rural strategic planning initia- mittee is expected to begin work on a farm proaches at 3. But, this view has also been
tives by $45 million annually, community bill mid-October, several potentially disposi- contradicted in a Congress Daily report,
water assistance grants by $45 million annu- tive factors loom. which quotes a Daschle staffer as stating
ally, and value-added market development First, early positions asserted by mem- that Daschle is working with Harkin to op-
grants by $10 million annually. These in- bers of the Senate Agriculture Committee pose the House bill because it spends too
creases were offset by a $100 million annual reflect deep divisions on the panel with re- much money. Id. Regardless of his position
cut in the fixed decoupled payments issued spect to substantive issues as well as timing. on the House bill, Daschle is thought to be
to commodity producers. For example, at a general party level, Demo-
Farm bill/Cont. on p. 7

6 AGRICULTURAL LAW UPDATE OCTOBER 2001
Farm bill/Cont. from p.6
particularly interested in writing a competi- WTO agricultural negotiations while sup- tion, not the Agriculture Committee. Argu-
tion title. Jim Wiesemeyer, Will President porting another policy in its own programs. ably, a farm bill could get hung up on the
Bush Stop Farm Bill This Year?, Oct. 15, In response, Combest stated: “Fischler’s Senate floor if Members try to attach lan-
2001, http://www.agweb.com. statements make you wonder what U.S. ne- guage providing for reauthorization of the
In addition, Senators Lincoln (D-AR), gotiators have been saying in agricultural Northeast Dairy Compact or the creation of
Cochran (D-MS) and Miller (D-GA) are said negotiations. It sends up a big red flag to a new compact in the Southeast.
to be building a proposal from the House me.” Id. He then explained: “Philosophi- A final factor to be considered is the role of
version. Id. Outside the Committee, Senator cally, I think trade is wonderful. I have seen the Bush Administration. When it became
Grassley (R-IA) is also thought to be working tremendous advantages for agriculture in clear that the House was actually going to
on a commodity title. trade. But, I also have this growing con- take up H.R. 2646, the White House seemed
Beyond the substance of the bill, there are cern— the Bush Administration inherited adamant that now is not the time for a farm
differing views among senators as to the it, they didn’t create it, but the concern bill debate as the current farm bill does not
appropriate timing of a new farm bill. The continues to grow among other members in expire until last next year. However, as the
positions taken by several Democrat sena- Congress— that we see our government is Senate appears to be moving forward, Secre-
tors suggest that they clearly want a farm willing to capitulate a lot faster than, say, tary Veneman has stated that she is working
bill this session. Id. For example, Senator the European Union or other countries on with the Senate "as they draft specific lan-
Dorgan (D-ND) has directed his colleagues behalf of farmers. We see trade barriers guage." Monoson, Farm Overahul Bill. Ac-
to “follow the example of the U.S. House last thrown up that are not defensible.” Id. cording to policy commentators, the White
week and pass a new farm program before A third factor that may come into play is House has been informed that if the Admin-
Congress adjourns for the year.” Id. Simi- the issue of dairy compacts. Dairy compacts istration wants to play a role in the Senate
larly, Senator Nelson (D-NE) stated: “I think created some excitement on the House floor farm bill debate, officials must reveal how
there is a strong desire to have a farm bill when a successful point of order was raised much it is willing to spend and what kinds of
this year. If we don’t have the money this by Chairman Combest against efforts to vote policies it will support. Next Steps in the
year, we won’t have it next year.” Monoson, on an amendment that would have autho- Farm Bill Process at 3. If the administration
Farm Overhaul Bill. By contrast, Senator rized the creation of regional compacts and commits to a specific level of funding, some
Lugar has repeatedly said, in criticizing the extended the Northeast Dairy Compact, senators may feel less pressure to complete
House for taking up the farm bill, that this is which expired at the end of September. There, a new farm bill this year.
not an appropriate time to re-write farm House Judiciary Committee Chairman As in the case of numerous aspects of daily
policy because the money is not available Sensenbrenner (R-WI) stressed that all com- life in America since September 11, 2001, the
and funding for the war on terrorism ought pacts fall within his committee’s jurisdic- future of farm policy remains uncertain.
to be the highest priority. Id.
A second factor that could impact develop-
ment of the farm bill is an attempt by the
House to pass trade promotion authority
(“TPA”). Formally known as “fast-track” Bibliography/Continued from page 3
authority, TPA would allow the Administra- Casenote, Challenging the Evolution of Public Lands ScientificEvidenceinProvingLiabilityforPesticideAppli-
tion to fully negotiate trade agreements, Grazing Regulations (Public Lands Council v. Babbit, cation, 6 Drake J. Agric. L. 197-222 (2001).
which would then be submitted to Congress Secretary of the Interior, 120 S. Ct. 1815, U.S. 2000), 5 Partridge,Miller&Carey, The Use of the Class Action
for an up or down vote within ninety days. Great Plains Nat. Resources J. 161-176 (2001). Device in Agricultural Products Litigation, 6 Drake J.
During the week of October 8th, the House Note, This Land is Our Land: Ranchers Seek Private Agric. L. 175-196 (2001).
Ways and Means Committee approved a bill Rights in the Public Rangelands (Hage v. United States
restoring the president’s trade negotiating (Hage II), 42 Fed. Cl. 249, 1998), 21 J. Land Resources Treatises on agricultural law
authority. However, at present the bill is not & Envtl. L. 461-487 (2001). M. Grossman, Part II. Nature Conservation and
scheduled for consideration on the House Recent development, Managing Wild Horses on Pub- Management pp. 95-156 in International Encyclopedia
floor. lic Lands: Congressional Action and Agency Response, Of Laws – USA (Kluwer, 2000).
Some policy watchers believe that the 79 N.C. L. Rev. 1108-1126 (2001).
White House and Republican House leader- Schlenker-Goodrich, Moving Beyond Public Lands Uniform Commercial Code
ship still need to round up the necessary Council v. Babbit: Land Use Planning and the Range Article Seven
votes for passage—including those of Chair- Resource,16J.Envtl.L.&Litig.139(2001). Kershen, Article 7: Documents of Title – 2000 Devel-
man Combest and other farm-state lawmak- opments, 56 Bus. L. 1815-1823 (2001).
ers. Julie Hirschfeld Davis, Debate Over “Fast Rural development
Track” Authority Refocused on Domestic Havard, African-American Farmers and Fair Lending: Water rights: agriculturally related
Concerns, CQ Weekly at 2421, Oct. 13, 2001; Racializing Rural Economic Space, 12 Stan. L. & Pol’y Comment, FederalandPacificNorthwestStateWater
Jim Wiesemeyer, House Committee Chair- Rev. 333-360 (2001). Laws Pertaining to Dairies, 37 Idaho L. Rev. 681-711
man on Trade Policy, Farm Bill, Oct. 16, Note, Separating Food From Culture: The USDA’s (2001).
2001, http://www.agweb.com. Combest origi- Failure to Help its Culturally Diverse WIC Population,6 Hill, The “Right” to Float Through Private Property in
nally switched his position regarding TPA Drake J. Agric. L. 223-240 (2001). Colorado: Dispelling the Myth, 4 Water L. Rev. 331-350
last June when the Administration labeled (2001).
the market loss assistance payments made Sustainable & organic farming Neuman & Hirokawa, How Good is an Old Water
in 1999, 2000, and 2001 as “amber box” under Comment, Food for Thought: Defending the Organic Right? TheApplicationofStatutoryForfeitureProvisions
the WTO. His position was recently reaf- Foods Production Act of 1990 Against Claims of Protec- to Pre-Code Water Rights, 4 U. Denver Water L. Rev. 1-
firmed when European Union Agriculture tionism, 14 Emory Int’l L. Rev. 1719-1763 (2000). 28 (2000).
Commissioner Franz Fishcler criticized the
House farm bill as not fitting with “what the Taxation Ifyoudesireacopyofanyarticleorfurtherinformation,
U.S. has been saying in World Trade Organi- Harris, Self-Employment Tax for Farmers,6DrakeJ. please contact the Law School Library nearest your
zation agricultural negotiations.” Agric. L. 119-140 (2001). office. TheAALAwebsite< http://www.aglaw-assn.org>
Wiesemeyer, House Committee Chairman McEowen, Economic Growth and Tax Relief Recon- hasaveryextensiveAgriculturalLawBibliography. Ifyou
on Trade Policy. Fischler warned that if ciliation Act of 2001, H.R. 1836: Summary of Selected arelookingforagriculturallawarticles,pleaseconsultthis
Congress pushes up price-based support and Provisions, 18 Agric. L. Update 4-6 (June 2001). bibliographic resource on the AALA website.
strengthens counter-cyclical policies, it would — Drew L. Kershen, Professor of Law, The
be putting the United States in the ambigu- Torts University of Oklahoma, Norman, OK
ous position of defending one policy at the Note, The Ever Changing Landscape: Admitting Novel

OCTOBER 2001 AGRICULTURAL LAW UPDATE 7
Reepor
port
por t on the 22n d A n n
nual
ual Educational Symposium of
rican
the A m e r gr
ican A g icultural
ricultur Law
al Law Association
Approximately 150 educators, attorneys, economists, and students attended the 22nd Agricultural Law
Symposium in Colorado Spring, CO, October 12-13, 2001.
Outgoing President of the American Agricultural Law Association, Steven C. Bahls, turned the leadership
of the Association over to incoming President, L. Leon Geyer. President-elect is John C. Becker.
Directors retiring after 3 years of service are: Patricia A. Conover, Gary D. Condra, and Gerald A.
Harrison. Joining the Board are John C. Becker, Roger A. McEowen, and Amy K. Swanson. Our appreciate
is expressed to each of these individuals.
The Distinguished Service Award this year was presented to William P. Babione, outgoing Executive
Director of the American Agricultural Law Association.
The 2002 Conference will be held in Indianapolis, Indiana, October 25-26.

8 AGRICULTURAL LAW UPDATE OCTOBER 2001
OCTOBER 2001 AGRICULTURAL LAW UPDATE 9