Thursday, February 13, 2020

Agricultural Law Weekly Review—February 13, 2020


Written by:  
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
The Agricultural Law Weekly Review provides an update of recent agricultural law developments from the local, state, national, and international levels.  Subscribe to the ALWR at pennstateaglaw.com

National Agricultural Policy: USDA Inspector General Confirms Investigation of Trade Aid Package
On February 11, 2020, USDA Inspector General Phyllis K. Fong confirmed during testimony before the U.S. House of Representatives Committee on Appropriations’ Subcommittee on Agriculture that her office is conducting an investigation of the legal authority and administration of the so-called “Trade Aid Packages” for 2018 and 2019.  The trade aid packages were undertaken by USDA pursuant to Section 5 of the Commodity Credit Corporation (CCC) Charter Act of 1948, 15 U.S.C. 714 et seq., to compensate agricultural producers for lost revenue due to Chinese tariff retaliation and trade disruption over the last two years. Inspector General Fong testified that her office is initially investigating whether and what legal authority supports the payment of the aid through approximately $27.4 billion dollars of CCC authority.  According to Fong, a report on that portion of the investigation is expected “in the next few months.”  Thereafter, her office will be completing an investigation of the administration of, and eligibility criteria under, both the Market Facilitation Program (MFP) and Food Purchase and Distribution Program portions of the trade aid, constituting approximately $27.1 billion of the total from the CCC.

Biofuels: EPA Issues Annual Update of Renewable Fuel Standards Program Requirements
On February 6, 2020, the United States Environmental Protection Agency (EPA) published a final rule at 85 FR 7016, as required by Section 211 of the Clean Air Act and known as the Renewable Fuel Standard (RFS) program, establishing the following: (a) the percentage of gasoline and diesel transportation fuel produced or imported in the year 2020 required to consist of cellulosic biofuel, biomass-based diesel, advanced biofuel, and all renewable fuels in the aggregate; (b) the 2020 production volume requirements for cellulosic biofuel, advanced biofuel, total renewable fuels in the aggregate, and the 2021 production volume requirement for biomass-based diesel; and (c) the 2020 volumes of gasoline and diesel projected to be exempted from the renewable volume obligations.  The final rule is effective April 6, 2020.

Industrial Hemp: Farm Credit Administration Issues Memorandum on Financing Hemp
On February 7, 2020, the Farm Credit Administration’s Office of Regulatory Policy issued an informational memorandum to all Board chairs and CEOs of each Farm Credit Bank and Association providing guidance on deciding whether to finance hemp production and, if so,  considerations on collecting, analyzing and documenting information from a loan applicant.  Much of the memorandum is devoted to reiterating the contents of the USDA’s Interim Final Rule on Domestic Hemp Production and that all hemp must be produced pursuant to a compliant and USDA-approved state hemp production plan.  USDA has approved only six state plans to date.  However, it contains two noteworthy recommendations for analysis by Farm Credit Banks and Associations: (a) “How the producer will remain current on the loan if the hemp crop exceeds the applicable THC levels;” and (b) “[C]omplete a break-even repayment analysis and a worst-case repayment analysis based on a total crop loss due to an unacceptably high hemp THC level.”   

Pesticides: Corteva Announces Discontinuance of Chlorpyrifos Production by Year’s End
On February 6, 2020, Corteva, Inc., one of the leading manufacturers of the pesticide chlorpyrifos, announced that it will end production and sales of the pesticide by the end of 2020.  Hawaii, California and New York have all taken actions to end Chlorpyrifos use and sales in their respective states, as discussed in last month’s Agricultural Law Brief.  Corteva made the following statement: Demand for one of our long-standing products, chlorpyrifos, has declined significantly over the last two decades, particularly in the U.S.  Due to this reduced demand, Corteva has made the strategic business decision to phase out our production of chlorpyrifos in 2020.  We are committed to continuing to support our farmers and invest in products they need.  Our customers will have access to enough chlorpyrifos supply to cover current demand through the end of the year, while they transition to other products or other providers.  Our customers, shareholders and employees will benefit by redeploying our resources.”

Agricultural Labor: Use of New I-9 Form Required On April 30, 2020
On January 31, 2020, the U.S. Citizenship and Immigration Services, Department of Homeland Security (USCIS) published a notice at 85 FR 5683 announcing a new version of Form I-9, Employment Eligibility Verification, identified as Rev. 10/21/2019.  The new form may be used beginning January 31, 2020.  On April 30, 2020, the prior version, identified as Rev. 07/17/2017 N, will no longer to be valid for compliance with federal law.  Employers do not need to complete the new Form I-9 for current employees who already have a properly completed Form I-9 on file, unless reverification becomes otherwise required by law.  Changes to the form and its accompanying instructions are minimal and the underlying legal requirements have not changed.  

From National Ag Law Authorities & Sources: 
Tiffany Dowell, Do You Have a Flight Plan? (Feb. 3, 2020). 

Penn State Research & News:

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:

U.S. Department of Agriculture Press Releases:

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices: 
Department of Agriculture
50 Pa.B. 801 “Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List.” Notice (Feb. 8, 2020). 

Department of Environmental Protection
50 Pa.B. 804 “The Clean Streams Law And The Federal Clean Water Act:
Applications For National Pollutant Discharge Elimination System (NPDES) Permits And Water Quality Management (WQM) Permits” Applications (Feb. 8, 2020). 

Pennsylvania Legislature
H.B. 1100 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, providing for energy and fertilizer manufacturing tax credit [‘Energize PA Legislative Package.’]” Signed in House (Feb. 4, 2020).
H.Res. 653 “A Resolution designating the week of March 16 through 22, 2020, as "Maple Producers Week" in Pennsylvania.” Adopted [House] (Feb. 4, 2020). 

H.B. 1584 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in Pennsylvania Fish and Boat Commission, repealing provisions relating to waterways patrolmen and employees.” Third consideration and final passage [House] (Feb. 4, 2020). 
H.B. 881 “An Act amending the act of June 18, 1982 (P.L.549, No.159), entitled "An act providing for the administration of certain Commonwealth farmland within the Department of Agriculture," further providing for agricultural land conservation assistance grant program [‘Farm Succession Planning Grants.’]” Removed from table [House] (Feb. 4, 2020).  
H.B. 333 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, in personal income tax, further providing for classes of income [‘Small Business Tax Package.’]” Laid on the table [House] (Feb. 4, 2020).
H.B. 105 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, in personal income tax, further providing for classes of income [‘Small Business Tax . . . Like-kind Exchanges.’]” Laid on the table [House] (Feb. 4, 2020).
S. Res 300 “A Resolution designating the week of February 22 through 29, 2020, as "FFA Week" in Pennsylvania.” Adopted [Senate] (Feb. 5, 2020). 
S.B. 915 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, repealing provisions relating to fertilizer; providing for fertilizer; in soil and plant amendment, further providing for disposition of funds; in seed, further providing for disposition of funds; establishing the Agronomic Regulatory Account within the General Fund; imposing duties on the Department of Agriculture; and making conforming amendments.” Re-referred to Appropriations [Senate] (Feb. 5, 2020).  
H.B. 752 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in property and buildings, further providing for price paid for acquisitions and improvements.” First consideration [Senate] (Feb. 5, 2020). 
S.B. 995 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in general provisions, further providing for definitions [‘Increasing the Width of Multipurpose Agricultural Vehicles.’]” First consideration [Senate] (Feb. 5, 2020). 
S.B. 1060 “A Supplement to the act of April 1, 1863 (P.L.213, No.227), entitled "An act to accept the grant of Public Lands, by the United States, to the several states, for the endowment of Agricultural Colleges," making appropriations for carrying the same into effect; providing for a basis for payments of such appropriations, for a method of accounting for the funds appropriated and for certain fiscal information disclosure; and making an appropriation from a restricted account within the Agricultural College Land Scrip Fund.” Referred to Appropriations [Senate] (Feb. 6, 2020). 

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices: 
Agency for International Development
85 FR 7265 “Board for International Food and Agricultural Development; Notice of Meeting” NoticeI (Feb. 7, 2020). 

Agricultural Department
85 FR 7527 “Opportunity for Designation in the Cedar Rapids, Iowa, Area; Request for Comments on the Official Agency Servicing This Area” Notice—Comment Period (February 10, 2020). 
85 FR 7528 “Submission for OMB Review; Comment Request [Agricultural Research Service:  Evaluation of User Satisfaction with NAL internet Sites]” Notice (February 10, 2020). 
85 FR 7528 “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Introduction of Organisms and Products Altered or Produced Through Genetic Engineering]” Notice (February 10, 2020).

Agricultural Marketing Service
85 FR 7526 “Plant Variety Protection Board; Open Teleconference Meeting” Notice (February 10, 2020). 
85 FR 7526 “Solicitation of Nominations for Members of the USDA Grain Inspection Advisory Committee” Notice (February 10, 2020). 
85 FR 7669 “Walnuts Grown in California; Hearing on Proposed Amendment of Marketing Order No.984” Proposed Rule (February 11, 2020).

Animal and Plant Health Inspection Service
85 FR 7265 “Notice of Request for Extension of Approval of an Information Collection; Federally Recognized State Managed Phytosanitary Program”  Notice—Comment Period (Feb. 7, 2020).

Commodity Credit Corporation
85 FR 6419 “Pima Agriculture Cotton Trust Fund and Agriculture Wool Apparel Manufacturers Trust Fund” Rule (Feb. 5, 2020). 

Economic Research Service
85 FR 7529 “Notice of Intent To Request Revision of the Current Population Survey Food Security Supplement-A Currently Approved Information Collection” Notice—Comment Period (February 10, 2020).

Environmental Protection Agency
85 FR 7016 “Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021 and Other Changes” Rule (Feb. 6, 2020). 
85 FR 7303 “Farm, Ranch, and Rural Communities Advisory Committee (FRRCC) Notice of Charter Renewal” Notice (Feb. 7, 2020). 
85 FR 7499 “Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities (December 2019)” Proposed Rule—Comment Period (February 10, 2020). 
85 FR 7698 “Banda de Lupinus Albus Doce (BLAD); Proposal To Revoke Exemption and Establish Pesticide Tolerances” Proposed Rule—Comment Period (February 11, 2020). 
85 FR 7708 “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (October 2019)” Proposed Rule—Comment Period (February 11, 2020). 

Farm Credit Administration
85 FR 6421 “Organization and Functions; Farm Credit Administration Board Meetings” Rule (Feb. 5, 2020). 

Federal Emergency Management Agency
85 FR 7326 “Proposed Flood Hazard Determinations [Mississippi]” Notice—Comment Period (Feb. 7, 2020). 
85 FR 7324 “Changes in Flood Hazard Determinations [AZ, CA, FL, IL, IN, KS, NV, NY, TX, WA]” Notice (Feb. 7, 2020).
85 FR 7322 “Changes in Flood Hazard Determinations [CO, CT, FL, LA, NC, OK, SC, TX]” Notice (Feb. 7, 2020).

Federal Motor Carrier Safety Administration
85 FR 6088 “Extension of Compliance Date for Entry-Level Driver Training [February 7, 2022.]” Rule—Comment Period (February 4, 2020). 

Fish and Wildlife Service
85 FR 6968 “Foreign Endangered Species; Receipt of Permit Applications” Notice—Comment Period (Feb. 6, 2020).
85 FR 6856 “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Yellow Lance” Proposed Rule—Comment Period (Feb. 6, 2020). 

Food and Drug Administration
85 FR 6549 “Advancing Animal Models for Antibacterial Drug Development; Public Workshop; Request for Comments” Notice—Comment Period (Feb. 5, 2020). 
85 FR 6551 “Agency Information Collection Activities; Proposed Collection; Comment Request; Food Labeling Regulations” Notice—Comment Period (Feb. 5, 2020).
85 FR 6955 “Prior Notice of Imported Food Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002” Notice—Comment Request (Feb. 6, 2020).
85 FR 7682 “LANXESS Corporation; Filing of Food Additive Petition (Animal Use)” Proposed Rule (February 11, 2020). 

Food and Nutrition Service
85 FR 7266 “Agency Information Collection Activities: Turnip the Beet! High Quality Summer Meals Award Program” Notice—Comment Period (Feb. 7, 2020).
85 FR 7716 “Agency Information Collection Activities: Supplemental Nutrition Assistance Program: 2008 Farm Bill Provisions on Clarification of Split Issuance; Accrual of Benefits and Definition Changes” Notice—Comment Period (February 11, 2020).

Food Safety and Inspection Service
85 FR 7715 “Notice of Request for Renewal of an Approved Information Collection (Nutrition Labeling of Major Cuts of Single-Ingredient Raw Meat or Poultry Products and Ground or Chopped Meat and Poultry Products)” Notice—Comment Period (February 11, 2020). 
85 FR 7713 “Notice of Request for Revision of an Approved Information Collection (Advanced Meat Recovery)” Notice—Comment Period (February 11, 2020).

Office of U.S. Trade Representative
85 FR 7377 “Reallocation of Unused Fiscal Year 2020 Tariff-Rate Quota Volume for Raw Cane Sugar” Notice (Feb. 7, 2020). 

U.S. House Agriculture Committee Actions: 
H.R.5762 “Transforming Hiring in Rural Industries and Vital Economies Act of 2020” Referred to the House Committee on Agriculture (Feb. 5, 2020). 
H.Con.Res.88 “Supporting the Farmers Bill of Rights” Referred to the House Committee on Agriculture (Feb. 6, 2020). 
S.2107 “Protecting America's Food and Agriculture Act of 2019” Motion to reconsider laid on the table Agreed to without objection (Feb. 10, 2020). 

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 
No new actions Feb.5–11, 2020

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