Thursday, April 18, 2019

Agricultural Law Weekly Review—April 18, 2019

Written by: M. Sean High—Staff Attorney
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Food Policy: USDA Prohibits SNAP for Certain Convicted Felons, Lottery Winners, and Gambling Winners
On April 15, 2019, the U.S. Department of Agriculture published notice in the Federal Register of a final rule affecting Supplemental Nutrition Assistance Program (SNAP) eligibility, benefits, and program administration (84 FR 15083).  According to the final rule, anyone convicted of federal aggravated sexual abuse, murder, sexual exploitation and abuse of children, sexual assault—or any similar state crime—and who is also in violation of their sentence or parole, or is a fleeing felon, may not receive SNAP benefits.  Additionally, the final rule prohibits individuals with substantial lottery and gambling winnings from receiving SNAP benefits. Finally, the final rule requires that state agencies verify the eligible immigration status of all non-citizens applying for SNAP. The final rule, however, does not specify the verification system that the state agencies must use.

Conservation Programs: PA House Committee Advances Farm Succession Planning Legislation
On April 15, 2019, the Pennsylvania House Agriculture and Rural Affairs Committee advanced legislation that would permit funds in the Agricultural Conservation Easement Purchase Fund to be used for succession planning grants (HB 881). Sponsoring Rep. Mindy Free (R-Lanc) stated that in 1994, state law provided for proceeds from the sale of state farmland to be deposited into the Agricultural Conservation Easement Purchase Fund (ACEPF). According to Rep. Free, in 1999, $750,000 of those proceeds were used for an agricultural conservation assistance grant program.  Roughly $130,000 of the funds, however, remain in ACEPF and have not been used for many years. Under Rep. Free’s proposal, the remaining funds would be used to provide farm succession grants—of no more than $3,000 per family—until all the funds in ACEPF are exhausted.

International Trade: WTO Finds in Favor of U.S. “Zeroing” of Canadian Soft Lumber
On April 9, 2019, the Office of the U.S. Trade Representative (USTR) announced that the World Trade Organization (WTO) had ruled in favor of the U.S. in its use of “differential pricing” analysis and “zeroing” to calculate anti-dumping duties.  According to USTR, in 2017, the U.S. determined that Canadian producers were dumping softwood lumber in the U.S. market and harming U.S. softwood lumber producers. As a result, the U.S. began to use a methodology that included a “differential pricing” analysis and “zeroing” to identify such harmful dumping.  Under the “differential pricing” analysis, a comparison is made among various markets to reveal dumping practices. When a comparison reveals no dumping, a zero is assigned to the comparison. Canada challenged this methodology—citing that other methodology was established under the WTO Antidumping Agreement. A WTO panel, however, determined that the alternative methodology used by the U.S. is consistent with the targeted dumping methodology established under WTO rules.

Animal Welfare: IDF Releases Guide to Good Animal Welfare in Dairy Production
On April 11, 2019, the International Dairy Federation (IDF) announced the release of the organization’s updated animal welfare publication entitled: IDF Guide to Good Animal Welfare in Dairy Production 2.0.  According to IDF, the updated guide is intended to help dairy farmers and milk producers understand and implement good animal welfare practices globally. To achieve its goals, the guide provides five Action Areas that should be considered when developing and implementing quality management systems for dairy animal welfare.  The five Action Areas are stockmanship, feed and water, physical environment, husbandry practices and health management. IDF’s previous guide on animal welfare was published in 2008.

Water Quality: Chesapeake Bay Foundation Releases Latest Bay Barometer Report
On April 2, 2019, the Chesapeake Bay Foundation (CBF) announced the release of the organization’s annual report on the Chesapeake Bay Watershed.  Entitled: Bay Barometer: Health and Restoration in the Chesapeake Bay Watershed 2017-18, the report provides data regarding Chesapeake Bay Watershed restoration efforts.  According to CBF, the report shows the highest water quality score since monitoring began over than 30 years ago. Nevertheless, the report also stated that more needs to be done regarding stream health, toxic contaminants, wetlands, and forest buffers.

From National Ag Law Experts:
Holdover tenant required to pay damages to landlord for not leaving rented property at the time the lease terminated”, Paul Goeringer, Maryland Risk Management Education Blog (April 9, 2019)
     
Federal Actions and Notices:
Animal and Plant Health Inspection Service

Environmental Protection Agency

Food Safety Inspection Service

Rural Utilities Service

Pennsylvania Legislation:
HR 219: Resolution to study food waste recycling in Pennsylvania (Referred to House Agriculture and Rural Affairs Committee, April 11, 2019)

Pennsylvania Actions and Notices:
Milk Marketing Board

Pennsylvania Department of Agriculture:

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Tuesday, April 16, 2019

Agricultural Law in the Spotlight: The Fair Labor Standards Act


Written by M. Sean High—Staff Attorney

Agricultural producers face numerous complex federal and state agricultural labor laws.  Unfortunately, failure to comply with these laws could result in costly sanctions.  To assist interested individuals to better understand an agricultural producer’s labor legal obligations, the Penn State Center for Agricultural and Shale Law is publishing a series of Spotlight articles addressing key farm labor issues.  The first article in the series covers an agricultural producer’s legal obligations under the Fair Labor Standards Act.

The Fair Labor Standards Act
The Fair Labor Standards Act of 1938 (FLSA) sets the federal standards for overtime pay, minimum wage, and child labor.  FLSA requires an employment relationship and is not applicable to independent contractors.  Nevertheless, even if an employment relationship does exist, FLSA may provide an agricultural employer with an exemption to the law’s requirements.

Employee or Independent Contractor
Because FLSA applies only where an employment relationship exists, an agricultural producer must first determine whether a given worker is an employee or an independent contractor.  Courts have ruled that a worker is generally considered to be an employee of someone who has the right to control the worker’s behavior regarding the work that will be done.  This right to control a worker’s behavior can be demonstrated through instructions, training, and financial aspects of the job being performed.  Such instructions could be telling a worker when, where, and how to work; providing the tools and equipment that are to be used; and assigning the order in which tasks are to be performed.  Additionally, employers often train workers to perform tasks in a certain way, while independent contractors ordinarily use their own methods.  Finally, an employee is generally paid a wage based on an hourly, weekly, or monthly basis.  An independent contractor, however, is generally paid according to a flat fee or based upon time and material.

Coverage
A business or worker is subject to FLSA if either the enterprise coverage or the individual coverage applies.  Under the enterprise coverage, FLSA applies to all businesses that have at least two employees and at least $500,000 a year in gross receipts.  Under the individual coverage, FLSA applies to workers who are engaged in interstate commerce, in the production of goods for commerce, or in any closely-related process or occupation directly essential to such production.  As a practical matter, nearly all agricultural employment will fall under one of the two types of FLSA coverage, but as described below, many agricultural employers are exempt from some of the law’s requirements.

FLSA Definition of Agriculture
An employee covered by FLSA may fall under one of the agricultural exemptions provided by the statute.  For an agricultural exemption to apply, a worker must be performing agricultural work. 

FLSA defines agriculture as farming and all its branches.  Agriculture also is defined to include any practices which are performed either by a farmer or on a farm as an incident to or in conjunction with a farming operation.  Things to consider when determining whether an activity is incident to or in conjunction with a farming operation include the following:
  • Whether the activity is an established part of agriculture;
  • Whether the activity is subordinate to the farming operation;
  • Whether the activity is an independent business; and
  • Whether the activity is ordinarily performed by farmers incidentally to their farming operations. 

When assessing whether an activity is ordinarily performed by farmers incidentally to their farming operations, an employer must look at the proportion of other farmers producing the same commodity who also perform the activity.  For example, a farmer who wants to demonstrate that the processing of milk into yogurt meets the definition of agriculture must consider how many dairy farmers, among all dairy farmers, also engage in the activity of processing their milk into yogurt.

Overtime Pay
Employees covered by FLSA generally must receive overtime pay of at least time and one-half of their regular rate of pay for hours worked over 40 in a workweek.  FLSA, however, contains an agricultural exemption for overtime pay.  Under FLSA, workers employed solely in agriculture are not entitled to overtime pay.

Even with the application of FLSA’s agricultural exemption for overtime pay, employers must still check with state overtime laws to see if an agricultural exemption exists.  For example, under Pennsylvania law, labor on a farm is exempt from Pennsylvania overtime requirements.  In California, however, overtime pay is required for agricultural employees working over 10 hours in a day or over 60 hours in a week.

Minimum Wage
Employees covered by FLSA generally must be paid a federal minimum wage rate of $7.25 per hour.  The minimum wage rate must be paid regardless of whether the method of payment is hourly, salary, or piece rate.  FLSA, however, contains a partial exemption applicable to agriculture.  Under FLSA, agricultural employees are not entitled to minimum wage if one of the below-listed FLSA agricultural exemptions applies:
  • The worker is an immediate family member of their employer (An immediate family member is limited to a parent, spouse, child, step-child, foster child, step-parent, and foster parent);
  • The agriculture employer did not utilize more than 500 “man days” of agricultural labor in any calendar quarter of the preceding calendar year (A “man day” is any day during which an employee performs agricultural work for at least one hour);
  • The worker is principally engaged in the range production of livestock;
  • The worker is a local hand harvest laborer who commutes daily from his/her permanent residence, is paid on a piece-rate basis in traditional piece-rated occupations, and was engaged in agriculture fewer than 13 weeks during the preceding calendar year; or
  • The worker is a non-local minor, 16 years of age or under, who is a hand harvester, is paid on a piece-rate basis in a traditional piece-rated occupation, is employed on the same farm as his/her parent and is paid the same piece-rate as those over 16. 

Even when a FLSA agriculture exemption to the federal minimum wage applies, employers must always check state laws to see if the agricultural labor is subject to the state minimum wage.  For example, under Pennsylvania law, labor on a farm is exempt from the state’s minimum wage rate of $7.25 per hour.  If, however, the employee is classified under Pennsylvania law as a seasonal farm worker, the employee must be paid at least the statutory minimum wage or a piece-rate equivalent.

Child Labor
Anyone under the age of 18 years is legally considered to be a minor.  Unless an exemption applies, FLSA sets the minimum age for employment in hazardous occupations at 18 years of age and the minimum age for employment in non-hazardous occupations at 16 years of age.  Additionally, minors who are at least 14 years of age may be employed in certain limited occupations that carry restrictions on hours and work conditions.  FLSA, however, does provide an exemption for minors employed in agriculture

FLSA establishes the following minimum age requirements for minors employed in agricultural occupations:
  • Regardless of age, if a minor is employed by a parent on a farm owned or operated by the parent, the minor may work without any restriction;
  • Minors who are 16 years of age may work in any agricultural job, whether hazardous or not, with no work hour restrictions;
  • Minors who are 14 or 15 years old may work outside of school hours in any non-hazardous agricultural job;
  • Minors who are 12 or 13 years old may work outside of school hours in any non-hazardous agricultural job at the farm where their parent works or with written parental consent; and
  • Minors who are under 12 years old, with written parental consent, may work outside of school hours in any non-hazardous agricultural job on a small farm that is exempt from the federal minimum wage provisions. 

While FLSA may provide hour and hazard exemptions for minors that work on a family farm or for any minor 16 years or older, agricultural employers must still look to other laws to see if the minor is permitted to engage in a specific activity.  For example, FLSA would not prevent a 17-year-old from operating a forklift on a farm.  Under the Occupational Safety and Health Administration regulations, however, it is a violation of federal law for anyone under 18 years of age to operate a forklift.

Conclusion
Agricultural employers must always be aware of FLSA requirements establishing federal standards for overtime pay, minimum wage, and child labor.  FLSA does provide agricultural exemptions that may be applicable depending upon the nature of the farm and the type of work that is being performed.  For an agricultural exemption to apply, a worker’s employment activity must meet FLSA’s definition of agriculture.  Finally, agricultural employers must be mindful that even if exempted under FLSA, other federal and state laws may still apply.

References
29 USC Ch. 8: FAIR LABOR STANDARDS

U.S. Department of Labor, Wage and Hour Division, Fair Labor Standards Act in Agriculture: https://www.dol.gov/whd/ag/ag_flsa.htm

U.S. Department of Labor, Wage and Hour Division, Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA): https://www.dol.gov/whd/regs/compliance/whdfs12.htm

U.S. Department of Labor, Wage and Hour Division, Fact Sheet #40: Overview of Youth Employment (Child Labor) Provisions of the Fair Labor Standards Act (FLSA) for Agricultural Occupations:

Thursday, April 11, 2019

Agricultural Law Weekly Review—April 11, 2019


Written by: M. Sean High (Staff Attorney)
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Food Policy: 6 States and D.C. Sue USDA Over Changes to School Nutrition Programs
On April 3, 2019, attorneys general from six states and the District of Columbia filed suit in the U.S. Dist. Court Southern Dist. of New York alleging that the U.S. Department of Agriculture (USDA) failed to provide the pubic an opportunity for comment before lowering federal nutritional standards for school breakfast and lunches (New York v. USDA, Case 1:19-cv-02956).  Previously, on December 12, 2018, USDA published a final rule that provided schools new options under the National School Lunch Program, School Breakfast Program, and other federal child nutrition programs (83 FR 63775).  The new rule allowed schools the ability to offer flavored, low-fat milk; required that half of the weekly grains in the school lunch and breakfast menu be whole grain-rich; and granted schools more time to reduce sodium levels in school meals.  According to the attorneys general, USDA failed to give the public notice and an opportunity to comment on the 2018 changes to the school nutrition regulations, as required by the Administrative Procedure Act.

Food Policy: USDA, EPA, and FDA Release Plan to Reduce Food Waste
On April 9, 2019, U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) announced a federal interagency strategy intended to reduce food waste.  According to the agencies, more than one-third of all available food in the U.S. is uneaten due to loss or waste. As a result, USDA, EPA, and FDA announced a plan entitled: Winning on Reducing Food Waste FY 2019-2020 Federal Interagency Strategy.  Under the plan, the agencies will work together to reduce food waste through: (1) coordinating interagency efforts; (2) providing consumer education; (3) providing guidance on food loss and waste measurement; (4) providing information on food safety, food date labels, and food donations; (5) engaging with private industry; and (6) encouraging food waste reduction in USDA, EPA, and FDA facilities.

Agricultural Labor: USDA Announces New H-2A Visa Checklist Tool
On April 3, 2019, the U.S. Department of Agriculture (USDA) announced the availability of a new online resource designed to help agricultural employers better understand the H-2A visa program.  The new resource, known as the H-2A Visa Checklist Tool, is intended to guide interested individual through a series of questions and answers and provides information regarding the H-2A visa program’s timeline, requirements, fees, and forms.  According to USDA, the resource allows an employer to obtain information for their specific H-2A hiring needs and the ability to print or download a checklist for future reference.

Rural Policy: Lawmakers Request Funds to Expand Broadband Internet Access to Rural America
On April 8, 2019, U.S. Reps. Rodney Davis (R-IL) and Abigail Spanberger (D-VA) issued a letter to the House Appropriations Subcommittee on Agriculture, Rural Development leadership requesting funding to expand rural broadband internet connectivity.  According to the representatives, Congress appropriated $600 million in fiscal year (FY) 2018 and $550 million in FY2019 for a pilot broadband loan and grant program which later became known as the ReConnect Rural Broadband Program.  The representatives now seek $550 million in appropriations for the ReConnect Rural Broadband Program for FY2020.  Additionally, the representatives requested $350 million in separate funding for the broadband loan and grant program authorized by Congress under the 2018 Farm Bill.

Rural Policy: USDA to Invest $485M in Rural Electric Systems
On April 8, 2019, the U.S. Department of Agriculture (USDA) announced that it will be providing $485 million in financing to upgrade rural electric systems.  USDA stated that the funding will provide nearly $7.1 million for smart grid technologies and will assist in the building or improvement of 2,635 miles of line.  According to USDA, the funding will be provided through the Electric Loan Program and will be used to benefit rural areas in Georgia, Illinois, Iowa, Michigan, Minnesota, Mississippi, Missouri, New Mexico, North Carolina, North Dakota, South Dakota, Texas and Wisconsin.

Farm Bill: Coalition Asks Congress to Fund Farm Bill’s Urban Agriculture Programs
On April 8, 2019, the National Association of State Departments of Agriculture (NASDA)—along with a coalition of national, state, and local organizations—announced that it had sent a letter to Congress urging funding for urban agriculture.  The letter stated that the 2018 Farm Bill authorized: (1) the creation of the Office of Urban Agriculture and Innovative Production and (2) an urban agriculture data initiative.  Accordingly, NASDA—and its coalition of organizations—requested that the fiscal year 2020 appropriations bill include $25 million for the Office of Urban Agriculture and Innovative Production and $14 million for the urban agriculture data collection data initiative.  In stressing the importance of such funding, the letter asserted that urban agriculture benefits communities through improved biodiversity, greater access to nutritious foods, and increased green space.  

From National Ag Law Experts:
“The Impossible Whopper issues a Whopper-sized Challenge to the Livestock Industry”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (April 3, 2019)
“Justice Department Will Argue Against ACA on Appeal”, Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (March 28, 2019)        

Federal Actions and Notices:
Food and Drug Administration

Food and Nutrition Service

Food Safety and Inspection Service

Pennsylvania Department of Agriculture:

Pennsylvania Legislation:
SB 534: Legislation to allow for the adoption of retired research animals (Referred to Senate Agriculture and Rural Affairs Committee, April 8, 2019)
SB 170: Legislation to expand access to the Farmers’ Market Development Program (Referred to Senate Agriculture and Rural Affairs Committee, April 5, 2019)

Pennsylvania Actions and Notices:
Department of Agriculture

Milk Marketing Board

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, April 4, 2019

Agricultural Law Weekly Review—April 4, 2019



Written by: M. Sean High (Staff Attorney)
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Pesticides: Jury Awards $80m in Phase 2 of Glyphosate Lawsuit
On March 27, 2019, a jury in a U.S. District Court for the Northern District of California awarded plaintiff Edwin Hardeman over $80 million in damages due to his use of Monsanto’s glyphosate-based herbicide Roundup (Hardeman v Monsanto Company, 3:16-cv-00525).  Previously, in phase one of the trial, the jury ruled that Mr. Hardeman's non-Hodgkin's lymphoma was caused by Roundup.  In phase two of the trial, the jury found that Monsanto had negligently failed to warm Mr. Hardeman of the risks associated with Roundup.  Accordingly, the jury awarded Mr. Hardeman $5,267,634.10 in compensatory damages and $75,000,000 in punitive damages.  

Pesticides: Arkansas Plant Board Approves Proposed Emergency Dicamba Rule
On March 22, 2019, The Arkansas Agriculture Department’s State Plant Board (Board) announced that it had approved a proposed emergency rule clarifying that only three dicamba products are permitted for burndown applications from April 16 through May 25.  The three dicamba products allowed under the proposed emergency rule are Engenia, Fexapan, and Xtendimax.  The Board stated that the three products are subject to buffer zone rules established under the state’s dicamba rule which became effective on March 11, 2019.  According to the Board, the purpose of the clarification is to prevent the aerial application of dicamba products without the use of buffer zones.  The proposed emergency rule now goes to Arkansas Governor Asa Hutchinson for review.

FSMA: FDA Announces Intent to Exercise Enforcement Discretion for Certain Produce Commodities
On March 28, 2019, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register that it intends to exercise enforcement discretion for Produce Safety Rule requirements as they apply to entities growing, harvesting, packing, and holding wine grapes, hops, pulse crops, and almonds (84 FR 11644).  As a result, FDA will not expect entities growing, harvesting, packing, or holding wine grapes, hops, pulse crops, and almonds to meet any of the Produce Safety Regulation requirements with respect to these commodities.  FDA stated that it is exercising its enforcement discretion to allow the agency the opportunity to consider potential regulations that “address the unique circumstances” these commodities present.

Right to Farm Laws: West Virginia Right to Farm Amendment Approved by Governor
On March 27, 2019, West Virginia Governor Jim Justice approved legislation amending the state’s right to farm law (S.B. 393).  Under West Virginia’s right to farm law, farmers are to be protected from “nuisance lawsuits” from neighboring landowners.  The new amendment provides an update to how the right to farm law defines agriculture and agricultural land.

Industrial Hemp / Cannabis: FDA Announces Steps for Consideration of Lawful Marketing of Cannabis-Containing and Cannabis-Derived Products
On April 2, 2019, the U.S. Food and Drug Administration (FDA) announced a series of steps to advance consideration of regulations for the marketing of cannabis and cannabis-derived products.  FDA stated that while the 2018 Farm Bill removed hemp from the Controlled Substances Act—meaning that hemp is no longer a controlled substance under federal law—the legislation “explicitly preserved the FDA’s current authority to regulate products containing cannabis or cannabis-derived compounds.” As a result, FDA announced the following steps designed to move forward a legal framework for the lawful marketing of cannabis and cannabis-derived products:

  • A public hearing on May 31, 2019 to solicit stakeholder input
  • Formation of an FDA high-level internal working group designed to explore the potential marketing of dietary supplements and/or conventional foods containing cannabidiol (CBD)
  • Updates to FDA’s webpage with answers to frequently asked questions on the topic
  • Warning letters issued to companies that market CBD products with egregious and unfounded claims

Dairy Policy: Lawmakers Urge USDA to Implement Farm Bill Dairy Program
On March 29, 2019, the U.S. House Committee on Agriculture announced that a letter had been sent to Agriculture Secretary Sonny Perdue requesting that the U.S. Department of Agriculture prioritize the implementation of the dairy provisions included in the 2018 Farm Bill.  In the letter, House Agriculture Committee Chairman Collin C. Peterson (D-Minn.) and Subcommittee on General Farm Commodities and Risk Management Ranking Member Glenn ‘GT’ Thompson (R-Pa.)—along with 78 Democratic and Republican House colleagues—stated the necessity of quick action to help struggling dairy farmers.  Specifically, the lawmakers pointed to the need to implement the new Dairy Margin Coverage program which was supposed to have begun on January 1, 2019.

From National Ag Law Experts:
“EPA Flyovers, Open Fields and the Right to Privacy”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (March 28, 2019)
“Federal Regulatory Framework for Cell-Cultured Meat and State Legislative Action”, Sarah Everhart, Maryland Risk Management Education Blog (March 26, 2019)
“Common Agricultural Lease Payment Structures”,  Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (March 25, 2019)       

Federal Actions and Notices:
Agricultural Marketing Service

Food and Drug Administration

Pennsylvania Department of Agriculture:

Pennsylvania Legislation:
HB 370: Legislation further providing for purchase of agricultural conservation easements (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 404: Legislation designating “Tree of Heaven” a noxious weed (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 441: Legislation to allow wind energy on farmland preservation (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 996: Legislation to ban traveling animal acts in Pennsylvania (Referred to House Agriculture and Rural Affairs Committee, April 2, 2019)
HB 1037: Legislation regarding the use of historic barns for weddings and other special events (Referred to House Agriculture and Rural Affairs Committee, April 2, 2019)

Pennsylvania Actions and Notices:
Department of Environmental Protection

Environmental Quality Control

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, March 28, 2019

Agricultural Law Weekly Review—March 28, 2019


Written by: M. Sean High (Staff Attorney)
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

WOTUS: EPA Declines to Extend WOTUS Comment Period
On March 19, 2019, Greenwire reported that the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) have declined to extend the 60-day comment period regarding a proposed rule redefining the scope of waters federally regulated under the Clean Water Act.  Previously, on February 14, 2019, the EPA and the Army published notice in the Federal Register of the proposed rule revising the agencies definition of “waters of the United States” issued on June 29, 2015 (84 FR 4154).  With the published notice, members of the public were given until April 15, 2019 to submit comments on the proposed definition.  According to Greenwire, certain stakeholders and members of Congress had attempted to argue that the 60-day comment period was not enough time to review the proposal.  For more information regarding the proposed rule, see the January 9, 2019 Agricultural Law in the Spotlight article entitled: U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States”.    

WOTUS: EPA Withdraws WOTUS Applicability Date
On March 8, 2019, the U.S. Federal Government announced it was withdrawing its appeals of two lower court decisions enjoining and vacating the U.S. Environmental Protection Agency and U.S. Department of the Army (the agencies) 2018 Applicability Date Rule delaying the 2015 “waters of the United States” (WOTUS) rule.  Previously, on January 31, 2018, the agencies issued a final rule that added an applicability date to the 2015 Rule.  As a result, the 2015 Rule was not scheduled to become applicable until February 6, 2020.  Subsequently, the U.S. District Courts for the District of South Carolina and the Southern District of Washington enjoined and vacated the 2018 Applicability Date Rule.  The agencies stated that instead of litigating the 2018 Applicability Date Rule they have decided to focus their efforts on revising the 2015 Rule’s definition of WOTUS.

Food Labeling: Arkansas Governor Signs Truth in Labeling Bill
On March 18, 2019, Arkansas Governor Asa Hutchinson signed into law “Truth in Labeling” legislation seeking to prevent public deception regarding a food product’s origin (HB 1407).  Food products defined by the legislation include beef, livestock, pork, poultry, and rice.  Under the legislation, meat is defined as being derived from “a livestock, poultry, or cervid carcass that is edible by humans.” (A cervid is a mammal of the deer family.)  The definition of meat, however, specifically excludes synthetic products derived from plants, insects, or from products grown in a lab.  Failure to follow the state’s new food labeling law could result in a civil penalty. 

Agricultural Labor: Pennsylvania Approves Farming Apprenticeship Program
On March 21, 2019, the Pennsylvania Association for Sustainable Agriculture (PASA) announced that the Pennsylvania Department of Labor and Industry had approved a formal apprenticeship program for vegetable growers.  Called the Diversified Vegetable Apprenticeship, the new program was developed by PASA and provides a way for beginning farmers to train under master growers.  According to PASA, the program will help beginning farmers acquire the skills necessary to start their own vegetable farms and will also assist master growers in meeting their employment needs.

Soda Tax: Leading Health Organizations Support Taxes on Sugary Drinks
On March 25, 2019, the American Academy of Pediatrics (AAP) and the American Heart Association (AHA) issued a joint statement endorsing a series of public health measures intended to lower sugary drink consumption among children.  According to the statement, children in the U.S. consume an average of 30 gallons of sugary drinks per year.  The statement asserted that this consumption has been linked to adolescent obesity and increased risk for tooth decay, hypertension, and type 2 diabetes.  Among the measures endorsed by AAP and AHA are excise taxes imposed on manufacturers or distributors, restrictions on marketing to children, and better nutritional information on labels.

Water Quality: Federal Judge Issues Temporary Injunction Against Lake Erie Bill of Rights
On March 18, 2019, the U.S. District Court for the Northern District of Ohio issued a temporary injunction preventing the City of Toledo from granting Lake Erie its own legal rights (Drews Farm Partnership v. City of Toledo Case No. 3:19 CV 434).  Approved by Toledo voters on March 13, 2019, the measure—known as the Lake Erie Bill of Rights—provided Lake Erie and its waters the right to “exist, flourish and naturally evolve.” According to Farm and Dairy, supporters intended the measure to protect the lake from farm nutrient runoff and resulting harmful algal blooms.  Opponents, however, asserted that the measure’s “definitions are too loose” and that providing “a lake its own legal standing…is likely unconstitutional.” 

From National Ag Law Experts:
“Issue Brief: The Regulation of Cell-Cultured Meat”, Brigit Rollins, Rusty Rumley, National Agricultural Law Center (March 8, 2019)
“Court of Appeals Agrees USDA did not have the Discretion to Implement New Program Benefiting Farmers”, Paul Goeringer, Maryland Risk Management Education Blog (March 19, 2019)
“Ohio Agricultural Law Blog -- What We’ve Been Up To: Factsheets on Reducing Risk in Agritourism”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (March 20, 2019)  

Federal Actions and Notices:
Agricultural Marketing Service

Animal and Plant Health Inspection Service

Pennsylvania Department of Agriculture:

Pennsylvania Legislation:
HB 918: Legislation regarding appropriations to Farmers’ High School (Referred to House Agriculture and Rural Affairs Committee, March 25, 2019)
HB 960: Legislation requiring Department of Environmental Protection to transfer its permitting authority for projects on farms to the State Conservation Commission (Referred to House Agriculture and Rural Affairs Committee, March 25, 2019)
HB 915: Legislation clarifying that milk haulers can travel on highways during a declaration of disaster emergency (Referred to House Agriculture and Rural Affairs Committee, March 20, 2019)

Pennsylvania Actions and Notices:
Governor’s Office

State Conservation Commission

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food