Thursday, December 14, 2017

Agricultural Law Weekly Review—December 14, 2017

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:

Right to Farm: Missouri Supreme Court Rules Marijuana Not Protected by State’s Right to Farm Law
On November 5, 2017, the Supreme Court of Missouri determined that Missouri’s Right to Farm law did not protect an individual’s right to grow marijuana.  Under Article I, section 35 of the Missouri constitution, “the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers...” Accordingly, appellant Mark Shanklin argued that this provision protected his “farming practice” of raising 300 marijuana plants in his house.  The court rejected Shanklin’s argument and held that “because the amendment expressly recognizes farming and ranching practices are subject to local government regulation, it would be absurd to conclude Missouri voters intended to implicitly nullify or curtail state and federal regulatory authority over the illegal drug trade.”

Industrial Hemp: Pennsylvania Expands Permitting of Industrial Hemp Research
On December 6, 2017, Pennsylvania Governor Tom Wolf announced an expansion of the Commonwealth’s industrial hemp program.  Currently, Pennsylvania allows researchers from institutions of higher education and individual growers contracting with the Pennsylvania Department of Agriculture (PDA) the opportunity to apply for permits to grow industrial hemp for research purposes.  In 2017, PDA issued 30 permits and limited each permit holder to the growing of no more than five acres of industrial hemp.  According to Governor Wolf, for 2018, the program will be expanded to allow the issuing of as many as 50 permits.  Additionally, each permit holder will have the ability to grow up to 100 acres of industrial hemp.   

FSMA: FDA Issues Guidance on Term “Refusal of Inspection”
On December 11, 2017, the U.S. Food and Drug Administration announced draft guidance material for foreign food facilities and foreign governments regarding how FDA interprets the term “refuses to permit entry … to inspect.” According to FDA, under the FDA Food Safety Modernization Act, FDA has “the authority to refuse imported food admission into the United States if the agency is not permitted to inspect the foreign establishment that produced the food.” As a result, FDA issued the draft guidance to provide examples of when an action might lead to a “refusal of inspection.”

Conservation: PA offers Tax Credits to Assist Agricultural Conservation Practices
On December 7, 2017, the Pennsylvania Department of Agriculture (PDA) announced the availability of the 2017-2018 Resource Enhancement and Protection (REAP) tax credit program to assist “Pennsylvania farmers who want to implement best management practices (BMPs) or purchase on-farm conservation equipment.” Under REAP, farmers who install BMP’s or purchase equipment that will reduce nutrient and sediment runoff, have the potential to receive up to $150,000 in tax credits per agricultural operation to cover from 50% to 75% of a project’s cost.   According to PDA, REAP is administered by the Pennsylvania State Conservation Commission and applications to program are accepted on a first-come, first-served basis.

Pennsylvania Legislation
Environmental Resources and Energy (S)
HB 544 Legislation to amend the Recreational Use of Land and Water Act (RULWA) to expand liability protection for landowners (referred to committee December 8, 2017)

Agriculture and Rural Affairs (H)
HB 1917 Legislation to strengthen training and oversight of humane society police officers (reported out of committee December 12, 2017)


Pennsylvania Actions and Notices
Department of Agriculture

AgLaw HotLinks:

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Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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

Thursday, December 7, 2017

Agricultural Law Weekly Review—December 7, 2017

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

WOTUS: 9th Circuit Applies “Significant Nexus” Test to Wetland Case
On November 27, 2017, the Ninth Circuit Court of Appeals affirmed the criminal conviction of a defendant in an ongoing Clean Water Act case.  The defendant was found guilty of discharging dredged material into a wetland.  Applying the “significant nexus” test developed by Justice Kennedy in Rapanos v. United States, the court affirmed the conviction and reasoned “[w]hether a wetland or non-navigable water has a significant nexus to a traditionally navigable water has nothing to do with whether the traditionally navigable water is healthy.”

Biofuel: EPA Finalizes Volumes for RFS for 2018 and Biomass-Based Diesel for 2019
On November 30, 2017, the U.S. Environmental Protection Agency (EPA) announced the Renewable Fuel Standard (RFS) program renewable fuel volumes for 2018 and the biomass-based diesel volumes for 2019.  Accordingly, RFS renewable fuel volumes for 2018 are as follows: cellulosic biofuel (288 million gallons), advanced biofuel (4.29 billion gallons), and renewable fuel (19.29 billion gallons).  Additionally, USDA set biomass-based diesel volumes at 2.1 billion gallons for 2018 and 2.1 billion gallons for 2019.

Animal Welfare: 13 States Ask SCOTUS to Block California Egg Law
On December 4, 2017, the Associated Press (AP) reported that attorney generals from thirteen states have joined together to petition the U.S. Supreme Court to block California’s egg law.  Enacted by voters in 2008, the California law requires that eggs sold in the state may only come from laying-hens that are permitted the ability to lie down, stand up, fully extending their limbs, and turn around freely.  According to the AP, the attorney general’s allege that the California law violates the commerce clause and “has cost consumers nationwide up to $350 million annually because of higher egg prices since it took effect in 2015.”

Industrial Hemp: Wisconsin Enacts Hemp Law and Broadens Ability to Transport
On December 1, 2017, Marijuana Business Daily reported that Wisconsin Governor Scott Walker signed legislation authorizing hemp production.  Of note, with the enactment of the Wisconsin law, the ability to transport hemp products becomes significantly broader.  According to the report, “the U.S. Drug Enforcement Agency has said interstate transfers of some hemp products are legal only among states that have authorized hemp pilots.” Accordingly, with the passage of Wisconsin’s hemp law, due to the state’s geographic position, it is now physically possible to legally drive hemp products between the East and West coasts.
   
Pennsylvania Legislation
Agriculture and Rural Affairs (H)
  • HB 1917 Legislation to strengthen training and oversight of humane society police officers (voting meeting scheduled for December 12, 2017)
  • HB 1932 Legislation requiring a reviewing agency to render a written decision on a farmer's nutrient management plan within 90 days (voting meeting scheduled for December 12, 2017)


Pennsylvania Actions and Notices
Milk Marketing Board


AgLaw HotLinks:

 Listen to our new Agricultural Law Podcast by clicking here!

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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

Wednesday, November 29, 2017

Agricultural Law Weekly Review—November 29, 2017

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:

Air Quality: Court Extends Date for Certain Farm Emission Reporting
On November 22, 2017, the U.S. Environmental Protection Agency (EPA) announced  that the DC Circuit Court of Appeals has extended the initial reporting date for certain farms previously exempted from emission reporting requirements until January 22, 2018.  Accordingly, on April 11, 2017, the Court struck down an EPA final rule that had provided a complete agricultural exemption for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as well as a partial agricultural exemption for reporting air emissions under the Emergency Planning and Community Right-to-Know Act (EPCRA).  EPA stated that the agency sought “additional time from the Court to delay the effective date so that EPA could develop guidance materials to help farmers understand their reporting obligations.” As a result, the Court allowed that farms affected by the April 11, 2017, decision will not be required to submit their initial reports until the Court orders its mandate enforcing the decision.  

Pesticides: EU Renews Glyphosate Approval
On November 27, 2017, the European Commission (EC) announced that the European Union (EU) Member States have agreed to renew the approval of the herbicide glyphosate for another 5 years.  According to the EC, the agreement was reached by a qualified majority of the Appeal Committee.  To achieve a qualified majority, a vote must be supported by 55% of the countries, representing at least 65% of the total EU population.  Accordingly, the EC reported that 18 Member States (representing 65.71% of the EU population) voted in favor of renewal, 9 Member States (representing 32.26 % of the EU population) voted against, and 1 Member State (representing 2.02 % of the EU population) abstained.

Pesticides: Pennsylvania Designates 19 Counties for Pesticide Disposal
On November 20, 2017, the Pennsylvania Department of Agriculture (PDA) announced the 2018 list of counties designated for disposal of unwanted or unusable pesticides through the Commonwealth’s CHEMSWEEP program.  Under CHEMSWEEP, licensed pesticide applicators, pesticide dealers and commercial pesticide application businesses in designated counties have the ability to register for the collection and destruction of unwanted or unusable pesticides.  Each year, different counties receive designation for participation in the program.  For 2018, the designated counties are: Adams, Allegheny, Beaver, Cameron, Carbon, Centre, Chester, Clearfield, Clinton, Elk, Franklin, Jefferson, Lancaster, Lehigh, Monroe, Northampton, Pike, Potter, and Washington.  According to PDA, since the CHEMSWEEP program was established in 1993, over “2.5 million pounds of unwanted or unusable pesticides have been properly destroyed.”

Organics: USDA Issues Assessment on New EU Organic Regulations
On November 17, 2017, the USDA Foreign Agricultural Service issued a report discussing how new European Union (EU) organic regulations may affect the U.S. organic sector.  According to the report, though initial projects promised extensive reforms, the USDA Foreign Agricultural Service foresees only minor changes.  The report stated that “[t]he biggest likely impact for the United States organic sector is that the EU will require trade agreements in place of the current framework, equivalence arrangements.”  

Pennsylvania Actions and Notices
State Conservation Commission

AgLaw HotLinks:

Listen to our new Agricultural Law Podcast by clicking here!

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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

Wednesday, November 22, 2017

Agricultural Law Weekly Review—November 22, 2017

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:

FSMA: FDA Announces Small Entity Compliance Guide for Sanitary Transportation of Human and Animal Food
On November 22, 2017, the U.S. Food and Drug Administration (FDA) announced the availability of guidance material designed to help small businesses comply with the Sanitary Transportation of Human and Animal Food final rule (82 FR 55503).  Entitled: Guidance for Industry: Sanitary Transportation of Human and Animal Food: What You Need to Know About the FDA Regulation - Small Entity Compliance Guide, the guide provides affected shippers, loaders, carriers, and receivers with compliance information regarding such issues as training and record keeping.  While not legally enforceable, the guide expresses FDA’s current thinking on the issue.    

WOTUS: EPA and the Army Propose Amending Applicable Date of “Waters of the United States” Rule
On November 22, 2017, the U.S. Environmental Protection Agency and the Department of the Army published notice of a proposed amendment that would delay the applicable date for the 2015 rule defining the “waters of the United States” (82 FR 55542). Accordingly, the agencies seek to delay the applicable date of the rule until two years after the proposed amendment has been finalized and published in the Federal Register.  The agencies stated that the delay is intended to permit sufficient time for the proper reconsideration of the definition of the “waters of the United States.” Comments regarding the proposed amendment must be received on or before December 13, 2017.

GIPSA: USDA Eliminates GIPSA as a Standalone Agency
On November 15, 2017, Agri-Pulse reported that the U.S. Department of Agriculture (USDA) has eliminated the Grain Inspection, Packers, and Stockyards Administration (GIPSA) as a standalone agency.  Under a memorandum issued by Secretary of Agriculture Sonny Perdue, USDA announced that those functions which were formerly part of GIPSA have been moved to a newly created Fair Trade Practices program area.  According to the memorandum, the intention of the action is to improve industry engagement and customer focus.  

Animal Welfare: Utah Agrees to $349,000 “Ag-Gag” Settlement
On November 18, 2017, the Salt Lake Tribune reported that Utah’s office of attorney general has agreed to pay $349,000 to settle a lawsuit involving the state’s “ag-gag” law.  The settlement follows a July 7, 2017, ruling by the U.S. District Court for the District of Utah, Central Division which held that Utah Code §76-6-112 violated first amendment rights to free speech.  According to the report, the settlement amount must be approved by the Utah legislature.

Transportation: FMCSA Announces 90-Day ELD Waiver for Agricultural Commodities
On November 20, 2017, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced a 90-day temporary waiver from the electronic logging device (ELD) requirements for transporters of agricultural commodities.  Prior to the FMCSA announcement, ELD requirements were scheduled to take effect December 18, 2017.  In addition to the 90-day temporary waiver, FMCSA also announced that the agency will be providing “formal guidance specifically pertaining to the existing Hours-of-Service exemption for the agricultural industry, and guidance on the “personal conveyance” provision.”

Pennsylvania Legislation
HB 176 Legislation exempting certain agricultural structures from the Uniform Construction Code (Approved by Governor Tom Wolf October 25, 2017) (Act 35)

Agricultural and Rural Affairs (H)
HB 1932 Legislation requiring a 90 day written decision regarding the approval, modification, or disapproval of a nutrient management plan (Referred to committee November 20, 2017)

Pennsylvania Actions and Notices
Milk Marketing Board

AgLaw HotLinks:

 Listen to our new Agricultural Law Podcast by clicking here!

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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

Thursday, November 16, 2017

Agricultural Law Weekly Review—November 16, 2017

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:
                             
National Organic Program: AMS Delays Organic Livestock and Poultry Practices Final Rule
On November 14, 2017, the U.S. Department of Agriculture's Agricultural Marketing Service (AMS) published notice delaying the effective date of the Organic Livestock and Poultry Practices (OLPP) final rule published in the Federal Register on January 19, 2017 (82 FR 52643).  According to AMS, the OLPP final rule addresses: (1) livestock handling and transport for slaughter; (2) avian living conditions; (3) livestock care and production practices; and (4) mammalian living conditions.  AMS stated that while reviewing the OLPP, “significant concerns [arose] regarding statutory authority for, and costs and benefits of, the OLPP rule.” As a result, AMS announced that the agency is delaying the effective date of the OLPP rule until May 14, 2018, in order to allow additional time for comment and review.

Checkoff Programs: Oklahoma Beef Checkoff Referendum Defeated
On November 9, 2017, News OK reported that a recent Oklahoma Beef Checkoff referendum had been defeated by a final count of 2,506 no votes to 1,998 yes votes.  If passed, the referendum would have levied a $1 fee for each head of cattle sold.  This fee would have been in addition to the $1 national checkoff fee currently placed on each head of cattle sold.  Under the national checkoff program, Oklahoma must share a portion of the money collected with other states that produce cattle sold in Oklahoma markets.  Accordingly, under the proposed referendum, the additional $1 fee would have been retained entirely for use by the state of Oklahoma. 

International Trade: WTO Rules against Indonesia Agricultural Import Restrictions
On November 9, 2017, U.S. Trade Representative Robert Lighthizer announced a determination by the World Trade Organization (WTO) that Indonesia’s import restrictions on horticultural products and animals and animal products are in violation of WTO rules.  Under the WTO determination, Indonesia must bring its measures into conformity with WTO rules.  According to Mr. Lighthizer, due to a “complex web of import licensing requirements”, U.S. farmers and ranchers have been denied export opportunities to Indonesian at a cost of millions of dollars per year.  Mr. Lighthizer asserted that the WTO determination should result in increased export opportunities for U.S. farmers and ranchers and increased Indonesian consumer access to “high-quality U.S. agricultural products.”

International Trade: U.S. Department of Commerce Determines Argentina and Indonesia Unfairly Subsidize Biodiesel
On November 9, 2017, U.S. Department of Commerce announced a final determination regarding biodiesel imported from Argentina and Indonesia.  According to the Commerce Department, Argentina is unfairly subsidizing its producers of biodiesel at rates ranging from 71.45 to 72.28%.  Additionally, the Commerce Department stated that Indonesia is unfairly subsidizing its producers of biodiesel at rates ranging from 34.45 to 64.73%.  As a result, the Commerce Department announced that U.S. Customs and Border Protection will be instructed to collect cash deposits from importers of biodiesel from Argentina and Indonesia at amounts based on the final rates. 

Pesticides: EU Arrives at “No Opinion” on Glyphosate Renewal
On November 9, 2017, the EU Observer reported that the European Union (EU) member states failed to agree on a license extension for the herbicide glyphosate.  According to the report, in order for a glyphosate license extension, a qualified majority of the ministers in the standing committee on plant animal food and feed must vote in favor of the proposal.  To achieve a qualified majority, “55 percent of the EU countries, representing 65 percent of the European population, have to agree on the proposal.” Accordingly, out of the 28 EU member states, 14 voted in favor of the proposal, 9 voted against the proposal, and 5 abstained.  Because a qualified majority was not reached, the committee meeting resulted in a "no opinion.” The report stated that following the committee’s action, the European Commission will pursue the license extension with the appeal committee for food safety.  The current EU license for glyphosate is set to expire on December 15, 2017.
                                
Pennsylvania Legislation
Agriculture and Rural Affairs (H)
  • HB 1917 Legislation regarding the training and oversight of humane society police officers (referred to committee November 13, 2017)
Pennsylvania Actions and Notices
Department of Environmental Protection
AgLaw HotLinks:


Listen to our new Agricultural Law Podcast by clicking here!

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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

Thursday, November 9, 2017

Agricultural Law Weekly Review—November 9, 2017

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:
                                
FSMA: FDA Issues Guidance Giving More Time to “Co-Manufactures”  
On November 3, 2017, the U.S. Food and Drug Administration (FDA)  announced guidance intended to provide certain “co-manufactures” of food with more time to meet FDA Food Safety Modernization Act (FSMA) supplier approval and verification requirements.  Under FSMA, regulations for the Preventive Controls for Human Foods, the Preventive Controls for Animal Food, and the Foreign Supplier Verification Programs each require a supply-chain program for certain raw materials and other ingredients.  According to FDA, the purpose of the guidance is to assist those involved in co-manufacturing agreements which involve a second party manufacturing or processing food for a brand owner.  FDA stated that under the guidance, the agency “does not intend to take enforcement action for two years against a co-manufacturer that is not in compliance with certain supply-chain program requirements related to supplier approval and supplier verification.”

Biotechnology: USDA Withdraws Proposed Revisions to Biotechnology Regulations
On November 6, 2017, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service announced a withdrawal of a proposed rule intended to revise the agency’s biotechnology regulations.  According to USDA, following the withdrawing of the proposed rule, the agency will explore policy alternatives and “re-engage with stakeholders to determine the most effective, science-based approach for regulating the products of modern biotechnology while protecting plant health.” Regarding the decision to re-examine the biotechnology regulations, USDA Secretary Sonny Perdue asserted a need for a balanced regulatory process that does not restricting innovation. The Secretary stated that biotechnology “is evolving every day” and as a result, there is a need for “regulations and policies that are flexible and adaptable to these innovations to ensure food security for the growing population.”

Menu Labeling: FDA Issues Draft Menu Labeling Guidance
In November 2017, the U.S. Food and Drug Administration (FDA) announced the availability of a draft guidance document entitled: Menu Labeling: Supplemental Guidance for Industry.  Accordingly, the document: (1) addresses concerns that have been raised by stakeholders regarding implementation of the menu labeling requirements; (2) clarifies additional options for complying with the menu labeling requirements; and (3) identifies places where FDA intends to be more flexible in its approach.  The document contains nonbinding recommendations and is intended for comment purposes only.  Comment on the document is scheduled to end 60 days after publication in the Federal Register.

International Trade: U.S. Department of Commerce Announces Duty on Softwood Lumber from Canada
On November 2, 2017, the U.S. Department of Commerce announced a final determination regarding the antidumping and countervailing duty investigations of softwood lumber imports from Canada.  According to the Commerce Department, Canadian exporters have been selling softwood lumber in the United States at prices between 3.2% and 8.89% below fair market value.  Additionally, The Commerce Department stated that Canada has been unfairly subsidizing Canadian softwood producers at rates between 3.34% and 18.19%.  As a result, the Commerce Department announced that U.S. Customs and Border Protection will be instructed to collect cash deposits from importers of Canadian softwood lumber at amounts based on the final rates.  

Antibiotics: WHO Calls for End of Antibiotic Use in Healthy Animals
On November 7, 2017, the World Health Organization (WHO) announced recommendations designed to limit antibiotic use in healthy animals.  According to WHO, the over-use of antibiotics in healthy animals has become a contributor to the increased threat of antibiotic resistance.  As a result, WHO recommends that healthy animals should not receive antibiotics for growth promotion.  Additionally, WHO recommends that antibiotic use in healthy animal be limited to the prevention of disease where there has been a diagnosis “in other animals in the same flock, herd, or fish population.” WHO stated that instead of antibiotics, producers should consider improved “hygiene, better use of vaccination, and changes in animal housing and husbandry practices.”


Pennsylvania Actions and Notices
Department of Agriculture


AgLaw HotLinks:


Listen to our new Agricultural Law Podcast by clicking here!

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.


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