Agricultural Law Weekly Review—August 11, 2016

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:

GMO Labeling: Vermont to No Longer Enforce State Labeling Law

On August 2, 2016, Vermont Attorney General William H. Sorrell announced that due to the July 29, 2016 federal enactment of the “National Bioengineered Food Disclosure Standard,” Vermont would no longer enforce Act 120 which required “the labeling of food produced with genetic engineering.” Act 120 became effective in Vermont on July 1, 2016.

Right to Farm: Oklahoma Supreme Court Allows Constitutional Amendment to Appear on Ballot

On August 8, 2016, the Supreme Court of Oklahoma held that Legislative Referendum No. 368 (LF 368) could be included on the November 2016 ballot (Save the Illinois River, Inc. v. State of Oklahoma, 2016 WL 4189500).  If approved by the voters, LF 368 would amend the Oklahoma constitution to prohibit the state “Legislature from passing any law ‘which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest.’” As a result of the Court’s decision, LF 368 is scheduled to appear on the November 2016 ballot as State Question No. 777.

Labor: DOL and PA Dept. of Labor and Industry Sign Agreement to Combat Employee Misclassification    

On August 4, 2016, the United States Department of Labor (DOL) issued a press release stating that DOL and the Pennsylvania Department of Labor & Industry have signed a three year agreement designed to “to protect employees’ rights by preventing their misclassification as independent contractors or other non-employee statuses.” According to the press release, “[t]he two agencies will provide clear, accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law.”

Environmental Litigation: EPA and Pennsylvania Announce Settlement with Consol Regarding Wastewater Contamination

On August 4, 2016, the United States Department of Justice (DOJ) issued a press release stating that the United States Environmental Protection Agency and the Commonwealth of Pennsylvania have reached an agreement with Consol Energy Inc., CNX Coal Resources and Consol Pennsylvania Coal Co. LLC (Consol) requiring that Consol implement practices that prevent the contaminated discharges of mining wastewater in Pennsylvania.  According to DOJ, under the terms of the agreement, Consol will “complete and maintain certain water management measures to prevent discharges from certain outfalls at the [company’s Bailey Mine Complex in Greene and Washington Counties]; monitor and report quarterly and annually, to ensure adequate storage capacity to prevent future discharges; submit and implement a plan for achieving long term compliance through advanced treatment in the event of projected exhaustion of storage capacity; develop and implement an environmental management system to ensure environmental compliance throughout the [Bailey Mine] Complex; and, pay a $3 million civil penalty.”

Invasive Species: PDA Announces Expanded Spotted Lanternfly Quarantine  

On August 5, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release stating that “Pennsylvania’s Spotted Lanternfly quarantine has been expanded to Maxatawny Township and Kutztown Borough in Berks County and Upper Milford Township and Emmaus Borough in Lehigh County after small populations of the invasive species were found in those areas.” According to PDA, “[t]he general quarantine of these infested areas restricts movement of any material or object that can spread the pest…[such as] firewood or wood products, brush or yard waste, remodeling or construction materials and waste, packing material like boxes, grapevines for decorative purposes or as nursery stock, and any outdoor household articles like lawnmowers, grills, tarps and other equipment, trucks or vehicles typically not stored indoors.”

Pesticides: EPA Announces Availability of Draft Pesticide Registration Notices

On August 5, 2016, the United States Environmental Protection Agency (EPA) published notice in the Federal Register of the availability of two draft Pesticide Registration Notices “for review and comment: One entitled ‘Guidance for Pesticide Registrants on Pesticide Resistance Management Labeling’ and the other entitled ‘Guidance for Herbicide Resistance Management Labeling, Education, Training, and Stewardship’” (81 FR 51880).  Additionally, according to EPA, the comment period for both notices has been extended from August 2, 2016 to September 1, 2016.

Animal Welfare: USDA Proposes Amendment to Animal Welfare Act to Empower Secretary of Agriculture

On August 4, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the department was issuing a proposed rule to amend the Animal Welfare Act (AWA) (81 FR 51386).  According to USDA APHIS, the proposed rule would amend AWA to provide “the Secretary of Agriculture with the authority to determine that animal dealers and exhibitors are not required to obtain a license under the Act and regulations if the size of the business conducting AWA-related activities is determined to be de minimis by the Secretary.” The comment period for the proposed rule closes November 2, 2016.

Food Standards: USDA Announces New Standards for Grades of Fruits and Vegetables

On August 4, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published a final notice in the Federal Register regarding revisions to “41 U.S. Standards for Grades of fresh fruits and vegetables, fruits and vegetables for processing, nuts, and specialty crops by removing the ‘Unclassified’ category from each standard” (81 FR 51297).  The effective date for the revised standards is September 6, 2016.

Organic Regulations: USDA Removes Program to Assess Organic Certifying Agencies

On August 8, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a direct final rule removing the “Program to Assess Organic Certifying Agencies” from 7 CFR Part 37 of the Code of Federal Regulations (81FR 52589).  The comment period on the direct final rule closes on September 8, 2016 and becomes effective November 7, 2016.

Livestock Reporting: Reauthorization and Revisions to Livestock Mandatory Reporting

On August 11, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a final rule regarding the reauthorization of the Livestock Mandatory Reporting program (81 FR 52969).  Additionally, the “final rule incorporates the swine reporting revisions contained within the 2015 Reauthorization Act and a minor revision to the lamb reporting requirements under the Agricultural Marketing Act of 1946, USDA Livestock Mandatory Reporting regulations.” The final rule becomes effective October 11, 2016.