Thursday, October 31, 2019

Ag Law Weekly Review - October 31, 2019

Written by: 
Brook Duer —Staff Attorney
Audry Thompson—Research Assistant
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Industrial Hemp/Cannabis: USDA Releases Interim Final Rule for Domestic Hemp Production
On October 29, 2019, USDA publicly announced and released the text of its interim regulations governing domestic hemp production.  The interim final rule implements Section 10113 of the 2018 Farm Bill and various new sections of the Agricultural Marketing Act of 1946, which it amended. Once published in the Federal Register, the rule will be immediately effective and expire after two years.  In the meantime, there will be a 60-day comment period and thereafter USDA anticipates issuing its final rule.  The rule adds new part 990 (“Domestic Hemp Production”) to 7 CFR. As stated in the 2018 Farm Bill, states wishing to have primary authority over hemp production must have a USDA-approved hemp production plan. Subpart B of new part 990 outlines the mandatory components and the approval and amendment processes for a state plan, as well as containing material provisions of interest regarding acreage reporting to states and FSA, grower data sharing with USDA, hemp sampling and THC testing, disposal of “hot” plants, and annual inspections.  In the absence of a USDA-approved plan, Subpart C governs hemp production through the application and issuance a USDA-issued hemp producer license and its compliance requirements.  Subpart E contains a provision stating that no state may prohibit the transportation of hemp or hemp products through their state if legally produced under federal law.  The interim final rule does not address import/export of seed or plant material or extracts, nor does it address seed certification. Those issues remain unchanged as presently regulated.

WOTUS:  Lawsuits Challenge Repeal of 2015 WOTUS Rule 
After the October 22, 2019, EPA repeal of the 2015 WOTUS Rule and simultaneous reinstitution of the pre-existing WOTUS regulatory framework dating to the 1980s, immediate legal action was taken by at least two interest groups to challenge that action. 
  • On October 22, 2019, the New Mexico Cattle Growers’ Association filed a lawsuit in New Mexico federal court claiming the reinstitution of the old regulatory framework was unconstitutional.  New Mexico Cattle Growers' Association v. U.S. Environmental Protection Agency et al., 1:19-cv-00988. The suit alleges, among other things, that: (a) the result of EPA’s action is an unconstitutional delegation of legislative authority to an agency; (b) the term “navigable waters” should be declared void for vagueness; (c) the former interpretation and application of navigable waters was already rejected by the U.S. Supreme Court in the 2006 Rapanos v. U.S. case. 
  • On October 23, 2019, a collection of environmental groups filed a lawsuit in South Carolina federal court alleging that the repeal and reinstitution of the old rule violated the Administrative Procedure Act, and interpretative caselaw, in multiple ways and should be invalidated. South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2:19-cv-03006. 
EPA’s repeal becomes effective December 23, 2019, and thus far no federal court has entertained or granted an injunction preventing the repeal from taking effect. 

Pesticides: EPA Proposes New Rule on Pesticide Application Exclusion Zone Requirements
On October 24, 2019, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to be published in the Federal Register revising the Application Exclusion Zone (AEZ) requirements of the Worker Protection Standard (WPS).  The AEZ refers to the area around an on-going pesticide application that acts as a buffer zone to prevent unnecessary human contact with the pesticide.  According to EPA, the proposed changes would limit an AEZ to the boundaries of a farmer’s own property, provide exemptions for immediate family members, simplify criteria for determining whether a 100-foot or a 25-foot AEZ should apply, and clarifies when to resume an application that has been suspended due to human entry into the AEZ.  In the announcement and proposed rule, EPA points out that persons outside a farm’s boundaries are still protected by the existing rule’s “do not contact” provisions prohibiting pesticide contact with all known persons, within or outside property lines.  Once published, a 90-day comment period will commence.    

Food Labeling: FDA States Enforcement Stance on New Nutrition Facts Labeling
On October 23, 2019, food manufacturers received information from the U.S. Food and Drug Administration (FDA) regarding enforcement of the long-pending required amendment of  Nutrition and Supplement Facts Labeling (81 FR 33741) set to take effect for large manufacturers (total sales in excess of $10 million) on January 1, 2020.  In response to a September 30, 2019 letter from the Food & Beverage Issue Alliance (“Alliance”) requesting, among other things, a “six-month period of enforcement discretion,” FDA revised the compliance language on its webpage devoted to the new labeling to read: “During the first 6 months following the January 1, 2020, compliance date, FDA plans to work cooperatively with manufacturers to meet the new Nutrition Facts label requirements and will not focus on enforcement actions regarding these requirements during that time.”

Pesticides: EU Approves Ban of Another Neonicotinoid Harmful to Pollinators  
On October 22, 2019, the majority of European Union (EU) countries approved the proposal of the European Commission not to extend approval of the use of the pesticide thiacloprid after its current approval expires on April 30, 2020.  Thiacloprid is a neonicotinoid sold by Bayer CropScience under the brand name Biscaya, and has been linked to harm to pollinators.  A July 2019 EU notification to the World Trade Organization of the impending action also states that harmful effects on human health and groundwater cannot be ruled out.  According to Bloomberg News, Bayer CropScience submitted a letter to EPA in 2013 voluntarily canceling all its thiacloprid product registrations in the United States.  This is the fourth neonicotinoid to be banned for outdoor use in the EU. Thiacloprid use increased as a replacement for three previously banned neonicotinoids. Use of one remaining neonicotinoid, acetamiprid, is authorized in the EU but is characterized as relatively low toxicity.  

Farm Bill:  USDA, DOE Collaborate on Rural Energy Technology Development 
On October 25, 2019, U.S. Department of Agriculture (USDA) and U.S. Department of Energy (DOE) announced the execution of a memorandum of understanding (MOU) pursuant to Section 6501 of the 2018 Farm Bill to collaboratively promote investment in rural energy infrastructure and the development of energy-related technologies and manufacturing in rural and agricultural communities. An interagency working group is to be established to implement the MOU’s terms and prepare a yearly report of actions and projects.  This MOU results from the 2017 establishment of, and resulting report from, the Task Force on Agriculture and Rural Prosperity, which recommended the development of all sources of energy including renewable sources to bolster rural prosperity. 

From National Ag Law Experts:
Tiffany Dowell Lashmet, Livestock and Community Property (October 28, 2019) 

Penn State Research:

Pennsylvania Department of Agriculture:

Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture

Department of Environmental Protection

State Conservation Commission

Susquehanna River Basin Commission

Pennsylvania Legislature
H.B.1085 “An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the State Personal Property Tax Act” Presented to Governor (October 29, 2019)
S.B.147 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in Pennsylvania Game Commission, further providing for accountability; and, in hunting and furtaking, further providing for hunting on Sunday prohibited and for trespass on private property while hunting and providing for hunting on Sunday without written permission,” Re-reported as Committed (October 29, 2019)

House Agriculture and Rural Affairs Committee
H.B.918 “An Act repealing the act of May 20, 1857 (P.L.617, No.658), entitled ‘An act making an Appropriation from the State Treasury, in aid of the Farmers' High School,’” Committee Vote—Report Bill as Amended (October 23, 2019)
H.B.1223 “An Act providing for the creation of keystone opportunity dairy zones to facilitate the economic development of Pennsylvania's dairy industry; authorizing expenditures; providing tax exemptions, tax deductions, tax abatements and tax credits; creating additional obligations of the Commonwealth and local governmental units; and prescribing powers and duties of certain State and local departments, agencies and officials,” Committee Vote—Report Bill as Amended (October 23, 2019)
H.B.1224 “An Act amending the act of April 28, 1937 (P.L.417, No.105), known as the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in general powers of the board, providing for coordination with Department of Revenue; and, in prices of milk, further providing for cooperatives,” Committee Vote—Report Bill as Committed (October 23, 2019)
H.B.1775 “An Act amending the act of May 15, 1945 (P.L.547, No.217), known as the Conservation District Law, providing for legislative report,” Committee Vote—Report Bill as Amended (October 23, 2019)

Federal Executive Agencies—Actions and Notices:
Agricultural Marketing Service

Animal and Plant Health Inspection Service

Delaware River Basin Commission

Environmental Protection Agency
“Mandipropamid; Pesticide Tolerances,” Final Rule (October 28, 2019)
“Sulfoxaflor; Pesticide Tolerances,” Final Rule (October 25, 2019)
“Fenbuconazole; Pesticide Tolerances,” Final Rule (October 25, 2019)

Fish and Wildlife Service

Food and Drug Administration

Food and Nutrition Service

Food Safety and Inspection Service

Partnerships and Public Engagement Office

U.S. House Agriculture Committee Actions: 
H.R.4885 “To amend Public Law 87-788 (commonly known as the McIntire-Stennis Cooperative Forestry Act; 16 U.S.C. 582a-7) to provide for equal treatment of the District of Columbia with respect to funds made available under that Act,” Introduced; Referred to House Committee on Agriculture (October 28, 2019)             
H.R.4881 “To amend the Federal Food, Drug, and Cosmetic Act to ensure that consumers can make informed decisions in choosing between meat products such as beef and imitation meat products, and for other purposes,” Introduced; Referred to Committee on Energy and Commerce and Committee on Agriculture (October 28, 2019)
H.R.4874 “To amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced; Referred to Committee on Agriculture, Committee on Financial Services, and Energy and Commerce (October 28, 2019)
S.2107 “Protecting America's Food and Agriculture Act of 2019,” Referred to Committee on Homeland Security and Committee on Agriculture (October 28, 2019)
H.R.4820 “To amend the Department of Agriculture Reorganization Act of 1994 to provide assistance to manage farmer and rancher stress and for the mental health of individuals in rural areas, and for other purposes,” Introduced; Referred to House Committee on Agriculture (October 23, 2019)
H.R.4816 “To amend the Commodity Exchange Act to modify provisions relating to whistleblower incentives and protection, and for other purposes,” Introduced; Referred to Committee on Agriculture and Committee on Oversight and Reform (October 23, 2019)
H.R.4813 “To prohibit large platform utilities from being a financial institution or being affiliated with a person that is a financial institution, and for other purposes,” Introduced; Referred to Committee on Financial Services and Committee on Agriculture (October 23, 2019)
H.R.4642 “Community Broadband Mapping Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (October 22, 2019)

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 
S.2692 “A bill to amend the Richard B. Russell National School Lunch Act to improve direct certification, and for other purposes,” Introduced (October 24, 2019)
S.2695 “A bill to authorize the Secretary of Agriculture to provide for the defense of United States agriculture and food through the National Bio and Agro-Defense Facility, and for other purposes,” Introduced (October 24, 2019)
S.2704 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced (October 24, 2019)

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