Agricultural Law Weekly Review - October 24, 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:

Invasive Species: USDA Announces Plum Pox Virus Eradicated in U.S.

On October 17, 2019, U.S. Department of Agriculture (USDA) Under Secretary for Marketing and Regulatory Programs Greg Ibach announced the elimination of Plum Pox Virus (PPV) within the United States.  PPV is a viral disease-causing deformities and decay in stone fruits such as peaches, nectarines, apricots, almonds, cherries, and plums, which typically exhibit severe symptoms.  PPV can also infect popular garden items including tomatoes, peas, petunias, and zinnias.  According to the USDA, while PPV does not kill trees and is not harmful to humans or animals, it lowers fruit production and marketability, causing economic damage to the stone fruit industry.  First detected in 1999 in Pennsylvania, PPV was later found in Michigan and New York in 2006.  USDA’s announcement of the nationwide eradication arrives on the heels of a final quarantine removal in Orange and Ulster Counties in New York.  USDA states that its Animal and Plant Health Inspection Service (APHIS) maintains cooperation with Canada and continues to monitor and regulate stone fruit-producing states to prevent further introduction of PPV into the United States.  

Industrial Hemp/Cannabis: California Conforms Its Industrial Hemp Law to 2018 Farm Bill

On October 12, 2019, California Governor Gavin Newsom signed into law Senate Bill No. 153 amending Sections 81000-81015 of California’s Food and Agriculture Code, dealing with industrial hemp, to conform California law to the 2018 Farm Bill provisions on industrial hemp.    Before May 1, 2020, the California Department of Food and Agriculture must submit a hemp regulation plan to USDA as required by Section 10113 of the 2018 Farm Bill.  Notable in the new California statutory scheme is Section 81006(c)’s strict prohibition on cultivating industrial hemp on a premise licensed to cultivate cannabis.  Industrial hemp, regardless of THC content, cultivated on such premises shall be considered cannabis for all California regulatory purposes.  This bright-line rule is a decisive measure in the regulatory dilemma posed by potential cross-pollination between genetically compatible plants deemed “cannabis” and those deemed “industrial hemp” under state regulatory schemes. 

Food Policy: Global Agricultural Productivity Report Analyzes Critical World Benchmarks

On October 15, 2019, Virginia Tech’s College of Agriculture and Life Sciences issued a Global Agricultural Productivity Report (“GAP Report”) concluding that global agricultural productivity is growing annually by 1.63%, one percentage point less than the estimated 1.73% needed to sustainably produce food, feed, fiber and bioenergy for ten billion people by 2050.  Productivity growth is presently strong in China and South Asia, but slowing in North America, Europe, and Latin America.  The report notes an average annual productivity rate of 1 % in low-income countries, which also have high rates of food insecurity, malnutrition, and rural poverty.  This is short of the United Nations Sustainable Development Goal of doubling productivity of the lowest-income farmers by 2030.  The GAP Report was issued in connection with the 2019 World Food Prize symposium held in Des Moines, IA, titled “Pax Agricultura: Peace Through Agriculture.”  Due to widespread adoption of improved agricultural technologies and best farm management practices, especially in high-income countries, global agricultural output has increased by 60 percent, while global cropland has increased by just 5 percent, during the past 40 years. Between 1980 and 2015, productivity gains led to a 41 percent decrease in the amount of land used in U.S. corn production, irrigation water use declined 46 percent, greenhouse gas emissions declined 31 percent, and soil erosion declined (tons of soil loss per acre) by 58 percent.  The report, however, contrasts those improvements with what it terms “productivity gaps” between higher and lower income countries and outlines strategies for accelerating productivity to achieve an increase in crop and livestock outputs while using existing, or less, land, labor, fertilizer, capital, and livestock.

Biofuels: EPA Seeks Comment on Renewable Fuels Volumes

On October 15, 2019, the U.S. Environmental Protection Agency (EPA) announced a Supplemental Notice of Proposed Rulemaking regarding its July 29, 2019, proposed rule Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021 (84 FR 36762).  With this supplemental notice, EPA requests comment on adjustments to “annual renewable fuel percentage” calculations, which are used to determine the amounts of renewable fuel required to be blended into fuel produced by parties subject to the Renewable Fuel Standard (RFS) program.  While EPA specifies that this notice leaves the proposed 2020 and 2021 volume standards unchanged, it seeks comment on 2020 projected volumes of exempted diesel and gasoline fuels from small refinery exemptions.  Because EPA expects to permit “partial exemptions in appropriate circumstances,” it intends to use these projected volumes, informed by the Department of Energy’s recommended “three-year average of relief,” to determine the calculation of renewable fuel percentages.  EPA will hold a public hearing in Ypsilanti, Michigan on October 30, 2019, and intends to finalize the rule before the end of 2019.  Comments may be submitted following the hearing until November 29, 2019, at Regulations.gov Docket ID No. EPA–HQ–OAR–2019–0136.

 Pesticides: EPA Opens Comment Period on Paraquat Dichloride

On October 16, 2019, the U.S. Environmental Protection Agency (EPA) posted notice in the Federal Register of the available comment period for the registration review of Paraquat Dichloride Draft Human Health and Ecological Risk Assessments (84 FR 55314).  Paraquat dichloride, also known as Gramoxone, is an herbicide widely used to control weeds and defoliate crops before harvest.  Because paraquat is highly toxic to humans, all paraquat products in the U.S. are registered as Restricted Use Pesticides (RUPs) and may only be purchased and used by trained certified applicators.  To ensure continuing pesticide safety and registration based on “current scientific and other knowledge,” EPA conducts periodic reviews of pesticide registrations.  As part of its review process, EPA seeks public comment on its draft assessment of risks to human health and the environment.  Interested parties can comment on the Federal Register or Regulations.gov Docket ID: EPA-HQ-OPP-2011-0855 until December 16, 2019.

From National Ag Law Experts:

Paul Goeringer, Baltimore City Food Truck Ordinance Is Constitutional (October 22, 2019)

Brigit Rollins, Fish Out of Water: U.S. Army Corps Shellfish Permit Ruled Unlawful (October 16, 2019)

Penn State Research:

Matthew Carroll, Biological Material Boosts Solar Cell Performance (October 21, 2019)

Jeff Mulhollem, Embracing Sustainable Practices Would Help Some Winery Tasting Rooms Stand Out (October 21, 2019)

Pennsylvania General Assembly:

HB 1950 “An Act amending the act of July 10, 1981 (P.L.234, No.76), known as the Donated Food Limited Liability Act, further providing for donor immunity and for charitable or religious organization immunity,” Referred to Agriculture and Rural Affairs (October 21, 2019)

Pennsylvania Executive Agencies—Actions and Notices:

Department of Agriculture

“Commonwealth Specialty Crop Block Grant Program; 2019-2020 Program Guidelines” (October 19, 2019)

Department of Labor and Industry

“Public Comment on the Proposed Vocational Rehabilitation Services Portion of the Commonwealth's Workforce Innovation and Opportunity Act Combined State Plan for 2020—2024” (October 19, 2019)

Department of Transportation

“Contemplated Sale of Land No Longer Needed for Transportation Purposes” (October 19, 2019)

Susquehanna River Basin Commission

“Actions Taken at September Meeting” (October 19, 2019)

Pennsylvania Department Of Agriculture:

“Pennsylvania Convenes Inaugural Meeting of Ag Business Development Center Advisory Committee” (October 22, 2019)

“PA Department of Agriculture Issues Findings on September York Fair Accident” (October 16, 2019)

U.S. House Agriculture Committee Actions:

H.R.4773 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to direct the Secretary of Agriculture to make grants for the purpose of improving the farm management knowledge and skills of livestock producers,” Referred to the House Committee on Agriculture (October 21, 2019)

H.R.4772 “To provide for the protection of proprietary information provided to the Commodity Futures Trading Commission, and for other purposes,” Referred to the House Committee on Agriculture (October 21, 2019)

H.R.4770 “To revise and improve the advisory committees of the Commodity Futures Trading Commission,” Referred to the House Committee on Agriculture (October 21, 2019)

H.R.4767 “To promote innovation in financial services, and for other purposes,” Referred to the Committee on Financial Services and the Committee on Agriculture (October 21, 2019)

H.R.4765 “To amend the Food Security Act of 1985 to provide for certain payment limitations with respect to commodity programs, and for other purposes,” Referred to the House Committee on Agriculture (October 18, 2019)

H.R.4755 “To establish the Food Safety Administration to protect the public health by preventing foodborne illness, ensuring the safety of food, improving research on contaminants . . . .” Referred to the Committee on Energy and Commerce and the Committee on Agriculture (October 18, 2019)

H.R.4714 “To prioritize funding for an expanded and sustained national investment in agriculture research,” Referred to the Committee on Agriculture and the Committee on the Budget (October 17, 2019)

H.R.4642 “Community Broadband Mapping Act,” Introduced (October 17, 2019)

H.R.4696 “To provide for cooperation between the Commodity Futures Trading Commission and foreign regulators,” Referred to the House Committee on Agriculture (October 16, 2019)

H.R.4684 “To amend the Child Nutrition Act of 1966 and the Richard B. Russell National School Lunch Act to make breakfasts and lunches free for all children, and for other purposes,” Referred to the Committee on Education and Labor, and the Committees on Agriculture, and Science, Space, and Technology (October 15, 2019)

  

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:

S.2609 “A bill to amend the Child Nutrition Act of 1966 and the Richard B. Russell National School Lunch Act to make breakfasts and lunches free for all children, and for other purposes,” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (October 16, 2019)

S.2599 “A bill 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,” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (October 15, 2019)

Federal Executive Agencies—Actions and Notices:

Agriculture Department

“Departmental Freedom of Information Act Regulations,” Rule (October 21, 2019)

Agricultural Marketing Service

“National Organic Program: Request for an Extension of a Currently Approved Information Collection,” Notice (October 17, 2019)

“National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances per October 2018 NOSB Recommendations (Crops and Handling),” Proposed Rule (October 18, 2019)

“Fruit and Vegetable Industry Advisory Committee (FVIAC): Notice of Intent To Renew Charter and Call for Nominations,” Notice (October 22, 2019)

Animal and Plant Health Inspection Service

“Changes to the Chronic Wasting Disease Herd Certification Program Standards,” Notice (October 16, 2019)

Environmental Protection Agency

“Definition of “Waters of the United States”-Recodification of Pre-Existing Rules,” Rule (October 22, 2019)

“Clean Water Act Methods Update Rule for the Analysis of Effluent,” Proposed Rule (October 22, 2019)

Federal Railroad Administration

“Notice of Funding Opportunity for Railroad Trespassing Enforcement Grant Program,” Notice (October 22, 2019)

Fish and Wildlife Service

“Endangered and Threatened Wildlife and Plants; Endangered Species Status for Barrens Topminnow,” Rule (October 21, 2019)

Food and Nutrition Service

“Revision of Categorical Eligibility in the Supplemental Nutrition Assistance Program (SNAP); Reopening of Comment Period,” Proposed Rule (October 18, 2019)

Internal Revenue Service

“Election To Take Disaster Loss Deduction for Preceding Year,” Rule (October 16, 2019)

Natural Resources Conservation Service

“Adoption of Another Agency's Final Environmental Impact Statement To Implement the Feral Swine Eradication and Control Pilot Program,” Notice (October 17, 2019)

Rural Business-Cooperative Service

“Inviting Applications for Agriculture Innovation Demonstration Center Grants,” Notice (October 16, 2019)

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

“PA Receives Prestigious, Independent Certification for its Forest System” (October 20, 2019)

“Corteva Rewards Farmers for Climate-Smart Ag” (October 18, 2019)

“Crop Insurance Deadline Nears in Pennsylvania” (October 18, 2019)

“Petition Drive Supports Bringing Whole Milk Back to School” (October 18, 2019)

“Rural Businesses, Professionals Face Limited Broadband Access” (October 17, 2019)

“Farmers: New Trump Ethanol Proposal Reneged on Previous Deal” (October 16, 2019)

“Northumberland County Tree Farm Provides White House Christmas Tree” (October 16, 2019)

“Opinion: How US Foreign Aid Boosts the Economy Back Home” (October 15, 2019)

“US-China Truce Leaves Big Issues for Later” (October 15, 2019)

“USDA Invests $152m to Improve Broadband Service” (October 15, 2019)

“FDA Gearing Up for ‘New Era of Smarter Food Safety’” (October 15, 2019)

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