Friday, October 11, 2019

Agricultural Law Weekly Review - September 26, 2019

Written by: 
Jackie Schweichler—Staff Attorney

Audry Thompson—Research Assistant


The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Agricultural Labor: Department of Labor Updates H-2A Recruiting Requirements

On September 20, 2019, the U.S. Department of Labor (DOL) announced the publication of a final rule lifting a requirement that employers seeking H-2A worker certification advertise available job openings in print newspapers (20 CFR 655).  In accordance with the Immigration and Nationality Act (INA), employers seeking to hire foreign workers on H-2A nonimmigrant provisions must demonstrate the lack of “able, willing, and qualified” candidates within the United States.  This “labor market test” required employers to place at least two separate print advertisements in an area newspaper with one appearing on a Sunday (20 CFR 655.151).  The new rule, effective October 21, 2019, removes the newspaper posting requirement and shifts the labor market test to the DOL website,  DOL will use information from employer-submitted job orders and H-2A applications to post available positions on the website, eliminating concerns about employers with limited access or religious objections to the internet.  U.S. Secretary of Agriculture Sonny Perdue issued a statement calling the rule a “common-sense” and “cost-effective” measure to modernize the H-2A process. 

Dairy Policy: U.S. Department of Agriculture Extends Enrollment Period for Dairy Margin Coverage Program 

On September 19, 2019, the U.S. Department of Agriculture (USDA) Farm Service Agency announced an extended enrollment period for the 2019 Dairy Margin Coverage (DMC) program.  The new enrollment deadline is September 27, 2019. The DMC program offers protection to dairy producers “when the difference between the all-milk price and the average feed cost (the margin) falls below a certain dollar amount selected by the producer.”  The DMC program was authorized in the 2018 Farm Bill to replace the Margin Protection Program for Dairy (MPP).  The new program expands the offerings of coverage levels along with the covered percentage of production history.  Dairy producers who previously purchased coverage through the former MPP program may choose to receive a cash refund for 50 percent of their repayment amount or can elect to receive DMC credit for 75 percent of premiums previously paid to the MPP program.  

Industrial Hemp / Cannabis: U.S. District Court Rules That Smokable Hemp Ban May Be Unconstitutional
On September 13, 2019, the U.S. District Court for the Southern District of Indiana Indianapolis Division granted a preliminary injunction enjoining an Indiana law that criminalizes “smokable hemp” (C.Y. Wholesale, Inc., et al. v. Eric Holcomb, Governor, No. 1:19-cv-02659-SEB-TAB).    The Indiana law, Senate Enrolled Act No. 516 (the Act), removes “smokable hemp” from the definition of “hemp” (section 28 (2)) and criminalizes the possession, manufacture, and delivery of smokable hemp.  The suit was brought by several businesses involved in the manufacture and sale of smokable hemp.  According to the complaint, the Act unconstitutionally changes the definition of hemp in a way that conflicts with the federal definition established in the 2018 Farm Bill.  The court found that the plaintiffs showed a likelihood to succeed based on the merits of the case, and without an injunction, the plaintiffs would be subject to irreparable harm. 

Animal Welfare: North American Meat Institute Releases New Animal Handling Guidelines 

On September 24, 2019, the North American Meat Institute (NAMI) released an audit guide and recommended animal handling guidelines for the meat industry. The guide is called Recommended Animal Handling Guidelines & Audit Guide: A Systematic Approach to Animal Welfare.  According to NAMI, the organization encourages members of the meat industry to voluntarily follow animal welfare guidelines and to participate in self-auditing programs.  NAMI states that the changes in this edition include sections on how to manage non-ambulatory animals, justifies the 100 head sample size, and allows handlers to establish when to provide water to animals.  The stated purpose of the guide is to promote animal welfare and improve animal handling. 

Antimicrobial Use: FDA Releases Guidance to Drug Sponsors on Voluntary Changes to Antimicrobial Drug Status

On September 23, 2019, the U.S. Food & Drug Administration released draft guidance entitled, Recommendations for Sponsors of Medically Important Antimicrobial Drugs Approved for Use in Animals to Voluntarily Bring Under Veterinary Oversight All Products That Continue to be Available Over-the-Counter (Guidance 263).  Guidance 263 was issued in response to FDA’s 2018 plan to reduce the overuse of antimicrobial drugs in order to limit the growth of antimicrobial-resistant bacteria.  Under this new guidance, FDA recommends that antimicrobial drug sponsors voluntarily change the marketing status of “medically important” antimicrobial drugs from over-the-counter status to prescription marketing status.  According to the FDA announcement, once Guidance 263 is finalized, medically important antimicrobials will only be used as necessary to prevent disease and must be administered by licensed veterinarians.  Interested stakeholders may submit comments until December 24, 2019. 

From National Ag Law Experts:

Tiffany Dowell Lashmet, 2019 USDA NASS State and County Cash Rent Survey Results (September 23, 2019)

Shefali Sharma, Nature-based Solutions for Livestock (September 23, 2019) 

Federal Executive Agencies—Actions and Notices:

Agency for International Development

Agricultural Marketing Service

Official United States Standards for Grain,” Final Notice (September 25, 2019)

Department of Agriculture

“Improving Customer Experience,” Notice, Comment Period (September 23, 2019)

Farm Credit Administration

Food and Drug Administration

Animal Feed Regulatory Program Standards,” Notice; Comment Period (September 20, 2019)

Labor Department

Migrant and Seasonal Farmworker (MSFW) Monitoring Report and Complaint/Apparent Violation Form, Notice of Availability; Request for Comments”  (September 25, 2019)

“Equal Employment Opportunity and Diversity,” Policy Statement (September 20, 2019)

Rural Utilities Service 

House Agriculture Committee Actions: 

H.R.4482 “To increase the number of CBP Agriculture Specialists and support staff in the Office of Field Operations of U.S. Customs and Border Protection, and for other purposes,” Introduced (September 24, 2019)

H.R.4466 “To amend the Food, Conservation, and Energy Act of 2008 to make improvements to the food safety education program carried out under such Act, and for other purposes,” Introduced (September 24, 2019)

H.R.4297 “Enhance Access To SNAP Act of 2019,” Introduced (September 12, 2019)

Senate Agriculture, Nutrition, and Forestry Committee Actions: 

S.2529 “A bill to amend the Commodity Exchange Act and the Securities Exchange Act of 1934 to modify provisions relating to whistleblower incentives and protection, and for other purposes,” Introduced (September 23, 2019)

S.2501 “A bill to amend the Richard B. Russell National School Lunch Act to improve the child and adult care food program,” Introduced (September 18, 2019)

S.2452 “Climate Stewardship Act of 2019,” Introduced (September 10, 2019)

Pennsylvania Executive Agencies—Actions And Notices:

Milk Marketing Board

“Transactions Between Dealers and Producers; Payment,” Proposed Rulemaking (September 21, 2019)

State Conservation Commission

Susquehanna River Basin Commission

“Review and Approval of Projects,” Proposed Rulemaking (September 21, 2019)

Pennsylvania Legislative Actions:

SB 314  “Addressing Pennsylvania's Rural Hospital Crisis: An Act establishing the Pennsylvania Rural Health Redesign Center Authority and the Pennsylvania Rural Health Redesign Center Fund,” Laid on Table in House (September 23, 2019)

HB 915 “Milk Hauling Legislation: An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for permit for movement during course of manufacture; and, in powers of department and local authorities, further providing for power of Governor during emergency,” Laid on Table with Governor’s veto message (September 18, 2019)

HB 1808 “Advanced Recycling Legislation: An Act amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, in general provisions, further providing for definitions; and making editorial changes,” referred to Environmental Resources and Energy (September 16, 2019)

Pennsylvania Department of Agriculture:

Penn State Research:

A'ndrea Elyse Messer, Model Helps Choose Wind Farm Locations, Predicts Output (September 23, 2019)

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

“Solvency on the Farm” (Sept. 20, 2019)

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Review last month’s biggest legal developments in agriculture in the August 2019 Agricultural Law BriefIf you’d like to receive this update via email, check out our website and subscribe!

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