Agricultural Law Weekly Review —January 16, 2020

Written by: 
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant

The Agricultural Law Weekly Review provides an update of recent agricultural law developments from the local, state, national, and international levels.  Subscribe to the ALWR at pennstateaglaw.com. 

International Trade:  United States and China Sign Agreement Impacting Agricultural Exports To China

On January 15, 2020, The United States and the People’s Republic of China executed an agreement titled, “Economic and Trade Agreement Between the United States of America and the People’s Republic of China,” which serves as a settlement agreement of certain enforcement actions initiated by the White House under authority of Section 301 of the Trade Act of 1974.  According to the February 27, 2019 testimony of United States Trade Representative (USTR) Robert Lighthizer before the House and Ways Committee, such an agreement does not require Congressional approval as would other trade agreements. The USTR website contains the ninety-six page agreement text as well as Fact Sheets devoted to various topics addressed in the agreement, including an eight-page Fact Sheet titled, “Agriculture and Seafood Related Provisions” and unique individualized Fact Sheets on the following topics: Agricultural Biotechnology, Animal Feed, Seafood, Dairy and Infant Formula, Horticultural Products, Meat, Poultry and Live Breeding Cattle, Pet Food and Rice.   

Environmental Policy:  White House Proposes Landmark National Environmental Policy Act Regulation Amendments 

On Jan. 9, 2020, the White House Council on Environmental Quality (CEQ) announced the publication of a notice of proposed rulemaking updating its 1978 regulations for implementing the procedural provisions of 1969’s National Environmental Policy Act (NEPA).  85 FR 1684.  Among other things, NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed.  Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from involved federal agencies, are the most visible NEPA requirements.  CEQ states that the average length of an EIS is 600 pages and the average time for federal agencies to conduct NEPA reviews is four and one-half years.  CEQ maintains a comprehensive website devoted to NEPA which includes a detailed factsheet outlining the extensive proposed changes.  Public comments on the proposed new rule must be submitted by March 10, 2020. Public hearings on the proposed rulemaking will be held on February 11, 2020, in Denver, Colorado, and on February 25, 2020, in Washington, D.C.  

Water Quality: Maryland Governor Directs Maryland Attorney General to Sue Pennsylvania and EPA over Chesapeake Bay Pollution Reduction

On January 8, 2020, Maryland Governor Larry Hogan issued a press release and delivered a letter to Maryland Attorney General Brian E. Frosh specifically directing him “to take two legal actions: (1) commence litigation against the Commonwealth of Pennsylvania for repeatedly falling short of necessary pollution reduction goals; and (2) commence litigation against the U.S. Environmental Protection Agency (EPA) for failing to enforce the Chesapeake Bay Total Maximum Daily Load (TMDL).”  To date, there has been no public response from Attorney General Frosh.  The Maryland Attorney General is an independent elected official who does not directly report to the Governor of Maryland but does provide legal counsel to the Office of the Governor and the agencies of the Executive Branch.  Both Governor Hogan and Attorney General Frosh were re-elected to second four-year terms in 2018, however Governor Hogan is a Republican and Attorney General Frosh is a Democrat.   

Biotechnology: USDA, FDA, and EPA Launch Unified Website for Biotechnology Regulation

On January 9, 2020, the U.S. Department of Agriculture (USDA), the Food and Drug Administration (FDA), and the Environmental Protection Agency (EPA), announced the launch of the Unified Website for Biotechnology Regulation.  It houses in one place all federal laws and regulations, as well as agency guidance and FAQs, from the three principal federal agencies charged with regulating agricultural biotechnology products under the 1986 U.S. Coordinated Framework for the Regulation of Biotechnology and its 1994, 2017 and 2018 amendments.  While the website is not for “regulatory submissions by product developers,” it is intended to  serve as an informational hub, allow users to submit questions about agricultural biotechnology, and to educate consumers about the safe use of biotechnology innovations.

Packers and Stockyards Act: USDA Proposes Long-Delayed Change to Packers and Stockyards Act Regulations

On January 13, 2020, USDA’s Agricultural Marketing Service (AMS) announced the proposal of a new rule establishing criteria for USDA’s determination of whether a packer, swine contractor or live poultry dealer violated Section 202(b) of the Packers and Stockyards Act (P&S Act) by giving an “undue” or “unreasonable” preference or advantage to a particular person or locality. 85 FR 1771.  This P&S Act regulation amendment is required by the 2008 Farm Bill but 2010 and 2016 proposed rules were never finalized, initially due to legislative prohibition and subsequently due to lack of action.  Under the new proposed rule, USDA would consider whether preferences or advantages are based on cost, meeting competitors’ prices or other terms, or normal industry standards.  Public comments on the proposed new rule must be submitted by March 13, 2020. 

   

From National Ag Law Authorities & Sources: 

Tara Ritter, Shaping the Future of Energy in Murray County (January 13, 2020). 

Brigit Rollins, Making A Splash: Georgia, Florida Water Dispute Back to Supreme Court (January 8, 2020). 

Penn State Research & News:

Penn State Extension program to help private forest owners use prescribed fire (January 3, 2020).

Kristen Devlin, Innovation is widespread in rural areas, not just cities (January 2, 2020). 

Pennsylvania Department of Agriculture Press Releases:

104th PA Farm Show Invites Youth to Imagine the Opportunities, Promotes Careers in Agriculture (January 11, 2020). 

Lumberjack Demo Draws Crowds, Showcasing Hardwoods at 104th Pennsylvania Farm Show (January 11, 2020)

Department of Agriculture Announce Winners of the Spotted Lanternfly Calendar Contest (January 10, 2020). 

Pennsylvania Executive Agencies—Actions and Notices: 

Department of Agriculture

50 Pa.B. 204 “Temporary Order Designating Dangerous Transmissible Diseases” Notice (January 11, 2020). 

Department of Conservation and Natural Resources

50 Pa.B. 207 “Community Conservation Partnerships Program Grants Available” Notice (January 11, 2020). 

Pennsylvania Legislature

H.B. 523 “An Act amending the act of June 13, 1836 (P.L.551, No.169), referred to as the General Road Law, further providing for repair of private roads” Re-committed to Appropriations [House] (January 13, 2020). 

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’” Re-committed to Appropriations [House] (January 13, 2020). 

H.B. 1003 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in dams, bar racks and migration devices, further providing for marking of dams” Removed from table [House] (January 13, 2020). 

H.B. 1187 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in special licenses and permits, further providing for Lake Erie fishing permits” Removed from table [House] (January 13, 2020). 

H.B. 2198 “A Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, in restrictions on legislative power relating to legislation, providing for interstate compacts” Referred to State Government [House] (January 10, 2020). 

H.B. 2193 “An Act amending the act of December 22, 1983 (P.L.327, No.85), known as the Auctioneer Licensing and Trading Assistant Registration Act, providing for horses sold at auction” Referred to Agriculture and Rural Affairs [House] (January 10, 2020). 

H. Res. 654 “A Resolution recognizing February 25, 2020, as "World Spay Day" in Pennsylvania” Referred to Agriculture and Rural Affairs [House] (Jan. 10, 2020). 

H. Res. 653 “A Resolution designating the week of March 16 through 22, 2020, as "Maple Producers Week" in Pennsylvania” Referred to Agriculture and Rural Affairs [House] (Jan. 10, 2020).

Federal Executive Agencies—Actions and Notices: 

Agriculture Department

85 FR 1137 “Submission for OMB Review; Comment Request [Tart Cherries Grown in the States of MI, NY, PA. OR, UT, WA, and WI]” Notice (January 9, 2020). 

Agricultural Marketing Service 

85 FR 1771 “Undue and Unreasonable Preferences and Advantages Under the Packers and Stockyards Act” Proposed Rule—Comment Period (January 13, 2020). 

85 FR 2104 “Submission for OMB Review; Comment Request [2019 Market Facilitation Program Application]” Notice (January 14, 2020). 

85 FR 2104 “Submission for OMB Review; Comment Request [Tuberculosis, Animal Health Protection Act]” Notice (January 14, 2020). 

Commodity Credit Corporation

85 FR 1731 “Market Access Program” Rule (January 13, 2020). 

Federal Emergency Management Agency

85 FR 1172 “Proposed Flood Hazard Determinations” Notice—Comment Period (January 9, 2020). 

85 FR 1173 “Changes in Flood Hazard Determinations” Notice (January 9, 2020). 

Fish and Wildlife Service

85 FR 2143 “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review of Grizzly Bear” Notice (January 14, 2020). 

International Boundary and Water Commission, United States and Mexico

85 FR 1182 “United States Section; Notice of Availability of the Final Environmental Assessment (EA) and Finding of No Significant Impact for the Continued Implementation of the River Management Plan for the Rio Grande Canalization Project” Notice (January 9, 2020). 

Small Business Administration

85 FR 1783 “SBA Supervised Lenders Application Process” Proposed Rule—Comment Period (January 13, 2020)

Susquehanna River Basin Commission

85 FR 1189 “Public Hearing [February 6, 2020]” Notice (January 9, 2020). 

85 FR 1190 “Grandfathering (GF) Registration Notice [December 1-21, 2019]” Notice (January 9, 2020).

U.S. Codex Office

85 FR 1137 “Codex Committee Meeting of the Codex Committee on Food Additives” Notice (January 9, 2020). 

U.S. House Agriculture Committee Actions: 

S.1982 “Save Our Seas 2.0 Act” Passed Senate—Referred to Committees on Agriculture; Natural Resources; Foreign Affairs; Energy and Commerce; Science, Space, and Technology; and Transportation and Infrastructure (January 13, 2020). 

H.R.5435 “American Public Lands and Waters Climate Solution Act of 2019” Referred to Subcommittee on Conservation and Forestry (January 13, 2020).

H.R.5436 “To amend the Agriculture Improvement Act of 2018, with respect to enforcement of animal fighting ventures prohibition in the territories, and for other purposes” Referred to Subcommittee on Livestock and Foreign Agriculture (January 13, 2020).

H.R.5474 “Shawnee Wilderness Designation Act” Referred to Subcommittee on Conservation and Forestry (January 13, 2020).

H.R.5484 “COLA's Don't Count Act of 2019” Referred to Subcommittee on Nutrition, Oversight, and Department Corrections (January 13, 2020).

H.R.5506 “Hawaii Invasive Species Protection Act” Referred to Subcommittee on Biotechnology, Horticulture, and Research (January 13, 2020).

H.R.5587 “To amend the Federal Food, Drug, and Cosmetic Act with respect to the regulation of hemp-derived cannabidiol and hemp-derived cannabidiol containing substances” Referred to Committees on Agriculture & Energy and Commerce (January 13, 2020).

H.R.5563 “Opportunities for Fairness in Farming Act of 2020” Referred to the House Committee on Agriculture (January 9, 2020). 

H.Res.775 “Recognizing and honoring Smokey Bear's 75 years of service to the United States and commitment to preventing unwanted human-caused wildfires and promoting forest health” Referred to the Subcommittee on Conservation and Forestry (January 9, 2020).

H.R.5430 “United States-Mexico-Canada Agreement Implementation Act” Senate-Committee on Finance, ordered to be reported without amendment favorably (January 7, 2020).

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

No new actions January 1-7, 2020

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

January 8-14, 2020 Top Tweets:

“Concerns Over Phase One Trade Agreement's Impact on Demand” (January 12, 2020).

“USMCA Moving Forward, Timeline Uncertain” (January 8, 2020).

“Pork Industry Says New Plant-based Impossible Pork Violates Law” (January 7, 2020).

“Grange Presents, Rural Broadband Program At Farm Show” (January 7, 2020). 

“USDA Invites Input on Conservation Easement Rule” (January 8, 2020). 

“Farmers Optimistic About the Future, Even as Their Perception of Current Economic Conditions Drops” (January 7, 2020).

“NPPC Responds to Pork Antibiotics Story on CBS” (January 7, 2020).

“Congress’ New Year’s Resolution Should be Ag Labor Reform” (January 8, 2020).  

“Japan Proposes Subsidy Program To Increase Beef & Dairy Production” (January 7, 2020). 

“Senate Panel Advances USMCA With Bipartisan Vote” (January 7, 2020). 

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Review last month’s biggest legal developments in agriculture in the December 2019 Agricultural Law Brief.  If you’d like to receive this monthly update via email, check out our website and subscribe.

Agricultural Law Weekly Review—January 10, 2019

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:

Animal Welfare: SCOTUS Denies Challenge to Massachusetts Animal Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general challenging Massachusetts’s Prevention of Farm Animal Cruelty Act (PFACA) (Docket No. 22O149).  PFACA prohibits the confinement of certain poultry, caves, and hogs “in a cruel manner” within Massachusetts.  The law also prohibits the selling within Massachusetts of shell eggs, whole veal meat, or whole pork meat that has been produced from animals “confined in a cruel manner.” The attorneys general had alleged that by attempting to regulate farming in other states, PFACA violates the Commerce Clause.  PFACA is scheduled to go into effect on January 1, 2022.

Animal Welfare: SCOTUS Denies Challenge to California Egg Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general seeking to block California’s egg law (Docket No. 22O148).  Enacted by voters in 2008, and later modified, 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.  The attorneys general had alleged that the California law violated the commerce clause and had cost consumers up to $350 million annually since taking effect in 2015.

Animal Welfare: Michigan Gov. Vetoes Restrictions on Sales of Shell Eggs

On December 21, 2018, Michigan Governor Rick Snyder vetoed legislation that would have attached animal confinement restrictions to the sale of shell eggs (SB 660).  Under the proposed law, a business would have been prohibited from knowingly selling shell eggs produced from hens not housed in compliance with Michigan’s Animal Industry Act (AIA).  Accordingly, AIA prohibits the confinement of veal calves, gestating sows, and egg-laying hens “in a way that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.”

Transportation: DOT Exempts Livestock Haulers from ELD Requirement

On December 21, 2018, the National Pork Producers Council (NPPC) reported that the U.S. Department of Transportation has exempted livestock haulers from regulations requiring the use of electronic logging devices (ELDs) in their trucks.  According to NPPC, such ELDs, “record driving time, engine hours, vehicle movement and speed, miles driven and location information.” Because of the exemption, livestock haulers may continue use paper logs to record required information.  According to the Federal Motor Carrier Safety Administration, the exemption will remain in effect “until further notice.”

Packers and Stockyards Act: Court Finds Withdraw of Farmer Fair Practices Rules Proper

On December 21, 2018, the U.S. 8^th Circuit Court of Appeals denied a challenge to the U.S. Department of Agriculture’s (USDA) withdrawing of the Farmer Fair Practices Rules (Organization for Competitive Markets v. USDA, No. 17-3723).  In 2016, USDA published a interim rule under the Packers and Stockyards Act (PSA) known as the Farmer Fair Practices Rules (FFPR).  Under the FFPR, USDA was to no longer require a showing that an unfair practice had harmed the entire market in order to prove a violation of PSA.  Subsequently, in 2017, USDA withdrew the interim rule.  According to the court, USDA acted properly in its action to withdraw the interim rule.

Food Labeling: BPI Permitted to Refer to Lean Finely Textured Beef as “Ground Beef”

On December 28, 2018, Feedstuffs reported that the U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) has granted Beef Products Inc. (BPI) permission to refer to its lean finely textured beef  product as “ground beef.” According to an FSIS spokesperson, the agency “has determined that Beef Products Inc. product meets the regulatory definition of ground beef under the law in 9 CFR 319.15(a) and may be labeled accordingly.” Relatedly, in 2012, ABC News published a series of reports that referred to BPI’s lean finely textured beef product as “pink slime.” Subsequently, in 2012, BPI closed three production facilities and filed a defamation lawsuit against ABC News.  In June of 2017, the parties settled for an undisclosed amount. 

Food Labeling: Court Rejects Claim that “Almond Milk” is Mislabeled

On December 20, 2018, the U.S. 9^th Circuit Court of Appeals affirmed a lower court’s dismissal of a claim that an almond beverage had been mislabeled as “almond milk” (Painter v. Blue Diamond Growers 2:17-cv-02235).  The plaintiff alleged that the almond beverage should have been labeled as “imitation milk” because the product is nutritionally inferior to dairy milk.  According to the 9^th circuit, no jury would conclude that the product is inferior under the Food and Drug Administration’s definition of nutritional inferiority (21 C.F.R. § 101.3(e)(4)).  Additionally, the 9^th circuit affirmed the lower court’s determination that no “reasonable consumer would ‘assume that two distinct products would have the same nutritional content.’”

From National Ag Law Experts:

“Shutdown Significantly Impacting IRS and USDA”,  Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (January 4, 2019)

“Government shutdowns - Who dreamed up this crazy idea?”, Kenneth D. Ackerman, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 4, 2019)

Pennsylvania Case Law:

Corsnitz v. Department of Environmental Protection, No. 450 CD18_1-4-19, (Commonwealth Court quashed appeal as untimely because it was filed 33 days after the Environmental Hearing Board issued an order upholding a determination that a farm’s wetlands had been disturbed without a permit) (Filed January 4, 2018)

Pennsylvania Actions and Notices:

State Conservation Commission

Access to odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

Pennsylvania Department of Agriculture:

“Agriculture Department to Showcase Pennsylvania Technology Innovation Start-ups During 2019 Farm Show”

“PA Department of Agriculture Announces Winners of the Spotted Lanternfly Calendar Contest”

Penn State Research:

“A 'bran' new way to preserve healthy food with natural ingredients” – Penn State News

AgLaw HotLinks:

“China allows first-ever U.S. rice imports ahead of trade talks” – Reuters

“Farm workers in California now eligible for overtime after 9.5 hours” – KSBY

“So the FDA and USDA will share oversight for cell-based meat… but what will this mean in practice?” – Food Navigator USA

“Democrats mull strategy to shape WOTUS rewrite” – E&E Daily

“DOL asked to keep H-2A newspaper ad requirement” – Feedstuffs

“Peterson Elected House Ag Chairman” – The Progressive Farmer      

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter     

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

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

Agricultural Law Weekly Review—December 6, 2018

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:

International Trade: U.S., Mexico, and Canada Sign New Trade Agreement

On November 30, 2018, U.S. President Donald Trump, Mexican President Enrique Peña Nieto, and Canadian Prime Minister Justin Trudeau formally signed a new bilateral trade agreement entitled the United States Mexico Canada Agreement—or USMCA.  The new trade agreement replaces the North American Free Trade Agreement which had been in effect since January 1, 1994.  According to a Trump administration press release, USMCA will help U.S. farmers by increasing access to the Canadian market for dairy products, egg, and poultry.  Additionally, the press release stated that U.S. dairy farmers will benefit through the elimination of Canada’s “Class 6” and “Class 7” programs which previously permitted “low-priced dairy products to undersell American dairy producers.” Before taking effect, USMCA must still be ratified by the legislatures of each of the three countries.

WOTUS: Washington Judge Vacates WOTUS Applicability Date

On November 28, 2018, a federal judge in the U.S. District Court, W.D. Washington vacated the U.S. Environmental Agency and U.S. Department of the Army (the agencies) addition of an applicability date to the 2015 Rule defining “waters of the United States” (Puget Soundkeeper Alliance v. Wheeler, Case 2:15-cv-01342-JCC).  On January 31, 2018, the agencies issued a final rule that added an applicability date to the 2015 Rule.  As a result, the 2015 Rule was not scheduled to become applicable until February 6, 2020.  According to U.S. District Judge John C Coughenour, however, the agencies violated the Administrative Procedure Act by excluding “relevant and important comments” before promulgating the 2015 Rule applicability date.  Therefore, the court ruled that the applicability date was unlawful and should be vacated nationwide.

Packers and Stockyards Act: USDA Issues Final Rule Eliminating GIPSA as Standalone Agency

On November 29, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register of a final rule eliminating the Grain Inspection, Packers, and Stockyards Administration (GIPSA) as a stand-alone agency (83 FR 61309).  According to USDA, GIPSA is the “agency that facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promotes fair and competitive trading practices for the overall benefit of consumers and American agriculture.” Under the final rule, GIPSA will no longer operate as a stand-alone agency, but instead become part of USDA's Marketing and Regulatory Programs.

Industrial Hemp: Pennsylvania Opens Application Process for 2019 Industrial Hemp Research Projects

On November 27, 2018, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing the availability of applications and guidelines regarding industrial hemp research permits for 2019.  Under Pennsylvania’s Industrial Hemp Research Pilot Program, research permits are only available to “institutions of higher education or to persons contracted with the department to grow industrial hemp for research purposes.” According to the press release, PDA is seeking to issue 60 industrial hemp research permits for 2019.  The deadline to submit permit applications is December 17, 2018.  PDA stated that successful applicants should expect to receive notification by January 4, 2019.

From National Ag Law Experts:

“Ohio Agricultural Law Blog--The Ag Law Harvests”, Ellen Essman and Evin Bachelor, Ohio State University Extension (December 4, 2018)

“Unanimous Supreme Court: ‘Critical Habitat’ Under Endangered Species Act Must Be Habitat”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog (December 3, 2018)

“Blockchain: Understand Before Signing Up”, Todd Janzen, Janzen Ag Law Blog (December 3, 2018)   

Pennsylvania Legislation:

HB 2752: Legislation to revise state fireworks law (Referred to House Agriculture and Rural Affairs Committee, November 27, 2018)

Pennsylvania Actions and Notices:

Department of Environmental Protection

Nutrient Credit Trading Program; actions

Pennsylvania Department of Agriculture:

“Pennsylvania State Horse Racing Commission Announces Breeders Fund Awards, Sire Stakes Eligibility Deadlines”

“PA Wine Board Seeking Grant Applications to Improve State’s Wine Industry”

Penn State Research:

“Penn State root research results in breeding of improved bean plants for Africa” – Penn State News 

AgLaw HotLinks:

“Companies launch plan to capture methane from hog manure lagoons” – The Washington Post

“Broadband For Farmland? Here's Why It Matters For America” – Forbes

“Surviving the dairy farm crisis” – Farm and Dairy

“Bayer to Cut 12,000 Jobs, Exit Vet Unit Amid Drag From Suits” – Bloomberg  

“Russia has emerged as an agricultural powerhouse” – The Economist

“Bankers say ag sector to face continued headwinds” – Beef

“UN agriculture chief urges ‘transformative changes’ to how we eat” – UN News       

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter     

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

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

Agricultural Law Weekly Review—February 8, 2018

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 February 1, 2018, the U.S. Environmental Protection Agency (EPA) announced that the DC Circuit Court of Appeals has extended the initial reporting date for certain farms formerly exempted from emission reporting requirements.  Previously, on April 11, 2017, the court vacated a rule that provided a complete agricultural exemption for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act as well as a partial agricultural exemption for reporting air emissions under the Emergency Planning and Community Right-to-Know Act.  As a result of the court’s latest action, 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.  EPA anticipates that the court will order the mandate on May 1, 2018.

Packers and Stockyards Act: Pennsylvania Department of Agriculture Assists Livestock Producers Following Nonpayment

On January 31, 2018, the Pennsylvania Department of Agriculture (PDA) provided guidance for Pennsylvania livestock producers who allegedly have not received payments for animals sold.  PDA stated that the department has recently received complaints of nonpayment regarding livestock sold through the Westminster Livestock Auction in Westminster, Maryland.  According to Agriculture Secretary Russell Redding, the U.S. Department of Agriculture’s Packers and Stockyards Division has jurisdiction over the matter.  As a result, affect livestock sellers have 60 days from the date of the transaction to file a valid claim with the Packers and Stockyards Division.  To assist the filing of claims, PDA provided the following information:

• Instructions on how to file a bond claim are available through USDA’s Agricultural Marketing Service website.
• To file a claim, contact the Eastern Regional Office of the Packers and Stockyards Division, part of the USDA’s Agricultural Marketing Service Fair Trade Practices Program, at 404-562-5840 or toll-free at 1-800-998-3447, or visit www.ams.usda.gov.

WOTUS: EPA and Army Add Applicability Date to WOTUS Rule

On February 6, 2018, the U.S. Environmental Protection Agency and the U.S. Department of the Army published notice in the Federal Register adding a February 6, 2020, applicability date to the “waters of the United States” (WOTUS) rule (83 FR 5200).  In 2015, the two agencies published WOTUS with an effective date of August 28, 2015.  On August 27, 2015, the U.S. District Court for the District of North Dakota enjoined the applicability of WOTUS in the 13 States challenging the rule in that court.  On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed WOTUS nationwide pending further action of the court.  Subsequently, on January 22, 2018, the U.S. Supreme Court (SCOTUS) held that the courts of appeals do not have original jurisdiction to review WOTUS challenges.  The agencies stated that because of the SCOTUS decision, the February 6, 2020, applicability date will enable the continued regulatory status quo as revisions to WOTUS are being considered.

Marketing Orders: USDA Announces Delay of California Federal Milk Marketing Order

On February 6, 2018, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register announcing a delay of the California Federal Milk Marketing Order (FMMO) rulemaking proceeding (83 FR 5215).  On September 22, 2015, USDA-AMS commenced a California FMMO hearing presided over by an Administrative Law Judge (ALJ).  Subsequently, on November 29, 2017, the Solicitor General of the United States petitioned the U.S. Supreme Court asserting that ALJs are “inferior officers” of the U.S., subject to the Appointments Clause of Article II of the Constitution. (Lucia v. Securities and Exchange Commission, No. 17-130 (U.S. January 12, 2018).  According to USDA-AMS, if the Court finds that ALJs are inferior officers of the U.S. rather than employees, the original appointment of the ALJ presiding over the California FMMO hearing would be brought into question.  As a result, USDA-AMS stated that it will “delay further proceedings in this FMMO rulemaking until the Court renders its decision in Lucia.”

Invasive Species: USDA Provides Pennsylvania Emergency Funding to Fight Spotted Lanternfly

On February 7, 2018, the U.S. Department of Agriculture (USDA) announced that the agency will be providing Pennsylvania with $17.5 million in emergency funding to help stop the spread of the spotted lanternfly.  The action is the result of an upsurge of the invasive species in Pennsylvania which saw the number of affected square miles increase from 174 in 2016, to approximately 3,000 in 2017.  As a result, USDA stated that it has been working with the Pennsylvania Department of Agriculture to develop an area-wide approach to fight the spotted lanternfly before the invasive species re-emerges this spring.  According to U.S. Rep. Glenn ‘GT’ Thompson (R-PA), the USDA funds will be used to help “the Commonwealth treat, gather data and perform the coordination needed to contain the spread of this devastating threat.”

Pennsylvania Legislation:

Appropriations

• HB 1917 Legislation to strengthen training and oversight of humane society police officers (Re-referred to Appropriations February 5, 2018) 

Environmental Resources and Energy (S)

• SB 15 Legislation addressing climate change (Referred to committee, January 26, 2018) 

Environmental Resources and Energy (H)

• HB 2034 Legislation to include the chemical element molybdenum in the labeling requirements for agricultural liming materials (Reported out of committee, February 5, 2018)
• SB 799 Legislation creating program for Pennsylvania municipalities and municipal separate storm sewer systems to meet Chesapeake Bay nutrient reduction mandates (Referred to committee, February 1, 2018) 

Tourism and Recreational Development (H)

• HB 2051 Legislation regarding tourism marketing and funding (Referred to committee, February 2, 2018) 

Pennsylvania Actions and Notices:

Delaware River Basin Commission

Public hearing and business meeting

Cases:

IN RE: DICAMBA HERBICIDES LITIGATION, United States Judicial Panel on Multidistrict Litigation (MDL No. 2820, Feb. 1, 2018)

IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION Kraft Foods Global, Inc., Kellogg Company, General Mills, Inc., and Nestlé USA, Inc., Appellants, U.S. Court of Appeals Third Circuit (No. 16-3795, Jan. 22, 2018)

AgLaw HotLinks:

• Perdue Unveils Farmers.gov, Interactive Website for Agricultural Producers –USDA
• Monsanto to hold free dicamba training sessions – Farm and Dairy
• Bankruptcy invigorates efforts to overhaul RFS – Southwest Farm Press
• Agriculture Secretary Perdue praises land grants, stresses importance of NAFTA – Delta Farm Press
• USDA Addresses Its Digital Divide With Farmers – Ag Web
• GM labelling will be no barrier to Plenish soybean oil uptake, says trade groups – Food Navigator
• Mobile processor promises new fiber opportunities for hemp farmers – Marijuana Business Daily
• Section 199 Loophole Will “Definitely See A Fix – Ag Professional
• Maple syrup producers could face new rules – Farm and Dairy      

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities.

Listen to our weekly Agricultural Law Podcast.

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Agricultural Law Weekly Review—April 28, 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:

Litigation: Court Rejects Contract Grower Claims against Pilgrim’s Pride

On April 22, 2016, the United States District Court, E.D. Texas, Marshall Division granted summary judgement and dismissed claims brought by more than 200 poultry growers alleging that Pilgrim’s Pride Corporation (PPC) violated the Packers and Stockyards Act (PSA) by closing two processing facilities (Sheila Adams, et al, v. Pilgrim’s Pride Corp., 2016 WL 1615700).  The court disagreed with the poultry growers’ assertion that PPC’s facility closures had violated PSA through an attempt to increase prices by keeping as much chicken off the market as possible.

GMO Ingredients: Court Permits Chipotle Advertisement Lawsuit to Move Forward

On April 20, 2016, the United States District Court Southern District of Florida ruled that a class action lawsuit, alleging that Chipotle Mexican Grill, Inc. (Chipotle) “misrepresented to customers that its food products contain only non-GMO products,” may proceed (Reilly v. Chipotle Mexican Grill, Inc., Case No. 15-Civ-23425-COOKE-TORRES).  Specifically, the court stated that the plaintiffs are permitted to proceed with their “allegation that Chipotle’s ‘Non-GMO’ claims ‘mislead consumers into paying a premium price…for inferior products or undesirable ingredients or for products that contain ingredients that are not disclosed.”

Equine Disease: PDA Quarantines Barn after Horse Tests Positive for Equine Infections Anemia

On April 20, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing the quarantine “of an equine barn in Halifax, Dauphin County, after a horse at the barn tested positive for Equine Infectious Anemia (EIA) on Monday, April 18.”  According to PDA, both the barn and the horses will be quarantined for at least 60 days.  PDA further stated that EIA poses no health threat to humans and that “[t]he quarantine can be lifted after the remaining horses are determined not to be infected.”

Contract Review: USDA to Continue Payments for Pork Trademarks

On April 20, 2016, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) announced that the agency “has completed its review of the 2006 asset purchase agreement between the National Pork Board and the National Pork Producers Council (NPPC) for the purchase of four trademarks…[which] include the word ‘pork’ in distinctive lettering set against a pork loin silhouette and ‘The Other White Meat’ in various forms.”  According to USDA, “[a]s a result [of the review], AMS is approving continuing annual payments of $3 million under the terms of the agreement.”

Department Structure: PDA Announces Reorganization

On April 23, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin that “[t]he Executive Board approved a reorganization of the Department of Agriculture effective April 4, 2016” (46 Pa.B. 20165).  Of note, “at the request of the Joint Committee on Documents under 1 Pa. Code § 3.1(a)(9) (relating to contents of Code)” PDA’s reorganization is published through the use of an organizational chart.   

Regulation: USDA Proposes Amendment to Voluntary Grading of Shell Eggs

On April 20, 2016, the United States Department of Agriculture Agricultural Marketing Service published notice in the Federal Register that the agency was “propos[ing] to amend the Regulations Governing the Voluntary Grading of Shell Eggs to clarify the definition of ‘condition’ and revise the prerequisite requirement for shell eggs eligible for voluntary USDA grading and certification” (81 FR 23188).  The comment period for the proposed rule closes June 20, 2016.