Agricultural Law Weekly Review —December 5, 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. Subscribe to this weekly update at pennstateaglaw.com. 

Rural Landowner Rights:  Two Acts Revamp PA Trespassing and Sunday Hunting 

On November 27, 2019, Pennsylvania Governor Tom Wolf signed into law two bills that affect the property rights of rural, undeveloped and agricultural landowners. 

• House Bill 1772, now known as Act 103 of 2019 is effective January 26, 2020, and allows for the use of vertical purple lines painted on trees or posts to provide notice against trespassing under the PA Crimes Code.  The purple paint lines must be within 100 feet from each other, at least eight inches long, one inch wide, must be placed between three and five feet off the ground and be readily visible to persons approaching the property.  This durable method of posting a property against trespassing has become popular in midwestern states in recent years. 
• Senate Bill 147, now known as Act 107 of 2019 is effective February 25, 2020, and removes the previous prohibition on Sunday hunting by allowing hunting on three Sundays a year, one during deer rifle season, one during deer archery season and one more as determined by the Pennsylvania Game Commission.  The law also creates a new offense under the PA Game Code for Sunday hunting on private property without written permission and amends the PA Game Code “trespassing while hunting” provisions, including adding a misdemeanor offense for trespassing while hunting after personal communication not to enter, or to leave, private property.    

Industrial Hemp/Cannabis: Federal Reserve Issues Statement on Hemp Banking

On December 3, 2019, the Board of Governors of the Federal Reserve System, along with multiple other federal financial institution regulators and the Conference of State Bank Supervisors, issued a three-page “statement to provide clarity regarding the legal status of the commercial growth and production of hemp and relevant requirements for banks under the Bank Secrecy Act and its implementing regulations.”  

• The statement reiterates the law applicable to hemp production in light of the 2018 Farm Bill-related changes, and then goes on to state, in relevant part, that “banks are not required to file a Suspicious Activity Report (SAR) on customers solely because they are engaged in the growth or cultivation of hemp in accordance with applicable laws and regulations.”  
• Media accounts of the extreme reluctance of financial institutions to maintain accounts for hemp producers, i.e. “bank hemp,” due to SAR filing and other regulatory requirements have been consistent since the 2014 and 2018 Farm Bills.  
• Other than addressing the specific SAR requirement, the statement generally reiterates that bank customers are responsible for complying with all applicable laws and “[i]t is generally a bank’s business decision” if deciding to serve hemp-related businesses.
• Banks are directed to contact USDA or state departments of agriculture for questions on the legality of a customer’s hemp production.   
• The statement is silent on the subject of providing financial services to those engaged in the manufacturing or sale of CBD or CBD-containing substances that may be subject to laws under FDA jurisdiction.  
• The statement will not be published in the Federal Register or any other official regulatory document repository. 
• The statement does state that the Financial Crimes Enforcement Network (FinCEN) “will issue additional guidance after further reviewing and evaluating” the USDA Interim Final Rule on Hemp Production published on October 31, 2019.

Ag-Gag Statutes: Federal Court Enjoins Iowa From Enforcing Ag Trespassing Law  

On December 3, 2019, Senior Judge James E. Gritzner of the U.S. District Court for the Southern District of Iowa granted a preliminary injunction prohibiting the state of Iowa from enforcing a law signed by Iowa Governor Kim Reynolds on March 14, 2019 creating the misdemeanor criminal offense of agricultural production facility trespass. Animal Legal Defense Fund, et al. v. Kimberly Reynolds, et al, No. 4:19-cv-00124.  The law at issue created a trespass offense for using deception to gain access to or employment at a farm with intent to cause physical or economic harm.  The lawsuit was filed April 22, 2019, alleging the law violated the U.S. Constitution’s First and Fourteenth Amendments.  The injunction prohibits Iowa from enforcing the law throughout the pendency of the litigation.  No trial date has yet been set in the case.  The so-called “ag-gag” statute enjoined was enacted in Iowa this year after a 2012 Iowa law creating a similar misdemeanor criminal offense of agricultural production facility fraud was declared unconstitutional for similar reasons on January 9, 2019. Read our February 28, 2019, Agricultural Law Weekly Review entry about that case here. 

Animal Welfare: President signs bill creating new federal animal cruelty offense

On November 25, 2019, President Trump signed into law H.R.724, now known as Public Law No. 116-72.  Premised upon Constitutional authority under the Commerce Clause, the law establishes a new federal criminal offense for various acts of animal cruelty.  For more information on the legislative process and background of the bill, see “Federal Animal Cruelty Bill Heads to President” in the November 14, 2019 Agricultural Law Weekly Review. 

From National Ag Law Experts: 

Brigit Rollins, Muddy Waters: Western Lake Erie’s Impaired Status Causes Conflict (November 27, 2019). 

Dr. Steve Suppan, IATP Letter to USDA on Proposed Rule on Supplemental Nutrition Assistance Program (November 27, 2019).

Marlene van Nelson, Cornucopia Of Compliance, Part 2: Liability, Terms, And Beers-Oh My! (November 18, 2019)

Penn State Research:

Jamie Oberdick, Researchers Discover Potential Key To Extremely Low-Friction Surfaces (December 3, 2019).

Matthew J. Long, Environmental Issues Intersect With Social Studies In PA Schools (November 20, 2019).

Pennsylvania Department of Agriculture:

Register Now to Exhibit Antique Tractors, Engines at 2020 Farm Show (December 2, 2019)

Wolf Administration Announces PA Farm Bill Grant Funding to Increase Supply of Locally Produced Meat (November 26, 2019). 

Pennsylvania Executive Agencies—Actions and Notices: 

Department of Agriculture

49 Pa.B. 7091 Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List, Notice (November 30, 2019). 

49 Pa.B. 7091 Farm-to-School Grant Program; 2019-2020 Program Guidelines, Notice (November 30, 2019). 

Environmental Hearing Board

49 Pa.B. 7148 Special Meeting [December 4, 2019], Notice (November 30, 2019). 

State Conservation Commission

49 Pa.B. 7152 Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth's Facility Odor Management Program, Notice (November 30, 2019). 

Pennsylvania Legislature

S.B. 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, Approved by Governor—Act No. 108 (November 27, 2019). 

S.B. 147 “Removing Sunday Hunting Prohibition/Game Commission Trespass Enforcement:” 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, Approved by Governor—Act. No. 107 (November 27, 2019).

H.B. 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, In the House (November 27, 2019). 

S.B. 973 “Reduction of Property Taxes for Seniors:” An Act authorizing senior citizens to claim a reduction of property taxes by 25% on certain real property; and providing for termination of the reduction, Referred to Finance (December 3, 2019). 

H.B. 2093 “Agritourism for Farmers—‘Save Tabora Farm:’” An Act restricting local government from certain regulation of agritourism, Referred to Local Government (December 2, 2019). 

H.B. 2091 “Chlorpyrifos Ban:” An Act amending the act of March 1, 1974 (P.L.90, No.24), known as the Pennsylvania Pesticide Control Act of 1973, providing for prohibited pesticides, Referred to Agriculture and Rural Affairs (December 2, 2019). 

H.B. 1863 “Improving employee voices in the workplace:” An Act amending Title 15 (Corporations and Unincorporated Associations) of the Pennsylvania Consolidated Statutes, in general provisions, providing for eligibility for receipt of State resources, Referred to Labor and Industry (December 2, 2019). 

H.B. 1864 “Valuing employers who value Pennsylvanian workers:” An Act amending Title 15 (Corporations and Unincorporated Associations) of the Pennsylvania Consolidated Statutes, in general provisions, providing for eligibility for receipt of State resources, Referred to Labor and Industry (December 2, 2019). 

H.B. 1865 “UC Eligibility for Striking Workers:” An Act amending the act of December 5, 1936 (2nd Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment Compensation Law, in compensation, further providing for qualifications required to secure compensation and for ineligibility for compensation, Referred to Labor and Industry (December 2, 2019). 

H.B. 1866 “Farm Laborers Collective Bargaining Act:” An Act providing for the right to organize and for collective bargaining rights for farm laborers, Referred to Labor and Industry (December 2, 2019).

Federal Executive Agencies—Actions and Notices:

Agricultural Marketing Service 

84 FR 65929 Peanut Promotion, Research, and Information Order; Amendment to Primary Peanut-Producing States and Adjustment of Membership, Proposed Rule—Comment Period (December 2, 2019). 

Animal and Plant Health Inspection Service

84 FR 66146 Notice of Request for Revision to and Extension of Approval of an Information Collection; Scrapie in Sheep and Goats; Interstate Movement Restrictions and Indemnity Program, Notice—Comment Period (December 3, 2019).

84 FR 66148 Notice of Request for Revision to and Extension of Approval of an Information Collection; Phytosanitary Export Certification, Notice—Comment Period (December 3, 2019). 

Federal Crop Insurance Corporation 

84 FR 65627 Common Crop Insurance Regulations; Sugar Beet Crop Insurance Provisions, Rule—Comment Period (November 29, 2019). 

Federal Emergency Management Agency

84 FR 65924 Suspension of Community Eligibility, Rule (December 2, 2019). 

84 FR 65993 Alaska; Amendment No. 1 to Notice of a Major Disaster Declaration, Notice (December 2, 2019).

84 FR 65994 Illinois; Amendment No. 2 to Notice of a Major Disaster Declaration, Notice (December 2, 2019).

84 FR 65993 Oregon; Amendment No. 1 to Notice of a Major Disaster Declaration, Notice (December 2, 2019).

84 FR 65994 Oregon; Amendment No. 1 to Notice of a Major Disaster Declaration, Notice (December 2, 2019).

84 FR 65993 South Dakota; Amendment No. 1 to Notice of a Major Disaster Declaration, Notice (December 2, 2019).

Fish and Wildlife Service 

84 FR 65997 Marine Mammal Marking, Tagging, and Reporting Certificates, and Registration of Certain Dead Marine Mammal Hard Parts, Notice—Comment Period (December 2, 2019). 

Food and Drug Administration

84 FR 65717 Alzchem Trostberg GmbH; Filing of Food Additive Petition (Animal Use), Proposed Rule (November 29, 2019). 

84 FR 65716 Zinpro Corp.; Filing of Food Additive Petition (Animal Use), Proposed Rule—Comment Period (November 29, 2019).

84 FR 65820 Procedures for the Safe and Sanitary Processing and Importing of Fish and Fishery Products, Notice—Comment Period (November 29, 2019). 

Food and Nutrition Service

84 FR 65777 Assessment of the Collection, Analysis, Validation, and Reporting of Supplemental Nutrition Assistance Program (SNAP) Employment and Training (E&T) Data, Notice—Comment Period (November 29, 2019). 

84 FR 65965 Proposed Collection; Comment Request-Supplemental Nutrition Assistance Program (SNAP): Operating Guidelines, Forms and Waivers, Notice—Comment Period (December 2, 2019). 

Forest Service 

84 FR 65967 Youth Conservation Corps Application and Medical History, Notice—Comment Period (December 2, 2019). 

Internal Revenue Service 

84 FR 65675 Application of Section 108(i) to Partnerships and S Corporations; Correcting Amendment, Rule (November 29, 2019). 

National Agricultural Statistics Service

84 FR 65779 Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection, Notice—Comment Period (November 29, 2019). 

National Credit Union Administration

84 FR 65707 Real Estate Appraisals, Proposed Rule—Comment Period (November 29, 2019). 

Wage and Hour Division 

84 FR 66024 Information Collection: Employment Information Form, Notice (December 2, 2019). 

84 FR 66024 Information Collection: Records to be Kept by Employers-Fair Labor Standards Act, Notice (December 2, 2019). 

U.S. House Agriculture Committee Actions: 

No new actions November 27-December 3, 2019. 

H.R.5266 To provide for the enhancement of urban agriculture, and for other purposes, Referred to Committees (November 26, 2019). 

H.R.5217 To provide for western water security, reliability, modernization, and abundance, and for other purposes, Referred to the Subcommittee on Water Resources and Environment (November 22, 2019). 

H.R.5218 To direct the Secretary concerned to coordinate with impacted parties when conducting a forest management activity, and for other purposes, Referred to Committees (November 21, 2019). 

H.R.5235 To amend the Food and Nutrition Act of 2008 to require States to include a photograph on electronic benefit cards issued to provide supplemental nutrition assistance program benefits, Referred to the House Committee on Agriculture (November 21, 2019). 

H.R.5174 To amend the Immigration and Nationality Act to provide for a State-sponsored nonimmigrant pilot program, and for other purposes, Referred to Committees (November 19, 2019). 

H.R.5179 To require the Secretary of the Interior to establish Tribal Wildlife Corridors, and for other purposes, Referred to Committees (November 19, 2019). 

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

No new actions November 27-December 3, 2019. 

S.2933 A bill to amend the Commodity Exchange Act to require a review of current exemptions granted to foreign entities in response to an attempt by a foreign authority to exercise direct supervisory authority over a domestic derivatives clearing organization, Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (November 21, 2019). 

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

“Farm Income is Highest in Six Years, Due to Trump’s Trade-War Bailout” (December 2, 2019)

“AFBF Analysis on High H-2A Wages” (December 2, 2019)

“Ag Groups Offer Ways to Address Climate Change” (November 27, 2019)

“America’s Cattle Ranchers are Fighting Back Against Fake Meat” (November 27, 2019)

“Two States Top $1 Billion in Trump Tariff Payments This Year” (November 27, 2019)

“Trade War Losses Create Need for New U.S. Export Markets” (November 26, 2019)

“Grant Funding to Increase Supply of Locally Produced Meat” (November 26, 2019)

“NAMI Considers Appeal of California Prop 12 Ruling” (November 26, 2019)

“USDA Rules on Hemp Pose Challenges for Growers” (November 26, 2019)

“New Wisconsin Law Creates Ag Loan Guarantee Program” (November 25, 2019)

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