Agricultural Law Weekly Review —November 21, 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 Restricts Imports of Tomatoes and Peppers to Prevent Tomato Brown Rugose Fruit Virus

On November 15, 2019, the USDA’s Animal and Plant Health Inspection Service (APHIS) announced a Federal Order (DA-2019-28) restricting the import of tomato and pepper fruits, seed lots, and transplants, effective Friday, November 22, 2019, in order to prevent the introduction of tomato brown rugose fruit virus (ToBRFV) into the United States.  ToBRFV naturally infects tomato and pepper plants and can cause discoloration, deformation and irregular maturation, resulting in excessive fruit loss.  The virus spreads easily through contact between infected plant parts, seeds, contaminated tools and hands.  First reported in Israel in 2014, it has since been detected in Mexico, the Netherlands, United Kingdom, Germany (where it was eradicated), Italy, Greece, Turkey, Jordan and China.  In 2018, it was also discovered and eradicated in a tomato greenhouse in California.  The Federal Order requires that all tomato and pepper fruit from Israel, Mexico, and the Netherlands be inspected at their point of origin and declared ToBRFV-free before importation into the United States.  Additionally, all tomato and pepper seed lots and transplants from countries where the virus exists must be “officially tested and certified” ToBRFV-free.  The order also requires Canada, which receives and exports the fruit from Mexico, to ensure all tomato and pepper fruit exported to the U.S. be ToBRFV-free.  Customs and Border Protection will increase U.S. entry point inspections, prohibiting tomato and pepper material import via passenger baggage.  

Animal Welfare:  Michigan Governor to Decide if State’s Cage-Free Egg Date is Extended

On November 20, 2019, Michigan House Bill 0174, extending from 2020 to 2025 the effective date of a 2009 “cage-free egg law,” was presented to Governor Gretchen Whitmer for signature or veto.  On November 6, both chambers of the Michigan Legislature concurred on passage of a final version of the bill, which encompasses a broad range of animal agriculture-related regulatory topics and into which the date extension was inserted.  A prior legislative attempt to extend the effective date of the 2009 law was presented to and vetoed on December 21, 2018 by former Michigan Governor Rick Snyder.  The 2009 law is designated as Section 46 of Michigan’s Animal Industry Act and, among other things, prohibits egg-laying hens from farms with greater than 3,000 egg-laying hens from being confined for the majority of any day without the ability to “fully spreading both wings without touching other hens or the side of an enclosure and having access to at least one square foot of usable space per hen.”  All eggs produced, sold or imported into Michigan must be produced under compliant conditions by the effective date. Michigan ranks in the top ten nationally in shell egg production.  Retailers Kroger, Walmart and McDonald’s have identified 2025 as the target date by which they will source only “cage-free eggs.”  Michigan joins California, Oregon, Washington and Massachusetts with similar measures.  On January 7, 2019, the United States Supreme Court declined two attempts to have it consider and decide whether such measures (California and Massachusetts) violate the U.S. Constitution’s Commerce Clause by improperly regulating interstate commerce.  

Water Quality: Federal Judge Allows Lawsuit Seeking EPA Action on Lake Erie TMDL

On November 13, 2019, Judge James G. Carr of the U.S. District Court for the Northern District of Ohio ruled that a lawsuit may continue against the U.S. Environmental Protection Agency (EPA) brought by a group known as Environmental Law & Policy Center seeking to force the imposition of a total maximum daily limit (TMDL) on the state of Ohio for discharge into Western Lake Erie.  The case was filed under the Clean Water Act (CWA) and alleges that the Ohio Environmental Protection Agency (Ohio EPA) designated Western Lake Erie an impaired waterway, triggering an obligation to create a TMDL for phosphorus entering the lake, but that Ohio has not been compelled by EPA to do so, instead characterizing Lake Erie as “low priority” for TMDL development and addressing Lake Erie’s impairment through alternative restoration methods with no plans for a TMDL.  EPA sought to have the major claims against it dismissed on the basis that Ohio’s pursuit of actions alternative to establishing a TMDL were within its discretion under the CWA.  The Court disagreed and found sufficient evidence alleged to support a finding at trial that Ohio is violating the CWA by refusing its mandatory TMDL obligation, thus requiring EPA to act and impose a TMDL.  The Complaint was initially filed on February 7, 2019 and no trial date has yet been set. 

Conservation Programs: NRCS Publishes Conservation Stewardship Program Rule 

On November 12, 2019, USDA’s Natural Resources Conservation Service (NRCS) published an Interim Final Rule for the Conservation Stewardship Program (CSP), prompted by a 2018 Farm Bill directive, which, among other things, increases rates for cover crop rotation adoption, introduces new payments for advanced grazing management and developing a comprehensive conservation plan, provides support for organic and transitioning to organic production and incorporates many features that align CSP with the Environmental Quality Incentives Program (EQIP), NRCS’ other large conservation program. The amendments are immediately effective.  A public comment period closes on January 13, 2020, after which a final rule is anticipated. $750 million is available in fiscal 2020 for CSP and NRCS state offices will announce sign-up periods in the coming weeks. 

From National Ag Law Experts: 

Tiffany Dowell, Transfer on Death Deeds (November 18, 2019). 

Paul Goeringer, Minnesota Agency Should Have Accounted for Climate Change Impact Before Allowing Dairy to Expand (November 12, 2019).

Penn State Research:

Penn State research projects awarded USDA organic agriculture grants (November 15, 2019).

A'ndrea Elyse Messer, Individual climate models may not provide the complete picture (November 12, 2019).

Pennsylvania Department of Agriculture:

“Department of Agriculture Partners with PennAg Industries to Launch Center for Poultry and Livestock Excellence” (November 18, 2019). 

“Agriculture Department Offers Free PA Preferred® Workshop to Expand Market Opportunities for PA Farmers” (November 13, 2019). 

“Department of Agriculture Offers Advice to PA Hunters, Processors to Protect Against Chronic Wasting Disease” (November 13, 2019)

Pennsylvania Executive Agencies—Actions and Notices: 

Department of Environmental Protection

“Draft Stream Evaluation Reports; Available for Public Comment,” Notice (November 16, 2019). 

Department of Conservation and Natural Resources 

“Conservation and Natural Resources Advisory Council Meeting [November 20, 2019],” Notice (November 16, 2019). 

Susquehanna River Basin Commission 

“Commission Meeting [December 5, 2019],” Notice (November 16, 2019).

Pennsylvania Legislature

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” Presented to Governor (November 19, 2019). 

H.B. 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park” Referred to Environmental Resource and Energy (November 14, 2019). 

H.B. 941 “An Act amending the act of July 7, 1947 (P.L.1368, No.542), known as the Real Estate Tax Sale Law, in short title and definitions, further providing for definitions; and, in sale of property, further providing for notice of sale, for deed, for hearing and order for judicial sale and for additional restrictions and providing for condemnation orders” Referred to Urban Affairs and Housing

Federal Executive Agencies—Actions and Notices:

Animal and Plant Health Inspection Service

“Environmental Impact Statement for Predator Damage Management in Oregon,” Notice (November 14, 2019). 

Employment and Training Administration 

“Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States,” Rule (November 15, 2019). 

Environmental Protection Agency

“Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability,” Notice (November 18, 2019). 

“Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability,” Notice (November 18, 2019).

“Meeting of the National Drinking Water Advisory Council,” Notice (November 13, 2019). 

“National Primary Drinking Water Regulations: Proposed Lead and Copper Rule Revisions,” Proposed Rule (November 13, 2019). 

Federal Emergency Management Agency

“Technical Mapping Advisory Council,” Notice (November 18, 2019). 

“Changes in Flood Hazard Determinations,” Notice (November 18, 2019). 

“Final Flood Hazard Determinations,” Notice (November 18, 2019). 

“Disaster Assistance-Federal Assistance to Individuals and Households,” Rule (November 15, 2019). 

“Water Quality Trading Under the National Pollutant Discharge Elimination System Program; Extension of Comment Period,” Notice (November 19, 2019). 

Fish and Wildlife Service 

“Endangered and Threatened Species; Receipt of Recovery Permit Application,” Notice (November 19, 2019). 

Foreign Agricultural Service 

“Privacy Act of 1974: New System of Records,” Notice (November 19, 2019). 

Geological Survey 

“Public Meeting of the National Geospatial Advisory Committee,” Notice (November 18, 2019). 

Land Management Bureau

“Notice of Public Meetings, Southwest Resource Advisory Council, Colorado,” Notice (November 18, 2019). 

“Notice of Filing of Plat of Survey; Eastern States,” Notice (November 18, 2019). 

“Agency Information Collection Activities; Geothermal Resource Leasing and Permitting, and Geothermal Resources Unit Agreements,” Notice (November 18, 2019). 

Rural Business-Cooperative Service 

“Notice of Solicitation of Applications for Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2020,” Notice (November 13, 2019). 

U.S. House Agriculture Committee Actions: 

H.R.4930 “Wounded Veterans Recreation Act,” Referred to Subcommittee on Conservation and Forestry (November 15, 2019). 

H.R.4909 “CFTC Cost-Benefit Analysis Improvement Act,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 15, 2019). 

H.R.5100 “To direct the Secretary of Agriculture to establish a grant program to remove nonnative plant species that contribute to drought conditions, and for other purposes,” Referred to the House Committee on Agriculture (November 14, 2019). 

H.R.5091 “To establish a community wildfire defense grant program, and for other purposes,” Referred to the Committees on Transportation and Infrastructure, Natural Resources, and Agriculture (November 14, 2019). 

H.R.4902 “ARPA-Terra Act of 2019,” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (November 14, 2019). 

H.R.4895 “CFTC Reauthorization Act of 2019,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 14, 2019).

H.R.4885 “McIntire-Stennis Act District of Columbia Equality Act,” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (November 14, 2019).

H.R.4881 “Real Marketing Edible Artificials Truthfully Act of 2019,” Referred to the Subcommittee on Livestock and Foreign Agriculture (November 14, 2019).

H.R.4874 “Rebuild Rural America Act of 2019,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 14, 2019).

H.Res.681 “Recognizing the National Peanut Festival held annually in Dothan, Alabama, and the importance of the peanut industry in the State of Alabama and the United States,” Referred to the Subcommittee on General Farm Commodities and Risk Management (November 14, 2019).

S.2107 “Protecting America's Food and Agriculture Act of 2019,” Referred to the Subcommittee on Border Security, Facilitation, and Operations (November 14, 2019).

H.R.5077 “To provide protections and certainty for private landowners related to resurveying certain Federal land under the administrative jurisdiction of the Bureau of Land Management, the National Park Service, and the Forest Service, and for other purposes,” Referred to the Committees on Natural Resources and Agriculture (November 13, 2019). 

H.R.5064 “To direct the Secretary of Agriculture and the Secretary of Homeland Security to establish an interagency task force to examine animal disease transmission, and for other purposes,” Referred to the Committees on Homeland Security and Agriculture (November 13, 2019). 

H.R.4816 “Whistleblower Programs Improvement Act,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 13, 2019). 

H.R.4813 “Keep Big Tech Out Of Finance Act,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 13, 2019).

H.R.4773 “Livestock Risk Management and Education Act,” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (November 13, 2019).

H.R.4772 “CFTC Cybersecurity and Data Protection Enhancement Act,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 13, 2019).

H.R.4770 “CFTC Advisory Committee Improvement Act,” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (November 13, 2019).

H.R.4765 “Farm Support Integrity for Family Farms Act,” Referred to the Subcommittee on General Farm Commodities and Risk Management (November 13, 2019).

H.Con.Res.71 “Urging all nations to outlaw the dog and cat meat trade and to enforce existing laws against such trade,” Referred to the Subcommittee on Livestock and Foreign Agriculture (November 13, 2019).

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

No new actions Nov. 6-19

S.2732 “ARPA-Terra Act of 2019,” Read twice and referred to Committee (October 29, 2019). 

S.2744 “U.S. Beef Integrity Act,” Read twice and referred to Committee (October 30, 2019). 

S.2752 “School Hunger Elimination Act of 2019,” Read twice and referred to committee (October 30, 2019). 

S.2760 “Caregivers, Access, and Responsible Expansion for Kids Act of 2019,” Read twice and referred to Committee (October 31, 2019). 

S.2704 “Rebuild Rural America Act of 2019,” Read twice and referred to Committee (October 24, 2019)

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

“USDA Issues Second Tranche of Market Facilitation Program” (November 15, 2019). 

“Dean Foods Receives Court Approval to Use DIP Financing” (November 15, 2019). 

“It's Not Just Farmers-U.S. Exports May Never Recover From the Trade War” (November 16, 2019).

“‘Hanging By Its Fingernails:’ U.S. Biodiesel Industry Struggles Without Subsidy” (November 15, 2019). 

“Perdue: Lower Ethanol Exports Hurting Farmers More Than RFS Waivers” (November 18, 2019). 

“Farm Country Feeds America. But Just Try Buying Groceries There” (November 5, 2019). 

“Putting Farm Bankruptcy Statistics Into Perspective” (November 12, 2019). 

“White Paper Shows Minimal Footprint of U.S. Beef” (November 14, 2019). 

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

Agricultural Law Weekly Review—March 31, 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:

Water: Study Says Agriculture Needs to do more to Reduce Phosphorous in Lake Erie

On March 22, 2016, the University of Michigan announced the release of a computer modeling study which concluded that phosphorus runoff from farms, particularly those in the “heavily agricultural Maumee River watershed,” has led to harmful algae blooms in Lake Erie.  According to the press release, to combat this issue, the study recommended the “require[d] widespread use of strong fertilizer-management practices, significant conversion of cropland to grassland and more targeted conservation efforts.” Disputing the results of the study, the industry group Agricultural Leaders of Michigan stated that the study “relies on data that is more than 15 years old…ignores consistent decreases in phosphorus applications by Michigan agriculture in recent years..[and] assumes that farmers and growers today use the same methods that we used decades ago.” Relatedly, on March 28, 2016, the U.S. Department of Agriculture announced a $41 million initiative to help Ohio, Michigan, and Indiana farmers implement conservation measures so as to reduce runoff in the Western Lake Erie Basin waterways.

Labor: California Reaches Agreement to Raise Minimum Wage

On March 28, 2016, California Governor Edmund G. (Jerry) Brown issued a press release announcing that an agreement had been reached to raise the state’s minimum wage rate to $15 an hour.  According to the press release, “[u]nder the plan, minimum wage will rise to $10.50 per hour on January 1, 2017 for businesses with 26 or more employees, and then rises each year until reaching $15 per hour in 2022.” According to the Governor, employers with 25 or fewer employees will be allowed additional time “to phase in the increases.” Finally, the press release stated that “[o]nce the minimum wage reaches $15 per hour for all businesses, wages could then be increased each year up to 3.5 percent (rounded to the nearest 10 cents) for inflation as measured by the national Consumer Price Index.”

Antibiotics: Advisory Council to Meet and Vote on Antibiotic Use in Food Animals

On March 30-31, 2016, the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (PACCARB) was scheduled to hold a public meeting to deliberate and vote on the findings and recommendations of PACCARB’s working groups'.  Slated for deliberation and vote was Draft Report 1: Initial Assessment of the National Action Plan for Combating Antibiotic-Resistance Bacteria, a document which provides recommendations regarding antibiotic use in food animals.  According to Draft Report I, efforts should be made to: 1)”Work toward consensus processes for establishing metrics for the appropriateness of antibiotic use, especially antibiotics used for preventative purposes;” 2) “Work to insure such metrics are interpreted appropriately by all stakeholders when the required data become available;” and 3) “Reconcile concerns about confidentiality of producers and specific farms.”  

Food Safety: British Company Applies to use Gut Bacterium as Food Additive

On March 22, Solution Sciences Ltd. (SSL), a British manufacturer of soft drinks, submitted an application to the United Kingdom’s Food Standards Agency (FSA) for the approved use of bacterium M. arum as a food ingredient in the European Union.  According to FSA, “M. aurum is an environmental mycobacterium that lives harmlessly in the environment and can also be found in the gut of humans and animals as part of the normal gut microflora.” According to SSL’s application, because “we all live far too hygienically and at an increasing distance from our natural ‘green’ environment,” the use of M. aurum as a food additive offers the potential to restore natural “exposure to an important group of pseudocommensals; namely, the mycobacteria.”