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)
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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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