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:
Industrial Hemp/Cannabis: USDA Releases
Interim Final Rule for Domestic Hemp Production
On October 29, 2019, USDA publicly announced
and released the
text of its interim regulations governing domestic hemp production. The interim
final rule implements Section
10113 of the 2018 Farm Bill and various new
sections of the Agricultural Marketing Act of 1946, which it amended. Once
published in the Federal Register, the rule will be immediately effective and
expire after two years. In the meantime, there will be a 60-day comment
period and thereafter USDA anticipates issuing its final rule. The rule adds new part 990 (“Domestic Hemp
Production”) to 7 CFR. As stated in the 2018 Farm Bill, states wishing to have
primary authority over hemp production must have a USDA-approved hemp
production plan. Subpart B of new part 990 outlines the mandatory components
and the approval and amendment processes for a state plan, as well as
containing material provisions of interest regarding acreage reporting to
states and FSA, grower data sharing with USDA, hemp sampling and THC testing,
disposal of “hot” plants, and annual inspections. In the absence of a
USDA-approved plan, Subpart C governs hemp production through the application
and issuance a USDA-issued hemp producer license and its compliance
requirements. Subpart E contains a
provision stating that no state may prohibit the transportation of hemp or hemp
products through their state if legally produced under federal law. The interim final rule does not address
import/export of seed or plant material or extracts, nor does it address seed
certification. Those issues remain unchanged as presently regulated.
WOTUS: Lawsuits Challenge Repeal of
2015 WOTUS Rule
After the October 22, 2019, EPA
repeal of the 2015 WOTUS Rule and simultaneous reinstitution of the
pre-existing WOTUS regulatory framework dating to the 1980s, immediate legal
action was taken by at least two interest groups to challenge that
action.
- On
October 22, 2019, the New Mexico Cattle Growers’ Association filed a lawsuit
in New Mexico federal court claiming the reinstitution of the old
regulatory framework was unconstitutional. New Mexico Cattle
Growers' Association v. U.S. Environmental Protection Agency et al.,
1:19-cv-00988. The suit alleges, among other things, that: (a) the result
of EPA’s action is an unconstitutional delegation of legislative authority
to an agency; (b) the term “navigable waters” should be declared void for
vagueness; (c) the former interpretation and application of navigable
waters was already rejected by the U.S. Supreme Court in the 2006 Rapanos
v. U.S. case.
- On
October 23, 2019, a collection of environmental groups filed a lawsuit
in South Carolina federal court alleging that the repeal and reinstitution
of the old rule violated the Administrative
Procedure Act, and interpretative caselaw, in multiple ways and should
be invalidated. South Carolina Coastal Conservation League, et al.
v. U.S. Environmental Protection Agency, et al.,
2:19-cv-03006.
EPA’s repeal becomes effective December 23, 2019, and
thus far no federal court has entertained or granted an injunction preventing
the repeal from taking effect.
Pesticides: EPA Proposes New Rule on
Pesticide Application Exclusion Zone Requirements
On October 24, 2019, the U.S. Environmental Protection
Agency (EPA) announced
a proposed
rule to be published in the Federal Register revising the Application
Exclusion Zone (AEZ) requirements of the Worker
Protection Standard (WPS). The AEZ refers to the area around an
on-going pesticide application that acts as a buffer zone to prevent
unnecessary human contact with the pesticide. According to EPA, the
proposed changes would limit an AEZ to the boundaries of a farmer’s own
property, provide exemptions for immediate family members, simplify criteria
for determining whether a 100-foot or a 25-foot AEZ should apply, and clarifies
when to resume an application that has been suspended due to human entry into
the AEZ. In the announcement and proposed rule, EPA points out that
persons outside a farm’s boundaries are still protected by the existing rule’s
“do not contact” provisions prohibiting pesticide contact with all known
persons, within or outside property lines.
Once published, a 90-day comment period will
commence.
Food Labeling: FDA States Enforcement
Stance on New Nutrition Facts Labeling
On October 23, 2019, food manufacturers received
information from the U.S. Food and Drug Administration (FDA) regarding
enforcement of the long-pending required amendment of Nutrition and
Supplement Facts Labeling (81
FR 33741) set to take effect for large manufacturers (total sales in excess
of $10 million) on January
1, 2020. In response to a September
30, 2019 letter from the Food & Beverage Issue Alliance (“Alliance”)
requesting, among other things, a “six-month period of enforcement discretion,”
FDA revised the compliance
language on its webpage devoted to the new labeling to read: “During the
first 6 months following the January 1, 2020, compliance date, FDA plans to
work cooperatively with manufacturers to meet the new Nutrition Facts label
requirements and will not focus on enforcement actions regarding these
requirements during that time.”
Pesticides: EU Approves Ban of Another
Neonicotinoid Harmful to Pollinators
On October 22, 2019, the majority of European Union
(EU) countries approved the proposal
of the European
Commission not to extend approval of the use of the pesticide thiacloprid
after its current approval expires on April 30, 2020. Thiacloprid is a
neonicotinoid sold by Bayer CropScience under the brand name Biscaya, and has
been linked to harm to pollinators. A July 2019 EU notification
to the World Trade Organization of the impending action also states that
harmful effects on human health and groundwater cannot be ruled out. According
to Bloomberg News, Bayer CropScience submitted a letter to EPA in 2013
voluntarily canceling all its thiacloprid product registrations in the United
States. This is the fourth neonicotinoid to be banned for outdoor use in
the EU. Thiacloprid use increased as a replacement for three previously banned
neonicotinoids. Use of one remaining neonicotinoid, acetamiprid, is authorized
in the EU but is characterized as relatively low toxicity.
Farm Bill: USDA, DOE Collaborate on
Rural Energy Technology Development
On October 25, 2019, U.S. Department of Agriculture
(USDA) and U.S. Department of Energy (DOE) announced
the execution of a memorandum of
understanding (MOU) pursuant to Section 6501 of the 2018 Farm Bill to
collaboratively promote investment in rural energy infrastructure and the
development of energy-related technologies and manufacturing in rural and
agricultural communities. An interagency working group is to be established to
implement the MOU’s terms and prepare a yearly report of actions and
projects. This MOU results from the 2017 establishment of, and resulting report
from, the Task Force on Agriculture and Rural Prosperity, which recommended the
development of all sources of energy including renewable sources to bolster
rural prosperity.
From National Ag Law Experts:
Tiffany Dowell Lashmet, Livestock
and Community Property (October 28, 2019)
Brigit Rollins, Protecting
the Nest: Court Upholds Protections for Sage Grouse (October 24,
2019)
Penn State Research:
Katie Bohn, One
Avocado A Day Helps Lower 'Bad' Cholesterol For Heart Healthy Benefits
(October 28, 2019)
Behrend
Students Discover Invasive Shrimp Species in Lake Erie (October
22, 2019)
Pennsylvania Department of Agriculture:
“Wolf
Administration Announces $500,000 Available to Improve Elementary School Access
to Healthy, Local Foods” (October 24, 2019)
Pennsylvania Executive Agencies—Actions
and Notices:
Department of Agriculture
Department of Environmental Protection
“2020
Environmental Education Grants; Notice of Availability” (October 26, 2019)
State Conservation Commission
Susquehanna River Basin Commission
“Grandfathering
Registration Notice” (October 26, 2019)
“Projects
Approved for Consumptive Uses of Water” (October 26, 2019)
Pennsylvania Legislature
H.B.1085
“An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the
State Personal Property Tax Act” Presented to Governor (October 29, 2019)
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,” Re-reported as Committed (October 29, 2019)
House Agriculture and Rural Affairs Committee
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,’” Committee Vote—Report Bill as Amended (October 23, 2019)
H.B.1223
“An Act providing for the creation of keystone opportunity dairy zones to
facilitate the economic development of Pennsylvania's dairy industry;
authorizing expenditures; providing tax exemptions, tax deductions, tax
abatements and tax credits; creating additional obligations of the Commonwealth
and local governmental units; and prescribing powers and duties of certain
State and local departments, agencies and officials,” Committee Vote—Report
Bill as Amended (October 23, 2019)
H.B.1224
“An Act amending the act of April 28, 1937 (P.L.417, No.105), known as the Milk
Marketing Law, in purpose, short title and definitions, further providing for
definitions and construction; in general powers of the board, providing for
coordination with Department of Revenue; and, in prices of milk, further
providing for cooperatives,” Committee Vote—Report Bill as Committed (October
23, 2019)
H.B.1775
“An Act amending the act of May 15, 1945 (P.L.547, No.217), known as the
Conservation District Law, providing for legislative report,” Committee
Vote—Report Bill as Amended (October 23, 2019)
Federal Executive Agencies—Actions and
Notices:
Agricultural Marketing Service
“National
Organic Program; Amendments to the National List of Allowed and Prohibited
Substances per April 2018 NOSB Recommendations (Crops and Handling),” Final
Rule (October 23, 2019)
“Reorganization
and Transfer of Regulations; Correction,” Final Rule (October 23, 2019)
Animal and Plant Health Inspection Service
“Concurrence
with OIE Risk Designations for Bovine Spongiform Encephalopathy,” Notice
(October 25, 2019)
“Request
for Revision to and Extension of Approval of an Information Collection;
Introduction of Organisms and Products Altered or Produced Through Genetic
Engineering,” Notice (October 25, 2019)
Delaware River Basin Commission
“Notice
of Public Hearing and Business Meeting; November 13 and December 11, 2019,”
Notice (October 29, 2019)
Environmental Protection Agency
“Thirty-Sixth
Update of the Federal Agency Hazardous Waste Compliance Docket,” Notice
(October 28, 2019)
“Renewable
Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for
2021, and Response to the Remand of the 2016 Standards; Supplemental Notice of
Proposed Rulemaking,” Proposed Rule (October 28, 2019)
“Receipt
of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on
Various Commodities (September 2019),” Proposed Rule (October 28, 2019)
“Mandipropamid;
Pesticide Tolerances,” Final Rule (October 28, 2019)
“Pesticide
Product Registration; Receipt of Applications for New Uses (September 2019),”
Notice (October 25, 2019)
“Notice
of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations
and Amend Registrations To Terminate Certain Uses,” Notice (October 25,
2019)
“Sulfoxaflor;
Pesticide Tolerances,” Final Rule (October 25, 2019)
“Pesticide
Product Registration; Receipt of Applications for New Active Ingredients
(September 2019),” Notice (October 25, 2019)
“Pesticide
Program Dialogue Committee (PPDC); Notice of Charter Renewal,” Notice
(October 25, 2019)
“Fenbuconazole;
Pesticide Tolerances,” Final Rule (October 25, 2019)
“Proposed
Reissuance of NPDES General Permit for Concentrated Animal Feeding Operations
Located in Idaho,” Notice (October 23, 2019)
Fish and Wildlife Service
“Federal
Fish and Wildlife Permit Applications and Reports-Migratory Birds,” Notice
(October 28, 2019)
“Migratory
Bird Harvest Information Program and Migratory Bird Surveys,” Notice
(October 24, 2019)
“Endangered
and Threatened Wildlife and Plants; Removal of the Interior Least Tern From the
Federal List of Endangered and Threatened Wildlife,” Proposed Rule (October
24, 2019)
“Endangered
Species; Receipt of Recovery and Interstate Commerce Permit Applications,”
Notice (October 23, 2019)
Food and Drug Administration
“Food
Labeling: Calorie Labeling of Articles of Food Sold From Certain Vending
Machines; Front of Package Type Size,” Final Rule (October 28, 2019)
Food and Nutrition Service
“Supplemental
Nutrition Assistance Program: State Agency Options for Standard Utility
Allowances and Self-Employment Income,” Notice (October 25, 2019)
Food Safety and Inspection Service
“Changes
to the Salmonella Verification Testing Program: Proposed Performance Standards
for Salmonella in Raw Ground Beef and Beef Manufacturing Trimmings and Related
Agency Verification Procedures,” Notice (October 28, 2019)
Partnerships and Public Engagement Office
“Advisory
Committee on Beginning Farmers and Ranchers,” Notice (October 25, 2019)
U.S. House Agriculture Committee
Actions:
H.R.4885
“To amend Public Law 87-788 (commonly known as the McIntire-Stennis Cooperative
Forestry Act; 16 U.S.C. 582a-7) to provide for equal treatment of the District
of Columbia with respect to funds made available under that Act,” Introduced;
Referred to House Committee on Agriculture (October 28, 2019)
H.R.4881
“To amend the Federal Food, Drug, and Cosmetic Act to ensure that consumers can
make informed decisions in choosing between meat products such as beef and
imitation meat products, and for other purposes,” Introduced; Referred to
Committee on Energy and Commerce and Committee on Agriculture (October 28,
2019)
H.R.4874
“To amend the Department of Agriculture Reorganization Act of 1994 to establish
the Rural Innovation and Partnership Administration and to amend the
Consolidated Farm and Rural Development Act to establish the Rural Future
Partnership Fund to invest in the rural areas of the United States to achieve
their preferred future while maximizing their contribution to the well-being of
the United States, and for other purposes,” Introduced; Referred to Committee
on Agriculture, Committee on Financial Services, and Energy and Commerce
(October 28, 2019)
S.2107
“Protecting America's Food and Agriculture Act of 2019,” Referred to Committee
on Homeland Security and Committee on Agriculture (October 28, 2019)
H.R.4820
“To amend the Department of Agriculture Reorganization Act of 1994 to provide
assistance to manage farmer and rancher stress and for the mental health of
individuals in rural areas, and for other purposes,” Introduced; Referred to
House Committee on Agriculture (October 23, 2019)
H.R.4816
“To amend the Commodity Exchange Act to modify provisions relating to
whistleblower incentives and protection, and for other purposes,” Introduced;
Referred to Committee on Agriculture and Committee on Oversight and Reform
(October 23, 2019)
H.R.4813
“To prohibit large platform utilities from being a financial institution or
being affiliated with a person that is a financial institution, and for other
purposes,” Introduced; Referred to Committee on Financial Services and
Committee on Agriculture (October 23, 2019)
H.R.4642
“Community Broadband Mapping Act,” Referred to Subcommittee on Commodity
Exchanges, Energy, and Credit (October 22, 2019)
U.S. Senate Agriculture, Nutrition, And
Forestry Committee Actions:
S.2692
“A bill to amend the Richard B. Russell National School Lunch Act to improve
direct certification, and for other purposes,” Introduced (October 24, 2019)
S.2695
“A bill to authorize the Secretary of Agriculture to provide for the defense of
United States agriculture and food through the National Bio and Agro-Defense
Facility, and for other purposes,” Introduced (October 24, 2019)
S.2704
“A bill to amend the Department of Agriculture Reorganization Act of 1994 to
establish the Rural Innovation and Partnership Administration and to amend the
Consolidated Farm and Rural Development Act to establish the Rural Future
Partnership Fund to invest in the rural areas of the United States to achieve
their preferred future while maximizing their contribution to the well-being of
the United States, and for other purposes,” Introduced (October 24, 2019)
Follow us on Twitter at PSU Ag & Shale
Law (@AgShaleLaw)
to receive AgLaw HotLinks:
“Map
Shows How Food Gets from Farms to Your Home” (October 27, 2019)
“Sunday
Hunting Bill Moves on in Pennsylvania Legislature” (October 25, 2019)
“Study
Shows Risk of ASF Entered U.S. Has Doubled” (October 25, 2019)
“Northeast
Dairy Co-op to Dock Farmers for Overproduction” (October 24, 2019)
“PepsiCo
Leaning In on Sustainability Goals: ‘Companies Like Us No Longer Have a
Choice’” (October 23, 2019)
“NIFA
Grants Help Fund Farmer Stress Network” (October 22, 2019)
“FDA
Proposes Animal Antibiotics Go Behind the Counter” (October 22, 2019)
“USDA
Launches Economic Development Hubs” (October 22, 2019)
“Rural
& Ag Groups Reaffirm Opposition to STELAR” (October 22, 2019)
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