Agricultural Law Weekly Review —December 19, 2019

International Trade:  United States and China Reach “Phase One” Trade Agreement
On December 13, 2019, the White House announced a “Phase One trade deal” with China that requires “changes to China’s economic and trade regime,” including  agricultural trade, and “a commitment by China to make substantial additional purchases of U.S. goods in the coming years.”  However, no specific details have yet been provided in writing by either the White House or the Office of the United States Trade Representative (USTR).   The text of a Fact Sheet on the USTR website dated December 13, 2019, titled “Agreement Between the United States of America and The People’s Republic of China,” remains the sole written documentation from the United States government’s Executive Branch outlining  the agreement terms.  Regarding agricultural trade, it states: “The Agriculture Chapter addresses structural barriers to trade and will support a dramatic expansion of U.S. food, agriculture and seafood product exports, increasing American farm and fishery income, generating more rural economic activity, and promoting job growth. A multitude of non-tariff barriers to U.S. agriculture and seafood products are addressed, including for meat, poultry, seafood, rice, dairy, infant formula, horticultural products, animal feed and feed additives, pet food, and products of agriculture biotechnology.”  The Fact Sheet goes on to state: “The Expanding Trade chapter includes commitments from China to import various U.S. goods and services over the next two years in a total amount that exceeds China’s annual level of imports for those goods and services in 2017 by no less than $200 billion. China’s commitments cover a variety of U.S. manufactured goods, food, agricultural and seafood products, energy products, and services. China’s increased imports of U.S. goods and services are expected to continue on this same trajectory for several years after 2021 and should contribute significantly to the rebalancing of the U.S.-China trade relationship.”

Pesticides: NY Governor Directs Ban on Chlorpyrifos by Agency Action
On December 10, 2019, New York Governor Andew Cuomo vetoed New York State Senate Bill  Senate Bill 5343, a bill to phase out the use of the pesticide chlorpyrifos in the State of New York by December 1, 2021, and directed the New York Department of Environmental Conservation (DEC) in the veto memorandum to immediately prohibit chlorpyrifos use by aerial spraying.  Veto Memorandum #193 also adds language in which the Governor’s Office requires DEC to take further regulatory action to ban chlorpyrifos use for all purposes by December 2020, except apple tree trunk spraying, which will be banned by July 2021.  The end result is that the timetable for discontinuing chlorpyrifos use legally in New York is accelerated by at least one year for most uses and by six months for all uses.

Food Labeling: Arkansas Federal Court Blocks State’s Meat Labeling Law
On December 11, 2019, Judge Kristine G. Baker of the United States District Court for the Eastern District of Arkansas, Central Division, granted a preliminary injunction preventing the State of Arkansas from enforcing portions of a 2019 law titled “Truth in Labeling of Agricultural Products that are Edible by Humans.” This legislation, also known as Act 501, declares it to be misbranding to label an agricultural product as “meat or a meat product when the agricultural product is not derived from harvested livestock, poultry or cervids.”  The injunction was entered in a lawsuit brought by Turtle Island Foods SPC d/b/a Tofurky Company challenging Arkansas’ law as a violation of the U.S. Constitution’s First Amendment and Commerce Clause. Case No. 4:19-cv-00514-KGB.  The court agreed that an injunction was warranted while the litigation was pending and it remains in place until further court order.

Industrial Hemp: USDA Extends Comment Period on Hemp Production Rule 
On December 17, 2019, USDA announced that it extended the public comment period for its Interim Final Rule on Domestic Hemp Production an additional thirty (30) days from December 29, 2019 to January 29, 2020, to allow stakeholders additional time to provide feedback.  For more on the Interim Final Rule, see the Agricultural Law Weekly Review of October 31, 2019. 

Conservation Programs:  NRCS Solicits Public Comment on Interim Rule For EQIP
On December 17, 2019, USDA’s Natural Resources Conservation Service (NRCS) published  a new Interim Rule for the working lands Environmental Quality Incentives Program (EQIP) in order to conform the enabling regulations for the program to statutory amendments made in the 2018 Farm Bill.  The Interim Rule is effective immediately but a public comment period is open until February 17, 2020.

From National Ag Law Experts:
Brigit Rollins, Water Wars Continued: Courts Dispute Role of Groundwater Under CWA (December 12, 2019).
Sharon Anglin Treat, Maine’s Plan to Address “Forever Chemicals” Polluting Farms, Water and Food (December 11, 2019).

Penn State Research:
Matt Carroll, Fiber-Optic Cables Capture Thunderquake Rumbles (December 11, 2019).
Gail McCormick, Agricultural Parasite Avoids Evolutionary Arms Race, Shuts Down Genes of Host (December 17, 2019).

Pennsylvania Department of Agriculture:
Pennsylvania Adds 29 Farms, 2,450 Acres to Nation-Leading Farmland Preservation Program (December 12, 2019).
Ag Department Calls for Grant Proposals to Strengthen Market for PA Vegetable, Fruit, Nut, Nursery Specialty Crops (December 16, 2019).

Pennsylvania Executive Agencies—Actions and Notices:
Department of Environmental Protection 
49 Pa.B. 7363 “Agricultural Advisory Board Meeting Rescheduled [Monday, January 27, 2020]” Notice (December 14, 2019).
49 Pa.B. 7364 “Opening of New Grant Round for Recycling Program Development and Implementation Grants under Section 902 of Act 101, Municipal Waste Planning, Recycling and Waste Reduction Act of 1988” Notice (December 14, 2019).
49 Pa.B. 7368 “Recycling Grant Awards under the Municipal Waste Planning, Recycling and Waste Reduction Act of 1988, Act 101” Notice (December 14, 2019).

Department of Labor and Industry
49 Pa.B. 7374 “Maximum Pennsylvania Workers’ Compensation Payable” Notice (December 14, 2019).

Fish and Boat Commission
49 Pa.B. 7298 “Fishing in Lake Erie and Boundary Lakes” Proposed Rule (December 14, 2019).
49 Pa.B. 7296 “Fishing; Special Fishing Regulations” Rules and Regulations (December 14, 2019).
49 Pa.B. 7297 “Fishing; Special Fishing Regulations” Rules and Regulations (December 14, 2019).

Pennsylvania Legislature
H.B. 1223 “An Act providing for the creation of keystone opportunity dairy zones to facilitate the economic development of Pennsylvania’s dairy industry . . . .” Re-committed to Appropriations (December 16, 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.” Re-committed to Appropriations (December 16, 2019).
H.B. 2131 “An Act amending the act of June 30, 1981 (P.L.128, No.43), known as the Agricultural Area Security Law, further providing for purchase of agricultural conservation easements.” Referred to Agriculture and Rural Affairs [House] (December 16, 2019).
H.B. 1348 “An Act providing for limited civil liability for agritourism activity providers, for notice of limited civil liability and for acknowledgment of limited civil liability.” Removed from table [House] (December 16, 2019).
H.B. 2040 “An Act providing for the PA Second Chance Jobs website and for powers and duties of the Department of Labor and Industry.” Removed from table [House] (December 16, 2019).
S.B. 166 “An Act providing for the capital budget for the fiscal year 2019-2020 and for limitation on redevelopment assistance capital projects; and making a related repeal.” Re-committed to Appropriations (December 16, 2019).
S.B. 742 “An Act providing for vehicle emissions modeling by Department of Transportation and for report to General Assembly.” Laid on table [House] (December 16, 2019).
S.B. 905 “An Act providing for the capital budget for fiscal year 2019-2020; itemizing public improvement projects, furniture and equipment projects, transportation assistance, redevelopment assistance projects, flood control projects, Pennsylvania Fish and Boat Commission projects and Manufacturing Fund projects . . . .” Re-reported as amended (December 16, 2019).
H.B. 2124 “An Act providing for foreclosed property maintenance; and imposing penalties.” Referred to Urban Affairs (December 16, 2019).
H.B. 2128 “An Act amending the act of May 1, 1984 (P.L.206, No.43), known as the Pennsylvania Safe Drinking Water Act, further providing for powers and duties of Environmental Quality Board.” Referred to Environmental Resources and Energy [House]  (December 16, 2019).
H.B. 1106 “An Act amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, providing for environmental permits and plan approvals; making related repeals; and abrogating regulations.” Removed from table (December 16, 2019).

Federal Executive Agencies—Actions and Notices:
Agriculture Department 
84 FR 68875 “Meeting Notice of the National Agricultural Research, Extension, Education, and Economics Advisory Board” Notice (December 17, 2019).

Agricultural Marketing Service
84 FR 68816 “National Bioengineered Food Disclosure Standard; Validation of Refining Processes” Proposed Rule—Comment Period (December 17, 2019).

Commodity Credit Corporation
84 FR 69272 “Environmental Quality Incentives Program” Rule (December 17, 2019).

Employment and Training Administration
84 FR 67681 “Trade Adjustment Assistance for Workers” Proposed Rule (December 11, 2019).

Environmental Protection Agency
84 FR 67740 “Pesticide Product Registration; Receipt of Applications for New Uses” Notice—Comment Period (December 11, 2019).
84 FR 68444 “Clean Water Act: Maryland-Chester River Vessel Sewage No-Discharge Zone-Final Affirmative Determination” Notice—Comment Period (December 16, 2019).

Federal Emergency Management Agency
84 FR 68182 “Final Flood Hazard Determinations” Notice (December 13, 2019).
84 FR 68184 “Changes in Flood Hazard Determinations” Notice (December 13, 2019).
84 FR 68186 “Proposed Flood Hazard Determinations for Winneshiek County, Iowa and Incorporated Areas” Notice (December 13, 2019).

Food and Safety and Inspection Service
84 FR 68101 “Notice of Request for a New Information Collection: Small Meat Processor Study” Notice—Comment Period (December 13, 2019).
84 FR 67911 “Notice of Request for a New Information Collection: Focus Group Research to Inform Consumer Food Safety Education and Outreach” Notice—Comment Period (December 12, 2019).
Occupational Safety and Health Administration
84 FR 68794 “Walking-Working Surfaces, Personal Protective Equipment (Fall Protection Systems), and Special Industries (Electric Power Generation, Transmission, and Distribution); Corrections” Rule (December 17, 2019).

Reclamation Bureau
84 FR 68943 “Change in Discount Rate for Water Resources Planning” Notice (December 17, 2019).
84 FR 68941 “Quarterly Status Report of Water Service, Repayment, and Other Water-Related Contract Actions” Notice (December 17, 2019).

Rural Business-Cooperative Service
84 FR 67703 “Inviting Applications for Value-Added Producer Grants and Solicitation of Grant Reviewers” Notice (December 11, 2019).

Rural Utilities Services
84 FR 67913 “ReConnect Pilot Program” Notice—Comment Period (December 12, 2019).

Surface Transportation Board
84 FR 67991 “60-Day Notice of Intent To Seek Extension of Approval: Information Collection Activities-Recordations (Rail and Water Carrier Liens), Water Carrier Tariffs, and Agricultural Contract Summaries” Notice—Comment Period (December 12, 2019).

Susquehanna River Basin Commission
84 FR 68285 “Grandfathering (GF) Registration Notice” Notice (December 13, 2019).
84 FR 68284 “Actions Taken at December 5, 2019, Meeting” Notice (December 13, 2019).
84 FR 68283 “Projects Approved for Consumptive Uses of Water” Notice (December 13, 2019).
84 FR 68286 “Projects Approved for Consumptive Uses of Water” Notice (December 13, 2019).

Trade Representative, Office of the United States
84 FR 68286 “Determination Not To Reinstate Action in Connection With the European Union’s Measures Concerning Meat and Meat Products” Notice (December 13, 2019).

Wage and Hour Division
84 FR 68736 “Regular Rate Under the Fair Labor Standards Act” Rule (December 16, 2019).

U.S. House Agriculture Committee Actions:
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 House Committee on Agriculture (December 16, 2019).
H.R.5435 “To require the Secretary of the Interior and the Chief of the United States Forest Service to meet certain targets for the reduction of the emission of greenhouse gases, and for other purposes.” Referred to Committee on Natural Resources, Agriculture, and Education and Labor (December 16, 2019).
H.R.5430 “United States-Mexico-Canada Agreement Implementation Act.” Ms. McCollum asked unanimous consent that it be in order at any time without intervention of any point of order to consider in the House, the bill, H.R. 5430, that the bill be considered as read, that the bill be debatable for two hours equally divided and controlled by the Majority Leader and the Minority Leader or their respective designees, and that, pursuant to section 151 of the Trade Act of 1974, the previous question be considered as ordered on the bill to final passage without intervening motion. Agreed to without objection. (December 17, 2019).
H.R.5416 “To establish a National Climate Bank.” Referred to the Subcommittee on Railroads, Pipelines, and Hazardous Materials (December 13, 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 Subcommittee on Nutrition, Oversight, and Department Operations (December 13, 2019).
H.R.5218 “Proven Forest Management Act of 2019.” Referred to the Subcommittee on Conservation and Forestry (December 13, 2019).
H.R.5217 “WOW Act.” Referred to the Subcommittee on Conservation and Forestry (December 11, 2019).
H.R.5179 “Tribal Wildlife Corridors Act of 2019.” Referred to the Subcommittee on Conservation and Forestry (December 11, 2019).
H.R.5174 “State Sponsored Visa Pilot Program Act of 2019.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (December 11, 2019).
H.Res.742 “Recognizing the continued success of the Food for Peace Act.” Referred to the Subcommittee on Livestock and Foreign Agriculture (December 11, 2019).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.3053 “A bill to provide for the regulation, inspection, and labeling of food produced using animal cell culture technology, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (December 16, 2019).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks
December 11-17, 2019 Top Tweets:
“Corn growers hope for swift passage of USMCA” (December 11, 2019)
“U.S. dairy applauds Japan’s passage of trade deal” (December 8, 2019)
“House debate scheduled on farmworker bill” (December 10, 2019)
“‘Phase One’ of Trade Deal with China Confirmed” (December 13, 2019)
“Judge Blocks Arkansas from Enforcing State Law Restricting ‘Meaty’ Terms on Plant-Based Products” (December 12, 2019)
“U.S.-Japan trade deal lauded as a win for farmers” (December 9, 2019)
“USDA extends deadlines for support programs” (December 11, 2019)
“House passes H-2A expansion over broad GOP opposition” (December 11, 2019)
“NPPC, AFBF file legal challenge to California’s Prop 12” (December 6, 2019)

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