Agricultural Law Weekly Review —January 16, 2020

International Trade:  United States and China Sign Agreement Impacting Agricultural Exports To China
On January 15, 2020, The United States and the People’s Republic of China executed an agreement titled, “Economic and Trade Agreement Between the United States of America and the People’s Republic of China,” which serves as a settlement agreement of certain enforcement actions initiated by the White House under authority of Section 301 of the Trade Act of 1974.  According to the February 27, 2019 testimony of United States Trade Representative (USTR) Robert Lighthizer before the House and Ways Committee, such an agreement does not require Congressional approval as would other trade agreements. The USTR website contains the ninety-six page agreement text as well as Fact Sheets devoted to various topics addressed in the agreement, including an eight-page Fact Sheet titled, “Agriculture and Seafood Related Provisions” and unique individualized Fact Sheets on the following topics: Agricultural Biotechnology, Animal Feed, Seafood, Dairy and Infant Formula, Horticultural Products, Meat, Poultry and Live Breeding Cattle, Pet Food and Rice.

Environmental Policy:  White House Proposes Landmark National Environmental Policy Act Regulation Amendments
On Jan. 9, 2020, the White House Council on Environmental Quality (CEQ) announced the publication of a notice of proposed rulemaking updating its 1978 regulations for implementing the procedural provisions of 1969’s National Environmental Policy Act (NEPA).  85 FR 1684.  Among other things, NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed.  Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from involved federal agencies, are the most visible NEPA requirements.  CEQ states that the average length of an EIS is 600 pages and the average time for federal agencies to conduct NEPA reviews is four and one-half years.  CEQ maintains a comprehensive website devoted to NEPA which includes a detailed factsheet outlining the extensive proposed changes.  Public comments on the proposed new rule must be submitted by March 10, 2020. Public hearings on the proposed rulemaking will be held on February 11, 2020, in Denver, Colorado, and on February 25, 2020, in Washington, D.C.

Water Quality: Maryland Governor Directs Maryland Attorney General to Sue Pennsylvania and EPA over Chesapeake Bay Pollution Reduction
On January 8, 2020, Maryland Governor Larry Hogan issued a press release and delivered a letter to Maryland Attorney General Brian E. Frosh specifically directing him “to take two legal actions: (1) commence litigation against the Commonwealth of Pennsylvania for repeatedly falling short of necessary pollution reduction goals; and (2) commence litigation against the U.S. Environmental Protection Agency (EPA) for failing to enforce the Chesapeake Bay Total Maximum Daily Load (TMDL).”  To date, there has been no public response from Attorney General Frosh.  The Maryland Attorney General is an independent elected official who does not directly report to the Governor of Maryland but does provide legal counsel to the Office of the Governor and the agencies of the Executive Branch.  Both Governor Hogan and Attorney General Frosh were re-elected to second four-year terms in 2018, however Governor Hogan is a Republican and Attorney General Frosh is a Democrat.

Biotechnology: USDA, FDA, and EPA Launch Unified Website for Biotechnology Regulation
On January 9, 2020, the U.S. Department of Agriculture (USDA), the Food and Drug Administration (FDA), and the Environmental Protection Agency (EPA), announced the launch of the Unified Website for Biotechnology Regulation.  It houses in one place all federal laws and regulations, as well as agency guidance and FAQs, from the three principal federal agencies charged with regulating agricultural biotechnology products under the 1986 U.S. Coordinated Framework for the Regulation of Biotechnology and its 1994, 2017 and 2018 amendments.  While the website is not for “regulatory submissions by product developers,” it is intended to  serve as an informational hub, allow users to submit questions about agricultural biotechnology, and to educate consumers about the safe use of biotechnology innovations.

Packers and Stockyards Act: USDA Proposes Long-Delayed Change to Packers and Stockyards Act Regulations
On January 13, 2020, USDA’s Agricultural Marketing Service (AMS) announced the proposal of a new rule establishing criteria for USDA’s determination of whether a packer, swine contractor or live poultry dealer violated Section 202(b) of the Packers and Stockyards Act (P&S Act) by giving an “undue” or “unreasonable” preference or advantage to a particular person or locality. 85 FR 1771.  This P&S Act regulation amendment is required by the 2008 Farm Bill but 2010 and 2016 proposed rules were never finalized, initially due to legislative prohibition and subsequently due to lack of action.  Under the new proposed rule, USDA would consider whether preferences or advantages are based on cost, meeting competitors’ prices or other terms, or normal industry standards.  Public comments on the proposed new rule must be submitted by March 13, 2020.

From National Ag Law Authorities & Sources:
Tara Ritter, Shaping the Future of Energy in Murray County (January 13, 2020).
Brigit Rollins, Making A Splash: Georgia, Florida Water Dispute Back to Supreme Court (January 8, 2020).

Penn State Research & News:
Penn State Extension program to help private forest owners use prescribed fire (January 3, 2020).
Kristen Devlin, Innovation is widespread in rural areas, not just cities (January 2, 2020).

Pennsylvania Department of Agriculture Press Releases:
104th PA Farm Show Invites Youth to Imagine the Opportunities, Promotes Careers in Agriculture (January 11, 2020).
Lumberjack Demo Draws Crowds, Showcasing Hardwoods at 104th Pennsylvania Farm Show (January 11, 2020)
Department of Agriculture Announce Winners of the Spotted Lanternfly Calendar Contest (January 10, 2020).

Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50 Pa.B. 204 “Temporary Order Designating Dangerous Transmissible Diseases” Notice (January 11, 2020).

Department of Conservation and Natural Resources
50 Pa.B. 207 “Community Conservation Partnerships Program Grants Available” Notice (January 11, 2020).

Pennsylvania Legislature
H.B. 523 “An Act amending the act of June 13, 1836 (P.L.551, No.169), referred to as the General Road Law, further providing for repair of private roads” Re-committed to Appropriations [House] (January 13, 2020).
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’” Re-committed to Appropriations [House] (January 13, 2020).
H.B. 1003 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in dams, bar racks and migration devices, further providing for marking of dams” Removed from table [House] (January 13, 2020).
H.B. 1187 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in special licenses and permits, further providing for Lake Erie fishing permits” Removed from table [House] (January 13, 2020).
H.B. 2198 “A Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, in restrictions on legislative power relating to legislation, providing for interstate compacts” Referred to State Government [House] (January 10, 2020).
H.B. 2193 “An Act amending the act of December 22, 1983 (P.L.327, No.85), known as the Auctioneer Licensing and Trading Assistant Registration Act, providing for horses sold at auction” Referred to Agriculture and Rural Affairs [House] (January 10, 2020).
H.Res. 654“A Resolution recognizing February 25, 2020, as “World Spay Day” in Pennsylvania”Referred to Agriculture and Rural Affairs [House] (Jan. 10, 2020).
H.Res. 653“A Resolution designating the week of March 16 through 22, 2020, as “Maple Producers Week” in Pennsylvania”Referred to Agriculture and Rural Affairs [House] (Jan. 10, 2020).

Federal Executive Agencies—Actions and Notices:
Agriculture Department
85 FR 1137 “Submission for OMB Review; Comment Request [Tart Cherries Grown in the States of MI, NY, PA. OR, UT, WA, and WI]” Notice (January 9, 2020).

Agricultural Marketing Service
85 FR 1771 “Undue and Unreasonable Preferences and Advantages Under the Packers and Stockyards Act” Proposed Rule—Comment Period (January 13, 2020).
85 FR 2104 “Submission for OMB Review; Comment Request [2019 Market Facilitation Program Application]” Notice (January 14, 2020).
85 FR 2104 “Submission for OMB Review; Comment Request [Tuberculosis, Animal Health Protection Act]” Notice (January 14, 2020).

Commodity Credit Corporation
85 FR 1731 “Market Access Program” Rule (January 13, 2020).

Federal Emergency Management Agency
85 FR 1172 “Proposed Flood Hazard Determinations” Notice—Comment Period (January 9, 2020).
85 FR 1173 “Changes in Flood Hazard Determinations” Notice (January 9, 2020).

Fish and Wildlife Service
85 FR 2143 “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review of Grizzly Bear” Notice (January 14, 2020).

International Boundary and Water Commission, United States and Mexico
85 FR 1182 “United States Section; Notice of Availability of the Final Environmental Assessment (EA) and Finding of No Significant Impact for the Continued Implementation of the River Management Plan for the Rio Grande Canalization Project” Notice (January 9, 2020).

Small Business Administration
85 FR 1783 “SBA Supervised Lenders Application Process” Proposed Rule—Comment Period (January 13, 2020)

Susquehanna River Basin Commission
85 FR 1189 “Public Hearing [February 6, 2020]” Notice (January 9, 2020).
85 FR 1190 “Grandfathering (GF) Registration Notice [December 1-21, 2019]” Notice (January 9, 2020).

U.S. Codex Office
85 FR 1137 “Codex Committee Meeting of the Codex Committee on Food Additives” Notice (January 9, 2020).

U.S. House Agriculture Committee Actions:
S.1982 “Save Our Seas 2.0 Act” Passed Senate—Referred to Committees on Agriculture; Natural Resources; Foreign Affairs; Energy and Commerce; Science, Space, and Technology; and Transportation and Infrastructure (January 13, 2020).
H.R.5435 “American Public Lands and Waters Climate Solution Act of 2019” Referred to Subcommittee on Conservation and Forestry (January 13, 2020).
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 Subcommittee on Livestock and Foreign Agriculture (January 13, 2020).
H.R.5474 “Shawnee Wilderness Designation Act” Referred to Subcommittee on Conservation and Forestry (January 13, 2020).
H.R.5484 “COLA’s Don’t Count Act of 2019” Referred to Subcommittee on Nutrition, Oversight, and Department Corrections (January 13, 2020).
H.R.5506 “Hawaii Invasive Species Protection Act” Referred to Subcommittee on Biotechnology, Horticulture, and Research (January 13, 2020).
H.R.5587 “To amend the Federal Food, Drug, and Cosmetic Act with respect to the regulation of hemp-derived cannabidiol and hemp-derived cannabidiol containing substances” Referred to Committees on Agriculture & Energy and Commerce (January 13, 2020).
H.R.5563 “Opportunities for Fairness in Farming Act of 2020” Referred to the House Committee on Agriculture (January 9, 2020).
H.Res.775 “Recognizing and honoring Smokey Bear’s 75 years of service to the United States and commitment to preventing unwanted human-caused wildfires and promoting forest health” Referred to the Subcommittee on Conservation and Forestry (January 9, 2020).
H.R.5430 “United States-Mexico-Canada Agreement Implementation Act” Senate-Committee on Finance, ordered to be reported without amendment favorably (January 7, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
No new actions January 1-7, 2020

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks
January 8-14, 2020 Top Tweets:
“Concerns Over Phase One Trade Agreement’s Impact on Demand” (January 12, 2020).
“USMCA Moving Forward, Timeline Uncertain” (January 8, 2020).
“Pork Industry Says New Plant-based Impossible Pork Violates Law” (January 7, 2020).
“Grange Presents, Rural Broadband Program At Farm Show” (January 7, 2020).
“USDA Invites Input on Conservation Easement Rule” (January 8, 2020).
“Farmers Optimistic About the Future, Even as Their Perception of Current Economic Conditions Drops” (January 7, 2020).
“NPPC Responds to Pork Antibiotics Story on CBS” (January 7, 2020).
“Congress’ New Year’s Resolution Should be Ag Labor Reform” (January 8, 2020).
“Japan Proposes Subsidy Program To Increase Beef & Dairy Production” (January 7, 2020).
“Senate Panel Advances USMCA With Bipartisan Vote” (January 7, 2020).

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