Agricultural Law Weekly Review —January 9, 2020

Dairy Policy:  Borden Dairy Files Chapter 11 Bankruptcy
On January 5, 2020, Borden Dairy Company, headquartered in Dallas, TX, and seventeen affiliated companies (collectively “Borden”) filed Chapter 11 reorganization bankruptcy petitions in the U.S. Bankruptcy Court for the District of Delaware.  The bankruptcy proceedings are being jointly administered under Case No. 20-10010.  Borden’s bankruptcy claims agent has established a website for public access to the court dockets, filings, notices and other legally required disclosures at www.donlinrecano.com/borden.  A thirty-one page declaration of Borden CFO Jason Monaco filed in support of the bankruptcy petitions contains a lengthy narrative account of the firm’s history and what lead to bankruptcy.  Borden maintains a website for public communication about the bankruptcy at www.bordenfinancialreorg.com which includes FAQ documents addressed to customers, consumers, raw milk suppliers and vendors.  According to Borden, the bankruptcy process will be used to “pursue a financial restructuring designed to reduce its current debt load” and continue in business.  According to its website, Borden was taken private in 1995, is presently owned by ACON Investments, LLC, operates thirteen dairy processing plants and ninety-one “branches,” processes 500 million gallons of milk annually and has 3,300 employees.

Agricultural Labor:  Federal Court Enjoins Enforcement of New York’s Farm Laborers Fair Labor Practices Act
On December 31, 2019, Judge Lawrence J. Vilardo, of the U.S. District Court for the Western District of New York entered a temporary restraining order (TRO) preventing the State of New York from enforcing portions of the 2019 state law known as the Farm Laborers Fair Labor Practices Act which treat family and supervisory employees as farm laborers under New York law and provide them certain protections against changes in wages. New York State Vegetable Growers, et al. v. Cuomo, et al., 1:19cv1720.  The case was commenced by Complaint on December 30, 2019, just two days before the Act was to become effective on January 1, 2020.  The plaintiffs allege the Act violates the U.S. Constitution’s Fourteenth Amendment Due Process Clause and is preempted by the National Labor Relations Act. The TRO was entered after oral argument of the parties pending a hearing scheduled for January 24, 2020.

Biofuels:  U.S. Supreme Court Asked to Hear Appeal Involving Renewable Fuel Standard
On January 2, 2020, Valero Energy Corporation and the American Fuel and Petrochemical Manufacturers (Petitioners) filed a Petition for Writ of Certiorari with the U.S. Supreme Court seeking to reverse the decisions of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in three consolidated cases against the Environmental Protection Agency (EPA). Valero, et al. v. EPA, No. 19-835. Petitioners were unsuccessful before the Court of Appeals in seeking to force EPA to apply and enforce compliance obligations under the Renewable Fuel Standard (RFS) program to fuel blenders, in addition to fuel refineries and importers, as part of EPA’s annual establishment of RFS mandates.

Farmland Preservation: NRCS Publishes Interim Rule on Agricultural Conservation Easement Program
On January 6, 2020, USDA’s Natural Resource Conservation Service (NRCS) published notice of the issuance of an Interim Rule, effective December 30, 2019, conforming its regulations promulgated under the Agricultural Conservation Easement Program (ACEP) to statutory changes made to the program in the 2018 Farm Bill. 85 FR 558.  NRCS is accepting public comment on the Interim Rule until March 6, 2020.

From National Ag Law Authorities & Sources:
Kristine A. Tidgren, Reviewing Key 2019 Agricultural Law Developments (January 2, 2020).
Paul Goeringer, Top Developments in Ag Law in 2019 (January 7, 2020).

Penn State Research:
Sam Sholtis, Water Lily Genome Expands Picture of the Early Evolution of Flowering Plants (January 3, 2020).
Kristen Devlin, Craft-Beer Boom Linked to Record Number of U.S. States Growing Hops (January 2, 2020).

Pennsylvania Department of Agriculture Press Releases:
Wolf Administration Celebrates FFA at Annual Mid-Winter Convention during 104th PA Farm Show (January 6, 2020).
Wolf Administration Announces Pennsylvania’s 2020 Hemp Program Open for Business, Applications Open to Growers and Processors (January 3, 2020).
2020 Farm Show Butter Sculpture Unites Consumers Through Things They Love: Good Food, Celebration, Pro-Sports Mascots (January 2, 2020).
Lt. Governor, Agriculture Secretary Host First Taste of 2020 Farm Show Food Court Menu (January 2, 2020).

Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50 Pa.B. 11 “General Permit Standards and Requirements for Hemp” Notice (January 4, 2020).
50 Pa.B. 20 “Standards and Requirements for the Agricultural Business Development Center Farm Vitality Planning Grant Program” Notice (January 4, 2020).

Department of Environmental Protection
50 Pa.B. 107 “Stream Redesignation Evaluations; Class A Wild Trout Designated Streams” Notice (January 4, 2020).
50 Pa.B. 107 “Household Hazardous Waste Education Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988” Notice (January 4, 2020).
50 Pa.B. 24 “The Clean Streams Law and the Federal Clean Water Act: Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits” Notice (January 4, 2020).
50 Pa.B. 106 “Applications for Reimbursement for Certified Host Municipality Inspectors under Act 101 (Section 1102), the Municipal Waste Planning, Recycling and Waste Reduction Act of 1988, and Act 108 (Section 304), the Hazardous Sites Cleanup Act of 1988” Notice (January 4, 2020).

Department of Transportation/Turnpike Commission
50 Pa.B. 129 “Operational Automated Speed Enforcement System in Work Zones under 75 Pa.C.S. §3369” Notice (January 4, 2020).

Pennsylvania Public Utility Commission
50 Pa.B. 138 “Water Service” Notice (January 4, 2020).

Pennsylvania Legislature
S.Res. 153 “A Concurrent Resolution urging the Congress of the United States to ratify the United States-Mexico-Canada Agreement on Trade” Referred to Commerce [House] (January 2, 2020).
H.B. 376 “An Act amending . . . [P.L.6, No.2] authorizing a tax credit for a member of a volunteer emergency service organization who purchases fire equipment with personal income” Laid on Table [House] (January 7, 2020).
H.B. 1189 “An Act amending . . . [P.L.6, No.2] providing for volunteer emergency responders employer tax credit” Laid on Table [House] (January 7, 2020).
S.B. 905 “An Act providing for the capital budget for fiscal year 2019-2020; itemizing public improvement projects . . .” Referred to Rule and Executive Nominations [Senate] (December 18, 2019).

Federal Executive Agencies—Actions and Notices:
Agricultural Marketing Service
85 FR 638 “Marketing Order Regulating the Handling of Apricots Grown in Designated Counties in Washington; Increased Assessment Rate” Rule (January 7, 2020).
85 FR 422 “Regulations and Procedures Under the Plant Variety Protection Act” Rule (January 6, 2020).

Commodity Credit Corporation
85 FR 558 “Agricultural Conservation Easement Program” Rule—Comments Accepted (January 6, 2020).

Environmental Protection Agency
85 FR 310 “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses” Notice (January 3, 2020).
85 FR 307 “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses” Notice (January 3, 2020).
85 FR 94 “Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” Notice—Comment Period (January 2, 2020).

Farm Credit Administration
85 FR 312 “Sunshine Act Meeting; Farm Credit Administration Board [January 9, 2020]” Notice (January 3, 2020).
85 FR 647 “District Financial Reporting” Proposed Rule—Comment Period (January 7, 2020).

Fish and Wildlife Service
85 FR 487 “Endangered and Threatened Wildlife and Plants; Removing the Kanab Ambersnail From the List of Endangered and Threatened Wildlife” Proposed Rule—Comment Period (January 6, 2020).
85 FR 164 “Endangered and Threatened Wildlife and Plants; Removing the Hawaiian Hawk From the Federal List of Endangered and Threatened Wildlife” Rule (January 2, 2020).

Food and Drug Administration
85 FR 714 “Agency Information Collection Activities; Proposed Collection; Comment Request; Index of Legally Marketed Unapproved New Animal Drugs for Minor Species” Notice—Comment Period (January 7, 2020).
85 FR 718 “Agency Information Collection Activities; Proposed Collection; Comment Request; Advisory Committee Nomination Applications” Notice—Comment Period (January 7, 2020).

Forest Service
85 FR 493 “West Virginia Resource Advisory Committee” Notice (January 6, 2020).

International Trade Commission
85 FR 117 “Certain Tow-Behind Lawn Groomers and Parts Thereof From China Institution of a Five-Year Review” Notice—Comment Period (January 2, 2020).

Land Management Bureau
85 FR 334 “Notice of Availability of the Final Environmental Impact Statement for Domestic Sheep Grazing Permit Renewals, Gunnison Field Office, Colorado” Notice (January 3, 2020).

Office of U.S. Trade Representative
85 FR 549 “Notice of Product Exclusions: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation” Notice (January 6, 2020).

Small Business Administration
85 FR 409 “Administrative Declaration of a Disaster for the State of Texas” Notice (January 3, 2020).
85 FR 408 “Administrative Declaration of a Disaster for the State of Mississippi” Rule (January 3, 2020).

U.S. House Agriculture Committee Actions:
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 1-7, 2020 Top Tweets:
“Animal Labeling Claim Guidance Offered” (December 31, 2019)
“USDA Announces Pilot Insurance Coverage for Hemp Growers” (December 23, 2019).
“Phase-One Deal Set for January 15th, as Chinese Imports of U.S. Soybeans Surge in November” (January 1, 2020)
“New FDA Labels Include Nutrition Info for Eating That Whole Bag of Chips or Pint of Ice Cream” (January 1, 2020)
“Trump Says Phase One Agreement Will Be Signed Jan. 15” (December 31, 2019)
“Family Sues Minnesota State Fair After Boy Contracts E. Coli, Develops Permanent Kidney Damage After Touching Animals” (December 31, 2019)
“China Approves Two New GMO Crops” (December 30, 2019)
“Trade Aid Brought Big Help, But Big Farms Benefited More Than Small Ones” (December 30, 2019)
“USDA Approves First State, Tribal Hemp Production Plans” (December 31, 2019)
“Pennsylvania Swine Industry on Alert After Strep Zoo Discovery” (December 31, 2019)

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