Written by: Audry Thompson - Research Assistant
Brook Duer - Staff Attorney
Penn State Law’s Center for Agricultural and Shale Law publishes the Agricultural
Law Weekly Review as an informative update on agricultural law developments from
across the region, nation and internationally. Visit our new website at https://aglaw.psu.edu/ where you can subscribe
to this update or our other recurring publications or podcasts.
Agricultural
Labor: Maryland Court of Appeals Finds Tyson Farms Not
Co-Employer of Poultry Farm Employee
On November 20, 2020, the
Court of Appeals of Maryland issued an opinion reversing
the decision of the Maryland Court of Special Appeals and finding that
Tyson Farms was not a co-employer of a Maryland poultry
farm worker who sustained an occupational lung
disease during his employment and residence on a Worcester County
chicken farm. In overturning a jury verdict from the
Circuit Court for Worcester County, which found Tyson not to be a joint
employer, the majority of a Maryland Court of Special Appeals
panel reversed the trial court and determined that Tyson was
a co-employer with the farm owner—who had failed to carry worker’s
compensation insurance—and awarded compensation for the worker. Tyson
appealed the Court of Special Appeals decision to the Maryland Court of
Appeals, which found “sufficient evidence from which a reasonable
jury could find—as it did—that Tyson . . . did not exercise the
control . . . necessary to be deemed a co-employer,” noting that the
farm owner’s “selection and hiring,” “payment of wages, and the ability to
fire” the worker “weighed in favor of finding that Tyson was not . . . [a]
co-employer.”
Agricultural Labor: DOL Issues
Final H-2A Rule
On January 15, 2021 the U.S.
Department of Labor (DOL) Employment and Training Administration announced the forthcoming publication of
a final rule titled “Temporary
Agricultural Employment of H-2A Nonimmigrants in the United States.” The
final rule requires job orders and applications to be filed
electronically, allowing DOL to share information with the Department
of Homeland Security and other federal agencies, and allows employers
without full-time work offerings to file a single
application for joint employment to provide full-time
work. The rule also allows employers to stagger the entry of
H-2A workers into the country over 120 days and permits state and
federal authorities to conduct inspections of employer-provided
housing for up to twenty-four months. For more on the July 26, 2019
proposed rulemaking, see ALWR—August 1, 2019,
“Department of Labor Proposes Changes to H-2A Program.”
WOTUS: EPA Issues Draft
of Proposed Guidance for County of Maui Case
On January 10, 2020, the
Environmental Protection Agency (EPA) published notice in the Federal
Register of draft guidance clarifying
wastewater permit requirements under County of Maui v. Hawaii
Wildlife Fund, which held that the Clean Water Act (CWA)
requires a discharge permit when there is a direct discharge from a point source
into navigable waters or when there is the “functional equivalent of a direct
discharge” (85 FR 79489). The
non-binding guidance, which EPA issued to
clarify CWA requirements, states that “certain
threshold conditions . . . must be satisfied before the legal
obligation to have an [National Pollutant Discharge Elimination System
(NPDES)] permit is triggered:” that “there must be (or
will be) an “actual discharge of a pollutant to a water of the
United States” (WOTUS), and that “such a discharge must be from a
point source.” The
guidance further outlined three concepts related to discharges
that are the “functional equivalent” of a direct discharge into WOTUS:
1) An actual discharge of a pollutant to a water of the United States is a
threshold condition that must be satisfied before the need for an NPDES permit
is triggered; 2) The discharge of pollutants that reaches, or will reach,
a water of the United States must be from a point source to trigger NPDES
permitting requirements; and 3) Only a subset of discharges of pollutants
to groundwater that ultimately reach a water of the United States are the
“functional equivalent” of a direct discharge to a water of the United
States. The 30-day comment period on the draft guidance closed
January 11, 2021 (EPA-HQ-OW-2020-0673-0001).
For more on the County of Maui decision, see ALWR—April 30, 2020, “U.S.
Supreme Court Decides Clean Water Act Permitting Case.”
Antitrust: Pilgrim's
Pride Reaches $75 Million Civil Antitrust Settlement
On January 11, 2021,
Pilgrim’s Pride Corporation filed a notice of settlement,
subject to court approval, with the U.S. District Court for the Northern
District of Illinois, settling all claims with the Direct Purchaser
Plaintiffs (DPP) in the consolidated antitrust class action suit In re
Broiler Chicken Antitrust Litigation (No. 1:16-cv-08637). Pilgrim’s
concurrently disclosed the settlement in a U.S. Securities and Exchange
Commission filing and shareholder announcement, which
states that Pilgrim’s $75 million payment to the DPP class will appear on
its 2020 fourth quarter financial statements. Pilgrim’s states that,
although it “does not admit any liability for the claims alleged in the Broiler
Antitrust Civil Litigation,” the company had concluded that the
proposed settlement, which does not apply to non-DPP claims, is “in the best
interests of the Company and its shareholders.”
Conservation
Programs: USDA Issues Regional Conservation Partnership
Program Final Rule
On January 15, 2021,
the U.S. Department of Agriculture’s (USDA) Natural Resources
Conservation Service (NRCS) Commodity Credit Corporation (CCC) published
in the Federal Register a final rule titled, “Regional Conservation Partnership
Program” (RCPP) (86 FR 3735),
which adopts the February 13, 2020 interim rule with few
modifications. (For more on the interim rule, see ALWR —February 20, 2020,
“New Interim Rule on Regional Conservation Partnership Program”)
Previously announced by NRCS
on January 13, 2021, the final rule
requires RCPP agreements with historically underserved (HU) producers to
list any applicable “authorizations for higher payment rates, advance
payment options, or other methods for encouraging HU participation” and
designates source water protection as a priority resource
concern. According to the Regional Conservation Partnership
Program website, the next round of “RCPP Classic funding”
will be announced in summer 2021. The final rule became
effective upon publication.
Regulatory Policy: EPA Publishes
Pivotal Science Transparency Final Rule
On January 6, 2021, the
Environmental Protection Agency (EPA) published in the Federal Register a final
rule title, “Strengthening Transparency in
Pivotal Science Underlying Significant Regulatory Actions and Influential
Scientific Information” (86 FR 469). The
rule requires that EPA clearly identify and make
publicly available all science informing a significant regulatory
action. In evaluating scientific data, the final rule calls
for the agency to give greater consideration to “pivotal”
studies whose dose-response data are available for
independent validation and sets forth requirements for
independent peer review of such studies. The rule does not
require that “Personally Identifiable Information (PII)” or “Confidential
Business Information (CBI)” be released, nor does it require EPA to
“collect, store, or publicly disseminate” such information. The rule
became effective upon publication.
Upcoming Webinars from Penn
State Extension
Conversations with the
Professionals: Ag Succession and Transition Planning with an Ag Attorney,
March 23, 2021 at 9:00 am ET.
Conversations with the
Professionals: Ag Succession and Transition Planning with an Ag Accountant,
April 27, 2021 at 9:00 am ET.
Agricultural Law/Policy Resources of Interest:
Paul
Goeringer, Maryland Court Reverses Finding on
Poultry Farm Employment in Favor of Tyson Farms Inc. (Jan. 5,
2021).
Philip
Gruber, Ag Lobbyist Reflects on 30-Year
Career (Jan. 8, 2021).
Roger A.
McEowen, The “Top Ten” Agricultural Law and
Tax Developments of 2020 – Part Three (Jan. 11, 2021).
Roger A.
McEowen, The “Top Ten” Agricultural Law and
Tax Developments of 2020 – Part Four (Jan. 13, 2021).
Penn State Research & News:
Levels of Stress
Hormone in Saliva of Newborn Deer Fawns May Predict Mortality (Jan.
11, 2021).
Climate Change Reduces
the Abundance and Diversity of Wild Bees, Study Finds (Jan.
12, 2021).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Wolf Administration Announces
$500,000 Available For Ag And Youth Education Programs During Virtual
Pennsylvania Farm Show (Jan. 12, 2021).
Agriculture Secretary Invites
Proposals For $460,000 State Specialty Crop Block Grants To ‘Cultivate
Tomorrow’ (Jan. 13, 2021).
Department Of Agriculture Releases
COVID-19 Restaurant Enforcement Actions, January 4 – January 10 (Jan.
13, 2021).
Berks, Blair, Perry County FFA
Youth Win Pennsylvania Farm Show Agriscience Fair, Qualify For National Contest (Jan.
16, 2021).
U.S. Department of Agriculture (USDA) Press Releases:
USDA Announces Details of the 2021
Agricultural Outlook Forum Program (Jan. 11, 2021).
USDA Releases Agriculture Innovation
Research Strategy Summary and Dashboard (Jan. 12, 2021).
Secretary Perdue Statement on the
Establishment of Wildland Fire Subcabinet (Jan. 14,
2021).
USDA Offers Additional Assistance
for Certain Producers Through Coronavirus Food Assistance Program (Jan.
15, 2021).
Secretary Perdue Statement on H-2A
Modernization (Jan. 15, 2021).
USDA Agency Press
Releases:
Conservation Reserve Program
General Signup Begins Today and Ends February 12, FSA (Jan. 4,
2021).
USDA Announces Quality Loss Assistance
Now Available for Eligible Producers Affected by 2018, 2019 Natural Disasters,
FSA (Jan. 5, 2021).
USDA Seeks Members for Advisory
Committee on Urban Agriculture, FSA (Jan. 6, 2021).
USDA Offers Additional Assistance
for Certain Producers Through Coronavirus Food Assistance Program,
FSA (Jan. 15, 2021).
Availability of an Environmental
Assessment for a Biological Control Agent of Air Potato, APHIS (Jan.
13, 2021).
Confirmation of COVID-19 in
Gorillas at a California Zoo, APHIS (Jan. 13, 2021).
USDA Announces Deregulation of
Cotton Developed Using Genetic Engineering, APHIS (Jan. 15, 2021).
USDA Seeks Comment on Draft Select
Agent Policy Statement on Studying Brucella Species in Large Animal Outdoor
Containment, APHIS (Jan. 15, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa.
Bulletin Vol. 51, No. 3—Jan. 16, 2021):
Department of Agriculture
51
Pa.B. 311 Notice: “Agricultural
Product Promotion, Education and Export Promotion Matching Grant Program;
2020-2021 Application Period.”
51
Pa.B. 313 Notice: “Pennsylvania Malt and Brewed
Beverage Industry Promotion Board; Grant Solicitation and Application
Procedures for Act 39 of 2016 Funding.”
51 Pa.B. 324 Notice: “Pennsylvania
Wine Marketing and Research Board; Grant Solicitation and Application
Procedures for Act 39 of 2016 Funding.”
51
Pa.B. 334 Notice: “Temporary
Order Designating Dangerous Transmissible Diseases.”
Department of Environmental Protection
51 Pa.B. 337 Notice:
“The Pennsylvania Clean Streams Law And The Federal Clean
Water Act: Applications For National Pollutant Discharge Elimination
System (NPDES) Permits And Water Quality Management (WQM)
Permits Under The Clean Streams Law And Federal Clean Water
Act.”
51 Pa.B. 390 Notice: “Availability
of Technical Guidance [Management of Fill Policy].”
51 Pa.B. 391 Notice: “Small
Business Compliance Advisory Committee Meeting Cancellation [Jan. 27, 2021;
Next regular meeting April 28, 2021].”
51 Pa.B. 391 Notice: “Water
Resources Advisory Committee Meeting Cancellation [Jan. 27, 2021; Next regular
meeting March 4, 2021].”
Milk Marketing Board
51 Pa.B. 410 Notice: “Sunshine
Meetings; Time and Venue Change”
Pennsylvania Legislature
HB 101 “An Act providing for limited civil liability for
agritourism activity providers, for notice of limited civil liability and for
acknowledgment of limited civil liability.” Referred to Agriculture and
Rural Affairs [House] (Jan. 11, 2021).
HB 110 “An Act
amending the act of October 21, 1988 (P.L.1036, No.116), known as the Hardwoods
Development Council Act, further providing for Hardwoods Development
Council.” Referred to Agriculture and Rural
Affairs [House] (Jan. 11, 2021).
HB 122 “An Act
amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in
registration of vehicles, further providing for vehicles exempt from
registration; and, in licensing of drivers, further providing for persons
exempt from licensing.” Referred to
Transportation [House] (Jan. 12,
2021).
HB 127 “An Act
amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
of 1971, in corporate net income tax, further providing for imposition of
tax.” Referred to Finance [House] (Jan. 12, 2021).
HB 142 “An Act
amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania
Consolidated Statutes, in facilities and supplies, further providing for
deposits into account [‘Taking the Judiciary Out of the Dog Law Fund’].” Referred to Agriculture and Rural Affairs [House] (Jan. 13, 2021).
HB 179 “An Act
amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes,
providing for Food Establishment Pandemic Disease Remediation Cost
Reimbursement Grant Program.” Referred to
Agriculture and Rural Affairs [House] (Jan.
15, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal
Register Jan.
11–15, 2021):
Agricultural Department
86 FR 1917 Notice: “Submission
for OMB Review; Comment Request [Animal and Plant Health Inspection Service:
Importation of Animals and Poultry, Animal and Poultry Products, Certain Animal
Embryos, Semen, and Zoological Animals]” (Jan.
11, 2021).
Agricultural Marketing Service
86 FR 2880 Final
Rule: “Pecan Promotion, Research, and Information Order” (Jan. 13,
2021).
Animal and Plant Health Inspection Service
86 FR 3987 Notice—Comment
Period: “Notice
of Availability of a Draft Federal Select Agent Program Policy Statement for
Biosafety for Large Animal Study-Related Activities With Brucella
abortus and Brucella suis Using Outdoor Containment Spaces” (Jan. 15,
2021).
Commodity Credit Corporation
86 FR
3735 Final Rule: Regional
Conservation Partnership Program” (Jan. 15, 2021).
Energy Department
86 FR
2664 Notice: “Fuels of the Future Advisory Board”
(Jan. 13, 2021).
Environmental Protection Agency
86 FR
1959 Notice—Comment Period: “Agency
Information Collection Activities; Renewal Request Submitted to OMB for Review
and Approval; Comment Request; Experimental Use Permits (EUPs) for Pesticides
(Renewal)” (Jan. 11, 2021).
86 FR
1960 Notice—Comment Period: “Agency
Information Collection Activities; Renewal Request Submitted to OMB for Review
and Approval; Comment Request; Pesticide Program Public Sector Collections
(FIFRA Sections 18 & 24(c)) (Renewal)” (Jan. 11, 2021).
86 FR
2415 Notice: “Product Cancellation Order for
Certain Pesticide Registrations and Amendments To Terminate Uses; Amendment”
(Jan. 12, 2021).
86 FR
4067 Notice—Comment Period: “Glyphosate
Registration Review; Draft Endangered Species Act Biological Evaluations; Extension
of Comment Period” (Jan. 15, 2021).
Federal Emergency Management Agency
86 FR 2434 Notice: “Changes in Flood Hazard
Determinations [Ariz., Cal., Colo., Haw., Ill., Minn., N.D., Ohio, Tex.,
Wis.]” (Jan. 12, 2021).
86 FR 2437 Notice: “Changes in Flood
Hazard Determinations [Ariz., Ark., Colo., Fla., Mass., Miss., N.C.,
Okla., Tex., Utah, Va., Wyo.]” (Jan. 12, 2021).
86 FR 2430 Notice—Comment
Period: “Proposed
Flood Hazard Determinations [Kansas]” (Jan.
12, 2021).
86 FR 2431 Notice—Comment
Period: “Proposed
Flood Hazard Determinations [Cal., Mich., Minn., Ohio]” (Jan.
12, 2021).
86 FR 2433 Notice—Comment
Period: “Proposed
Flood Hazard Determinations [Colorado]” (Jan.
12, 2021).
86 FR 2558 Final
Rule: “Suspension of Community Eligibility [Colo., Iowa, Tenn.,
Tex.]” (Jan. 13, 2021).
Fish and Wildlife Service
86 FR 2373 Proposed
Rule—Comment Period: “Endangered and Threatened Wildlife and Plants;
Regulations for Interagency Cooperation” (Jan.
12, 2021).
86 FR 2443 Notice—Comment
Period: Agency
Information Collection Activities; Submission to the Office of Management and
Budget for Review and Approval; Horseshoe Crab and Cooperative Fish Tagging
Programs” (Jan. 12, 2021).
86 FR 2442 Notice: “Endangered
and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews of 7
Species in the Mountain-Prairie Region” (Jan.
12, 2021).
86 FR 2440 Notice—Comment
Period: “Endangered
and Threatened Wildlife and Plants; Draft Recovery Plan for
Jones Cycladenia” (Jan. 12, 2021).
86 FR 2564 Final
Rule: “Endangered and Threatened Wildlife and Plants; Removal of the
Interior Least Tern From the Federal List of Endangered and
Threatened Wildlife” (Jan. 13, 2021).
86 FR 4820 Final
Rule: “Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Northern Spotted Owl” (Jan. 15, 2021).
86 FR 3976 Proposed
Rule—Comment Period: “Endangered and Threatened Wildlife and Plants;
Reclassifying Furbish's Lousewort (Pedicularis furbishiae) From Endangered
to Threatened Status With a Section 4(d) Rule” (Jan. 15, 2021).
Food and Drug Administration
86 FR 1979 Notice—Comment
Period: “Potential
Approach for Defining Durations of Use for Medically Important Antimicrobial
Drugs Intended for Use In or On Feed: A Concept Paper; Request
for Comments” (Jan. 11, 2021).
Food and Nutrition Service
86 FR 3112 Notice: “Food Distribution
Program on Indian Reservations 2018 Farm Bill Demonstration Project for Tribal
Organizations: Solicitation of Proposals” (Jan. 14, 2021).
86 FR 3988 Notice: “The Emergency Food
Assistance Program; Availability of Foods for Fiscal Year 2021” (Jan. 15,
2021).
International Trade Commission
86 FR
2694 Notice: “Cucumbers: Effect of Imports
on U.S. Seasonal Markets, With A Focus on the U.S. Southeast” (Jan. 13, 2021).
86 FR
2692 Notice: “Squash: Effect of Imports on
U.S. Seasonal Markets, With A Focus on the U.S. Southeast” (Jan. 13, 2021).
Land Management Bureau
86 FR
3179 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Colorado” (Jan. 14,
2021).
86 FR
3180 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Idaho” (Jan. 14, 2021).
86 FR
3177 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Nevada and Northeastern
California" (Jan. 14, 2021).
86 FR
3186 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Oregon” (Jan. 14, 2021).
86 FR
3187 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Utah” (Jan. 14, 2021).
86 FR
3184 Notice: “Notice of Availability of the
Record of Decision for Greater Sage-Grouse Management, Wyoming” (Jan. 14,
2021).
National Aeronautics and Space Administration
86 FR
4131 Notice: “Notice of Deep Space Food
Challenge Phase 1” (Jan. 15, 2021).
Rural Business-Cooperative Service
86 FR 1918 Notice: “Notice of
Solicitation of Applications (NOSA) for the Strategic Economic and Community
Development Program for Fiscal Year (FY) 2021” (Jan.
11, 2021).
86 FR 3991 Notice: “Inviting Applications
for the Rural Energy for America Program; Correction” (Jan. 15, 2021).
Rural Housing Service
86 FR
1923 Notice: “Rural Community Development
Initiative (RCDI) for Fiscal Year 2021” (Jan. 11, 2021).
Susquehanna River Basin Commission
86 FR
2024 Notice: “Grandfathering (GF)
Registration Notice” (Jan. 11, 2021).
86 FR
2026 Notice—Comment Period: “Public Hearing
[February 4, 2021]” (Jan. 11, 2021).
86 FR
2024 Notice: “Projects Approved for
Consumptive Uses of Water” (Jan. 11, 2021).
U.S. House Agriculture Committee
H.R.247 “To provide for no net increase in the total acreage
of certain Federal land under the jurisdiction of the Bureau of Land
Management, the National Park Service, the United States Fish and Wildlife
Service, or the Forest Service, and for other purposes.” Referred to
the Committees on Natural Resources, and Agriculture (Jan. 11,
2021).
H.R.267 “To extend the wildfire and hurricane indemnity
program to cover certain crop losses in calendar year 2020, and for other
purposes.” Referred to the House Committee on Agriculture (Jan.
11, 2021).
H.R.279 “To provide lasting protection for inventoried
roadless areas within the National Forest System.” Referred to the
Committees on Natural Resources, and Agriculture (Jan. 12, 2021).
U.S. Senate Committee Agriculture, Nutrition, and Forestry:
No new actions
Jan. 11–15, 2021
Follow us on Twitter @AgShaleLaw
–Top
#AgLaw HotLinks Jan. 11–15, 2021
England launches plan to ease crop
gene editing regulation post-Brexit, Reuters
McKinney Says Canada is Violating
Dairy Provisions of USMCA, Brownfield
Supreme Court Agrees to Hear
Biofuel Waiver Case, Successful Farming
Animal Welfare Issues Absent from
2020 Ballots, Brownfield
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