Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

Brook Duer—Staff Attorney

Audry Thompson—Research Assistant

The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels. Subscribe at pennstateaglaw.com.

Want to listen to this Weekly Review? Check out the Agricultural Law Podcast.

COVID-19: Paycheck Protection Program Extended

On June 30 and July 1, 2020, the U.S. Senate and the U.S. House of Representatives respectively passed S.4116, which extends the June 30, 2020 Paycheck Protection Program application deadline to August 8, 2020. The bill awaits the President’s signature.

Crop Insurance: Notice of Loss Filing Requirements Eased

On July 2, 2020, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced several “flexibilities” for producers filing a Notice of Loss on both insured and uninsured crops for prevented planted acres and failed crops. RMA states that a Notice of Loss “can be filed before completing the crop acreage report,” on which USDA has waived late filing fees, until a month after the original July 15, 2020 deadline.

Animal Disease Traceability: Public Comment Solicited on RFID-Only Tags

On July 2, 2020, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced that it is seeking public comment (85 FR 40184) on its proposed transition and timeline for implementation of Radio Frequency Identification (RFID) as the official ear tag for interstate movement of cattle. Under the proposed timeline, RFID tags would become the only APHIS-approved option on January 1, 2023. Animals with pre-existing metal tags would be “grandfathered” for the duration of their life.

Pesticides: Ninth Circuit Denies Motion by BASF and Corteva Seeking To Preserve Their Dicamba Product Registrations

On June 25, 2020, the U.S. Court of Appeals for the Ninth Circuit denied a motion filed by BASF (in which Corteva joined) seeking to have the Court withdraw its June 3, 2020 decision as to their dicamba-containing product registrations alleging that both companies lacked notice that their 2018 product registrations, along with Monsanto/Bayer’s, were at risk in the case. BASF and Corteva first sought, and were granted, party status to the litigation as intervenors, after the Court’s June 3, 2020 decision. The motion was denied without an explanatory opinion. No further motions are pending and the parties have 90 days from June 3, 2020, to file a petition requesting an appeal with the U.S. Supreme Court.

Workforce Development: Pennsylvania Approves Dairy Grazing Apprenticeship

On June 11, 2020, the Pennsylvania Department of Labor and Industry approved a Dairy Grazing Apprenticeship as a registered apprenticeship program in Pennsylvania. Dairy Grazing Apprenticeship is a national program registered with the U.S. Department of Labor that matches apprentices with established producers and provides paid, full-time employment alongside 300 hours of instruction for aspiring farmers.

Biotechnology: National Bioengineered Food Disclosure Standard Guidance Issued

On July 2, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced the issuance of final guidance to aid in the detection of modified genetic material for entities subject to mandatory compliance with the National Bioengineered Food Disclosure Standard (Standard) (7 CFR 66). The final guidance consists of two separate guidance documents and respective Frequently Asked Question documents outlining testing methods (FAQ) and acceptable refining process validation (FAQ). Regulated entities must be in compliance with the standard, which “is solely for marketing and not related to food safety,” by January 1, 2022. The guidance has not yet been published in the Federal Register.

Animal Welfare: Colorado Enacts “Cage-Free Egg” law

On July 1, 2020, Colorado Governor Jared Polis signed into law HB20-1343, known as “Egg-laying Hen Confinement Standards.” The new law requires that by January 1, 2023, chickens and other commercially producing egg-laying fowl enclosures must be no smaller than “one square foot of usable floor space per egg-laying hen” and by January 1, 2025, must be in a statutorily-defined “cage-free housing system.” The legislation provides several exceptions, including farms with fewer than 3,000 egg-laying hens. All eggs sold in in-state much be from compliant sources regardless of where produced.

COVID-19: Coronavirus Food Assistance Program (CFAP) Pennsylvania Data

Every Monday, USDA updates its publicly available data on aggregate Coronavirus Food Assistance Program (CFAP) payments. Pennsylvania totals as of July 6, 2020, are set forth below.

PENNSYLVANIA Payments Applications

Non-Specialty Crops $11,830,228 2,997

Specialty Crops $ 2,290,715 32

Livestock $17,672,574 3,186

Dairy $64,974,517 1,963

COVID-19 Ag Legal Update Webinar Series

Penn State Law’s Center for Agricultural and Shale Law is conducting 60-minute webinars on COVID-19 legal developments viewable live or recorded, via the links provided below.

COVID-19 Ag Legal Update Webinar #1 - Overview of state and federal government responses (recorded June 3, 2020)

COVID-19 Ag Legal Update Webinar #2 - Focus on Dairy (recorded June 24, 2020)

COVID-19 Ag Legal Update Webinar #3 – Focus on Labor Laws Compliance
July 14, 2020, at 11:00 am https://psu.zoom.us/j/95809623901

From National Ag Law Authorities & Sources:

Roger McEowen, Valuing Farm Chattels and Marketing Rights of Farmers (June 24, 2020).

Roger McEowen, PPP and PATC Developments (June 30, 2020).

Brigit Rollins, Pesticide Pressures: Enlist Duo Registration Before Ninth Circuit (July 2, 2020).

Penn State Research & News:

Chuck Gill, Checklist of Pa. bees documents 49 new species and some that may be endangered (June 29, 2020).

Matthew Carroll, Knowledge of severe storm patterns may improve tornado warnings (June 29, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Wolf Administration Awards $1 Million in Farm Vitality Grants Created by 2019 PA Farm Bill (July 1, 2020).

Wolf Administration Offers Tips for Pennsylvanians Taking Pups to State Parks (July 2, 2020).

U.S. Department of Agriculture Press Releases:

USDA Continues to Deliver Innovative Solutions to its Customers (June 29, 2020).

Secretary Perdue: President Trump delivers USMCA, a huge win for U.S. agriculture (July 1, 2020).

USDA Agencies Press Releases:

USDA Announces No Actions Under Feedstock Flexibility Program (June 29, 2020).

USDA Announces Commodity Credit Corporation Lending Rates for July 2020 (July 1, 2020).

USDA Reminds Producers to Complete Crop Acreage Reports (July 1, 2020).

USDA Announces Flexibilities for Producers Filing ‘Notice of Loss’ for Failed, Prevented Planted Acres (July 2, 2020).

APHIS Seeks Public Comment on Transition to RFID Official Identification Tags (July 2, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:

Department of Revenue

50 Pa.B. 3349 Notice: “Realty Transfer Tax; 2019 Common Level Ratio; Real Estate Valuation Factors” (July 4, 2020).

Pennsylvania Legislature

Signed by the Governor

S.B. 905 “An Act providing for the capital budget for fiscal year 2019-2020 . . . .” Act No. 36 (July 1, 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.” Act No. 39 (July 1, 2020).

H.B. 1188 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in hunting and furtaking, further providing for unlawful devices and methods.” Act No. 41 (July 1, 2020).

H.B. 2018 “An Act authorizing the Department of General Services, with the approval of the Governor, to grant and convey to the borough of Plymouth a permanent storm water drainage easement in Plymouth Borough, Luzerne County.” Act No. 49 (July 1, 2020).

House Legislation in the Senate

H.B. 2484 “An Act amending Titles 15 (Corporations and Unincorporated Associations) and 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, establishing financial restrictions related to the COVID-19 emergency: in financial matters of domestic nonprofit corporations, further providing for investment of trust funds and providing for nonjudicial settlement agreement; and, in principal and income, further providing for charitable trusts.” Second consideration [Senate] (June 29, 2020).

H.B. 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park.” Signed in Senate [Senate] (June 30, 2020).

Senate Legislation

S.B. 881 “An Act amending . . . the Agricultural Area Security Law, further providing for purchase of agricultural conservation easements, for Agricultural Conservation Easement Purchase Fund and for Land Trust Reimbursement Program.” Re-referred to Appropriations [Senate] (June 29, 2020)

S.B. 1118 “An Act amending Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, providing for broadband services.” Second consideration [Senate] (June 29, 2020).

S.B. 1182 “An Act amending . . . the Pennsylvania Agricultural Fair Act, providing for COVID-19 Emergency Agricultural Fair Grant Program.” Third consideration and final passage [Senate] (June 30, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Agricultural Department

85 FR 38840 Notice: “Submission for OMB Review; Comment Request [USDA Professional Standards Training Tracker Tool]” (June 29, 2020).

85 FR 39160 Notice: “Submission for OMB Review; Comment Request [Modernization of Poultry Slaughter Inspection]” (June 30, 2020).

Agricultural Marketing Service

85 FR 38760 Rule: “Olives Grown in California; Amendments to the Marketing Order No. 932” (June 29, 2020).

85 FR 39047 Rule: “Onions Grown in South Texas; Decreased Assessment Rate” (June 30, 2020).

85 FR 39461 Rule: “Beef Promotion and Research; Reapportionment” (July 1, 2020).

Animal and Plant Health Inspection Service

85 FR 38840 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; National Veterinary Services Laboratories; Bovine Spongiform Encephalopathy Surveillance Program” (June 29, 2020).

Environmental Protection Agency

85 FR 39491 Rule—Comment Period: “Cyflumetofen; Pesticide Tolerances” (July 1, 2020).

Farm Credit Administration

85 FR 39754 Rule: “Margin and Capital Requirements for Covered Swap Entities” (July 1, 2020).

85 FR 39464 Rule—Comment Period: “Margin and Capital Requirements for Covered Swap Entities” (July 1, 2020).

Federal Communications Commission

85 FR 39859 Proposed Rule—Comment Period: “Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment” (July 2, 2020).

Federal Crop Insurance Corporation

85 FR 38749 Rule—Comment Period: “Area Risk Protection Insurance Regulations; Common Crop Insurance Policy Basic Provisions; and Common Crop Insurance Regulations, Coarse Grains Crop Insurance Provisions” (June 29, 2020).

Federal Emergency Management Agency

85 FR 39919 Notice: “Changes in Flood Hazard Determinations [Alaska, Colo., Conn., Fla., Ga., Mass., Mich., N.M., N.C., Okla., Pa., S.C., Tex., Utah]” (July 2, 2020).

85 FR 39924 Notice: “Final Flood Hazard Determinations [California]” (July 2, 2020).

85 FR 39925 Notice—Comment Period: “Proposed Flood Hazard Determinations [California, New York]” (July 2, 2020).

85 FR 39922 Notice—Comment Period: “Proposed Flood Hazard Determinations [Colorado]” (July 2, 2020).

Fish and Wildlife Service

85 FR 39077 Rule: “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Elfin-Woods Warbler” (June 30, 2020).

Food and Nutrition Service

85 FR 38843 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-FNS 275-SNAP Quality Control Regulations” (June 29, 2020).

Food Safety and Inspection Service

85 FR 38841 Notice—Comment Period: “Retail Exemptions Adjusted Dollar Limitations” (June 29, 2020).

85 FR 39519 Notice—Comment Period: “Notice of Request for Revision of an Approved Information Collection (Accreditation of Laboratories, Transactions, and Exemptions)” (July 1, 2020).

National Agricultural Statistics Service

85 FR 39161 Notice—Comment Period: “Notice of Request for a Renewal of an Information Collection; Fast Track Generic Clearance for the Collection of Qualitative Feedback on Agency Programs” (June 30, 2020).

85 FR 39162 Notice—Comment Period: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection [Fruits, Nuts, and Specialty Crops Surveys]” (June 30, 2020).

Rural Business-Cooperative Service

85 FR 39870 Notice—Comment Period: “Inviting Applications for Rural Cooperative Development Grants” (July 2, 2020).

85 FR 39869 Notice—Comment Period: “Notice of Request for Revision of a Currently Approved Information Collection” (July 2, 2020).

Small Business Administration

85 FR 39256 Notice: “Administrative Declaration of a Disaster for the State of Texas” (June 30, 2020).

85 FR 39256 Notice: “Administrative Declaration of a Disaster for the State of Illinois” (June 30, 2020).

85 FR 39066 Rule—Comment Period: “Business Loan Program Temporary Changes; Paycheck Protection Program-Certain Eligible Payroll Costs” (June 30, 2020).

Susquehanna River Basin Commission

85 FR 39035 Notice: “Projects Approved for Minor Modifications” (June 29, 2020).

85 FR 39035 Notice: “Projects Approved for Consumptive Uses of Water” (June 29, 2020).

Trade Representative, Office of United States

85 FR 39037 Notice: “Determination Regarding Waiver of Discriminatory Purchasing Requirements With Respects to Goods and Services Covered by Chapter Thirteen of the USMCA” (June 29, 2020).

85 FR 39257 Notice: “Interagency Labor Committee for Monitoring and Enforcement Procedural Guidelines for Petitions Pursuant to the USMCA” (June 30, 2020).

85 FR 39660 Notice: “Additional Tariff-Rate Quota Volume for Refined Sugar From Canada Under the USMCA” (July 1, 2020).

85 FR 39660 Notice: “Implementation of the USMCA Tariff Rate Quota for Imports of Sugar Containing Products of Canada” (July 1, 2020).

U.S. Customs and Border Protection

85 FR 39690 Rule—Comment Period: “Implementation of the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA) Uniform Regulations Regarding Rules of Origin” (July 1, 2020).

U.S. House Agriculture Committee Actions:

H.R.7421 “To require the Assistant Secretary of Commerce for Communications and Information to establish an interagency strike force to increase prioritization by the Department of Interior and Department of Agriculture by senior management of the Department of Interior and Department of Agriculture, or an organizational unit of reviews for communications use authorizations.” Referred to the Committees on Energy and Commerce, Natural Resources, and Agriculture (June 30, 2020).

H.R.7425 “To amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to allow for the interstate internet sales of certain State-inspected meat, and for other purposes.” Sponsor introductory remarks on measure (July 1, 2020).

H.R.7426 “To require development and implementation of an interagency plan to assist communities affected by climate change in the Ohio River Basin, and for other purposes.”

Referred to the Subcommittee on Water Resources and Environment (July 1, 2020).

H.R.7452 “To require the Secretary of Agriculture to provide relief from hardship due to the COVID-19 pandemic to certain borrowers of rural development loans, and for other purposes.” Referred to the House Committee on Agriculture (July 1, 2020).

H.R.7454 “To amend the Agricultural Act of 2014 to modify the treatment of revenue from timber sale contracts and certain payments made by counties to the Secretary of Agriculture and the Secretary of the Interior under good neighbor agreements, and for other purposes.” Referred to the Committees on Natural Resources and the Committee on Agriculture (July 1, 2020).

H.R.7482 “To direct the Secretary of Agriculture to carry out a program to award grants to eligible entities to carry out projects that further agricultural resiliency and modernization, and for other purposes.” Referred to the House Committee on Agriculture (July 2, 2020).

H.R.7483 “To provide for the adjustment or modification by the Secretary of Agriculture of loans for critical rural utility service providers, and for other purposes.” Referred to the Committees on Agriculture, Energy and Commerce, and the Budget (July 2, 2020).

H.R.7487 “To promote and support the local arts and creative economy in the United States.” Referred to the Committees on Education and Labor, Transportation and Infrastructure, Financial Services, the Judiciary, Veterans' Affairs, Small Business, Ways and Means, and Agriculture (July 2, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:

S.4140 “A bill to provide additional emergency funding for certain nutrition programs.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 1, 2020).

S.4127 “A bill to amend the Agricultural Act of 2014 to modify the treatment of revenue from timber sale contracts and certain payments made by counties to the Secretary of Agriculture and the Secretary of the Interior under good neighbor agreements, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 1, 2020).

S.4202 “A bill to amend the Food and Nutrition Act of 2008 to expand online benefit redemption options under the supplemental nutrition assistance program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 2, 2020).

S.4156 “A bill to require the Secretary of Agriculture to provide relief from hardship due to the COVID-19 pandemic to agricultural producers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 2, 2020).

S.4152 “A bill to provide for the adjustment or modification by the Secretary of Agriculture of loans for critical rural utility service providers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 2, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

June 29–July 3, 2020 Top #AgLaw links:

Interstate meat shipment bill gains momentum, AGWEEK (June 29, 2020).

Ag bank loan delinquencies 2.68%, highest since 2012, AGWEEK (July 2, 2020).

Scientists Say New Strain of Swine Flu Virus Is Spreading to Humans in China, New York Times (June 30, 2020).

Why Bayer Settled Roundup and Dicamba Litigation, Successful Farming (June 26, 2020).

Dicamba drama continues with Bayer settlement, Politico Morning Agriculture (June 30, 2020).

Rural Counties Set Record for New Cases of Covid-19, Daily Yonder (June 26, 2020).

No Reversal on Dicamba, Progressive Farmer (June 29, 2020).

Tyson confirms hundreds of COVID-19 cases at Missouri chicken plant, Meat+Poultry (June 29, 2020).

Coronavirus Kills 93 U.S. Meatpacking Workers, Union Says, Successful Farming/Reuters (June 25, 2020).

Digging into those Bayer Settlements, Farm Progress (June 26, 2020).