Monday, July 20, 2020

Agricultural Law Weekly Review—week ending July 17, 2020

Written by: 

Audry Thompson—Research Assistant

Brook Duer—Staff Attorney
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.  


Dairy Policy: PA Milk Marketing Board Executes Dean Foods Bond Claims

On July 8, 2020, the Pennsylvania Milk Marketing Board (PMMB) issued multiple consent orders establishing over $9.2 million in claims against the Milk Dealer Corporate Surety Bonds of four Dean Foods subsidiaries for failing to pay dairy farmer cooperative Dairy Farmers of America (DFA) for Pennsylvania-produced milk delivered to Dean Foods facilities during the course of the Dean Foods bankruptcy.  Bond claims were filed against Dean Dairy Holdings, LLC ($900,198.79); Garelick Farms, LLC Burlington ($3,262,196.63); Suiza Dairy Group, LLC ($13,420.80); and Tuscan/Lehigh Dairies, Inc.— Lansdale and Schuylkill licenses ($5,085,399.68).  According to a press release from the Pennsylvania Attorney General, the bond payments are sufficient to cover all outstanding debts owed to DFA for Pennsylvania milk purchased by Dean Foods plants. 


Food Policy: USDA Publishes 2020 Dietary Guidelines Advisory Committee’s Final Report for Public Comment

On July 15, 2020, the U.S. Department of Agriculture (USDA) announced the publication of the 2020 Dietary Guidelines Advisory Committee’s final Scientific Report, which will advise USDA and the U.S. Department of Health and Human Services (HHS) in their development of the 2020–2025 Dietary Guidelines for Americans.  In addition to the committee’s historic emphasis on nutrition for persons two years old and older, the recent report also reviewed nutrition needs for children from birth to 24 months in addition to diet needs during pregnancy and lactation.  The agencies are accepting written public comment on the report through August 13, 2020, and will hold a virtual public meeting to hear comments August 11, 2020.  USDA and HHS intend to release the 2020–2025 Dietary Guidelines for Americans by the end of December 2020.  


COVID-19: MI Governor’s Executive Order Creates First Mandatory COVID-19 Meatpacking Workplace Safety Rules in the Nation

On July 9, 2020, Michigan Governor Gretchen Whitmer announced Executive Order 2020-145, “Safeguards to protect Michigan’s workers from COVID-19,” which rescinds Executive Order 2020-114 and creates new state-level workplace safety rules governing meat and poultry processing plants.  Among other requirements, the rules require that employers provide face masks, organize physical spaces to enforce a six-foot distance between employees, install plexiglass or other “impermeable dividers” between workspaces, minimize the number of employees on-site by staggering shifts or lowering production capacity, and refrain from de-incentivizing or penalizing employees who take sick leave.  The order establishes a “willful violation” of the rules as a misdemeanor.  


COVID-19: Only Eight States Have Mandatory Ag Worker Protection Guidelines
On July 14, 2020, the non-profit Environmental Working Group (EWG)
published a data compilation of state farmworker protections implemented in all fifty U.S. states during the COVID-19 pandemic.  According to the data, only eight states have mandated agricultural worker protection guidelines that include the use of personal protection equipment (PPE), physical distancing, and workplace disinfecting requirements for farmworkers: Colorado, Michigan, New Mexico, New York, Oregon, Pennsylvania, Washington and Wisconsin.  California, ranked highest in the nation in agricultural labor expenditures, has mandatory PPE requirements but no other protective measures are mandatory.  A total of seventeen states have issued recommended guidelines.  Twenty-five states have issued no guidance on agricultural worker protections, including Florida and Texas which rank in the top five in agricultural labor expenditures.  


PA Governor Announces $59 Million in Beginning Farmer Tax Credits 

On July 14, 2020, Pennsylvania Governor Tom Wolf announced $59 million, available over the next ten years, for Beginning Farmer Tax Credits.  Signed into law on July 2, 2019, as part of the Pennsylvania Farm Bill, the Beginning Farmer Tax Credit (Act 65 of 2019) allows owners of agricultural land, buildings, equipment, and livestock to receive a tax credit against their Pennsylvania income tax for selling or leasing their assets to a verified beginning farmer.  Owners may receive a credit of up to 5% of an asset’s sale price or fair market value up to $32,000, or 10% of a leased asset’s rental income up to $7,000 per year.  The beginning farmer must be qualified, and both owner and renter/buyer must apply to the Pennsylvania Department of Community and Economic Development (DCED).


Biotechnology: APHIS Releases Draft Environmental Assessment and Preliminary Plant Pest Risk Assessment for Petition to Deregulate GE Corn

On July 17, 2020, the U.S. Department of Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) announced (85 FR 43807) the availability of its Draft Environmental Assessment (DEA) and Preliminary Plant Pest Risk Assessment (PPRA) for genetically engineered Enhanced Grain Yield and Glufosinate-Ammonium Resistant DP202216 Corn (DP corn), prepared in response to a Petition for Determination of Nonregulated Status for DP corn from Pioneer Pioneer Hi-Bred International, Inc. (Pioneer) (84 FR 35850).  APHIS is accepting public comment on the assessment documents beginning July 20, 2020 through August 19, 2020. 


Agricultural Finance: USDA OneRD Guarantee Loan Initiative Standardizes Rural Development Loan Program Applications

On July 14, 2020, the Rural Utilities Service, Rural Housing Service, and the Rural Business-Cooperative Service published in the Federal Register a final rule titled “OneRD Guaranteed Loan Regulation” (85 FR 42494).  Announced on the same day by the U.S. Department of Agriculture (USDA), the rule creates the OneRD Guarantee Loan Initiative, which standardizes and simplifies the application and approval processes for four loan programs under USDA’s Rural Development program: the Water and Waste Disposal Loan Guarantees Program; the Community Facilities Guaranteed Loan Program; the Business and Industry Guaranteed Loan Program; and the Rural Energy for America Guaranteed Loan Program.  The agencies will hold listening sessions to receive feedback on the initiative on July 22, 2020; August 5, 2020; and August 19, 2020, and are currently accepting written comments until September 14, 2020.  The rule becomes effective October 1, 2020.  


Organic Agriculture: U.S-Japan Organic Equivalence Arrangement Adds Livestock
On July 14, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS)
announced the inclusion of livestock and “processed food products containing livestock ingredients” in the U.S.-Japan organic equivalence arrangement.  According to reciprocal letters issued by Japan’s Ministry of Agriculture, Forestry and Fisheries and USDA AMS jointly with the Office of the U.S. Trade Representative, livestock products from the U.S. and Japan may be “sold, labeled, and represented as organic” in each respective country so long as they meet the qualifications of either country’s organic certification program.  The agreement is effective July 16, 2020. 


APHIS Seeking Public Comment on a Request to Produce FMD Vaccine on U.S. Mainland
On July 14, 2020 U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS)
announced and posted in the Federal Register a notice of a petition to manufacture a vaccine for Foot-and Mouth Disease in the United States (85 FR 42346).  The agency is accepting comments on the petition until September 14, 2020. 


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 13, 2020, are below:  

PENNSYLVANIA                Payments Applications

Non-Specialty Crops        $13,292,457.58         3,341  

Specialty Crops      $  2,739,217.86            36

Livestock      $19,333,775.47         3,585     

Dairy      $70,430,729.19         2,122 

TOTALS           $105,796,180.10         9,084


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.   

Next Webinar: August 11, 2020, at 11:00 am

  • COVID-19 Ag Legal Update Webinar #4: Focus on Direct Sales & Liability Prevention 

Past Webinars:


From National Ag Law Authorities & Sources: 

Roger McEowen, More Developments Concerning Conservation Easements (July 8, 2020).
Roger McEowen, Imputation – When Can an Agent’s Activity Count? (July 12, 2020).

Paul Goeringer, Dicamba Legal Update: What is Going on in the Ninth Circuit and What is Going on with the Drift Class Action (July 14, 2020).

Brigit Rollins, To List or Not to List: Possible Consequences of The Monarch Butterfly’s Final Listing Decision (July 16, 2020). 


Penn State Research & News:

NSF CAREER Grant Supports Entomologist in Study of Sterility Mechanisms in Bees (July 13, 2020). 

Gail McCormick, What Determines a Warbler's Colors? (July 14, 2020)


AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:

Wolf Administration Announces $59 Million to Support Beginning Farmers, Grow Pennsylvania Agriculture (July 14, 2020). 

Wolf Administration: Farmers Market Nutrition Program Connects Hungry Pennsylvanians with Fresh, Local Food (July 15, 2020).

Wolf Administration to Reimburse County Fair Boards for Harness Races Held Despite Cancelled Fairs (July 15, 2020).

Ram Lamb, Meat Goat Buck Performance Tested Sale to be Held Online Only (July 15, 2020).


U.S. Department of Agriculture (USDA) Press Releases:

USDA Announces New Members of the Advisory Committee on Minority Farmers (July 13, 2020). 

USDA Cuts Red Tape to Increase Private Investment in Rural America (July 14, 2020). 

Trump Administration Invests More Than $16 Million in High-Speed Broadband in Rural Mississippi (July 14, 2020). 

Trump Administration Invests $153 Million in Rural Community Facilities in 23 States (July 15, 2020). 

USDA Posts the 2020 Dietary Guidelines Advisory Committee’s Final Report (July 15, 2020). 

USDA and Texas Sign Historic Agreement to Improve Health of Public and Private Lands (July 16, 2020). 

USDA Meals to You Partnership Delivers Nearly 30 Million Meals (July 16, 2020).


U.S. Department of Agriculture (USDA) Agencies Press Releases:

APHIS Seeking Public Comment on a Request to Produce FMD Vaccine on U.S. Mainland (July 13, 2020).

APHIS Announces 2020 Open Period for Farm Bill Funding Opportunities Supporting Animal Disease Preparedness and Response Activities (July 15, 2020).

USDA Seeks Suggestions for Fiscal Year 2021 Plant Protection Act Section 7721 and National Clean Plant Network Program Projects (July 16, 2020.

Availability of Draft Environmental Assessment and Preliminary Plant Pest Risk Assessment for Petition to Deregulate GE Corn (July 17, 2020).


STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 

Department of Environmental Protection

50 Pa.B. 3670 Notice: “Federal Consistency under the Coastal Zone Management Act; Port Access Development Project within the City of Erie” (July 18, 2020). 


Pennsylvania Legislature

Signed by the Governor

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.” Act. No. 60 (July 14, 2020).


Presented to the Governor

H.B. 1437 “An Act amending . . . the Tax Reform Code of 1971, in city revitalization and improvement zones, further providing for reports and for restrictions; and, in rural jobs and investment tax credit, further providing for definitions, for rural growth funds, for tax credit certificates, for claiming the tax credit and for revocation of tax credit certificates.” Presented to the Governor (July 15, 2020).

H.B. 2463 “An Act amending . . . The Administrative Code of 1929, providing for access to public records during disaster declaration.” Presented to the Governor (July 16, 2020).


House Legislation in the Senate

H.B. 1808 “An Act amending . . . the Solid Waste Management Act, in general provisions, further providing for definitions; and making editorial changes.” Referred to Environmental Resources and Energy [Senate] (July 13, 2020).

H.B. 2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Referred to Environmental Resources and Energy [Senate] (July 13, 2020).

H.B. 2149 “An Act amending . . . the Hardwoods Development Council Act, further providing for Hardwoods Development Council.” Referred to Agriculture and Rural Affairs [Senate] (July 13, 2020). 

H.B. 2435 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for Food Establishment Personal Protective Equipment Reimbursement Grant Program.” Re-referred to Appropriations [Senate](July 13, 2020).


Senate Legislation

S.B. 1227 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, repealing provisions relating to fireworks.” Referred to Agriculture and Rural Affairs [Senate]I (July 13, 2020). 

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-reported as committed [Senate] (July 14, 2020).


House Legislation

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 (July 13, 2020).

H.B. 1655 “An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in riot, disorderly conduct and related offenses, providing for concurrent jurisdiction to prosecute [The Animal Welfare Cooperation Act].” Removed from table (July 15, 2020).

H.B. 1779 “An Act amending . . . the Dam Safety and Encroachments Act, further providing for definitions and for projects affecting submerged lands of the Commonwealth.” Re-committed to Appropriations (July 14, 2020). 

H.B. 2694 “An Act imposing duties on employers for the health and safety of employees relating to limiting exposure to COVID-19; and providing for right to bring own personal protective equipment, for notification of illness in the workplace, for whistleblower protection and for enforcement.” Referred to Labor and Industry [House] (July 14, 2020).


FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 

Agricultural Marketing Service 

85 FR 42819 Notice—Comment Period: “Opportunity for Designation in the Fargo, North Dakota, Area; Request for Comments on the Official Agency Servicing This Area” (July 15, 2020). 


Animal and Plant Health Inspection Service

85 FR 41905 Rule: “National Veterinary Accreditation Program; Correction” (July 13, 2020).

85 FR 42347 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; National Veterinary Accreditation Program” (July 14, 2020).

85 FR 42346 Notice—Comment Period: “Petition To Manufacture Foot-and-Mouth Disease Vaccine in the United States” (July 14, 2020).

85 FR 42820 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Johne's Disease in Domestic Animals” (July 15, 2020).


Environmental Protection Agency

85 FR 43457 Rule: “Notice of Funding Availability for Applications for Credit Assistance Under the State Infrastructure Finance Authority Water Infrastructure Finance and Innovation Act (SWIFIA) Program” (July 17, 2020).

85 FR 43452 Rule: “Notice of Funding Availability for Applications for Credit Assistance Under the Water Infrastructure Finance and Innovation Act (WIFIA) Program” (July 17, 2020).


Federal Emergency Management Agency

85 FR 43252 Notice: “Changes in Flood Hazard Determinations [Colo., Fla., Ga., Mont., N.D., Okla., Pa., S.C., Tenn., Tex., Va.]” (July 16, 2020).


Food and Drug Administration

85 FR 41916 Rule—Comment Period: “Food Additives Permitted for Direct Addition to Food for Human Consumption; Vitamin D2” (July 13, 2020).

85 FR 42880 Notice—Comment Period: “Use of Real-World Data and Real-World Evidence To Support Effectiveness of New Animal Drugs; Draft Guidance for Industry; Availability” (July 15, 2020).

85 FR 42867 Notice—Comment Period: “Use of Data From Foreign Investigational Studies To Support Effectiveness of New Animal Drugs; Draft Guidance for Industry; Availability” (July 15, 2020). 

85 FR 42876 Notice—Comment Period: “Special Considerations, Incentives, and Programs To Support the Approval of New Animal Drugs for Minor Uses and for Minor Species; Draft Guidance for Industry; Availability” (July 15, 2020).

85 FR 42879 Notice—Comment Period: “Biomarkers and Surrogate Endpoints in Clinical Studies To Support Effectiveness of New Animal Drugs; Draft Guidance for Industry; Availability” (July 15, 2020).

85 FR 42887 Notice—Comment Period: “Adaptive and Other Innovative Designs for Effectiveness Studies of New Animal Drugs; Draft Guidance for Industry; Availability” (July 15, 2020).

85 FR 42860 Notice: “Designating Additions to the Current List of Tropical Diseases in the Federal Food, Drug, and Cosmetic Act” (July 15, 2020).

85 FR 42883 Notice: “Designating Additions to the Current List of Tropical Diseases in the Federal Food, Drug, and Cosmetic Act” (July 15, 2020).

85 FR 42871 Notice: “Notice of Decision Not To Designate Coccidioidomycosis as an Addition to the Current List of Tropical Diseases in the Federal Food, Drug, and Cosmetic Act” (July 15, 2020).

85 FR 42868 Notice: “Notice of Decision Not To Designate Clonorchiasis as an Addition to the Current List of Tropical Diseases in the Federal Food, Drug, and Cosmetic Act” (July 15, 2020).


Fish and Wildlife Service 

85 FR 43254 Notice—Comment Period: “Environmental Assessment for a Candidate Conservation Agreement With Assurances for the Dunes Sagebrush Lizard (Sceloporus arenicolus); Andrews, Gaines, Crane, Ector, Ward, and Winkler Counties, Texas” (July 16, 2020). 

85 FR 43203 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; 90-Day Finding for the Dunes Sagebrush Lizard” (July 16, 2020).


Food and Nutrition Service 

85 FR 42300 Rule: “Food Distribution Program on Indian Reservations: Two-Year Administrative Funding Availability and Substantial Burden Waiver Signatory Requirement” (July 14, 2020).

85 FR 42821 Rule—Comment Period: “Agency Information Collection Activities: Best Practices in Disaster Supplemental Nutrition Assistance Program (D-SNAP) Operations and Planning” (July 15, 2020).


International Trade Commission

85 FR 42006 Notice: “Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest [Certain Wrapping Material and Methods For Use in Agricultural Applications]” (July 13, 2020).


Partnerships and Public Engagement Office

85 FR 41938 Notice—Comment Period: “Funding Opportunity Announcement: Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers” (July 13, 2020).

85 FR 43532 Notice: “Advisory Committee on Minority Farmers” (July 17, 2020).


Rural Business-Cooperative Service

85 FR 42494 Rule—Comment Period: “OneRD Guaranteed Loan Regulation” (July 14, 2020).

85 FR 42348 Rule: “Inviting Applications for Rural Cooperative Development Grants; Correction” (July 14, 2020).


Small Business Administration

85 FR 43289 Notice: “Presidential Declaration of a Major Disaster for the State of Utah” (July 16, 2020).

85 FR 43290 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Tennessee” (July 16, 2020).

85 FR 43289 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of North Dakota” (July 16, 2020).

85 FR 43287 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Missouri” (July 16, 2020).

85 FR 43288 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Mississippi” (July 16, 2020).

85 FR 43289 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Michigan” (July 16, 2020).

85 FR 43287 Notice: “Presidential Declaration of a Major Disaster for the State of Michigan” (July 16, 2020).

85 FR 43288 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Hawaii” (July 16, 2020).

85 FR 43287 Notice: “Administrative Declaration of an Economic Injury Disaster for the State of California” (July 16, 2020).


Susquehanna River Basin Commission

85 FR 43638 Notice: “Revocation of ABR Approvals” (July 17, 2020).

85 FR 43637 Notice: “Projects Approved for Consumptive Uses of Water” (July 17, 2020).

85 FR 43635 Notice: “Projects Approved for Minor Modifications” (July 17, 2020).

85 FR 43636 Notice—Comment Period: “Public Hearing” (July 17, 2020).


U.S. House Agriculture Committee Actions: 

H.R.6228 “Northern Nevada Economic Development and Conservation Act of 2020.” Referred to the Subcommittee on Disability Assistance and Memorial Affairs (July 13, 2020).

H.R.6415 “Inspire to Serve Act of 2020.” Referred to the Subcommittee on Oversight and Investigations (July 13, 2020.

H.R.6889 “Northern Nevada Economic Development, Conservation and Military Modernization Act of 2020.” Referred to the Subcommittee on Disability Assistance and Memorial Affairs (July 13, 2020).

H.R.7656 “To direct the Secretary of Agriculture to make competitive grants to certain agricultural producers and other food-related businesses to carry out activities to support health and safety, or to adapt production, processing, distribution, and sales systems, in response to COVID-19, and for other purposes.” Referred to the House Committee on Agriculture (July 16, 2020).


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

No new actions July 13–17


Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

July 13–17, 2020 Top #AgLaw links:

June 2020 Ag Equipment Sales Show Growth, FarmProgress (July 14, 2020). 

How Absentee Landowners Keep Farmers From Protecting Water And Soil, NPR (July 14, 2020). 

EWG Analysis: Few States Have Job Safety Rules To Protect Farmworkers From COVID-19, EWG (July 14, 2020). 

Dicamba Drift Complaints Highest in Minnesota Since 6/20 Cut Off Took Effect, Brownfield (July 14, 2020). 

How the Coronavirus Pandemic Will Accelerate Digital Agriculture, Successful Farming (July 10, 2020). 

Burger King Debuting Reduced-Methane Beef, Feedstuffs (July 14, 2020). 

From Flour to Canned Soup, Coronavirus Surge Pressures Food Supplies, The Wall Street Journal (July 12, 2020). 

About 14 Million Children in the US Are Not Getting Enough to Eat, Brookings (July 9, 2020). 

Philadelphia Tax on Sweetened Drinks Led to Drop in Sales, Penn Medicine News (July 8, 2020). 

Tyson Steps Up Robotics Research Amid COVID-19, Brownfield


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