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.
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Biofuels: EPA Denies Sixty-Eight Small Refinery Exemptions to Renewable Fuel Standard
On September 14, 2020, the U.S. Environmental Protection Agency (EPA) announced its denial of sixty-eight pending small refinery exemption (SRE) petitions requesting relief from Renewable Fuel Standard (RFS) blending compliance for 2011–2018. Following the Tenth Circuit Court of Appeals’ January 24, 2020 ruling in Renewable Fuels Assn. v. EPA, holding that EPA’s grant of economic hardship exemptions, rather than statutory-authorized extensions, exceeded EPA’s legal authority. Refiners filed sixty-eight petitions seeking, in various ways, to backfill their previous history of exemptions with new EPA grants of retroactive extensions. Noting that several of the petitions alleging hardship date back to 2011, EPA stated that “it seems unlikely that Congress contemplated or intended to allow a small refinery to obtain hardship relief through submitting a petition in calendar year 2020 for RFS compliance year 2011.” See also “Court of Appeals Invalidates EPA Grant of Renewable Fuel Standard Waivers,” Agricultural Law Weekly Review—January 30, 2020.
International Trade: WTO Finds U.S. Tariffs on Chinese Products Violated Trade Pacts
On September 15, 2020, the World Trade Organization (WTO) published a Panel Report titled, “United States—Tariff Measures on Certain Goods from China,” sustaining a complaint commenced by China in April 2018 claiming that U.S. tariffs on the import of certain Chinese products violated Articles I:1 and II:1(a) and (b) of the General Agreement on Tariffs and Trade (GATT) 1994 and Article 23 of the Dispute Settlement Understanding (DSU). The U.S. argued that: a) China’s misappropriations of U.S. intellectual property and technology constituted “state-sanctioned theft,” and the tariffs were justified to protect U.S. public morals; and b) the countries had agreed to settle the matter outside the WTO. Among other findings, the Panel concluded that, while “ongoing bilateral negotiations” were in fact occurring between China and the U.S., the “negotiations seem to be parallel to the ongoing [WTO] panel proceedings and not intended, by China at least, to replace them.”
National Agricultural Policy: GAO Issues Market Facilitation Program Report
On September 14, 2020, the U.S. Government Accountability Office (GAO) publicly released a report titled, “USDA Market Facilitation Program: Information on Payments for 2019.” The report, which was prepared as a briefing for the Senate Committee on Agriculture, Nutrition, and Forestry, details the geographic and commodity variation of 2019 Market Facilitation Program (MFP) payments, which were devised to offset impacts of the 2018-2019 China trade war. The report states that 643,965 farming operations received MFP payments totaling approximately $14.4 billion in 2019 across three commodity types: non-specialty crops, specialty crops, and dairy and hogs. According to the report, less than ten percent of MFP payments went to specialty crop and diary and hog producers, while non-specialty crop producers received the most payments in 2019.
COVID-19: First-Ever OSHA Fines Issued for Failure to Protect Workers from COVID-19
On September 10 and 11, 2020, in a first-of-its-kind action, the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) announced the issuance of citations to Smithfield Packaged Meats Corp. in Sioux Falls, S.D. and JBS Foods Inc. in Greeley, Colo. for failing to protect employees from exposure to the coronavirus. These are the first known OSHA fines for inadequate COVID-19 worker protections. OSHA cited Smithfield and JBS each for one violation of OSHA’s General Duty Clause for failing to provide a workplace free from recognized hazards that can cause death or serious harm. OSHA additionally cited JBS for failing to provide an authorized employee representative with injury and illness logs in a timely manner after OSHA’s inspection in May 2020. OSHA states that it issued the maximum penalties allowed by law: $13,494 for Smithfield and $15,615 for JBS. The companies have fifteen business days to pay the fines, confer with an OSHA director, or contest the citations.
COVID-19: USDA Announces Second Iteration of Coronavirus Food Assistance Program Direct Payments
On September 18, 2020, the U.S. Department of Agriculture (USDA) announced a second round of $14 billion in funding for the Coronavirus Food Assistance Program, now designated as CFAP 2. The new iteration of the program establishes three categories of commodities:
Price Trigger Commodities—defined as “major commodities that meet a minimum 5-percent price decline over a specified period of time.” Payments vary by commodity, production, and market rate.
Flat-Rate Crops—defined as “crops that either do not meet the 5-percent price decline trigger or do not have data available to calculate a price change.” Flat-rate crops include hemp for the first time in CFAP. Payments will be $15 per acre, calculated using eligible 2020 acres.
Sales Commodities—crops other than price-trigger commodities and flat-rate crops. Payments will be based on 2019 sales.
On Thursday, September 24, 2020 at 3:00 p.m. EDT USDA will host the Coronavirus Food Assistance Program 2.0 Producer Webinar. Applications for the program will be accepted beginning Sept. 21, 2020 through Dec. 11, 2020.
Food Safety: First-Ever Injunction Entered for Produce Safety Rule Violations
On September 15, 2020, the U.S. Food and Drug Administration announced that, in a first-of-its-kind action, it imposed an injunction against further food production under authority of the Produce Safety Rule under authority of the Food Safety Modernization Act. An injunction stopping all production of sprouts and soy products was entered against Fortune Food Product, Inc. in the U.S. District Court for the Northern District of Illinois until satisfactory remedial actions are taken. The injunction resulted from uncorrected violations outlined in a warning letter, dating back to inspections beginning in 2018 and not due to food-borne illness.
COVID-19: Coronavirus Food Assistance Program (CFAP) Pennsylvania Data
PENNSYLVANIA Payments Applications
Dairy $104,851,287 2,720
Livestock $33,027,294 5,622
Non-Specialty Crops $22,179,709 4,884
Specialty Crops $7,423,973 148
TOTALS $167,700,145 13,374
From National Ag Law Authorities & Sources:
Roger A. McEowen, NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part One (Sept. 14, 2020).
Micah Brown, Show Me the Money: A Primer on Agricultural Lending (Sept. 15, 2020).
Peggy Kirk Hall, Governor Signs Ohio Coronavirus Immunity Bill (Sept. 16, 2020).
Paul Goeringer, Appeals Court Remands Enlist Duo Registration to EPA But Does Not Vacate (Sept. 16, 2020).
Penn State Research & News:
Theoretically, Two Layers are Better Than One for Solar-Cell Efficiency (Sept. 15, 2020).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
U.S. Department of Agriculture (USDA) Press Releases:
Joint Statement from Western Hemisphere Agriculture Leaders (Sept. 14, 2020).
USDA Encourages Ag Producers, Residents to Prepare for Hurricane Sally (Sept. 14, 2020).
Deputy Secretary Censky to Return to ASA as CEO (Sept. 18, 2020).
U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Announces Whole-Farm Revenue Protection Program Improvements, RMA (Sept. 16, 2020).
USDA Updates Brucellosis and Bovine Tuberculosis Import Regulations, APHIS (Sept. 16, 2020).
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 38 Sept. 19, 2020):
Department of Agriculture
50 Pa.B. 4751 Notice: “General Quarantine Order; Scrapie.”
50 Pa.B. 4754 Notice: “Interstate/International Quarantine Order; Scrapie.”
50 Pa.B. 4743 Rules and Regulations: “Lands and Buildings; State Game Lands.”
50 Pa.B. 4744 Proposed Rulemaking: “Hunting and Trapping; General.”
50 Pa.B. 4744 Proposed Rulemaking: “Special Permits; Canada Geese Depredation.”
State Conservation Commission
50 Pa.B. 4829 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth's Facility Odor Management Program.”
Presented to Governor
HB 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.” Presented to Governor (Sept. 16, 2020).
Senate Legislation in the House
SB 995 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in general provisions, further providing for definitions [amending definition of ‘multipurpose agricultural
Vehicle’].” Laid on the table (Sept. 17, 2020).
SB 1272 “An Act providing for the Agricultural Conservation Assistance Program and imposing powers and duties on the State Conservation Commission.” Referred to Agriculture and Rural Affairs (Sept. 18, 2020).
SB 1330 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for milk sell by date and best by date labeling.” Referred to Agriculture and Rural Affairs (Sept. 18, 2020).
HB 188 “An Act providing for property owner's bill of rights statement.” Removed from table (Sept. 15, 2020).
H Res 958 “A Resolution recognizing the week of September 19 through 25, 2020, as "Thank a Local Farmer Week" in Pennsylvania.” Adopted in House (Sept. 17, 2020).
Federal Executive Agencies (Federal Register Sept. 14–18, 2020):
85 FR 58331 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Disaster Assistance—General]” (Sept. 18, 2020).
Agricultural Marketing Service
85 FR 56471 Final Rule: “Watermelon Research and Promotion Plan; Realignment” (Sept. 14, 2020).
85 FR 57937 Rule, Final Decision: “National Organic Program (NOP); Final Decision on Organic Livestock and Poultry Practices Rule and Summary of Comments on the Economic Analysis Report” (Sept. 17, 2020).
Animal and Plant Health Inspection Service
85 FR 57998 Proposed Rule—Comment Period: “AWA Research Facility Registration Updates, Reviews, and Reports” (Sept. 17, 2020).
85 FR 57944 Final Rule: “Brucellosis and Bovine Tuberculosis: Importation of Cattle and Bison ” (Sept. 17, 2020).
Farm Service Agency
85 FR 56572 Notice—Comment Period: “Notice of Funds Availability (NOFA); Seafood Trade Relief Program (STRP)” (Sept. 14, 2020).
85 FR 57077 Final Rule—Comment Period: “Special Authority To Enable Funding of Broadband and Smart Utility Facilities Across Select Rural Development Programs” (Sept. 15, 2020).
Federal Emergency Management Agency
85 FR 57872 Notice—Comment Period: “Proposed Flood Hazard Determinations [Cal., Minn., N.Y.]” (Sept. 16, 2020).
85 FR 57874 Notice: “Changes in Flood Hazard Determinations [Ariz., Ark., Colo., Del., Fla., Ga., Miss., N.C., Pa., Tex., Utah, Va., Wyo]” (Sept. 16, 2020).
85 FR 58294 Final Rule: “Suspension of Community Eligibility [Ariz., Alaska, Iowa, Wash.]” (Sept. 18, 2020).
Fish and Wildlife Service
85 FR 57816 Proposed Rule, Notification of Findings: “Endangered and Threatened Wildlife and Plants; Findings on a Petition To Delist the Distinct Population Segment of the Western Yellow-Billed Cuckoo and a Petition To List the U.S. Population of Northwestern Moose” (Sept. 16, 2020).
Food Safety and Inspection Service
85 FR 56538 Proposed Rule—Comment Period: “Prior Label Approval System: Expansion of Generic Label Approval” (Sept. 14, 2020).
Rural Business-Cooperative Service
85 FR 57186 Notice: “Notice of Solicitation of Applications for Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2021” (Sept. 15, 2020).
Small Business Administration
85 FR 56680 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Louisiana” (Sept. 14, 2020).
85 FR 56680 Notice: “Disaster Declaration #16533 and #16534; Michigan Disaster Number MI-00084; Presidential Declaration Amendment of a Major Disaster for the State of Michigan” (Sept. 14, 2020).
85 FR 57920 Notice: “Presidential Declaration of a Major Disaster for the Commonwealth of Puerto Rico” (Sept. 16, 2020).
85 FR 57921 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana” (Sept. 16, 2020).
Trade Representative, Office of United States
85 FR 57925 Notice: “Notice of Product Exclusion Extension Amendment: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation” (Sept. 16, 2020).
U.S. House Legislation:
H.R.7349 “Enhancing Administrative Reviews for Broadband Deployment Act.” Referred to the Subcommittee on Conservation and Forestry (Sept. 11, 2020).
H.R.7421 “Expediting Federal Broadband Deployment Reviews Act.” Referred to the Subcommittee on Conservation and Forestry (Sept. 11, 2020).
H.R.7452 “Relief for Rural Development Borrowers Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 11, 2020).
H.R.7521 “Safe Line Speeds in COVID-19 Act.” Referred to the Subcommittee on Livestock and Foreign Agriculture (Sept. 11, 2020).
H.R.7554 “American Farmers, Food Banks, and Families Act of 2020.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 11, 2020).
H.R.7843 “REPLANT Act [‘To amend the Forest and Rangeland Renewable Resources Planning Act of 1974 to promote reforestation following unplanned events on Federal land, and for other purposes’].” Referred to the Subcommittee on Conservation and Forestry (Sept. 11, 2020).
H.R.7899 “SNAP Healthy Incentives Act of 2020.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 11, 2020).
H.R.7940 “Protect America's Children from Toxic Pesticides Act.” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (Sept. 11, 2020).
H.R.7985 “Emergency Assistance for Rural Water Systems Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 11, 2020).
H.R.7996 “Rural Equal Aid Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 11, 2020).
H.R.8042 “Helping America's Farmers Act” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 11, 2020).
H.R.8238 “To establish the Office of Intelligence in the Department of Agriculture, and for other purposes.” Referred to the Committees on Agriculture and Intelligence (Sept. 14, 2020).
H.R.8274 “To direct the Secretary of Agriculture to establish the Dairy Pricing and Policy Commission, and for other purposes.” Referred to the House Committee on Agriculture (Sept. 16, 2020).
U.S. Senate Legislation:
S.4611 “A bill to direct the Secretary of Agriculture to establish a grant program to address the effects of the COVID-19 pandemic on State and local fairs, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 17, 2020).
Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
Sept. 14–18, 2020 Top #AgLaw links:
Pick-Your-Own Farms Let Guests Indulge a Pastoral Fantasy. Covid-19 Has Been a Harsh Dose of Reality., The Counter (Sept. 10, 2020).
Experts Affirm that Coronavirus is ‘Highly Unlikely’ to be Food Risk, Food Safety News (Sept. 11, 2020).
Bob Evans Sues Chicken Processors on Price Fixing Claims, Meat+Poultry (Sept. 8, 2020).
Penn State Researchers to Study Novel Coronavirus Potential to Infect Livestock, Morning Ag Clips (Sept. 10, 2020).
In Farm-State Victory, EPA Denies Retro-exemptions from Biofuel Mandate, Fern’s Ag Insider (Sept. 14, 2020).
U.S. Cites Smithfield Foods for Failing to Protect Workers from Coronavirus, Reuters (Sept. 10, 2020).
Germany Confirms First ASF Case in Wild Boar, Feedstuffs (Sept. 10, 2020).
Food Waste and Covid-19: Impacts Along the Supply Chain, University of Illinois Farmdoc Daily (Sept. 10, 2020).
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