Agricultural Law Weekly Review—week ending November 6, 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 Penn State Agricultural Law Podcast.  

Agricultural Labor: Department of Labor Modifies H2A Minimum Wage Calculation
On November 5, 2020, the U.S. Department of Labor’s (DOL) Employment and Training Administration published in the Federal Register a final rule titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (85 FR 70445), which changes the calculation method of the Adverse Effect Wage Rate (AEWR), or the minimum wage for agricultural guest workers.  Under the final rule, DOL will base the AEWR for field and livestock workers on the 2019 Farm Labor Survey (FLS) “average annual gross hourly wage rate” for those workers until the end of 2022.  Starting in 2023, DOL will use any percentage change in the Bureau of Labor Statistics (BLS) wage and salary Employment Cost Index (ECI) for the previous twelve months to modify AEWRS for these workers.  DOL has published an “Implementation FAQ” document to supplement the final rule, which is effective December 21, 2020.  

Biofuels: EPA Requests Extension to Reply to U.S. Supreme Court Small Refinery Exemption Appeal  
On November 4, 2020, the U.S. Environmental Protection Agency (EPA) filed a motion for a time extension in which to file a response to a petition for writ of certiorari filed with the U.S. Supreme Court on September 4, 2020, by several petroleum refiners seeking to appeal the U.S. Court of Appeals for the Tenth Circuit’s January 24, 2020 decision invalidating EPA’s grant of renewable fuel standard (RFS) small refinery exemptions.  HollyFrontier Cheyenne Refining, LLC, et al., Petitioners v. Renewable Fuels Association, et al., 20-472. The petition for writ of certiorari seeks to determine whether a small refinery must have received “uninterrupted, continuous hardship exemptions” each year since 2011 to qualify for a RFS hardship exemption.  In its motion, EPA requests that its November 12, 2020 response deadline be extended until December 14, 2020.  The request is unexpected due to EPA’s earlier failure to seek an appeal of the Tenth Circuit Court’s decision against it.  For background, see ALWR—January 30, 2020, “Court of Appeals Invalidates EPA Grant of Renewable Fuel Standard Waivers.”  

Pesticides: Interim EPA Registrations of Triazines Appealed 
On October 30, 2020, a group of environmental, food, and labor interest groups filed a petition for review in the U.S. Court of Appeals for the Ninth Circuit seeking to invalidate the U.S. Environmental Protection Agency’s (EPA) Interim Registrations of three triazines: atrazine, propazine, and simazine.  (See ALWR—week ending September 25, 2020, “Pesticide Interim Registration Review Decisions Available”).  The petitioners—the Rural Coalition, Pesticide Action Network North America, Beyond Pesticides, Center for Biological Diversity, and the Center for Food Safety—allege that the Interim Registrations lack substantial evidence in support and that EPA’s approval of the registrations violated its duties under FIFRA.  According to the court’s time schedule, the petitioners’ must submit their brief by January 19, 2021, and EPA must file an answer by February 17, 2021.   

Pesticides: EPA Publishes Final Rule on Pesticide Application Exclusion Zone Requirements 
On October 30, 2020, the U.S. Environmental Protection Agency published in the Federal Register a final rule titled “Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone Requirements” (85 FR 68760).  Among several changes, the rule limits the application exclusion zone (AEZ) requirements to a producer’s own property and allows property owners and immediate family to shelter in place in housing or closed buildings located on the property during pesticide application.  The final rule is effective December 29, 2020.  For background, see ALWR—October 31, 2019, “EPA Proposes New Rule on Pesticide Application Exclusion Zone Requirements.”  

Biotechnology: Court Remands FDA Decision on Bio-Engineered Salmon for Additional Analysis
On November 5, 2020, the U.S. District Court for the Northern District of California issued an order granting summary judgment against the Food and Drug Administration’s (FDA) in a challenge to its approval of bio-engineered salmon farming. Institute for Fisheries Resources et al. v. Hahn, et al.,  3:16-cv-01574.  According to the opinion, although FDA determined that the possibility of bio-engineered salmon escape was highly unlikely, the court found that the agency failed to meaningfully analyze the potential effects to the wild salmon population if the bio-engineered salmon were to escape and establish themselves as a population.  The court, however, declined to vacate the agency action, instead ordering the agency to “go back and compete the analysis,” and stated that a vacatur would call for the destruction of the existing genetically engineered salmon, “a significant loss of property and animal life that would be wasteful given the real possibility that the FDA will be able to cure the . . . errors on remand.”  

Pennsylvania Passes Broadband Access and Agricultural Vehicle Width Legislation
On October 29, 2020, Pennsylvania Governor Wolf signed into law two pieces of legislation of interest to agricultural and rural landowners: (1) HB 2438, which addresses broadband access, and (2) HB 995, which increases the width of agricultural vehicles.  HB 2438 allows an electric cooperative to provide broadband services and to use an existing, currently-owned easement to build broadband structures.  The legislation also allows a broadband service provider to use an electric cooperative’s easement to add broadband accommodations. HB 995 increases the width of multipurpose agricultural vehicles that are “used exclusively for agricultural operations” from sixty-two to sixty-six inches as long as the vehicle is “only incidentally operated or moved upon the highways.” 

Agricultural Law/Policy Resources of Interest:
Sarah Catherine Cooper, The Fight for Organic: Hydroponic Certification Under Fire (Nov. 3, 2020).
Brigit Rollins, Pesticide Litigation: Chlorpyrifos Under Fire (Nov. 5, 2020). 
Nicole Cook, FSA Changes to Payment Limitations and Eligibility Rules (Nov. 5, 2020). 

Penn State Research & News: 
New Bacterial Testing Method to Improve Health Care, Food Safety and More (Oct. 30, 2020). 
University Center Advances Energy, Environmental Knowledge Via Virtual Reality (Nov. 5, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, October 26 - November 1 (Nov. 4, 2020). 

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

Trump Administration Invests $1.5 Million in High-Speed Broadband in Rural Virginia (Nov. 2, 2020).

USDA Announces First Set of Great American Outdoors Act Projects (Nov. 2, 2020).

Secretary Perdue Statement on DOL’s H2A Wage Rule (Nov. 2, 2020).

USDA Co-hosts Free Webinar on Nov. 12 on Livestock Risk Management (Nov. 4, 2020).

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

USDA Announces Commodity Credit Corporation Lending Rates for November 2020, FSA (Nov. 2, 2020).

Availability of Petition for Deregulation of Corn Developed Using Genetic Engineering, APHIS (Nov. 2, 2020).

USDA Authorizes Importation of Cold-Treated Citrus Fruit from South Africa into All U.S. Ports of Entry, APHIS (Nov. 4, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 45—Nov. 7, 2020): 

Game Commission

50 Pa.B. 6208 Rules and Regulations: “Hunting and Trapping; General.” 

50 Pa.B. 6209 Rules and Regulations: “Special Permits; Canada Geese Depredation.”

Pennsylvania Legislature

No relevant actions Nov. 2–6, 2020.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 2–6, 2020): 

Agriculture Department

85 FR 69564 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Bovine Spongiform Encephalopathy (BSE); Importation of Animals and Animal Products]” (Nov. 3, 2020).

85 FR 70576 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Marking, Labeling, and Packaging of Meat, Poultry, and Egg Products]” (Nov. 5, 2020).

85 FR 71047 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Blood and Tissue Collection, and Recordkeeping, at Slaughtering, Rendering, and Approved Livestock Marketing Establishments and Facilities]” (Nov. 6, 2020).

Agricultural Marketing Service 

85 FR 70431 Final Rule: “National Organic Program; Amendments to the National List of Allowed and Prohibited Substances per October 2018 NOSB Recommendations (Crops and Handling)” (Nov. 5, 2020). 

Animal and Plant Health Inspection Service

85 FR 69564 Notice—Comment Period: “Pioneer Hi-Bred International, Inc.: Availability of a Petition for the Determination of Nonregulated Status for Insect Resistant and Herbicide-Tolerant Maize” (Nov. 3, 2020).

85 FR 70576 Notice: “Decision To Revise Import Requirements for the Importation of Fresh Citrus From South Africa Into the United States” (Nov. 5, 2020).

Employment and Training Administration

85 FR 70445 Final Rule: “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (Nov. 5, 2020).

Environmental Protection Agency

85 FR 69307 Proposed Rule: “Pesticides; Proposal To Add Chitosan to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products” (Nov. 2, 2020).

85 FR 69512 Final Rule, comments accepted: “Dipropylene Glycol and Triethylene Glycol; Exemption From the Requirement of a Tolerance” (Nov. 3, 2020).

85 FR 70062 Final Rule: “Trinexapac-ethyl; Pesticide Tolerances” (Nov. 4, 2020).

85 FR 70146 Notice—Comment Period: “Pesticides; Draft Guidance for Pesticide Registrants on the List of Pests of Significant Public Health Importance” (Nov. 4, 2020).

85 FR 70147 Notice—Comment Period: “Notice of Tentative Approval and Opportunity for Public Comment and Public Hearing for Public Water System Supervision Program Revision for Pennsylvania” (Nov. 4, 2020).

85 FR 70497 Final Rule, comments accepted: “Calcium Pantothenate; Exemption From the Requirement of a Tolerance” (Nov. 5, 2020).

85 FR 70494 Final Rule, comments accepted: “Thiamine Mononitrate; Exemption From the Requirement of a Tolerance” (Nov. 5, 2020).

85 FR 70615 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (Nov. 5, 2020).

85 FR 70613 Notice: “Product Cancellation Order for Certain Pesticide Registrations” (Nov. 5, 2020).

85 FR 70586 Notice, comments accepted: “Quarterly Update to Annual Listing of Foreign Government Subsidies on Articles of Cheese Subject to an In-Quota Rate of Duty” (Nov. 5, 2020).

85 FR 70997 Final Rule, comments accepted: “Mefentrifluconazole; Pesticide Tolerances” (Nov. 6, 2020).

85 FR 70976 Final Rule: “Tolerance Crop Grouping Program V” (Nov. 6, 2020).

85 FR 71071 Notice—Comment Period: “Atrazine, Simazine, and Propazine Registration Review; Draft Endangered Species Act Biological Evaluations; Notice of Availability” (Nov. 6, 2020).

Farm Credit Administration

85 FR 70955 Final Rule, correction: “Organization; Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations; Investment Eligibility; Correction” (Nov. 6, 2020).

Federal Emergency Management Agency

85 FR 69636 Notice: “Changes in Flood Hazard Determinations [Ariz., Cal, Fla., Ill., Ind., Mich., Ohio, Or., Utah]” (Nov. 3, 2020).

85 FR 69638 Notice—Comment Period: “Proposed Flood Hazard Determinations [Mich.]” (Nov. 3, 2020).

Fish and Wildlife Service

85 FR 69778 Final Rule: “Endangered and Threatened Wildlife and Plants; Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife” (Nov. 3, 2020).

85 FR 69675 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana [Hurricane Laura]” (Nov. 3, 2020).

Food and Drug Administration

85 FR 70182 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Regulations Under the Federal Import Milk Act” (Nov. 4, 2020).

Food and Nutrition Service 

85 FR 70043 Final Rule: “Supplemental Nutrition Assistance Program: Pandemic Electronic Benefits Transfer (P-EBT) Integrity” (Nov. 4, 2020).

Foreign Agricultural Service

85 FR 70127 Notice: “Information on Dairy Import Licenses for the 2021 Tariff-Rate Quota (TRQ) Year-United Kingdom Designation of Importers for Dairy Import Licenses” (Nov. 4, 2020).

Forest Service

85 FR 69303 Proposed Rule: “Assessing Fees for Excess and Unauthorized Grazing” (Nov. 2, 2020).

International Trade Commission

85 FR 70188 Notice: “Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest [Certain Chocolate Milk Powder and Packaging Thereof]” (Nov. 4, 2020).

Small Business Administration

85 FR 69376 Notice: “Administrative Declaration of a Disaster for the State of Utah” (Nov. 2, 2020). 

U.S. House Agriculture Committee

H.R.8731 “To fill vacancies for Forest Service recreation management and planning staff in National Forests, and for other purposes.” Referred to the House Committee on Agriculture (Nov. 5, 2020).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:

No new actions Nov. 2–6, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Nov. 2–6, 2020: 
Congress to discuss new farm bill soon, WEAU13 News 
Pesticide opponents want Ninth Circuit to review EPA’s latest dicamba pesticide ruling, Food Safety News 
Perdue Comments on Labor Department H-2A Wage Rule, Brownfield 
Grange hails enactment of broadband bill, Morning Ag Clips
IDFA calls for elimination of barriers to US dairy exports, Morning Ag Clips 
EPA clarifies pesticide application zone restrictions, Feedstuffs 
Lawmakers Call for Food Name Protections in Trade Deals, Brownfield 
FSA, Farm Credit Administration refocus on younger farmers, Feedstuffs 
Congressional letter seeks to protect common food names, Feedstuffs 
Bayer Takes $10 Billion Writedown, Flags Higher Roundup Settlement Bill, Successful Farming/Reuters

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