July 27, 2020

Agricultural Law Weekly Review—week ending July 24, 2020

Pesticides/Herbicides: California Appeals Court Affirms Jury Verdict that Bayer Liable for Glyphosate-Caused Cancer but Reduces Damages
On July 20, 2020, the California First Appellate District Court of Appeal issued an opinion affirming liability but reducing a state trial court’s 2018 jury verdict against Monsanto (purchased by Bayer in June 2018) in Johnson v. Monsanto, No. A155940.  The appeals court affirmed the jury’s finding that Monsanto’s product caused Mr. Johnson’s  non-Hodgkin’s lymphoma through nearly daily use of Round-Up while employed as a school district grounds manager but reduced the award as excessive, from $289.3 million ($39.3 million in compensatory damages and $250 million in punitive damages) to $20.5 million (compensatory and punitive damages of $10.25 million each).

Pesticides/Herbicides: Ninth Circuit Court of Appeals Affirms EPA Registration Approval for Glyphosate-Blend Enlist Duo (2,4-D)
On July 22, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the U.S. Environmental Protection Agency (EPA) registration for Dow/Corteva Agriscience’s glyphosate blend, Enlist Duo, in the case of National Family Farm Coalition v. EPA, No. 17-70810.  Enlist Duo, a combination of glyphosate and 2, 4-dichlorophenoxyacetic acid (“2,4-D”) choline salt, was challenged by the plaintiffs under the Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA).  In affirming the registration, the Court did find that EPA’s registration decision was “lacking in substantial evidence” because it “failed to properly assess harm to monarch butterflies from increased 2,4-D use on milkweed,” but the Court deemed the “error” as “not ‘serious’ . . . in light of EPA’s full compliance with the ESA and substantial compliance with FIFRA” and remanded the case back to EPA for further review of that discrete issue only.

Pesticides/Herbicides: Companies Seek Rehearing of Ninth Circuit Dicamba Case
On July 20, 2020, Monsanto Company (Monsanto), BASF Corporation (BASF), and E.I. du Pont de Nemours and Company (DuPont) filed petitions with the U.S. Court of Appeals for the Ninth Circuit seeking a rehearing en banc (of the whole court) of the June 3, 2020 decision invalidating the U.S. Environmental Protection Agency (EPA) registration for Monsanto/Bayer’s XtendiMax, BASF’s Engenia and DuPont/Corteva’s FeXapan (National Family Farm Coalition v. EPA, No. 19-70115).  The companies argue that the court improperly “substitut[ed] its [own] judgement of highly technical scientific evidence for EPA’s” and that it lacked proper jurisdiction because the plaintiffs failed to file for review within the “statutory 60-day” period following EPA’s issuance of Monsanto’s product registration.  Additionally, BASF and DuPont, which were granted intervenor status on June 19, 2020, argued that they lacked fair notice and the opportunity to be heard in the case.  On July 23, 2020, the court ordered a recall of the June 3, 2020 mandate, temporarily lifting the effective date of its decision, while it considers the petitions for rehearing.  EPA’s product registration cancellations issued subsequent to the June decision remain in effect however, so legal use of the products remain unchanged as a result of this most recent decision.  For more see, “U.S. Appeals Court Invalidates FIFRA Registrations of Dicamba Products XtendiMax, Engenia and FeXapan,” Agricultural Law in the Spotlight – June 4, 2020 and “Ninth Circuit Denies Motion by BASF and Corteva Seeking To Preserve Their Dicamba Product Registrations,” Agricultural Law Weekly Review—week ending July 3, 2020.

Agricultural Labor/COVID-19:  PA Maid-Rite Employees Seek Writ of Mandamus Ordering OSHA Plant Investigation
On July 22, 2020, three workers from Maid-Rite Specialty Foods, LLC (Maid-Rite) in Dunmore, Pennsylvania and employee representative Justice at Work filed an emergency petition for emergency mandamus relief in the U.S. District Court for the Middle District of Pennsylvania against the U.S. Secretary of Labor and the Occupational Safety and Health Administration (OSHA).  The petition seeks a writ of mandamus compelling the Secretary of Labor to order an OSHA investigation of the Maid-Rite plant for its failure to comply with OSHA COVID-19 guidelines, creating an “imminent danger” for employees.  According to the complaint, the “practices include failing to provide cloth face coverings, configuring the production line in such a way that workers cannot social distance, failing to arrange for social distancing in other areas of the plant, failing to provide adequate handwashing opportunities, creating incentives for workers to attend work sick, failing to inform workers of potential exposures to COVID-19, and rotating-in workers from other facilities in a way that increases the risk of spreading the virus.”  In reply, on July 23, 2020, the court issued an order directing the defendants to file a response by July 27, 2020 and setting a hearing for July 31, 2020. This is believed to be the the first such petition of its kind as a result of the COVID-19 pandemic.

Packers and Stockyards Act: USDA Issues Beef Pricing Investigation Report
On July 22, 2020 the U.S. Department of Agriculture (USDA) announced the publication of the Boxed Beef & Fed Cattle Price Spread Investigation Report, written by USDA’s Agricultural Marketing Service (AMS).  The report analyzes beef prices and market conditions before and after the Holcomb, Kansas Tyson Fresh Meats plant fire and resulting four-month closure in addition to COVID-19 market disruptions.  While the report does not imply industry misconduct, it specifies that the “[f]indings . . . do not preclude the possibility that individual entities or groups of entities violated the Packers and Stockyards Act.”  The report further states that Packers and Stockyards Act investigations are ongoing, and that USDA is authorized to report any violations, if found, to the Department of Justice.

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 20, 2020, are below:

PENNSYLVANIA Payments Applications

Non-Specialty Crops $14,114,405.22     3,645

Specialty Crops$2,792,701.34         42

Livestock $20,441,280.87     3,919

Dairy $73,596,566.36     2,236

PA TOTALS        $110,944,953.79/9,842

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 3:00 pm

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

Past Webinars can be viewed at the following links:

From National Ag Law Authorities & Sources:
Roger McEowen, The Supreme Court’s DACA Opinion and the Impact on Agriculture (July 22, 2020).
Ellen Essman, Agricultural Nutrients and Water Quality: Recent Litigation in the United States (July 22, 2020).

Penn State Research & News:
Harnessing Biomass, Manure to Fuel Farms Through Multi-Institutional Project (July 21, 2020).
Plant Pathologist Receives Grant to Develop Disease Management Tools for Wheat (July 21, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:
Secretary of Agriculture: Urban, Community Gardens Combat Food Deserts, Grow Food, Life Skills (July 22, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
USDA Approves North Dakota to Accept SNAP Benefits Online (July 20, 2020).
USDA Announces $15 Million in Funding Opportunities to Support Socially Disadvantaged and Veteran Farmers and Ranchers (July 21, 2020).
USDA Provides Update on Investigation Following 2019 Tyson Beef Plant Closure and COVID-19 Pandemic (July 22, 2020).
USDA Approves Arkansas and Hawaii to Accept SNAP Benefits Online (July 23, 2020).
USDA Announces a Third Round of Farmers to Families Food Box Program Purchases (July 24, 2020)

U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Announces Improvements to the Livestock Gross Margin Insurance Program for Cattle and Swine (July 20, 2020).
USDA Declares August Tree Check Month (July 23, 2020).
APHIS Releases Full Suite of Defend the Flock Materials (July 24, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 50, No. 30 July 25, 2020): 

Department of Agriculture
50 Pa.B. 3734 Notice: “Pennsylvania Malt and Brewed Beverage Industry Promotion Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding” (July 25, 2020).
50 Pa.B. 3744 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding” (July 25, 2020).

Department of Environmental Protection
50 Pa.B. 3803 Notice: “Availability of Grants through the Small Business Advantage Grant Program” (July 25, 2020).

Milk Marketing Board
50 Pa.B. 3807 Notice: “Hearing and Presubmission Schedule; All Milk Marketing Areas; Over-Order Premium” (July 25, 2020).

Susquehanna River Basin Commission
50 Pa.B. 3810 Notice: “Projects Approved for Consumptive Uses of Water” (July 25, 2020).
50 Pa.B. 3812 Notice: “Projects Approved for Minor Modifications” (July 25, 2020).
50 Pa.B. 3812 Notice: “Revocation of Approvals” (July 25, 2020).
50 Pa.B. 3813 Notice: “Telephonic Public Hearing [August 13, 2020, at 2:30 p.m.]” (July 25, 2020).

Pennsylvania Legislature

Signed by 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.” Act No. 68 (July 23, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices (Federal Register July 20–24, 2020): 

Agriculture Department
85 FR 43807 Notice: “Submission for OMB Review; Comment Request [Rural Housing Service: Community Facility Loans]” (July 20, 2020).
85 FR 43806 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Guaranteed Farm Loans]” (July 20, 2020).
85 FR 44850 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: 7 CFR part 1744, subpart B, Lien Accommodations and Subordination Policy]” (July 24, 2020).
85 FR 44848 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Cooperative Agricultural Pest Survey’]” (July 24, 2020).
85 FR 44851 Notice: “Submission for OMB Review; Comment Request [Risk Management Agency: Area Risk Protection Insurance]” (July 24, 2020).
85 FR 44848 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS) : Agricultural Resource Management and Chemical Use Surveys—Substantive Change]” (July 24, 2020).

Agricultural Marketing Service
85 FR 44792 Proposed Rule—Comment Period: “Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Changes to Subcommittee Size and Addition of Term Limits” (July 24, 2020).
85 FR 44791 Proposed Rule—Comment Period: “National Bioengineered Food Disclosure Standard; Updates to the List of Bioengineered Foods” (July 24, 2020).

Animal and Plant Health Inspection Service
85 FR 43810 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Export Certification: Accreditation of Nongovernment Facilities” (July 20, 2020).
85 FR 43809 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; South American Cactus Moth; Quarantine and Regulations” (July 20, 2020).
85 FR 43807 Notice—Comment Period: “Pioneer Hi-Bred International; Availability of a Preliminary Pest Risk Assessment and Draft Environmental Assessment” (July 20, 2020).
85 FR 44851 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Citrus Canker; Interstate Movement of Regulated Nursery Stock and Fruit From Quarantined Areas” (July 24, 2020).

Environmental Protection Agency
85 FR 44072 Notice—Comment Period: Pesticide Product Registration; Receipt of Applications for New Uses (June 2020) [from Syngenta Crop Protection, LLC; FMC Corporation; ISK Biosciences Corporation]” (July 21, 2020).

Federal Emergency Management Agency
85 FR 43708 Rule: “Suspension of Community Eligibility [Pa., Iowa]” (July 20, 2020).
85 FR 44917 Notice: “Changes in Flood Hazard Determinations [Colo., Fla., Mass., Me., Pa., Tex., Va., D.C.]” (July 24, 2020).
85 FR 44916 Notice: “Illinois; Amendment No. 2 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44917 Notice: “Indiana; Amendment No. 2 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44920 Notice: “Michigan; Amendment No. 1 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44920 Notice: “Minnesota; Amendment No. 2 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44921 Notice: “Montana; Amendment No. 1 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44921 Notice: “Ohio; Amendment No. 2 to Notice of a Major Disaster Declaration” (July 24, 2020).
85 FR 44920 Notice: “Wisconsin; Amendment No. 2 to Notice of a Major Disaster Declaration” (July 24, 2020).

Federal Trade Commission
85 FR 44080 Notice—Comment Period: “Elanco Animal Health and Bayer Animal Health; Analysis of Agreement Containing Consent Orders To Aid Public Comment” (July 21, 2020).

Food and Drug Administration
85 FR 43852 Notice: “Phibro Animal Health Corp.; Carbadox in Medicated Swine Feed; Withdrawal of Notice of Opportunity for Hearing” (July 20, 2020).
85 FR 43853 Notice—Comment Period: “Phibro Animal Health Corp.; Carbadox in Medicated Swine Feed; Revocation of Approved Method” (July 20, 2020).
85 FR 44905 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Food Canning Establishment Registration, Process Filing, and Recordkeeping for Acidified Foods and Thermally Processed Low-Acid Foods in Hermetically Sealed Containers” (July 24, 2020).

Fish and Wildlife Service
85 FR 44265 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; 90-Day Findings for Two Species [Las Vegas bearpoppy, Tiehm’s buckwheat]” (July 22, 2020).
85 FR 44315 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for Indiana Bat and Northern Long-Eared Bat for the Forestry Habitat Conservation Plan for Bats on Pennsylvania State Game Lands, State Forests, and State Parks; and Draft Environmental Assessment” (July 22, 2020).
85 FR 44821 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Reclassification of Morro Shoulderband Snail (Helminthoglypta walkeriana)” (July 24, 2020).

Food and Drug Administration
85 FR 44305 Notice—Comment Period: “Cannabis and Cannabis-Derived Compounds: Quality Considerations for Clinical Research; Draft Guidance for Industry; Availability” (July 22, 2020).

Food and Nutrition Service
85 FR 44270 Notice: “National School Lunch, Special Milk, and School Breakfast Programs, National Average Payments/Maximum Reimbursement Rates” (July 22, 2020).
85 FR 44268 Notice: “Child and Adult Care Food Program: National Average Payment Rates, Day Care Home Food Service Payment Rates, and Administrative Reimbursement Rates for Sponsoring Organizations of Day Care Homes for the Period July 1, 2020 Through June 30, 2021” (July 22, 2020).
85 FR 44273 Notice: “Food Distribution Program: Value of Donated Foods From July 1, 2020 Through June 30, 2021” (July 22, 2020).

Partnerships and Public Engagement Office
85 FR 44039 Notice—Comment Period: “Funding Opportunity Announcement: Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers; Correction” (July 21, 2020).

Rural Business-Cooperative Service
85 FR 44273 Notice: “Stakeholder Listening Sessions on New Rural Innovation Stronger Economy (RISE) Regulation” (July 22, 2020).

Small Business Administration 
85 FR 44139 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Alabama” (July 21, 2020).
85 FR 44140 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Alabama” (July 21, 2020).
85 FR 44140 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Arkansas” (July 21, 2020).

U.S. House Agriculture Committee Actions:
H.R.7690 “To establish a payment program for unexpected loss of markets and revenues to timber harvesting and timber hauling businesses due to the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (July 20, 2020).
H.R.7680 “To provide for loans to critical rural utility service providers to ensure continued service and safe operation of rural utility systems during certain emergencies, and for other purposes.” Referred to the House Committee on Agriculture (July 20, 2020).
H.R.7679 “To amend the Commodity Credit Corporation Charter Act to index the borrowing authority limit of Commodity Credit Corporation for inflation, and for other purposes.” Referred to the House Committee on Agriculture (July 20, 2020).
H.R.7745 “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.” Referred to the House Committee on Agriculture (July 23, 2020).
H.R.7758 “To provide for assistance to rural health, education, and public safety facilities affected by the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (July 23, 2020).
H.R.7781 “To eliminate certain subsidies for fossil-fuel production.” Referred to the Committees on Ways and Means, Natural Resources, Transportation and Infrastructure, Science, Space, and Technology, Energy and Commerce, Agriculture, Financial Services, the Judiciary, Appropriations, and Foreign Affairs (July 24, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.4233 “A bill to establish a payment program for unexpected loss of markets and revenues to timber harvesting and timber hauling businesses due to the COVID-19 pandemic, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 21, 2020).
S.4298 “A bill to amend the Agricultural Marketing Act of 1946 to direct the Secretary of Agriculture to make grants for improvements to meat and poultry facilities to allow for interstate shipment, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 23, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks:
Farm State Lawmakers: Ethanol a Priority in Senate COVID Relief Package, Farmdoc Farm Policy News (July 19, 2020).
BASF, Corteva Ask for New 9th Circuit Court Review on Dicamba Ruling, Brownfield (July 21, 2020).
It’s a Whopper: Burger King’s Misinformed Shot at Their Supply Chain, The Fence Post (July 17, 2020).
Turkey Growers Building Case for Next Round of CFAP, Brownfield (July 21, 2020).
Amid a Deadly Virus and Crippled Economy, One Form of Aid Has Proved Reliable: Food Stamps, New York Times (July 19, 2020).
Pandemic, Growing Need Strain U.S. Food Bank Operations, The Wall Street Journal (July 16, 2020).
Dairy Group Says Wisconsin’s Coronavirus Direct Payment Program Excluded Larger Dairy Farms, Brownfield (July 17, 2020).
U.S. Iowa Senators Hope to Include Biofuels Aid in Next Coronavirus Relief Package, Reuters (July 17, 2020).
Guidelines Reaffirm Beef’s Important Role in a Healthy Diet, Morning Ag Clips (July 16, 2020).
Farmers Need to be Better Protected Against the Risk of ASF, Food Navigator (July 21, 2020).
Bayer Loses Roundup Weedkiller Appeal, The Wall Street Journal (July 20, 2020).

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Written by:
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney