Agricultural Law Weekly Review – week ending February 5, 2021

COVID-19/Ag Labor: Executive Order Directs OSHA to Issue Guidance and Consider Emergency Temporary Standards
On January 29, 2021, the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) announced the issuance of new guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” consistent with January 21, 2021’s Executive Order 13999 directing DOL to, among many other things, issue revised COVID-19 workplace safety guidance within two weeks and consider the necessity of mandatory emergency temporary standards on COVID-19 and, if necessary, issue them by March 15, 2021.  EO 13999 also directs USDA, DOL and Health and Human Services (HHS) and the Department of Energy to “explore mechanisms to protect workers not protected under OSHA,” which may include an examination of the so-called “small farm exemption” to OSHA jurisdiction which prevents enforcement of OSHA standards on farming operations of less than 10 employees and no employer-supplied housing.

COVID-19/Ag Labor: U.S. Congress Formally Investigating Meatpacking Plant Outbreaks and OSHA Response
On February 1, 2021, the U.S. House of Representatives’ Select Subcommittee on the Coronavirus Crisis sent letters to the Occupational Safety and Health Administration (OSHA), Tyson Foods, Smithfield Foods, and JBS USA initiating an investigation into the multiple coronavirus outbreaks at meatpacking facilities, a “source for rapid transmission,” according to the Centers for Disease Control and Prevention (CDC).  An accompanying press release states that, although nearly 54,000 workers at 569 meatpacking plants have tested positive for the coronavirus and more than 250 have died, OSHA only issued eight citations for coronavirus-related violations, resulting in less than $80,000 in total penalties.  The subcommittee is requesting that OSHA provide documentation of all coronavirus-related complaints, investigations, inspections, actions, guidance, and policies pertaining to meatpacking facilities by February 22, 2021, and that the listed companies provide documentation of their incidents and actions by February 15, 2021.

COVID-19: Federal Court Remands Meatpacking Plant COVID-19 Wrongful Death Action Back to State Court
On January 29, 2021, the U.S. District Court for the Eastern District of Pennsylvania issued an order and memorandum remanding a lawsuit alleging the wrongful death of a JBS Souderton, Inc. meatpacking employee back to state court.  Benjamin v. JBS S.A. (No. 2:20-cv-02594).  The complaint, originally filed in the Court of Common Pleas of Philadelphia County, alleges that JBS’s disregard of safety regulations led to the death of Enock Benjamin, a Pennsylvania citizen and JBS Souderton employee.  JBS removed the case to federal court, claiming that the case “necessarily raises a federal issue” because the plaintiffs allege that JBS failed to comply with guidelines issued by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC).  The court rejected JBS’s argument, noting that the federal government is not a party and that the case requires a fact-specific assessment of Defendants’ conduct and not a pure issue of federal law.

Pesticides/Herbicides: Bayer Files for Court Approval of $2 Billion Settlement Fund for Glyphosate Claims
On February 3, 2021, counsel for Plaintiffs and the Proposed Class in the Monsanto/Bayer Roundup multi-district litigation In re: Roundup Products Liability Litigation (N.D. California, No. 3:16-md-02741) filed a motion for preliminary approval of proposed class settlement in the U. S. District Court for the Northern District of California.  Concurrently announced by Bayer, the settlement agreement requires the company to pay up to $2 billion over the next four years to qualifying class members alleging Non-Hodgkins lymphoma resulting from Roundup use, but who have not either file suit or asserted a legal claim through counsel as of February 3, 2021.  According to the settlement, Bayer will set up a compensation fund that will award $10,000 to $200,000 per person “with the potential for increased awards based on exceptional circumstances.”  Class members are not obligated to participate or accept fund payments until after their discovery of Non-Hodgkins lymphoma, and those who choose not to participate retain their litigation rights.  However, the filing of new suits is stayed, and any statutes of limitations are tolled, as to all class members’ claims for the next four years.  If a class member does not accept a settlement from the fund, any claim for punitive damages is barred in subsequent litigation.  Additionally, Bayer states that it will seek Environmental Protection Agency (EPA) permission to include a reference link on its glyphosate product labels containing scientific research data.

Pesticides/Herbicides: Dicamba Registration Challenges Consolidated in D.C. Circuit Court
On January 26, 2021, a lawsuit filed by National Family Farm Coalition (NFFC) in the U.S. Court of Appeals for the Ninth Circuit challenging the U.S. Environmental Protection Agency’s (EPA) October 2020 dicamba product registration approvals was transferred to the U.S. Court of Appeals for the District of Columbia Circuit.  National Family Farm Coalition, et al v. EPA, et al, No. 21-01043 (D.C. Cir. Jan 26, 2021).  On February 2, 2021, the case was consolidated with a case filed by the American Soybean Association (ASA), challenging the dicamba registrations on different grounds.  American Soybean Association v. Jane Nishida, et al, No. 20-01441 (D.C. Cir. Nov 05, 2020).  While the NFFC suit argues for nullifying the dicamba registrations, alleging they were issued in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), ASA’s suit argues for expansion of the registration, alleging that the current use limitations are too prohibitive for effective use of the dicamba products.  However, on February 3, 2021, EPA filed an unopposed motion to stay the proceedings for 60 days in accordance with the President’s January 25, 2021 Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis”  See ALWR—week ending January 29, 2021, “White House Executive Order Directs Review of Previous Administration Actions, Cancels and Revokes Others”.  For background on the Ninth Circuit filing, see ALWR—week ending December 25, 2020, “5-Year Dicamba Registration Approval Challenged in Parallel Litigation.”

COVID-19/Ag Labor: South African H-2 Workers Eligible for Entry Suspension Exception
On January 25, 2021, the President issued a proclamation, titled Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease, published at 86 FR 7467, prohibiting entry into the United States by persons who, during the 14-day period preceding attempted entry, were physically present within the Schengen Area, the United Kingdom, the Republic of Ireland, the Federative Republic of Brazil, and the Republic of South Africa.  On January 28, 2021, as the result of an American Farm Bureau Federation letter of the same date to the U.S. Departments of Homeland Security and State raising the absence of an H-2A worker exemption, the U.S. Department of State issued an announcement stating that H-2A and H-2B workers who have been present in South Africa may qualify for national interest exceptions to be applied for at the time of Embassy /Consulate interviews.

Conservation Programs: NRCS Publishes Agricultural Conservation Easement Program Final Rule
On February 4, 2021, the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) and the Commodity Credit Corporation (CCC) published in the Federal Register a final rule titled “Agricultural Conservation Easement Program” (86 FR 8113).  It was announced the same day by NRCS press release, which outlines the miscellaneous program regulation changes.

Conservation Programs: USDA Extends Conservation Reserve Program General Signup
On February 5, 2021, the U.S. Department of Agriculture (USDA) announced that it is extending the general signup for the Conservation Reserve Program (CRP), which provides ten to fifteen years of rental payments for land “devoted to conservation purposes.”  According to the CRP website, continuous signup is now ongoing.

Penn State Agricultural Law Podcast: Listen to the latest episode here. 

Upcoming Webinars from Penn State Extension

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Attorney, March 23, 2021 at 9:00 am ET.

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Accountant, April 27, 2021 at 9:00 am ET.  

Agricultural Law/Policy Resources of Interest: 

Tiffany Lashmet, USDA Releases Final Rule for the Domestic Production of Hemp (Feb. 1, 2021).

Jeffrey K. Lewis, 2020 Legislation Becoming Effective in 2021 and Beyond, Ohio Legislature (Feb. 1, 2021).

Micah Brown, Coronavirus Food Assistance Program (CFAP) Additional Assistance: Structure and Status (Feb. 2, 2021).

Brigit Rollins, States, Environmental Groups Challenge EPA Over Sulfoxaflor (Fe. 4, 2021).

Penn State Research & News:

Newly Discovered Trait Helps Plants Grow Deeper Roots in Dry, Compacted Soils (Feb. 1, 2021).

Summer Weather Conditions Influence Winter Survival of Honey Bees (Feb. 1, 2021).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, January 25 – January 31 (Feb. 3, 2021).

Agriculture Secretary Seeks Proposals For $300,000 In Matching Grants To Boost Sales, Exports (Feb. 3, 2021).

Agriculture Secretary Reminds Farmers Of Deadline For $13 Million In Tax Credits To Improve Water Quality, Farm Sustainability (Feb. 5, 2021).

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

Biden Administration Halts Residential Evictions in USDA Multifamily Housing Communities in Accordance with CDC Guidance (Feb. 1, 2021).

Keep Foodborne Illness Away from Your Super Bowl End Zone (Feb. 3, 2021).

U.S. Department of Agriculture Announces Key Staff Appointments (Feb. 4, 2021).

USDA Extends General Signup for Conservation Reserve Program (Feb. 5, 2021).

USDA Agency Press Releases:

NAPPO News: Updates from USDA APHIS Plant Protection and Quarantine (PPQ), APHIS (Jan. 29, 2021).

APHIS’ eFile Expands Fruit and Vegetable Permit Requests to Include Fresh, Dried and Frozen Process Types APHIS (Feb. 2, 2021).

APHIS Posts New Release in Feral Swine Video Series, APHIS (Feb. 2, 2021).

USDA Announces February 2021 Lending Rates for Agricultural Producers, FSA (Feb. 1, 2021).

USDA Extends General Signup for Conservation Reserve Program, FSA (Feb. 5, 2021).

FSIS Issues Public Health Alert for Raw Ground Beef Product Due to Possible E. Coli O157:H7 Contamination, FSIS (Feb. 2, 2021).

Private Exporters Report Sales Activity for Mexico, FAS (Feb. 2, 2021).

Private Exporters Report Sales Activity for Unknown Destinations, FAS (Feb. 5, 2021).

Updates to Conservation Easements Strengthens Protection for Farmlands, Grasslands and Wetlands, NRCS (Feb. 4, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 6—Feb. 6, 2021): 

Department of Environmental Protection

51 Pa.B. 691 Applications, Actions and Special Notices: “The Pennsylvania Clean Streams Law And The Federal Clean Water Act, Applications For National Pollutant Discharge Elimination System (NPDES) Permits And Water Quality Management (WQM) Permits Under The Clean Streams Law And Federal Clean Water Act”

Fish and Boat Commission

51 Pa.B. 753 Notice: “Classification of Wild Trout Streams; Proposed Additions and Revisions; April 2021.”

51 Pa.B. 755 Notice: “Proposed Changes to List of Class A Wild Trout Waters; April 2021.”

Pennsylvania Legislature

House Legislation in the Senate

HB 101 “An Act providing for limited civil liability for agritourism activity providers, for notice of limited civil liability and for acknowledgment of limited civil liability.” Referred to Agriculture and Rural Affairs [Senate] (Feb. 5, 2021).

HB 110 “An Act amending . . . the Hardwoods Development Council Act, further providing for Hardwoods Development Council.” Referred to Agriculture and Rural Affairs [Senate] (Feb. 5, 2021).

HB 187 “An Act amending . . . the Donated Food Limited Liability Act, further providing for donor immunity.” Referred to Agriculture and Rural Affairs [Senate] (Feb. 5, 2021).

House/Senate Legislation

HB 157 “An Act repealing the act . . . entitled ‘An act establishing an agency to create the linkage necessary for the planning of an economic development system for Pennsylvania, and making an appropriation.’” Third consideration and final passage [House] (Feb. 4, 2021).

HB 186 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for permit for movement during course of manufacture; and, in powers of department and local authorities, further providing for power of Governor during emergency [‘Milk Hauling Legislation’].”  Third consideration and final passage [House] (Feb. 4, 2021).

SB 64 “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] (Feb. 5, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Feb. 1–5, 2021): 

Agricultural Department

86 FR 8337 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: How States Safeguard Supplemental Nutrition Assistance Program Participant’s Personally Identifiable Information]” (Feb. 5, 2021).

Commodity Credit Corporation

86 FR 8113 Final Rule: “Agricultural Conservation Easement Program” (Feb. 4, 2021).

Federal Emergency Management Agency

86 FR 8372 Notice: “Changes in Flood Hazard Determinations [Colo., Conn., Del., Fla., Me., Md., Miss., N.M., N.C., Pa., Tex., Va.]” (Feb. 5, 2021).

86 FR 8376 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Conn., Fla., Ga., N.C., Or., Tex., Utah, Va.]” (Feb. 5, 2021).

86 FR 8375 Notice—Comment Period: “Proposed Flood Hazard Determinations [Ill., Iowa, Or.]” (Feb. 5, 2021).

Forest Service

86 FR 7688 Notice: “Ketchikan Resource Advisory Committee; Meeting [Feb. 25, 2021]” (Feb. 1, 2021).

86 FR 7688 Notice: “Saguache-Upper Rio Grande Resource Advisory Committee [Feb. 23, 2021]” (Feb. 1, 2021).

86 FR 7689 Notice: “Southern Montana Resource Advisory Committee; Meeting [Feb. 16, 2021]” (Feb. 1, 2021).

Presidential Documents

86 FR 7619 “Tackling the Climate Crisis at Home and Abroad” (Feb. 1, 2021).

Rural Business-Cooperative Service

86 FR 8160 Notice—Comment Period: “Notice of Solicitation of Applications for Inviting Applications for the Rural Business Development Grant Programs for Fiscal Year 2021” (Feb. 4, 2021).

Rural Housing Service

86 FR 7840 Notice—Comment Period: “Notice of Solicitation of Applications for Section 514 Off-Farm Labor Housing Loans and Section 516 Off-Farm Labor Housing Grants for New Construction for Fiscal Year 2021” (Feb. 2, 2021).

Small Business Administration

86 FR 8078 Notice: “Administrative Declaration of a Disaster for the State of Florida [Hurricane Sally]” (Feb. 3, 2021).

86 FR 8078 Notice: “Administrative Declaration of a Disaster for the State of Florida [Tropical Storm Eta]” (Feb. 3, 2021).

86 FR 8078 Notice: “Administrative Declaration of a Disaster for the State of Tennessee [Explosion]” (Feb. 3, 2021).

86 FR 8283 Interim Final Rule, comments accepted: “Business Loan Program Temporary Changes; Paycheck Protection Program-Loan Forgiveness Requirements and Loan Review Procedures as Amended by Economic Aid Act” (Feb. 5, 2021).

U.S. House Agriculture Committee

H.R.806 “To establish a Clean Energy and Sustainability Accelerator, and for other purposes.” Referred to the Committees on Energy and Commerce, Financial Services, Transportation and Infrastructure, and Agriculture (Feb. 4, 2021).

H.R.843 “To amend the Commodity Credit Corporation Charter Act to raise the borrowing limit of the Commodity Credit Corporation.” Referred to the House Committee on Agriculture (Feb. 4, 2021).

H.Res.104 “Recognizing the duty of the Federal Government to implement an agenda to Transform, Heal, and Renew by Investing in a Vibrant Economy (“THRIVE”).” Referred to the Committees on Education and Labor, Energy and Commerce, Transportation and Infrastructure, Natural Resources, and Agriculture (Feb. 5, 2021).

H.R.794 “To require the President to declare a national climate emergency under the National Emergencies Act, and for other purposes.” Referred to the Subcommittee on Economic Development, Public Buildings, and Emergency Management (Feb. 5, 2021).

H.R.859 “To prohibit the President from issuing moratoria on leasing and permitting energy and minerals on certain Federal land, and for other purposes.” Referred to the Committees on Natural Resources, Agriculture, Oversight and Reform, Transportation and Infrastructure, Energy and Commerce, Foreign Affairs, Financial Services, Intelligence, and Armed Services (Feb. 5, 2021).

H.R.869 “To authorize appropriations to offset costs resulting from reductions in research productivity in connection with the Coronavirus Disease 2019 (COVID-19), and for other purposes.” Referred to the Committees on Science, Space, and Technology, Agriculture, Armed Services, Education and Labor, Energy and Commerce, Natural Resources, and Transportation and Infrastructure (Feb. 5, 2021).

H.R.895 “To provide for assistance to rural water, wastewater, and waste disposal systems affected by the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (Feb. 5, 2021).

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

S.209 “A bill to provide for assistance to rural water, wastewater, and waste disposal systems affected by the COVID-19 pandemic, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 3, 2021).

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Top #AgLaw HotLinks Feb. 1–5, 2021

USDA Temporarily Suspends Debt Collections on Some Farm Loans Because of COVID-19, Brownfield

Subcommittee Investigates Meatpackers’ COVID Actions, Brownfield

White House Reviewing ‘Phase One’ Agreement with China, Successful Farming

U.S. to Allow South African H-2 Guest Workers During Biden Travel Ban, Brownfield

Regulatory Freeze Stalls Latest Round of CFAP Payments, Feedstuffs

Voluntary Mitigation is Agriculture’s Preference on Climate Change, Successful Farming

Biden Administration Suspends CFAP Payments, Brownfield

COVID-19 Disrupts Food Consumption Patterns, Farm Progress

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