Agricultural Law Weekly Review—week ending June 5, 2020

COVID-19: OSHA and CDC Release COVID-19 Agriculture Industry Guidance
On June 2, 2020, the U.S. Department of Labor (DOL) announced the release of a guidance document titled, “Agriculture Workers and Employers: Interim Guidance from CDC and the U.S. Department of Labor,” issued jointly by DOL’s Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC).  This is approximately the thirtieth workplace-specific such guidance issued in the preceding weeks. The guidance advises that employers follow the hierarchy of controls to assess their COVID-19 risks and create a control plan that includes screening and monitoring workers on site, implementing social-distancing and sanitation procedures, and managing sick workers.  The guidance addresses issues concerning shared housing and transportation, and suggests organizing workers into “cohorts” to minimize “the number of different individuals who come into close contact with each other over the course of a week.”  The guidance also emphasizes that all communication with workers be “easy to understand” and provided in the appropriate language(s).

COVID-19: Paycheck Protection Program Flexibility Act Signed by President
On June 5, 2020, President Donald Trump signed into law H.R.7010, titled Paycheck Protection Program Flexibility Act of 2020, which amends the CARES Act. Its provisions include the following changes to the loan forgiveness criteria:

• Extends the covered period from June 30, 2020 to December 31, 2020 for eligible expenses reimbursable by PPP loans;
• Reduces the reimbursable payroll cost minimum from 75% to 60%, now allowing up to 40% of loan proceeds to be used for other eligible expenses such as rent, utilities,  or mortgage interest;
• Loan forgiveness is not reduced in proportion to any workforce reductions if an employer can show: (a) inability to rehire former or hire qualified employees; or (b) an inability to return to February 15, 2020 levels of business activity due to compliance with federally-issued COVID-19 safety requirements or guidance.
• Establishes a 10-month payment deferral on unforgiven loans, calculated from the last day of the covered period—December 31, 2020.
• Allows loan forgiveness recipients to defer payroll taxes.

Pesticides: U.S. Appeals Court Invalidates FIFRA Registrations of Dicamba Products XtendiMax, Engenia and FeXapan.
On June 3, 2020, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision overturning and vacating the U.S. Environmental Protection Agency’s October 31, 2018 approvals of conditional two-year amended product registrations of three dicamba herbicide products (Monsanto/Bayer’s XtendiMax, BASF’s Engenia and Corteva’s FeXapan) for over-the-top use on soybeans and cotton, effective immediately. National Family Farm Coalition, et al. v. EPA, No. 19-70115.  The Court held that the approvals violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq.  Since the prior registrations for those products expired by December 2018, none of the three products have a valid registration at this time and are therefore prohibited from being used or sold in the U.S. for those purposes. Syngenta’s dicamba herbicide product approved for over-the-top use on soybeans and cotton, Tavium, was not a subject of the petition for review because it was first registered and marketed for this use in April 2019, after the petition for review was filed.

COVID-19: Michigan Governor Issues Executive Order for Agricultural Workers
On June 1, 2020, Michigan Governor Gretchen Whitmer issued an executive order titled, “Protecting the Food Supply and Migrant and Seasonal Agricultural Workers from the effects of COVID-19” (No. 2020-111), effective immediately.  The order places temporary social-distancing and sanitation requirements on working conditions and employer-provided housing camps operated for seasonal and migrant agricultural workers.  The action regards a “willful violation” of the order as a misdemeanor and remains in effect through June 29, 2020.

From National Ag Law Authorities & Sources:
Paul Goeringer, Maryland Appellate Court Finds Party on Landowner’s Property Not Covered by Recreational Use Statute (June 2, 2020).
Roger A. McEowen, SBA Says Farmers in Chapter 12 Ineligible for PPP Loans (June 2, 2020).

Penn State Research & News:
Jeff Mulhollem, Larger Streams are Critical for Wild Brook Trout Conservation (June 3, 2020).
Mariah Chuprinski, Keeping Water and Energy Secure (June 4, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Wolf Administration to Distribute $80 Million in USDA Foods, Receives Extension of COVID-19 Disaster Food Distribution Extension (June 1, 2020).
Department of Agriculture, PA Veterinary Medical Association Remind Pennsylvania Pet Owners to Maintain Up-to-Date Rabies Vaccinations (June 2, 2020).

U.S. Department of Agriculture Press Releases:
USDA Launches 2020 Feds Feed Families Nationwide Food Drive (June 1, 2020).
USDA Modifies Dairy Revenue Protection Sales Period (June 1, 2020).
USDA Approves Program to Feed Kids in Mississippi (June 2, 2020).
USDA Approves New Hampshire to Accept SNAP Benefits Online (June 3, 2020).
USDA Invests $4.8 Million In Three 1890 Centers of Excellence (June 3, 2020).
USDA Farmers to Families Food Box Program Reaches 5 Million Boxes Distributed (June 4, 2020).
USDA Issues First Coronavirus Food Assistance Program Payments (June 4, 2020).
Secretary Perdue Statement on Ninth Circuit Dicamba Decision (June 4, 2020).
USDA Approves Program to Feed Kids in Alaska (June 5, 2020).
USDA Approves South Dakota to Accept SNAP Benefits Online (June 5, 2020).

USDA Animal and Plant Health Inspection Service & Risk Management Agency Press Releases:
USDA Modifies Dairy Revenue Protection Sales Period (June 1, 2020).
USDA Announces Transition to Preventive Plan for Virulent Newcastle Disease in California (June 1, 2020).
USDA Announces Commodity Credit Corporation Lending Rates for June 2020 (June 1, 2020).
Confirmation of COVID-19 in Pet Dog in New York (June 2, 2020).
USFWS and USDA Providing Additional Support to Montana Livestock Producers (June 3, 2020).
APHIS Reopens Comment Period on Amendments to Pale Cyst Nematode Regulations (June 5, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Department of Environmental Protection
50 Pa.B. 2845 “The Clean Streams Law And The Federal Clean Water Act Applications For National Pollutant Discharge Elimination System (NPDES) Permits And Water Quality Management (WQM) Permits,” Notice (June 6, 2020).
50 Pa.B. 2909 “Clean Water and Drinking Water State Revolving Fund Programs; Federal Fiscal Year 2020 Intended Use Plans; Public Meeting,” Notice (June 6, 2020).

Governor’s Office
50 Pa.B. 2834 “Proclamation of Disaster Emergency [May 30, 2020]” (June 6, 2020).
50 Pa.B. 2834 “Amendment to Proclamation of Disaster Emergency [June 1, 2020]” (June 6, 2020).

Pennsylvania Legislature
S.B. 1182 “An Act amending the act . . . known as the Pennsylvania Agricultural Fair Act, providing for COVID-19 Emergency Agricultural Fair Grant Program.” Referred to Agriculture and Rural Affairs [Senate] (June 4, 2020).
S.B. 1030 “An Act amending the act . . .  known as the Pennsylvania Sewage Facilities Act, further providing for official plans.” Approved by the Governor—Act. No. 34 (June 5, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Department
85 FR 33620 “Submission for OMB Review; Comment Request [Community of Faith and Opportunity Initiative],” Notice (June 2, 2020).
85 FR 34085 “Review and Issuance of Agency Guidance Documents,” Rule (June 3, 2020).
85 FR 34160 “Designation for the South Carolina Area,” Notice (June 3, 2020).
85 FR 34590 “Submission for OMB Review; Comment Request [In-Home Food Safety Behaviors and Consumer Education: Annual Observational Study],” Notice (June 5, 2020).
85 FR 34589 “Submission for OMB Review; Comment Request [Power of Attorney—FSA, CCC, RMA, FCIC, and NRCS Programs],” Notice (June 5, 2020).

Agricultural Marketing Service
85 FR 34589 “Notice of Request for Extension and Revision of a Currently Approved Information Collection,” Notice—Comment Period (June 5, 2020).

Animal and Plant Health Inspection Service
85 FR 33080 “Notice of Request for Revision to and Extension of Approval of an Information Collection; APHIS Pest Reporting and Asian Longhorn Beetle Program,” Notice—Comment Period (June 1, 2020).
85 FR 33079 “Notice of Request for Revision to and Extension of Approval of an Information Collection; APHIS Credit and User Fee Accounts,” Notice—Comment Period (June 1, 2020).
85 FR 34537 “Amendments to the Pale Cyst Nematode Regulations,” Proposed Rule—Comment Period (June 5, 2020).
85 FR 34591 “Decision To Authorize the Importation of Fresh Carrots From the Republic of Korea Into the United States,” Notice (June 5, 2020).

Antitrust Division
85 FR 33712 “United States, et al. v. Dairy Farmers of America, Inc. and Dean Foods Company; Proposed Final Judgment and Competitive Impact Statement,” Notice (June 2, 2020).

Census Bureau
85 FR 34174 “Agency Information Collection Activities; Submission to the Office of Management and Budget (OMB) for Review and Approval; Comment Request; Annual Wholesale Trade Survey,” Notice—Comment Period (June 3, 2020).

Commodity Credit Corporation
85 FR 34174 “Notice of Funds Availability for the Higher Blends Infrastructure Incentive Program (HBIIP) for Fiscal Year 2020 and Solicitation of Applications for the Higher Blends Infrastructure Incentive Program (HBIIP) for Fiscal Year 2020; Correction,” Notice (June 3, 2020).

Employment and Training Administration
85 FR 34242 “Notice of Determinations Regarding Eligibility To Apply for Trade Adjustment Assistance,” Notice (June 3, 2020).
85 FR 34247 “Post-Initial Determinations Regarding Eligiblity To Apply for Trade Adjustment Assistance,” Notice (June 3, 2020).
85 FR 34250 “Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance,” Notice (June 3, 2020).

Energy Department
85 FR 34185 “Workshop on Predictive Models and High Performance Computing as Tools To Accelerate the Scaling-up of New Bio-Based Fuels,” Notice (June 3, 2020).

Environmental Protection Agency
85 FR 33059 “Receipt of a Pesticide Petition Filed for Residues of a Pesticide Chemical in or on Various Commodities,” Proposed Rule—Comment Period (June 1, 2020).
85 FR 34622 “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses,” Notice (June 5, 2020).

Farm Credit Administration
85 FR 34436 “Privacy Act of 1974; System of Records,” Notice—Comment Period (June 4, 2020).

Federal Communications Commission
85 FR 33578 “Rural Digital Opportunity Fund, Connect America Fund,” Rule (June 2, 2020).

Federal Emergency Management Agency
85 FR 33175 “Final Flood Hazard Determinations [Mass., Pa.],” Notice (June 1, 2020).
85 FR 33178 “Changes in Flood Hazard Determinations [Ariz., Cal., Fla., Haw., Idaho, Ill., Ind., Iowa, Kan., Mich., Minn., Mo., Neb., Nev., N.J., N.Y., Ohio, Or., Tex., Wash., Wis.],” Notice (June 1, 2020).
85 FR 33183 “Changes in Flood Hazard Determinations [Colo., Fla., N.M., Tex., Wyo.],” Notice (June 1, 2020).
85 FR 33185 “Proposed Flood Hazard Determinations [Ind., Iowa, Mich., Mo., Ohio],” Notice—Comment Period (June 1, 2020).
85 FR 33177 “Proposed Flood Hazard Determinations [Fla., Tex., Va., W. Va.],” Notice—Comment Period (June 1, 2020).
85 FR 33175 “Proposed Flood Hazard Determinations for Hays County, Texas and Incorporated Areas,” Notice (June 1, 2020).

Federal Motor Carrier Safety Administration
85 FR 33396 “Hours of Service of Drivers,” Rule—Comment Period (June 1, 2020).

Fish and Wildlife Service
85 FR 33193 “Agency Information Collection Activities; U.S. Fish and Wildlife Service Concessions,” Notice—Comment Period (June 1, 2020).
85 FR 33060 “Endangered and Threatened Wildlife and Plants; Removing San Benito Evening-Primrose (Camissonia benitensis),” Proposed Rule—Comment Period (June 1, 2020).
85 FR 34461 “Draft Environmental Assessment and Draft Habitat Conservation Plan; Receipt of an Application for an Incidental Take Permit, Hog Creek Wind Project, Hardin County, Ohio,” Notice—Comment Period (June 4, 2020).
85 FR 34461 “Endangered and Threatened Species; Incidental Take Permit Application and Habitat Conservation Plan for the Proposed Rooney Ranch Wind Repowering Project, Alameda County, California; Availability of Draft Environmental Assessment; Correction,” Notice—Comment Period (June 4, 2020).
85 FR 34578 “Migratory Bird Permits; Management of Conflicts Associated With Double-Crested Cormorants (Phalacrocorax auritus) Throughout the United States,” Proposed Rule—Comment Period (June 5, 2020).

Food and Drug Administration
85 FR 33162 “Proprietary Names for New Animal Drugs; Guidance for Industry; Availability,” Notice (June 1, 2020).
85 FR 33538 “Food Additives Permitted in Feed and Drinking Water of Animals; Silicon Dioxide,” Rule—Comment Period (June 2, 2020).
85 FR 34508 “Temporary Policy During the COVID-19 Public Health Emergency Regarding the Qualified Exemption From the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry; Availability,” Rule (June 5, 2020).

Food and Nutrition Service
85 FR 33081 “2020 Dietary Guidelines Advisory Committee,” Notice—Comment Period (June 1, 2020).

Food Safety and Inspection Service
85 FR 33034 “Inspection of Yak and Other Bovidae, Cervidae, and Camelidae Species,” Proposed Rule—Comment Period (June 1, 2020).
85 FR 33031 “Elimination of the Requirement To Defibrinate Livestock Blood Saved as an Edible Product,” Proposed Rule—Comment Period (June 1, 2020).
85 FR 34397 “Expansion of FSIS Shiga Toxin-Producing Escherichia coli (STEC) Testing to Additional Raw Beef Products,” Notice—Comment Period (June 4, 2020).

Forest Service
85 FR 34171 “Forest Service Manual 2750; Special Uses Management Manual; Leasing Forest Service Administrative Sites,” Notice—Comment Period (June 3, 2020).
85 FR 34172 “Bighorn National Forest; Wyoming; Invasive and Other Select Plant Management,” Notice—Comment Period (June 3, 2020).

Interior Department
85 FR 33697 “National Environmental Policy Act Implementing Procedures for the Bureau of Land Management,” Notice—Comment Period (June 2, 2020).

Small Business Administration
85 FR 33010 “Business Loan Program Temporary Changes; Paycheck Protection Program-SBA Loan Review Procedures and Related Borrower and Lender Responsibilities,” Rule—Comment Period (June 1, 2020).
85 FR 33004 “Business Loan Program Temporary Changes; Paycheck Protection Program-Requirements-Loan Forgiveness,” Rule—Comment Period (June 1, 2020).
85 FR 33772 “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Alabama,” Notice (June 2, 2020).

Trade Representative, Office of United States
85 FR 34274 “Request for Comments Concerning the Extension of Particular Exclusions Granted Under the September 2019 Product Exclusion Notice From the $34 Billion Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,” Notice—Comments Requested (June 3, 2020).
85 FR 34279 “Request for Comments Concerning the Extension of Particular Exclusions Granted Under the $200 Billion Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,” Notice—Comments Requested (June 3, 2020).

U.S. House Agriculture Committee Actions:
H.R.7082 “To direct the Secretary of Agriculture to issue regulations with respect to the protection against COVID-19 for workers in meat processing establishments, and for other purposes.” Referred to the House Committee on Agriculture (June 1, 2020).
H.R.7092 “To amend title 54, United States Code, to establish, fund, and provide for the use of amounts in a National Parks and Public Land Legacy Restoration Fund to address the maintenance backlog of the National Park Service, the United States Fish and Wildlife Service, the Bureau of Land Management, the Forest Service, and the Bureau of Indian Education, and to provide permanent, dedicated funding for the Land and Water Conservation Fund, and for other purposes.” Referred to the Committees on Natural Resources, Agriculture, and the Budget (June 4, 2020).
H.R.7108 “To amend the Food Security Act of 1985 to allow for emergency use of certain land during a pandemic, and for other purposes.” Referred to the House Committee on Agriculture (June 4, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.3893 “A bill to amend the Food Security Act of 1985 to allow for emergency use of certain land during a pandemic, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 4, 2020).
S.3894 “A bill to authorize the Secretary of Agriculture to develop a program to reduce barriers to entry for farmers, ranchers, and private forest landowners in certain private markets, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 4, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
June 1–5, 2020 Top #AgLaw links:
Cooperatives Working Together Assists New Dairy Export Sales, Brownfield (May 28, 2020).
Checkoff Launches National Dairy Month Efforts, Feedstuffs (May 29, 2020).
Tyson Foods will shut U.S. pork plant as more workers catch COVID-19, Reuters (May 28, 2020).
USDA’S Ibach Says Coronavirus Protection Measures in Packing Plants Are Working, Brownfield (May 29, 2020).
China Tells State Firms to Halt Purchases of Major U.S. Farm Products, Successful Farming/Reuters (June 1, 2020).
California Court Hears Appeal of $289 Million Verdict Against Bayer in First Roundup Cancer Trial, Reuters (June 2, 2020).

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