Agricultural Law Weekly Review—week ending August 21, 2020

Agricultural Labor: H-2A Rule Extends Petition Filing Deadline
On August 20, 2020, the U.S. Department of Homeland Security (DHS) published in the Federal Register a temporary final rule titled, “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities” (85 FR 51304).  The new rule impacts the April 20, 2020 temporary final rule (85 FR 21739) by extending the deadline for employees to file an extension of stay petition until December 17, 2020.  Additionally, an employee may begin working for a new employer immediately once the petition is received by the U.S. Citizenship and Immigration Services (USCIS).  The rule is effective for three years, beginning August 19, 2020 through August 19, 2023.

Water Quality: Chesapeake Bay Program Announces TMDL Progress Since 2009
On August 10, 2020, the Chesapeake Bay Program announced overall decreases in Chesapeake Bay nitrogen, phosphorus, and sediment pollution since 2009, the baseline year for the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).  The announcement states that the following decreases in pollutants have been recorded between 2009 and 2019:

• Overall nitrogen decreased 11%, from 297.9 million pounds in 2009 to 265.3 million pounds in 2019.
• Overall phosphorus decreased 10%, from 17.1 million pounds in 2009 to 15.3 million pounds in 2019.
• Overall sediment decreased 4%, from 18.9 billion pounds in 2009 to 18.1 billion pounds in 2019.

These overall decreases result from practices established to accomplish the Bay TMDL goals, and are on-track to achieve 39% of nitrogen reductions, 49% of phosphorus reductions, and 100% of sediment reductions by 2025.  According to the announcement, decreases in nitrogen and phosphorus are attributed to upgrades to wastewater treatment facilities and sediment decreases are due primarily to the implementation of best management practices in the agricultural sector.

COVID-19: Federal Court Denies Temporary Restraining Order Against Michigan’s Mandatory Ag Worker COVID-19 Testing
On August 14, 2020, the U.S. District Court for the Western District of Michigan issued an order denying a motion for a temporary restraining order (TRO) against the Michigan Department of Health and Human Services’ (MDHHS) August 3, 2020 Emergency Order, requiring COVID-19 testing for agricultural employees (see “Michigan Requires COVID-19 Testing for Agricultural Employees,” Agricultural Law Weekly Review—week ending August 7, 2020).  The motion and supporting brief, filed by True Blue Berry Management, LLC; Smeltzer Orchards Co., LLC; and several agricultural workers, accompanies a complaint alleging that the Emergency Order racially discriminates against Latinos by “targeting” them for COVID-19 testing.  In its denial of the TRO, the Court found that the plaintiffs had not demonstrated a substantial likelihood of success on the merits and stated that the fact that the employees are subject to testing are overwhelmingly Latino does not require the legal conclusion that the Emergency Order constitutes a racial classification.

Pesticides/Herbicides: Ninth Circuit Denies Rehearing Of Dicamba Case
On August 17, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an order denying Respondents-Intervenors Monsanto, BASF and Du Pont a rehearing en banc of the case National Family Farm Coalition v. EPA (No. 19-70115), which invalidated the U.S. Environmental Protection Agency (EPA) registrations for Monsanto/Bayer’s XtendiMax, BASF’s Engenia, and DuPont/Corteva’s FeXapan (see “Companies Seek Rehearing of Ninth Circuit Dicamba Case,” Agricultural Law Weekly Review—week ending July 24, 2020).  Concurrently, the court issued a mandate reinstating its June 3, 2020 judgment (see “U.S. Appeals Court Invalidates FIFRA Registrations of Dicamba Products XtendiMax, Engenia and FeXapan,” Agricultural Law in the Spotlight – June 4, 2020).

Biotechnology: Comment Period Open on Petition for Deregulation of American Chestnut
On August 19, 2020, the U.S. Department of Agriculture (USDA)  Animal and Plant Health Inspection Service (APHIS) posted a Federal Register Notice requesting public comment on a petition from the State University of New York College of Environmental Science and Forestry, seeking deregulation of blight-resistant Darling 58 American chestnut (85 FR 51008).  The notice was preceded by an announcement on August 18, 2020, which states that the chestnut variety was developed using genetic engineering for fungal resistance to chestnut blight.  The sixty-day comment period on the petition ends October 19, 2020.

Industrial Hemp: DEA Issues Interim Final Rule on 2018 Farm Bill Hemp Provisions
On August 21, 2020, the U.S. Drug Enforcement Administration (DEA) published in the Federal Register an interim final rule titled, “Implementation of the Agriculture Improvement Act of 2018” (85 FR 51639).  Promulgated in response to the Agriculture Improvement Act of 2018 (AIA) (Public Law 115-334), also known as the “2018 Farm Bill,” the rule codifies DEA regulations to conform with AIA’s provisions regarding hemp by making several changes:

• Adds language to the definition of “tetrahydrocannabinols” to specify that it does not include “any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639o.”
• Removes from both Schedule V control and import/export control the listing for “approved cannabidiol drugs,” defined as “drug product in finished dosage formulation that has been approved by the U.S. Food and Drug Administration that contains cannabidiol . . .  derived from cannabis and no more than 0.1% (w/w) residual tetrahydrocannabinols” (21 CFR 1308.15(f)) (21 CFR 1312.30(b)).
• Limits the definition of “marihuana extract” to “extracts . . . containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis.”

The rule states that the changes result in no additional requirements or costs.  While the rule does not have a formal comment period, comments on the rule are being accepted through Regulations.gov.

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 August 17, 2020, are below:

PENNSYLVANIA Payments Applications

Non-Specialty Crops   $20,095,940.30 4,308

Specialty Crops     $5,456,976.50     80

Livestock   $29,644,836.08 4,747

Dairy $100,811,436.82 2,529

TOTALS         $156,009,189.70 11,664

Subscribe to the Pennsylvania Farm Employers’ Listserv
The Penn State Center for Agricultural and Shale Law invites all Pennsylvania agricultural employers to participate in the newly-established Pennsylvania Farm Employers’ Listserv (PFEL).  The PFEL is an email networking and resource-sharing group specifically tailored to agricultural labor issues for those with human resources responsibilities at agricultural operations  In this forum, farm employers can exchange information and resources to better prepare them to do their jobs confidently and efficiently, keep up on the latest news and developments, and learn how to best comply with legal requirements from state and federal laws and agencies.  The Penn State Center for Agricultural and Shale Law will participate and provide content.  To subscribe, please send an email to: pfel-subscribe-request@lists.psu.edu.  In the subject line, type “subscribe” and type any word in the body (to circumvent spam filtering).

From National Ag Law Authorities & Sources:
Brigit Rollins, Biofuels Rules: EPA Guidance Stands (Aug. 21, 2020).

Penn State Research & News:
Cover Crop Mixtures Must be ‘Farm-Tuned’ to Provide Maximum Ecosystem Services (Aug. 17, 2020).
Invasive Shrubs in Northeast Forests Grow Leaves Earlier and Keep Them Longer (Aug. 19, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:
Wolf Administration Officials Petition USDA: Immediate Action Needed to Ensure School-Aged Children Access to Food (Aug. 18, 2020).
Department of Agriculture Releases COVID-19 Restaurant Enforcement Actions, August 10-16 (Aug. 18, 2020).
Department of Agriculture Announces Pennsylvania Agriculture to be Celebrated Virtually for 2021 PA Farm Show (Aug. 19, 2020).
Pennsylvania Invests $9.4 Million to Ensure 33 Farms in 16 Counties Will Produce Agriculture for Future (Aug. 20, 2020).
Wolf Administration to Federal Government: When School is Virtual, Pennsylvania Kids Still Rely on School Meals to Thrive (Aug. 20, 2020).
Secretary of Agriculture: $13.6 Million Remains Available for Pennsylvania Dairy Industry, Farmers Urged to Apply for Relief (Aug. 21, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
USDA Appoints New Members to Food Safety Advisory Committees (Aug. 19, 2020).
Trump Administration Invests Nearly $3 Million in High-Speed Broadband in Rural Missouri  (Aug. 19, 2020).
USDA Approves Program to Feed Kids in Idaho (Aug. 19, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Allows Some Farmers to Hay, Graze or Chop Cover Crops Early This Year (Aug. 17, 2020).
Availability of Petition for Deregulation of American Chestnut Developed Through Genetic Engineering (Aug. 18, 2020).
APHIS Announces Virtual Listening Sessions Seeking Public Input on Regulations Regarding The Welfare Of Birds Not Bred For Use In Research (Aug. 19, 2020).
USDA Confirms SARS-CoV-2 in Mink in Utah (Aug. 19, 2020).
USDA Works with Stakeholders to Improve Prevented Planting Coverage (Aug. 19, 2020).
Availability of Draft Environmental Assessment for the Asian Longhorned Beetle Eradication Program in Charleston, Dorchester, and Colleton Counties in South Carolina (Aug. 21, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 34 Aug 22, 2020): 

Department of Conservation and Natural Resources
50 Pa.B. 4302 Notice: “Wild Resource Conservation Program Public Input.”

Governor’s Office
50 Pa.B. 4233 “Proclamation Terminating the Disaster Emergency.”

Pennsylvania Legislature

Senate Legislation
SB 1267 “An Act establishing the Dog Law and Puppy Lemon Law Commission; and providing for its powers and duties.” Referred to Agriculture and Rural Affairs (Aug. 18, 2020).

House Legislation
HB 2799 “An Act amending . . . the Dog Law, in licenses, tags and kennels, exempting persons who use detection dogs from fees and other charges.” Referred to Agriculture and Rural Affairs (Aug. 18, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register August  17–21, 2020): 

Agricultural Marketing Service
85 FR 50795 Proposed Rule: “Mango Promotion, Research and Information Order; Continuance Referendum” (Aug. 18, 2020).

Animal and Plant Health Inspection Service
85 FR 50796 Proposed Rule: “National List of Reportable Animal Diseases” (Aug. 18, 2020).
85 FR 51007 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Black Stem Rust; Identification Requirements for Addition of Rust-Resistant Varieties” (Aug. 19, 2020).
85 FR 51008 Notice—Comment Period: “State University of New York College of Environmental Science and Forestry; Petition for Determination of Nonregulated Status for Blight-Resistant Darling 58 American Chestnut” (Aug. 19, 2020).
85 FR 51368 Proposed Rule: “Establishing AWA Standards for Birds; Virtual Public Meetings” (Aug. 20, 2020).

Environmental Protection Agency
85 FR 51354 Rule—Comment Period: “Fludioxonil; Pesticide Tolerances” (Aug. 20, 2020).
85 FR 51395 Proposed Rule: “Notification of Submission to the Secretary of Agriculture; Pesticides; Exemptions of Certain Plant-Incorporated Protectants (PIPs) Derived From Newer Technologies” (Aug. 20, 2020).
85 FR 51394 Proposed Rule: “Notification of Submission to the Secretary of Agriculture; Pesticides; Proposal To Add Chitosan to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products” (Aug. 20, 2020).
85 FR 51668 Rule—Comment Period: “Flupyradifurone; Pesticide Tolerances” (Aug. 21, 2020).
85 FR 51663 Rule: “Air Plan Approval; Missouri; Control of Emissions From Production of Pesticides and Herbicides” (Aug. 21, 2020).

Federal Emergency Management Agency
85 FR 51734 Notice—Comment Period: “Proposed Flood Hazard Determinations [Tenn., Tex.]” (Aug. 21, 2020).
85 FR 51742 Notice—Comment Period: “Proposed Flood Hazard Determinations [Va.]” (Aug. 21, 2020).
85 FR 51743 Notice—Comment Period: “Proposed Flood Hazard Determinations [Iowa]” (Aug. 21, 2020).
85 FR 51737 Notice: “Changes in Flood Hazard Determinations [Ariz., Cal., Fla., Haw., Idaho, Ill., Ind., Kan., Mich., Minn., Nev., N.J., N.Y., Ohio, Tex., Wash., Wis.]” (Aug. 21, 2020).
85 FR 51729 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Fla., Mass., N.M., Okla., Pa., R.I., Tex., Utah, Wyo.]” (Aug. 21, 2020).
85 FR 51732 Notice: “Changes in Flood Hazard Determinations [Ariz., Colo., Fla., Me., Mass., Miss., Okla., Tex., Utah, Va.]” (Aug. 21, 2020).
85 FR 51727 Notice: “Final Flood Hazard Determinations [Ariz., Fla., Ga., Iowa, Mich., S.D., Tex., Wis.]” (Aug. 21, 2020).
85 FR 51735 Notice: “Final Flood Hazard Determinations [Ariz., Iowa, Wis.]” (Aug. 21, 2020).

Fish and Wildlife Service
85 FR 50991 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Reclassification of Stephens’ Kangaroo Rat From Endangered To Threatened With a Section 4(d) Rule” (Aug. 19, 2020).
85 FR 51854 Rule: “Migratory Bird Hunting; Final 2020-21 Frameworks for Migratory Bird Hunting Regulations” (Aug. 21, 2020).

Food and Drug Administration
85 FR 50827 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Dispute Resolution Procedures for Science-Based Decisions on Products by the Center for Veterinary Medicine” (Aug. 18, 2020).

Food and Safety Inspection Service
85 FR 51674 Notice: “National Advisory Committee on Meat and Poultry Inspection” (Aug. 21, 2020).

Forest Service
85 FR 50002 Notice—Comment Period: “Forest Service Handbook 5309.11, Chapter 30 Law Enforcement: Public Notice and Comment for Closures of National Forest System Lands to Hunting, Fishing, or Recreational Shooting” (Aug. 17, 2020).

Homeland Security Department
85 FR 51304 Rule: “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities” (Aug. 20, 2020).

International Trade Administration
85 FR 50004 Notice: “Notice of Request for Applicants for Appointment to the United States-Mexico Energy Business Council” (Aug. 17, 2020).

Land Management Bureau
85 FR 50045 Notice: “Agency Information Collection Activities; Authorizing Grazing Use” (Aug. 17, 2020).
85 FR 50046 Notice: “Virtual Wild Horse and Burro Advisory Board Meeting” (Aug. 17, 2020).

Rural Business-Cooperative Service
85 FR 51676 Notice: “Implementation of Certain Provisions of Consolidated Appropriations Act, 2020 Specific to Persistent Poverty Counties” (Aug. 21, 2020).

Small Business Administration
85 FR 51138 Notice: “Administrative Declaration of a Disaster for the State of Indiana” (Aug. 19, 2020).
85 FR 51535 Notice: “Administrative Declaration of a Disaster for the State of Florida” (Aug. 20, 2020).

Susquehanna River Basin Commission
85 FR 51141 Notice: “Grandfathering (GF) Registration Notice” (Aug. 19, 2020).
85 FR 51141 Notice: “Commission Meeting [September 18, 2020]” (Aug. 19, 2020).
85 FR 51140 Notice: “Projects Approved for Consumptive Uses of Water” (Aug. 19, 2020).
85 FR 51142 Notice: “Projects Approved for Minor Modifications” (Aug. 19, 2020).

Trade Representative, Office of United States
85 FR 50864 Notice—Comment Period: “Request for Comments Concerning China’s Compliance With World Trade Organization (WTO) Commitments” (Aug. 18, 2020).

U.S. Customs and Border Protection
85 FR 51633 Rule: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico” (Aug. 21, 2020).
85 FR 51634 Rule: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada” (Aug. 21, 2020).

U.S. House Agriculture Committee Actions:
No new actions August 17–21, 2020.

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
No new actions August 17–21, 2020.

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks:
As Hemp Harvest Nears, US Farmers Face Uncertainty About Regulations, Hemp Industry Daily (Aug. 20, 2020).
Farm Animals and COVID-19: Should You Be Worried? Farm and Dairy (Aug. 13, 2020).
Ethanol Production Profits during the COVID Pandemic, Farmdoc (Aug. 13, 2020).
EPA’s Wheeler Confirms Dicamba Re-Registration is Being Considered, Brownfield (Aug. 12, 2020).
USDA Launches A Resource Hub on Local Food System Response to COVID-19, USDA (Aug. 19, 2020).
Countries Put Restrictions on Brazil After Covid-19 Found in Frozen Chicken- Brazil To Take Cases to WTO, Farmdoc (Aug. 17, 2020).
Court Denies Rehearing of Dicamba Case, Brownfield (Aug. 18, 2020).
Brazil’s Bolsonaro Faces Tough Choice on U.S. Ethanol Trade, Reuters (Aug. 14, 2020).
Researchers Explore COVID-19 Egg Supply Chain Impact, Feedstuffs (Aug. 19, 2020).

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