Agricultural Law Weekly Review—week ending June 12, 2020

Pesticides: EPA Cancels Dicamba Product Registrations and That Action is Immediately Challenged in Court
On June 8, 2020, The U.S. Environmental Protection Agency (EPA) issued a “Final Cancellation Order,” effective retroactively to June 3, 2020, of the 2018 product registrations of dicamba herbicides Xtendimax, Engenia, and FeXapan in order to comply with the U.S. Court of Appeals for the Ninth Circuit’s (Ninth Circuit) June 3, 2020, decision invalidating those three registrations as having been granted in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  EPA’s order states that existing stock in the possession of commercial applicators (or landowners applying to their own land) as of June 3, 2020, may be applied until July 31, 2020.  All other parties in the manufacturing and distribution chain must cease distribution immediately, except for the purpose of product returns/refunds (which must cease July 31, 2020).  On June 11, 2020, the prevailing parties to the Ninth Circuit appeal filed a motion in the case seeking an order invalidating EPA’s Final Cancellation Order in so far as it permits existing stocks to be applied until July 31, 2020, and also seeking a finding that EPA is in contempt of the Court’s June 3, 2020, decision.  On June 12, 2020, the Ninth Circuit entered an Order directing the parties to respond to the motion according to a schedule which concludes on June 18, 2020.

Antitrust: Poultry Industry Executives Indicted on Antitrust Charges
On June 3, 2020, the U.S. Department of Justice (DOJ) announced that Pilgrim’s Pride President/CEO Jayson Penn and Vice President Roger Austin, along with Claxton Poultry President Mikell Fries and Vice President Scott Brady, were indicted in the U.S. District Court for the District of Colorado on a criminal charges of violating Section 1 of the Sherman Act, 15 U.S.C. § 1.  The single-count indictments against each recount numerous text and email messages and alleges that the four men communicated to rig bids and fix prices of broiler chickens between 2012 and 2017.  If convicted, the defendants face a maximum penalty of a $1 million fine and 10-year prison sentence.  All four men have pleaded not guilty to their respective charges, and a 10-day jury trial is set to begin August 10, 2020.

Ag-Gag Statutes: Iowa Enacts “Food Operation Trespass” Law That is “Content Neutral”
On June 10, 2020, Iowa Governor Kim Reynolds signed into law SF 2413, an omnibus animal agriculture regulatory bill which, among other things, creates a new form of trespassing called a “Food Operation Trespass.”  The new legislation defines a “food operation,” and states that “[a] person commits food operation trespass by entering or remaining on the property of a food operation without the consent of a person who has real or apparent authority to allow the person to enter or remain on the property.” The offense is classified as an aggravated misdemeanor on the first offense and a class “D” felony on a subsequent offense.  The law does not prohibit conduct based upon any intent of the actor and is identical to many states’ decades-old existing trespassing statutes that have never been regarded or challenged as so-called “ag-gag” laws allegedly infringing First Amendment rights.  For information on pending litigation over another current Iowa statute being challenged on that basis, see the Agricultural Law Weekly Review of December 5, 2019, titled, Ag-Gag Statutes: Federal Court Enjoins Iowa From Enforcing Ag Trespassing Law.

COVID-19: USDA Issues Summer Meal Program Nationwide Area Eligibility Waiver
On June 10, 2020, USDA Food and Nutrition Service (FNS) announced the issuance of a Nationwide Waiver to Extend Eligibility Waivers through August 31, 2020 for the Summer Food Service Program (SFSP) and the National School Lunch Program (NSLP) Seamless Summer Option (SSO) as part of USDA’s COVID-19 response efforts.  While USDA supported summer meals are typically restricted to low-income areas, the nationwide area eligibility waiver allows all children to receive free meals, regardless of their location.

COVID-19: PennDOT Extends Weight Exemption
On June 3, 2020, the Pennsylvania Department of Transportation (PennDOT) extended Pennsylvania’s 90,000 pound weight exemption, 2020-13B, until June 30, 2020.  Previously effective April 3, 2020, the extension waives weight and permitting requirements for vehicles weighing 90,000 pounds or less that provide “direct assistance” to COVID-19 relief efforts, including transport of “food, paper products and other groceries for emergency restocking of distribution centers or stores.”  The exemption specifies that “[d]irect assistance does not include routine commercial deliveries including mixed loads with a nominal quantity of the above referenced goods and materials to obtain the benefits of this Exemption.”

From National Ag Law Authorities & Sources:
Roger A. McEowen, Dicamba Registrations Cancelled – Or Are They? (June 6, 2020).
David Widmar, Direct Farm Payments to Soar in 2020 (June 8, 2020).
Tiffany Lashmet, EPA Issues Cancellation Order for 3 Dicamba Products; Limited Existing Stocks Provision Included (June 9, 2020).
Brigit Rollins, The Deal With Dicamba: EPA Issues Cancel Order for Dicamba Herbicides (June 10, 2020).
Peggy Kirk Hall, Ohio Department of Agriculture: dicamba use in Ohio ends June 30, 2020 (June 11, 2020).

Penn State Research & News:
Sara LaJeunesse, Research team to study food resilience in the face of catastrophic global events (June 8, 2020).
Jeff Mulhollem, Bedrock type under forests greatly affects tree growth, species, carbon storage (June 10, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Secretary of Agriculture: Urbanization Threatens Agricultural Lands, Farmland Preservation Key to Future of Food Security (June 11, 2020).

U.S. Department of Agriculture Press Releases:
USDA Approves Program to Feed Kids in Georgia and Iowa (June 6, 2020).
America’s Meatpacking Facilities Operating More Than 95% of Capacity Compared to 2019 (June 9, 2020).
USDA Approves Delaware to Accept SNAP Benefits Online (June 10, 2020).
USDA Approves Program to Feed Kids in US Virgin Islands (June 10, 2020).
USDA Approves Mississippi to Accept SNAP Benefits Online (June 10, 2020).
USDA Ensures All Kids Can Get Free Meals This Summer as Nation Reopens (June 10, 2020).
Secretary Perdue Announces Modernization Blueprint for the USDA Forest Service (June 12, 2020).
Secretary Perdue Statement on Dicamba Plaintiffs’ Attack on EPA Order (June 12, 2020).

USDA Agencies Press Releases:
APHIS Authorizes Fresh Carrot Imports from Republic of Korea (June 5, 2020).
USDA Announces Improvements to the Livestock Risk Protection Insurance Program This Summer (June 9, 2020).
Farm Service Agency County Committee Nominations Open June 15 (June 10, 2020).
Ralstonia Eradicated from Greenhouses (June 11, 2020).
APHIS Takes Additional Actions to Safeguard U.S. Agriculture Against Tomato Brown Rugose Fruit Virus (June 12, 2020).
USDA Announces Agreement to Allow New Ingredients in Pet Food Exports to China (June 12, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50 Pa.B. 2926 “Fertilizer Nutrient Values,” Notice (June 13, 2020).

Department of Environmental Protection
50 Pa.B. 2985 “Bid Opportunity [Abandoned Mine Reclamation Project, Tower Hill No. 1 North, Redstone Township, Fayette County],” Notice (June 13, 2020).
50 Pa.B. 2927 “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 13, 2020).

Department of Environmental Protection and Pennsylvania Infrastructure Investment Authority (PennVest)
50 Pa.B. 2997 “Clean Water and Drinking Water State Revolving Fund Programs Federal Fiscal Year 2020 Intended Use Plans; Available for Public Comment; Correction,” Notice (June 13, 2020).
50 Pa.B. 2997 “Environmental Assessment Approval for PENNVESTFunding Consideration,” Notice (June 13, 2020).

Game Commission
50 Pa.B. 2987 “Chronic Wasting Disease—Designation of Disease Management Areas and Endemic States and Canadian Provinces Order #8,” Notice, Executive Order (June 13, 2020).

Pennsylvania Legislature
S.B. 1036 “An Act amending the act . . . known as the Tax Reform Code of 1971, in sales and use tax, further providing for definitions [Clarification of Sales Tax Exemption for Cervidae Livestock Operations].” First consideration [Senate] (June 8, 2020).
H.B. 1188 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in hunting and furtaking, further providing for unlawful devices and methods [thermal and night vision equipment].” Re-referred to Appropriations [Senate] (June 8, 2020)
H.B. 2018 “An Act authorizing the Department of General Services, with the approval of the Governor, to grant and convey to the borough of Plymouth a permanent storm water drainage easement in Plymouth Borough, Luzerne County.” First consideration [Senate] (June 8, 2020).
H.B. 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park.” First consideration [Senate] (June 8, 2020).
H.B. 2572 “An Act amending the act . . . known as the Human Services Code, establishing the SNAP Benefits Start-Up Assistance Program; providing for applications for assistance, for award of assistance, for requirements of participants and for funding for assistance.” Referred to Health [House] (June 8, 2020).
S.B. 798 “An Act amending the act . . . known as the Dog Law, in short title and definitions, further providing for definitions; in dangerous dogs, further providing for court proceedings, certificate of registration and disposition and for requirements; and making an editorial change.” Referred to Agriculture and Rural Affairs [House] (June 9, 2020).
H.B. 1037 “An Act amending the act . . . known as the Pennsylvania Construction Code Act . . . . [Wedding Barns].” Removed from table [House] (June 9, 2020).
S.B. 679 “An Act amending the act . . . known as the Dam Safety and Encroachments Act, further providing for definitions; and providing for programs for removing obstructions and flood-related hazards on streams.” Removed from table [Senate] (June 9, 2020).
S.B. 995 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in general provisions, further providing for definitions [Increasing the width of multipurpose agricultural vehicles].” Third consideration and final passage [Senate] (June 9, 2020).
H.B. 2348 “An Act amending Title 64 (Public Authorities and Quasi-Public Corporations) of the Pennsylvania Consolidated Statutes, in Commonwealth Financing Authority, providing for Unserved High-Speed Broadband Funding Program; establishing the Unserved High-Speed Broadband Funding Program Account; making an appropriation; and making a related repeal.” Third consideration and final passage [House] (June 10, 2020).
H.B. 2438 “An Act amending Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, providing for broadband services.” Third consideration and final passage [House] (June 10, 2020).
H.B. 2369 “An Act amending the act . . . known as the Job Enhancement Act, in Community Development Bank Grant and Loan Program, further providing for definitions and providing for COVID-19 grant and loan programs.” Third consideration and final passage [House] (June 10, 2020).
S.B. 905 “An Act providing for the capital budget for fiscal year 2019-2020 . . . .” Signed in House (June 10, 2020).
H.B. 188 “An Act providing for property owner’s bill of rights statement.” Removed from table [House] (June 10, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Department
85 FR 35812 “Notice of Funding Availability; Coronavirus Food Assistance Program (CFAP) Additional Commodities Request for Information; Correction,” Proposed Rule—Comment Period (June 12, 2020).
85 FR 35799 “Coronavirus Food Assistance Program; Correction,” Rule (June 12, 2020).

Agricultural Marketing Service
85 FR 34651 “National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances per April 2019 NOSB Recommendations (Livestock and Handling),” Proposed Rule—Comment Period (June 8, 2020).
85 FR 35222 “Tomatoes Grown in Florida; Modification of Handling Requirements,” Proposed Rule—Comment Period (June 9, 2020).
85 FR 35545 “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2020-2021 Marketing Year,” Rule (June 11, 2020).
85 FR 35633 “International Trade Data System Test Concerning the Electronic Submission Through the Automated Commercial Environment of Notification of Importation of Fruits, Vegetables, and Specialty Crops Required by the Agricultural Marketing Service Using the Partner Government Agency Message Set; Conclusion of Pilot Test,” Notice (June 11, 2020).

Animal and Plant Health Inspection Service
85 FR 35897 “Notice of Request for Revision to and Extension of Approval of an Information Collection; U.S. Origin Health Certificate,” Notice—Comment Period (June 12, 2020).
85 FR 35896 “Notice of Request for Extension of Approval of an Information Collection; Highly Pathogenic Avian Influenza, All Subtypes, and Newcastle Disease; Additional Restrictions,” Notice—Comment Period (June 12, 2020).

Drug Enforcement Administration
85 FR 35331 “Bulk Manufacturer of Controlled Substances Application: Bulk Manufacturer of Marihuana: Honeoye Manufacturing,” Notice—Comment Period (June 9, 2020).

Environmental Protection Agency
85 FR 34646 “Bacillus thuringiensis Cry14Ab-1 Protein in Soybean; Exemption From the Requirement of a Tolerance,” Rule (June 8, 2020).
85 FR 35307 “Issuance of an Experimental Use Permit [for use on Aedes aegypti mosquitoes],” Notice (June 9, 2020).

Federal Emergency Management Agency
85 FR 34648 “Final Flood Elevation Determinations [Wash.],” Rule (June 8, 2020).
85 FR 35318 “Michigan; Amendment No. 1 to Notice of an Emergency Declaration,” Notice (June 9, 2020).
85 FR 35325 “Michigan; Amendment No. 2 to Notice of an Emergency Declaration,” Notice (June 9, 2020).
85 FR 35323 “Changes in Flood Hazard Determinations [Colo., Conn., Fla., Ky., La., Mass., S.C., Tenn., Tex.],” Notice (June 9, 2020).
85 FR 35321 “Proposed Flood Hazard Determinations [Miss., N.D.],” Notice—Comment Period (June 9, 2020).
85 FR 35320 “Proposed Flood Hazard Determinations [Iowa, Mich., Wis.],” Notice—Comment Period (June 9, 2020).
85 FR 35318 “Arkansas; Major Disaster and Related Determinations,” Notice (June 9, 2020).
85 FR 35325 “North Carolina; Major Disaster and Related Determinations,” Notice (June 9, 2020).
85 FR 35319 “Seminole Tribe of Florida; Major Disaster and Related Determinations,” Notice (June 9, 2020).
85 FR 35327 “Guam; Amendment No. 1 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).
85 FR 35322 “Mississippi; Amendment No. 2 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).
85 FR 35319 “Mississippi; Amendment No. 3 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).
85 FR 35326 “Oregon; Amendment No. 1 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).
85 FR 35326 “Puerto Rico; Amendment No. 2 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).
85 FR 35318 “West Virginia; Amendment No. 1 to Notice of a Major Disaster Declaration,” Notice (June 9, 2020).

Fish and Wildlife Service
85 FR 35510 “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Florida Bonneted Bat,” Proposed Rule—Comment Period (June 10, 2020).

Food and Drug Administration
85 FR 35936 “Compounding Animal Drugs From Bulk Drug Substances; Draft Guidance for Industry; Availability; Extension of Comment Period,” Notice (June 12, 2020).

Land Management Bureau
85 FR 34689 “Forest Management Decision Protest Process and Timber Sale Administration,” Proposed Rule—Comment Period (June 8, 2020).

Trade Representative, Office of United States
85 FR 34798 “Notice of Product Exclusion Amendment: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,” Notice (June 8, 2020).

U.S. House Agriculture Committee Actions:
H.R.7162 “To amend the Federal Meat Inspection Act to allow the interstate sale of State-inspected meat, and for other purposes.” Referred to the House Committee on Agriculture (June 11, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.3934 “A bill to amend the Food and Nutrition Act of 2008 to provide for the participation of the Commonwealth of Puerto Rico, American Samoa, and the Commonwealth of the Northern Mariana Islands in the supplemental nutrition assistance program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 10, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
June 8–12, 2020 Top #AgLaw links:
Farmers, Advisers Strive to Stay Ahead of Weed Resistance AgWeek (June 8, 2020).
EPA Offers Clarity to Farmers in Light of Dicamba Court Ruling Farm Policy News (June 9, 2020).
Ag Law Attorney Says Follow State Guidance on Dicamba Ruling Brownfield (June 8, 2020).
As Montana Launches Hemp Checkoff Program, Industry Considers Best Approach Hemp Industry Daily (June 9, 2020).
Bayer Responds to U.S. Court of Appeals Dicamba Ruling Successful Farming (June 6, 2020).
Hemp Industry Making Case For Coronavirus Assistance Brownfield (June 9, 2020).
Trump Administration Permits Use of Weed Killer Blocked by Court Reuters (June 8, 2020).
EPA Responds to Ninth Circuit Court’s Opinion on Dicamba Registrations Successful Farming (June 5, 2020).
Senators Urged to Provide Aid for Poultry Producers Meat+Poultry (June 8, 2020).
35 Thousand Farmers Approved so far for CFAP Assistance Brownfield (June 5, 2020).
COVID-19 Tanks 2021 Net Farm Income Forecasts Feedstuffs (June 10, 2020).

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