Agricultural Law Weekly Review—week ending June 19, 2020

COVID-19: Pennsylvania’s CARES Act Funding Establishes $15 Million PA Dairy Indemnity Program
On June 16, 2020, Pennsylvania Governor Tom Wolf announced the availability of a total of $40 million in federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding to be used by the Pennsylvania Department of Agriculture for dairy farmers, food programs, and agricultural producers, as appropriated by the General Assembly in the partial 2020-21 state fiscal year budget.  In addition to $15 million to the State Food Purchase Program and $5 million to the Pennsylvania Agricultural Surplus System (PASS) for charitable food system commodity acquisition, on June 17, 2020, Pennsylvania Agriculture Secretary Russell Redding announced that the CARES funding would also include an additional $5 million exclusively for dairy product acquisition through the PASS program.  Lastly, Secretary Redding announced that, in accordance with Section 120-C of the Act 24 of 2020 (i.e. the 2020 Fiscal Code), the remaining $15 million would fund the new Pennsylvania COVID-19 Dairy Indemnity Program, providing a minimum $1,500 direct payment to any dairy farm documenting a loss resulting from discarded or displaced milk during the COVID-19 disaster emergency and an additional “pro rata share” of the remaining funds representing that producer’s percentage share of Pennsylvania producers’ total losses. The application deadline for the Dairy Indemnity Program is September 30, 2020 and payments will be made by November 30, 2020.

Pesticides: Ninth Circuit Denies Challenge to EPA’s Allowance of Continued Dicamba Use of Existing Stocks
On June 19, 2020, the U.S Court of Appeals for the Ninth Circuit (Ninth Circuit) denied by Order, without discussion, a motion requesting it block the U.S. Environmental Protection Agency (EPA) from allowing the continued use of existing end-user stocks of three dicamba-containing pesticides, the 2018 product registrations of which the Court decided on June 3, 2020 were issued in violation of law.  The Court also left intact the EPA’s June 8, 2020, Final Cancellation Order of the pesticide registrations, issued in order to comply with the Court’s June 3, 2020, decision. Simultaneously, the Court granted BASF, a maker of one of pesticides, party status to the case by granting its motion to intervene.  The Court also ordered responses be filed to a BASF motion seeking to recall the Court’s original June 3, 2020, decision.  BASF argues  that it did not have sufficient notice that its 2018 product registration was at risk in the case and therefore it never moved to become a party while the case was pending.  BASF stated it would soon be filing “petitions for rehearing.”  For more on this case, see our coverage dated June 12, 2020, June 9, 2020, and June 5, 2020.

Ag-Gag Statutes: North Carolina Law Declared Unconstitutional
On June 12, 2020, the U.S. District Court for the Middle District of North Carolina struck down the North Carolina Property Protection Act (SL2015-500), declaring various portions of the  law “unconstitutional both facially and as-applied.” PETA et al., v. Stein, et al., 1:16CV25. Passed in 2015, the Act created a trespass-based civil action against an employee who, among other actions, “records images or sound . . . and uses the recording to breach the person’s duty of loyalty to the employer.”  In a seventy-three page opinion, Chief District Judge Thomas Schroeder acknowledged that “recording is protected speech,” and found that because the law regulated speech according to its purpose (”to breach the person’s duty of loyalty”), it thus served to regulate speech according to its content, a U.S. Constitutional violation for which the state provided no defense.  While the court deemed private property protection a legitimate governmental interest, it found that the state had failed to show that other existing laws have proven ineffective to address the issue.

Bankruptcy: Former Dean Foods CEO-Led Firm Wins Borden Dairy Bankruptcy Auction
On June 15, 2020, the U.S. Bankruptcy Court for the District of Delaware filed a Notice of Successful Bidder and Next-Highest Bidders in the ongoing case of In re: Borden Dairy Company, et al.  The filing declared the Successful Bidder of a bankruptcy auction of Borden’s assets as New Dairy Opco, LLC, a joint venture between global investment firm KKR and Capitol Peak Partners, an entity founded by former Dean Foods CEO Gregg Engles. For more on the Borden Dairy Company Chapter 11 bankruptcy, see Agricultural Law Weekly Review, dated January 9, 2020, titled “Borden Dairy Files Chapter 11 Bankruptcy.”

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COVID-19 Ag Legal Update
Webinar #2 – Focus on Dairy
June 24, 2020 11am-12 noon EDT

The impact of COVID-19 on the dairy industry and the responses of the various stakeholders may not have been as public as other sectors, or drawn the media attention, but the pandemic has been another impactful impediment to achieving a return above the cost of production.  The Penn State Center for Agricultural and Shale Law is presenting a 60-minute webinar on Wednesday, June 24, 2020, from 11:00am to 12:00pm, which will focus on the dairy industry.  We will have guest presenters Doug Eberly, Chief Counsel to the Pennsylvania Milk Marketing Board (PMMB), and Marvin Beshore, Esq., who has served as legal counsel to dairy industry clients across the nation for several decades.

Topics will include:
•  11:00am     State Milk Pricing Developments & Recent Actions of the PMMB to respond to COVID-19 – Doug Eberly
•  11:20am     Federal Milk Marketing Order Pricing Developments – Marvin Beshore
•  11:40am     “Dairy Assistance” language in PA Fiscal Code; DEP Guidance on land application of excess milk; Coronavirus Food Assistance Program (CFAP) dairy application; Dairy Revenue Protection (DRP) revision; Dairy Margin Coverage (DMC) in 2020 – Brook Duer

To access this webinar on June 24th, click HERE or copy/paste this link in your browser: https://psu.zoom.us/j/91851237019

To watch the first installment in this webinar series: COVID-19 Ag Legal Update Webinar #1

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From National Ag Law Authorities & Sources:
Sarah Everhart, Changes to the Paycheck Protection Program (June 16, 2020).
Ellen Essman, Ohio Legislative Update (June 16, 2020).
Brigit Rollins, The Deal with Dicamba: Plaintiffs Challenge EPA Cancellation Order (June 18, 2020).

Penn State Research & News:
Jeff Mulhollem, Many factors may contribute to steep, decades-long muskrat population drop (June 8, 2020).
Sara LaJeunesse, Tuberculosis spread from animals to humans greater than previously thought (June 15, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Agriculture Secretary Invites Applications for $2.5 Million in Conservation Excellence Grants Created by PA Farm Bill (June 16, 2020).
Pennsylvania Agricultural Surplus System, USDA Farm to Food Bank Funds Support Local Dairies, Workforce, Food Banks (June 17, 2020).
64th Annual Keystone International Livestock Exposition Cancelled (June 17, 2020).
National All-American Dairy Show Cancelled (June 18, 2020).

U.S. Department of Agriculture Press Releases:
USDA Approves South Carolina and Utah to Accept SNAP Benefits Online (June 16, 2020).
USDA Trade Mitigation Purchases to Feed People in Need and Aid American Farmers Surpass $2B (June 16, 2020).
USDA Extends Farmers to Families Food Box Program Contracts for Some Vendors (June 17, 2020).
USDA Approves Program to Feed Kids in Nebraska and South Carolina (June 18, 2020).

USDA Agencies Press Releases:
Tree Surveys Are Underway In South Carolina to Detect Asian Longhorned Beetle (June 15, 2020).
USDA Dairy Safety-Net Program Signup to Begin October 12 for the 2021 Coverage Period (June 18, 2020).
APHIS Shares SECURE Confirmation Process Guidance and Announces Webinars (June 18,m 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50 Pa.B. 3013 Notice: “Temporary Order Designating Dangerous Transmissible Diseases” (June 20, 2020).

Department of Environmental Protection
50 Pa.B. 3016 Notice: “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” (June 20, 2020).

The General Assembly
50 Pa.B. 3010 A Concurrent Resolution: “Terminating the March 6, 2020 Proclamation of Disaster Emergency” (June 20, 2020).

Milk Marketing Board
50 Pa.B. 3093 Notice: “Sunshine Meetings for Fiscal Year 2020-2021” (June 20, 2020).

Pennsylvania Legislature
H.B. 1559 “An Act amending the act . . . known as the Real Estate Tax Sale Law, adding provisions relating to bidder registration before sale; and, in sale of property, further providing for date of sale, for repurchase by owner, for restrictions on purchases and for sale of property in repository.” Removed from table [House] (June 15, 2020).
H.B. 2592 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in Agriculture Rapid Response Disaster Readiness Account, further providing for eligible disaster funding and for Agriculture Rapid Response Disaster Readiness Account.” Referred to Agriculture and Rural Affairs [House] (June 15, 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].” Referred to Transportation [House] (June 15, 2020).
S.B. 1194 “An Act providing for certain civil immunity relating to COVID-19 exposure and for limitation of time to bring suit.” Referred to Judiciary [Senate] (June 16, 2020).
H.B. 2438 “An Act amending Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, providing for broadband services.” Referred to Communications and Technology [Senate] (June 17, 2020).
H.B. 2477 “An Act amending the act of July 10, 1981 (P.L.234, No.76), known as the Donated Food Limited Liability Act, further providing for donor immunity.” Referred to Judiciary [Senate] (June 17, 2020).
S.B. 1214 “An Act authorizing the . . . grant and convey[ance] to the Schuylkill County Municipal Authority [of] an easement from lands of the Commonwealth of Pennsylvania at the State Correctional Institution Mahanoy situate in Mahanoy Township, County of Schuylkill, for the purpose of establishing, utilizing, and maintaining water wells and appurtenances thereto related to potable water production and distribution for the benefit of customers within the authority’s service territory.” Referred to State Government [Senate] (June 18, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Department
85 FR 36184 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Federal Recognized State Managed Phytosanitary Program]” (June 15, 2020).
85 FR 36373 Notice—Comment Period: “Meeting Notice of the National Agricultural Research, Extension, Education, and Economics Advisory Board” (June 16, 2020).
85 FR 36828 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service Tobacco Reports]” (June 18, 2020).

Environmental Protection Agency
85 FR 36161 Rule: “Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Regulatory Updates to Allegheny County Nonattainment New Source Review (NNSR) Permitting Requirements for 2012 Annual Fine Particulate Matter” (June 15, 2020).
85 FR 36583 Notice: “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses” (June 17, 2020).
85 FR 36580 Notice—Comment Period: “FIFRA Scientific Advisory Panel; Notice of Public Meetings and Request for Nominations of Ad Hoc Expert Reviewers” (June 17, 2020).
85 FR 36755 Rule—Comment Period: “Fenpyroximate; Pesticide Tolerances” (June 18, 2020).
85 FR 36752 Rule—Comment Period: “Fulvic Acid; Exemption From the Requirement of a Tolerance” (June 18, 2020).
85 FR 37094 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (May 2020)” (June 19, 2020).
85 FR 37096 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients” (June 19, 2020).
85 FR 37013 Rule: “Formic Acid and Sodium Formate; Exemption From the Requirement of a Tolerance” (June 19, 2020).

Farm Credit System Insurance Corporation
85 FR 36855 Notice: “Regular Meeting; Farm Credit System Insurance Corporation Board” (June 18, 2020).

Federal Communications Commission
85 FR 36758 Notice: “Rural Digital Opportunity Fund Phase I Auction Scheduled for October 29, 2020; Notice and Filing Requirements and Other Procedures for Auction 904” (June 18, 2020).
85 FR 37022 Rule: “Promoting Telehealth in Rural America” (June 19, 2020).

Federal Crop Insurance Corporation, Farm Service Agency, Commodity Credit Corporation, Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service
85 FR 36670 Rule: “Debt Management” (June 17, 2020).

Federal Emergency Management Agency
85 FR 37103 Notice: “Final Flood Hazard Determinations [Mass., R.I.]” (June 19, 2020).

Fish and Wildlife Service
85 FR 36414 Notice—Comment Period: “Draft Habitat Conservation Plan and Draft Categorical Exclusion for the Garrapata Tanks Slope Repair Project in Monterey County, California” (June 16, 2020).
85 FR 36413 Notice—Comment Period: “Draft Habitat Conservation Plan and Draft Categorical Exclusion for the Singh Parcel, Los Osos, San Luis Obispo County, California” June 16, 2020).

Food and Nutrition Service
85 FR 36830 Notice: “Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): 2020/2021 Income Eligibility Guidelines; Correction” (June 18, 2020).

Forest Service
85 FR 36527 Notice—Comment Period: “Notice of Intent To Issue Forest Order Closing Areas Near Beattie Gulch Trailhead and McConnell Fishing Access North and West of Gardiner, Montana to the Discharge of Firearms” (June 17, 2020).

International Trade Commission
85 FR 36877 Notice: “Certain Food Processing Equipment and Packaging Materials Thereof; Issuance of a General Exclusion Order; Termination of the Investigation” (June 18, 2020).

Small Business Administration
85 FR 36308 Rule—Comment Period: “Business Loan Program Temporary Changes; Paycheck Protection Program-Revisions to First Interim Final Rule” (June 16, 2020).
85 FR 36717 Rule—Comment Period: “Business Loan Program Temporary Changes; Paycheck Protection Program-Additional Revisions to First Interim Final Rule” (June 18, 2020).
85 FR 36997 Rule—Comment Period: “Business Loan Program Temporary Changes; Paycheck Protection Program-Revisions to the Third and Sixth Interim Final Rules” (June 19, 2020).

U.S. House Agriculture Committee Actions:
H.R.7273 “To provide for the Forest Service Legacy Roads and Trails Remediation Program.” Referred to the Committees on Agriculture and Natural Resources (June 18, 2020).
H.R.7271 “To amend the Food and Nutrition Act of 2008 to permit supplemental nutrition assistance program benefits to be used to purchase additional types of items and to increase the amount of such benefits.” Referred to the House Committee on Agriculture (June 18, 2020).
H.R.5040 “AIR Safety Act of 2019” Subcommittee Hearings Held (June 18, 2020).
H.R.2611 “Public Lands Telecommunications Act” Subcommittee Hearings Held (June 18, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.3970 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to promote an American agriculture first agenda and establish the position of Domestic Agriculture Supply Chain Administrator in the Office of the Secretary of Agriculture to connect United States farmers with foodbanks, grocers, and nonprofit food distributors during periods of food scarcity, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 16, 2020).
S.3980 “A bill to prioritize the purchase of agricultural commodities from domestically owned enterprises, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 17, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
June 15–19, 2020 Top #AgLaw links:
Can COVID-19 strengthen ag?, AGWEEK (June 16, 2020).
Iowa’s New Ag Trespass Law Seeks to ‘Intimidate and Silence’ Animal Rights Activists, USA Today (June 13, 2020).
Cause for Concern? Government Programs Increasingly Important Part of Farm Income, Farm Policy News (June 14, 2020).
Farmer Groups File Amicus Brief for Continued Dicamba Use, Feedstuffs (June 17, 2020).
BASF, Corteva File Motions to Intervene in Federal Court Case that Vacated Dicamba Registrations, Successful Farming (June 12, 2020).
7 Ag Stories You Might Have Missed this Week—June 12, 2020, Farm Progress (June 12, 2020).
Bayer Scraps U.S. Plans to Produce Crop Chemical Blocked by Court, Successful Farming/Reuters (June 16, 2020).
Penn State Extension Offers H-2A Workers Visa Growers Forum, Morning Ag Clips (June 11, 2020).
In Absence of Federal Action, Farm Workers’ Coronavirus Cases Spike, Politico (June 10, 2020).

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