Agricultural Law Weekly Review—week ending October 30, 2020

Pesticides: EPA Approves Three Dicamba Products’ Registrations Until December 20, 2025
On October 27, 2020, the U.S. Environmental Protection Agency (EPA) announced its decision to approve five-year registrations of three dicamba products for “over-the-top” use: Bayers’ XtendiMax and BASF’s  Engenia, whose registrations were previously cancelled, and Syngenta’s Tavium, whose registration was not cancelled but set to expire December 20, 2020.  DuPont’s FeXapan is not part of the approval decision and remains unapproved for any use at this time.  The three decisions, and supporting documents, are posted directly to the Regulations.gov nonrulemaking docket EPA-HQ-OPP-2020-0492 titled “Dicamba for Use on Dicamba-Tolerant Cotton and Soybeans” and are not published in the Federal Register.  The principal supporting document is the narrative titled “Memorandum Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerant Cotton and Soybean” which outlines the considerations taken into account and the justification for the decision.   The three newly-approved registrations: (a) are for use with “dicamba-tolerant” soybean and cotton only; (b) apply only in the following thirty-four states: Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wisconsin; (c) expire on December 20, 2025; (d) prohibit soybean application after June 30 annually; (e) prohibit cotton application after July 30 annually; (f) require the dicamba products to be tank-mixed with a “pH-buffering agent” and that producers maintain a 240-foot “downwind buffer” and a 310-foot buffer in “listed species” locations; (g) prohibit application during temperature inversions and at any time other than between one hour after sunrise and two hours before sunset.  For more on the registration cancellation of XtendiMax, Engenia, see Agricultural Law in the Spotlight—June 4, 2020, “U.S. Appeals Court Invalidates FIFRA Registrations of Dicamba Products XtendiMax, Engenia and FeXapan” and Agricultural Law in the Spotlight—June 9, 2020 “Dicamba Update: EPA Formally Cancels Product Registrations of Dicamba Products XtendiMax, Engenia and FeXapan.”

Pesticides: California Supreme Court Denies Glyphosate Verdict Appeal
On October 21, 2020, the Supreme Court of California denied Bayer AG’s petition for review of the California Court to Appeal, First Appellate Division’s decision upholding of the trial court verdict for personal injury (non-Hodgkin’s Lymphoma) from glyphosate-exposure. Johnson v. Monsanto, No. S264158.  Bayer claimed that the verdict based upon a failure to warn theory punished the company for adhering to the U.S. Environmental Protection Agency (EPA)’s decision that a glyphosate cancer warning label would constitute misbranding.  On October 23, 2020, Bayer filed a motion to stay the appellate court’s  decision pending the filing a petition for writ of certiorari to the U.S. Supreme Court, which was denied on October 28, 2020.  For more on this topic, see the ALWR–week ending September 4, 2020, “Monsanto Appeals Roundup Verdict to California Supreme Court.”

Water Quality:  Pennsylvania Publishes New NPDES Permit Requirements for CAFOs Effective January 1, 2021
On October 31, 2020, the Pennsylvania Department of Environmental Protection (DEP) published in the Pennsylvania Bulletin a notice titled “Availability of Amended National Pollutant Discharge Elimination System General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12)” announcing the availability of a final amended National Pollutant Discharge Elimination System (NPDES) General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12).  50 Pa.B. 6060.  Effective January 1, 2021, this permit replaces the previous version of the same permit published on March 31, 2018, due to several modifications necessary to correct errors and reduce administrative burdens.  For all Concentrated Animal Feeding Operations (CAFO), a notice of intent to remain covered under the amended General Permit will be due by January 1, 2021.  The list of modifications being implemented, instructions and all forms needed, including the notice of intent form, for use in complying with the January 1,2021 deadline are available at the DEP web pages listed in the Pennsylvania Bulletin notice.  DEP will publish notice of the receipt of notices of intent in the Pennsylvania Bulletin and will publish notice when actions are taken to approve or deny a CAFO’s coverage under the amended General Permit.

COVID-19: Maryland, Delaware Announce COVID-19 Relief Payments for Poultry Growers
On October 19, 2020, the governors of Maryland and Delaware each announced direct assistance programs for contract poultry producers affected by COVID-19 in their respective states.  Both states have a large number of contract poultry producers, who without an ownership interest in the animals, were ineligible for Coronavirus Food Assistance Program (CFAP) payments.  Both programs, the Maryland Contract Poultry Grower COVID-19 Relief Fund and the Delaware Contract Poultry Grower Grant Assistance Program, provide for the same payment structure: $1,000 per poultry house up to a maximum of $5,000 and, if depopulation occurred, $1,500 for each depopulated house with no limit.  In addition, Maryland poultry farmers who were eligible for CFAP 1 payments, may also apply for a 15% supplemental bonus payment.  In Delaware, business interruption insurance coverages for the same loss is primary and may negate eligibility.  The deadline for applications in both states is December 1, 2020.

COVID-19:  CFAP 1 and CFAP 2 Pennsylvania Data 

Weekly, USDA updates aggregate Coronavirus Food Assistance Program 1 (CFAP 1) and Coronavirus Food Assistance Program 2 (CFAP 2) payments.  The latest available Pennsylvania totals are below:

PENNSYLVANIA CFAP 1 Payments Approved Applications (as of 10/25/20)

Dairy $105,929,673 2,760
Livestock           $33,965,995 5,869
Non-Specialty Crops   $22,623,203 5,022
Specialty Crops             $8,419,929             167
Aqua Nursery Flora     $1,100,953               23
TOTALS           $17,039,753 13,841

PENNSYLVANIA CFAP 2 Payments         Approved Applications(as of 10/25/20)

Dairy $41,579,672   1,452
Sales Commodities $20,317,108           417
Acreage-Based         $26,140,640   3,023
Livestock         $12,559,023   2,534
Eggs/Broilers   $2,585,102       86

TOTALS         $103,181,544             7,512

Agricultural Law/Policy Resources of Interest:

Roger A. McEowen, Eminent Domain and “Seriously Misleading” Financing Statements (Oct. 23, 2020).

Micah Brown, Lending for Livestock, Credit for Crops: Attaching the Security Interest (Oct. 27, 2020).

Kristine A. Tidgren, End-of-Year Considerations for an Unprecedented Year (Oct. 27, 2020).

Brigit Rollins, The Deal With Dicamba: EPA Approves Dicamba Pesticides for 2021 and Beyond (Oct. 28, 2020).

Penn State Research & News:

Misleading Mulch: Researchers Find Contents of Mulch Bags Do Not Match Claims (Oct. 29, 2020).

Researchers Use Minerals from Ancient Soils to Reconstruct Past Climate (Oct. 28, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, October 19 – October 25 (Oct. 28, 2020).

Department Of Agriculture Offers Advice To PA Hunters, Processors To Protect Against Chronic Wasting Disease (Oct. 28, 2020).

Wolf Administration: Ag Surplus Program Has Saved 4 Million Pounds Of Farm Fresh Food From Waste, Distributed Through PA Food Banks (Oct. 29, 2020).

Secretary Of Agriculture Announces PA Farm Show Fall Food Fest (Oct. 30, 2020).

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

USDA Announces Early Release of Select Commodity Tables for USDA’s Agricultural Projections to 2030 (Oct. 26, 2020).

Trump Administration Invests $2.3 Million in High-Speed Broadband in Rural North Carolina (Oct. 26, 2020).

More than $7 Billion Paid in Second Round of USDA Coronavirus Food Assistance Program (Oct. 26, 2020).

Trump Administration Invests $891 Million in Rural Water and Wastewater Infrastructure Improvements in 43 States (Oct. 27, 2020).

USDA Encourages Ag Producers, Residents to Prepare for Hurricane Zeta (Oct. 28, 2020).

Trump Administration Invests $871 Million in Rural Community Facilities in 43 States and Guam (Oct. 28, 2020).

Trump Administration Invests $1.8 Million in High-Speed Broadband in Rural Iowa (Oct. 28, 2020).

Trump Administration Invests $5 Million in High-Speed Broadband in Rural Kentucky (Oct. 28, 2020).

USDA Exempts Tongass National Forest from the 2001 Roadless Rule (Oct. 28, 2020).

Trump Administration Invests $26.4 Million in High-Speed Broadband in Rural Oklahoma (Oct. 29, 2020).

Trump Administration Invests $544,000 in High-Speed Broadband in Rural New York (Oct. 29, 2020).

Trump Administration Invests $6 Million in High-Speed Broadband in Rural Colorado (Oct. 29, 2020).

Trump Administration Invests $7 Million in High-Speed Broadband in Rural North Dakota and Montana (Oct. 29, 2020).

Trump Administration Invests $10.6 Million in High-Speed Broadband in Rural Utah, Nevada, Idaho and Wyoming (Oct. 30, 2020).

Trump Administration Invests $3.1 Million in High-Speed Broadband in Rural Nebraska (Oct. 30, 2020).

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

USDA Reminds Producers of Disaster Assistance Application Deadline, FSA (Oct. 23, 2020).

More than $7 Billion Paid in Second Round of USDA Coronavirus Food Assistance Program, FSA (Oct. 26, 2020).

USDA Extends Deadline for Public Comments on Recommendations for Pasture, Rangeland, Forage Rainfall Index Crop Insurance Program, RMA (Oct. 29, 2020).

Availability of an Environmental Assessment for a Biological Control Agent of Common Crupina, APHIS (Oct. 30, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 42—Oct. 31, 2020):

Delaware River Basin Commission

50 Pa.B. 5995 Notice: “Virtual Public Hearing [Thursday, November 12, 2020] and Virtual Business Meeting [Wednesday, December 9, 2020].”

Department of Environmental Protection

50 Pa.B. 6060 Notice: “Availability of Amended National Pollutant Discharge Elimination System General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12).”

50 Pa.B. 6062 Notice: “Proposed Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Nationwide Permits.”

Susquehanna River Basin Commission

50 Pa.B. 6113 Notice: “Grandfathering Registration Notice.”

50 Pa.B. 6113 Notice: “Projects Approved for Consumptive Uses of Water.”

50 Pa.B. 6114 Notice: “Projects Approved for Minor Modifications.”

50 Pa.B. 6114 Notice: “Telephonic Public Hearing [November 5, 2020].”

Pennsylvania Legislature

Signed by the Governor

HB 2438 “An Act amending Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, providing for broadband services.” Act No. 98 (Oct. 29, 2020).

SB 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’].” Act No. 103 (Oct. 29, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Oct. 26–30, 2020):

Agriculture Department

85 FR 68034 Notice: “Public Availability of FY 2018 Service Contract Inventory” (Oct. 27, 2020).

85 FR 68555 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Supplemental Nutrition Assistance Program Regulations, Part 275—Quality Control]” (Oct. 29, 2020).

85 FR 68833 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Supplemental Nutrition Assistance Program Forms: Applications, Periodic Reporting, and Notices]” (Oct. 30, 2020).

85 FR 68834 Notice: “Submission for OMB Review; Comment Request [Animal Plant and Health Inspection Service: Export Certification, Accreditation of Non-Government Facilities]” (Oct. 30, 2020).

85 FR 68835Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Child Nutrition Labeling Program]” (Oct. 30, 2020).

85 FR 68837 Notice: “Submission for OMB Review; Comment Request [Forest Service: Non-Timber Forest Products Generic for Surveys, Interviews, and Focus Groups]” (Oct. 30, 2020).

Agricultural Marketing Service

85 FR 68005 Proposed Rule; referendum order: “Avocados Grown in South Florida; Continuance Referendum” (Oct. 27, 20200).

85 FR 68285 Notice—Comment Period: “Termination of U.S. Consumer Standards” (Oct. 28, 2020).

85 FR 68421 Final Rule: “U.S. Standards for Grades of Grapefruit (Texas and States Other Than Florida, California, and Arizona) and U.S. Standards for Grades of Oranges (Texas and States Other Than Florida, California, and Arizona)” (Oct. 29, 2020).

Animal and Plant Health Inspection Service

85 FR 67705 Notice—Comment Period: “Notice of Availability of Assessment of the Newcastle Disease Status of the Cantons of Neuchâtel and Ticino of Switzerland” (Oct. 26, 2020).

85 FR 68555 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Self-Certification Medical Statement” (Oct. 29, 2020).

85 FR 68838 Notice—Comment Period: “Notice of Availability of an Environmental Assessment for Release of Ramularia Crupinae for Biological Control of Common Crupina (Crupina vulgaris) in the Contiguous United States” (Oct. 30, 2020).

Commodity Credit Corporation

85 FR 67637 Final Rule: “Environmental Quality Incentives Program” (Oct. 26, 2020).

Environmental Protection Agency

85 FR 67737 Notice: “Farm, Ranch, and Rural Communities Advisory Committee (FRRCC); Notice of Virtual Public Meeting” (Oct. 26, 2020).

85 FR 68030 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (September 2020)” (Oct. 27, 2020).

85 FR 68327 Notice—Comment Period: “Pesticide Reregistration Performance Measures and Goals; Annual Progress Report; Notice of Availability” (Oct. 28, 2020).

Federal Emergency Management Agency

85 FR 67753 Notice: “Florida; Major Disaster and Related Determinations” (Oct. 26, 2020).

85 FR 67753 Notice: “Mississippi; Amendment No. 1 to Notice of an Emergency Declaration” (Oct. 26, 2020).

85 FR 67754 Notice: “Oregon; Emergency and Related Determinations” (Oct. 26, 2020).

85 FR 67756 Notice: “Changes in Flood Hazard Determinations [Colo., Conn., Fla., Ga., Ky., Me., N.M., Pa., Tex.]” (Oct. 26, 2020).

85 FR 67758 Notice—Comment Period: “Proposed Flood Hazard Determinations [Cal.]” (Oct. 26, 2020).

85 FR 67760 Notice: “Final Flood Hazard Determinations [Ark., Haw., Ky., Pa., Tenn., Va.]” (Oct. 26, 2020).

85 FR 67762 Notice: “Louisiana; Emergency and Related Determinations” (Oct. 26, 2020).

85 FR 67762 Notice: “Mississippi; Emergency and Related Determinations” (Oct. 26, 2020).

85 FR 67763 Notice: “Florida; Emergency and Related Determinations” (Oct. 26, 2020).

85 FR 67763 Notice: “Alabama; Major Disaster and Related Determinations” (Oct. 26, 2020).

85 FR 67765 Notice: “Alabama; Emergency and Related Determinations” (Oct. 26, 2020).

85 FR 68084 Notice—Comment Period: “Comment Request; Flood Mitigation Assistance (FMA); Building Resilient Infrastructure and Communities (BRIC); Pre-Disaster Mitigation (PDM)” (Oct. 27, 2020).

85 FR 68585 Notice—Comment Period: “Proposed Flood Hazard Determinations [Colo., Fla., Tenn., Tex.]” (Oct. 29, 2020).

85 FR 68586 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Fla., Ga., N.C., S.C., Tex., Utah, Va.]” (Oct. 29, 2020).

85 FR 68589 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Conn., Fla., N.C., Pa., S.C., S.D., Tex]” (Oct. 29, 2020).

85 FR 68782 Final Rule: “Revisions to Publication Requirements for Community Eligibility Status Information Under the National Flood Insurance Program” (Oct. 30, 2020).

Food and Drug Administration

85 FR 67744 Notice: “Alignment of Third-Party Food Safety Standards With Food Safety Regulations: Notice of Pilot Program” (Oct. 26, 2020).

85 FR 68333 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Food Allergen Labeling and Reporting” (Oct. 28, 2020).

Food and Nutrition Service

85 FR 68589 Final Rule: “Commodity Supplemental Food Program: Implementation of the Agriculture Improvement Act of 2018” (Oct. 30, 2020).

Food Safety and Inspection Service

85 FR 68640 Rule—Comments Accepted: “Egg Products Inspection Regulations” (Oct. 29, 2020).

Foreign Agricultural Service

85 FR 67706 Notice: “Adjustment of Appendices Under the Dairy Tariff-Rate Quota Import Licensing Regulation for the 2020 Tariff-Rate Quota Year” (Oct. 26, 2020).

Small Business Administration

85 FR 68114 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Oregon” (Oct. 27, 2020).

85 FR 68618 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of California” (Oct. 29, 2020).

U.S. House Agriculture Committee

H.R.7823 “Emergency Rural Community Relief Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Oct. 30, 2020).

H.R.8135 “Fruits and Vegetables for Children During Pandemic Act of 2020.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Oct. 30, 2020).

H.R.8204 “CSA OPPORTUNITY Act.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Oct. 30, 2020).

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

No new actions Oct. 26–30, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Oct. 26–30, 2020:
Delaware, Maryland Introduce Grant Programs for Poultry Growers, Meat+Poultry
Farmland Markets Stabilize Despite COVID-19, Feedstuffs
California Court Denies Bayer Appeal, Feedstuffs
New Rule Makes Enhancements to Environmental Quality Incentives Program, USDA
EPA to Make Herbicide Announcement Tuesday, Brownfield
Groups Urge Mandatory Labeling of ‘Lab-Grown’ Meat, Meat+Poultry
USDA Asked to Reverse Certain Dairy Provisions in CFAP 2, Feedstuffs
USDA ‘2019 Organic Survey’ Shows Sharply Higher Production, Feedstuffs

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