Agricultural Law Weekly Review—week ending September 11, 2020

Water Quality: Lawsuits filed against EPA over Pa and NY Chesapeake Bay
On September 10, 2020, the Chesapeake Bay Foundation and the states of Maryland, Virginia, Delaware, and the District of Columbia filed separate complaints against the U.S. Environmental Protection Agency (EPA) seeking to invalidate New York and Pennsylvania’s Chesapeake Bay Agreement nutrient reduction plans and compel EPA Secretary Andrew Wheeler to ensure state compliance with the Chesapeake Bay Agreement nutrient reduction goals.  (Chesapeake Bay Foundation, Inc. v. Environmental Protection Agency, No. 1:20-cv-02529; State of Maryland v. Wheeler, No. 1:20-cv-02530).  Filed in the U.S. District Court for the District of Columbia, the complaints allege that Pennsylvania and New York submitted Phase III Watershed Improvement Plans (WIP) that facially “failed to attain levels of pollution reduction required by the Bay [Total Maximum Daily Load] by 2025” and that EPA’s approval of the plans “ensur[e] that Bay water quality will not be restored by 2025.”  See “Chesapeake Bay Program Announces TMDL Progress Since 2009,” Agricultural Law Weekly Review—week ending August 21, 2020.

Food Safety: USDA Issues Egg Products Inspection Final Rule
On September 9, 2020, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) announced the forthcoming publication in the Federal Register of a final rule titled “Egg Products Inspection Regulations.”  The final rule, published as proposed on February 13, 2018 (83 FR 6314), removes current  “prescriptive” regulations and requires plants that process egg products to develop and implement Hazard Analysis and Critical Control Point (HACCP) Systems and Sanitation Standard Operating Procedures (Sanitation SOPs), and satisfy sanitation requirements consistent with FSIS meat and poultry regulations. Through the final rule, FSIS is “asserting jurisdiction over egg substitutes and freeze-dried egg products.” Other changes include the requirement that pasteurized egg products be processed to “be edible without additional preparation to achieve food safety,” and interpreting “continuous inspection” to “provide for the presence of inspectors at official plants . . . at least once per shift,” consistent with meat and poultry processing.  Additionally in the final rule, FSIS announced its publication of two guidance documents designed to aid small plants in meeting the pasteurization requirements of the rule: Egg Products Hazards and Controls Guide, on which FSIS will seek comment during a 60-day comment period after the rule’s publication, and FSIS Food Safety Guideline for Egg Products.  While the rule becomes effective 60 days after publication, the compliance date for sanitation SOPs and HACCP regulations are one year and two years after publication, respectively.

WOTUS: Oregon Federal Court Denies WOTUS Rule Injunction
On August 7, 2020, the U.S. District Court for the District of Oregon, in a ruling from the bench, denied without prejudice a motion for preliminary injunction against the June 22, 2020 Navigable Waters Protection Rule defining “Waters of the United States” (85 FR 2225).  In its Motion for Preliminary Injunction filed June 8, 2020, the Oregon Cattlemen’s Association (OCA) sought an injunction against the words “or intermittent” in the definition of “tributary” (33 CFR § 328.3(c)(12)) and against the definition of “adjacent wetlands” (33 CFR § 328.3(c)(1)(ii)-(iv)).  For related developments, see “6th Circuit Dismisses WOTUS Challenge as Moot,” Agricultural Law Weekly Review—week ending August 14, 2020 and “Colorado Federal Court Grants WOTUS Rule Injunction,” Agricultural Law Weekly Review—week ending June 26 , 2020.

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 September 14, 2020, are below:

PENNSYLVANIA Payments Applications

Dairy         $104,851,287 2,720

Livestock         $33,027,294 5,622

Non-Specialty Crops $22,179,709 4,884

Specialty Crops         $7,423,973          148

TOTALS         $167,700,145 13,374

From National Ag Law Authorities & Sources:
Tiffany Lashmet, 2020 USDA NASS Cash Rental Rate Survey Results Published (Sept. 8, 2020).
Brigit Rollins, Conservation Clarified: USDA Issues New Rules For Conservation Provisions (Sept. 10, 2020).
Peggy Kirk Hall, Cropland Values and Cash Rents for Western Ohio: Survey Results Are In (Sept. 11, 2020).

Penn State Research & News:
Penn State Researchers to Study Novel Coronavirus Potential to Infect Livestock (Sept. 9, 2020).
Penn State Extension Food-Safety Training Given in Ukraine Has a Lasting Benefit (Sept. 9, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:
Department of Agriculture Releases COVID-19 Restaurant Enforcement Actions, August 31-September 6 (Sept. 9, 2020).
Department of Agriculture, Partners Urge Pennsylvanians to Squash Spotted Lanternflies Today for Future Food Security (Sept. 10, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
USDA Seeks Nominations for the Task Force on Agricultural Air Quality Research (Sept. 8, 2020).
USDA Approves D-SNAP for Louisiana Disaster Areas (Sept. 8, 2020).
WTAS: USDA Extends Free Meals for Kids Through December 31, 2020 (Sept. 8, 2020).
Trump Administration Invests Nearly $10 Million in High-Speed Broadband in Rural Tennessee (Sept. 9, 2020).
USDA Supports U.S. Seafood Industry Impacted by Retaliatory Tariffs (Sept. 9, 2020).
Trump Administration Invests More Than $2 Million in High-Speed Broadband in Rural North Carolina (Sept. 10, 2020).
USDA Seeks Input on Ready-to-Go Technologies and Practices for Agriculture Innovation Agenda (Sept. 10, 2020).
USDA Assists Farmers, Ranchers, and Communities Affected by Hurricane Laura (Sept. 10, 2020).
USDA Expands D-SNAP in 10 Iowa Counties Recovering from Derecho (Sept. 10, 2020.)
Trump Administration Invests More Than $21 Million in High-Speed Broadband in Rural North Carolina (Sept. 11, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Reminds Farmers of September 30 Deadline to Update Safety-Net Program Crop Yields (Sept. 8, 2020).
Joint Environmental Impact Report and Environmental Impact Statement for Wildlife Damage Management in California (Sept. 9, 2020).
USDA Supports U.S. Seafood Industry Impacted by Retaliatory Tariffs (Sept. 9, 2020).
USDA Fiscal Year 2020 Sugar Program Announcements (Sept. 10, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE 

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 37 Sept. 12, 2020):

Department of Agriculture
50 Pa.B. 4650 Notice: “Interstate/International Quarantine Order; Chronic Wasting Disease Importation Requirements for Farmed or Captive Chronic Wasting Disease-Susceptible Cervids.”

Governor’s Office:
50 Pa.B. 4645 “Amendment to Proclamation of Disaster Emergency.”

Pennsylvania Legislature

Passed Both House and Senate

HB 2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Signed in Senate (Sept. 9, 2020).

House Legislation in the Senate 

HB 908 “An Act amending the act . . . entitled “An act authorizing the Commonwealth of Pennsylvania and the local government units thereof to preserve, acquire or hold land for open space uses,”further providing for local taxing options.” First consideration (Sept. 8, 2020).

Senate Legislation

SB 793 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in commercial drivers, further providing for requirement for commercial driver’s license; and, in size, weight and load, further providing for restrictions on use of highways and bridges and for conditions of permits and security for damages.” Re-reported as committed (Sept. 8, 2020).

SB 950 An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Re-referred to Appropriations (Sept. 9, 2020).

SB 845 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for maximum gross weight of vehicles.” First consideration (Sept. 9, 2020).

SB 85 “An Act amending . . . the Dog Law, in licenses, tags and kennels, further providing for transfer of dog licenses or tags and other licensing requirements and for service dogs and dogs used by municipal or State Police departments.” Removed from table (Sept. 9, 2020).

House Legislation

HB 2856 “An Act establishing the CO2 Budget Trading Program; providing for powers and duties of department; establishing the Energy Transition Fund; providing for revenue from sale of carbon allowances; establishing the Energy Transition Board; and providing for energy transition plan.” Referred to Environmental Resources and Energy (Sept. 9, 2020).

HB 2724 “An Act amending the act of February 2, 1966 (1965 P.L.1860, No.586), entitled “An act encouraging landowners to make land and water areas available to the public for recreational purposes by limiting liability in connection therewith, and repealing certain acts,” further providing for definitions; and providing for recreational user’s claim for property rights and for the substitution of the Department of Conservation and Natural Resources for a party in litigation.” Laid on the table (Sept. 11, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Sept. 7–11, 2020): 

Agricultural Department

85 FR 55812 Notice: “Fiscal Year 2020 Raw Cane Sugar Tariff-Rate Quota Increase and Extension of Entry Period” (Sept. 10, 2020).

85 FR 55812 Notice—Comment Period: “Innovative Technologies and Practices for the Agriculture Innovation Agenda” (Sept. 10, 2020).

Agricultural Marketing Service 

85 FR 55363 Rule—Comment Period: “Establishment of a Domestic Hemp Production Program; Comment Period Reopened” (Sept. 8, 2020).
85 FR 55359 Rule: “Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida; Establishment of Reporting Requirements and New Information Collection” (Sept. 8, 2020).
85 FR 55388 Proposed Rule: “Onions Grown in South Texas; Continuance Referendum” (Sept. 8, 2020).

Animal and Plant Health Inspection Service
85 FR 55408 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Animals and Poultry, Animal and Poultry Products, Certain Animal Embryos, Semen, and Zoological Animals” (Sept. 8, 2020).
85 FR 55814 Notice—Comment Period: “Joint Environmental Impact Report and Environmental Impact Statement for Wildlife Damage Management in California” (Sept. 10, 2020).

Commodity Futures Trading Commission

85 FR 55434 Notice: “Agricultural Advisory Committee” (Sept. 8, 2020).

Environmental Protection Agency

85 FR 55380 Rule—Comment Period: “Tiafenacil; Pesticide Tolerances” (Sept. 8, 2020).
85 FR 55446 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides for DDVP, Naled, and Trichlorfon; Notice of Availability” (Sept. 8, 2020).

Federal Emergency Management Agency

85 FR 55469 Notice: “Changes in Flood Hazard Determinations [Texas]” (Sept. 8, 2020).

Fish and Wildlife Service 

85 FR 55398 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat” (Sept. 8, 2020).

Food and Drug Administration

85 FR 55587 Rule: “Food Labeling; Gluten-Free Labeling of Fermented or Hydrolyzed Foods; Correction” (Sept. 9, 2020).

Natural Resources Conservation Service

85 FR 55411 Notice: “Request for Nominations to the Task Force on Agricultural Air Quality Research” (Sept. 8, 2020).

Small Business Administration

85 FR 55566 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana” (Sept. 8, 2020).

85 FR 55567 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana” (Sept. 8, 2020).

85 FR 55567 Notice: “Administrative Declaration of a Disaster for the State of Texas” (Sept. 8, 2020).

85 FR 55735 Notice: “Administrative Declaration of a Disaster for the State of North Carolina” (Sept. 9, 2020).

85 FR 55734 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Iowa” (Sept. 9, 2020).

85 FR 55733 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana” (Sept. 9, 2020).

U.S. House Legislation:

H.R.8200 “To improve the health of minority individuals during the COVID-19 pandemic, and for other purposes.” Referred to the Committees on Energy and Commerce, Ways and Means, the Judiciary, Transportation and Infrastructure, Education and Labor, Agriculture, Natural Resources, House Administration, Oversight and Reform, the Budget, and Small Business (Sept. 11, 2020).

H.R.8204 “To amend the Social Security Act, the Food and Nutrition Act of 2008, and the Low-Income Home Energy Assistance Act of 1981 to require that the value of children’s savings accounts be disregarded for the purpose of determining eligibility to receive benefits under such Acts; and for other purposes.” Referred to the Committees on Ways and Means, Agriculture, Energy and Commerce, and Education and Labor. (Sept. 11, 2020).

U.S. Senate Legislation: 

No new actions Sept. 7–11, 2020.

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks:

Sept. 7–11, 2020 Top #AgLaw links:

1. Trump, Biden Outline Agricultural Priorities, Farm Bureau (Sept. 9, 2020).

2. Government Payments Prop up Net Farm Income, Feedstuffs (Sept. 3, 2020).

3. USDA Reopens Comment Period for Hemp Program Rule, Morning Ag Clips (Sept. 6, 2020).

4. Non-GMO Label Third Most Influential Product Attribute, Supermarket Perimeter (Sept. 8, 2020).

5. Special Report: How COVID-19 Swept the Brazilian Slaughterhouses of JBS, World’s Top Meatpacker, Reuters (Sept. 8, 2020).

6. New Testing Resources for Pa. Hemp Growers, Morning Ag Clips (Sept. 3, 2020).

7. Exclusive: Trump Administration to Deny Pending Retroactive U.S. Biofuel Waivers: Sources, Reuters, (Sept. 8, 2020).

8. DFA Plans to Cut Emissions 30% by 2020, Brownfield (Sept. 4, 2020).

9. Beef is Proving More Profitable Than Chicken in the Pandemic, Pittsburgh Post-Gazette (Sept. 8, 2020).

10. Animal Health Leaders Call for More Consumer-Centric Future, Feedstuffs (Sept. 3, 2020).

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