Agricultural Law Weekly Review—week ending September 4, 2020

Industrial Hemp: USDA Reopens Comment Period for Hemp Production Rule
On September 4, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced the reopening (85 FR 55363) of the comment period for the October 31, 2019 interim final rule, “Establishment of a Domestic Hemp Production Program” (84 FR 58522).  USDA states that it is especially interested in comments from regulated parties operating during the 2020 production season and outlines the following twelve issues on which it particularly seeks comment:

1. Measurement of Uncertainty for Sampling
2. Liquid Chromatography Factor, 0.877
3. Disposal and Remediation of Non-Compliant Plants
4. Negligence
5. Interstate Commerce
6. 15-day Harvest Window
7. Hemp seedlings, microgreens, and clones
8. Hemp breeding and research
9. Sampling Methodology – Flower vs. Whole Plant
10. Sampling Methodology – Homogenous Composition, Frequency, and Volume
11. Sampling Agents
12. DEA Laboratory Registration

The month-long comment period opens September 8, 2020 and closes October 8, 2020.

Food Labeling: District Court Dismisses “Product of the USA” Meat Labeling Lawsuit
On August 27, 2020, the U.S. District Court for the District of New Mexico issued a memorandum opinion and order dismissing a pair of consolidated class action lawsuits alleging deception beef labeling by Tyson Foods, Inc., Cargill Meat Solutions Corp., JBS USA Food Company, and National Beef Packing Company, LLC. (Thornton v. Tyson; Lucero v. Tyson).  Both suits sought injunctions and damages, asserting the Defendants are misleading retailers and consumers by labeling their beef “Product of the USA”, when in fact the cattle are raised in foreign countries, imported into the United States live, then slaughtered and processed in the United States. The court stated the labels were approved by, and consistent with, USDA’s Food Safety and Inspection Service (FSIS) regulations, which in fact allow “Product of USA” labeling on meat products made from animals imported into the U.S. but processed in the United States.

Pesticides/Herbicides: Monsanto appeals Roundup Verdict to California Supreme Court
On August 31, 2020, Monsanto filed a petition for review with the Supreme Court of California (S264158), appealing a ruling from the California First Appellate District Court of Appeal that affirmed the company’s liability for a school district groundskeeper’s non-Hodgkin’s Lymphoma in the case Johnson v. Monsanto (No. A155940).  The petition claims, among other arguments, that the verdict “severely punishes Monsanto for complying with federal law.”  According to the petition, the U.S. Environmental Protection Agency’s (EPA) determination that a “glyphosate causes cancer” label would be misbranding and EPA’s refusal to require such a warning preempts California’s products liability law.  For more on “topic, see “California Appeals Court Affirms Jury Verdict that Bayer Liable for Glyphosate-Caused Cancer but Reduces Damages,” Agricultural Law Weekly Review—week ending July 24, 2020.

Biotechnology: EPA Proposed Rule Exempting Biotech-Created PIPs from Existing Regulations
On August 31, 2020, the U.S. Environmental Protection Agency (EPA) issued a proposed rule for publication in the Federal Register titled “Pesticides; Exemptions of Certain Plant-Incorporated Protectants (PIPs) Derived from Newer Technologies” allowing an exemption for biotech-created plant-incorporated protectants (PIPs) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), given that the “protectants” occur in plants that are sexually compatible with the recipient plant.  The proposed rule would also exempt biotech-created PIPs under currently existing regulations where they: 1) pose no greater risk than PIPs that meet EPA safety requirements; and 2) could have otherwise been created through conventional breeding.  Under the proposed rule, PIP developers would either request EPA approval or submit a self-determination letter to satisfy exemption criteria. The proposed rule carries a 60-day comment period.

Animal Health: Pa. Dept. of Ag Issues Chronic Wasting Disease Quarantine for Bedford, Blair, Fulton Counties
On August 29, 2020, the Pennsylvania Department of Agriculture published in the Pennsylvania Bulletin (50 Pa.B. 4395) notice of a new General Quarantine Order titled “Movement Restrictions Within Core Captive Management Zone” which establishes a Core Captive Management Zone (CCMZ) in Bedford, Blair, and Fulton counties with specific accompanying movement restrictions for cervids in and out of the three-county zone. The order became effective upon its publication and remains in effect until further modification or order.

COVID-19: Sixth Circuit Upholds Denial of Injunction for Michigan Ag Worker Covid-19 Testing
On September 2, 2020, the U.S. Court of Appeals for the Sixth Circuit issued an order denying an injunction against Michigan’s August 3, 2020 Emergency Order requiring COVID-19 testing for agricultural workers, effective August 24, 2020.  The lawsuit was filed by several agricultural producers alleges discrimination against Latinos by “targeting” them for testing.  The U.S. District Court for the Western District of Michigan denied the plaintiffs’ injunction request (see  “Federal Court Denies Temporary Restraining Order Against Michigan’s Mandatory Ag Worker COVID-19 Testing,” Agricultural Law Weekly Review—week ending August 21, 2020).  Thirty-four non-profits, labor unions, health and workers’ rights groups have since sought amicus status in supporting Michigan’s testing order.

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 31, 2020, are below:

PENNSYLVANIA Payments Applications

Non-Specialty Crops   $20,436,969.03 4,416

Specialty Crops     $5,463,888.12     88

Livestock   $30,238,067.57 4,924

Dairy $101,611,480.50 2,529

Aquanursery 12,180.00       0

TOTALS         $157,762,585.22 11,957

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), an email networking and resource-sharing group specifically for those with human resources responsibilities at agricultural operations.  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:
Roger A. McEowen, Issues With Noxious (and Other) Weeds and Seeds (Sept. 5, 2020).
Tiffany Lashmet, MT Supreme Court: Dinosaur Fossils Are Not Minerals (Aug. 31, 2020).
Kristine A. Tidgren, Tax Considerations for Derecho Damage (Sept. 3, 2020).
Brigit Rollins, Buzzing Home: FWS Determines No Critical Habitat for Bumblebee Species (Sept. 3, 2020).

Penn State Research & News:
Vietnam Farmers’ Poultry Sales During Outbreaks May Increase Virus Transmission (Aug. 28, 2020).
Penn State Black Walnut Trial Turns 40, Now Ideal Climate-Change Experiment (Aug. 25, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:
Department of Agriculture Releases COVID-19 Restaurant Enforcement Actions, August 24-30 (Sept. 1, 2020).
Departments of Agriculture, Health Partner to Offer Pennsylvania Hemp Growers New Testing Resources (Sept. 3, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
Trump Administration Invests $9 Million in High-Speed Broadband in Rural Virginia (Aug. 31, 2020).
USDA Extends Free Meals for Kids Through December 31, 2020 (Aug. 31, 2020).
USDA Implements the OneRD Guarantee Loan Initiative; Encourages Private Investment in Rural Communities (Aug. 31, 2020).
USDA Names Dr. Spiro Stefanou as New ERS Administrator (Aug. 31, 2020).
Federal Communications Commission, U.S. Department of Health and Human Services, and U.S. Department of Agriculture Team Up for Rural Health Initiative (Sept. 1, 2020).
Federal Agencies Outline Plan to Help Farmers of Seasonal and Perishable Fruits and Vegetables (Sept. 1, 2020).
USDA Designates 18 Iowa Counties as Primary Natural Disaster Areas (Sept. 3, 2020).
USDA and Nebraska Sign Shared Stewardship Agreement to Improve Forests and Grasslands (Sept. 4, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Announces Commodity Credit Corporation Lending Rates for September 2020 (Sept. 1, 2020).
USDA Designates 18 Iowa Counties as Primary Natural Disaster Areas (Sept. 3, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 36 Sept. 5, 2020): 

Department of Environmental Protection
50 Pa.B. 4615 Notice: “Household Hazardous Waste Education Grant Award under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988.”
50 Pa.B. 4632 Notice: “Environmental Assessment Approval for PENNVEST Funding Consideration [Clean Water and Drinking Water State Revolving Fund Projects for October 21, 2020].”

Executive Board
50 Pa.B. 4556 Statement of Policy: “Reorganization of the Department of Agriculture.”

Pennsylvania Legislature 

House Legislation in the 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.” First consideration (Sept. 3, 2020).
HB 1737 “An Act amending. . . the Economic Development Agency, Fiduciary and Lender Environmental Liability Protection Act, further providing for definitions.” First consideration (Sept. 3, 2020).

Senate Legislation
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.” First consideration (Sept. 3, 2020).
SB 679 “An Act amending . . . the Dam Safety and Encroachments Act, further providing for definitions; and providing for programs for removing obstructions and flood-related hazards on streams.” Laid on the table (Sept. 4, 2020).

House Legislation
H.Res 936 “A Concurrent Resolution terminating the March 6, 2020, Proclamation of Disaster Emergency issued under the hand and Seal of the Governor, Thomas Westerman Wolf.” Motion to override the Governor’s Veto defeated, and the Governor’s Veto sustained (Sept. 2, 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.” Re-committed to Rules (Sept. 2, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Aug. 31–Sept. 4, 2020): 

Agricultural Marketing Service
85 FR 54343 Notice—Comment Period: “Meeting of the National Organic Standards Board [Oct. 28–30, 2020]” (Sept. 1, 2020).
85 FR 54945 Proposed rule: “Paper and Paper-Based Packaging Promotion, Research and Information Order; Continuance Referendum” (Sept. 3, 2020).

Animal and Plant Health Inspection Service
85 FR 54977 Notice—Comment Period: “Notice of Request for Reinstatement of an Information Collection; Export Health Certificate for Animal Products” (Sept. 3, 2020).

Commodity Futures Trading Commission
85 FR 53798 Notice: “Renewal of the Agricultural Advisory Committee” (Aug. 31, 2020).

Environmental Protection Agency
85 FR 54563 Notice: “Notice of Intent To Suspend Certain Pesticide Registrations” (Sept. 2, 2020).
85 FR 54562 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (Sept. 2, 2020).
85 FR 54572 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability” (Sept. 2, 2020).
85 FR 55193 Final Rule—Comment Period: “Pydiflumetofen; Pesticide Tolerance” (Sept. 4, 2020).

Farm Credit Administration
85 FR 54946 Proposed Rule—Comment Period: “Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding Flood Insurance; Extension of Comment Period” (Sept. 3, 2020).

Farm Service Agency
85 FR 55252 Notice—Comment Period: “Information Collection Requests; Generic Clearance for the Collection of Qualitative Customer Feedback on the Farm Service Agency Service Delivery, and Certified State Mediation Program” (Sept. 4, 2020).

Federal Emergency Management Agency
85 FR 53833 Notice: “North Dakota; Amendment No. 1 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53834 Notice: “Mississippi; Amendment No. 8 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53835 Notice: “Mississippi; Amendment No. 4 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53837 Notice: “Mississippi; Amendment No. 3 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53837 Notice: “Mississippi; Amendment No. 4 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53838 Notice: “Mississippi; Amendment No. 4 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53833 Notice: “Mississippi; Amendment No. 2 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53834 Notice: “Mississippi; Amendment No. 2 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53834 Notice: “Mississippi; Amendment No. 1 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53832 Notice: “Iowa; Amendment No. 1 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53837 Notice: “Florida; Amendment No. 13 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53840 Notice: “California; Amendment No. 1 to Notice of a Major Disaster Declaration” (Aug. 31, 2020).
85 FR 53836 Notice: “Docket ID FEMA-2020-0001 [major disaster declaration for the State of Arkansas]” (Aug. 31, 2020).
85 FR 53835 Notice—Comment Period: “Proposed Flood Hazard Determinations [Colo.]” (Aug. 31, 2020).
85 FR 53838 Notice: “Final Flood Hazard Determinations [Colo., Fla., Iowa, La., Okla., S.D., Tenn., Tex.]” (Aug. 31, 2020).
85 FR 53833 Notice: “Texas; Amendment No. 1 to Notice of an Emergency Declaration” (Aug. 31, 2020).
85 FR 53836 Notice: “Louisiana; Amendment No. 1 to Notice of an Emergency Declaration” (Aug. 31, 2020).

Fish and Wildlife Service
85 FR 53842 Notice: “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews of 14 Listed Animal and Plant Species” (Aug. 31, 2020).
85 FR 53840 Notice—Comment Period “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review of the Spectacled Eider (Somateria fischeri)” (Aug. 31, 2020).
85 FR 54076 Final Rule “2020-2021 Station-Specific Hunting and Sport Fishing Regulations” (Aug. 31, 2020).
85 FR 54281 Rule, Final Determination: “Endangered and Threatened Wildlife and Plants; Determination That Designation of Critical Habitat is Not Prudent for the Rusty Patched Bumble Bee.” (Sept. 1, 2020).
85 FR 54339 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Two Species Not Warranted for Listing as Endangered or Threatened Species” (Sept. 1, 2020).

Food and Nutrition Service
85 FR 53786 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Supplemental Nutrition Assistance Program Repayment Demand and Program Disqualification” (Aug. 31, 2020).

Industry and Security Bureau
85 FR 54982 Notice—Comment Period: “Effectiveness of Licensing Procedures for Agricultural Commodities to Cuba” (Sept. 3, 2020).

Rural Business-Cooperative Service
85 FR 54343 Notice: “OneRD Annual Notice of Guarantee Fee Rates, Periodic Retention Fee Rates, Loan Guarantee Percentage and Fee for Issuance of the Loan Note Guarantee Prior to Construction Completion for Fiscal Year 2021” (Sept. 1, 2020).

Small Business Administration
85 FR 55058 Notice: “Presidential Declaration of a Major Disaster for the State of Louisiana” (Sept. 3, 2020).

U.S. House Legislation:
H.R.5552 “Migratory Bird Protection Act of 2020.” Natural Resources Committee, Placed on the Union Calendar (Sept. 1, 2020).
H.R.7794 “Emergency SNAP Flexibilities Extension Act.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 3, 2020).
H.R.7781 “End Polluter Welfare Act of 2020.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 3, 2020).
H.R.7758 “Assistance for Rural Health, Safety and Educational Facilities Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 3, 2020).
H.R.7690 “To establish a payment program for unexpected loss of markets and revenues to timber harvesting and timber hauling businesses due to the COVID-19 pandemic, and for other purposes.” Referred to the Subcommittee on Conservation and Forestry (Sept. 3, 2020).
H.R.7680 “Reinforcing Utility Restoration After Losses (RURAL) Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 3, 2020).
H.R.7571 “Facilitating Reforms that Offer Necessary Telehealth In Every Rural (FRONTIER) Community Act.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 3, 2020).
H.R.7540 “PLANT Act of 2020.” Referred to the Subcommittee on Conservation and Forestry (Sept. 3, 2020).
H.R.7535 “Expanding SNAP Options Act of 2020.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 3, 2020).
H.R.7501 “To amend the Agricultural Marketing Act of 1946 to foster efficient markets and increase competition and transparency among packers that purchase livestock from producers.”  Referred to the Subcommittee on Livestock and Foreign Agriculture (Sept. 3, 2020).
H.R.7490 “RAMP-UP Act.” Referred to the Subcommittee on Livestock and Foreign Agriculture (Sept. 3, 2020).
H.R.7483 “Flexible Financing for Rural America Act of 2020.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 3, 2020).
H.R.8180 “To amend the Endangered Species Act of 1973 to exclude the gray wolf from the authority of such Act, to remove the gray wolf from the lists of threatened species and endangered species published pursuant to such Act, and for other purposes.” Referred to the House Committee on Natural Resources (Sept. 4, 2020).
H.R.8179 “To make hemp, cannabidiol derived from hemp, and any other ingredient derived from hemp lawful for use under the Federal Food, Drug, and Cosmetic Act as a dietary ingredient in a dietary supplement, and for other purposes.” Referred to the House Committee on Energy and Commerce (Sept. 4, 2020).
H.R.1497 “Water Quality Protection and Job Creation Act of 2019” Transportation and Infrastructure, Placed on the Union Calendar (Sept. 4, 2020).

U.S. Senate Legislation:
No new actions August 31–Sept. 4, 2020.

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
USDA Lawyer: Hemp Growers Have ‘A Little Bit of Leeway’ on THC testing, But Not Much, Hemp Industry Daily (Aug. 31, 2020).
Black Farmers File Suit Against Monsanto Seeking to Block Sale of Roundup, St. Louis Post Dispatch (Aug. 26, 2020).
Pandemic Brings Hard Times for Farmers, Worsening Hunger, Associated Press (Aug. 31, 2020).
Farmers Work With Overwhelmed Food Banks to Stay Afloat, Daily Yonder (Aug. 28, 2020).
Farmers to Families Food Box Program Reaches 75 Million Boxes Delivered, USDA (Aug. 28, 2020).
A Strong Rural America Starts with Connectivity, The Hill (Aug. 26, 2020).
New Covid-19 Cases Are on the Rise Again in Rural Counties, Daily Yonder (Sept. 1, 2020).
Monsanto Appeals Roundup Ruling to California Supreme Court, Farm Progress (Sept. 1, 2020).
COVID, Cage-Free Movement Pose Ongoing Challenges to Egg Industry, Feedstuffs (Aug. 7, 2020).
U.S. Ag Seeing ‘Fruits of Labor’ from Recent Trade Deals, Feedstuffs (Aug. 28, 2020).

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