Agricultural Law Weekly Review—week ending July 31, 2020

Written by: 

Audry Thompson—Research Assistant

Brook Duer—Staff Attorney
The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels.  Subscribe at pennstateaglaw.com. 

Want to listen to this Weekly Review? Check out the Agricultural Law Podcast.  

COVID-19: OSHA Seeks to Dismiss Maid-Rite Meat Processing Plant Employees’ Mandamus Complaint, Court Denies Stay

On July 28, 2020, the Occupational Safety and Health Administration (OSHA) and the U.S. Department of Labor (DOL) filed a motion to dismiss and supporting brief in response to a mandamus complaint filed on July 22. 2020, in the United States District Court for the Middle District of Pennsylvania by Maid-Rite Specialty Foods, LLC employees alleging Maid-Rite failed to comply with the Joint CDC/OSHA COVID-19 guidelines for meat processing plants in the operation of its Dunmore, PA, plant and seeking a court order that OSHA be compelled to conduct a formal investigation.  OSHA and DOL claim that, in addition to the court lacking jurisdiction, the “plaintiffs fail[ed] to state a plausible claim” because the “possibility that COVID-19 could spread in the Plant at some unknown time in the future . . . falls far short of alleging an ‘imminent danger.’”  Subsequently, on July 30, 2020, OSHA and DOL filed a motion to stay the July 31, 2020 hearing, which was denied.  At the conclusion of the July 31, 2020 hearing, the Court ordered briefing by the parties to conclude by August 26, 2020, after which a decision is expected on the mandamus request.  For more information see the Agricultural Law Weekly Review—week ending July 24, 2020, titled PA Maid-Rite Employees Seek Writ of Mandamus Ordering OSHA Plant Investigation. 

Biotechnology/Animal Welfare: Ahold Announces New GMO and Animal Welfare Sustainability Policies

On July 30, 2020, Ahold Delhaize USA, parent company of grocery stores operated under the names Food Lion, Giant, Hannaford, and Stop & Shop  announced new supplier policies regarding genetically modified foods and farm animal products.  According to the announcement, all private brand products must display clear on-pack labeling denoting whether the product contains bioengineered food in advance of U.S. Department of Agriculture’s National Bioengineered Food Disclosure Standard (7 CFR 66; 83 FR 65814) January 1, 2022 mandatory deadline.  Under its animal welfare policy, Ahold Delhaize USA expects suppliers of whole or single-ingredient products derived from farm animals to 1) develop an established publicly-facing animal welfare policy, 2) complete an annual animal welfare assessment and report annually that they meet “animal welfare acceptable levels of assurance,” and 3) provide adequate training in their native language to all individuals involved with the direct handling of animals throughout the supply chain.  Ahold Delhaize USA states that it will report annually on the areas covered by the animal welfare policy starting in 2021, and will work with all suppliers to improve compliance by 2025. 

Risk Management: USDA Livestock Gross Margin Insurance Adds Premium Subsidies

On July 20, 2020, the U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) announced adjustments to the 2021 Livestock Gross Margin insurance program (LGM) for cattle and swine.  Among the changes, RMA has added premium subsidies based on a producer-selected deductible.  According to the announcement, LGM-Cattle subsidies will range from an 18% subsidy with no deductible to a 50% subsidy with a $70 minimum deductible and LGM-Swine subsidies will range from an 18% subsidy with no deductible to a 50% subsidy with a $12 minimum deductible.  Producers are eligible for a premium subsidy only if they “target market in two (2) or more months of an insurance period.”  Also among the changes, RMA has moved the premium due dates to the end of the endorsement period for cattle.  USDA RMA operates an “Agent Locator” application to assist producers in locating an agent for purpose of obtaining LGM and other USDA RMA risk management products.  

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 3, 2020, are below:  

PENNSYLVANIA         Payments         Applications

Non-Specialty Crops $15,259, 611.94 3,989  

Specialty Crops         $3,761,208.03        71

Livestock         $22,439,794.29         4,339     

Dairy $77,818,505.29         2,410  

TOTALS                $119,279,119.55 10,809

COVID-19 Ag Legal Update Webinar Series

Penn State Law’s Center for Agricultural and Shale Law is conducting 60-minute webinars on COVID-19 legal developments viewable live or recorded, via the links provided below.   

Next Webinar: August 11, 2020, at 3:00 pm

• COVID-19 Ag Legal Update Webinar #4: Focus on Direct Sales & Liability Prevention 

Past Webinars can be viewed at the following links:

• COVID-19 Ag Legal Update Webinar #3 – Focus on Labor Laws Compliance (recorded June 14, 2020)

• COVID-19 Ag Legal Update Webinar #2 - Focus on Dairy  (recorded June 24, 2020) 

• COVID-19 Ag Legal Update Webinar #1 - Overview of state and federal government responses (recorded June 3, 2020)

From National Ag Law Authorities & Sources: 

Sarah Everhart, Understanding the Proposed Maryland Hemp Farming Program (July 28, 2020).

C. Zulauf, G. Schnitkey, J. Coppess, N. Paulson and K. Swanson, Ad Hoc Payments: A Leading Indicator of Farm Policy Change (July 29, 2020).

Penn State Research & News:

Researchers Identify Evolutionary Origins of SARS-CoV-2 (July 28, 2020).

Researchers Aim to Create Thriving Agricultural Systems in Urbanizing Landscapes (July 29, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:

Agriculture Department Warns Consumers to Report Unsolicited, Mislabeled Seeds Received by Mail (July 28, 2020).

Wolf Administration Announces $10 Million in Tax Credits to Improve Water Quality, Farm Sustainability (July 31, 2020).

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

USDA Launches New Farmers.gov Features to Help Farmers Hire Workers (July 27, 2020).

Trump Administration Invests More Than $3 Million in High-Speed Broadband in Rural North Carolina 9July 27, 2020).

Farmers to Families Food Box Program Reaches 50 Million Boxes Delivered (July 29, 2020).

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

APHIS Launches Animal Welfare Act Licensing Rule Website and Videos (July 27, 2020).

USDA Investigates Packages of Unsolicited Seeds from China (July 30, 2020).

New Lighting System Helps Deer Avoid Vehicles at Night (July 29, 2020).

Field Evaluation Continues on New Oral Rabies Vaccine for Raccoons, Other Wildlife (July 30, 2020). 

USDA Announces Commodity Credit Corporation Lending Rates for August 2020 (Aug. 3, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 31 Aug 1, 2020): 

Delaware River Basin Commission

50 Pa.B. 3900 Notice: “Public Hearing and Business Meeting [August 12, 2020].” 

Department of Environmental Protection

50 Pa.B. 3904 Notice: “The Clean Streams and the Federal Clean Water Act: Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits.”

Pennsylvania Legislature

Signed by the Governor

H.B. 2463 “An Act amending . . . The Administrative Code of 1929, providing for access to public records during disaster declaration.” Act No. 77 (July 27, 2020). 

House Legislation

H.Res.958 “A Resolution recognizing the week of September 19 through 25, 2020, as "Thank a Local Farmer Week" in Pennsylvania.” Introduced as noncontroversial resolution [House] (July 30, 2020).

H.B.2729 “An Act amending . . . the Unemployment Compensation Law, in emergency provisions related to COVID-19, providing for exemptions.” Referred to Labor and Industry [House] (July 30, 2020). 

H.B. 2728 “An Act amending Title 35 (Health and Safety) of the Pennsylvania Consolidated Statutes, in Commonwealth services, providing for hazard pay.” Referred to Labor and Industry [House] (July 30, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register July 27–31, 2020): 

Agriculture Department

85 FR 45369 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Export Sales of U.S. Agricultural Commodities]” (July 28, 2020).

85 FR 45574 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Operating Guidelines, Forms and Waivers]” (July 29, 2020). 

85 FR 45574 Notice: “Submission for OMB Review; Comment Request [Event Appearance Request for the Secretary or Members of his Staff]” (July 29, 2020).

85 FR 45862 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Census of Agriculture Content Test]” (July 30, 2020).

Agricultural Marketing Service 

85 FR 45057 Rule: “Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Change to the Board Membership Eligibility Requirements” (July 27, 2020).

85 FR 45303 Rule: “Administrative Procedures Governing Formulation of a Research and Promotion Order” (July 28, 2020).

Engineers Corps

85 FR 45205 Notice: “Intent to Prepare a Draft Environmental Impact Statement for a Proposed Landfill Expansion within Wetlands that Drain to Burnetts Mill Creek at the Existing Regional Landfill off Merged U.S. Routes 58, 13, and 460 in Suffolk, Virginia” (July 27, 2020).

85 FR 46074 Notice—Comment Period: “Notice of Intent To Prepare a Draft Supplemental Environmental Impact Statement/Environmental Impact Report for the American River Common Features Project, American River Erosion Protection and Arden Pond Mitigation Components (Sacramento County, California), as Authorized Under the Water Resources Development Act of 2016” (July 31, 2020).

Environmental Protection Agency

85 FR 45336 Rule—Comment Period: “Ethalfluralin; Pesticide Tolerances” (July 28, 2020).

85 FR 45329 Rule—Comment Period: “Permethrin; Pesticide Tolerances” (July 28, 2020).

85 FR 45880 Notice—Comment Period: “Registration Review Proposed Interim Decisions for Naphthalene and Para-dichlorobenzene; Notice of Availability” (July 30, 2020).

85 FR 45877 Notice—Comment Period: “Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses” (July 30, 2020).

85 FR 45883 Notice—Comment Period: “Petition To Revoke All Neonicotinoid Tolerances; Notice of Availability” (July 30, 2020).

85 FR 45881 Notice—Comment Period: “Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations” (July 30, 2020).

85 FR 46002 Rule—Comment Period: “Trichoderma atroviride Strain SC1; Exemption From the Requirement of a Tolerance” (July 31, 2020).

85 FR 46004 Rule—Comment Period: “Long Chain Alcohols; Exemption From the Requirement of a Tolerance” (July 31, 2020).

Federal Emergency Management Agency

85 FR 46147 Notice—Comment Period: “Proposed Flood Hazard Determinations [Iowa]” (July 31, 2020).

85 FR 46148 Notice: “Changes in Flood Hazard Determinations [Ariz., Cal., Iowa, Neb., Nev., N.J., N.Y., Ohio, Tex., Wis.]” (July 31, 2020).

85 FR 46142 Notice: “Changes in Flood Hazard Determinations [Ala., Ariz., Ark., Colo., Conn., Fla., Ga., Mass., Me., N.C., Okla., Pa., S.D., Tex., Va.]” (July 31, 2020).

85 FR 46150 Notice: “Changes in Flood Hazard Determinations [Alabama]” (July 31, 2020).

Fish and Wildlife Service 

85 FR 45839 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog and Endangered Status for Carolina Madtom and Designations of Critical Habitat” (July 30, 2020).

85 FR 46164 Notice—Comment Period: “Sierra Pacific Industries Final Habitat Conservation Plan for Northern and California Spotted Owl and Final Environmental Impact Statement; Klamath, Cascade, and Sierra Nevada Mountains, CA” (July 31, 2020).

Food and Drug Administration

85 FR 45306 Rule: “New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Change of Sponsor” (July 28, 2020).

85 FR 45311 Rule: “New Animal Drugs; Withdrawal of Approval of Abbreviated New Animal Drug Application” (July 28, 2020).

Food and Safety Inspection Service

85 FR 45370 Notice—Comment Period: “Notice of Request for Revision of an Approved Information Collection (Salmonella Initiative Program)” (July 28, 2020).

Forest Service

85 FR 45371 Notice: “Kemmerer Ranger District; Wyoming; Kemmerer Grazing and Vegetation Management Project; Withdrawal of Notice of Intent To Prepare an Environmental Impact Statement” (July 28, 2020).

Industry and Security Bureau

85 FR 45998 Notice: “Revision to the Export Administration Regulations: Suspension of License Exceptions for Hong Kong” (July 31, 2020). 

Small Business Administration

85 FR 45288 Notice: “Administrative Declaration of a Disaster for the State of Ohio” (July 27, 2020).

U.S. House Agriculture Committee Actions: 

H.R.7794 “To extend existing supplemental nutrition assistance program flexibilities for States during the COVID-19 pandemic.” Referred to the House Committee on Agriculture (July 27, 2020).

H.R.3879 “Simplifying Outdoor Access for Recreation Act.” Ordered to be Reported (Amended) by Unanimous Consent (July 29, 2020).

H.R.5040 “AIR Safety Act of 2019.” Ordered to be Reported (Amended) by Unanimous Consent (July 29, 2020).

H.R.7823 “To provide for emergency grants for essential community facilities and temporary installations needed in response to COVID-19 pandemic in rural areas.” Referred to the House Committee on Agriculture (July 29, 2020).

H.R.7843 “To amend the Forest and Rangeland Renewable Resources Planning Act of 1974 to promote reforestation following unplanned events on Federal land, and for other purposes. Referred to the Committees on Agriculture and Natural Resources (July 29, 2020).

H.Con.Res.109 “Expressing the sense of Congress that August 30, 2020, be observed as the 130th anniversary of the establishment of the 1890-Institutions.” Referred to the House Committee on Agriculture (July 30, 2020).

H.R.7883 “To direct the Secretary of Agriculture to establish a program under which the Secretary awards grants to States or State departments of agriculture for the purposes of providing support to agricultural fairs for losses sustained due to COVID-19.” Referred to the House Committee on Agriculture (July 30, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 

S.4338 “A bill to direct the Secretary of Agriculture to temporarily suspend increased line speeds at meat and poultry establishments, and for other purposes.”  Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 28, 2020).

S.4353 “A bill to provide emergency assistance for independent poultry growers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 29, 2020).

S.4354 “A bill to require the Secretary of Agriculture to make recourse loans available to commercial processors of dairy products during the COVID-19 pandemic, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 29, 2020).

S.4357 “A bill to amend the Forest and Rangeland Renewable Resources Planning Act of 1974 to promote reforestation following unplanned events on Federal land, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 29, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

July 27–31, 2020 Top #AgLaw links:

Study examines methane-inhibiting additive in dairy cow feed, Morning Ag Clips (July 26, 2020).

Ad Hoc Payments: A Leading Indicator of Farm Policy Change, Farmdoc (July 29, 2020).

APHIS launches Animal Welfare Act website, videos, Morning Ag Clips (July 27, 2020).

APHIS releases suite of Defend the Flock materials, Morning Ag Clips (July 26, 2020).

USDA investigating unsolicited seeds from China, Feedstuffs (July 28, 2020).

Landmark Lake Erie case continued to next Thursday, The Blade (July 24, 2020).

Covid-19 cases appear to be slowing at meat plants. But companies aren’t releasing test results. Fern’s Ag Insider (July 27, 2020).

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