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 Penn
State Agricultural Law Podcast.
Agricultural Labor: Department of Labor Modifies H2A Minimum Wage
Calculation
On November 5, 2020, the U.S. Department of Labor’s (DOL)
Employment and Training Administration published in the Federal Register a final
rule titled “Adverse Effect Wage Rate Methodology for the Temporary Employment
of H-2A Nonimmigrants in Non-Range Occupations in the United States” (85 FR
70445), which changes the calculation method of the Adverse Effect Wage
Rate (AEWR), or the minimum wage for agricultural guest workers. Under
the final rule, DOL will base the AEWR
for field and livestock workers on the 2019 Farm Labor
Survey (FLS) “average annual gross hourly wage rate” for those workers until
the end of 2022. Starting in 2023, DOL will use any percentage change in
the Bureau of Labor Statistics (BLS) wage and salary Employment Cost Index
(ECI) for the previous twelve months to modify AEWRS for these workers.
DOL has published an “Implementation
FAQ” document to supplement the final rule, which is effective
December 21, 2020.
Biofuels: EPA Requests Extension to Reply to U.S. Supreme Court
Small Refinery Exemption Appeal
On November 4, 2020, the U.S. Environmental Protection Agency
(EPA) filed a motion for a
time extension in which to file a response to a petition
for writ of certiorari filed with the U.S.
Supreme Court on September 4, 2020, by several petroleum refiners seeking to
appeal the U.S. Court of Appeals for the Tenth Circuit’s January 24, 2020
decision invalidating EPA’s grant of renewable fuel standard (RFS) small
refinery exemptions. HollyFrontier
Cheyenne Refining, LLC, et al., Petitioners v. Renewable Fuels Association, et
al., 20-472. The petition for writ of certiorari seeks to determine
whether a small refinery must have received “uninterrupted, continuous hardship
exemptions” each year since 2011 to qualify for a RFS hardship exemption.
In its motion, EPA requests that its November 12, 2020 response deadline be
extended until December 14, 2020. The request is unexpected due to EPA’s
earlier failure to seek an appeal of the Tenth Circuit Court’s decision against
it. For background, see ALWR—January
30, 2020, “Court of Appeals Invalidates EPA Grant of Renewable Fuel
Standard Waivers.”
Pesticides: Interim EPA Registrations of Triazines Appealed
On October 30, 2020, a group of environmental, food, and labor
interest groups filed a petition
for review in the U.S. Court of Appeals for the Ninth Circuit seeking to
invalidate the U.S. Environmental Protection Agency’s (EPA) Interim
Registrations of three triazines: atrazine, propazine, and simazine. (See
ALWR—week
ending September 25, 2020, “Pesticide Interim
Registration Review Decisions Available”). The petitioners—the Rural
Coalition, Pesticide Action Network North America, Beyond Pesticides, Center
for Biological Diversity, and the Center for Food Safety—allege that the
Interim Registrations lack substantial evidence in support and that EPA’s
approval of the registrations violated its duties under FIFRA. According
to the court’s time schedule, the petitioners’ must submit their brief by
January 19, 2021, and EPA must file an answer by February 17,
2021.
Pesticides: EPA Publishes Final Rule on Pesticide Application
Exclusion Zone Requirements
On October 30, 2020, the U.S. Environmental Protection Agency
published in the Federal Register a final rule titled “Agricultural Worker
Protection Standard; Revision of the Application Exclusion Zone Requirements” (85 FR
68760). Among several changes, the rule limits the application
exclusion zone (AEZ) requirements to a producer’s own property and
allows property owners and immediate family to shelter in place in housing or
closed buildings located on the property during pesticide application.
The final rule is effective December 29, 2020. For background, see ALWR—October
31, 2019, “EPA Proposes New Rule on Pesticide Application Exclusion Zone
Requirements.”
Biotechnology: Court Remands FDA Decision on Bio-Engineered Salmon
for Additional Analysis
On November 5, 2020, the U.S. District Court for the Northern
District of California issued an order granting
summary judgment against the Food and Drug Administration’s (FDA) in a
challenge to its approval of bio-engineered salmon farming. Institute for
Fisheries Resources et al. v. Hahn, et al., 3:16-cv-01574.
According to the opinion, although FDA determined that the possibility of
bio-engineered salmon escape was highly unlikely, the court found that the
agency failed to meaningfully analyze the potential effects to the wild salmon
population if the bio-engineered salmon were to escape and establish themselves
as a population. The court, however, declined to vacate the agency
action, instead ordering the agency to “go back and compete the analysis,” and
stated that a vacatur would call for the destruction of the existing
genetically engineered salmon, “a significant loss of property and animal life
that would be wasteful given the real possibility that the FDA will be able to
cure the . . . errors on remand.”
Pennsylvania Passes Broadband Access and Agricultural Vehicle
Width Legislation
On October 29, 2020, Pennsylvania Governor Wolf signed into law
two pieces of legislation of interest to agricultural and rural landowners: (1)
HB 2438, which
addresses broadband access, and (2) HB 995, which
increases the width of agricultural vehicles. HB 2438 allows an electric
cooperative to provide broadband services and to use an existing,
currently-owned easement to build broadband structures. The legislation
also allows a broadband service provider to use an electric cooperative’s
easement to add broadband accommodations. HB 995 increases the width of
multipurpose agricultural vehicles that are “used exclusively for agricultural
operations” from sixty-two to sixty-six inches as long as the vehicle is “only
incidentally operated or moved upon the highways.”
Agricultural Law/Policy Resources of Interest:
Sarah Catherine Cooper, The
Fight for Organic: Hydroponic Certification Under Fire (Nov. 3,
2020).
Brigit Rollins, Pesticide
Litigation: Chlorpyrifos Under Fire (Nov. 5, 2020).
Nicole Cook, FSA
Changes to Payment Limitations and Eligibility Rules (Nov. 5,
2020).
Penn State Research & News:
New
Bacterial Testing Method to Improve Health Care, Food Safety and More (Oct.
30, 2020).
University
Center Advances Energy, Environmental Knowledge Via Virtual Reality (Nov. 5,
2020).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Department
Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, October 26 –
November 1 (Nov. 4, 2020).
U.S. Department of Agriculture (USDA) Press Releases:
Trump
Administration Invests $1.5 Million in High-Speed Broadband in Rural Virginia (Nov. 2,
2020).
USDA
Announces First Set of Great American Outdoors Act Projects (Nov. 2,
2020).
Secretary
Perdue Statement on DOL’s H2A Wage Rule (Nov. 2,
2020).
USDA
Co-hosts Free Webinar on Nov. 12 on Livestock Risk Management (Nov. 4,
2020).
U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA
Announces Commodity Credit Corporation Lending Rates for November 2020, FSA
(Nov. 2, 2020).
Availability
of Petition for Deregulation of Corn Developed Using Genetic Engineering, APHIS
(Nov. 2, 2020).
USDA
Authorizes Importation of Cold-Treated Citrus Fruit from South Africa into All
U.S. Ports of Entry, APHIS (Nov. 4, 2020).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa.
Bulletin Vol. 50, No. 45—Nov. 7, 2020):
Game Commission
50
Pa.B. 6208 Rules and Regulations: “Hunting and Trapping;
General.”
50
Pa.B. 6209 Rules and Regulations: “Special Permits; Canada Geese
Depredation.”
Pennsylvania Legislature
No relevant actions Nov. 2–6, 2020.
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register Nov.
2–6, 2020):
Agriculture Department
85 FR
69564 Notice: “Submission for OMB Review; Comment Request
[Animal and Plant Health Inspection Service: Bovine Spongiform Encephalopathy
(BSE); Importation of Animals and Animal Products]” (Nov. 3, 2020).
85 FR
70576 Notice: “Submission for OMB Review; Comment Request [Food
Safety and Inspection Service: Marking, Labeling, and Packaging of Meat,
Poultry, and Egg Products]” (Nov. 5, 2020).
85 FR
71047 Notice: “Submission for OMB Review; Comment Request
[Animal and Plant Health Inspection Service: Blood and Tissue Collection, and
Recordkeeping, at Slaughtering, Rendering, and Approved Livestock Marketing
Establishments and Facilities]” (Nov. 6, 2020).
Agricultural Marketing Service
85 FR
70431 Final Rule: “National Organic Program; Amendments to the
National List of Allowed and Prohibited Substances per October 2018 NOSB
Recommendations (Crops and Handling)” (Nov. 5, 2020).
Animal and Plant Health Inspection Service
85 FR
69564 Notice—Comment Period: “Pioneer Hi-Bred International,
Inc.: Availability of a Petition for the Determination of Nonregulated Status
for Insect Resistant and Herbicide-Tolerant Maize” (Nov. 3, 2020).
85 FR
70576 Notice: “Decision To Revise Import Requirements for the
Importation of Fresh Citrus From South Africa Into the United States” (Nov. 5,
2020).
Employment and Training Administration
85 FR
70445 Final Rule: “Adverse Effect Wage Rate Methodology for the
Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the
United States” (Nov. 5, 2020).
Environmental Protection Agency
85 FR
69307 Proposed Rule: “Pesticides; Proposal To Add Chitosan to
the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide
Products” (Nov. 2, 2020).
85 FR
69512 Final Rule, comments accepted: “Dipropylene Glycol and
Triethylene Glycol; Exemption From the Requirement of a Tolerance” (Nov. 3,
2020).
85 FR
70062 Final Rule: “Trinexapac-ethyl; Pesticide Tolerances” (Nov.
4, 2020).
85 FR
70146 Notice—Comment Period: “Pesticides; Draft Guidance for
Pesticide Registrants on the List of Pests of Significant Public Health
Importance” (Nov. 4, 2020).
85 FR
70147 Notice—Comment Period: “Notice of Tentative
Approval and Opportunity for Public Comment and Public Hearing for Public Water
System Supervision Program Revision for Pennsylvania” (Nov. 4, 2020).
85 FR
70497 Final Rule, comments accepted: “Calcium Pantothenate;
Exemption From the Requirement of a Tolerance” (Nov. 5, 2020).
85 FR
70494 Final Rule, comments accepted: “Thiamine Mononitrate;
Exemption From the Requirement of a Tolerance” (Nov. 5, 2020).
85 FR
70615 Notice—Comment Period: “Pesticide Registration Review;
Draft Human Health and/or Ecological Risk Assessments for Several Pesticides;
Notice of Availability” (Nov. 5, 2020).
85 FR
70613 Notice: “Product Cancellation Order for Certain Pesticide
Registrations” (Nov. 5, 2020).
85 FR
70586 Notice, comments accepted: “Quarterly Update to Annual
Listing of Foreign Government Subsidies on Articles of Cheese Subject to an
In-Quota Rate of Duty” (Nov. 5, 2020).
85 FR
70997 Final Rule, comments accepted: “Mefentrifluconazole;
Pesticide Tolerances” (Nov. 6, 2020).
85 FR
70976 Final Rule: “Tolerance Crop Grouping Program V” (Nov. 6,
2020).
85 FR
71071 Notice—Comment Period: “Atrazine, Simazine, and Propazine
Registration Review; Draft Endangered Species Act Biological Evaluations;
Notice of Availability” (Nov. 6, 2020).
Farm Credit Administration
85 FR
70955 Final Rule, correction: “Organization; Funding and Fiscal
Affairs, Loan Policies and Operations, and Funding Operations; Investment
Eligibility; Correction” (Nov. 6, 2020).
Federal Emergency Management Agency
85 FR
69636 Notice: “Changes in Flood Hazard Determinations [Ariz.,
Cal, Fla., Ill., Ind., Mich., Ohio, Or., Utah]” (Nov. 3, 2020).
85 FR
69638 Notice—Comment Period: “Proposed Flood Hazard
Determinations [Mich.]” (Nov. 3, 2020).
Fish and Wildlife Service
85 FR
69778 Final Rule: “Endangered and Threatened Wildlife and
Plants; Removing the Gray Wolf (Canis lupus) From the List of Endangered and
Threatened Wildlife” (Nov. 3, 2020).
85 FR
69675 Notice: “Presidential Declaration Amendment of a Major
Disaster for the State of Louisiana [Hurricane Laura]” (Nov. 3, 2020).
Food and Drug Administration
85 FR
70182 Notice—Comment Period: “Agency Information Collection
Activities; Proposed Collection; Comment Request; Regulations Under the Federal
Import Milk Act” (Nov. 4, 2020).
Food and Nutrition Service
85 FR
70043 Final Rule: “Supplemental Nutrition Assistance Program:
Pandemic Electronic Benefits Transfer (P-EBT) Integrity” (Nov. 4, 2020).
Foreign Agricultural Service
85 FR
70127 Notice: “Information on Dairy Import Licenses for the 2021
Tariff-Rate Quota (TRQ) Year-United Kingdom Designation of Importers for Dairy
Import Licenses” (Nov. 4, 2020).
Forest Service
85 FR
69303 Proposed Rule: “Assessing Fees for Excess and Unauthorized
Grazing” (Nov. 2, 2020).
International Trade Commission
85 FR
70188 Notice: “Notice of Receipt of Complaint; Solicitation of
Comments Relating to the Public Interest [Certain Chocolate Milk Powder and
Packaging Thereof]” (Nov. 4, 2020).
Small Business Administration
85 FR
69376 Notice: “Administrative Declaration of a Disaster for the
State of Utah” (Nov. 2, 2020).
U.S. House Agriculture Committee
H.R.8731 “To fill
vacancies for Forest Service recreation management and planning staff in
National Forests, and for other purposes.” Referred to the House Committee
on Agriculture (Nov. 5, 2020).
U.S. Senate Committee Agriculture, Nutrition, and Forestry:
No new actions Nov. 2–6, 2020.
Follow us on Twitter @AgShaleLaw—Top
#AgLaw HotLinks Nov. 2–6, 2020:
Congress
to discuss new farm bill soon, WEAU13 News
Pesticide
opponents want Ninth Circuit to review EPA’s latest dicamba pesticide ruling, Food
Safety News
Perdue
Comments on Labor Department H-2A Wage Rule,
Brownfield
Grange
hails enactment of broadband bill, Morning Ag Clips
IDFA
calls for elimination of barriers to US dairy exports, Morning
Ag Clips
EPA
clarifies pesticide application zone restrictions,
Feedstuffs
Lawmakers
Call for Food Name Protections in Trade Deals,
Brownfield
FSA,
Farm Credit Administration refocus on younger farmers,
Feedstuffs
Congressional
letter seeks to protect common food names,
Feedstuffs
Bayer
Takes $10 Billion Writedown, Flags Higher Roundup Settlement Bill,
Successful Farming/Reuters
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