\n<\/p>\n
Written by:\u00a0\u00a0 The Agricultural Law Weekly Review provides an update of recent Want to listen to this Weekly Review? Check out the <\/b><\/span>Penn Agricultural Labor: Department of Labor Modifies H2A Minimum Wage Biofuels: EPA Requests Extension to Reply to U.S. Supreme Court Pesticides: Interim EPA Registrations of Triazines Appealed\u00a0<\/span> Pesticides: EPA Publishes Final Rule on Pesticide Application Biotechnology: Court Remands FDA Decision on Bio-Engineered Salmon Pennsylvania Passes Broadband Access and Agricultural Vehicle Agricultural Law\/Policy Resources of Interest:<\/span><\/span> Penn State Research & News:\u00a0<\/span> AGENCY PRESS RELEASES\u2014STATE\/FEDERAL<\/span><\/u><\/b><\/p>\n Pennsylvania Department of Agriculture Press Releases:<\/span><\/b><\/p>\n Department U.S. Department of Agriculture (USDA) Press Releases:<\/span><\/b><\/p>\n Trump USDA Secretary USDA U.S. Department of Agriculture (USDA) Agencies Press Releases:<\/span><\/b><\/p>\n USDA Availability USDA STATE ACTIONS\u2014EXECUTIVE\/LEGISLATIVE<\/span><\/u><\/b><\/p>\n Pennsylvania Executive Agencies (<\/span><\/b>Pa. Game Commission<\/span><\/u><\/p>\n
<\/b>Audry Thompson\u2014Research Assistant
<\/b>Brook Duer\u2014Staff Attorney<\/span><\/b><\/p>\n
\nagricultural law developments from local, state, national, and international
\nlevels.\u00a0 Subscribe at <\/span><\/i>pennstateaglaw.com<\/span><\/i><\/a><\/span>.\u00a0<\/span><\/i><\/p>\n
\nState Agricultural Law Podcast<\/span><\/b><\/a><\/span>.\u00a0\u00a0<\/span><\/b><\/p>\n
\nCalculation<\/span>
<\/span><\/span><\/b>On November 5, 2020, the U.S. Department of Labor\u2019s (DOL)
\nEmployment and Training Administration published in the Federal Register a final
\nrule titled \u201cAdverse Effect Wage Rate Methodology for the Temporary Employment
\nof H-2A Nonimmigrants in Non-Range Occupations in the United States\u201d (<\/span>85 FR
\n70445<\/span><\/a><\/span>), which changes the calculation method of the Adverse Effect Wage
\nRate (AEWR), or the minimum wage for agricultural guest workers.\u00a0 Under
\nthe final rule, DOL will base the <\/span>AEWR
\nfor field and livestock workers<\/span><\/a><\/span> on the 2019 Farm Labor
\nSurvey (FLS) \u201caverage annual gross hourly wage rate\u201d for those workers until
\nthe end of 2022.\u00a0 Starting in 2023, DOL will use any percentage change in
\nthe Bureau of Labor Statistics (BLS) wage and salary Employment Cost Index
\n(ECI) for the previous twelve months to modify AEWRS for these workers.\u00a0
\nDOL has published an \u201c<\/span>Implementation
\nFAQ<\/span><\/a><\/span>\u201d document to supplement the final rule, which is effective
\nDecember 21, 2020.\u00a0\u00a0<\/span><\/p>\n
\nSmall Refinery Exemption Appeal\u00a0\u00a0<\/span>
<\/span><\/span><\/b>On November 4, 2020, the U.S. Environmental Protection Agency
\n(EPA) filed a <\/span>motion<\/span><\/a><\/span> for a
\ntime extension in which to file a response to a <\/span>petition
\nfor writ of certiorari<\/span><\/a><\/span> filed with the U.S.
\nSupreme Court on September 4, 2020, by several petroleum refiners seeking to
\nappeal the U.S. Court of Appeals for the Tenth Circuit\u2019s January 24, 2020
\ndecision invalidating EPA\u2019s grant of renewable fuel standard (RFS) small
\nrefinery exemptions.\u00a0 <\/span>HollyFrontier
\nCheyenne Refining, LLC, et al., Petitioners v. Renewable Fuels Association, et
\nal<\/span><\/i><\/a><\/span>., 20-472. The petition for writ of certiorari seeks to determine
\nwhether a small refinery must have received \u201cuninterrupted, continuous hardship
\nexemptions\u201d each year since 2011 to qualify for a RFS hardship exemption.\u00a0
\nIn its motion, EPA requests that its November 12, 2020 response deadline be
\nextended until December 14, 2020.\u00a0 The request is unexpected due to EPA\u2019s
\nearlier failure to seek an appeal of the Tenth Circuit Court\u2019s decision against
\nit.\u00a0 For background, see <\/span>ALWR\u2014January
\n30, 2020<\/span><\/i><\/a><\/span>, \u201cCourt of Appeals Invalidates EPA Grant of Renewable Fuel
\nStandard Waivers.\u201d\u00a0\u00a0<\/span><\/p>\n
<\/span><\/span><\/b>On October 30, 2020, a group of environmental, food, and labor
\ninterest groups filed a <\/span>petition
\nfor review<\/span><\/a><\/span> in the U.S. Court of Appeals for the Ninth Circuit seeking to
\ninvalidate the U.S. Environmental Protection Agency\u2019s (EPA) Interim
\nRegistrations of three triazines: atrazine, propazine, and simazine.\u00a0 (See
\n<\/i><\/span>ALWR\u2014week
\nending September 25, 2020<\/span><\/i><\/a><\/span>, \u201cPesticide Interim
\nRegistration Review Decisions Available\u201d).\u00a0 The petitioners\u2014the Rural
\nCoalition, Pesticide Action Network North America, Beyond Pesticides, Center
\nfor Biological Diversity, and the Center for Food Safety\u2014allege that the
\nInterim Registrations lack substantial evidence in support and that EPA\u2019s
\napproval of the registrations violated its duties under FIFRA.\u00a0 According
\nto the court\u2019s time schedule, the petitioners\u2019 must submit their brief by
\nJanuary 19, 2021, and EPA must file an answer by February 17,
\n2021.\u00a0 \u00a0<\/span><\/p>\n
\nExclusion Zone Requirements\u00a0<\/span>
<\/span><\/span><\/b>On October 30, 2020, the U.S. Environmental Protection Agency
\npublished in the Federal Register a final rule titled \u201cAgricultural Worker
\nProtection Standard; Revision of the Application Exclusion Zone Requirements\u201d (<\/span>85 FR
\n68760<\/span><\/a><\/span>).\u00a0 Among several changes, the rule limits the <\/span>application
\nexclusion zone (AEZ)<\/span><\/a><\/span> requirements to a producer\u2019s own property and
\nallows property owners and immediate family to shelter in place in housing or
\nclosed buildings located on the property during pesticide application.\u00a0
\nThe final rule is effective December 29, 2020.\u00a0 For background, see <\/span>ALWR\u2014October
\n31, 2019<\/span><\/i><\/a><\/span>, \u201cEPA Proposes New Rule on Pesticide Application Exclusion Zone
\nRequirements.\u201d\u00a0\u00a0<\/span><\/p>\n
\nfor Additional Analysis<\/span>
<\/span><\/span><\/b>On November 5, 2020, the U.S. District Court for the Northern
\nDistrict of California issued an <\/span>order<\/span><\/a><\/span> granting
\nsummary judgment against the Food and Drug Administration\u2019s (FDA) in a
\nchallenge to its approval of bio-engineered salmon farming. Institute for
\nFisheries Resources et al. v. Hahn, et al.<\/u>, <\/i>\u00a0<\/span>3:16-cv-01574<\/span><\/a><\/span>.\u00a0
\nAccording to the opinion, although FDA determined that the possibility of
\nbio-engineered salmon escape was highly unlikely, the court found that the
\nagency failed to meaningfully analyze the potential effects to the wild salmon
\npopulation if the bio-engineered salmon were to escape and establish themselves
\nas a population.\u00a0 The court, however, declined to vacate the agency
\naction, instead ordering the agency to \u201cgo back and compete the analysis,\u201d and
\nstated that a vacatur would call for the destruction of the existing
\ngenetically engineered salmon, \u201ca significant loss of property and animal life
\nthat would be wasteful given the real possibility that the FDA will be able to
\ncure the . . . errors on remand.\u201d\u00a0\u00a0<\/span><\/p>\n
\nWidth Legislation<\/span>
<\/span><\/span><\/b>On October <\/span>29, 2020, Pennsylvania Governor Wolf signed into law
\ntwo pieces of legislation of interest to agricultural and rural landowners: (1)
\n<\/span>HB 2438<\/span><\/a><\/span>, which
\naddresses broadband access, and (2)\u00a0<\/span>HB 995<\/span><\/a><\/span>, which
\nincreases the width of agricultural vehicles.\u00a0 HB 2438 allows an electric
\ncooperative to provide broadband services and to use an existing,
\ncurrently-owned easement to build broadband structures.\u00a0 The legislation
\nalso allows a broadband service provider to use an electric cooperative\u2019s
\neasement to add broadband accommodations. HB 995 increases the width of
\nmultipurpose agricultural vehicles that are \u201cused exclusively for agricultural
\noperations\u201d from sixty-two to sixty-six inches as long as the vehicle is \u201conly
\nincidentally operated or moved upon the highways.\u201d\u00a0<\/span><\/p>\n
<\/span><\/span><\/b>Sarah Catherine Cooper, <\/span>The
\nFight for Organic: Hydroponic Certification Under Fire<\/span><\/a><\/span> (Nov. 3,
\n2020).
<\/span>Brigit Rollins, <\/span>Pesticide
\nLitigation: Chlorpyrifos Under Fire<\/span><\/a><\/span> (Nov. 5, 2020).\u00a0
<\/span>Nicole Cook, <\/span>FSA
\nChanges to Payment Limitations and Eligibility Rules<\/span><\/a><\/span> (Nov. 5,
\n2020).<\/span>\u00a0<\/span><\/p>\n
<\/span><\/b>New
\nBacterial Testing Method to Improve Health Care, Food Safety and More<\/span><\/a><\/span> (Oct.
\n30, 2020).\u00a0
<\/span>University
\nCenter Advances Energy, Environmental Knowledge Via Virtual Reality<\/span><\/a><\/span> (Nov. 5,
\n2020).<\/span><\/p>\n
\nOf Agriculture Releases COVID-19 Restaurant Enforcement Actions, October 26 –
\nNovember 1<\/span><\/a><\/span> (Nov. 4, 2020).\u00a0<\/span><\/p>\n
\nAdministration Invests $1.5 Million in High-Speed Broadband in Rural Virginia<\/span><\/a><\/span> (Nov. 2,
\n2020).<\/span><\/p>\n
\nAnnounces First Set of Great American Outdoors Act Projects<\/span><\/a><\/span> (Nov. 2,
\n2020).<\/span><\/p>\n
\nPerdue Statement on DOL\u2019s H2A Wage Rule<\/span><\/a><\/span> (Nov. 2,
\n2020).<\/span><\/p>\n
\nCo-hosts Free Webinar on Nov. 12 on Livestock Risk Management<\/span><\/a><\/span> (Nov. 4,
\n2020).<\/span><\/p>\n
\nAnnounces Commodity Credit Corporation Lending Rates for November 2020<\/span><\/a><\/span>, FSA
\n(Nov. 2, 2020).<\/span><\/p>\n
\nof Petition for Deregulation of Corn Developed Using Genetic Engineering<\/span><\/a><\/span>, APHIS
\n(Nov. 2, 2020).<\/span><\/p>\n
\nAuthorizes Importation of Cold-Treated Citrus Fruit from South Africa into All
\nU.S. Ports of Entry<\/span><\/a><\/span>, APHIS (Nov. 4, 2020).<\/span><\/p>\n
\nBulletin Vol. 50, No. 45\u2014Nov. 7, 2020<\/span><\/b><\/a><\/span>):\u00a0<\/span><\/b><\/p>\n