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Written by:<\/span><\/p>\n Audry Thompson\u2014Research Assistant<\/span><\/p>\n Brook Duer\u2014Staff Attorney<\/span> Want to listen to this Weekly Review? Check out the <\/span>Agricultural Law Podcast<\/span><\/a>.\u00a0\u00a0<\/span><\/p>\n Biofuels: EPA Denies Sixty-Eight Small Refinery Exemptions to Renewable Fuel Standard\u00a0<\/span><\/p>\n On September 14, 2020, the U.S. Environmental Protection Agency (EPA) <\/span>announced<\/span><\/a> its <\/span>denial<\/span><\/a> of sixty-eight pending small refinery exemption (SRE) petitions requesting relief from Renewable Fuel Standard (RFS) blending compliance for 2011\u20132018.\u00a0 Following the Tenth Circuit Court of Appeals\u2019 January 24, 2020 ruling in <\/span>Renewable Fuels Assn. v. EPA<\/span><\/a>, holding that EPA\u2019s grant of economic hardship exemptions, rather than statutory-authorized extensions, exceeded EPA\u2019s legal authority.\u00a0 Refiners filed sixty-eight petitions seeking, in various ways, to backfill their previous history of exemptions with new EPA grants of retroactive extensions.\u00a0 Noting that several of the petitions alleging hardship date back to 2011, EPA stated that \u201cit seems unlikely that Congress contemplated or intended to allow a small refinery to obtain hardship relief through submitting a petition in calendar year 2020 for RFS compliance year 2011.\u201d\u00a0 <\/span>S<\/span>ee also <\/span>\u201cCourt of Appeals Invalidates EPA Grant of Renewable Fuel Standard Waiver<\/span>s,\u201d Agricultural Law Weekly Review\u2014<\/span>January 30, 2020<\/span><\/a>.\u00a0<\/span><\/p>\n International Trade: WTO Finds U.S. Tariffs on Chinese Products Violated Trade Pacts<\/span><\/p>\n On September 15, 2020, the World Trade Organization (WTO) <\/span>published<\/span><\/a> a Panel Report titled, \u201c<\/span>United States\u2014Tariff Measures on Certain Goods from China<\/span><\/a>,\u201d sustaining a complaint commenced by China in April 2018 claiming that U.S. tariffs on the import of certain Chinese products violated Articles I:1 and II:1(a) and (b) of the <\/span>General Agreement on Tariffs and Trade<\/span><\/a> (GATT) 1994 and Article 23 of the <\/span>Dispute Settlement Understanding<\/span><\/a> (DSU).\u00a0 The U.S. argued that: a) China\u2019s misappropriations of U.S. intellectual property and technology constituted \u201cstate-sanctioned theft,\u201d and the tariffs were justified to protect U.S. public morals; and b) the countries had agreed to settle the matter outside the WTO.\u00a0 Among other findings, the Panel concluded that, while \u201congoing bilateral negotiations\u201d were in fact occurring between China and the U.S., the \u201cnegotiations seem to be parallel to the ongoing [WTO] panel proceedings and not intended, by China at least, to replace them.\u201d\u00a0<\/span><\/p>\n National Agricultural Policy: GAO Issues Market Facilitation Program Report<\/span><\/p>\n On September 14, 2020, the U.S. Government Accountability Office (GAO) <\/span>publicly released<\/span><\/a> a report titled, \u201c<\/span>USDA Market Facilitation Program: Information on Payments for 2019<\/span><\/a>.\u201d\u00a0 The report, which was prepared as a briefing for the Senate Committee on Agriculture, Nutrition, and Forestry, details the geographic and commodity variation of 2019 Market Facilitation Program (MFP) payments, which were devised to offset impacts of the 2018-2019 China trade war.\u00a0 The report states that 643,965 farming operations received MFP payments totaling approximately $14.4 billion in 2019 across three commodity types: non-specialty crops, specialty crops, and dairy and hogs.\u00a0 According to the report, less than ten percent of MFP payments went to specialty crop and diary and hog producers, while non-specialty crop producers received the most payments in 2019.\u00a0<\/span><\/p>\n COVID-19: First-Ever OSHA Fines Issued for Failure to Protect Workers from COVID-19<\/span><\/p>\n On September 10 and 11, 2020, in a first-of-its-kind action, the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) announced the issuance of citations to <\/span>Smithfield Packaged Meats Corp.<\/span><\/a> in Sioux Falls, S.D. and <\/span>JBS Foods Inc<\/span><\/a>. in Greeley, Colo. for failing to protect employees from exposure to the coronavirus.\u00a0 These are the first known OSHA fines for inadequate COVID-19 worker protections. OSHA cited Smithfield and JBS each for one violation of OSHA\u2019s General Duty Clause for failing to provide a workplace free from recognized hazards that can cause death or serious harm.\u00a0 OSHA additionally cited JBS for failing to provide an authorized employee representative with injury and illness logs in a timely manner after OSHA\u2019s inspection in May 2020.\u00a0 OSHA states that it issued the maximum penalties allowed by law: $13,494 for Smithfield and $15,615 for JBS.\u00a0 The companies have fifteen business days to pay the fines, confer with an OSHA director, or contest the citations.\u00a0<\/span><\/p>\n COVID-19:\u00a0 USDA Announces Second Iteration of Coronavirus Food Assistance Program Direct Payments<\/span><\/p>\n On September 18, 2020, the U.S. Department of Agriculture (USDA) <\/span>announced<\/span><\/a> a second round of $14 billion in funding for the <\/span>Coronavirus Food Assistance Program<\/span><\/a>, now designated as CFAP 2.\u00a0 The new iteration of the program establishes three categories of commodities:\u00a0<\/span><\/p>\n Price Trigger Commodities<\/span>\u2014defined as \u201cmajor commodities that meet a minimum 5-percent price decline over a specified period of time.\u201d Payments vary by commodity, production, and market rate.<\/span><\/p>\n<\/li>\n Flat-Rate Crops<\/span>\u2014defined as \u201ccrops that either do not meet the 5-percent price decline trigger or do not have data available to calculate a price change.\u201d Flat-rate crops include hemp for the first time in CFAP.\u00a0 Payments will be $15 per acre, calculated using eligible 2020 acres.<\/span><\/p>\n<\/li>\n Sales Commodities<\/span>\u2014crops other than price-trigger commodities and flat-rate crops.\u00a0 Payments will be based on 2019 sales.\u00a0<\/span><\/p>\n<\/li>\n<\/ol>\n On Thursday, September 24, 2020 at 3:00 p.m. EDT USDA will host the Coronavirus Food Assistance Program 2.0 <\/span>Producer Webinar<\/span><\/a>.\u00a0 <\/span>Applications<\/span><\/a> for the program will be accepted beginning Sept. 21, 2020 through Dec. 11, 2020.\u00a0\u00a0<\/span><\/p>\n Food Safety: First-Ever Injunction Entered for Produce Safety Rule Violations<\/span><\/p>\n On September 15, 2020, the U.S. Food and Drug Administration <\/span>announced<\/span><\/a> that, in a first-of-its-kind action, it imposed an injunction against further food production under authority of the <\/span>Produce Safety Rule<\/span><\/a> under authority of the Food Safety Modernization Act.\u00a0 An injunction stopping all production of sprouts and soy products was entered against Fortune Food Product, Inc. in the U.S. District Court for the Northern District of Illinois until satisfactory remedial actions are taken.\u00a0 The injunction resulted from uncorrected violations outlined in a <\/span>warning letter<\/span><\/a>, dating back to inspections beginning in 2018 and not due to food-borne illness.\u00a0<\/span><\/p>\n COVID-19:\u00a0 Coronavirus Food Assistance Program (CFAP) Pennsylvania Data\u00a0<\/span><\/p>\n Every Monday, USDA updates its <\/span>publicly available data<\/span><\/a> on aggregate <\/span>Coronavirus Food Assistance Program<\/span><\/a> (CFAP) payments.\u00a0 Pennsylvania totals as of <\/span>September 14, 2020<\/span>, are below:\u00a0\u00a0<\/span><\/p>\n PENNSYLVANIA<\/span>\t<\/span><\/span>\t<\/span><\/span>Payments<\/span>\t<\/span><\/span>\t\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0<\/span><\/span><\/span><\/span>Applications<\/span>\t<\/span><\/span>\t<\/span><\/span><\/p>\n Dairy<\/span>\t<\/span><\/span>\t<\/span><\/span>\t<\/span><\/span>$104,851,287<\/span>\t<\/span><\/span>\t<\/span><\/span> 2,720<\/span><\/p>\n Livestock<\/span>\t<\/span><\/span>\t<\/span><\/span>\t<\/span><\/span>$33,027,294<\/span>\t<\/span><\/span>\t<\/span><\/span> 5,622<\/span><\/p>\n Non-Specialty Crops<\/span>\t<\/span><\/span>$22,179,709<\/span>\t<\/span><\/span>\t<\/span><\/span> 4,884\u00a0\u00a0<\/span><\/p>\n Specialty Crops<\/span>\t<\/span><\/span>\t<\/span><\/span>$7,423,973<\/span>\t<\/span><\/span>\u00a0 \u00a0\u00a0\u00a0 \u00a0<\/span>\u00a0\u00a0 \u00a0<\/span>\u00a01<\/span>48 <\/span>\t<\/span><\/span>\t<\/span><\/span>\u00a0<\/span><\/p>\n TOTALS<\/span>\t<\/span><\/span>\t<\/span><\/span>\u00a0 \u00a0 \u00a0 \u00a0 <\/span>$167,700,145<\/span>\t<\/span><\/span>\t<\/span><\/span>13,374<\/span><\/p>\n From National Ag Law Authorities & Sources:\u00a0<\/span><\/p>\n Roger A. McEowen, <\/span>NRCS Highly Erodible Land and Wetlands Conservation Final Rule \u2013 Clearer Guidance for Farmers or Erosion of Property Rights? \u2013 Part One<\/span><\/a> (Sept. 14, 2020).<\/span><\/p>\n Micah Brown, <\/span>Show Me the Money: A Primer on Agricultural Lending<\/span><\/a> (Sept. 15, 2020).<\/span><\/p>\n Peggy Kirk Hall, <\/span>Governor Signs Ohio Coronavirus Immunity Bill<\/span><\/a> (Sept. 16, 2020).<\/span><\/p>\n Paul Goeringer, <\/span>Appeals Court Remands Enlist Duo Registration to EPA But Does Not Vacate<\/span><\/a> (Sept. 16, 2020).<\/span><\/p>\n Penn State Research & News:<\/span><\/p>\n Study at Penn State to Examine Potential for Birds to Eat Spotted Lanternfly<\/span><\/a> (Sept. 17, 2020).<\/span><\/p>\n
<\/span>The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels.\u00a0 Subscribe at <\/span>pennstateaglaw.com<\/span><\/a>.\u00a0<\/span><\/p>\n\n