August 23, 2021

Agricultural Law Weekly Review – Week Ending August 20, 2021

Pesticides/Herbicides: EPA Invalidates all Chlorpyrifos Tolerance Levels, Prohibits Use on Food 🌾
On August 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a final rule invalidating all “tolerances” for chlorpyrifos and stating the agency’s intent to cancel all registered food uses of the pesticide.  The agency action responds to the April 29, 2021, order and June 21, 2021, mandate from the U.S. Court of Appeals for the Ninth Circuit, which ordered EPA to either correct or revoke chlorpyrifos tolerances and food-use registrations.  LULAC, et al v. Michael Regan, et al, No. 19-71979.  EPA states that it has concluded that “the current aggregate exposures from use of chlorpyrifos do not meet the legally required safety standard that there is a reasonable certainty that no harm will result from such exposures.”  The agency noted the chlorpyrifos prohibitions in the European Union, Canada, and several U.S. states and maintains that it is “committed to reviewing replacements and alternatives” to the pesticide.  According to Bloomberg Law, pesticide industry trade group CropLife America’s President and CEO stated, “CropLife’s counsel will study the final rule once the official, final version is published in the Federal Register and decide whether to challenge it in court.”  See also ALWR—Week Ending April 30, 2021, “Ninth Circuit Directs EPA to Ban Chlorpyrifos Use Entirely or Determine Food Residue Tolerance That Will Cause No Harm Within Sixty Days.”

Pesticides/Herbicides: Bayer Files for U.S. Supreme Court Review of Hardeman Round-Up Verdict
On August 16th, 2021, Bayer filed a Petition for a Writ of Certiorari with the U.S. Supreme Court, requesting review of the U.S. Court of Appeal for the Ninth Circuit’s decision affirming the jury verdict in Hardeman v. Monsanto, Nos. 19-16636 & 19-16708.  Monsanto Company v. Edwin Hardeman, No. 21-241.  In its announcement of the filing, Bayer argues that the California state law-based failure-to-warn product liability claims upon which the verdict was based, are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and that the Ninth Circuit improperly admitted expert testimony.  The respondents must reply by September 17, 2021. See ALWR—Week Ending May 14, 2021, “Ninth Circuit Denies Bayer’s Appeal of Federal Jury’s Glyphosate Verdict.”

Biofuels: Biofuel Groups File for Rehearing of E15 Year-Round Sale Vacatur
On August 16, 2021, Growth Energy, National Corn Growers Association (NCGA), and the Renewable Fuels Association (RFA) filed in the U.S. Court of Appeals for the District of Columbia Circuit a petition for rehearing of the court’s July 2021 decision vacating the Environmental Protection Agency’s (EPA) 2019 regulation, which authorizes year-round sales of fifteen percent ethanol fuel blend (E15).  American Fuel & Petrochemical v. EPA, No. 19-1124.  The groups claim that the decision contradicts established precedent that “absent clear evidence otherwise, courts should not ascribe a bizarre or absurd purpose to Congress.”  They argue that court incorrectly interpreted the phrase “containing . . . 10 percent . . . ethanol” as “containing exactly 10 percent ethanol,” which contradicts the disputed statute’s “ethanol-promoting purpose” by disallowing the year-round sale of E15.  See ALWR—Week Ending July 2, 2021, “D.C. Circuit Court Vacates EPA Rule Allowing Year-Round Sale of E15.” 

Food Labeling: Federal Court Rules Plant-Based Company May Use “Butter,” Products Not Misleading
On August 10, 2021, the U.S. District Court for the Northern District of California issued an order granting summary judgment in favor of plant-based food producer Miyoko’s Kitchen and determining that the state of California may not regulate the company’s use of the terms “butter,” “lactose free,” “cruelty free,” and “revolutionizing dairy with plants.”  Miyoko’s Kitchen v. Ross, No. 3:20-cv-00893.  Miyoko’s filed the lawsuit in February 2020 after receiving a letter from California’s Department of Food and Agriculture (CDFA) ordering the company to remove the terms from its “Cultured Vegan Plant Butter” label and take down pictures of “animal agriculture” from its website.  CDFA claimed that the words and images were misleading and that the dairy-free, plant-based product was misbranded because 21 U.S. Code § 321a, enacted in 1923, defines “butter” as a product “made exclusively from milk or cream, or both, with or without common salt . . . and containing not less than 80 per centum by weight of milk fat.”  The court found that the statutory definition “alone cannot doom commercial speech” and rejected California’s argument that the age of the statute bears heavily on consumers’ understanding of “butter,” stating “[q]uite simply, language evolves.”

Air Quality: Legal Challenge Filed to EPA’s Air Plan Approval for Arizona Over Agricultural Diesel Emissions
On August 13, 2021, the Center for Biological Diversity (Biological Diversity) filed a petition in the U.S. Court of Appeals for the Ninth Circuit requesting review of a June 2021 final rule issued by the Environmental Protection Agency (EPA) titled “Air Plan Approval; Arizona; Stationary Sources; New Source Review Updates” (86 FR 31927).  According to its announcement, Biological Diversity’s petition requests that the court invalidate EPA’s approval of Arizona’s plan, which it claims allows agricultural vehicles and equipment a “blanket exemption” from air-pollution permitting requirements and thus fails to properly protect public health.

 COVID-19: USDA Announces Pandemic Market Volatility Assistance Program for Dairy Producers
On August 19, 2021, the U.S. Department of Agriculture announced the Pandemic Market Volatility Assistance Program. The program will initially distribute $350 million in dairy producer lost revenue reimbursement suffered in July-December 2020 due to: (a) dairy market and pricing abnormalities; (b) the unintended consequence of large negative Class I producer price differential calculations from a change in price formula made via the 2018 Farm Bill; and (c) and precipitous Class I and Class III federal pool revenue shortfalls under existing Federal Milk Marketing Orders (FMMO). USDA stated that the program in its entirety will ultimately provide over $2 billion for dairy industry pandemic relief and will be administered under the umbrella of USDA-Agricultural Marketing Service’s Dairy Program.  The initial eligible reimbursement will be for 80 percent of the revenue difference per month (based on annual production) on volume up to 5 million pounds. The payment rate will vary by FMMO based on the actual losses on pooled milk.  USDA will make payments through agreements with independent handlers and cooperatives, who will be reimbursed for administrative costs and will distribute the monies on the same basis as July – December 2020 producer payments were made.  USDA will communicate with eligible handlers and cooperatives on participation terms and will distribute payments within 60 days of entering into an agreement.  Producer payments must be made in 30 days thereafter.

COVID-19: OSHA “Higher-Risk Workplace” Guidance Includes Meat and Poultry Processing
On August 13, 2021, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) updated its COVID-19 workplace guidance to address “higher-risk workplaces with mixed-vaccination status workers,” which specifically includes agricultural, meat, seafood, and poultry processing sites and “high-volume retail and grocery.”  The guidance recommends that workers maintain a six-foot distance and wear masks.  Additionally, OSHA recommends that employers ensure proper ventilation or relocate work outdoors when possible, provide signs and floor markings to help workers maintain distance, install physical barriers made of plastic or acrylic between workers, and stagger workers’ breaks and arrival times.

Invasive Species: APHIS Issues Spotted Lanternfly Draft Supplemental Environmental Assessment
On August 20, 2021, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced its completion of a draft supplemental environmental assessment of the Spotted Lanternfly Control Program in the mid-Atlantic Region, North Carolina, Ohio, and Kentucky.  The draft assessment includes the June 2020 activities in addition to recommending the use of ground-based mist blowers—which utilize a motorized fan to propel insecticide through a nozzle—on railways, train yards, and rail terminals with multiple types of transportation in Pennsylvania, Ohio, Maryland, Virginia, and West Virginia.

Conservation Programs: Conservation Projects Eligible for American Rescue Plan Act Funds, According to Pennsylvania Law Firm’s Legal Opinion Letter
On August 16, 2021, the Pennsylvania law firm of Hawke McKeon & Sniscak LLP provided a legal opinion letter to the Pennsylvania conservation organization WeConservePa (formerly the Pennsylvania Land Trusts Association) supporting the conclusion that American Rescue Plan (ARP) funds available to local government units may be used for funding conservation-related projects.  Conservation groups are being encouraged to share this opinion letter with municipal government officials.  Local Governments must obligate ARP funds by December 31, 2024 and spend the money by December 31, 2026.

Livestock Producer Survey: “Pennsylvania Farm Bureau is partnering with Delaware Farm Bureau on a survey to examine livestock processing needs in the mid-Atlantic region.  The survey is confidential and should only take 15 minutes to complete. If you are a livestock producer or plan to begin livestock production, please take the survey to help us examine processing needs.” Take the survey here.

Organic Farmer Survey: “Penn State Extension is dedicated to providing education that meets the needs of organic farmers, and we also value insight from those in the field. As we plan upcoming programming, we ask that you share with us what you would like to learn about organic farming, relevant educational programs, and delivery methods that you prefer.” Take the survey here.

Center for Agricultural and Shale Law Programs & Resources

Penn State Agricultural Law Podcasts:
Weekly Episode #189. U.S. Senators Introduce Bill to Stop California’s Prop 12 & California State Court Rules FIFRA Preempts Glyphosate State Products Liability Claims (Aug. 15, 2021).
Weekly Episode #188. Ninth Circuit Upholds California’s Proposition 12 & USDA Confirms African Swine Fever in Dominican Republic (Aug. 3, 2021).
Special Episode #9. Geographic Indications in International Dairy Trade—Part 2: Economics & Trade (Aug. 12, 2021).
Special Episode #8. Geographic Indications in International Dairy Trade – Part 1 (Aug. 5, 2021).
Special Episode #7. Dicamba (July 19, 2021).

Publications & Research by Topic:
Rapid Review: Window Closing on Legal Challenges to California’s Proposition 12 (Aug. 3, 2021).
Agricultural Law Issue Trackers: Biden’s First 100 Days for Food and Agricultural Policy (Aug. 2, 2021)

Events:
WeConservePA Solar Webinar Series: Government Policy and Solar, Aug. 24, 2021, 10:00 a.m.
Overview of Federal and State Purchase of Agricultural Conservation Easement (PACE) Programs with the NALC, Sept. 15, 2021, 12:00 p.m.

Penn State News, Research, & Resources:

Penn State Butcher School Seeks Applicants for 2nd Session, Starting in January (Aug. 13, 2021).

Study of Structural Variants in Cacao Genomes Yields Clues About Plant Diversity (Aug. 16, 2021).

Agricultural Law/Policy Resources of Interest: 

PA Beef Producer Working Group, Exploring two ways to direct market livestock in Pennsylvania (Aug. 2021)

USDA, APHIS, African Swine Fever Action Week (Five daily webinars between Sept. 13 -17, 2021)

Tiffany Lashmet, Questions from Tiffany’s Desk: What Signs Do I Need on My Farm/Ranch? (Aug. 16, 2021).

Kristine Tidgren & Wendong Zhang, Tax Implications of American Families Plan on Iowa Farmland Owners (Aug. 17, 2021).

Micah Brown, Pandemic Payments: Aid under Pandemic Livestock Indemnity Program (Aug. 17, 2021).

Paul Goeringer, NASS Releases Delaware and Maryland Statewide Cash Rental Rate Averages for 2021 (Aug. 16, 2021).

Paul Goeringer, Ninth Circuit Rules in Favor of Beef Checkoff Program (Aug. 17, 2021).

Roger A. McEowen, The Illiquidity Problem of Farm and Ranch Estates (Aug. 19, 2021).

Center for Agricultural Profitability (University of Nebraska-Lincoln):

Weekly Featured Graphic:

Agricultural Economic Insights, On Pace for a Record? Reviewing China’s Agriculture Purchases in 2021 (Aug. 23, 2021)

AGENCY PRESS RELEASES—STATE/FEDERAL

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Wolf Administration Announces $500,000 Available To Improve Childhood Access To Healthy, Local Foods (Aug. 17, 2021).

Agriculture Secretary, Senator Vogel Highlight Opportunity For Increased Dairy Competitiveness (Aug. 18, 2021).

Secretary Of Agriculture Encourages Rural Pennsylvanians To Take Advantage Of Vaccine Clinics At Agricultural Fairs And Events (Aug. 19, 2021).

U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:

USDA Modernizes the Thrifty Food Plan, Updates SNAP Benefits (Aug. 16, 2021).

USDA Invests $69 Million to Support Critical Food and Nutrition Security Needs (Aug. 17, 2021).

Secretaries Haaland and Vilsack Announce Implementation of New Pay Initiatives for Wildland Firefighters (Aug. 17, 2021).

USDA Announces Improvements to the Dairy Safety Net and New Pandemic Market Volatility Assistance Program (Aug. 19, 2021).

USDA Invests $26 Million in Biofuel Infrastructure to Expand Availability of Higher-Blend Renewable Fuels in 23 States (Aug. 19, 2021).

USDA Encourages Ag Producers, Residents to Prepare for Tropical Storm Henri (Aug 20, 2021).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service 

USDA Revises U.S. Standards for Watermelon (Aug. 19, 2021).

USDA Seeks Comments on a Proposed Rule Allowing Exceptions to Geographic Boundaries for Some Grain Inspections (Aug. 19, 2021).

Agricultural Research Service

Penicillium Strain Named State Microbe of Illinois (Aug. 20, 2021).

Animal and Plant Health Inspection Service

Availability of Draft Environmental Documents for Petition to Deregulate Soybean Developed Using Genetic Engineering (Aug. 16, 2021).

APHIS Revising the Animal and Animal Product Import Regulations to Reflect the Exit of the United Kingdom from the European Union (Aug. 16, 2021).

USDA Expanding Importation of Fresh Citrus Fruit from Australia (Aug. 16, 2021).

APHIS updates the Citrus Black Spot (Phyllosticta citricarpa) Quarantine Area in Florida (Aug. 17, 2021).

APHIS Amends Import Requirements for Fresh Fig Fruit from Mexico (Aug. 17, 2021).

Economic Research Service

Potential Wheat Demand in China: Applicants for Import Quota (Aug. 2021).

Farm Service Agency

USDA Accepting Applications to Help Cover Costs for Organic Certification (Aug. 17, 2021).

Food and Nutrition Service

Thrifty Food Plan Increase Means More Nutrition Assistance Funding for American Samoa (Aug. 16, 2021).

USDA Thrifty Food Plan Increase Means More Nutrition Assistance Funding for Puerto Rico (Aug. 16, 2021).

USDA Announces Approval of D-SNAP for Tennessee Disaster Areas (Aug. 17, 2021)

Food Safety and Inspection Service

Constituent Update—FSIS Actions at Establishments That Do Not Follow Mask Requirements (Aug. 20, 2021).

Foreign Agricultural Service 

Private Exporters Report Sales Activity for Unknown Destinations (Aug. 16, 2021).

Private Exporters Report Sales Activity for China and Unknown Destinations (Aug. 17, 2021).

Private Exporters Report Sales Activity for China (Aug. 18, 2021).

Private Exporters Report Sales Activity for China and Mexico (Aug. 19, 2021).

Forest Service

Secretaries Haaland and Vilsack Announce Implementation of New Pay Initiatives for Wildland Firefighters (Aug. 17, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 34—Aug. 21, 2021):

Department of Conservation and Natural Resources

51 Pa.B. 5255 Notice: “Wild Resource Conservation Program Public Input.”

Department of Environmental Protection     

51 Pa.B. 5255 Notice: “Applications for NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”

51 Pa.B. 5318 Notice: “Climate Change Advisory Committee August Meeting.”

51 Pa.B. 5318 Notice: “Small Business Compliance Advisory Committee Meeting Cancellation.”

State Conservation Commission

51 Pa.B. 5345 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

PENNSYLVANIA LEGISLATURE:      

SB 840 “An Act amending . . . the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in licenses of milk dealers, providing for milk distributors required to be licensed and for refusal, suspension or revocation of license; and, in records, reports and information, further providing for records and for reports.” Referred to AGRICULTURE AND RURAL AFFAIRS [Senate] (Aug. 17, 2021).

SB 841 “An Act amending . . . the Milk Marketing Fee Act, further providing for milk dealer license fees generally and for license fees for certain milk dealers.” Referred to AGRICULTURE AND RURAL AFFAIRS [Senate] (Aug. 17, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 16–20, 2021):

Agriculture Department 

86 FR 45952 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Export Inspection and Weighing Waiver for High Quality Specialty Grains Transported in Containers Under the Authority of the United States Grain Standards Act” (Aug. 17, 2021).

Agricultural Marketing Service

86 FR 46606 Proposed Rule—Comment Period: “Exceptions to Geographic Boundaries” (Aug. 19, 2021).

86 FR 46673 Notice: “Revision of U.S. Standards for Grades of Watermelons” (Aug. 19, 2021).

Animal and Plant Health Inspection Service   

86 FR 45621 Final Rule: “Definitions of the European Union and the United Kingdom” (Aug. 16, 2021).

86 FR 45955 Notice—Comment Period: “BASF Corporation; Availability of a Draft Plant Pest Risk Assessment and Draft Environmental Assessment for Determination of Nonregulated Status of Plant-Parasitic Nematode-Protected and Herbicide Tolerant Soybean” (Aug. 17, 2021).

86 FR 46174 Notice: “Decision To Revise the Requirements for the Importation of Fresh Citrus Fruit From Australia Into the Continental United States” (Aug. 18, 2021).

Environmental Protection Agency

86 FR 46156 Final Rule: “Fluensulfone; Pesticide Tolerances” (Aug. 18, 2021).

Federal Crop Insurance Corporation

86 FR 45855 Rule, correcting amendment: “Common Crop Insurance Regulations; Dry Pea Crop Insurance Provisions and Dry Beans Crop Insurance Provisions” (Aug. 17, 2021).

Fish and Wildlife Service      

86 FR 45685 Final Rule: “Endangered and Threatened Wildlife and Plants; Removing Arenaria cumberlandensis (Cumberland Sandwort) From the Federal List of Endangered and Threatened Plants” (Aug. 16, 2021).

86 FR 45909 Final Rule: “Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2021-22 Season” (Aug. 17, 2021).

86 FR 46536 Final Rule: “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Georgetown and Salado Salamanders” (Aug. 18, 2021).

Forest Service

86 FR 46821 Notice—Comment Period: “Information Collection; Forest Products Customer Satisfaction Survey” (Aug. 20, 2021).

Small Business Administration

86 FR 45795 Notice: “Administrative Declaration of a Disaster for the State of Texas” (Aug. 16, 2021).

86 FR 46896 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Montana” (Aug. 20, 2021).

Susquehanna River Basin Commission

86 FR 46750 Notice: “Commission Meeting [September 17, 2021]” (Aug. 19, 2021).

86 FR 46750 Notice: “Projects Approved for Consumptive Uses of Water” (Aug. 19, 2021).

86 FR 46902 Notice:  “Grandfathering (GF) Registration Notice” (Aug. 20, 2021).

U.S. HOUSE AGRICULTURE COMMITTEE:   

H.R.5042 “To provide that section 216 of Executive Order 14008 shall have no force or effect, and for other purposes.” Referred to the Committees on Natural Resources, Agriculture, and Science, Space, and Technology (Aug. 17, 2021).

H.R.5048 “To amend the Food and Nutrition Act of 2008 to permit States to record in writing that applicants for supplemental nutrition assistance benefits have signed an application through a recorded verbal assent over the telephone.” Referred to the House Committee on Agriculture (Aug. 17, 2021).

H.R.4763 “Future of Agricultural Resiliency And Modernization Act” Referred to the Subcommittee on Conservation and Forestry (Aug. 18, 2021).

H.R.4842 “Tree Spiking Mitigation Act of 2021” Referred to the Subcommittee on Conservation and Forestry (Aug. 18, 2021).

U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:     

No new actions Aug. 16–20, 2021.  

U.S. CONGRESSIONAL LEGISLATIVE HEARINGS:

Senate Finance Committee:

Implementation and Enforcement of the United States-Mexico-Canada Agreement: One Year After Entry into Force (Recording, July 27, 2021).

  • Testimony: Allan Huttema, Chair, Northwest Dairy Association/Darigold

House Agriculture Committee:

21st Century Food Systems: Controlled Environment Agriculture’s Role in Protecting Domestic Food Supply Chains and Infrastructure (Recording, July 29, 2021).

State of the Beef Supply Chain: Shocks, Recovery, and Rebuilding, Subcommittee on Livestock and Foreign Agriculture (Recording, July 28, 2021).

  • Testimony: Dr. Jayson Lusk, Purdue; Dr. Jennifer van de Ligt, U. of MN; Dr. Keri Jacobs, U. of MO; Dr. Austin Aherin, V.P. Rabo AgriFinance.

Connect with the Center on Facebook or on Twitter @AgShaleLaw

Top #AgLaw HotLinks Aug. 16–20, 2021.  

Cattle Industry Commits To Climate Neutrality By 2040, Brownfield

European Commission Delays Additional Export Requirements, Avoids Dairy Supply Chain Shutdowns, Brownfield

Groups Want to Create Organic, Grassfed Dairy Supply Chain in Southeast Pa., Farm and Dairy

As Trusted Voices, Farmers Could Be Key To Boosting Rural Vaccination Rates, NPR

No Link Found Between Milk and Increased Cholesterol: Study, Food Navigator

The Livestock Industry’s Response to Meatless Meat, FarmDoc Daily

What’s In the Infrastructure Plan for Rural America?, Feedstuffs

Bankruptcy Judge Allows Farmers to Sell Undelivered Grain in Pipeline Foods Debacle, Agweek

CCQA Publishes Animal Care Reference Manual, National Dairy FARM

Crop Insurance and Unintended Consequences, Phys.org

Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

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