August 13, 2021

Agricultural Law Weekly Review – Week Ending August 6, 2021

Animal Welfare: Five U.S. Senators Introduce Federal Legislation to Stop Proposition 12
On August 5, 2021, a group of five U.S. Senators introduced S.2619, titled “Exposing Agricultural Trade Suppression” or “EATS Act,’’ seeking to erase the effect of the Ninth Circuit Court of Appeals’ July 28, 2021, ruling upholding California’s Proposition 12 and leaving in place its January 1, 2022 effective date. The bill proposes to prohibit states from imposing requirements on the “production of agricultural products sold or offered for sale in interstate commerce if the production . . . occurs in another state.”  The bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.  For background, see Rapid Review: Window Closing on Legal Challenges to California’s Proposition 12, August 3, 2021.

Pesticides/Herbicides: California State Court Contradicts Ninth Circuit, Rules FIFRA Preempts Certain State Glyphosate Products Liability Claims
On July 19, 2021, a California state court, the San Bernardino County Superior Court, issued a decision dismissing the Plaintiff’s “failure to warn” and “duty to disclose” claims in a products liability suit against Monsanto/Bayer alleging that glyphosate caused her to develop cancer.  Stephens v. Monsanto Company, et al, No. CIVSB2104801.  The legal ruling is in direct contrast to a U.S. Ninth Circuit Court of Appeals’ May 14, 2021, decision holding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt the a state law “failure to warn” claim.  The California state court found that FIFRA, which prohibits states from requiring labeling standards “in addition to or different from” those imposed by the act (7 U.S. Code § 136v), does “expressly and/or impliedly preempt” the plaintiff’s state law “failure to warn” claim.  The court noted the U.S. Environmental Protection Agency’s (EPA) previous formal finding re: pesticide labeling that glyphosate “poses no cancer risk to humans,” and granted summary judgment in favor of Monsanto/Bayer on the plaintiff’s “failure to warn” claim, stating that “[the plaintiff] is asking to impose warnings on Roundup because she takes issue with EPA’s conclusion, but to order warnings that the EPA has expressly rejected as necessary for glyphosate products . . . would be creating an additional or different requirement than the FIFRA and/or creating a conflict of Monsanto choosing between compliance with federal law and state law.”  The case remains pending for trial on other claims.

Pesticides/Herbicides: Bayer Announces Intent to Seek U.S. Supreme Court Appeal of Hardeman Verdict and To Remove Glyphosate from Consumer Products
Following the California state court ruling in the Stephens case ten-days earlier, on July 29, 2021, Bayer announced that it will file a petition for writ of certiorari with the U.S. Supreme Court seeking to appeal the Ninth Circuit’s May 14, 2021, decision that FIFRA does not preempt a failure to warn and duty to disclose a state court product liability claim in Hardeman v. Monsanto Company et al., No. 19-16636. The same day, during an investor relations conference call on Bayer’s five-point plan to address its glyphosate personal injury liabilities, Bayer cited the Stephens case to support its urged reversal of Hardeman.   Bayer stated that if the Supreme Court declines to hear the case or rules against the company, it will begin its claims administration program to comprehensively address glyphosate liabilities, including adding $4.5 billion to an already-pledged $11.6 billion settlement fund.  Additionally, Bayer announced that it plans to replace glyphosate with “alternative active ingredients” in its Roundup consumer products beginning in 2023, subject to EPA and state approval, “exclusively to manage litigation risk and not because of any safety concerns.”  For background, see ALWR—Week Ending May 28, 2021, “Federal Court Rejects Bayer’s Proposed Partial Glyphosate Settlement, Bayer to Review Roundup Residential Use,” ALWR—Week Ending May 14, 2021, “Ninth Circuit Denies Bayer’s Appeal of Federal Jury’s Glyphosate Verdict,” and ALWR—week ending March 26, 2021, “Bayer Declines to File for Certiorari in Johnson v. Monsanto Case.”

Pesticides/Herbicides: EPA Publishes Interim Registration Review Decision for Paraquat
On August 2, 2021, the U.S. Environmental Protection Agency (EPA) published notice in the Federal Register announcing the agency’s interim registration review decision for paraquat dichloride (86 FR 41471).  EPA’s interim decision allows aerial application on crops, with several restrictions, which the agency considered prohibiting in its proposed interim decision.  Paraquat dichloride may be applied aerially on land parcels up to 350 acres within a 24-hour period for all uses except for cotton desiccation, which has no acreage maximum.  Also, 1) applicators must use enclosed cabs, or, for applications 80 acres or less in a 24-hour period, PF10 respirators may be used, 2) all aerial applications must maintain a 50-75 foot “no-spray” buffer from residential areas, 3) entry must be restricted for 48 hours after aerial application on all crops except for cotton desiccation, after which a seven-day entry restriction is imposed, 4) applicators must take precautions to manage and mitigate spray drift, and 5) human flaggers and mechanically pressurized handguns and backpack sprayers are prohibited.  For background, see ALWR—October 24, 2019, “EPA Opens Comment Period on Paraquat Dichloride.”

Dairy Policy: Small Milk Distributing Plants Petition to be FMMO-Exempt
On July 19, 2021, a group of small milk distributing plants filed a petition with USDA to exempt all Class I handlers with monthly route distribution sales below three million pounds per month from pooling obligations under Federal Milk Marketing Orders.  Current FMMO regulations require Class I distributing plants with monthly route distribution sales above 150,000 pounds to participate in FMMO pools.  A similar exemption was approved in 2010 for producer-handlers with sales of under three million pounds per month. The justification stated is the negative impact on small Class I handlers of recent market conditions (negative Producer Price Differentials) in the form of increased pool obligations and constrained supply availability.   No action on the petition has been announced by USDA.

Center for Agricultural and Shale Law Programs & Resources:

Penn State Agricultural Law Podcasts:

Publications & Research by Topic:

Events:

Penn State News, Research, & Resources:

Nitrous Oxide Emissions, Coming From Legume Cover Crops, Manure, Can be Reduced (Aug. 2, 2021).

Historic Fire Regimes Lay Groundwork for Future Forest Management in Western US (Aug. 2, 2021).

Algorithm Helps Probe Connections Between Stream Chemistry and Environment (Aug. 2, 2021).

Other Agricultural Law/Policy Resources of Interest: 

Bay Journal, Infrastructure bill would boost Bay restoration funding (August 2, 2021)

Bay Journal, As federal support emerges, PA wants to be a carbon capture hub (August 2, 2021)

Center for Agricultural Profitability, U. of Nebraska-Lincoln, The Growing Climate Solutions Act of 2021 and Ag Carbon Markets. Article and Nebraska FARMcast (August 4, 2021)

Tiffany Lashmet, Goliad County Cattle Seized for Cruel Treatment Returned, Case Dismissed (Aug. 2, 2021).

Micah Brown, Judge Certifies Two Classes in Lawsuit Challenging Minority Debt Relief Payments (Aug. 3, 2021).

Peggy Kirk Hall, Considering Carbon Farming? Take Time to Understand Carbon Agreements (Aug. 3, 2021).

Roger A. McEowen, Weather-Related Sales of Livestock (Aug. 5, 2021).

Weekly Featured Graphics:

 Dairy Margin Coverage Payments Triggered for Seventh Consecutive Month

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.

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Secretary Of Agriculture Highlights Public-Private Partnership That Ensures Safe Food For Pennsylvanians (Aug. 4, 2021).

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

No new announcements Aug. 2–6, 2021.

USDA Agency Press Releases:

Agricultural Marketing Service 

USDA Lifts PACA Reparation Sanctions on Michigan Produce Business (Aug. 2, 2021).

New USDA Market News Reports to Enhance Price Transparency in Cattle Markets (Aug. 5, 2021).

USDA Restricts Perishable Agricultural Commodities Act Violators in Arizona, Illinois, New Jersey and Oklahoma from Operating in the Produce Industry (Aug. 5, 2021).

USDA Announces $10 Million in Grant Funding Available for the Specialty Crop Multi-State Program (Aug. 6, 2021).

Animal and Plant Health Inspection Service

USDA Begins 2021 Oral Rabies Vaccine Efforts in Eastern United States (Aug. 2, 2021).

USDA Urges Public to Check Trees for Asian Longhorned Beetle and to Not Move Untreated Firewood (Aug. 3, 2021).

USDA Announces Requirements for Importing Dogs from Countries Affected with African Swine Fever (Aug. 4, 2021).

USDA Seeks Public Input on Notice of Intent to Prepare an Environmental Impact Statement for Deregulation of American Chestnut Developed Using Genetic Engineering (Aug. 5, 2021).

Economic Research Service

International Food Security Assessment, 2021-31 (July 2021).

Farm Service Agency

USDA Announces August 2021 Lending Rates for Agricultural Producers (Aug. 2, 2021).

USDA Invests $15 Million in Klamath River Basin (Aug. 2, 2021).

Food and Nutrition Service

Celebrating National Farmers Market Week (Aug. 2, 2021).

Food Safety and Inspection Service

Special Alert: Constituent Update—Measures to Protect FSIS Inspection Personnel from COVID-19 Infection (Aug. 4, 2021).

Constituent Update—FSIS, FDA Sign New Agreement Related to Dual Jurisdiction (Aug. 6, 2021).

Foreign Agricultural Service 

Private Exporters Report Sales Activity for Unknown Destinations (Aug. 5, 2021).

Private Exporters Report Sales Activity for China (Aug. 6, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 32—Aug. 7, 2021):

Department of Agriculture

51 Pa.B. 4357 Notice: “Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List.”

51 Pa.B. 4357 Notice: “Commonwealth Specialty Crop Block Grant Program; 2021-2022 Program Guidelines.”

51 Pa.B. 4360 Notice: “List of Pesticides Which May be Used by Medical Marijuana Grower and Processors.”

Department of Environmental Protection     

51 Pa.B. 4413 Notice: “Availability of Rebates through the Pennsylvania Alternative Fuels Incentive Grant Program.”

Fish and Boat Commission

51 Pa.B. 4416 Notice: “Changes to List of Class A Wild Trout Waters; July 2021.”

51 Pa.B. 4416 Notice: “Classification of Wild Trout Streams; Additions and Revisions; April 2021.”

51 Pa.B. 4416 Notice: “Removal of Waters from the Refuge Areas Program; July 2021.”

51 Pa.B. 4417 Notice: “Special Regulation Designations.”

51 Pa.B. 4417 Notice: “Triploid Grass Carp Permit Application.”

Pennsylvania Legislature:      

No new relevant actions Aug. 2–6, 2021.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Aug. 2–6, 2021):

Agriculture Department 

86 FR 42777 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Coronavirus Food Assistance Program 2 (CFAP2)]” (Aug. 5, 2021).

86 FR 43159 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: Rural Energy for America Program]” (Aug. 6, 2021).

86 FR 43159 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Assignments of Payments and Joint Payment Authorizations; Request for Waiver]” (Aug. 6, 2021).

Agricultural Marketing Service

86 FR 41699  Rule: “National Organic Program: 2021 and 2022 Sunset Review and Substance Renewals” (Aug. 3, 2021).

86 FR 42748 Proposed Rule—Comment Period: “Onions Grown in South Texas and Imported Onions; Termination of Marketing Order 959 and Change in Import Requirements” (Aug. 5, 2021).

Agricultural Research Service

86 FR 42776 Notice: “Notice for Comment on Two Strategic Plans for the Subcommittee on Aquaculture Science Planning and Regulatory Efficiency Task Forces and on Updating the National Aquaculture Development Plan” (Aug. 5, 2021).

Animal and Plant Health Inspection Service   

86 FR 41937 Notice—Comment Period: “Notice of Request for an Extension of Approval of an Information Collection; Nomination Request Form; Animal Disease Training” (Aug. 4, 2021).

86 FR 43160 Notice—Comment Period: “State University of New York College of Environmental Science and Forestry; Notice of Intent To Prepare an Environmental Impact Statement for Determination of Nonregulated Status for Blight-Tolerant Darling 58 American Chestnut (Castanea Dentata) Developed Using Genetic Engineering” (Aug. 6, 2021).

Engineers Corps

86 FR 41911 Proposed Rule, comments accepted: “Notice of Public Meetings Regarding “Waters of the United States”; Establishment of a Public Docket; Request for Recommendations” (Aug. 4, 2021).

Environmental Protection Agency

86 FR 41471 Notice: “Pesticide Registration Review; Interim Decision for Paraquat Dichloride; Notice of Availability” (Aug. 2, 2021).

86 FR 41809 Proposed Rule—Comment Period: “Receipt of Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities (July 2021)” (Aug. 3, 2021).

86 FR 41840 Notice—Comment Period: “Agency Information Collection Activities; Proposed Renewal of an Existing Collection and Request for Comment; Agricultural Worker Protection Standard Training, Notification and Recordkeeping” (Aug. 3, 2021).

86 FR 41837 Notice—Comment Period: “Proposed Information Collection Request; Comment Request; National Fish Program (Renewal)” (Aug. 3, 2021).

86 FR 41842 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (Aug. 3, 2021).

86 FR 41836 Notice—Comment Period: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability” (Aug. 3, 2021).

86 FR 41838 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability” (Aug. 3, 2021).

86 FR 41895 Final Rule, comments accepted: “Zeta-Cypermethrin; Pesticide Tolerances” (Aug. 4, 2021).

Farm Credit Administration

86 FR 42826 Notice: “Sunshine Act Meetings [August 12, 2021]” (Aug. 5, 2021).

Federal Crop Insurance Corporation

86 FR 42681 Rule: “Area Risk Protection Insurance Regulations” (Aug. 5, 2021).

Fish and Wildlife Service      

86 FR 41742 Rule: “Endangered and Threatened Wildlife and Plants; 12-Month Determination on a Petition To Revise Critical Habitat for the Mount Graham Red Squirrel” (Aug. 3, 2021).

86 FR 41743 Final Rule: “Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Sierra Nevada Distinct Population Segment of the Sierra Nevada Red Fox” (Aug. 3, 2021).

86 FR 41871 Notice—Comment Period: “Endangered and Threatened Wildlife and Plants; Draft Recovery Plan for White Bluffs Bladderpod” (Aug. 3, 2021).

86 FR 41917 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Emperor Penguin” (Aug. 4, 2021).

86 FR 43102 Final Rule: “Endangered and Threatened Wildlife and Plants; Removing Trifolium Stoloniferum (Running Buffalo Clover) From the Federal List of Endangered and Threatened Plants” (Aug. 6, 2021).

Food and Drug Administration

86 FR 42845 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Institutional Foodservice and Retail Food Stores Facility Types” (Aug. 5, 2021).

Food and Nutrition Service

86 FR 41938 Notice—Comment Period: “Agency Information Collection Activities: Fourth Access, Participation, Eligibility, and Certification Study Series (APEC IV)” (Aug. 4, 2021).

86 FR 41945 Notice—Comment Period: “Agency Information Collection Activities: WIC Nutrition Assessment and Tailoring Study-In-Person Data Collection” (Aug. 4, 2021).

86 FR 41943 Notice—Comment Period: “Request for Information: Buy American in the National School Lunch Program and School Breakfast Program” (Aug. 4, 2021).

Forest Service

86 FR 43163 Notice—Comment Period: “Information Collection; Forest Products Removal Permits and Contracts” (Aug. 6, 2021).

National Agricultural Statistics Service

86 FR 43165 Notice—Comment Period: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection [Floriculture Survey]” (Aug. 6, 2021).

Rural Housing Service

86 FR 41811 Notice—Comment Period: “Notice of Solicitation of Applications for Section 514 Off-Farm Labor Housing Loans and Section 516 Off-Farm Labor Housing Grants for New Construction for Fiscal Year 2022” (Aug. 3, 2021).

Small Business Administration     

86 FR 42006 Notice: “Administrative Declaration of a Disaster for the Commonwealth of Pennsylvania” (Aug. 4, 2021).

U.S. Codex Office

86 FR 43162 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Fats and Oils” (Aug. 6, 2021).

U.S. Customs and Border Protection

86 FR 42758 Proposed Rule—Comment Period: “Non-Preferential Origin Determinations for Merchandise Imported From Canada or Mexico for Implementation of the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA)” (Aug. 5, 2021).

U.S. House Agriculture Committee:   

  1. Rept. 117-113 Broadband Internet Connections For Rural America Act” House Report (Aug. 6, 2021).

H.R.4374 “Broadband Internet Connections for Rural America Act” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than Sept. 24, 2021 (Aug. 6, 2021).

H.R.4951 “To prohibit the use of M-44 devices, commonly known as “cyanide bombs”, on public land, and for other purposes.” Referred to the Committee on Natural Resources and the Committee on Agriculture (Aug. 6, 2021).

H.R.4973 “To amend the Federal Meat Inspection Act to modify requirements for a meat food product of cattle to bear a “Product of U.S.A.” label, and for other purposes.” Referred to the House Committee on Agriculture (Aug. 6, 2021).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:     

S.2597 “A bill to amend the Animal Health Protection Act with respect to the importation of live dogs, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 4, 2021).

S.2619 “A bill to prevent States and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 5, 2021).

S.2623 “A bill to amend the Federal Meat Inspection Act to modify requirements for a meat food product of cattle to bear a “Product of U.S.A.” label, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 5, 2021).

S.2636 “A bill to amend the Research Facilities Act and the Agricultural Research, Extension, and Education Reform Act of 1998 to address deferred maintenance at agricultural research facilities, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 5, 2021).

S.2663 “A bill to amend the Richard B. Russell National School Lunch Act to improve direct certification, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 5, 2021).

S.2664 “A bill to amend the Richard B. Russell National School Lunch Act to improve program requirements, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 5, 2021).

Connect with the Center on Facebook or on Twitter @AgShaleLaw

Top #AgLaw HotLinks Aug. 2–6, 2021.  

Off-Target Dicamba Damage in 2021 May be the Worst Year Yet in the Upper Midwest, AGWEEK

Bayer to Appeal Roundup Case to SCOTUS, DTN Progressive Farmer

Ag Progress Days Attendees Can Gain Insight into Agricultural Issues and Policy, Morning Ag Clips

Roundup Stays for Farmers but Not for Lawn/Garden Use, Brownfield

EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States, EPA

Bacon May Disappear in California as Pig Rules Take Effect, Associated Press

Consumer Preferences and the Meatless Meat Industry, FarmDoc Daily

Potential Impact of Inheritance Legislation on Family Farms, Morning Ag Clips

Urgent Action Needed to Curb Spread of ASF in the Americas, Feedstuffs

Eco-Labels: Why it’s ‘Crucial’ for a Dominant One to Emerge, Food Navigator

US Vows to Work with EU on Strengthening Agricultural Sectors, Agri-Pulse

Pathways to Dairy Net Zero Initiative on Climate Change Announced, Dairy Reporter

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