Agricultural Law Weekly Review—week ending December 11, 2020

Dean Foods Bankruptcy: Pennsylvania Milk Marketing Board Negotiates Nationwide Solution to Preference Payment Claims
On December 9, 2020, the Pennsylvania Milk Marketing Board (PMMB), partnering with the Pennsylvania Office of Attorney General, announced that it had negotiated with the St. Paul, Minnesota, law firm representing the Chapter 11 bankruptcy estate of Dean Foods, ASK LLP.  As a result, the PMMB prepared, and posted on the PMMB website, forms which can be downloaded, completed by producers and milk haulers in any state in the country, and mailed to ASK LLP as soon as possible as a response to the demand letters asserting claims for the repayment of thousands of dollars of milk check proceeds.  For more background, see ALWR-week ending December 4, 2020, “Dean Foods Bankruptcy Estate Threatens Dairy Producers with Lawsuits to Recoup Alleged Preference Payments.”  Depending upon the content, accuracy and completeness of the information provided, the forms provide information that the bankruptcy estate’s legal counsel has agreed may be sufficient to prove all payments from Dean were made in the normal course of business and as required by law, and sufficient to have the claims for repayment completely withdrawn.

International Trade:  First USMCA Enforcement Action Filed Against Canada
On December 9, 2020, The Office of the U.S. Trade Representative (USTR), announced that it was providing official notice to Canada that the United States is commencing the process to enforce the United States-Mexico-Canada Agreement (USMCA) by letter to Canada’s Minister of Small Business, Export Promotion and International Trade Mary Ngin.  The letter formally requests “consultations” with the government of Canada to discuss Canada’s allocation of dairy tariff-rate quotas (TRQs) (the allocation of an imported commodity allowed at a reduced tariff rate).  The Dairy TRQs reserve a large share of each dairy TRQ for “processors,” and “further processors,” which the USTR letter alleges is inconsistent with multiple provisions of the USMCA.  The USTR alleges that Canada has undermined the ability of American dairy farmers and producers to utilize the agreed-upon TRQs and sell a wide range of dairy products to Canadian consumers.  Requesting consultation is the first step in the WTO dispute resolution process.

Food Labeling: Denial of Injunction Against Oklahoma Meat Labeling Law Appealed
On December 11, 2020, the U.S. District Court for the Western District of Oklahoma entered an order staying the proceedings in the case captioned Upton’s Naturals Co. v. Stitt (No. 5:20-cv-00938).  This followed the Plaintiffs’ November 23, 2020 notice appealing to the U.S. Court of Appeals for the Tenth Circuit the Court’s November 19, 2020 Order denying a preliminary injunction on First Amendment grounds against Oklahoma’s Meat Consumer Protection Act (Act), enacted in May 2020.  The Act requires product packaging for plant-based meat-substitutes to display that the product is derived from plant-based sources in type that is uniform in size and prominence to the name of the product.  In the decision, the Court found that Upton’s Naturals use of the terms burger, bacon, chorizo, hot dog, jerky, meatballs, steak on plant-based products are potentially misleading to a reasonable customer. See ALWR—week ending May 29, 2020, “Oklahoma Enacts Meat Labeling Law.”

Dairy Policy: USDA Announces Section 32 Purchases of Milk and Butter
On December 4, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced that, under USDA’s Section 32 Program, it will purchase $60 million in fluid milk and $50 million in butter, which it will distribute to various food nutrition programs.  According to the announcement, USDA will solicit fluid milk in December 2020 and February 2021 for distribution in the first and second quarters of 2021, and will solicit butter in May and August 2021 for distribution in quarters three and four.

Agribusiness: U.S. Grain Standards Act Reauthorized
On December 11, 2020, President Trump signed into law the United States Grain Standards Reauthorization Act of 2020 (Act) which reauthorizes through federal fiscal year 2025 the United States Grain Standards Act, first passed in 1916 and recently expired on September 30, 2020.  The Act authorizes the Department of Agriculture (USDA) to establish official marketing standards for grains, and to provide procedures for grain inspection and weighing.

Packers and Stockyards Act: USDA Issues Final Rule on Definition of Undue and Unreasonable Preferences or Advantages
On December 11, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a final rule titled, “Undue and Unreasonable Preferences and Advantages Under the Packers and Stockyards Act” (85 FR 79779).  Announced on December 10, 2020, the final rule details four criteria for consideration by the Secretary of Agriculture when determining whether a packer, swine contractor, or live poultry dealer has given an “undue or unreasonable preference or advantage” to any buyer or seller: whether the preference or advantage cannot be justified by: (a) cost savings related to dealing with different producers, sellers or growers; (b) meeting a competitor’s prices or other terms, or (c) as a reasonable business decision. For background, see ALWR-January 16, 2020, “USDA Proposes Long-Delayed Change to Packers and Stockyards Act Regulations.”

Animal Health: APHIS Reopens Public Comment Period On FMD Vaccine Petition
On December 1, 2020, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced its reopening of the comment period on a petition to manufacture a Foot-and-Mouth Disease (FMD) vaccine in the United States, originally posted on July 14, 2020 (85 FR 42346).  The agency is accepting comments until January 4, 2021.

Conservation Programs: USDA Announces Increase to Incentive Payments for Continuous Conservation Reserve Program
On December 9, 2020, the U.S. Department of Agriculture (USDA), Farm Service Agency (FSA) announced it is: (a) increasing the Practice Incentive Payment from five percent to twenty percent for installing eligible conservation practices; and (b) creating a Practice Incentive Payment of ten percent for installing eligible water quality practices; on land enrolled in the Continuous Conservation Reserve Program (CRP).

Industrial Hemp:  Pennsylvania Opens 2021 Hemp Permit Application Process
On December 5, 2020, the Pennsylvania Department of Agriculture (PDA) published in the Pennsylvania Bulletin the General Permit Standards and Requirements for Hemp, 50 Pa.B. 6906, effective upon publication and officially opening the 2021 hemp permit application process.  All permitting information is available on the PDA website, along with an articulation of notable changes for the 2021 state hemp application requirements and program.

Agricultural Law/Policy Resources of Interest:
Pennsylvania Farm Bureau, Farm Focus (Podcast): Economy, Agriculture, and COVID (Dec. 8, 2020).
Agricultural Economic Insights, LLC, Escaping 1980 (Podcast): Episode 6—Stability (Dec. 9, 2020).
Tiffany Lashmet, Appellate Court Affirms Liability in North Carolina Nuisance Case; Smithfield Announces Settlement (Dec. 7, 2020).
Paul Goeringer, Maryland Court of Appeals Finds Farm Manager is not a Joint Employee of Poultry Farm (Dec. 8, 2020).
Sarah Catherine Copper, Truth in Labeling Laws(uits) – Update (Dec. 10, 2020).

Penn State Research & News:
Understanding Agriculture’s Impacts on ‘The Zone Where Rock Meets Life’ (Dec. 7, 2020).
Could Spotted Owls Benefit from Forest Fires? (Dec. 10, 20200.

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture: 2021 Farm Show Butter Sculpture Cancelled Amid COVID-19 Resurgence (Dec. 8, 2020).

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, November 30 – December 6 (Dec. 9, 2020).

Nation-Leading Pennsylvania Farmland Preservation Program Ends Year With 177 Farms, 14, 727 Acres Preserved (Dec. 10, 2020).

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

Trump Administration Invests $12 Million in High-Speed Broadband in Rural Louisiana (Dec. 9, 2020).

USDA Announces Increase to Certain Incentive Payments for Continuous Conservation Reserve Program, FSA (Dec. 9, 2020).

Confirmation of COVID-19 in a Snow Leopard at a Kentucky Zoo, APHIS (Dec. 11, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 50—Dec. 12, 2020):

Environmental Hearing Board

50 Pa.B. 7116 Notice: “Fish and Boat Commission v. Department of Environmental Protection.”

Fish and Boat Commission

50 Pa.B. 7116 Notice: “Proposed Special Regulation Designations [Cumberland, Huntingdon Counties].”

Pennsylvania Legislature

No actions Dec. 7–11, 2020

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Dec. 7–11, 2020):

Agriculture Department

85 FR 78821 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: Advanced Biofuel Payment Program]” (Dec. 7, 2020).

85 FR 78989 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: Rural Broadband Loans, Loan/Grant Combinations, and Loan Guarantees]” (Dec. 8, 2020).

85 FR 79461 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: OneRD Guaranteed Loan Program].” (Dec. 10, 2020).

85 FR 79990 Notice: “Submission for OMB Review; Comment Request [Rural Housing Service: Single Family Housing Guaranteed Loan Program]” (Dec. 11, 2020).

Agricultural Marketing Service

85 FR 78988 Notice—Comment Period: “Request for Extension and Revision of a Currently Approved Information Collection [Reporting and Recordkeeping Requirements, United States Grain Standards Act and Agricultural Marketing Act of 1946]” (Dec. 8, 2020).

85 FR 78988 Notice: “Designation of Amarillo Grain Exchange, Inc. To provide Class X or Class Y Weighing Services” (Dec. 8, 2020).

85 FR 79383 Final Rule: “Walnuts Grown in California; Changes to Reporting Requirements” (Dec. 10, 2020).

85 FR 79779 Final Rule: “Undue and Unreasonable Preferences and Advantages Under the Packers and Stockyards Act” (Dec. 11, 2020).

Commodity Futures Trading Commission

85 FR 78718 Final Rule: “Exemption From Registration for Certain Foreign Intermediaries” (Dec. 7, 2020).

Environmental Protection Agency

85 FR 78851 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (November 2020)” (Dec. 7, 2020).

85 FR 78849 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decision for Chlorpyrifos; Notice of Availability” (Dec. 7, 2020).

85 FR 79489 Notice—Comment Period: “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” (Dec. 10, 2020).

Farm Credit System Insurance Corporation

85 FR 80094 Notice: “Regular Meeting; Farm Credit System Insurance Corporation Board [December 17, 2020]” (Dec. 11, 2020).

Federal Crop Insurance Corporation

85 FR 79990 Notice—Comment Period: “Notice of Request for Renewal and Revision of the Currently Approved Information Collection [Standard Reinsurance Agreement; Appendices I, II and IV]” (Dec. 11, 2020).

85 FR 79779 Rule, correction: “Area Risk Protection Insurance Regulations; Common Crop Insurance Policy Basic Provisions; Common Crop Insurance Regulations, Sunflower Seed Crop Insurance Provisions; and Common Crop Insurance Regulations, Dry Pea Crop Insurance Provisions” (Dec. 11, 2020).

Federal Emergency Management Agency

85 FR 79497 Notice: “Louisiana; Emergency and Related Determinations” (Dec. 10, 2020).

85 FR 79495 Notice: “Mississippi; Emergency and Related Determinations” (Dec. 10, 2020).

85 FR 79497 Notice: “California; Major Disaster and Related Determinations” (Dec. 10, 2020).

85 FR 79499 Notice: “Louisiana; Major Disaster and Related Determinations” (Dec. 10, 2020).

85 FR 79501 Notice: “Puerto Rico; Major Disaster and Related Determinations” (Dec. 10, 2020).

85 FR 79496 Notice: “Delaware; Amendment No. 1 to Notice of a Major Disaster Declaration” (Dec. 10, 2020).

85 FR 79503 Notice: “New York; Amendment No. 2 to Notice of a Major Disaster Declaration” (Dec. 10, 2020).

Fish and Wildlife Service

85 FR 79503 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Rosewater Wind Farm, White County, Indiana; Categorical Exclusion” (Dec. 10, 2020).

Food and Drug Administration

85 FR 80118 Notice: “Cheese Products Deviating from Identity Standard; Temporary Permit for Market Testing” (Dec. 11, 2020).

Food Safety and Inspection Service

85 FR 79992 Notice: “2021 Rate Changes for the Basetime, Overtime, Holiday, Laboratory Services, and Export Application Fees” (Dec. 11, 2020).

Forest Service

85 FR 79462 Notice: “Boundary Descriptions for the Columbia River Gorge National Scenic Area, Hood River, Multnomah and Wasco Counties, Oregon; Clark, Klickitat and Skamania Counties, Washington State” (Dec. 10, 2020).

85 FR 79463 Notice: “Forest Service Manual 2740; Forest Service Handbook 2709.11, Chapter 50; Special Uses Management, Vegetation Management Pilot Projects; Special Uses Handbook-Standard Forms and Supplemental Clauses” (Dec. 10, 2020).

85 FR 79462 Notice—Comment Period: “Forest Service Handbook 2709.11, Chapter 80; Special Uses; Operating Plans and Agreements for Powerline Facilities” (Dec. 10, 2020).

National Agricultural Statistics Service

85 FR 79463 Notice: “Notice of Reinstatement of the Agricultural Labor Survey Previously Scheduled for October 2020” (Dec. 10, 2020).

Reclamation Bureau

85 FR 80148 Notice: “Change in Discount Rate for Water Resources Planning” (Dec. 11, 2020).

Rural Business-Cooperative Service

85 FR 78821 Notice: “Notice of Solicitation of Applications for Inviting Applications for the Intermediary Relending Program for Fiscal Year 2021” (Dec. 7, 2020).

Small Business Administration

85 FR 80211 Notice: “Administrative Declaration of a Disaster for the State of North Carolina [Tropical Storm Eta]” (Dec. 11, 2020).

U.S. House Agriculture Committee

S.1982 “Save Our Seas 2.0 Act” Presented to President (De. 8, 2020).

H.Res.189 “Supporting sustained United States leadership to accelerating global progress against maternal and child malnutrition and supporting United States Agency for International Development’s commitment to global nutrition through its multi-sectoral nutrition strategy.” Agreed to in House (Dec. 7, 2020).

H.R.3884 “Marijuana Opportunity Reinvestment and Expungement Act of 2019 or the MORE Act of 2019.” Passed the House; Received in the Senate and Read twice and referred to the Committee on Finance (Dec. 7, 2020).

H.R.8887 “To amend the Agricultural Research, Extension, and Education Reform Act of 1998 with respect to grants for certain areawide integrated pest management projects, and for other purposes.”  Referred to the House Committee on Agriculture (Dec. 7, 2020).

H.R.8909 “To require the Natural Resources Conservation Service to review the national conservation practice standards, taking into consideration climate benefits, and for other purposes.” Referred to the House Committee on Agriculture (Dec. 9, 2020).

H.R.8910 “To require a study of the barriers to conservation practice adoption on leased agricultural land, and for other purposes.” Referred to the House Committee on Agriculture (Dec. 9, 2020).

H.R.5040 “Aerial Incursion Repercussion Safety Act of 2020 or the AIR Safety Act of 2020.” Passed House; Motion to reconsider laid on the table Agreed to without objection (Dec. 10, 2020).

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

S.4985 “A bill to establish forestry policies that facilitate reforestation, conservation, international cooperation, and other ecologically sound management practices that reduce atmospheric carbon, to support United States efforts in partnership with the One Trillion Trees Initiative, to encourage the sustainable management, restoration, and conservation of global forests, grasslands, wetlands, and coastal habitats, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 9, 2020).

S.4995 “A bill to amend the Commodity Exchange Act to modify the Commodity Futures Trading Commission Customer Protection Fund, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 9, 2020).

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Dec. 7–11, 2020:
JBS Pork Antitrust Lawsuit Plaintiffs Seek Approval of $24.5M Settlement, Meat+Poultry
NMPF Analyzes $5 Billion in Dairy Federal Support, Brownfield
Chick-Fil-A Accuses Poultry Companies of Price-Fixing, Brownfield
Food Commodity Prices Rise to Nearly Six-Year High, Feedstuffs
Groups Say Ag Workers Should be Prioritized for Vaccine After Healthcare Workers, Brownfield
USTR Taking Action on Canadian Dairy, Brownfield
Trump Administration Ending with Chlorpyrifos Still OK for Ag Uses, Food Safety News
PFB: Update on Dean Foods Demand Letters, Morning Ag Clips
NAMI, NCBA, NPPC: Meat, Poultry Workers High Priority for COVID Vaccine, Morning Ag Clips

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