Agricultural Law Weekly Review—week ending December 18, 2020

Pesticides/Herbicides: Punitive Damages Reduced to $60 Million in Bader Farms Dicamba Case
On November 25, 2020, the U.S. District Court for the Eastern District of Missouri issued an opinion and order on post-trial motions reducing to $60 million the February 2020 jury award of $250 million in punitive damages against Monsanto/Bayer and BASF as a result of dicamba-caused property damage to a Missouri peach producer’s orchards in Bader Farms, Inc. v. Monsanto Company, No. 1:16-cv-00299.  For more background, see ALWR—February 20, 2020, “Missouri Federal Jury Returns $265 Million Verdict in Dicamba Drift Trial.”  The decision did not impact the jury award of $15 million in compensatory damages.   The Court found that the seventeen-to-one ratio of punitive damages to compensatory damages was unconstitutionally excessive and accordingly reduced the punitive damages to a four-to-one ratio, or $60 million.  Additionally, the Court denied Monsanto’s and BASF’s motions for a new trial on multiple other grounds asserted.  On December 17, 2020, both Monsanto and BASF filed motions appealing the judgment to the U.S. Court of Appeals for the Eighth Circuit.

Biotechnology: FDA Approves “GalSafe” Pigs for Human Food and Therapeutic Uses
On December 14, 2020, the U.S. Food and Drug Administration (FDA) announced its first approval of intentional genomic alteration (IGA), in so-called “GalSafe pigs,” which “eliminate[s] alpha-gal sugar on the surface of the pigs’ cells.”  Alpha-gal sugar found in beef, pork, and lamb can cause mild to severe allergic reactions in people with Alpha-gal syndrome (AGS).  FDA states that GalSafe pigs may potentially be used for human food or human therapeutics, such as the use of porcine-based materials in the production of human medical products.  According to the announcement, FDA determined that the environmental impact from GalSafe pigs is no greater than that from conventional pigs and that GalSafe pigs pose a low risk of promoting antimicrobial resistant bacteria, particularly mitigated by the expected low number of GalSafe pigs to be introduced into the food supply.  The company receiving the approval, Revivicor Inc., intends to sell GalSafe pork products initially by mail order.

Agricultural Labor:  Report Finds 70% of Federal Wage and Hour Division Investigations Result in Violation
On December 15, 2020, the Economic Policy Institute (EPI) announced the publication of a report analyzing data from the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) on federal labor standards investigations of agricultural employers.  According to the report, 70% of such DOL’s WHD investigations resulted in the finding of a violation, including wage and housing deficiencies.  The Economic Policy Institute (EPI) states that it is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.  According to EPI, a large amount of the violations are attributed to a small number of employers and “the 5% of investigations with the most violations accounted for half or more of all violations,” especially in fruit, vegetable and poultry/egg operations.  The report points out, however, that due to declines in funding, agricultural employers only have a 1.1% chance of undergoing investigation, specifying that DOL’s WHD only conducted 780 total investigations in 2019.  The report calls for more WHD funding along with increased monetary and civil penalties for agricultural employers who violate federal labor laws.

Invasive Species: Emerald Ash Borer Quarantine Regulations Withdrawn
On December 14, 2020, the U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a final rule effective January 14, 2021, titled  “Removal of Emerald Ash Borer Domestic Quarantine Regulations.” 85 FR 81085.  Infestations of the Emerald Ash Borer (EAB), a wood-boring pest that feeds on ash trees, have been detected in thirty-five states and the District of Columbia, with other undiscovered infestations highly likely.  The final rule discontinues the federal domestic quarantine program in place since 2003 which sought to prevent the spread of the pest and which has proven ineffective.  As a result, APHIS will no longer issue permits or compliance agreements, make site visits, or conduct investigations regarding the EAB.  AHPIS will direct available resources toward non-regulatory options for management and containment of the pest, such as rearing and releasing biological control agents.

Agricultural Law/Policy Resources of Interest:
Agricultural Economic Insights, LLC, Escaping 1980 (Podcast): Episode—Escaping 2020 (Dec. 16, 2020).
The National Agricultural Law Center, What’s in a Name?: Defining “Undue or Unreasonable Preference or Advantage” in Livestock Contracts (Dec. 16, 2020).
Brigit Rollins, Making Waves: EPA Issues Draft of Proposed Guidance for “County of Maui” Case (Dec. 17, 2020).
Peggy Kirk Hall, Dealing with the Threat of Intentional Harm to Farm Property (Dec. 17, 2020).

Penn State Research & News:
‘Windows of Opportunity’ Crucial for Cutting Chesapeake Nutrient, Sediment Loads (Dec. 14, 2020).
Less Snowy Winters Produce Camouflage Mismatch in Mountain Hares (Dec. 16, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Wolf Administration Report Details Coordinated Effort To Combat Chronic Wasting Disease; How Hunters Can Help (Dec. 14, 2020).

Agriculture Secretary Reminds Dog Owners A 2021 License Is The Perfect Holiday Gift For Our Constant Companions (Dec. 14, 2020).

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, December 7 – December 13 (Dec. 16, 2020).

Agriculture Department Reminds Private Pesticide Licensees Of March Deadline, Renewal Requirements (Dec. 16, 2020).

Department Of Agriculture Names Winners Of Pennsylvania Farm Show National Anthem Contest (Dec. 16, 2020).

Department Of Agriculture Reveals Virtual 2021 Pennsylvania Farm Show Schedule Of Events (Dec. 18, 2020).

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

USDA Announces Joint Final Rule Regarding Equal Treatment of Faith-Based Organizations USDA-Supported Social Service Programs (Dec. 14, 2020).

USDA Chief Economist Dr. Robert Johansson to Depart (Dec. 14, 2020).

USDA Announces 2021 Lincoln Leaders Fellowship Opportunities for Minority-Serving Education Institutions (Dec. 15, 2020).

Secretary Perdue Applauds USDA’s 2020 Accomplishments (Dec. 16, 2020).

USDA, NASA Sign Agreement to Improve Agricultural, Earth Science Research (Dec. 17, 2020).

Trump Administration Sets the Pace for Food Loss and Waste Reduction Efforts to Continue (Dec. 17, 2020).

USDA Agency Press Releases: 

APHIS Changes Approach to Fight Emerald Ash Borer (EAB), APHIS (Dec. 14, 2020).

APHIS Celebrates 2020 Accomplishments, APHIS (Dec. 16, 2020).

USDA Proposes To Expand Importation of Fresh Citrus Fruit from Australia, APHIS (Dec. 17, 2020).

USDA Announces Deregulation of Enhanced Yield, Herbicide Tolerant Corn Variety Developed Using Genetic Engineering, APHIS (Dec. 18, 2020).

USDA Announces Six More Farm Service Agency County Committees for Urban Agriculture, Requests Nominations, FSA (Dec. 17, 2020).

RMA to Farmers in 2020: ‘We Listen to You, RMA (Dec. 16, 2020).

In Challenging Year, USDA Continued its Focus on America’s Farmers and Ranchers, RMA (Dec. 16, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 51—Dec. 19, 2020):

Fish and Boat Commission

50 Pa.B. 7254 Notice: “Proposed Exemptions to Allow for the Continued Stocking of Class A Stream Sections.”

Pennsylvania Legislature

No actions Dec. 14–18, 2020

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Dec. 14–18, 2020):

Agriculture Department

85 FR 80761 Notice: “Submission for OMB Review; Comment Request [Animal Plant and Health Inspection Service: Black Stem Rust; Identification Requirements and Addition of Rust-Resistant Varieties]” (Dec. 14, 2020).

85 FR 80761 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Importation of Live Swine, Pork and Pork Products, and Swine Semen from the European Union” (Dec. 14, 2020).

85 FR 81176 Notice:“Submission for OMB Review; Comment Request [Forest Service: Bid for Advertised Timber]” (Dec. 15, 2020).

85 FR 81442 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: Household Water Well System Grant Program]” (Dec. 16, 2020).

85 FR 82037 Final Rule: “Equal Participation of Faith-Based Organizations in the Federal Agencies’ Programs and Activities” (Dec. 17, 2020).

Agricultural Marketing Service

85 FR 81425 Proposed Rule—Comment Period: “Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Modification of Assessment Rate” (Dec. 16, 2020).

85 FR 82427 Notice—Comment Period: “Mycotoxin Test Kit Design Specifications and Performance Criteria” (Dec. 18, 2020).

85 FR 82426 Notice: “Cotton Research and Promotion Program: Determination of Whether To Conduct a Referendum Regarding 1990 Amendments to the Cotton Research and Promotion Act” (Dec. 18, 2020).

Animal and Plant Health Inspection Service

85 FR 81085 Final Rule: “Removal of Emerald Ash Borer Domestic Quarantine Regulations” (Dec. 15, 2020).

85 FR 81869 Notice—Comment Period: “Notice of Proposed Revision To Import Requirements for the Importation of Fresh Citrus Fruit From Australia Into the United States” (Dec. 17, 2020).

Environmental Protection Agency

85 FR 81199 Notice—Comment Period: “Broflanilide; Receipt of Application for Emergency Exemption, Solicitation of Public Comment” (Dec. 15, 2020).

85 FR 81922 Notice—Comment Period: “Comment Request; Plant Incorporated Protectants; CBI Substantiation and Adverse Effects Reporting (Renewal)” (Dec. 17, 2020).

85 FR 81799 Rule, comments accepted: “Broflanilide; Pesticide Tolerances” (Dec. 17, 2020).

Federal Emergency Management Agency

85 FR 81940 Notice—Comment Period: “Proposed Flood Hazard Determinations [Florida]” (Dec. 17, 2020).

85 FR 81941 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Conn., Fla., Md., Mass., N.C., Pa., S.C., Tenn., Tex., Va.]” (Dec. 17, 2020).

Fish and Wildlife Service

85 FR 81216 Notice—Comment Period: “Endangered and Threatened Wildlife and Plants; Draft Recovery Plan for Texas Hornshell” (Dec. 15, 2020).

85 FR 81144 Rule, notice of finding: “Endangered and Threatened Wildlife and Plants; 12-Month Finding for the Northern Spotted Owl” (Dec. 15, 2020).

85 FR 81411 Final Rule: “Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” (Dec. 16, 2020).

85 FR 81813 Rule, notice of finding: “Endangered and Threatened Wildlife and Plants; 12-Month Finding for the Monarch Butterfly” (Dec. 17, 2020).

85 FR 82504 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; North American Woodcock Singing Ground Survey” (Dec. 18, 2020).

85 FR 82501 Notice—Comment Period: “Establishment of Annual Migratory Bird Hunting Seasons” (Dec. 18, 2020).

85 FR 82376 Final Rule: “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat” (Dec. 18, 2020).

Food and Drug Administration

85 FR 81930 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Substances Prohibited From Use in Animal Food or Feed” (Dec. 17, 2020).

85 FR 82393 Proposed Rule—Comment Period extended, reopened: “Requirements for Additional Traceability Records for Certain Foods; Extension of Comment Period; Reopening of the Comment Period” (Dec. 18, 2020).

85 FR 82395 Proposed Rule—Comment Period: “Frozen Cherry Pie; Proposed Revocation of a Standard of Identity and a Standard of Quality” (Dec. 18, 2020).

85 FR 82332 Rule: “The Use of an Alternate Name for Potassium Chloride in Food Labeling; Guidance for Industry; Availability” (Dec. 18, 2020).

Food and Nutrition Service

85 FR 82428 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Generic Clearance for the Special Nutrition Programs Quick Response Surveys (SNP QRS)” (Dec. 18, 2020).

Food Safety and Inspection Service

85 FR 80668 Proposed Rule—Comment Period: “Changes to Accreditation of Non-Federal Analytical Testing Laboratories” (Dec. 14, 2020).

85 FR 81339 Final Rule, comments accepted: “Uniform Compliance Date for Food Labeling Regulations” (Dec. 16, 2020).

85 FR 81340 Final rule, correction: “Egg Products Inspection Regulations” (Dec. 16, 2020).

Forest Service

85 FR 81177 Notice: “Bitterroot National Forest; Montana; Gold Butterfly Project Supplemental Environmental Impact Statement” (Dec. 15, 2020).

85 FR 82432 Notice—Comment Period: “Forest Service Manual 2420, “Timber Appraisal,” Forest Service Handbook 2409.19, “Renewable Resources,” Chapters 10, 20, 30, 60 and 80” (Dec. 18, 2020).

Land Management Bureau

85 FR 82359 Rule: “Forest Management Decision Protest Process and Timber Sale Administration” (Dec. 18, 2020).

National Agricultural Statistics Service

85 FR 81444 Notice—Comment Period: “Notice of Intent To Request Approval To Revise and Extend an Information Collection” (Dec. 16, 2020).

Natural Resources Conservation Service

85 FR 81871 Notice—Comment Period: “Guidance for Identification of Nonindustrial Private Forest Land (NIPF)” (Dec. 17, 2020).

Reclamation Bureau

85 FR 82510 Notice—Comment Period: “Agency Information Collection Activities; Submission To the Office of Management and Budget for Review and Approval; Forms To Determine Compliance by Certain Landholders” (Dec. 18, 2020).

85 FR 82511 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Individual Landholder’s and Farm Operator’s Certification and Reporting Forms for Acreage Limitation” (Dec. 18, 2020).

85 FR 82513 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Certification Summary Form and Reporting Summary Form for Acreage Limitation” (Dec. 18, 2020).

Rural Business-Cooperative Service

85 FR 81445 Notice: “Notice of Solicitation for Inviting Applications for the Rural Microentrepreneur Assistance Program for Fiscal Year 2021” (Dec. 16, 2020).

Rural Utilities Service

85 FR 81178 Notice: “Announcement of Funding Availability, Loan Application Procedures, and Deadlines for the Rural Energy Savings Program (RESP)” (Dec. 15, 2020).

Susquehanna River Basin Commission

85 FR 82570 Notice: “Projects Approved for Minor Modifications” (Dec. 18, 2020).

85 FR 82566 Notice: “Projects Approved for Consumptive Uses of Water” (Dec. 18, 2020).

85 FR 82568 Notice: “Projects Approved for Consumptive Uses of Water” (Dec. 18, 2020).

85 FR 82569 Notice: “Grandfathering (GF) Registration Notice” (Dec. 18, 2020).

85 FR 82566 Notice: “Actions Taken at December 11, 2020, Meeting” (Dec. 18, 2020).

U.S. House Agriculture Committee

Signed by President

S.1982 “Save Our Seas 2.0 Act.” (Dec. 18, 2020).

House Legislation

H.R.8952 “To amend the Commodity Exchange Act to modify the Commodity Futures Trading Commission Customer Protection Fund, and for other purposes.” Referred to the House Committee on Agriculture (Dec. 14, 2020).

H.R.9004 “To amend the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to repeal provisions relating to the denial of benefits under the supplemental nutrition assistance program, and for other purposes.” Referred to the House Committee on Agriculture (Dec. 17, 2020).

H.R.9008 “To remove barriers to health care and nutrition assistance for children, pregnant persons, and lawfully present individuals, under the Medicaid program under title XIX of the Social Security Act, the Children’s Health Insurance Program under title XXI of such Act, and under the supplemental nutrition assistance program under the Food and Nutrition Act of 2008, and for other purposes.” Referred to the Committees on Energy and Commerce and Agriculture (Dec. 17, 2020).

H.R.3794 “Public Land Renewable Energy Development Act of 2019.” Placed on the Union Calendar, No. 561 (Dec. 18, 2020).

H.R.3879 “Simplifying Outdoor Access for Recreation Act or the SOAR Act.” Placed on the Union Calendar, No. 562 (Dec. 18, 2020).

H.R.9034 “To amend the Competitive, Special, and Facilities Grant Act to include agricultural climate adaptation and mitigation as a priority area addressed by the Agriculture and Food Research Initiative, and for other purposes.” Referred to the House Committee on Agriculture (Dec. 14, 2020).

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

S.5017 “A bill to amend the Agricultural Marketing Act of 1946 to modify the definition of hemp, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 15, 2020).

S.5038 “A bill to amend the Food and Nutrition Act of 2008 to modify the definition of a household under the supplemental nutrition assistance program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 16, 2020).

S.5046 “A bill to amend the Consolidated Farm and Rural Development Act to authorize the contracting of functions under the Rural Business Investment Program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 17, 2020).

S.5066 “A bill to amend the Poultry Products Inspection Act and the Federal Meat Inspection Act to support small and very small meat and poultry processing establishments, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Dec. 18, 2020).

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Dec. 14–18, 2020:
Significant Food Safety Action this Past Year During State Legislative Sessions, Food Safety News
USTR Enforces Canada’s USMCA Dairy Promises, Farm Progress
Pennsylvania Milk Marketing Board Resolves Dean Foods Producer Payback Issue, Brownfield
USDA NASS to Reinstate the Agricultural Labor Survey Previously Scheduled for Oct. 2020, USDA National Agricultural Statistics Service
Restaurant Industry in ‘Free Fall’, Feedstuffs
Grange Applauds FCC Broadband Grants to PA, Morning Ag Clips
Rising Feed Costs in 2021 will Challenge Livestock Producers, Meat+Poultry
Innovation Center for U.S. Dairy Welcome Starbucks to Net Zero Initiative, Feedstuffs
Krysta Harden to Lead U.S. Dairy Export Council Following Vilsack Departure, Dairy Herd Management

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