Agricultural Law Weekly Review—week ending December 25, 2020

Pesticides/Herbicides: 5-Year Dicamba Registration Approval Challenged in Parallel Litigation
On December 21, 2020, the identical five entities (referred to collectively herein as the “Center for Food Safety”) who were successful in June 2020 in having the EPA registrations of three dicamba-containing herbicides vacated by the U.S. Court of Appeals for the Ninth Circuit (9th Circuit), filed a Petition for Review with the 9th Circuit seeking to have the EPA’s October 27, 2020, 5-year registration approvals of three dicamba-containing herbicides again invalidated.  The petition alleges that the new registrations have been issued in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as well as other legal grounds.  The petition also seeks to prohibit EPA from reversing its long-standing practice, done via a footnote in the October 27 approval decision, of allowing states to impose local restrictions on pesticide registrations and use under Section 24(c) of FIFRA.  In addition, on December 23, 2020, the Center for Food Safety also filed a Complaint against EPA in the U.S. District Court for the District of Arizona also seeking to have the same October 27, 2020 registration approvals overturned on virtually identical grounds and also seeking equitable relief in the form of compelling EPA to institute a rulemaking process to successfully reverse its long-standing policy to allow states to impose Section 24(c) local restrictions. This is the second legal challenge filed to EPA’s October 27, 2020, 5-year registration approvals of dicamba-containing products. The first was filed in November 2020 by the American Soybean Association and Plains Cotton Growers, Inc. and challenges conditions within the approvals but does not seek to invalidate the approvals themselves.  For more background, see   ALWR—week ending October 30, 2020, “EPA Approves Three Dicamba Products’ Registrations Until December 20, 2025” and ALWR—week ending November 13, 2020, “First Challenge Filed to EPA’s 2021-2025 Dicamba Product Registrations.”

Pesticides/Herbicides: Monsanto/Bayer, Plaintiffs Execute $300 Million Settlement Agreement of Non-Target Dicamba Soybean Property Damage Claims
On December 16, 2020, in pending multi-district litigation in the U.S. District Court for the Eastern District of Missouri captioned In Re: Dicamba Herbicides Litigation, No. 1:18-md-02820, Defendant Monsanto Company/Bayer and the Plaintiffs’ Executive Committee (PEC) entered into the Dicamba Herbicides Litigation Soybean Producers Master Settlement Agreement.  Pursuant to the agreement, $300 Million is set aside to resolve and settle claims arising from commercial soybean crop damage allegedly caused by dicamba application by third parties to dicamba-tolerant soybeans or cotton between 2015-2020.  In order to participate, claims filing began on December 29, 2020 and all claims must be filed by May 28, 2021.  Public information, filing instructions, relevant documents and the settlement agreement are exclusively available at dicambasoybeansettlement.com and nowhere else.  As for non-target property damage claims to plants other than commercially produced soybeans, no status of settlement discussions has been released since the announcement by Monsanto/Bayer of a settlement in June 2020.  According to one media source, DTN Progressive Farmer, such claims are in the process of settling separately and privately with Monsanto/Bayer.  That information has not been confirmed yet by Monsanto/Bayer.  For more on the background of the settlement, see ALWR—week ending June 26, 2020, “Bayer Announces Settlement of Glyphosate Exposure and Dicamba Drift Claims.”

Agricultural Labor: Federal District Court Grants Injunction Against Revised H-2A Minimum Wage Calculation
On December 23, 2020, the U.S. District Court for the Eastern District of California granted a preliminary injunction against the Department of Labor’s (DOL) November 5, 2020 final rule, which modified the minimum wage rate calculation H-2A agricultural guest workers, known as the Adverse Effect Wage Rate (AEWR). The final rule froze the AEWR for two years, abandoned the previous method of calculation tied to DOL’s Farm Labor Survey (FLS) and thereafter implemented a new calculation method effective January 1, 2023, tied to a DOL index of the cost of labor known as the Employment Cost Index (ECI) which does not in fact survey farms and agricultural workers. United Farm Workers v. United States Department of Labor, No. 1:20-cv-01690-DAD-JLT.  For more background, see ALWR—week ending November 6, 2020, “Department of Labor Modifies H-2A Minimum Wage Calculation” and ALWR—week ending December 4, 2020, “United Farm Workers File Suit to Enjoin DOL H-2A Minimum Wage Rule.”  The court found that the plaintiffs were likely to succeed on the merits of their claim, stating that the final rule failed to justify freezing wages below market rate and failed to analyze its impact on those U.S. workers who the Immigration and Naturalization Act mandates the DOL to protect.

Animal Welfare: Ninth Circuit Denies Rehearing Request On Unsuccessful Challenge to California Prop 12
On December 23, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an order denying North American Meat Institute’s petition for rehearing en banc in North American Meat Institute v. Xavier Becerra, No. 19-56408, in which the court denied an injunction against California’s Proposition 12.  For more information, see ALWR—week ending October 23, 2020, “Ninth Circuit Upholds Denial of Injunction Against California’s Proposition 12”

Food Safety: FDA Extends Food Traceability Rule Comment Period
On December 18, 2020, the Food and Drug Administration (FDA) posted notice in the Federal Register (85 FR 82393) of the reopening and extension of the comment period for the proposed rule, “Requirements for Additional Traceability Records for Certain Foods,” (85 FR 59984) originally posted September 23, 2020.  The new comment period is now open until February 22, 2020, extended from the original January 21, 2020.  For more on the proposed rule, see ALWR—week ending September 25, 2020, “FDA Proposes Food Traceability Rule.”

Food Labeling: FSIS Releases Letter Stating Intent to Address Use of Nitrates/Nitrites; Will Redefine “Cured” and “Uncured”
On December 10, 2020, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued a response letter to a petition from the Center for Science in the Public Interest and Consumer Reports, on which the agency received seventeen comments.  The petition requests that the agency prohibit the statements “No Nitrate or Nitrite Added” and “Uncured” on products processed using any source of nitrate or nitrite, including non-synthetic sources such as celery powder, rather than traditional synthetic sources, such as sodium nitrite.  In its response letter, FSIS states that it intends to conduct rulemaking to propose prohibition of the identified statements on products processed using any source of nitrates or nitrites.  Specifically, FSIS states that it intends to propose new definitions for “cured” and “uncured.”

Food Labeling: FDA Allows Use of “Potassium Salt” on Food Labels
On December 18, 2020, the Food and Drug Administration (FDA) published notice in the Federal Register (85 FR 82332) of the availability of industry guidance titled, “The Use of an Alternate Name for Potassium Chloride in Food Labeling: Guidance for Industry.”  Under the guidance, FDA states that it will “exercise enforcement discretion” to allow use of the term “potassium salt” in place of “potassium chloride,” on food labels.  According to the guidance, potassium chloride is recognized as a safe substitute for sodium chloride and FDA expects that use of the term “potassium salt” is unlikely to confuse consumers.  The guidance is in response to a 2016 petition from NuTek and after review of comments to the proposed rule, issued on May 20, 2019.

Food Waste: USDA, FDA, EPA Renew Agreement to Reduce Food Waste 
On December 17, 2020, the  U.S. Environmental Protection Agency (EPA), the U.S. Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA) renewed their joint agency formal agreement to cooperate and coordinate agency actions to reduce food waste by fifty percent by 2030.  Announced the same day, the agreement renews the Winning on Reducing Food Waste Initiative, which lists six priority areas for action, including clarifying food date labels and educating consumers on food waste.  The agreement is valid for three years.

Agricultural Law/Policy Resources of Interest:

Pennsylvania Farm Bureau, Farm Focus (Podcast): Rural Health (Dec. 21, 2020).

Tiffany Lashmet, US Supreme Court Dismisses Texas Petition for Review in Pecos River Dispute (Dec. 21, 2020).

Kristine A. Tidgren, What COVID Relief Provisions are in the Pending Spending Bill? (Dec. 23, 2020).

Peggy Kirk Hall, The New COVID Relief Bill: What’s in it for USDA? (Dec. 22, 2020).

Roger A. McEowen, Can One State Dictate Agricultural Practices in Other States? (Dec. 22, 2020).

Penn State Research & News:

Discovery of Chemical Clue May Lead to Solving Cacao’s Black Pod Rot Mystery (Dec. 23, 2020).

Study: Bumble Bees Lacking High-Quality Habitat Have Higher Pathogen Loads (Dec. 21, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, December 14 – December 20 (Dec. 22, 2020).

Agriculture, Education Departments Announce Early Childhood To Adult Learning In Ag, STEM During 2021 Farm Show (Dec. 23, 2020).

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

Secretary Perdue Announces Groundbreaking Proposal to Transfer Agricultural Animal Biotechnology Regulatory Framework to USDA (Dec. 21, 2020).

USDA Announces Dr. Carrie Castille as New NIFA Director (Dec. 22, 2020).

USDA Clears Santa’s Reindeer for Entry into the United States (Dec. 23, 2020).

USDA Announces No Actions Under Feedstock Flexibility Program, FSA (Dec. 23, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 52—Dec. 26, 2020): 

Department of Environmental Protection

50 Pa.B. 7354 Notice: “State Water Plan Water Resources Regional Committee Public Hearings.”

Environmental Hearing Board

50 Pa.B. 7392 Notice: “University Area Joint Authority v. Department of Environmental Protection and Fish and Boat Commission, Permittee; EHB Doc. No. 2020-112-L.”

Pennsylvania Legislature

No actions Dec. 21–23, 2020

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Dec. 21–23, 2020): 

Agricultural Marketing Service

85 FR 83510 Notice: “Plant Variety Protection Board; Open Teleconference Meeting [March 31, 2020]” (Dec. 22, 2020).

Animal and Plant Health Inspection Service

85 FR 83027 Notice: “Pioneer Hi-Bred International; Determination of Nonregulated Status for Enhanced Grain Yield Potential and Glufosinate-Ammonium Resistant Maize” (Dec. 21, 2020).

Environmental Protection Agency

85 FR 83078 Notice: “Product Cancellation Order for Certain Pesticide; Amendment” (Dec. 21, 2020).

85 FR 82998 Proposed Rule—Comment Period: “Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities (October 2020)” (Dec. 21, 2020).

85 FR 82939  Notice—Comment Period: “2,4-D; Pesticide Tolerances” (Dec. 21, 2020).

Farm Credit Administration

85 FR 83749 Rule: “Organization; Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations; Investment Eligibility” (Dec. 23, 2020).

Federal Emergency Management Agency

85 FR 83591 Notice—Comment Period: “Proposed Flood Hazard Determinations [Fla., N.C.]” (Dec. 22, 2020).

85 FR 83592 Notice: “Changes in Flood Hazard Determinations [Alaska, Ariz., Cal., Fla., Idaho, Iowa, Ill., Ind., Mich., Neb., Nev., N.J., N.Y., Ohio., Tex., Wash., Wis.]” (Dec. 22, 2020). Fla., Ga., Me., N.H., N.C., Tex., Utah, Va.]” (Dec. 22, 2020).

Fish and Wildlife Service

85 FR 83607 Notice—Comment Period:  “Agency Information Collection Activities; Land-Based Wind Energy Guidelines” (Dec. 22, 2020).

85 FR 83993 Notice: “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review for the Northern Long-Eared Bat” (Dec. 23, 2020).

Food and Drug Administration

85 FR 83092  Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; New Animal Drugs for Investigational Use” (Dec. 21, 2020).

85 FR 82980 Proposed Rule—Comment Period: “French Dressing; Proposed Revocation of a Standard of Identity” (Dec. 21, 2020).

85 FR 83968 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Veterinary Feed Directive” (Dec. 23, 2020).

Food Safety and Inspection Service

85 FR 83029 Notice—Comment Period: “Availability of FSIS Guideline To Assist With the Donation of Eligible Meat & Poultry Products to Non-Profit Organizations” (Dec. 21, 2020).

85 FR 83034 Notice—Comment Period: “Notice of Request for Renewal of an Approved Information Collection (Common or Usual Name for Raw Meat and Poultry Products Containing Added Solutions)” (Dec. 21, 2020).

Rural Business-Cooperative Service

85 FR 83038 Notice—Comment Period: “Inviting Applications for Value-Added Producer Grants and Solicitation of Grant Reviewers” (Dec. 21, 2020).

85 FR 83046 Notice: “Solicitation of Applications for the Higher Blends Infrastructure Incentive Program (HBIIP) for Fiscal Year 2021” (Dec. 21, 2020).

U.S. Customs and Border Protection

85 FR 83433 Rule, continuation of temporary travel restrictions: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico” (Dec. 22, 2020).

85 FR 83432 Rule, continuation of temporary travel restrictions: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada” (Dec. 22, 2020).

U.S. House Agriculture Committee

H.R.3225 “Restoring Community Input and Public Protections in Oil and Gas Leasing Act of 2019.” Placed on the Union Calendar, Calendar No. 572 (Dec. 24, 2020).

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

No new actions Dec. 21–23, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Dec. 21–23, 2020: 
USDA Officially Moves Toward Regulating Gene-Edited Livestock, Brownfield
Lawsuit Would Overturn EPA Approval of Dicamba, Successful Farming
Ethanol outlook goes from bad to worse, Feedstuffs
USDA FSA expands support for urban agriculture, Morning Ag Clips
Ninth Circuit Reviews New Lawsuit Against Latest Dicamba Registrations, Brownfield
Hog Farmer Says Government Assistance is Still Needed, Brownfield
Corn Leader Says Biofuels are Key to Global Air Quality Improvement, Brownfield
USDA to Measure Financial Well-Being of Farmers and Ranchers, Morning Ag Clips

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