Agricultural Law Weekly Review—week ending February 12, 2021  

Food Safety: New Swine Inspection System Suit Will Proceed to Trial 🌾
On February 4, 2021, the U.S. District Court for the Northern District of California issued an order denying dismissal of a suit challenging the U.S. Department of Agriculture’s (USDA) September 2019 “New Swine Inspection System” (NSIS) rule.  Center for Food Safety v. Perdue, No. 4:20-cv-00256.  For background on the rule, see ALWR—September 19, 2019, “USDA Announces Swine Slaughter Inspection Final Rule.”  The suit, filed on January 13, 2020 by handful of varied political advocacy groups, alleges that the NSIS violates the Administration Procedure Act and the Federal Meat Inspection Act by allowing plant employees, who are not required to undergo inspection training, to take over an inspection process to then be completely overseen by federal government inspectors, equaling a “radical transformation” of the program.  The plaintiffs further allege that the rule allows for increased line speeds and removes standards for E. coli and salmonella testing, and these changes will ultimately “increase the amount of adulterated or contaminated swine products entering the food market” and, as such, infringes on the “health and safety of their members . . . by increasing the risk of contracting foodborne illness.”  The court dismissed the government’s motion to dismiss for lack of standing and held that the plaintiffs’ allegations, if accepted as true, amounted to a credible threat of potential future harm to the Plaintiff groups’ members.   According to the order, the parties are scheduled to submit a joint case management statement by April 9, 2021 and will appear for a case management conference on April 16, 2021.

Biofuels: Senators Request EPA Review of January 2021 RFS Exemptions
On February 3, 2021, a bi-partisan group of fifteen U.S. Senators issued a letter to the acting U.S. Environmental Protection Agency Administrator Jane Nishida, requesting that the agency take action regarding the Renewable Fuel Standard (RFS) waivers issued by former EPA Administrator Andrew Wheeler on January 19, 2021, which were subsequently stayed by U.S. Court of Appeals for the D.C. Circuit (See ALWR—week ending January 22, 2021, “EPA Grants Three RFS Exemptions Before Administration Change; Federal Court Grants Immediate Stay”).  The letter requests EPA, in light of ongoing Supreme Court litigation, to review the waivers for their adherence to the “three-part test” established by the Tenth Circuit Court of Appeals and to reverse and deny the waiver requests upon a finding of non-compliance (See ALWR—week ending January 8, 2021, “Supreme Court to Hear Small-Refinery Exemption Appeal”).  The Senators also ask that EPA issue a 2021 Renewable Volume Obligation (RVO) proposed rule that reinstates the 500 million gallons of required blended volume that was “illegally” removed from the 2016 RVO.  For background on the Tenth Circuit opinion, see ALWR—January 30, 2020, “Court of Appeals Invalidates EPA Grant of Renewable Fuel Standard Waivers.”

Agricultural Transportation: FMCSA Extends Trucking Hours of Service Waiver
On February 12, 2021, the Federal Motor Carrier Safety Administration (FMCSA) issued an extension and expansion until May 30, 2021, of its COVID-19 Modified Emergency Declaration No. 2020-002, extending the hours of service waiver for commercial drivers transporting essential COVID-19 supplies, as defined by the declaration.  The emergency declaration, originally issued March 18, 2020, has been expanded and extended six times since its outset.  The last extension was issued on December 1, 2020, and extended the declaration until February 28, 2021.  For more background, see ALWR—March 19, 2020, “Expanded Emergency Declaration Relaxes Hours of Service Trucking Rules For Food and Other Cargo until April 12, 2020.”

Industrial Hemp: Applications Open for PA Hemp Promotion and Education Grants
On February 13, 2021, the Pennsylvania Department of Agriculture published in the Pennsylvania Bulletin a notice of availability of $253,000 in grant funding for the Pennsylvania Agricultural Hemp Promotion, Education and Export Promotion Matching Grant Program.  The grants will award funds to nonprofit product promotion and marketing organizations to cover up to 50% of project costs of proposals aimed at increasing sales, export or consumer awareness of Pennsylvania hemp products.  Applications must be submitted by March 5, 2021, and all project work must be proposed to be completed by June 30, 2021.

Specialty Crops: Applications Open for PA Specialty Crop Block Grants
On January 23, 2021, the Pennsylvania Department of Agriculture published in the Pennsylvania Bulletin notice of $460,000 availability for the Commonwealth Specialty Crop Block Grant Program, enhance the competitiveness of eligible specialty crops and benefit eligible specialty crop industries, this year designating high-priority crops as hemp, hardwoods, honey, hops, and barley, rye and wheat for distilling, brewing and malting only.  Applications must be submitted by March 5, 2021, and all project work must be proposed to be completed by June 30, 2023.

Penn State Agricultural Law Podcast: Listen to the latest episode here. 

Upcoming Webinars from Penn State Extension

COVID-19 Employment Related Concerns for Agriculture, Feb. 18, 2021 at 10:00 am ET

Land Access Series: Find, Lease, and Purchase Land in Pennsylvania, March 29, 2021 – April 1, 2021, four consecutive nights at 6:00 pm ET; April 8, 2021 at 6:00 pm ET

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Attorney, March 23, 2021 at 9:00 am ET.

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Accountant, April 27, 2021 at 9:00 am ET.  

Agricultural Law/Policy Resources of Interest: 

Harrison Pittman, Legal Checkup on Checkoffs: State-by-State Analysis of the USDA “Redirection Rule” & Producer Refunds Under the Beef Checkoff (Feb. 9, 2021).

Brigit Rollins, Building Blocks: Basics of CSP (Feb. 11, 2021).

American Farm Bureau Federation, Market Intel, Reviewing U.S. Carbon Sequestration (Feb. 11, 2021)

Penn State Research & News:

The Business of Bees (Feb. 4, 2021).

Rebuilding Soil Microbiomes in High-Tunnel Agricultural Systems Focus of Study (Feb. 8, 2021)

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, February 1 – February 7, 2021 (Feb. 9, 2021).

Top-Performing Bulls To Sell Online In 48th Edition Of Pennsylvania Livestock Evaluation Center Program (Feb. 11, 2021).

Secretary Of Agriculture: Proposed Third Round Of PA Farm Bill Funding Will Further Strengthen Resiliency Of Agriculture (Feb. 11, 2021).

Ag Department Invites Grant Proposals To Strengthen Market For Vegetable, Fruit, Nut, Nursery Specialty Crops (Feb. 12, 2021).

Agriculture Secretary Seeks Proposals For $253,000 In Matching Grants To Boost Hemp Sales, Exports (Feb. 12, 2021).

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

Statement by Katharine Ferguson, USDA Chief of Staff, on the Emergency Relief for Farmers of Color Act (Feb. 9, 2021).

FACT SHEET: Update on USDA Activities to Contain the COVID-19 Pandemic (Feb. 10, 2021).

USDA Agency Press Releases:

March 15 Last Day to Complete Enrollment for 2021 Agriculture Risk Coverage, Price Loss Coverage Programs, FSA (Feb. 9, 2021).

Confirmation of COVID-19 in a Cougar at a Wild Animal Exhibitor in Texas, APHIS (Feb. 10, 2021).

Evaluating U.S. Department of Agriculture’s Long-Term Forecasts for U.S. Harvested Area, Economic Research Service (Feb. 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 7—Feb. 13, 2021): 

Department of Agriculture

51 Pa.B. 785 Notice: “Agricultural Hemp Promotion, Education and Export Promotion Matching Grant Program; 2019-2020 Application Period.”

Governor’s Office

51 Pa.B. 771 “Proclamation of Disaster Emergency [Severe winter event January 31, 2021].”

51 Pa.B. 773 “Proclamation Terminating the Disaster Emergency [Severe winter event December 15, 2020]”

Pennsylvania Legislature

House Legislation in the Senate

HB 186 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for permit for movement during course of manufacture; and, in powers of department and local authorities, further providing for power of Governor during emergency [‘Milk Hauling Legislation’].”  Referred to Transportation [Senate] (Feb. 11, 2021).

House/Senate Legislation

HB 426 “An Act amending . . . the Tax Reform Code of 1971, in sales and use tax, further providing for definitions, for time for filing returns, for payment and for tax held in trust for the Commonwealth, providing for COVID-19 public eating or drinking place restriction order grants and making an editorial change.” Referred to Finance [House] (Feb. 8, 2021).

HB 427 “An Act amending . . .  the Liquor Code, in Pennsylvania liquor stores, further providing for sales by Pennsylvania liquor stores.” Referred to Liquor Control [House] (Feb. 8, 2021).

HB 452 “An Act amending . . . the Liquor Code, in licenses and regulations and liquor, alcohol and malt and brewed beverages, further providing for licensed places may be closed during period of emergency.” Referred to Liquor Control [House] (Feb. 9, 2021).

HB 459 “An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in riot, disorderly conduct and related offenses, further providing for prohibition of ownership of certain animals.” Referred to Judiciary [House] (Feb. 9, 2021).

HB 499 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in retail food facility safety, prohibiting return of groceries and other foodstuffs during COVID-19 disaster emergency.” Referred to Agriculture and Rural Affairs [House] (Feb. 10, 2021).

SB 191 “An Act amending . . . the Pennsylvania Construction Code Act, in preliminary provisions, further providing for definitions and for application.” Referred to Labor and Industry [Senate] (Feb. 10, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Feb. 8–12, 2021): 

Agricultural Department

86 FR 8752 Notice: “Submission for OMB Review; Comment Request [Rural Housing Service: Fire and Rescue Loans]” (Feb. 9, 2021).

86 FR 8753 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Agricultural Surveys Program—Substantive Change]” (Feb. 9, 2021).

86 FR 9044 Notice: “Submission for OMB Review; Comment Request [National Institute of Food and Agriculture: Research Education Extension Project Online Reporting Tool]” (Feb. 11, 2021).

86 FR 9317 Notice: “Submission for OMB Review; Comment Request [Rural Housing Service: “Guaranteed Rural Rental Housing Program” and Its’ Supporting Handbook]” (Feb. 12, 2021).

Agricultural Marketing Service

86 FR 9253 Final Rule: “Irish Potatoes Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon; Continuance Referendum” (Feb. 12, 2021).

Animal and Plant Health Inspection Service

86 FR 9318 Notice—Comment Period: “Notice of Request for Reinstatement of an Information Collection; Citrus Canker, Citrus Greening, and Asian Citrus Psyllid; Interstate Movement of Regulated Nursery Stock” (Feb. 12, 2021).

86 FR 9317 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Communicable Diseases in Horses” (Feb. 12, 2021).

86 FR 9319 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Gypsy Moth Identification Worksheet and Checklist” (Feb. 12, 2021).

Environmental Protection Agency

86 FR 8633 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (October 2020)” (Feb. 8, 2021).

86 FR 8704 Final Rule—comments accepted: “Benzovindiflupyr; Pesticide Tolerances” (Feb. 9, 2021).

86 FR 8710 Final Rule—comments accepted: “Ethaboxam; Pesticide Tolerances” (Feb. 9, 2021).

86 FR 8700 Final Rule—comments accepted: “Extension of Tolerances for Emergency Exemptions; Multiple Chemicals” (Feb. 9, 2021).

86 FR 8707 Final Rule—comments accepted: “Streptomycin; Pesticide Tolerances” (Feb. 9, 2021).

86 FR 8782 Notice: “Pesticide Emergency Exemptions; Agency Decisions and State and Federal Agency Crisis Declarations” (Feb. 9, 2021).

86 FR 8781 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (November 2020)” (Feb. 9, 2021).

86 FR 8791 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (December 2020)” (Feb. 9, 2021).

86 FR 8792 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (December 2020)” (Feb. 9, 2021).

86 FR 8779 Notice—Comment Period: “Proposed Reissuance of NPDES General Permit for Tribal Enhancement and Federal Research Marine Net Pen Facilities Within Puget Sound (WAG132000)” (Feb. 9, 2021).

86 FR 8779 Notice—Comment Period: “Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations [Touchdown (glyphosate, glycine, diquat dibromide), Tri-4 HF, Poast Plus, Rezult, BAS 800 02/03 Powered by Kixor, Sethoxydim]” (Feb. 9, 2021).

86 FR 8902 Notice—Comment Period: “Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses” (Feb. 10, 2021).

Farm Service Agency

86 FR 9320 Notice—Comment Period: “Information Collection Request; Emergency Conservation Program (ECP) and Biomass Crop Assistance Program (BCAP)” (Feb. 12, 2021).

Federal Emergency Management Agency

86 FR 9023 Final Rule: “Suspension of Community Eligibility [Minn., Tex.]” (Feb. 11, 2021).

Fish and Wildlife Service

86 FR 8715 Final Rule—comments accepted: “Regulations Governing Take of Migratory Birds; Delay of Effective Date” (Feb. 9, 2021).

Food and Nutrition Service

86 FR 9046 Notice—Comment Period: “Agency Information Collection Activities: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Farmers’ Market Nutrition Program (FMNP) Program Regulations-Reporting and Record-Keeping Burden” (Feb. 11, 2021).

Food Safety and Inspection Service

86 FR 9044 Notice—Comment Period: “Notice of Request for Renewal of an Approved Information Collection (Mechanically Tenderized Beef Products)” (Feb. 11, 2021).

Forest Service

86 FR 9048 Notice—Comment Period: “Forest Service Manual 2200, Forest Service Handbook 2209.13, and Forest Service Handbook 2209.16; Extension of Comment Period for Rangeland Management; Public Notice and Comment for Changes to Forest Service Directives” (Feb. 11, 2021).

Justice Department

86 FR 8924 Notice: “Notice of Lodging of Proposed Consent Decree Modification Under the Clean Water Act” (Feb. 10, 2021).

National Agricultural Statistics Service

86 FR 8578 Notice—Comment Period: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection [Feral Swine Survey]” (Feb. 8, 2021).

Susquehanna River Commission

86 FR 8983 Notice: “Grandfathering (GF) Registration Notice” (Feb. 10, 2021).

86 FR 8984 Notice: “Commission Meeting [March 12, 2021]” (Feb. 10, 2021).

U.S. Codex Office

86 FR 8883 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Spices and Culinary Herbs [March 29, 2021]” (Feb. 10, 2021).

U.S. House Agriculture Committee

H.Res.104 “Recognizing the duty of the Federal Government to implement an agenda to Transform, Heal, and Renew by Investing in a Vibrant Economy (“THRIVE”).” Referred to the Subcommittee on Highways and Transit (Feb. 8, 2021).

H.R.932 “To require the Secretary of Agriculture to conduct a study on national forest volunteers, and for other purposes.” Referred to the House Committee on Agriculture (Feb. 8, 2021).

H.R.939 “To exempt certain wildfire mitigation activities from certain environmental requirements, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Feb. 8, 2021).

H.R.940 “To establish a categorical exclusion for electric utility rights-of-way, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Feb. 8, 2021).

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

S.278 “A bill to require the Secretary of Agriculture to provide assistance for socially disadvantaged farmers and ranchers and socially disadvantaged groups, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 8, 2021).

S.300 “A bill to address the history of discrimination against Black farmers and ranchers, to require reforms within the Department of Agriculture to prevent future discrimination, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 8, 2021).

S.313 “A bill to amend the Food and Nutrition Act of 2008 to expand online benefit redemption options under the supplemental nutrition assistance program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 12, 2021).

Connect with the Center on Facebook or on Twitter @AgShaleLaw

Top #AgLaw HotLinks Feb. 8–12, 2021

EPA Nominee Michael Regan Draws Bipartisan Support, Says RFS is a Priority, Farm Policy News

Acting FSA Administrator on CRP Enrollment Extension, Brownfield

USDA Freezes $2.3 Billion in CFAP Money to Farmers, Farm and Dairy

Lawsuit Challenges FDA Approval of Additive that Makes Impossible Burger ‘Bleed’, Food Safety News

Black Farmers Association Supports Bills to Increase Aid and Fairness, Brownfield

Land O’Lakes Launches Carbon-Credits Program for Farmers, Reuters

USDA Finalizes Conservation Easement Rule, Farm Progress

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