January 27, 2021
Agricultural Law Weekly Review—week ending January 22, 2021
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Industrial Hemp: USDA Publishes Final Hemp Rule
On January 19, 2021, the U.S. Department of Agriculture’s (USDA) Agriculture Marketing Service (AMS) published in the Federal Register a final rule titled “Establishment of a Domestic Hemp Production Program” (86 FR 5596), which completes the closely-followed process begun by the October 31, 2019 interim final rule to complete regulations governing domestic hemp production under authority of the 2018 Farm Bill. For background see ALWR—October 31, 2019, “USDA Releases Interim Final Rule for Domestic Hemp Production.” Among other things, the final rule extends the time for final sampling from 15 to 30 days pre-harvest and permits states to develop USDA-approved “performance-based” sampling plans with flexibility in the number and portions of plants sampled and in authorizing multiple acceptable disposal methods for non-compliant plants. The final rule also increases the tetrahydrocannabinol (THC) “negligence threshold” to 1% from 0.5% and allows producers one “negligent violation” per calendar year. While the rule still requires testing at DEA-registered laboratories, it acknowledges the insufficient number of such facilities and delays enforcement of the requirement, allowing testing at non-DEA registered labs, until January 1, 2022. The final rule becomes effective March 22, 2021.
Biofuels: EPA Grants Three RFS Exemptions Before Administration Change; Federal Court Grants Immediate Stay
On January 19, 2021, the U.S. Environmental Protection Agency (EPA) updated its RFS Small Refinery Exemptions website to reflect its grant of three small refinery exemptions: one for the 2018 compliance year and two for the 2019 compliance year. This action was preceded by an EPA email notification to the Renewable Fuels Assocation, who later that same day filed a petition and motion to stay the exemptions in the U.S. Court of Appeals for the District of Columbia Circuit (Renewable Fuels Association v. EPA, No. 21-01032). On January 21, 2021, the court issued an order administratively staying EPA’s small refinery exemption grants and directing EPA to file a response by February 3, 2021, stating that the purpose of the stay is to give the court sufficient opportunity to consider the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion.
Antitrust: Tyson Agrees to $221.5 Million Partial Settlement in Poultry Antitrust Class Action
On January 19, 2021, Tyson Foods, Inc. announced in a filing with the U.S. Securities and Exchange Commission (SEC) that it has agreed to a $221.5 million settlement to settle all outstanding claims with the Direct Purchaser Plaintiff Class, the Commercial and Institutional Indirect Purchaser Plaintiff Class, and the End-User Plaintiff Class in the consolidated civil antitrust class action litigation In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637 (N.D. Illinois). As civil settlements, Tyson expressly does not admit any liability. Pilgrim’s Pride, who is also a defendant in the same litigation, also entered into a settlement agreement with only the Direct Purchaser Plaintiff Class on January 11, 2021. See ALWR—week ending January 15, 2021, “Pilgrim’s Pride Reaches $75 Million Civil Antitrust Settlement.” Multiple claims against multiple parties remain pending in this consolidated civil antitrust class action litigation coordinated in the U.S. District Court for the Northern District of Illinois.
Antitrust: Court Grants Preliminary Approval to JBS’s $24.5 Million Partial Settlement in Pork Antitrust Class Action
On January 13, 2021, the U.S. District Court for the District of Minnesota entered an order granting preliminary approval of the settlement agreement between JBS and Direct Purchaser Plaintiffs (DPPs), along with certification of the settlement class, in the consolidated civil antitrust class action litigation In re Pork Antitrust Litigation, No. 0:18-cv-01776. According to a memorandum supporting the DPPs’ motion for approval of the settlement, which was first made public in November 2020, JBS will pay $24.5 million into a Settlement Fund to be used to compensate the DPPs for expenses incurred and damages suffered. Additionally, JBS will cooperate with the DPPs’ continuing litigation against the remaining defendants. According to the order, the court determined the settlement to be fair, reasonable, adequate, and in the best interests of the Settlement Class, and granted preliminary approval of the settlement subject to further consideration at the Fairness Hearing scheduled for July 26, 2021. For more on the background of this development, see ALWR—week ending November 13, 2020, “JBS Agrees to Settlement In Pork Price-Fixing Case.”
Dean Foods Bankruptcy: Dean Required to Pay $29 Million to USDA for Unpaid Federal Milk Marketing Order and Federal Check-Off Program Debts
On January 15, 2021, the U.S. Bankruptcy Court for the Southern District of Texas entered a Stipulation and Agreed Order agreed to by Southern Foods Group, LLC and its various affiliated companies in Chapter 11 bankruptcy (Dean) and the United States Department of Justice requiring Dean to pay, within thirty days, the sum of $29,082,182, which represents 90% of unpaid amounts owed for milk marketed in April and May of 2020, to the U.S. Department of Agriculture (USDA) for Federal Milk Marketing Order (FMMO) obligations, and marketing order program obligations to the National Dairy Promotion Board and the National Fluid Milk Processor Promotion Board. The stipulation was subsequently announced by USDA’s Agricultural Marketing Service on January 19, 2021.
Pesticides/Herbicides: EPA Issues Proposed Interim Registration Review Decision to Require New Risk Mitigation Measures for Chlorpyrifos
On December 7, 2020, the Environmental Protection Agency (EPA) published in the Federal Register a notice of availability of its Proposed Interim Registration Review Decision for Chlorpyrifos (85 FR 78849), following EPA’s September 25, 2020 Draft Risk Assessment of Chlorpyrifos. See ALWR—week ending September 25, 2020, “EPA Issues Draft Risk Assessment of Chlorpyrifos.” The proposed interim decision states that chlorpyrifos “poses potential dietary and aggregate risks associated with drinking water exposure for currently labelled uses.” To mitigate these risks, EPA proposes application restrictions according to crop and geographic region, along with application-specific personal protective gear (PPE) requirements and re-entry interval (REI) extensions. Additionally, EPA proposes label language addressing spray drift management and pesticide resistance management. EPA states that it will consider input from the September 2020 FIFRA Scientific Advisory Panel report to further revise its proposed recommendations. The proposed interim decision’s public comment period closes February 5, 2021.
COVID-19: USDA Announces Additional Eligible CFAP Commodities, Updated Payment Calculations and Reopens Applications
On January 19, 2021, the U.S. Department of Agriculture (USDA) published in the Federal Register a final rule titled “Coronavirus Food Assistance Program; Additional Assistance” (86 FR 4877). Previously announced by the department on January 15, 2021, the final rule expands commodity and producer eligibility and updates payment calculations for the Coronavirus Food Assistance Program (CFAP). According to the announcement, producers of pullets and turfgrass sod, along with contract producers of swine, broilers, laying hens, chicken eggs and turkeys, are now eligible for CFAP payments. Also, the payment calculation for sales commodities (generally specialty crops and green industry products) have been altered. Producers may submit a new or modified CFAP2 application to USDA’s Farm Service Agency (FSA) through their local office until February 26, 2021.
Biotechnology: MOU Gives USDA Regulatory Responsibility Over Multiple Bioengineered Species
On January 13, 2021, the U.S. Department of Health and Human Services (HHS), on behalf of the Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA) executed a Memorandum of Understanding (MOU) transferring to USDA “responsibilities concerning the regulation of amenable species developed using genetic engineering that are intended for agricultural purposes (i.e., human food, fiber, and labor).” “Amenable species” include animals subject to the Federal Meat Inspection Act (21 U.S.C. 601, et seq.) (cattle, sheep, swine, goats, horses, mules, or other equines, and catfish), and animals subject to the Poultry Products Inspection Act (21 U.S.C. 451, et seq.) (chickens, turkeys, ducks, geese, guineas, ratites, and squabs). The MOU’s execution, announced by USDA on January 19, 2021, follows USDA’s December 28, 2020 proposed rule, “Regulation of the Movement of Animals Modified or Developed by Genetic Engineering” (85 FR 84269). For more on the proposed rule, see ALWR—week ending January 1, 2021, “USDA Proposes Animal Biotech Regulatory Framework for Oversight Transfer from FDA.” Under the agreement, USDA will use its authorities under FMIA and PPIA to establish a new program to conduct pre- and post-market safety evaluations and monitoring for bioengineered amenable species and FDA will continue to regulate bioengineered dairy products, table and shell eggs, certain meat products, and animal feed under the Federal Food, Drug and Cosmetic Act (FDCA). Additionally, the MOU outlines the new review process for bioengineered amenable species, with USDA serving as the “single point of entry and gateway for agriculture amenable species developed using genetic engineering.”
Biotechnology: USDA Publishes SECURE Rule Guidance for Modified Plant Exemption Proposals
On January 19, 2021, the U.S. Department of Agriculture (USDA)’s Animal and Plant Health Inspection Service (APHIS) announced the availability of a guidance document titled “Guidance for Preparing Proposals to Exempt Plants with Additional Modifications from Regulation Pursuant to 7 CFR § 340.1(b)(4),” otherwise known as the Sustainable, Ecological, Consistent, Uniform, Responsible, Efficient (SECURE) rule. Under revised regulations, effective August 17, 2020, some modified plants are exempt from the SECURE rule because, as compared to conventionally bred plants they are unlikely to pose an increased plant pest risk. For more background, see ALWR —week ending May 22, 2020, “USDA Publishes Revised Approval Process Regulations for Genetically Engineered Organisms.” The guidance explains the exemption proposal process and is meant for public use when preparing and submitting proposals to exempt modified plants from SECURE regulation.
Upcoming Webinars from Penn State Extension
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:
Brigit Rollins, Overview of Trump Administration’s Environmental “Midnight Regulations” (Jan. 14, 2021).
Paul Goeringer, Video: Hemp Risk Management Session (Jan. 15, 2021).
Roger A. McEowen, Final Ag/Horticultural Cooperative QBI Regulations Issued (Jan. 15, 2021).
Micah Brown, Aid to Agriculture: Overview of the Recent Stimulus Package (Jan. 19, 2021).
Peggy Kirk Hall, Ohio’s Drainage Laws Get Major Update (Jan. 20, 2021).
Rusty Rumley, Industrial Hemp Regulations Finalized (Jan. 21, 2021).
Penn State Research & News:
U.S. School Cafeterias Waste More Food than Those in Other Developed Countries (Jan. 18, 2021).
Feral Colonies Provide Clues for Enhancing Honey Bee Tolerance to Pathogens (Jan. 19, 2021).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Agriculture Secretary Shares 2021 Pennsylvania Farm Show ‘Cultivating Tomorrow’ Highlights (Jan. 19, 2021).
Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, January 11 – January 17 (Jan. 20, 2021)
U.S. Department of Agriculture (USDA) Press Releases:
U.S. Department of Agriculture Announces Key Staff Appointments (Jan. 20, 2021).
Biden Administration Announces Foreclosure Moratorium and Mortgage Forbearance Deadline Extension That Will Bring Relief to Rural Residents (Jan. 20, 2021).
U.S. Department of Agriculture Announces Key Staff Appointments (Jan. 21, 2021).
Biden Administration Expands P-EBT to Benefit Millions of Low-Income and Food Insecure Children During Pandemic (Jan. 22, 2021).
USDA Agency Press Releases:
USDA and Dairy Farmers Work Together to Mitigate Risk for 2021, FSA (Jan. 18, 2021).
USDA Offers New Forest Management Incentive for Conservation Reserve Program, FSA (Jan. 19, 2021).
USDA Announces Deregulation of Petunias Developed Using Genetic Engineering, APHIS (Jan. 19, 2021).
USDA Appoints Members to the Task Force on Agricultural Air Quality Research, NRCS (Jan. 19, 2021).
USDA Announces Implementation of Improvements to Livestock Risk Protection Insurance Program, RMA (Jan. 19, 2021).
USDA Settles a Packers and Stockyards Case Against Jody Pinkert, AMS (Jan. 21, 2021).
Family-owned farms account for 96% of U.S. farms, according to the Census of Agriculture Typology Report, NASS (Jan. 22, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 4—Jan. 23, 2021):
Department of Agriculture
51 Pa.B. 445 Notice: “Commonwealth Specialty Crop Block Grant Program; 2020-2021 Program Guidelines.”
51 Pa.B. 447 Notice: “Program Requirements for the 2020-2021 Agriculture and Youth Organization Grant Program.”
Department of Conservation and Natural Resources
51 Pa.B. 450 Notice: “Community Conservation Partnerships Program Grants Available.”
51 Pa.B. 451 Notice: “Conservation and Natural Resources Advisory Council WebEx Meeting.”
Department of Environmental Protection
51 Pa.B. 500 Notice: “Agricultural Advisory Board 2021 Virtual Meeting Schedule.”
Milk Marketing Board
51 Pa.B. 528 Notice: “Hearing and Presubmission Schedule for All Milk Marketing Areas; Over-Order Premium; Teleconference.”
Susquehanna River Basin Commission
51 Pa.B. 530 Notice: “Grandfathering Registration Notice.”
51 Pa.B. 530 Notice: “Projects Approved for Consumptive Uses of Water.”
51 Pa.B. 532 Notice: “Telephonic Public Hearing [February 4, 2021 at 2:30 p.m.]”
Pennsylvania Legislature
SB 64 “An Act amending the . . . Agricultural Area Security Law, further providing for purchase of agricultural conservation easements, for Agricultural Conservation Easement Purchase Fund and for Land Trust Reimbursement Program.” Referred to Agriculture and Rural Affairs [Senate] (Jan. 20, 2021).
HB 183 “An Act amending . . . ‘An act providing for the administration of certain Commonwealth farmland within the Department of Agriculture,’ further providing for agricultural land conservation assistance grant program.” Referred to Agriculture and Rural Affairs [House] (Jan. 21, 2021).
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 Agriculture and Rural Affairs [House] (Jan. 21, 2021).
HB 187 “An Act amending . . . the Donated Food Limited Liability Act, further providing for donor immunity.” Referred to Agriculture and Rural Affairs [House] (Jan. 21, 2021).
HB 216 “An Act restricting local government from certain regulation of agritourism [‘Agritourism for Farmers – “Save Tabora Farm”’].” Referred to Local Government [House] (Jan. 22, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register Jan. 18–22, 2021):
Agricultural Department
86 FR 4877 Final Rule: “Coronavirus Food Assistance Program; Additional Assistance” (Jan. 19, 2021).
Agricultural Marketing Service
86 FR 5596 Final Rule: “Establishment of a Domestic Hemp Production Program” (Jan. 19, 2021).
Animal and Plant Health Inspection Service
86 FR 5130 Notice: “Monsanto Company; Determination of Nonregulated Status for Insect Resistant Cotton” (Jan. 19, 2021).
86 FR 6289 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Gypsy Moth Host Materials From Canada” (Jan. 21, 2021).
86 FR 6289 Notice—Comment Period: “Notice of Availability of an Environmental Assessment for Release of Bikasha collaris and Gadirtha fusca for Biological Control of Chinese Tallow” (Jan. 21, 2021).
86 FR 6290 Notice—Comment Period: “Environmental Impact Statement for Predator Damage Management in Oregon” (Jan. 21, 2021).
Environmental Protection Agency
86 FR 5182 Notice—Comment Period: “Notice of Receipt of Petitions for a Waiver of the 2019 and 2020 Renewable Fuel Standards” (Jan. 19, 2021).
86 FR 6321 Notice: “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” (Jan. 21, 2021).
Federal Emergency Management Agency
86 FR 5233 Notice: “Final Flood Hazard Determinations [Colo., Miss., N.Y., Ohio, S.C.]” (Jan. 19, 2021).
86 FR 5230 Notice: “Changes in Flood Hazard Determinations [Colo., Fla., N.M., Pa., R.I., Tex., Vt., Va., D.C., W.V.]” (Jan. 19, 2021).
86 FR 5226 Notice—Comment Period: “Proposed Flood Hazard Determinations [Colo., Mass., Pa., Tex., Va., Wyo.]” (Jan. 19, 2021).
Fish and Wildlife Service
86 FR 5112 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations Pertaining to the American Alligator (Alligator mississippiensis)” (Jan. 19, 2021).
86 FR 5120 Proposed Rule—Comment Period: “Streamlining U.S. Fish and Wildlife Service Permitting of Rights-of-Way” (Jan. 19, 2021).
Small Business Administration
86 FR 6404 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Georgia [Tropical Storm Zeta]” (Jan. 21, 2021).
86 FR 6404 Notice: “Presidential Declaration of a Major Disaster for the State of Louisiana [Hurricane Zeta]” (Jan. 21, 2021).
86 FR 6405 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Utah [Straight-line Winds].” (Jan. 21, 2021).
U.S. House Agriculture Committee
H.R.421 “To amend the Food and Nutrition Act of 2008 to treat the Commonwealth of the Northern Mariana Islands in the same manner as Guam is treated.” Referred to the House Committee on Agriculture (Jan. 21, 2021).
H.R.388 “To amend the Farm Security and Rural Investment Act of 2002 by requiring preclearance quarantine inspections for all movement to or from the State of Hawaii by either domestic or international travel, and for other purposes.” Referred to the House Committee on Agriculture (Jan. 21, 2021).
H.R.351 “To amend the Food and Nutrition Act of 2008 to exclude from income, for the purpose of determining eligibility and benefits, income received from cost of living adjustments made under titles II and XVI of the Social Security Act and from supplementary payments received under section 1616 of such Act.” Referred to the House Committee on Agriculture (Jan. 19, 2021).
U.S. Senate Committee Agriculture, Nutrition, and Forestry:
PN78-22 “Thomas J. Vilsack — Department of Agriculture” Received from the President, referred to the Committee on Agriculture, Nutrition, and Forestry (Jan. 20, 2021).
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Top #AgLaw HotLinks Jan. 18–22, 2021
USDA Gives Hemp Farmers Breathing Room on THC, Testing, but Retains DEA Requirement, Hemp Industry Daily
China Approves GMO Corn to be Imported, Brownfield
EPA to Seek Comment on Potential General Blending Waiver for Oil Refiners, Successful Farming/Reuters
USDA Unveils $2.3 Bln in New COVID-19 Aid, Mostly for Livestock Farmers, Reuters
Additional Support Available for Some Producers Through CFAP, Morning Ag Clips
EPA Takes RFS-Related Actions to Help Farmers and Refiners, Morning Ag Clips
USDA’s New, Best Advice on Healthy Eating, AGWEEK
NASDA Policy Priorities Include Food Systems, Climate, and More, Brownfield
GAO Recommends EPA Track Use of Pesticide Information for Farmworkers, Food Safety News
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Written by:
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney
