Agricultural Law Weekly Review – Week Ending June 4, 2021

COVID-19:  Congressional letter calls for Emergency Temporary Standard and FY 2022 Budget Outlines Intent for Infectious Disease Rulemaking 🌾
On June 2, 2021, one-hundred and six members of the U.S. House of Representatives sent a letter to President Biden urging the issuance of an OSHA Emergency Temporary Standard (ETS) addressing worker protection from COVID-19 in the workplace.  The request cited the March 15, 2021 deadline for such a standard included in January 21, 2021’s Executive Order (E.O. 13999) and the Office of Management and Budget’s (OMB) delay in reviewing the draft ETS sent to the White House on April 26, 2021.  See ALWR—Week Ending April 30, 2021, “White House Reviewing OSHA’s Long-Delayed Emergency Temporary Standard.  Parallel to that, according to the U.S. Department of Labor (DOL) Occupational Safety and Health Administration’s (OSHA) recently published FY 2022 Congressional Budget Justification, included in DOL’s Fiscal Year (FY) 2022 Budget, OSHA is requesting a $10 million budget increase, including 30 additional full-time employees, for its Safety and Health Standards activity, which includes the agency’s plan to revive and move forward with an Infectious Disease Rulemaking, addressing the prevention of infectious disease transmission in workplaces previously commenced. OSHA initiated a request for information (75 FR 24835) in 2010 and conducted stakeholder meetings (76 FR 39041) in 2011 for a proposed rule on infectious diseases transmission in the workplace (RIN:1218-AC46), but the rulemaking process was placed under “long-term actions” in the agency’s 2017 regulatory agenda and never revived by the Executive Branch since the COVID-19 pandemic onset.   OSHA now intends to publish a draft proposed rulemaking and seek public comment in 2022.

Food Safety: Court Denies Challenge to Butter Pasteurization Regulation
On May 24, 2021, the U.S. District Court for the District of Columbia issued an opinion granting summary judgment in favor of the U.S. Food and Drug Administration (FDA) in a challenge to the agency’s authority to require the pasteurization of butter in interstate commerce under 21 CFR §1240.61, Mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.   McAfee v. U.S. Food and Drug Administration, No. 1:19-cv-03161.  The case was brought by the Farm-to-Consumer Legal Defense Fund and Mark McAfee, the owner of California-based Organic Pastures Dairy, which sells raw milk nationally labelled as pet food under its brand “Raw Farm.”  The Plaintiffs claimed that the FDA lacked statutory authority to mandate butter pasteurization and requested that the agency remove butter from the definition of milk products under 21 CFR §1240.3 but the Court found that the pasteurization rule was authorized by FDA’s broad authority under the Public Health Service Act (PHSA) to protect the public against the spread of communicable disease and in deference to the agency accepted FDA’s rationale that only pasteurization destroys disease-causing pathogens.

Crop Insurance: USDA Announces Premium Payments Under Pandemic Cover Crop Program
On June 2, 2021, the U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) posted in the Federal Register a “Notice of Funding Availability” for the Pandemic Cover Crop Program (PCCP) (86 FR 29553), which will provide a premium payment of up to $5 per acre to producers who planted a qualifying cover crop during the 2021 planting season and insured their spring crop under an authorized insurance policy.  Also announced by RMA, the agency states that all FSA-reportable cover crops are eligible but PCCP is not available for Whole-Farm Revenue Protection, Enhanced Coverage Option, Hurricane Insurance Protection – Wind Index, Supplemental Coverage Option, and Stacked Income Protection because they are either incompatible with acreage reporting or already provide the benefit.  Producers must file a Report of Acreage form (FSA-578) by June 15, 2021, which the agency notes is separate from the normal acreage reporting date.

Pesticides/Herbicides: New Dicamba Property Damage Suits Filed Outside Scope of Prior Settlement
On May 25, 2021, Coy’s Honey Farm, Inc., filed a complaint in the United States District Court for the Eastern District of Arkansas, docketed at 3:21-cv-00104, against Bayer and BASF seeking damages for non-target dicamba-caused property damage, consequential economic damages to Coy’s bee-keeping and honey production operation of approximately 13,000 hives.  The suit alleges multiple tort and statutory commercial misrepresentation claims and seeks punitive damages.  In addition, on June 4, 2021, a group of fifty-seven Texas High Plains grape growers, alleging to possess 3000 acres planted in grapes and constituting 85% of Texas’ $13 billion state wine industry, filed suit in Texas state Court (Jefferson County) against Bayer and BASF seeking damages for non-target dicamba-caused property damage and consequential economic damages to their vineyard operations alleging products liability theories and seeking punitive damages. Recent settlement efforts by Bayer have only been addressed to non-dicamba tolerant soybean and cotton damage.

Center for Agricultural and Shale Law Programs & Resources:

Podcast: Penn State Agricultural Law Podcast, listen to our latest weekly episode here.

Webinar:

Utility-Scale Solar Development – For Lawyers, Landowners & Others
 An Online Legal Educational Symposium
Tuesday, June 15, 2021      12:00pm – 3:30pm
 Thursday, June 17, 2021     12:00pm – 3:30pm

This symposium is geared for both beginning and intermediate levels of knowledge about photovoltaic electrical generation for the grid and is designed in a progressive manner, each session building upon the knowledge gained in the last.  Upon completion, an attorney, landowner, government professional, educator or other interested attendee will have a well-rounded understanding of the legal facets of the proliferation of utility-scale solar development project proposals in Pennsylvania, across the region, and throughout much of the United States.

$179 – Registration Fee (6 hours of substantive Pennsylvania CLE Credits)
$99 – Registration Fee (without CLE credits)

CLICK HERE for details, agenda and registration

Penn State News, Research & Resources:

Computational Scientists Help Enable, Scale Agricultural Research (May 21, 2021).

Eco-Friendly Carbon-Dioxide Conversion Process May Revolutionize Existing Method (May 24, 2021).

Other Agricultural Law/Policy Resources of Interest:

Tiffany Lashmet, Agriculture + Mental Health Awareness Month (May 31, 2021).

Roger A. McGowen, What’s the “Beef” With Conservation Easements? (May 31, 2021).

Peggy Kirk Hall, A Spring Full of Pesticide Law, Part 1 (June 1, 2021).

Nicole Cook, What Does the FDA Think is a “Reasonably Foreseeable Hazard” in Produce Safety? (June 1, 2021).

Micah Brown, Securing an Interest: Federal Crop Insurance Proceeds (June 1, 2021).

Kristine A. Tidgren, “Green Book” Details President’s Tax Reform Proposals (June 2, 2021).

Weekly Featured Graphic:

Food and Agriculture Organization of the United Nations, FAO Food Price Index (June 3, 2021)

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Secretary Of Agriculture Highlights Administration Investments To Build Urban Food Sovereignty (June 3, 2021).

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

USDA Celebrates National Homeownership Month (June 1, 2021).

USDA Launches 2021 Feds Feed Families Nationwide Food Drive (June 1, 2021).

Statement from the U.S. Department of Agriculture on JBS USA Ransomware Attack (June 1, 2021).

FACT SHEET: Update on USDA Activities to Contain the COVID-19 Pandemic (June 2, 2021).

President Biden’s Budget Invests $2.8 Billion to Support Economies, Outdoor Recreation and Access to Public Lands (June 3, 2021).

USDA to Invest $1 Billion to Purchase Healthy Food for Food Insecure Americans and Build Food Bank Capacity (June 4, 2021).

USDA Agency Press Releases:

USDA Announces National Pork Board Appointments, Agricultural Marketing Service (June 1, 2021).

USDA Appoints Members to National Fluid Milk Processor Promotion Board, Agricultural Marketing Service (June 1, 2021).

USDA Seeks Nominees for the National Potato Promotion Board, Agricultural Marketing Service (June 3, 2021).

USDA and US Biologic, Inc. Announce New Oral Solution to Combat Major Poultry Disease, Agricultural Research Service (June 4, 2021).

USDA Launches New Poultry Biosecurity Outreach Effort Aimed at Youth and Student Audiences, Animal and Plant Health Inspection Service (June 2, 2021).

USDA Announces 2021 Plans for Asian Longhorned Beetle Eradication Efforts in Massachusetts, New York, Ohio and South Carolina, Animal and Plant Health Inspection Service (June 3, 2021).

APHIS Issues Notice of Decision to Add Taxa of Plants for Planting that are Quarantine Pests or Hosts of Quarantine Pests to the Lists of Plants for Planting Whose Importation is Not Authorized Pending Pest Risk Analysis, Animal and Plant Health Inspection Service (June 3, 2021).

Report: The Food Retail Landscape Across Rural America, Economic Research Service (June 2021).

USDA Announces June 2021 Lending Rates for Agricultural Producers, Farm Service Agency (June 1, 2021).

Constituent Update: Tips for Faster Label Approval Process, Food Safety and Inspection Service (June 4, 2021).

NIFA Invests $7M in Digital Agriculture Technologies, National Institute of Food and Agriculture (June 2, 2021).

Producers with Crop Insurance to Receive Premium Benefit for Cover Crops, Risk Management Agency (June 1, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 23—June 5, 2021):

Department of Environmental Protection

51 Pa.B. 3143 Notice: “The Pennsylvania Clean Streams Law And The Federal Clean Water Act: Applications For National Pollutant Discharge Elimination System (NPDES) Permits And Water Quality Management (WQM) Permits Under The Clean Streams Law And Federal Clean Water Act.”

51 Pa.B. 3207 Notice: “Base General Permit No. WMGR096 Renewed through June 2022 [Solid Waste].”

51 Pa.B. 3207 Notice: “Clean Water and Drinking Water State Revolving Fund Programs Federal Fiscal Year 2021 Intended Use Plans; Available for Public Comment.”

The Governor

51 Pa.B. 3088 “Amendment to Proclamation of Disaster Emergency [Covid-19].”

Independent Regulatory Review Commission

51 Pa.B. 3210 Notice: “Actions Taken by the Commission [Environmental Quality Board].”

Pennsylvania Legislature

SB 28 “An Act providing for the administration of permits by State agencies, for a tracking system for permit applications, for the establishment of permit programs, for third-party review of permit decision delays and for annual reports.” Referred to Environmental Resources and Energy [House] (June 1, 2021).

HB 1555 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, providing for community solar facilities.” Referred to Consumer Affairs [House] (June 3, 2021).

SB 736 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for use of farm vehicle plates [‘Streamlining the Home Delivery of Agricultural Products’].” Referred to Transportation [Senate] (June 4, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register  June 1–4, 2021):

Agriculture Department

86 FR 29546 Notice—Comment Period: “Notice of an Extension or Revision of a Currently Approved Information Collection” (June 2, 2021).

Agricultural Marketing Service

86 FR 29738 Notice—Comment Period: “Meeting of the National Organic Standards Board; Meeting” (June 3, 2021).

Animal and Plant Health Inspection Service

86 FR 29547 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Movement of Plants and Plant Products From Hawaii and the Territories” (June 2, 2021).

86 FR 29548 Notice: “Notice of Decision To Add Taxa of Plants for Planting That Are Quarantine Pests or Hosts of Quarantine Pests to the Lists of Plants for Planting Whose Importation Is Not Authorized Pending Pest Risk Analysis” (June 2, 2021).

Environmental Protection Agency

86 FR 29229 Proposed Rule—Comment Period: “Receipt of Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities May 2021” (June 1, 2021).

86 FR 29541 Proposed Rule, comments accepted: “Notice of Intention To Reconsider and Revise the Clean Water Act Section 401 Certification Rule” (June 2, 2021).

86 FR 29694 Final Rule, comments accepted: “Difenoconazole; Pesticide Tolerances” (June 3, 2021).

Farm Service Agency

86 FR 29233 Notice—Comment Period: “Information Collection Request; Assignment of Payment; Joint Payment Authorization; and Request for Waiver” (June 1, 2021).

Fish and Wildlife Service

86 FR 29432 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken; Threatened Status With Section 4(d) Rule for the Northern Distinct Population Segment and Endangered Status for the Southern Distinct Population Segment” (June 1, 2021).

86 FR 29803 Notice—Comment Period: “Draft Environmental Assessment and Proposed Habitat Conservation Plan; Receipt of an Application for an Incidental Take Permit, California Ridge Wind Farm, Champaign and Vermilion Counties, Illinois” (June 3, 2021).

86 FR 29975 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Finding on a Petition To List the Tiehm’s Buckwheat as Threatened or Endangered” (June 4, 2021).

Food and Drug Administration

86 FR 29267 Notice: “Compliance Policy Guide Sec. 555.400 Aflatoxins in Human Food; Compliance Policy Guide Sec. 570.200 Aflatoxins in Brazil Nuts; Compliance Policy Guide Sec. 570.375 Aflatoxins in Peanuts and Peanut Products; and Compliance Policy Guide Sec. 570.500 Aflatoxins in Pistachio Nuts; Availability” (June 1, 2021).

Forest Service

86 FR 29550 Notice: “Newspapers Used for Publication of Legal Notices in the Southwestern Region: Arizona, New Mexico, and Parts of Oklahoma and Texas” (June 2, 2021).

86 FR 29997 Notice—Comment Period: “Forest Service Handbook (FSH) 5509.11, Chapter Twenty, Section 21; Title Claims, Sales, and Grants Handbook; Sales” (June 4, 2021).

86 FR 29996 Notice—Comment Period: “Forest Service Manual 1800, Chapter 20” (June 4, 2021).

National Agricultural Statistics Service

86 FR 29551 Notice—Comment Period: “Notice of Intent To Request To Conduct a New Information Collection [National Agroforestry Survey]” (June 2, 2021).

Natural Resources Conservation Service

86 FR 29738 Notice—Comment Period: “Notice of Intent To Prepare an Environmental Impact Statement for the Gould Wash Flood Protection Project, Washington County, Utah” (June 3, 2021).

86 FR 29739 Notice—Comment Period: “Notice of Intent To Prepare an Environmental Impact Statement for the Upper Price River Watershed Project, Carbon County, Utah” (June 3, 2021).

Risk Management Agency

86 FR 29553 Notice: “Notice of Funding Availability; Pandemic Cover Crop Program” (June 2, 2021)

Rural Housing Service

86 FR 29555 Notice—Comment Period: “Notice of Solicitation of Applications for the Section 533 Housing Preservation Grants for Fiscal Year 2021” (June 2, 2021).

Small Business Administration

86 FR 30073 Notice: “Administrative Declaration of a Disaster for the State of Texas [Severe Storms and Tornadoes]” (June 4, 2021).

86 FR 30073 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Georgia [Severe Storms and Tornadoes]” (June 4, 2021).

86 FR 30073 Notice: “Presidential Declaration Amendment of a Major Disaster for the Commonwealth of Kentucky [Severe Storms, Flooding, Landslides, and Mudslides]” (June 4, 2021).

U.S. House Agriculture Committee

H.R.3652 “To direct the Secretary of Agriculture to establish a food waste research and technical assistance program and grant program, and for other purposes.” Referred to the House Committee on Agriculture (June 1, 2021).

H.R.3654 “To expand access to electromagnetic spectrum for the provision of broadband service in rural areas, and for other purposes.” Referred to the Committee on Energy and Commerce and the Committee on Agriculture (June 1, 2021).

H.R.3670 “To improve access for outdoor recreation through the use of special recreation permits on Federal recreational lands and waters, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (June 1, 2021).

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

No new actions June 1–4, 2021.

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Top #AgLaw HotLinks  June 1–4, 2021

No Link Between Milk and Increased Cholesterol According to New Study of 2M People, Dairy Reporter

U.S. Ag Exports Forecast to Jump 21%, Feedstuffs

Can U.S. Chocolate Companies be Liable for Child-Labor Abuses in the Global Cocoa Supply Chain?, The Counter

EU Fails to Agree Farming Subsidies Deal Amid Disputes Over Green Schemes, Reuters

Genetically Modified Salmon Head to US Dinner Plates, Associated Press

USCA Requests Emergency Relief For Livestock Haulers Following JBS Shutdown, U.S. Cattlemen’s Association

USDA Announces Grants for Urban Agriculture and Innovative Production, USDA

Cargill Backs Cow Masks to Trap Methane Burps, BNN Bloomberg

Competitive Bidding Pushes Farmland Values Up 15%, Land Report Shows, Successful Farming

Russian Cybercriminal Group Was Behind Meat Plant Attack, F.B.I. Says, New York Times

Fighting Climate Change Means Taking Laughing Gas Seriously, Knowable

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