Agricultural Law Weekly Review—week ending November 13, 2020

International Trade: EU Imposes Tariffs on U.S. Agricultural Products
On November 9, 2020, the European Commission announced the passage of Regulation 2020/1646, which levies a new 25% World Trade Organization (WTO)-authorized tariff on enumerated U.S. agricultural products (and 15% on U.S. aircraft products) in retaliation for U.S. tariffs on European Union (EU) exports.  Agricultural product tariffs, including on a wide range of cheeses, are being bi-laterally utilized by both nations as retaliation for government subsidies to Airbus and Boeing respectively.  On November 10, 2020, the primary trade organization of U.S. dairy cooperatives, National Milk Producers Federation, issued a statement condemning the EU tariff escalation and other tactics, stating, “One of the most egregious of these tactics is the EU’s misuse of geographical indications (GIs) to ban the U.S. from selling cheeses with common names, such as asiago, feta or parmesan. We commend USTR’s continued maintenance of GI cheeses on the WTO-authorized list of tariff retaliation as these tariffs help to temporarily level the playing field for U.S. producers.”

Antitrust: JBS Agrees to Settlement In Pork Price-Fixing Case
On November 4, 2020, Defendant JBS USA Food Company (JBS) and the so-called “Direct Purchaser Plaintiffs” filed a joint notice of settlement in the 2-year old class action lawsuit captioned In re Pork Antitrust Litigation, No. 0:18-cv-01776, pending in the U.S. District Court for the District of Minnesota.  Defendants in the suit include, among others, various subsidiaries of well-known brand names Hatfield, Hormel, Smithfield and Tyson. The agreement settles only the claims of the Direct Purchaser Plaintiffs, a subset of plaintiffs and class members in the consolidated suits that does not include commercial, industrial, and retail indirect purchaser plaintiffs, i.e. those who purchased pork products from an intermediary supplier/wholesaler/retailer.  According to the notice, the agreement is subject to court approval, which will be sought “in the near future.”  For more on this suit, see the ALWR—week ending October 23, 2020, “Federal Court Denies Dismissal of Meatpackers’ Antitrust Class Action Suit.”

Pesticides: First Challenge Filed to EPA’s 2021-2025 Dicamba Product Registrations
On November 4, 2020, the American Soybean Association (ASA) and Plains Cotton Growers, Inc. filed a complaint in the U.S. District Court for the District of Columbia against the U.S. Environmental Protection Agency (EPA) seeking declaratory and injunctive relief against the application restrictions imposed in EPA’s recent registration approval of three dicamba products through 2025.  American Soybean Association v. Environmental Protection Agency, No. 1:20-cv-03190.  Specifically, the complaint seeks removal of the nationwide application deadlines of June 30 for soybeans and July 30 for cotton as debilitating to control of certain weeds in certain areas, particularly when replanting occurs comparatively late, coupled with existing herbicide resistance to other products.  The lawsuit also alleges that the 310-foot and 240-foot application buffer zones in enumerated “listed species” areas effectively prohibit farming on hundreds of thousands of tillable acres.  EPA has yet to file a response.  For more on EPA’s dicamba registration approvals, see ALWR—week ending October 30, 2020, “EPA Approves Three Dicamba Products’ Registrations Until December 20, 2025.”

Conservation Programs: USDA Updates Conservation Practice Standards
On November 10, 2020, the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) announced updates to its National Conservation Practice Standards, in accordance with review of the standards as required by the 2018 Farm Bill.  The standards support USDA’s Agriculture Innovation Agenda, which aims to cut U.S. agricultural environmental impacts in half by 2050.  The 2020 revisions include updates to 58 of 169 enumerated Conservation Practices.

From the National Agricultural Law Experts:
Agricultural Economic Insights, LLC, Escaping 1980 (Podcast) Chapter 1: Is Farm History Repeating Itself? (Nov. 3, 2020) and Escaping 1980 (Podcast) Chapter 2: The Boom (Nov. 11, 2020).
Tiffany Lashmet, EPA Approves Dicamba Pesticides Through 2025; Additional Restrictions Imposed (Nov. 9, 2020).
Sarah Everhart, New Resource to Help Water Quality Trading Partners (Nov. 10, 2020).
Brigit Rollins, The Deal With Dicamba: Lawsuit Challenges Registration, EPA Changes FIFRA Policy (Nov.12, 2020).
Roger A. McEowen, Is it a Farm Lease Or Not? – And Why it Might Matter (Nov. 12, 2020).

Penn State Research & News:
Air Quality Data During COVID-19 May Help Improve Models, Guide Interventions (Nov. 11, 2020).
Virtual Reality Forests Could Help Understanding of Climate Change (Nov. 11, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:
Wolf Administration Highlights Ag Apprenticeships Providing Hands-On, Paid Training For Jobs In Demand Among Pennsylvania Employers (Nov. 9, 2020).
Wolf Administration Tours Veteran-Owned Farms Supported By State’s $10 Million Fresh Food Financing Initiative (Nov. 9, 2020).
Secretary Of Agriculture: Pennsylvania Hunters Can Address Local Food Insecurity By Donating Deer (Nov. 10, 2020).
Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, November 2 – November 8 (Nov. 10, 2020).
Secretary Of Agriculture Encourages Pennsylvanians To Support PA Agriculture At Weekend Fall Food Fest At Farm Show (Nov. 12, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
USDA Announces OneUSDA Internship Program for Summer 2021 (Nov. 9, 2020).
USDA, EPA Welcome Two New Members as U.S. Food Loss and Waste 2030 Champions (Nov. 12, 2020).
USDA Announces Scholars Programs for Students at Historically Black and Tribal Land-Grant Colleges and Universities (Nov. 12, 2020).
Trump Administration Invests $11.3 Million in High-Speed Broadband in Rural Alaska (Nov. 12, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:
APHIS Begins Eradicating Asian Longhorned Beetle Infestation in Charleston County, South Carolina, APHIS (Nov. 9, 2020).
Availability of Petition for Deregulation of Corn Developed Using Genetic Engineering, APHIS (Nov. 10, 2020).
2020 Farm Service Agency County Committee Elections Underway, FSA (Nov. 9, 2020).
Apply Now for USDA’s Coronavirus Food Assistance Program 2, FSA (Nov. 12, 2020).
USDA to Open Signup for the Conservation Reserve Program and CRP Grasslands in Early 2021, FSA (Nov. 12, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 46—Nov. 14, 2020):

Department of Agriculture
50 Pa.B. 6407 Notice: “Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List.”

Department of Environmental Protection
50 Pa.B. 6468 Notice: “Draft Stream Evaluation Reports; Available for Public Comment.”

Pennsylvania Legislature
No relevant actions Nov. 9–13, 2020.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 9–13, 2020):

Agriculture Department
85 FR 71303 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: U.S. Origin Health Certificate” (Nov. 9, 2020).

Agricultural Marketing Service
85 FR 71274 Proposed Rule—Comment Period: “Lamb Promotion, Research, and Information Order; Correction” (Nov. 9, 2020).

Animal and Plant Health Inspection Service
85 FR 71875 Notice: “Pioneer Hi-Bred International, Inc.; Availability of a Request and Plant Pest Risk Similarity Assessment for an Extension of Determination of Nonregulated Status for Maize for Use in the Seed Production Technology for Africa Process” (Nov. 12, 2020).

Environmental Protection Agency
85 FR 72571 Rule—Comments Accepted: “Mefenoxam; Pesticide Tolerances”

Farm Credit Administration
85 FR 71893 Notice: “Sunshine Act Meeting; Farm Credit Administration Board [November 19, 2020]” (Nov. 12, 2020).

Farm Service Agency
85 FR 71303 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” (Nov. 9, 2020).

Federal Emergency Management Agency
85 FR 71929 Notice: “Final Flood Hazard Determinations [Fla., Minn., Mo., Ohio]” (Nov. 12, 2020).
85 FR 71930 Notice: “Changes in Flood Hazard Determinations [Fla.]” (Nov. 12, 2020).
85 FR 71931 Notice: “Changes in Flood Hazard Determinations [Colo., Conn., Fla., Mont., N.H., N.C., Okla., Tenn., Tex.]” (Nov. 12, 2020).
85 FR 72681 Notice: “North Dakota; Major Disaster and Related Determinations” (Nov. 13, 21020).
85 FR 72676 Notice: “Alabama; Amendment No. 1 to Notice of an Emergency Declaration” (Nov. 13, 21020).
85 FR 72680 Notice: “Alabama; Amendment No. 2 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72680 Notice: “Alabama; Amendment No. 3 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72678 Notice: “Alabama; Amendment No. 4 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72676 Notice: “California; Amendment No. 7 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72680 Notice: “California; Amendment No. 8 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72677 Notice: “California; Amendment No. 9 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72676 Notice: “Delaware; Major Disaster and Related Determinations” (Nov. 13, 21020).
85 FR 72678 Notice: “Florida; Amendment No. 2 to Notice of an Emergency Declaration” (Nov. 13, 21020).
85 FR 72679 Notice: “Florida; Amendment No. 3 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72675 Notice: “Florida; Amendment No. 4 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72674 Notice: “Louisiana; Amendment No. 1 to Notice of an Emergency Declaration” (Nov. 13, 21020).
85 FR 72681 Notice: “Louisiana; Amendment No. 12 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72675 Notice: “Mississippi; Amendment No. 1 to Notice of an Emergency Declaration” (Nov. 13, 21020).
85 FR 72677 Notice: “North Carolina; Amendment No. 2 to Notice of an Emergency Declaration” (Nov. 13, 21020).
85 FR 72678 Notice: “North Carolina; Amendment No. 2 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72677 Notice: “North Carolina; Amendment No. 3 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72679 Notice: “North Carolina; Amendment No. 13 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).
85 FR 72675 Notice: “Oregon; Amendment No. 2 to Notice of a Major Disaster Declaration” (Nov. 13, 21020).

Fish and Wildlife Service
85 FR 71859 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Sickle Darter” (Nov. 12, 2020).

Food and Drug Administration
85 FR 71294 Proposed Rule—Comments accepted: “Request for Information and Comments on Consumption of Certain Uncommon Produce Commodities in the United States; Extension of Comment Period” (Nov. 9, 2020).
85 FR 71659 Notice—Comment Period: “Special Considerations, Incentives, and Programs To Support the Approval of New Animal Drugs for Minor Uses and for Minor Species; Draft Guidance for Industry; Availability; Extension of Comment Period” (Nov. 10, 2020).
85 FR 71920 Notice—Comment Period: “Voluntary Disclosure of Sesame as an Allergen: Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request” (Nov. 12, 2020).

Forest Service
85 FR 71876 Notice—Comment Period: “Information Collection: Collaborative Forest Landscape Restoration Program” (Nov. 12, 2020).

Small Business Administration
85 FR 71708 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of New York [Tropical Storm Isaias]” (Nov. 10, 2020).
85 FR 72746 Notice: “Administrative Declaration of a Disaster for the State of New York” (Nov. 13, 2020).
85 FR 72746 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Louisiana” (Nov. 13, 2020).

Susquehanna River Basin Commission
85 FR 71985 Notice: “Grandfathering (GF) Registration Notice” (Nov. 12, 2020).
85 FR 71986 Notice: “Commission Meeting [December 11, 2020]” (Nov. 12, 2020).

U.S. House Agriculture Committee
H.R.8746 “To establish a Restore Employment in Natural and Environmental Work Conservation Corps in the Department of the Interior and the Department of Agriculture, and for other purposes.” Referred to the Committees on Natural Resources, Agriculture, Energy and Commerce, and Transportation and Infrastructure (Nov. 12, 2020).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:
No new actions Nov. 9–13, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Nov. 2–6, 2020:
Dicamba Gets Green Light for Extended Use, High Plains Journal
Soy, Cotton Growers Sue EPA Over Dicamba Restrictions, Feedstuffs
EU Set to Impose Tariffs on $4 Billion U.S. Goods Next Week, Reuters
Culling of 330,000 Chickens Begins in Japan After Avian Flu Confirmed, Morning Ag Clips
Brexit and COVID-19 Raise Threat of Food Fraud: ‘The Food Industry is Facing Unprecedented Challenges and an Uncertain Future’, Food Navigator
Bayer Makes ‘Substantial Progress’ in Roundup Cancer Lawsuits, Mediator Says, Reuters/Yahoo Finance
NMPF Asks for FDA Action on Proper Milk Labeling, Feedstuffs

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

The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels.  Subscribe at pennstateaglaw.com.