Agricultural Law Weekly Review—week ending November 27, 2020

Food Labeling: International Dairy Federation Publishes Dairy Terminology Standards Update
On November 18, 2020, the International Dairy Federation (IDF) announced the publication of an update to its General Standard for the Use of Dairy Terms (GSUDT), titled IDF Bulletin 507/2020: The Codex General Standard for the Use of Dairy Terms—Its nature, intent, and implications.  IDF specifies in the bulletin that milk “refers to normal mammary secretion of milking animals obtained from one or more milkings” and that “dairy terms are reserved to milk and milk products conforming to this definition.”  Along with the bulletin, which is intended as a guide for legislators and those working in food law, IDF also published a position paper outlining the importance of proper dairy product naming and examples of misleading terminology.

Water Quality: PA CAFO Permit Annual Report and Fee Deadline Extended
On November 23, 2020, the Pennsylvania Department of Environmental Protection (DEP) issued a memo: (a) restating the recently-announced requirement for all Concentrated Animal Feeding Operations (CAFOs) currently permitted under NPDES General Permit for Operation of CAFOs (PAG-12) to file a Notice of Intent (NOI) for continued operation under the new amended PAG-12 by January 1, 2021, (see ALWR—week ending October 30, 2020, “Pennsylvania Publishes New NPDES Permit Requirements for CAFOs Effective January 1, 2021”); and (b) extending the CAFO Annual Report and annual NOI installment fee deadlines from January 1, 2021 to February 15, 2021.

Biofuels: Petition Seeks to Enforce 2016 Renewable Fuel Standards Requirements
On November 23, 2020, a group of renewable fuel and agricultural trade associations filed with the U.S. Circuit Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) a motion to enforce that Court’s 2017 mandate vacating and remanding a challenged U.S. Environmental Protection Agency (EPA) waiver reducing by 500 million gallons the renewable fuel standard (RFS) volume requirements for 2016. Americans for Clean Energy v. EPA No. 16-1005.  EPA has never taken action on the matter since the 2017 decision.  The moving parties are asking the court to order EPA to correct its 500 million gallon RFS volume reduction by issuing a “curative obligation” within six months of a court order, with no extensions and follow-up report to the Court.

Conservation Programs: U.S. Forest Service Publishes NEPA Final Rule
On November 19, 2020, the U.S. Forest Service (USFS) published in the Federal Register a final rule titled, “National Environmental Policy Act (NEPA) Compliance.” 85 FR 73620.  Among several changes, the final rule provides for a “Determination of NEPA Adequacy,” specifying that an existing NEPA analysis may be used for a proposed action so long as the new action is “substantially the same” as the previously analyzed action and its resulting environmental effects are “substantially similar.”  Additionally, the rule adds six new categorical exclusions (CE) across multiple classifications, which are exempt from further environmental analysis as long as the action remains within the described size and scope: recreation special uses, administrative sites, recreation sites, restoration and resilience projects, and specified road management projects.  The final rule is effective immediately.

Animal Health: USDA Updates Foot-and-Mouth Disease Response Plan
On November 12, 2020, U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) updated its strategy for addressing Foot-and-Mouth Disease (FMD) in a document titled, “Foot-and-Mouth Disease Response Plan: The Red Book.”  The plan outlines the five potential response strategies APHIS might utilize in response to a FMD outbreak.  The last FMD outbreak in the United States occurred in 1929 and bordering Canada and Mexico have not experienced FMD outbreaks since 1952 and 1954, respectively.  The United Kingdom suffered between $12-$18 billion in economic impact as the result of a 2001 outbreak. FMD is present in approximately two-thirds of the world and endemic in part of Africa, Asia, Eastern Europe, the Middle East and South America.

Agricultural Law/Policy Resources of Interest

Agricultural Economic Insights, LLC, Escaping 1980 (Podcast) Episode 4: Bottoming Out (Nov. 24, 2020).

Roger A. McEowen, The Use of Deferred Payment Contracts – Specifics Matter (Nov. 24, 2020).

Micah Brown, Lending for Livestock, Credit for Crops: Filing a Financing Statement (Nov. 24, 2020).

Penn State Research & News:

Certain CBD Oils No Better than Pure CBD at Inhibiting Certain Cancer Cell Lines (Nov. 17, 2020).

Penn State Researcher to Explore How Vitamin D Affects COVID-19 (Nov. 23, 2020).

Penn State Food Scientist Gets Grant to Study Novel Metal Food Can Coatings (Nov. 24, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Wolf Administration: CARES Act-Funded Dairy Program Provides $7.6 Million In Direct Relief To 1,550 Pennsylvania Dairy Farmers (Nov. 24, 2020).

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, November 16 – November 22 (Nov. 25, 2020).

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

USDA Launches AskUSDA, Improves and Streamlines Customer Experience (Nov. 18, 2020).

USDA Shares Easy At-Home Advice for Handling Food Safely this Thanksgiving (Nov. 23, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 48—Nov. 28, 2020):

Game Commission

50 Pa.B. 6780 Proposed Rulemaking: “Wildlife; Chronic Wasting Disease.”

Milk Marketing Board

50 Pa.B. 6842 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 1; Teleconference [February 3, 2021].”

50 Pa.B. 6842 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 2; Teleconference [February 3, 2021].”

50 Pa.B. 6843 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 4; Teleconference [February 3, 2021].”

State Conservation Commission

50 Pa.B. 6846 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

Pennsylvania Legislature

Signed by the Governor

SB 835 “An Act providing for funding of high-speed broadband service infrastructure deployment in unserved areas of this Commonwealth and for powers and duties of the Commonwealth Financing Authority; establishing the Unserved High-speed Broadband Funding Program Account; making an appropriation; and making a related repeal.” Act No. 132 (Nov. 25, 2020).

 

Presented to the Governor

HB 1737 “An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in particular rights and immunities, providing for economic development agency, fiduciary and lender environmental liability protection, for agritourism activity protection and for COVID-19-related liability; and making a related repeal.” (Nov. 20, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 23–27, 2020):

Agriculture Department

85 FR 74973 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Quality Samples Program]” (Nov. 24, 2020).

85 FR 76004 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: National Veterinary Service Laboratories; Bovine Spongiform Encephalopathy Surveillance Program]” (Nov. 27, 2020).

Agricultural Marketing Service

85 FR 74664 Notice—Comment Period: “United States Standards for Lentils” (Nov. 23, 2020).

85 FR 74972 Notice—Comment Period: “Notice of Request for a New Collection To Populate an Agritourism Directory” (Nov. 24, 2020).

85 FR 76004 Notice—Comment Period: “United States Standards for Beans” (Nov. 27, 2020).

85 FR 76004 Notice—Comment Period: “United States Standards for Split Peas” (Nov. 27, 2020).

Animal and Plant Health Inspection Service

85 FR 74665 Notice—Comment Period: “Standardizing Phytosanitary Treatment Regulations: Approval of Cold Treatment and Irradiation Facilities; Cold Treatment Schedules; and Establishment of Fumigation and Cold Treatment Compliance Agreements” (Nov. 23, 2020).

85 FR 76005 Notice—Comment Period: “Importation of Poultry Meat and Other Poultry Products From Sinaloa and Sonora, Mexico; Poultry and Pork Transiting the United States” (Nov. 27, 2020).

85 FR 76006 Notice: “International Sanitary and Phytosanitary Standard-Setting Activities” (Nov. 27, 2020).

Commodity Credit Corporation

85 FR 74973 Notice—Comment Period: “Notice of Request for a Renewal of a Currently Approved Information Collection” (Nov. 24, 2020).

85 FR 76035 Notice—Comment Period: “Agency Information Collection Activities: Copies of Crop and Market Information Reports” (Nov. 27, 2020).

Environmental Protection Agency

85 FR 76071 Notice—Comment Period: “Glyphosate Registration Review; Draft Endangered Species Act Biological Evaluations; Notice of Availability” (Nov. 27, 2020).

Federal Communications Commission

85 FR 75770 Final Rule: “Establishing a 5G Fund for Rural America” (Nov. 25, 2020).

Federal Emergency Management Agency

85 FR 75350 Notice: “Changes in Flood Hazard Determinations [Ariz., Ark., Colo., Fla., Ga., Me., Okla., Pa., S.D., Tex., Utah]” (Nov. 25, 2020).

85 FR 75359 Notice: “Changes in Flood Hazard Determinations [Ariz., Cal., Haw., Ind., Kan., Mich., Mo., Neb., Nev., N.J., Ohio, Tex.]” (Nov. 25, 2020).

85 FR 75355 Notice: “Final Flood Hazard Determinations [Cal., Iowa, Ky., Mich., Minn., Miss., Or., S.C., Utah., Va.]” (Nov. 25, 2020).

85 FR 75348 Notice: “Final Flood Hazard Determinations [Iowa, Mo., Okla.]” (Nov. 25, 2020).

85 FR 75354 Notice—Comment Period: “Proposed Flood Hazard Determinations [Iowa, Kan., Minn.]” (Nov. 25, 2020).

Federal Motor Carrier Safety Administration

85 FR 74909 Interim Final Rule—Comment Period: “Hours of Service of Drivers; Definition of Agricultural Commodity” (Nov. 24, 2020).

Food and Drug Administration

85 FR 74734 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Consultation Procedures: Foods Derived From New Plant Varieties” (Nov. 23, 2020).

85 FR 74736 Notice: “Elemental Impurities in Animal Drug Products-Questions and Answers; Guidance for Industry; Availability” (Nov. 23, 2020).

85 FR 75330 Notice—Comment Period: “Recordkeeping and Reporting Requirements for Human Food and Cosmetics Manufactured From, Processed With, or Otherwise Containing Material From Cattle” (Nov. 25, 2020).

85 FR 76085 Notice: “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products; Guidance for Industry; Availability” (Nov. 27, 2020).

85 FR 75971 Proposed Rule, notification of petition: “Ag Chem Resources, LLC; Filing of Food Additive Petition (Animal Use)” (Nov. 27, 2020).

Food and Nutrition Service

85 FR 74847 Final Rule: “Child Nutrition Programs: Rescission of Milk, Whole Grains, and Sodium Flexibilities: Notice of Vacatur” (Nov. 24, 2020).

85 FR 75241 Proposed Rule—Comment Period: “Restoration of Milk, Whole Grains, and Sodium Flexibilities” (Nov. 25, 2020).

Foreign Agricultural Service

85 FR 74974 Notice—Comment Period: “Notice of Request for Revision of Currently Approved Information Collections [Foreign Donation of Agricultural Commodities (section 416(b) and Food for Progress programs) and McGovern-Dole International Food for Education and Child Nutrition Program]” (Nov. 24, 2020).

85 FR 74975 Notice—Comment Period: “Notice To Request an Extension for a Currently Approved Information Collection [Pima Agricultural Cotton Trust Fund]” (Nov. 24, 2020).

Forest Service

85 FR 74796 Final Rule: “Subsistence Management Regulations for Public Lands in Alaska-2020-21 and 2021-22 Subsistence Taking of Wildlife Regulations” (Nov. 23, 2020).

Occupational Safety and Health Administration

85 FR 74765 Notice—Comment Period: “Grain Handling Facilities; Extension of the Office of Management and Budget’s (OMB) Approval of Information Collection (Paperwork) Requirements” (Nov. 23, 2020).

Rural Business-Cooperative Service

85 FR 75284 Notice: “Inviting Applications for the Rural Energy for America Program” (Nov. 25, 2020).

Small Business Administration

85 FR 74781 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Oregon [Amendment 1]” (Nov. 23, 2020).

85 FR 74782 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Oregon [Amendment 2]” (Nov. 23, 2020).

U.S. House Agriculture Committee

No new actions Nov. 23–27, 2020.

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

No new actions Nov. 23–27, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Nov. 23–27, 2020:
EPA Will Address Challenges to New Dicamba Label, Brownfield
PFB Applauds House Passage of Legal Protections for ‘Agritourism’, Morning Ag Clips
Domestic Pork Sales Boosted by Pandemic, Brownfield
Report: Ag Concentration Negatively Affecting Food Supply Chain, Feedstuffs
Smithfield Settles Suits Over North Carolina Farms, After Losing Appeal, Successful Farming
‘Justice’ Bill Would Transfer Up to 32 Million Acres to Black Farmers, Fern’s Ag Insider
USDA Updates FMD Response Plan, Feedstuffs
Farm & Biofuel Leaders Urge Courts to Hold EPA Accountable on Improper 2016 Waiver, RFA
USDA Launches AskUSDA, Improves and Streamlines Customer Experience, USDA
Climate Alliance Ensuring Ag Has a Seat at the Table, National Hog Farmer

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