September 19, 2022

Agricultural Law Weekly Review—Week Ending Sept. 9, 2022

Pesticides/Herbicides: Bayer Wins Fifth Consecutive State Court Roundup Trial 🌾
On September 1, 2022, after a trial which began on August 3, a St. Louis County, Missouri state court jury returned a defense verdict after only a few hours of deliberation in favor of herbicide manufacturer Monsanto (Bayer’s predecessor in interest) finding that exposure to the glyphosate-containing herbicide Roundup did not cause the three separate plaintiffs’ non-Hodgkins’ lymphoma (NHL) in the consolidated case of Alesi, et al. v. Monsanto, 19SL-CC03617.  This result totals five consecutive state court defense verdicts in cases taken to trial—two in Missouri, two in California, and one in Oregon—and follows the U.S. Supreme Court’s June 2022 refusal to hear Bayer’s appeals from two of the three multi-million dollar compensatory and punitive damages verdicts previously returned against Bayer by California juries, two federal and one state, finding that the plaintiffs’ NHL was caused by glyphosate exposure. For information and links to all cases and outcomes, see the Penn State Center for Agricultural and Shale Law’s Glyphosate Issue Tracker.  On September 2, 2022, Bayer last updated its on-line “Five Point Plan to Close the Roundup Litigation,” and stated: (1) “We have already resolved ~108,000 of the ~141,000 current cases. We will only consider resolving outstanding current cases and claims if it is strategically advantageous to do so;” and (2) “[W]e will replace our glyphosate products in the U.S. residential L[awn] & G[arden] market with new formulations that have alternative active ingredients beginning in 2023. . . The vast majority of claims have come from residential L[awn] & G[arden] users, so this action largely eliminates the primary source of future claims. This action does not impact any of our glyphosate-based agriculture or professional products.”  Video of the entire trial was livestreamed and is available for on-demand viewing via paid subscription at Courtroom View Network.

COVID-19:  Report Faults Coronavirus Food Assistance Program Administration
On September 8, 2022, the U.S. Government Accountability Office (GAO) published a report analyzing claims submitted and payments made under the U.S. Department of Agriculture’s (USDA) since discontinued 2020–21 Coronavirus Food Assistance Program (CFAP).  The program resulted in payment of $31 billion in COVID-related market disruption compensation payments to approximately 950,000 producers of various eligible commodities.  The report evaluated payments to a sample of 90 producers who received the largest CFAP 1 and CFAP 2 payments for beef, other livestock (e.g., hogs and sheep), and “other commodities.”  Producer payments already under review by USDA at the time of selection were excluded.  The GAO found that 48 provided insufficient support for their payments, such as providing sales receipts totaling amounts less than the claimed amounts and “difficult to verify” producer-generated records, and 9 producers failed to establish ownership of their commodities.  Additionally, GAO states it found indicators of intentionally falsified claims. The report included four recommendations for the FSA, including directing regional officials conducting CFAP payment “spot checks” to use third-party generated support records and documenting why producer-generated records were accepted.  According to the report, the GAO has referred the 48 identified producer to the USDA’s Office of Inspector General for further investigation.

National Agricultural Policy: USDA Seeks Input on Revised Animal Indemnity Valuation
On September 7, 2022, the U.S. Department of Agriculture (USDA)’s Animal and Plant Health Inspection Service (APHIS) published in the Federal Register an advance notice of proposed rulemaking (ANPR) and request for comments titled “Animal and Plant Health Inspection Service Indemnity Regulations,” (87 FR 54633), soliciting comment on a new structure and approach to indemnity payments for animals destroyed pursuant to authority contained in The Animal Health Protection Act (7 U.S.C. 8301-8317).  According to the accompanying agency announcement, the ANPR attempts to standardize and simplify the current process for valuing animals for indemnification, which largely relies on in-person appraisal and, according to APHIS, “var[ies] from species to species and, in some cases, from disease to disease within the same species.”  The ANPR outlines two structural changes: 1) an indemnity value table, which would be developed by APHIS and the Farm Service Agency’s Livestock Indemnity Program and be updated and published annually; and 2) a standardized approach utilizing fair market values for appraisal when indemnity values cannot be determined by the value table or if a producer appeals a valuation.  Additionally, the ANPR would consolidate all APHIS indemnity regulations into a single section in the Code of Federal Regulations.  The ANPR comment period closes on November 7, 2022.

Pesticides/Herbicides: Report Examines Worker Protection Standard Enforcement
On September 7, 2022, the Center for Agriculture and Food Systems (CAFS) at Vermont Law and Graduate School, in partnership with Farmworker Justice, announced the release of a report titled, “Exposed and At Risk: Opportunities to Strengthen Enforcement of Pesticide Regulations for Farmworker Safety.”  The report compiles information and data, primarily from California, Washington, Illinois, and Florida, and documents low levels of inspections, enforcement and fines, as well as the jurisdictional patchwork on enforcement that results in the U.S. Environmental Protection Agency (EPA) promulgating the Worker Protection Standard (WPS) while the state agencies enforcing it are not required to adhere to EPA’s enforcement guidance.  The report lists seventeen recommendations including extending regulatory jurisdiction to the Occupational Safety and Health Administration (OSHA), amending FIFRA to include a private right of action, and promulgation of mandatory standards for inspections and violations.

National Agricultural Policy: USDA Announces $1 Billion in ReConnect Funding for Rural Internet Expansion
On September 9, 2022, the U.S. Department of Agriculture (USDA) announced the availability of more than $1 billion in loans and grants for rural high-speed internet expansion through the ReConnect Program. The application period opened on September 6, 2022, and closes on November 2, 2022.  On August 4, 2022, USDA’s Rural Utilities Service published notice in the Federal Register announcing the 2022 ReConnect Program funding opportunity (87 FR 47690).  Eligible applicants for the ReConnect Program are for- and nonprofit organizations in rural areas, including cooperatives, corporations/LLCs, state and local governments, and tribal governments and organizations.

 

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CENTER PROGRAMS & RESOURCES

Agricultural Law Podcasts:

222. Ag Funding in Inflation Reduction Act; Smithfield Settles Antitrust Case; and Dairy Farmers of America Class Action Filed (Sept. 1, 2022).

221. DOJ Files Consent Decrees in Poultry Worker and Contract Grower Compensation Case; Koch Settles Contract Grower Class Action; and USDA Expands State Meat and Poultry Inspection Programs (Aug. 11, 2022).

220. PA Releases HPAI Control Zones; PA Submits Watershed Implementation Plan; and Poultry Industry Wage Suppression Lawsuit Proceeds to Trial (Aug. 1, 2022).

Events:

Understanding Agricultural Law. A free monthly webinar series via Zoom for agricultural and rural business advisors of all kinds. One hour of substantive CLE credit available for Pennsylvania licensed attorneys at no charge.  Recordings and materials from prior webinars in this series, more information and registration all are available here. Next in the series:

  • Sept. 23, 2022, noon ET: Understanding the Basics of Livestock Market Regulation
  • Oct. 21, 2022, noon ET: Understanding the Basics of Crop Insurance

Dairy Quarterly Legal Webinar. A free quarterly webinar series via Zoom covering legal and regulatory developments in the U.S. dairy industry from the preceding quarter, plus an in-depth look at a focus topic. One hour of substantive CLE credit available for Pennsylvania licensed attorneys at no charge. Recordings and materials from prior webinars in this series, more information and registration available here. Next in series:

Legal Planning for Specialty Crop Producers. A free periodic webinar series via Zoom. Register at any time to watch recordings of past, and attend all future, webinars, as well as access the webinar materials here. Next in series:

Agricultural Law & Policy Resources of Interest:

Ohio St. Univ. Ext. Farm Off. Blog, When Can A County Or Township Prohibit Renewable Energy Facilities from Locating in the Community?, Peggy Kirk Hall (Sept. 9, 2022).

Ohio St. Univ. Ext. Farm Off. Blog, When Someone Harms Your Crops, Ohio Laws Provide a Remedy, Peggy Kirk Hall (Sept. 7, 2022).

Nat’l Agric. Law Ctr., Ag & the IRA: Debt Relief and Financial Assistance Provisions in the Inflation Reduction Act, Micah Brown (Sept. 6, 2022).

Tex. A&M Agric. Law Blog, Court Addresses Adverse Possession in Dispute Between Neighbors, Tiffany Dowell Lashmet (Sept. 6, 2022).

PA Farm Link, Farm Succession from a Financial Perspective, John Black (Sept. 6, 2022).

Keystone Development Center (KDC)’s 2022 Co-op Academy, various dates from Oct. 2022 – Feb. 2023. Register. According to KDC, “Join a cohort of new cooperators from across the Mid-Atlantic in this virtual 4-month learning series. Cooperative groups will be guided through the phases of cooperative development—start to finish . . . . This program is recommended for groups looking to start a cooperative or convert a business to a cooperative.”

2022 Federal Milk Marketing Order Forum, Oct. 14–16, 2022 in Kansas City, Missouri. Organized by American Farm Bureau Federation.

Penn State News, Research & Resources:

PSU Ext., Dairy and Crop Insurance: Can I Insure Rainfall? (Sept. 8, 2022).

PSU Ext., Understanding the LDP Program for Lamb and Wool Producers (Sept. 8, 2022).

COVID-19 drugs persist in wastewater, may pose risk to aquatic organisms (Sept. 8, 2022).

Adding fungal enzymes to dairy cow rations boosts milk output and quality (Sept. 7, 2022).

PSU Ext., 2022 Pennsylvania Vegetable Disease Update for September 7 (Sept. 7, 2022).

PSU Ext., PestWatch Report: September 7, 2022 (Sept. 7, 2022).

PSU Ext., 2022 Crop Conditions Tour Reflects Dry Growing Season (Sept. 7, 2022).

PSU Ext., Fall Weed Control in Forages (Sept. 7, 2022).

Local Food Boon Spurred by Pandemic May be Short-Lived, New Research Reports (Sept. 6, 2022).

Top #AgLaw HotLinks Sept. 3–9, 2022:

CSPI Offers Suggestions for FDA on Data Collection Regarding On-Farm Antimicrobial Use, Food Safety News

Roundup Settlement Rejected by Bayer, Brownfield

USDA Report Provides H-2A Usage Snapshot, Brownfield

Trends in USDA Foods Ordered for Child Nutrition Programs Before and After Updated Nutrition Standards, USDA Economic Research

Over 3 Million Birds in Ohio Involved in HPAI Outbreaks, Meat+Poultry

Agriculture-Related Legislative Hearings & Reports:

·       Sept. 14, 2022, 10:00 AM ET, House Agriculture Committee Hearing, Soil Health Practices and Programs that Support Regenerative Agriculture.

·       Sept. 14, 2022, 10:00 AM ET, House Committee on Small Business, Right to Repair and What it Means for Entrepreneurs.

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Biden-Harris Administration Now Accepting Applications for $1 Billion Rural High-Speed Internet Program (Sept. 9, 2022).

Statement from Agriculture Secretary Tom Vilsack on 2022 Public Charge Final Rule (Sept. 8, 2022).

USDA Announces $400 Million in Funding Available to Create USDA Regional Food Business Centers (Sept. 7, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Awards $2 Million to UC Berkeley for Research to Advance Water Management and Security (Sept. 9, 2022).

U.S. Proposes Settlement to Resolve Clean Water Act Violation Claims by CLF and EPA Regarding New Hampshire Fish Hatchery (Sept. 8, 2022).

EPA Selects Recipients of Nearly $12 Million in Pollution Prevention Grants Funded by the Bipartisan Infrastructure Law (Sept. 8, 2022).

EPA Selects the Kentucky Energy and Environment Cabinet, Department for Environmental Protection as a Recipient of a Pollution Prevention Grant Funded by the Bipartisan Infrastructure Law (Sept. 8, 2022).

EPA Adds the Ochoa Fertilizer Co. Site in Guánica, Puerto Rico to the Superfund National Priorities List (Sept. 8, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Takes Steps to Support Food Sovereignty with the Cheyenne and Arapaho Tribes (Sept. 8, 2022).

USDA Announces Its Local Food Purchase Assistance Cooperative Agreement with Minnesota (Sept. 7, 2022).

USDA Announces $400 Million in Funding Available to Create USDA Regional Food Business Centers (Sept. 7, 2022).

USDA Takes Steps to Support Food Sovereignty with the Tuolumne Band of Me-Wuk Indians (Sept. 6, 2022).

Animal and Plant Health Inspection Service (APHIS)

USDA Announces Updated Dashboard with Data on SARS-COV-2 Variants Detected in Animals (Sept. 7, 2022).

APHIS Issues First Regulatory Status Review Response: Norfolk Plant Sciences’ Purple Tomato (Sept. 6, 2022).

USDA Publishes Advance Notice of Proposed Rulemaking on New Framework for Livestock Disease Indemnity Valuation (Sept. 6, 2022).

Food Safety and Inspection Service (FSIS)

Adults 65 and Older: An At-Risk Population, but Why? (Sept. 9, 2022).

Foreign Agricultural Service (FAS)

Export Sales to Taiwan (Sept. 9, 2022).

Export Sales to Mexico (Sept. 7, 2022).

USDA Accepting Applications for Spain and Portugal Trade Mission (Sept. 6, 2022).

Forest Service (FS)

USDA Forest Service Chief Randy Moore’s statement announcing actions the Forest Service will take to resume its prescribed fire program safely and effectively after completion of its 90-day national review (Sept. 8, 2022).

National Resource Conservation Service (NRCS)

USDA Opens People’s Garden Initiative to Gardens Nationwide (Sept. 9, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Sept. 6–9, 2022):            

Agriculture Department   

87 FR 55388 Notice: “Fiscal Year 2022 Raw Cane Sugar Tariff-Rate Quota Extension of the Entry Period”(Sept. 9, 2022).

87 FR 54609 Final Rule, Correction: “Delegations of Authority; Correction” (Sept. 7, 2022).

87 FR 54449 Notice: “Public availability FY 2020 Service Contract Inventories“ (Sept. 6, 2022).

Agricultural Marketing Service

87 FR 55319 Proposed Rule: “Poultry Growing Tournament Systems: Fairness and Related Concerns” (Sept. 9, 2022).

Environmental Protection Agency

87 FR 54688 Notice—Comment Period: “Proposed Reissuance of NPDES General Permit for Federal Aquaculture Facilities and Aquaculture Facilities Located in Indian Country in Washington” (Sept. 7, 2022)

87 FR 54687 Notice: “Proposed Information Collection Request; Comment Request; Recordkeeping Requirements for Producers of Pesticides and Pesticide Devices Under 40 CFR Part 169” (Sept. 7, 2022).

87 FR 54623 Final Rule: “Thymol; Exemption From the Requirement of a Tolerance” (Sept. 7, 2022).

87 FR 54620 Final Rule: “Oxirane, 2-(phenoxymethyl)-, polymer with oxirane, monobutyl ether, block; Tolerance Exemption” (Sept. 7, 2022).

87 FR 54415 Proposed Rule: “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances” (Sept. 6, 2022).

Food Safety and Inspection Service

87 FR 54954 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Importation of Pork-Filled Pasta Products” (Sept. 8, 2022).

87 FR 54670 Notice—Comment Period: “Notice of Request To Renew an Approved Information Collection: Import Inspection Application and Application for the Return of Exported Products to the United States” (Sept. 7, 2022).

Forest Service

87 FR 55388 Notice of Meeting: “Coconino Resource Advisory Committee” (Sept. 9, 2022).

87 FR 55392 Notice of Meeting: “Eleven Point Resource Advisory Committee” (Sept. 9, 2022).

87 FR 55391 Notice of Meeting: “Greater Rocky Mountain Resource Advisory Committee” (Sept. 9, 2022).

87 FR 55389 Notice of Meeting: “Sabine-Angelina Resource Advisory Committee; Meeting” (Sept. 9, 2022).

87 FR 55390 Notice of Meeting: “Trinity County Resource Advisory Committee” (Sept. 9, 2022).

87 FR 55389 Notice of Meeting: “Wenatchee-Okanogan Resource Advisory Committee” (Sept. 9, 2022).

87 FR 54451 Notice: “Proposed New Fee Sites” (Sept. 6, 2022).

Geological Survey

87 FR 55033 Notice—Comment Period: “Agency Information Collection Activities; Consolidated Consumers’ Report” (Sept. 8, 2022).

International Trade Administration

87 FR 55397 Notice: “Lemon Juice from Argentina: Continuation of Suspension of Antidumping Duty Investigation”

87 FR 54460 Notice: “Ripe Olives From Spain: Preliminary Results of Countervailing Duty Administrative Review; 2020” (Sept. 6, 2022).

Land Management Bureau

87 FR 55451 Notice—Request for Comment: “Agency Information Collection Activities; Information Required To Cross Private Land for Access to BLM Lands” (Sept. 9, 2022).

87 FR 55451 Public Land Order: “Public Land Order No. 7913; Withdrawal of Public Land for the Zortman-Landusky Mine Reclamation Site; Montana” (Sept. 9, 2022).

87 FR 54522 Notice: “Filing of Plats of Survey, Wyoming” (Sept. 6, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.4374 “Broadband Internet Connections for Rural America Act” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than Sept. 22, 2022. (Sept. 9, 2022).

H.Res.1329 “Recognizing the need for greater access to rural and agricultural media programming.” Referred to the House Committee on Agriculture. (Sept. 2, 2022).

U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

No new press releases this week.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 34—Aug. 20, 2022): 

Department of Environmental Protection 

52 Pa.B. 5661 Notice: “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.”

52 Pa.B. 5721 Notice: “Availability of Rebates through the Pennsylvania Alternative Fuels Incentive Grant Program.”

52 Pa.B. 5722 Notice: “Household Hazardous Waste Education Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988.”

52 Pa.B. 5722 Notice: “Municipal Waste Base General Permit WMGM042 Renewal.”

52 Pa.B. 5723 Notice: “Sewage Advisory Committee; Meeting Rescheduled and Change in Location.”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

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