Agricultural Law Weekly Review—week ending September 25, 2020

Industrial Hemp: Lawsuit Challenges DEA Hemp Interim Final Rule
On September 18, 2020, the Hemp Industries Association (HIA) and RE Botanicals filed, in the U.S. Court of Appeals for the District of Columbia Circuit, a petition for review (Hemp Industries Association, et al v. DEA, et al, Docket No. 20-01376) challenging the August 21, 2020 interim final rule (85 FR 51639) issued by the U.S. Drug Enforcement Administration (DEA).  Additionally, on September 18, 2018, the Hemp Industries Association submitted a comment on the DEA’s interim rule, see Docket: DEA-2020-0023.  The primary claim in both Hemp Industries Association actions is that DEA has no legal authority to regulate substances extracted from hemp plants which fell below the .3% THC threshold at harvesting,  regardless of whether extraction concentrates the THC at a higher percentage during processing.  The DEA contends that any such extracted substance remains under its jurisdiction.  For more on the interim final rule, see The Agricultural Law Weekly Review—week ending August 21, 2020, “DEA Issues Interim Final Rule on 2018 Farm Bill Hemp Provisions.”

Checkoff Programs: Serial Legal Challenges to Federal Beef Checkoff Program Continue 
On September 11, 2020, the Ranchers-Cattlemen Action Legal Fund (R-CALF) filed a complaint in the U.S. District Court for the District of Columbia against the U.S. Department of Agriculture (USDA) (Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. USDA, No. 1:20-cv-02552) seeking declaratory and injunctive relief seeking to invalidate the Memorandums of Understanding (MOU) between USDA and the multiple qualified state beef councils (QSBCs) which became the basis for a previous federal court ruling that the national beef check-off program constitutes government speech and does not violate the First Amendment.  The complaint states that because the MOUs effectively turn the state beef councils’ speech into government speech, they amount to a substantive amendment of the federal Beef Checkoff program and are thus subject to the notice-and-comment procedures required by the Administrative Procedure Act (APA) which was not followed.  For more history of the basis for this suit, see the Agricultural Law Weekly Review—April 2, 2020, “First Amendment Challenge to Beef Checkoff Program Dismissed.”

Food Safety: FDA Proposes Food Traceability Rule
On September 23, 2020, the Food and Drug Administration (FDA) published in the Federal Register a proposed rule titled “Requirements for Additional Traceability Records for Certain Foods” (85 FR 59984).  The proposed rule would require the manufacturers, processors, packers, and storage facilities of listed foods to keep certain traceability records documenting the following events: growing, receiving, creating, transformation, and shipping.  The rule contains several exemptions, including, among others, exemptions for small farms (“originators”), farms that sell direct to consumers, produce that is “rarely consumed raw: (RCR), and partial exemptions for food retail establishments.  The proposed rule also provides procedures for requesting an exemption on the grounds that such recordkeeping for a specific food is “not necessary to protect public health.”  The rule carries a 120-day comment period that ends January 21, 2021.

Pesticides: EPA Issues Draft Risk Assessment of Chlorpyrifos  
On September 25, 2020, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice titled “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Chlorpyrifos; Notice of Availability” (85 FR 60455).  The available draft risk assessments for chlorpyrifos include an ecological risk assessment, a human health risk assessment, and a drinking water assessment.  While the human health risk assessment found “no residential post-application risks of concern, it identified dietary risks due to food residues, with the highest risk estimate being for children.  Additionally, the ecological assessment identified that the level of risk quotients (RQs) for chlorpyrifos “exceed the level of concern (LOC) for all uses assessed for all taxa,” and that “[c]itrus and tart cherries are associated with some of the highest RQs.”  According to a corresponding announcement, EPA will open a 60-day public comment period in October in conjunction with its Proposed Interim Decision on chlorpyrifos.

Pesticides: Triazine Pesticide Interim Registration Review Decisions Available
On September 22, 2020, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice of interim registration review decisions with rationales for the triazine pesticides—atrazine, propazine, and simazine titled “Pesticide Registration Review; Interim Decisions for the Triazines; Notice of Availability” (85 FR 59525). There is no public comment period for these documents.

COVID-19:  Coronavirus Food Assistance Program (CFAP) Pennsylvania Data
Every Monday, USDA updates its publicly available data on aggregate Coronavirus Food Assistance Program (CFAP) payments.  Pennsylvania totals as of September 20, 2020, are below:

PENNSYLVANIA Payments Applications

Dairy $105,819,524 2,758

Livestock   $33,516,658 5,837

Non-Specialty Crops   $22,433,557 5,000

Specialty Crops     $8,378,276             165

Aqua Nursery Flora       $692,924               15

TOTALS         $170,840,939 13,775

From National Ag Law Authorities & Sources: 

Brigit Rollins, Murky Tides: EPA Sued for Chesapeake Bay Cleanup Violations (Sept. 17, 2020).

Roger A. McEowen, NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part Two (Sept. 20, 2020).

Tiffany Lashmet, Transferring Property Prior to Death: Pros, Cons, and Alternatives (Sept. 21, 2020).

Sarah Catherine Cooper, Putting All the Eggs in One Basket: FSIS Updates Egg Products Inspection Regulations (Sept. 22, 2020).

Penn State Research & News:

Forest Margins May be More Resilient to Climate Change than Previously Thought (Sept. 21, 2020).

Team Wins Grant to Develop Nitrogen Fertilizer Decision Tool for Organic Farmers (Sept. 24, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL 

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, September 14 – September 20 (Sept. 22, 2020).

Secretary Of Agriculture: Opportunity For Dairy Farmer COVID-19 Relief Closes September 30 (Sept. 23, 2020).

Secretary Of Agriculture Highlights ‘Earn While You Learn’ Agriculture Apprenticeship Opportunity (Sept. 23, 2020).

Agriculture Secretary Encourages Farmers To Reach Out As Industry Faces Growing Stress Throughout Pandemic (Sept. 24, 2020).

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

USDA Extends WIC COVID-19 Flexibilities for Duration of the COVID-19 Public Health Emergency (Sept. 21, 2020).

USDA Encourages Ag Producers, Residents to Prepare for Tropical Storm Beta (Sept. 21, 2020).

Trump Administration Invests $268 Million in Rural Water and Wastewater Infrastructure Improvements in 28 States (Sept. 22, 2020).

U.S. Department of Agriculture Releases Final Environmental Impact Statement for the Alaska Roadless Rule (Sept. 24, 2020).

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

USDA Seeks Public Comments on Recommendations for Pasture, Rangeland, Forage Rainfall Index Crop Insurance Program, RMA (Sept. 21, 2020).

USDA Announces Fiscal Year 2021 Sugar Loan Rates, Allotment and Marketing Allocations, FSA (Sept. 24, 2020).

USDA Reminds Farmers of September 30 Deadline to Update Safety-Net Program Crop Yields, FSA (Sept. 25, 2020).

Availability of Preliminary Plant Pest Risk Assessment and Draft Environmental Assessment for Petition to Deregulate Petunias Modified Using Genetic Engineering, APHIS (Sept. 25, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 39 Sept. 26, 2020):

Department of Agriculture

50 Pa.B. 5272 Notice: “Interstate/International Quarantine Order; Rabbit Hemorrhagic Disease.”

Pennsylvania Legislature

HB 2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Vetoed by Governor Veto No. 12 (Sept. 24, 2020).

House Legislation in the Senate

HB 1224 “An Act amending . . . the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in general powers of the board, providing for coordination with Department of Revenue; and, in prices of milk, further providing for cooperatives.” First consideration (Sept. 22, 2020).

Senate Legislation in the House

SB 881 “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 (Sept. 23, 2020).

SB 85 “An Act amending . . . the Dog Law, in licenses, tags and kennels, further providing for transfer of dog licenses or tags and other licensing requirements and for service dogs and dogs used by municipal or State Police departments.” Referred to Agriculture and Rural Affairs (Sept. 23, 2020).

Senate Legislation

SB 1330 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for milk sell by date and best by date labeling.” First consideration (Sept. 22, 2020).

SB 845 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for maximum gross weight of vehicles [increased maximum weight limit for electric-powered trucks].” Re-referred to Appropriations (Sept. 22, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Sept. 21–25, 2020): 

Agricultural Department

85 FR 59174 Correcting Amendment: “Coronavirus Food Assistance Program; Correction [eligibility of barley and livestock]” (Sept. 21, 2020).

85 FR 59380 Final Rule: “Coronavirus Food Assistance Program” (Sept. 22, 2020).

85 FR 59512 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: Voluntary Labeling Program for Biobased Products]” (Sept. 22, 2020).

85 FR 60126 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Transfer of Farm Records Between Counties]” (Sept. 24, 2020).

85 FR 60416 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: In-Home Food Safety Behaviors and Consumer Education: Web Survey]” (Sept. 25, 2020).

85 FR 60416 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Dairy Tariff-Rate Import Quota Licensing Program]” (Sept. 25, 2020).

Agricultural Marketing Service 

85 FR 59610 Proposed Rule—Comment Period: “Pecan Research, Promotion, and Information Order” (Sept. 22, 2020).

Animal and Plant Health Inspection Service

85 FR 59735 Notice: “Availability of a Final Environmental Assessment and Finding of No Significant Impact for Cogongrass Control Efforts in Alabama, Georgia, Mississippi, and South Carolina”  (Sept. 23, 2020).

Environmental Protection Agency

85 FR 59525 Notice: “Pesticide Registration Review; Interim Decisions for the Triazines; Notice of Availability” (Sept. 22, 2020).

85 FR 59527 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (August 2020)”

85 FR 59793 Notice: “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses” (Sept. 23, 2020).

85 FR 60156 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (August 2020)” (Sept. 24, 2020).

85 FR 60455 Notice: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Chlorpyrifos; Notice of Availability” (Sept. 25, 2020).

85 FR 60363 Final Rule: “Saflufenacil; Pesticide Tolerances” (Sept. 25, 2020).

Executive Office of the President

85 FR 60341 Presidential Document: “National Farm Safety and Health Week, 2020” (Sept. 25, 2020).

Farm Service Agency

85 FR 59388 Rule: “Strategic Economic and Community Development” (Sept. 22, 2020).

Fish and Wildlife Service 

85 FR 59732 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Removal of the Nashville Crayfish From the Federal List of Endangered and Threatened Wildlife” (Sept. 23, 2020).

Food and Drug Administration

85 FR 59804 Notice—Comment Period: “Draft Guidance for Cannabidiol; Draft Guidance for Industry; Availability” (Sept. 23, 2020).

85 FR 59804 Notice: “Cannabidiol and Other Cannabinoids: Sex and Gender Differences in Use and Responses; Public Meeting” (Sept. 23, 2020).

85 FR 59984 Proposed Rule—Comment Period: “Requirements for Additional Traceability Records for Certain Foods” (Sept. 23, 2020).

Food Safety and Inspection Service

85 FR 60126 Notice: “Availability of FSIS Import Guidance” (Sept. 24, 2020).

National Agricultural Statistics Service

85 FR 59513 Notice—Comment Period: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection” (Sept. 22, 2020).

Small Business Administration

85 FR 60279 Notice: “Presidential Declaration of a Major Disaster for the State of Alabama” (Sept. 24, 2020).

Susquehanna River Basin Commission

85 FR 60515 Notice: “Grandfathering (GF) Registration Notice” (Sept. 25, 2020).

85 FR 60516 Notice: “Projects Approved for Consumptive Uses of Water” (Sept. 25, 2020).

85 FR 60517 Notice: “Actions Taken at September 18, 2020, Meeting” (Sept. 25, 2020).

U.S. House Legislation:

H.R.8327 “To provide for the dissemination to farm and agricultural workers of information and training on best practices used to respond to the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (Sept. 21, 2020).

H.R.8373 “To provide for orderly and secure digital commodity exchange markets, and for other purposes.” Referred to the House Committee on Agriculture (Sept. 24, 2020).

H.R.8401 “To require the Secretary of the Interior and the Secretary of Agriculture to complete an interagency report on the effects of special recreation permits on environmental justice communities, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Sept. 25, 2020).

U.S. Senate Legislation: 

S.4633 “A bill to provide for assistance to rural water, wastewater, and waste disposal systems affected by the COVID-19 pandemic, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 21, 2020).

S.4647 “A bill to amend the Packers and Stockyards Act, 1921, to establish a cattle contract library, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 22, 2020).

S.4643 “A bill to require the Secretary of Agriculture to establish a forest incentives program to keep forests intact and sequester carbon on private forest land of the United States, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 22, 2020).

S.4704 “A bill to require reforms to programs of the Natural Resources Conservation Service, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 24, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

Sept. 21–25, 2020 Top #AgLaw links:

1. Pick-Your-Own Farms Let Guests Indulge a Pastoral Fantasy. Covid-19 Has Been a Harsh Dose of Reality, The Counter (Sept. 10, 2020).

2. Assessing the Damage from Dicamba, AGWEEK (Sept. 10, 2020).

3. USDA Lawyer: Hemp Growers Have ‘A Little Bit of Leeway’ on THC Testing, but Not Much, Hemp Industry Daily (Aug. 31, 2020).

4. USDA Announces Contracts for Round 3 of the Farmers to Families Food Box Program, USDA (Sept. 17, 2020).

5. Trump, Biden Outline Agricultural Priorities, Farm Bureau (Sept. 9, 2020).

6. Plant-Based Food Producers Sue State in Federal Court to Block Disclaimer Requirement, Food Safety News (Sept. 17, 2020).

7. Bob Evans Sues Chicken Processors on Price Fixing Claims, Meat+Poultry (Sept. 8, 2020).

8. Government Payments Prop up Net Farm Income, Feedstuffs (Sept. 3, 2020).

9. Cattle Groups Submit Final Comments on Country of Origin Meat Labeling, Meat+Poultry (Sept. 15, 2020).

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

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