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.
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International Trade: USDA and FDA Sign MOU to Coordinate, Collaborate on Dairy Exports
On October 1, 2020, the U.S. Department of Agriculture’s (USDA) Foreign Agricultural Service (FAS), Agricultural Marketing Service (AMS), and the U.S. Food and Drug Administration (FDA) announced their establishment of a Memorandum of Understanding (MOU 225-20-017), indicating their intent to cooperate and collaborate regarding the export of milk and milk products from the United States. Under the MOU, FAS will lead communications with foreign governments while AMS will facilitate exports and issue dairy sanitary certificates. Additionally, FDA will verify the regulatory standing of milk producers and processors and issue the export certificates required by the importing nations. The MOU became effective upon signature of the parties and will be evaluated at least every 5 years.
Industrial Hemp: Continuing Appropriations Act Also Extends Hemp Pilot Program
On September 30, 2020, Congress passed a continuing resolution providing funding to federal agencies, including USDA, and it was signed by the President on October 1, 2020 (H.R.8337 “Continuing Appropriations Act, 2021 and Other Extensions Act”). Among many actions, the bill extends the previous USDA deadline for state hemp plan submission from October 31, 2020 to September 30, 2021 (sec. 122) and allows states the option of continuing 2014 hemp pilot programs for another growing season.
Antitrust: Packer Antitrust Lawsuit Dismissed
On September 28, 2020, the U.S. District Court for the District of Minnesota dismissed a trio of consolidated cases against JBS USA, Cargill, Inc., National Beef Packing Company, and Tyson Foods alleging that the companies “conspired to fix and suppress the price of fed cattle in the United
States” (In Re Cattle Antitrust Litigation No. 0:19-cv-01222). In support of their allegations, the plaintiffs offered testimony from two confidential witnesses. However, the Court found the allegations of the witnesses not supported by a foundation sufficient to conclude them credible and, barring that, noted that “[m]erely cutting back slaughter volume in a single year cannot itself serve as the anticompetitive basis for a claim under § 202(a)” of the Packers and Stockyards Act. The court granted ninety days to file an amended complaint.
Food Labeling: FTC Closes Comment Period on “Made in USA”
On September 14, 2020, the comment period closed for a proposed new Federal Trade Commission (FTC) rule entitled “Made in USA Labeling Rule” (85 FR 43162) which was first published on July 16, 2020. The new proposed rule makes a “Made in the United States” (MUSA) labeling statement an unfair or deceptive act or practice unless virtually all ingredients are made/sourced in the United States, all significant processing occurs in the United States and the final assembly of the product occurs in the United States. Highlighting the shortcomings of the current rule, a federal district court recently dismissed a lawsuit alleging mislabeling of imported cattle as MUSA which were slaughtered and processed in the United States. See Agricultural Law Weekly Review—week ending September 4, 2020, “District Court Dismisses ‘Product of the USA’ Meat Labeling Lawsuit.” According to the new proposed rule, FTC’s MUSA labeling rule will “not supersede, alter, or affect” federal country-of origin labeling laws or regulations.
Animal Health: USDA Publishes List of Disinfectants for Use Against African Swine Fever
On September 21, 2020, U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) posted a list of disinfectants approved by the U.S. Environmental Protection Agency (EPA) for use against African Swine Fever, which were drawn from the National Pesticide Information Retrieval System (NPIRS). A recent addition to the list, the hydrogen peroxide-based Accel Concentrate from Virox Technologies, is stated by EPA to require a contact time of five minutes. Most disinfectants are approved for use in animal living and feeding quarters.
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 27, 2020, are below:
PENNSYLVANIA Payments Applications
Dairy $105,444,837 2,755
Livestock $33,829,754 5,860
Non-Specialty Crops $22,535,690 5,012
Specialty Crops $8,411,144 167
Aqua Nursery Flora $903,355 20
TOTALS $171,124,780 13,814
From National Ag Law Authorities & Sources:
Roger A. McEowen, NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part Three (Sept. 22, 2020).
Roger A. McEowen, The Prior Converted Cropland Exception - More Troubles Ahead? (Sept. 27, 2020).
Tiffany Lashmet, Navigable Waters Protection Rule (aka the New WOTUS Rule), (Sept. 28, 2020).
Sarah Everhart, FSMA - Updates and Produce Safety Rule Training, (Sept. 30, 2020).
Brigit Rollins, Deconstructing the CWA: What is a TMDL? (Oct. 1, 2020).
Penn State Research & News:
Coral’s Resilience to Warming May Depend on Iron (Sept. 30, 2020).
Harvesting Vegetation on Riparian Buffers Barely Reduces Water-Quality Benefits (Oct. 2, 2020).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Department Of Agriculture Employee Earns Governor’s Award For Excellence (Sept. 28, 2020).
Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, September 21 - September 27 (Sept. 29, 2020).
Agriculture Secretary: Food Security Begins On The Farm, Farmers Urged To Maintain Stringent Biosecurity Practices (Oct. 1, 2020).
Wolf Administration Reminds Restaurants Of Opportunity To Increase Indoor Capacity To 50 Percent (Oct. 1, 2020).
U.S. Department of Agriculture (USDA) Press Releases:
Farmers to Families Food Box Program Surpasses 100 Million Boxes Delivered (Sept. 29, 2020).
Trump Administration Invests $1.7 Million in High-Speed Broadband in Rural Southwestern South Dakota and Eastern Wyoming (Sept. 29, 2020).
USDA Announces Approval of D-SNAP for California Disaster Areas (Sept. 29, 2020).
USDA Announces Approval of D-SNAP for Alabama Disaster Areas (Sept. 30, 2020).
USDA Launches New, Streamlined Process for Private Lenders to Invest in Rural America (Oct. 1, 2020)
U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Announces New Federal Crop Insurance Corporation Board Members, RMA (Sept. 28, 2020).
APHIS Removes Federal Domestic Quarantine for Pine Shoot Beetle, APHIS (Sept. 30, 2020).
USDA Updates the National Poultry Improvement Plan, APHIS (Oct. 1, 2020).
USDA Renews Charter for General Conference Committee of the National Poultry Improvement Plan, APHIS (Oct. 1, 2020).
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 40 Oct. 3, 2020):
Department of Labor and Industry
50 Pa.B. 5459 Final-from Rulemaking: “Minimum Wage.”
Susquehanna River Basin Committee
50 Pa.B. 5603 Notice: “Actions Taken at September Meeting.”
50 Pa.B. 5604 Notice: “Grandfathering Registration Notice.”
50 Pa.B. 5604 Notice: “Projects Approved for Consumptive Uses of Water.”
Senate Legislation in the House
SB 995 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in general provisions, further providing for definitions [‘Increasing the Width of Multipurpose Agricultural Vehicles’].” Re-referred to Appropriations (Sept. 30, 2020).
HB 2897 “An Act amending . . . the Tax Reform Code of 1971, in personal income tax, further providing for classes of income [‘Crop Insurance—Taxable Income’].” Re-referred to Finance (Sept. 29, 2020).
HB 2899 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for the regulation of hemp extract and imposing duties on the Department of Agriculture.” Referred to Agriculture and Rural Affairs (Sept. 29, 2020).
HB 2093 “An Act restricting local government from certain regulation of agritourism.” Laid on the table (Sept. 30, 2020).
HB 2197 “An Act amending . . . the Covered Device Recycling Act, in preliminary provisions, further providing for definitions [‘Placing Solar Panels on the Controlled Device Recycling Act List of Covered Devices’].” Laid on the table (Sept. 30, 2020).
Federal Executive Agencies (Federal Register Sept. 28–Oct. 2, 2020):
Agricultural Marketing Service
85 FR 60955 Notice—Comment Period: “United States Standards for Split Peas” (Sept. 29, 2020).
85 FR 60956 Notice—Comment Period: “United States Standards for Lentils” (Sept. 29, 2020).
85 FR 60957 Notice—Comment Period: “United States Standards for Beans” (Sept. 29, 2020).
85 FR 61919 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection” (Oct. 1, 2020).
Animal and Plant Health Inspection Service
85 FR 60958 Notice: “General Conference Committee of the National Poultry Improvement Plan” (Sept. 29, 2020).
85 FR 61718 Notice: “Addition of Papua New Guinea to the List of Regions Affected With African Swine Fever” (Sept. 30, 2020).
85 FR 61920 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Live Swine, Pork and Pork Products, and Swine Semen From the European Union” (Oct. 1, 2020).
85 FR 61806 Final Rule: “Deregulation of Pine Shoot Beetle” (Oct. 1, 2020).
Commodity Futures Trading Commission
85 FR 60980 Notice: “Request for Nominations for a Subcommittee Under the Agricultural Advisory Committee” (Sept. 29, 2020).
Environmental Protection Agency
85 FR 61681 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (August 2020)” (Sept. 30, 2020).
Farm Credit Administration
85 FR 60691 Final Rule: “Amortization Limits” (Sept. 28, 2020).
Federal Emergency Management Agency
85 FR 60818 Notice: “Final Flood Hazard Determinations [Cal., Fla., Ind., Iowa, Kan., Mo., N.H., S.C., Tex., Va.]” (Sept. 28, 2020).
85 FR 60814 Notice: “Changes in Flood Hazard Determinations [Alaska, Ariz., Cal., Fla., Idaho, Ill., Ind., Iowa, Kan., Mich., Minn., Neb., Nev., N.Y., Ohio, Or., Tex., Wis.]” (Sept. 28, 2020).
Fish and Wildlife Service
85 FR 61614 Final Rule: “Endangered and Threatened Wildlife and Plants; Section 4(d) Rule for Trispot Darter” (Sept. 30, 2020).
85 FR 61619 Final Rule: “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Trispot Darter” (Sept. 30, 2020).
Food and Nutrition Service:
85 FR 60958 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Child Nutrition Database” (Sept. 29, 2020).
85 FR 60913 Final Rule: “Conveyance of Small Tracts” (Sept. 29, 2020).
National Agricultural Statistics Service
85 FR 61719 Notice: “Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports by Suspending Data Collection for October 2020” (Sept. 30, 2020).
Small Business Administration
85 FR 62239 Proposed Rule—Comment Period: “Small Business Size Standards: Agriculture, Forestry, Fishing and Hunting; Mining, Quarrying, and Oil and Gas Extraction; Utilities; Construction” (Oct. 2, 2020).
U.S. House Legislation:
H.R.8489 “To make improvements with respect to the pricing of cattle in the United States, and for other purposes.” Referred to the Committees on Agriculture, Financial Services, Energy and Commerce, and Foreign Affairs (Oct. 1, 2020).
H.R.8482 “To require the Secretary of Agriculture to support the efforts of State and local governments to provide for priority testing of essential critical food and agriculture workers with respect to COVID-19, and
for other purposes.” Referred to the House Committee on Agriculture (Oct. 1, 2020).
H.R.8064 “Mobilizing Restaurants in America Act of 2020.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Oct. 1, 2020).
H.R.8057 “Healthy Soil, Resilient Farmers Act of 2020.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Oct. 1, 2020).
U.S. Senate Legislation:
S.4757 “A bill to amend the Animal Welfare Act to establish additional requirements for dealers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 29, 2020).
S.4768 “A bill to establish the Office of Intelligence in the Department of Agriculture, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 30, 2020).
Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
Sept. 28–Oct. 2, 2020 Top #AgLaw links:
US Dairy Sales Hit “Record High”: Stakeholders Call for Tariff Removals and Barriers to Trade, Food Ingredients First (Sept. 17, 2020).
Seven Attorneys General Challenge Swine Slaughter Lawsuit, Meat+Poultry (Sept. 29, 2020).
$53 Million Invested in Young, Beginning Farmers and Military Veterans, Farm Progress (Sept. 28, 2020).
Farm-To-Retail Price Spread Widens During Pandemic, Morning Ag Clips (Sept. 24, 2020).
Ag Groups Call for Continued WTO Membership, Farm Progress (Sept. 24, 2020).
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