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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Animal Welfare: Ninth Circuit Upholds Denial of Injunction Against California’s Proposition 12
On October 15, 2020, the U.S. Court of Appeals for the Ninth Circuit issued a memorandum disposition affirming the U.S. District Court (USDC) for the Central District of California’s November 22, 2019, denial of a preliminary injunction against California’s Proposition 12. North American Meat Institute, et al. v. Becerra, et al., No. 19-56408. The underlying complaint remains pending before the district court. North American Meat Institute et al. v. Becerra, et al., 2:19-cv-08569. Proposition 12 requires that all pigs, veal calves and egg-laying hens housed in California, and all products sold in California which are derived from pigs, veal calves and egg-laying hens no matter where produced, be produced according to enumerated minimum confinement standards. According to the memorandum, the law: (a) is not discriminatory on its face because it treats out-of-state and in-state producers the same and does not substantially burden interstate commerce; (b) does not impact an industry that is inherently national or requires a uniform system of regulation, and; (c) is not a price control or price affirmation statute. Although multiple stakeholders have challenged Proposition 12 on various grounds in various California federal courts, none have yet been successful. For more background, see ALWR—week ending June 26, 2020, “National Pork Producers Council and American Farm Bureau Appeal California Proposition 12 Ruling” and ALWR—week ending April 30, 2020, “Federal Court Upholds California Proposition 12.”
Nutrition Programs: Federal Court Vacates USDA SNAP Rule
On October 18, 2020, the U.S. District Court for the District of Columbia issued a memorandum opinion vacating the final rule at 84 FR 66782 titled, “Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without Dependents,” issued by the U.S. Department of Agriculture’s (USDA) Food and Nutrition Service. Dist. of Columbia, et al. v. USDA, et al., No. 1:20-cv-00119. The Court found that USDA provided insufficient notice of the rule changes and held that the rule was arbitrary and capricious under the Administrative Procedure Act. The final rule, which was to become effective April 1, 2020, revised the area unemployment rate calculation method and other measures related to states’ abilities to request waivers of the time limit for which able-bodied adults without dependents (ABAWDs) may receive benefits under the Supplemental Nutrition Assistance Program (SNAP). However, the Court previously issued a preliminary injunction staying that effective date. USDA appealed the injunction and that proceeding remains pending before the U.S. Court of Appeal for the District of Columbia Circuit. For more background, see ALWR—January 23, 2020, “Fourteen States, New York City, and District of Columbia Sue USDA Over SNAP Benefit Rule Changes” and ALWR—week ending May 22, 2020, “USDA Appeals SNAP Ruling.”
Antitrust: Federal Court Denies Dismissal of Meatpackers' Antitrust Class Action Suit
On October 16, 2020, the U.S. District Court for the District of Minnesota issued an order denying Defendants’ motion to dismiss, allowing a lawsuit of thirteen consolidated class actions alleging price-fixing to proceed against multiple meatpackers, including Hormel Foods, LLC, JBS USA, Smithfield Foods, Inc., and Tyson Foods, Inc. In re Pork Antitrust Litigation, No. 0:18-cv-01776. The suit alleges that the meatpackers conspired to limit production of pork through publicly unavailable data from Agri Stats which they used to monitor each other’s production, and through public statements about the need to reduce pork production which they used to signal to each other that “solidarity existed” among the companies. The Court found that the Complaint sufficiently pleaded parallel conduct and a continuing violation to state a claim under the Sherman Act. Previously, the court dismissed a different assortment of antitrust claims against some of the same defendants. See ALWR—week ending October 2, 2020, “Packer Antitrust Lawsuit Dismissed.”
COVID-19: Farmers to Families Food Box Program Receives Fourth Round of USDA Funding
On October 23, 2020, the U.S. Department of Agriculture (USDA) announced an additional $500 million in funding for a fourth round of the Farmers to Families Food Box Program, authorized by the Families First Coronavirus Response Act (Public Law No: 116-127). The fourth round of the program adheres to the same purchasing priorities as the third round—fresh produce, meat, dairy, and milk. USDA stated that it anticipates awarding contracts by October 30, 2020 for food box deliveries from November 1, 2020 through December 31, 2020. For more on this topic see ALWR—week ending August 28, 2020, “$1 Billion Added for Third Round of Farmers to Families Food Box Distributions” and ALWR—April 23, 2020, “USDA Announces Coronavirus Food Assistance Program.”
International Trade: USTR and USDA Release Report on Agricultural Trade Under the U.S-China Trade Agreement
On October 23, 2020, the Office of the U.S. Trade Representative (USTR) and the U.S. Department of Agriculture (USDA) announced publication of an interim report on agricultural trade under the January 15, 2020 Economic and Trade Agreement Between the United States of America and the People’s Republic of China. According to the report, China has fulfilled 71% of its 2020 target purchases and bought $23.6 billion in agricultural goods for the 2020 year since the agreement became effective February 14, 2020, although it is yet to be determined whether the country will meet its target. See ALWR—January 16, 2020, “United States and China Sign Agreement Impacting Agricultural Exports To China.”
Environmental Policy: Environmental Quality Incentives Program Final Rule Published
On October 23, 2020, the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) announced the publication of its Environmental Quality Incentives Program final rule at 85 FR 67637 which modifies the program in accordance with the 2018 Farm Bill.
Organic Agriculture: USDA-NASS 2019 Organic Survey Released
On October 22, 2020, the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service (NASS) issued the results of the 2019 Organic Survey. The last NASS Organic Survey was performed in 2016. Among many other notable results, Pennsylvania led the nation in organic broiler chicken sales with $360,059,291 and organic egg sales (chicken) with $104,000,815.
COVID-19: CFAP 1 and CFAP 2 Pennsylvania Data
Weekly, USDA updates aggregate Coronavirus Food Assistance Program 1 (CFAP 1) and Coronavirus Food Assistance Program 2 (CFAP 2) payments. The latest available Pennsylvania totals are below:
PENNSYLVANIA CFAP 1 Payments Approved Applications (as of 10/18/20)
Dairy $105,857,188 2,757
Livestock $33,931,486 5,866
Non-Specialty Crops $22,597,539 5,019
Specialty Crops $8,419,358 167
Aqua Nursery Flora $1,048,668 20
TOTALS $171,854,239 13,829
PENNSYLVANIA CFAP 2 Payments Approved Applications (as of 10/18/20)
Dairy $35,994,571 1,179
Sales Commodities $17,135,910 311
Acreage-Based $22,199,705 2,378
Livestock $11,062,598 2,004
Eggs/Broilers $1,941,088 65
TOTALS $88,333,872 5,937
Agricultural Law/Policy Resources of Interest:
Sarah Catherine Copper, Lettuce Keep it Clean: Efforts to Reduce Leafy Green Contamination (Oct. 20, 2020).
Brigit Rollins, Stuck in the Swamp? Overview of the Minimal Effect Exemption Under Swampbuster (Oct. 22, 2020).
Penn State Research & News:
More Precise Nitrogen Recommendations for Corn to Help Farmers, Cut Pollution (Oct. 15, 2020).
Grafting with Epigenetically-Modified Rootstock Yields Surprise (Oct. 22, 2020).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Departments Of Agriculture, Health Confirm Pennsylvania’s First COVID-19 Positive Cat (Oct. 20, 2020).
Agriculture Secretary Calls For Research Proposals – $375,000 In PA Farm Bill Funds Available To Grow Livestock, Poultry Industries (Oct. 21, 2020).
Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, October 12 - October 18 (Oct. 21, 2020).
Secretary Of Agriculture Joins Local Gleaning Operation, Harvesting Excess Produce To Feed Hungry Pennsylvanians (Oct. 24, 2020).
U.S. Department of Agriculture (USDA) Press Releases:
Trump Administration Invests Nearly $8 Million in High-Speed Broadband in Rural West Virginia (Oct. 19, 2020).
ICYMI: USDA Announces Approval of D-SNAP for Oregon Disaster Areas (Oct. 19, 2020).
Trump Administration Invests $14 Million in High-Speed Broadband in Rural Illinois (Oct. 19, 2020).
Trump Administration Invests $3 Million in High-Speed Broadband in Rural Minnesota (Oct. 20, 2020).
Trump Administration Invests $20 Million in High-Speed Broadband in Rural New Mexico (Oct. 21, 2020).
Trump Administration Invests $24 Million in High-Speed Broadband in Rural Iowa (Oct. 21, 2020).
Trump Administration Invests $10.1 Million in High-Speed Broadband in Rural Michigan (Oct. 21, 2020).
Trump Administration Invests $91.5 Million in High-Speed Broadband in Rural Missouri (Oct. 22, 2020).
Trump Administration Invests $3.1 Billion in Rural Electric Infrastructure; Highlights Record Investments in FY 2020 (Oct. 22, 2020).
National Drought Resilience Partnership Responsibilities Under New Executive Order (Oct. 22, 2020).
Trump Administration Invests $596,000 in High-Speed Broadband in Rural Washington (Oct. 22, 2020).
Trump Administration Invests $11.7 Million in High-Speed Broadband in Rural Kentucky and Illinois (Oct. 22, 2020).
Trump Administration Invests $37 Million in High-Speed Broadband in Rural Alabama (Oct. 23, 2020).
USDA Announces Fourth Round of the Farmers to Families Food Box Program (Oct. 23, 2020).
USDA Announces Approval of D-SNAP for Louisiana Disaster Areas (Oct. 23, 2020).
USTR and USDA Release Report on Agricultural Trade between the United States and China (Oct. 23, 2020).
U.S. Department of Agriculture (USDA) Agencies Press Releases:
APHIS Issues Finding of No Significant Impact for the Asian Longhorned Beetle Eradication Program in Charleston, Colleton, and Dorchester Counties, South Carolina, APHIS (Oct. 20, 2020).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 41—Oct. 24, 2020):
Department of Environmental Protection
50 Pa.B. 5921 Notice: “Stream Redesignation Evaluations of Toms Creek and Jones Creek; Water Quality Standards Review.”
State Conservation Commission
50 Pa.B. 5960 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
Presented to the Governor
HB 2438 “An Act amending Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, providing for broadband services.” Presented to Governor (Oct. 22, 2020).
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’].” Presented to Governor (Oct. 22, 2020).
Senate Legislation in the House
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.” Laid on the table (Oct. 20, 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’].” Referred to Transportation (Oct. 20, 2020).
SB 1182 ‘An Act amending . . . the Pennsylvania Agricultural Fair Act, further providing for advisory committee; and providing for COVID-19 Emergency Agricultural Fair Grants.” Removed from table (Oct. 21, 2020).
House Legislation
HB 1348 “An Act providing for limited civil liability for agritourism activity providers, for notice of limited civil liability and for acknowledgment of limited civil liability.” Removed from table (Oct. 19, 2020).
HB 2949 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in development, marketing and promotion, providing for food security initiative; establishing the Food Security Initiative Grant Program and the Food Security Initiative Tax Credit Program; imposing duties on the Department of Agriculture; and making an appropriation [‘Incentives for neighborhood restaurants to sell Pa Preferred groceries’].” Referred to Agriculture and Rural Affairs (Oct. 20, 2020).
HRes 1046 “A Resolution designating the month of October 2020 as "Wine, Wineries and Grapes Month" in Pennsylvania.” Adopted in House (Oct. 20, 2020).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register Oct. 19–23, 2020):
Agricultural Marketing Service
85 FR 66283 Proposed Rule—Comment Period: “Pears Grown in Oregon and Washington; Modification of the Handling Regulation” (Oct. 19, 2020).
85 FR 66491 Proposed Rule and referendum order: “Walnuts Grown in California; Secretary's Decision and Referendum Order on Amendments to Marketing Order No. 984” (Oct. 20, 2020).
85 FR 66926 Notice—Comment Period: “United States Standards for Grades of Frozen Corn on the Cob” (Oct. 21, 2020).
Delaware River Basin Commission
85 FR 67340 Notice: “Notice of Public Hearing and Business Meeting [November 12 and December 9, 2020]” (Oct. 22, 2020).
85 FR 67538 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (September 2020)” (Oct. 23, 2020).
85 FR 67536 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decision for Paraquat” (Oct. 23, 2020).
Environmental Protection Agency
85 FR 66329 Notice—Comment Period: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability”
85 FR 66331 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Zinc Phosphide” (Oct. 19, 2020).
85 FR 67288 Final Rule—Comment Accepted: “Diquat; Pesticide Tolerances” (Oct. 22, 2020).
85 FR 67285 Final Rule—Comment Accepted: “Clofentezine; Pesticide Tolerances” (Oct. 22, 2020).
85 FR 67531 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Methomyl and Thiodicarb” (Oct. 23, 2020).
85 FR 67533 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability” (Oct. 23, 2020).
85 FR 67538 Notice: “Pesticide Registration Review; Interim Decisions for Several Pesticides; Notice of Availability” (Oct. 23, 2020).
Fish and Wildlife Service
85 FR 66906 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Reclassification of Eugenia woodburyana as Threatened and Section 4(d) Rule” (Oct. 21, 2020).
International Trade Commission
85 FR 66360 Notice: “Fresh, Chilled, or Frozen Blueberries; Institution of Investigation, Scheduling of Public Hearings, and Determination That the Investigation Is Extraordinarily Complicated, Amendment” (Oct. 19, 2020).
Rural Utilities Service
85 FR 67427 Final Rule: “Rural Energy Savings Program” (Oct. 23, 2020).
Small Business Administration
85 FR 66399 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Iowa [Severe Storms]” (Oct. 19, 2020).
85 FR 66399 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Alabama [Hurricane Sally]” (Oct. 19, 2020).
85 FR 66400 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of California [Wildfires]” (Oct. 19, 2020).
85 FR 66678 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of North Carolina [Hurricane Isaias]” (Oct. 20, 2020).
85 FR 66679 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Alabama [Hurricane Sally]” (Oct. 20, 2020).
85 FR 66679 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Florida [Hurricane Sally]” (Oct. 20, 2020).
85 FR 67410 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of California [Wildfires]” (Oct. 22, 2020).
85 FR 67411 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of California [Wildfires]” (Oct. 22, 2020).
85 FR 67411 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Florida [Hurricane Sally]” (Oct. 22, 2020).
85 FR 67412 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of Florida [Hurricane Sally]” (Oct. 22, 2020).
85 FR 67412 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Louisiana [Hurricane Laura]” (Oct. 22, 2020).
85 FR 67582 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of California [Wildfires]” (Oct. 23, 2020).
85 FR 67582 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of California [Wildfires]” (Oct. 23, 2020).
85 FR 67582 Notice: “Presidential Declaration of a Major Disaster for the State of Louisiana [Hurricane Delta]” (Oct. 23, 2020).
Social Security Administration
85 FR 67413 Notice: “Cost-of-Living Increase and Other Determinations for 2021” (Oct. 22, 2020).
U.S. Customs and Border Protection
85 FR 67276 Rule: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada” (Oct. 22, 2020).
85 FR 67275 Rule:“Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico” (Oct. 22, 2020).
Susquehanna River Basin Commission
85 FR 66682 Notice: “Projects Approved for Minor Modifications” (Oct. 20, 2020).
85 FR 66680 Notice: “Projects Approved for Consumptive Uses of Water” (Oct. 20, 2020).
85 FR 66681 Notice—Comment Period: “Public Hearing [November 7, 2020]” (Oct. 20, 2020).
85 FR 66680 Notice: “Grandfathering (GF) Registration Notice” (Oct. 20, 2020).
U.S. Customs and Border Protection
85 FR 66574 Notice: “Notice of Finding That Certain Stevia Extracts and Derivatives Produced in the People's Republic of China With the Use of Convict, Forced or Indentured Labor Are Being, or Are Likely To Be, Imported Into the United States” (Oct. 20, 2020).
U.S. House Agriculture Committee
H.R.8630 “To amend the National Forest Organization Camp Fee Improvement Act of 2003 to modify the calculation of land use fees in counties with less than two percent farm land, and for other purposes.” Referred to the Committees on Agriculture and Natural Resources (Oct. 20, 2020).
H.R.12 - “China Task Force Act.” Referred to the Subcommittee on Highways and Transit (Oct. 21, 2020).
U.S. Senate Committee Agriculture, Nutrition, and Forestry:
S.4845 “A bill to require the Secretary of Agriculture to conduct surveys to collect data regarding the prevention, reduction, and mitigation of greenhouse gas emissions, soil carbon sequestration, and forest wood and tree carbon sequestration, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Oct. 22, 2020).
S.4850 “A bill to amend the Food Security Act of 1985 to create permanent payments within the environmental quality incentives program for soil health practices and carbon sequestration monitoring, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Oct. 23, 2020).
Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Oct. 19–23, 2020:
Groups Urge Mandatory Labeling of ‘Lab-Grown’ Meat, Meat+Poultry
USDA to Distribute $1.68B in CRP Payments, Agri-Pulse
Mandatory Regulations Sought for Cell-Based Meat, Feedstuffs
Ag Exports Hurt by Earliest Return Date Changes, Feedstuffs
Dairy Exports Up Double Digits in August, Setting Record, Capital Press
APHIS Announces $2.8M to Combat Chronic Wasting Disease, Feedstuffs
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