October 19, 2021
Agricultural Law Weekly Review – Week Ending October 15, 2021
WOTUS: EPA and Department of the Army Announce Call for Stakeholder Roundtable Nominations 🌾
On October 13, 2021, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (Army) announced that they are seeking nominations for ten regional roundtables, two in each of five defined U.S. geographic regions (Northeast, Southeast, Midwest, West, and Southwest), to inform the agencies on the unique geographical contexts and impacts of “waters of the United States” (WOTUS) as EPA and Army develop a new WOTUS rule. The agencies invite stakeholders to identify and submit nominations proposing a participant roster of no more than fifteen individuals representing varied perspectives, including “agriculture, conservation groups, developers, drinking water/wastewater management, environmental organizations, environmental justice communities, industry,” and other regional interests. The Northeast region consists of ME, MA, RI, CT, NH, VT, NY, PA, NJ, DE, and MD. The agencies have submitted a notice on the roundtable nominations for forthcoming publication in the Federal Register. Stakeholders should submit a self-nomination letter by email to WOTUS-outreach@epa.gov by November 3, 2021. The roundtables will be held December 2021 and possibly January 2022.
Water Quality: Department of Defense Notifies over 2,000 Farms that PFAS Has Been Detected in Area Groundwater
In July 2021, the U.S. Department of Defense (DOD) submitted a report to Congress titled, “Status of Notifications to Agricultural Operations Pursuant to Section 335 of the Fiscal Year 2021 National Defense Authorization Act,” which disclosed that in March 2021, DOD notified 2,143 agricultural operations located down gradient within one mile of a military facility that known or suspected per- and polyfluoroalkyl substance (PFAS) releases on site have caused PFAS contamination of base groundwater that is hydrologically linked to a local agricultural or drinking water source. DOD states that, although the notifications do “not necessarily mean that PFAS is in the groundwater at the agricultural location or that cleanup is required,” DOD is following the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and “is committed to fulfilling its PFAS cleanup responsibilities.” The report lists all the involved military installations, including four in Pennsylvania (Willow Grove, Hatboro, Worchester, and Warminster Township), the number of agricultural operation landowners notified, and the PFAS groundwater testing levels on the DOD site.
Food Safety: FDA Enters into Domestic Mutual Reliance Agreements on Food Safety Collaboration with Four States
On October 7, 2021, the U.S. Food and Drug Administration (FDA) announced that it has entered into domestic mutual reliance agreements with four states: California, Florida, Utah, and Wisconsin. The agreements allow FDA to collaborate and share data with the states’ public health entities to coordinate safety inspections, enforcement actions, environmental assessments, product recalls, disease investigations, and other actions, thus reducing duplications of state and federal agency efforts. The agreements are authorized by the Food Safety Modernization Act (FSMA), and serve the principles of FDA and state and local government collaboration articulated in the FDA overall National Integrated Food Safety System (IFSS).
Agricultural Labor: New York Public Employment Relations Board Certifies State’s First Agricultural Worker Union
On September 27, 2021, the New York State Public Employment Relations Board (PERB) certified Local 338 of the Retail, Wholesale and Department Store Union/United Food and Commercial Workers (RWDSU /UFCW) as New York’s first agricultural worker union since the state’s 2019 passage of the Farm Laborers Fair Labor Practices Act (A8419), effective January 1, 2020, which, among other rights, grants collective bargaining rights to agricultural and farm workers. According to an announcement from RWDSU/UFCW Local 338, which first filed with PERB on May 28, 2021, the union will represent twelve workers from Pindar Vineyards in Peconic, New York.
COVID-19: U.S. House Select Subcommittee Issues Report on Farmers to Families Food Box
On October 13, 2021, the U.S. House Select Subcommittee on the Coronavirus Crisis released a sixty-six page report titled “Farmers to Families? An Investigation Into the Trump Administration’s Food Box Program.” As a result of the report’s contents, a referral letter to the USDA Office of Inspector General (OIG) states that “the Program was operated in a manner that created significant risks of fraud, waste and abuse” and requests “work to reclaim wasted funds for American taxpayers.” A summary of the reports’ finding is contained in the Select Subcommittee’s accompanying press release. The Select Subcommittee’s investigation began on August 24, 2020, and the Farmers to Families Food Box Program was ended on May 31, 2021.
CENTER FOR AGRICULTURAL AND SHALE LAW (CASL) PROGRAMS & RESOURCES
Client Applications Being Accepted by Rural Economic Development Clinic
Penn State Law’s Center for Agricultural and Shale Law, teaches a clinic course for law students called the Rural Economic Development Clinic. For students enrolled, they get experience doing legal work for actual clients, under the supervision of the Center’s attorneys. For the 2021 Fall semester, the Center is soliciting two categories of potential clients who wish to be served, at no cost, by the Rural Economic Development Clinic. Acceptance of clients for the clinic’s work is always subject to the Center’s discretion, case load and capacity at any given time. Right now, the Center wishes to hear from potential clients who reside in Pennsylvania and desire legal services in the following two areas:
- Review of Options to Lease and/or Lease Agreements for solar electrical generation for the grid (i.e. utility-scale solar leases); and
- Preparation of Acknowledgement Agreements under Pennsylvania’s 2021 Agritourism Activity Protection Act (commonly referred to as “waivers” of liability).
If you wish to apply to be served by the clinic in October and November 2021, apply as soon as possible at https://aglaw.psu.edu/legal-clinic/ by filling out the CLIENT APPLICATION.
Agricultural Law Podcast:
Weekly Episode #197. Biofuel Group Seeks Supreme Court Review of E15 Vacatur & R-CALF Has Standing to Continue Beef Checkoff Challenge (October 15, 2021).
Weekly Episode #196. Supreme Court Petition Challenges California’s Proposition 12 & New Mexico District Court Vacates Navigable Waters Protection Rule (Oct. 5, 2021).
Weekly Episode #195. Federal Court Denies Dismissal of Beef Antitrust Litigation & EPA Rescinds WOTUS Maui Guidance (Sept. 27, 2021).
Special Episode #11. Bioengineered Food & Genetically Modified Salmon (Oct. 1, 2021).
Special Episode #10. Glyphosate Litigation (Sept. 24, 2021).
Events:
Greater Reading Chamber Alliance Hosts PA Agritourism Act Event
Berks Agricultural Resource Network (BARN), Agritourism Law Event, presenter-CASL’s Brook Duer (Nov. 9, 2021, 5:30 pm).
Pennsylvania Farm Bureau Webinar, Agritourism Liability, presenter—CASL’s Brook Duer (recorded Sept. 30, 2021).
PA Farm Bureau Farm Focus podcast, New Agritourism Law—What You Need to Know, guest—CASL’s Brook Duer (recorded Sept. 30, 2021).
National Agricultural Law Center Webinar, Overview of Federal and State Purchase of Agricultural Conservation Easement (PACE) Programs, presenter—CASL’s Ross Pifer (recorded Sept. 15, 2021).
Penn State News, Research, & Resources:
New Penn State Consortium Launches to Help Fuel the Energy Revolution (Oct. 12, 2021).
Mushroom Consumption May Lower Risk of Depression (Oct. 11, 2021).
Agricultural Law/Policy Resources of Interest:
Penn State Extension, Spotted Lanternfly Management Guide (Aug. 2021).
Innovation Center for U.S. Dairy, U.S. Dairy 2020 Sustainability Report (Oct. 2021).
Jennifer Harrington and Kristine Tidgren, Congress Provides $10 Billion for 2020 and 2021 Ag Disaster Payments (Oct. 8, 2021).
Megan Todd, Are You Eligible for New USDA Grant for COVID Response Expenditures? (Oct. 13, 2021).
Micah Brown, Who Owns the FARM: Foreign Investment in US Agriculture (Oct. 12, 2021).
Samantha Mikolajczyk, International Agricultural Trade Update: The China Phase One Agreement and the U.S.-Japan Trade Agreement (Oct. 14, 2021).
Tiffany Lashmet, Questions from Tiffany’s Desk: What Statutory Protections Apply if Hunters Are Injured on My Land? (Oct. 11, 2021).
Roger A. McEowen, Farm Bankruptcy – “Stripping,” “Claw-Back” and the Tax Collecting Authorities (Update) (Oct. 8, 2021).
Roger A. McEowen, Caselaw Update (Oct. 11, 2021).
Roger A. McEowen, Tax Issues Associated With Easements (Oct. 14, 2021).
Peggy Kirk Hall, New Laws and New Resources on Wind and Solar Facility Siting in Ohio (Oct. 13, 2021).
Agriculture-Related Legislative Hearings:
U.S. House Agriculture Committee, A Hearing to Review the State of the Livestock Industry: video and written testimony (recorded Oct. 7, 2021).
- DTN/Ag Policy Blog/Chris Clayton, Congress Looking Again at Cattle Markets, Comprehensively(Oct. 6, 2021).
- DTN/Progressive Farmer, Increase Processing to Offset Packers(Oct. 7, 2021).
U.S. House Agriculture Committee, Voluntary Carbon Markets in Agriculture and Forestry (recorded Sept. 23, 2021).
U.S. Senate Agriculture Committee, Milk Pricing: Areas for Improvement and Reform: video and written testimony (recorded Sept. 15, 2021).
Pennsylvania Senate Agriculture Committee, Hearing on Utility Scale Solar Development and Agricultural Land in Pennsylvania, witness—CASL’s Brook Duer (recorded Sept. 21, 2021).
Pennsylvania General Assembly’s Center for Rural Pennsylvania, Solar Development in Rural Pennsylvania: video and written testimony (recorded Oct. 1, 2021).
Weekly Featured Graphics:
Trade Representative Katherine Tai Outlines U.S., China Trade Policy
AGENCY PRESS RELEASES—STATE/FEDERAL
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Secretary Of Agriculture Commends Urban Ag Partners For Hosting Vaccine Clinic, Supporting Community (Oct. 12, 2021).
Wolf Administration Launches Tour Highlighting How Food Fuels Pennsylvania, Powers Jobs, Innovation And Economy (Oct. 13, 2021).
Pennsylvania Preserves 21 Farms, 1,999 Acres Safeguarded From Future Development (Oct. 14, 2021).
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
USDA Announces First Installment of Farm Service Agency and Rural Development State Directors (Oct. 12, 2021).
USDA Celebrates National School Lunch Week, School Meal Program Resiliency throughout the Pandemic (Oct. 12, 2021).
Biden-Harris Administration Invests $272 Million to Improve Rural Water Infrastructure for 270,000 People Living in Rural Communities Across the Country (Oct. 14, 2021).
USDA Works to Strengthen School Meals, Listens to Feedback from Food Industry Leaders (Oct. 15, 2021).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service
USDA Announces Dates for the California Walnuts Continuance Referendum (Oct. 13, 2021).
USDA Issues a Default Decision Against Rodney Dennis, d.b.a. Rd Cattle for Violation of the Packers and Stockyards Act (Oct. 15, 2021).
USDA Issues a Default Decision Against Marshel Riley for Violation of the Packers and Stockyards Act (Oct. 15, 2021).
Animal and Plant Health Inspection Service
APHIS Extends the deadline for Stakeholders to Comment on Draft Pest Risk Assessment for the Importation of Dianthus plants for planting from Guatemala (Oct. 12, 2021).
APHIS Seeks Comment on Draft Pest Risk Assessment for the importation of Corn Seed from South Africa (Oct. 12, 2021).
Confirmation of COVID-19 in a Coatimundi at an Illinois Zoo (Oct. 14, 2021).
Economic Research Service
Cost Implications of Participant Product Selection in USDA’s Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) (Oct. 12, 2021).
Farm Service Agency
USDA Launches First Phase of Soil Carbon Monitoring Efforts through Conservation Reserve Program Initiative (Oct. 12, 2021).
USDA Offers Online Tool for Drought-Stricken Ranchers to Estimate Compensation for Feed Transportation Costs (Oct. 13, 2021).
Food and Nutrition Service
USDA Announces Approval of D-SNAP for California Disaster Areas (Oct. 12, 2021).
USDA Celebrates National School Lunch Week, School Meal Program Resiliency throughout the Pandemic (Oct. 12, 2021).
USDA Works to Strengthen School Meals, Listens to Feedback from Food Industry Leaders (Oct. 15, 2021).
Food Safety and Inspection Service
Constituent Update—Release of 2019 Annual Report on the Sources of Foodborne Illness by the Interagency Food Safety Analytics Collaboration (Oct. 15, 2021).
Foreign Agricultural Service
Private Exporters Report Sales Activity for Mexico (Oct. 12, 2021).
Private Exporters Report Sales Activity for China and Unknown Destinations (Oct. 13, 2021).
Private Exporters Report Sales Activity for Unknown Destinations (Oct. 14, 2021).
Private Exporters Report Sales Activity for China and Unknown Destinations (Oct. 15, 2021).
National Agricultural Statistics Service
USDA NASS Conducts its First Hemp Acreage and Production Survey (Oct. 13, 2021).
US Corn and Soybean Production up from September (Oct. 12, 2021).
October Crop Production—Agricultural Statistics Board Briefing (Oct. 12, 2021).
Rural Development
USDA Announces First Installment of Farm Service Agency and Rural Development State Directors (Oct. 12, 2021).
Biden-Harris Administration Invests $272 Million to Improve Rural Water Infrastructure for 270,000 People Living in Rural Communities Across the Country (Oct. 14, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 42—Oct. 16, 2021):
Department of Agriculture
51 Pa.B. 6514 Notice: “Controlled Plant and Noxious Weed Committee Virtual Public Meeting.”
Department of Environmental Protection
51 Pa.B. 6515 Notice: “Applications For NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”
51 Pa.B. 655 Notice: “Availability of Technical Guidance [‘Guidance on Notification Requirements for Spills, Discharges, and other Incidents of a Substance Causing or Threatening Pollution to Waters of the Commonwealth Under Pennsylvania’s Clean Streams Law’].”
PENNSYLVANIA LEGISLATURE:
- Res. 148 “A Resolution urging the [U.S. EPA] to exercise its authority under section 211 (o) (7) (A) (i) of the Clean Air Act to revise the nationwide Renewable Fuel Standard (“RFS”) updating volume mandates to provide relief to refiners in Pennsylvania, the East Coast and elsewhere, and to implement additional reforms going forward which will allow for the blending of renewable fuels consistent with the original intention of the RFS program, while containing costs for independent refiners.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House](Oct. 12, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 11–15, 2021):
Agriculture Department
86 FR 57407 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: 2020 Local Foods Marketing Practices Survey—Substantive Change]” (Oct. 15, 2021).
86 FR 57407 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: School Meals Operations Study: Evaluation of the COVID-19 Child Nutrition Waivers and Child Nutrition Programs]” (Oct. 15, 2021).
Agricultural Marketing Service
86 FR 56840 Proposed Rule: “Walnuts Grown in California; Continuance Referendum” (Oct. 13, 2021).
86 FR 57356 Final Rule: “Tomatoes Grown in Florida; Reapportionment of Membership” (Oct. 15, 2021).
Environmental Protection Agency
86 FR 56653 Final Rule, comments accepted: “Clothianidin; Pesticide Tolerances” (Oct. 12, 2021).
Federal Emergency Management Agency
86 FR 56713 Notice—Comment Period: “Request for Information on the National Flood Insurance Program’s Floodplain Management Standards for Land Management and Use, and an Assessment of the Program’s Impact on Threatened and Endangered Species and Their Habitats” (Oct. 12, 2021).
Fish and Wildlife Service
86 FR 57104 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Endangered Species Status for Bog Buck Moth” (Oct. 14, 2021).
86 FR 57373 Direct Final Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Technical Corrections for Northeast Species [‘Jesup’s milk-vetch,’ ‘shale barren rock cress,’ ‘Puritan tiger beetle,’ ‘bog turtle,’ ‘Northeastern beach tiger beetle,’ ‘Chittenango ovate amber snail’]” (Oct. 15, 2021).
Food and Drug Administration
86 FR 57156 Notice: “Voluntary Sodium Reduction Goals: Target Mean and Upper Bound Concentrations for Sodium in Commercially Processed, Packaged, and Prepared Foods; Guidance for Industry; Availability” (Oct. 14, 2021).
Forest Service
86 FR 57408 Notice: “Black Hills National Forest; Lawrence, Meade, Pennington, Custer, and Fall River Counties, South Dakota; Crook and Weston Counties, Wyoming; Revision of the Land and Resource Management Plan for the Black Hills National Forest” (Oct. 15, 2021).
Presidential Documents
86 FR 57003 Proclamation: “National School Lunch Week, 2021 [October 10 through Start Printed Page 57004 October 16, 2021]” (Oct. 14, 2021).
Rural Business-Cooperative Service
86 FR 56885 Notice—Comment Period: “Notice of Request for Approval of a New Information Collection [Common Forms Package for Rural Development Construction Forms]” (Oct. 14, 2021).
86 FR 57409 Notice: “Strategic Economic and Community Development Program” (Oct. 15, 2021).
Rural Utilities Service
86 FR 57015 Final Rule: “Standards and Specifications for Timber Products Acceptable for Use by Rural Utilities Service Electric and Telecommunications Borrowers” (Oct. 14, 2021).
Small Business Administration
86 FR 56997 Notice: “Administrative Declaration of a Disaster for the Commonwealth of Pennsylvania” (Oct. 13, 2021).
86 FR 56997 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of New Hampshire” (Oct. 13, 2021).
86 FR 56997 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of North Carolina” (Oct. 13, 2021).
Susquehanna River Basin Commission
86 FR 57243 Notice: “Public Hearing [November 4, 2021]” (Oct. 14, 2021).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.5506 “Rural Telehealth Access Task Force Act” Referred to the Committees on Energy and Commerce and Agriculture (Oct. 8, 2021).
H.R.5521 “Rural Capital Access Act” Referred to the Committees on Small Business and Agriculture (Oct. 8, 2021).
H.R.5560 “Military Support for Fighting Wildfires Act” Referred to the Committees on Armed Services, Agriculture, Transportation and Infrastructure, and Intelligence (Oct. 12, 2021).
H.R.3075 “Illegal Fishing and Forced Labor Prevention Act” Ordered to be Reported (Amended) by Voice Vote (Oct. 13, 2021).
H.R.3670 “Simplifying Outdoor Access for Recreation Act” or the “SOAR Act” Ordered to be Reported (Amended) by Unanimous Consent (Oct. 13, 2021).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
No new actions Oct. 11–15, 2021.
Connect with the Center on Facebook or on Twitter @AgShaleLaw
Top #AgLaw HotLinks Oct. 11–15, 2021
FAS: “China Continues to Drive Red Meat Trade”, Univ. of Illinois Farm Policy News
Global Food Prices Highest Since 2011, as Energy Costs Rise and Supply Chain Challenges Persist, Univ. of Illinois Farm Policy News
Facing a Merger and a Pay Cut, Chicken Farmers Push Back, Food & Environment Reporting Network
Ohio House Passes Bill to Deregulate Ephemeral Streams, Farm and Dairy
Reports Shows Government Mandates for Price Discovery Cost Cattle Industry Billions, Brownfield
Deere Workers Go on Strike After UAW Fails to Reach Deal, AgWeb
New GAO Report Details How Federal Nutrition Programs Are Thwarted by Agencies Working at Cross Purposes, The Counter
Judge Tosses Subway Tuna Complaint, LawStreet
Biden Ends Workplace Immigration Raids, Reversing Trump Policy, New York Times
Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.
Written by:
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney
