October 18, 2022

Agricultural Law Weekly Review – Week Ending October 14, 2022

Agricultural Finance: Socially Disadvantaged Farmers Allege Breach of Contract for Repeal of American Rescue Plan Act Debt Relief Program 🌾
On October 7, 2022, forty-one individuals filed a complaint in the U.S. Court of Federal Claims alleging breach of contract against the U.S. government for Congress’s repeal of the socially disadvantaged farmer debt relief program in the American Rescue Plan Act (ARPA). Boyd v. United States, No. 1:22-cv-01473. The repeal was part of the Inflation Reduction Act (IRA), Sec. 22008.  The plaintiffs, who meet the definition of “socially disadvantaged farmers” (SDF) under ARPA’s Section 1005–1006 debt relief provisions, claim that the U.S. Department of Agriculture’s (USDA) issuance of form letters established a contractual offer—if an SDF “accepted USDA’s calculation of their eligible debt and waived their right to appeal it,” then USDA would discharge the listed amount owed.  The plaintiffs state that they accepted USDA’s offer and relied on it by “maintain[ing] or expand[ing] their operations.”  The plaintiffs’ claims face many legal challenges, including proving an enforceable contract was formed, overcoming Congress’s inherent constitutional power to terminate government programs or expenditures, and establishing the proper measure of damages, including mitigation by participation in the IRA’s new substitute debt relief program.  On October 13, 2022, the U.S. government docketed an attorney appearance but has yet to respond to the complaint.

Agricultural Finance: Public Comment Sought on Revised Debt Relief Program
On October 14, 2022, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register (87 FR 62359) requesting public comment regarding implementation of Section 22007 of the Inflation Reduction Act (IRA).  Section 22007 provides $2.2 billion in funding for farmers, ranchers, and forest landowners impacted by discrimination in USDA farm lending programs.  Also announced by USDA, the agency requests comments on 1) how former farm lending borrowers should be supported through the program; 2) how former borrowers who experienced discrimination should be identified; and 3) what criteria should be used to select a third-party administrator for the program.  USDA will accept comments through three scheduled listening sessions on October 20, 26, and November 1, 2022, as well as through the Federal Register until November 11, 2022.

Agricultural Finance: FSA Sends Letters Asking Guaranteed Lenders to ‘Suspend Adverse Actions’ on Farm Loans Subject to Revised Debt Relief
On October 7, 2022, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) sent a letter to guaranteed farm loan lenders requesting that the lenders “suspend all adverse actions” for guaranteed borrowers until the implementation of Section 22006 of The Inflation Reduction Act (H.R. 5376).  Section 22006 provides $3.1 billion for farm loan assistance for distressed borrowers with both direct and guaranteed loans.  Additionally, the FSA is requesting that lenders who do proceed with adverse actions against guaranteed borrowers give the FSA a 14-day notice and submit the required liquidation plan to the agency so that FSA can propose alternatives.

Water Quality: Writ of Mandamus Sought to Compel Stricter Clean Water Act CAFO Regulations
On October 7, 2022, Food and Water Watch (FWW) and ten other environmental groups filed a petition for a writ of mandamus against the U.S. Environmental Protection Agency (EPA) in the U.S. Court of Appeals for the Ninth Circuit. Food & Water Watch, Inc., et al v. USEPA, Docket No. 22-70226.  The petition seeks to compel EPA to respond to a 2017 petition filed by FWW, which called for the agency to promulgate stricter Clean Water Act (CWA) regulations for concentrated animal feeding operations (CAFO).  EPA has issued no response to the petition in the five years since filing, which the petitioners claim violates the requirement to respond “within a reasonable time” required by 5 U.S.C. § 555(b) of the Administrative Procedures Act (APA).

Food Safety: DOJ Seeks Permanent Injunction Against California Noodle Company for Food Adulteration and Misbranding
On October 11, 2022, the U.S. Department of Justice (DOJ) filed a civil complaint against Cali Rice Valley, Inc. (Cali) requesting a permanent injunction against the company for numerous violations of the Federal Food, Drug, and Cosmetic Act and the law’s U.S. Food and Drug Administration (FDA) regulations (21 C.F.R. § 117, Subpart C, “Hazard Analysis and Risk-Based Preventive Controls”). U.S.A v. Cali Rice Valley, No. 3:22-cv-05967.  The complaint alleges multiple food safety and sanitation violations (insects and birds in production areas) and misbranding violations (omission of food dyes and allergens on labels and incorrectly stated manufacturer location).  DOJ seeks an injunction against Cali that would require it to cease all operations until the company complies with all applicable laws and FDA regulations.

Animal Health: Highly Pathogenic Avian Influenza Update
As of October 17, 2022, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service’s (APHIS) HPAI 2022 Confirmed Detections database confirmed a total of 532 highly pathogenic avian influenza (HPAI) detections in 42 states (242 commercial flocks and 290 backyard flocks), resulting in 47.45 million birds depopulated nationally.  October 2022 continues to see a resurgence in infected commercial poultry premises (13 new commercial premise detections and 32 backyard flocks), including the first detection in Arkansas—the second largest broiler-producing state—on October 7, 2022, which resulted in depopulation of 56,000 commercial broiler breeder pullets on a premise in Madison County, Arkansas.  In Pennsylvania, there have been four backyard flock detections (Westmoreland, Lancaster, Berks, and Monroe Counties) and two commercial premise detections (Adams County—2,800 depopulated—and York County—25,500 turkeys depopulated) since September 29, 2022.

Water Quality: Chesapeake Executive Council to Take One Year to Develop ‘Path Forward’ Plan in Light of Missed 2025 Goals
On October 11, 2022, the Chesapeake Executive Council met for its annual meeting at the U.S. Environmental Protection Agency (EPA) headquarters in Washington, D.C.  Prior to the meeting, on October 4, 2022, EPA released formal evaluations of each individual state’s progress in 2020–21 and established 2022–23 Chesapeake Bay milestones towards meeting the Bay’s total maximum daily load (TMDL) and the states’ obligations under the Chesapeake Bay Watershed Agreement.  Although the council is composed of the six Bay State governors (Del., Md., Va., W. Va., Pa., and N.Y.), D.C. Mayor, Chesapeake Bay Commission Chair, and EPA Administrator, only members from Maryland, Virginia, EPA, and the Chesapeake Bay Commission were in attendance.  At the meeting, EPA’s Chesapeake Bay Program Office released the “2021-2022 Bay Barometer: An Annual Report on the State of the Program and the Health of the Chesapeake Bay.”  According to a post-meeting press release, “[T]he Council agreed to set a path forward over the next year to outline the necessary steps, and prioritize the actions needed, to meet the targets of the Watershed Agreement outcomes. This charge will consider recommendations on how to best address and integrate new science and restoration strategies, as well as emerging issues and changing conditions in the watershed (e.g., climate change). This critical plan is expected to be put into place in time for the 40th anniversary of the Chesapeake Bay Program in 2023. . . .”

Tax Policy: New Zealand Proposes Agricultural Emissions Tax
On October 11, 2022, New Zealand’s Ministry for the Environment announced the opening of the consultation period for the government’s proposed agricultural emissions pricing scheme.  The proposed “farm-level, split-gas” assessment would require farmers to report and pay a tax on their farm’s emissions beginning in 2025, determined by their farm size, number of livestock, and nitrogen fertilizer use.  According to the proposal, revenues from the emissions tax would fund emissions-reduction and carbon sequestration incentive payments.  The consultation period closes November 18, 2022.

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CENTER PROGRAMS & RESOURCES

New at aglaw@psu.edu:

Agricultural Law Podcasts:

Events:

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

  • Oct. 21, 2022, noon ET: Understanding the Basics of Crop Insurance
  • Recent webinar recordings available:
    • Understanding the Basics of Livestock Market Regulation (Sept. 23, 2022)
    • Under the Basics of Agricultural Cooperatives (Aug. 26, 2022)
    • Understanding the Basics of Statutory Protections for Agricultural Operations (July 22, 2022)

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

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

Resources Of Interest:

Webinars & Events

Academic & Government Resources of Interest

 Media & Industry Resources of Interest

American Farm Bureau Federation:

Progressive Farmer/DTN

AEI.ag Presents, podcast Seasons 1, 2 (complete) and 3 (ongoing).

  • Season 1, Escaping 1980, 7 episodes about the 1980s farm financial crisis and “what we can do to avoid the next one.”
  • Season 2, Corn Saves America, 10 episodes about the rise of corn ethanol and “lessons that are applicable to the current enthusiasm about carbon offsets.”
  • Season 3, Nothing Borrowed, Nothing Gained, on-going series which AEI.ag describes as a “spotlight on the often-mysterious world of agricultural lending. How does a farm loan work? Where, exactly, does the money that farmers borrow come from? Tune in to connect the dots from the farm to the Federal Reserve and Wall Street.”

Penn State News, Research & Resources:

Top #AgLaw HotLinks Oct. 10–14, 2022:

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

USDA Announces More Than $71 Million to Support Underserved Communities (Oct. 14, 2022).

USDA Releases Proposed Regulatory Framework to Reduce Salmonella Infections Linked to Poultry Products (Oct. 14, 2022).

USDA Extends Flexibility that’s Helping Manufacturers, States get Formula to WIC Families (Oct. 13, 2022).

USDA Seeking Public Comment on a New Provision to Provide Assistance to Agricultural Producers Who Have Experienced Discrimination (Oct. 13, 2022).

Biden-Harris Administration Invests $110 Million to Improve Health Care for Rural People in 43 States and Guam (Oct. 12, 2022).

President Biden Designates Camp Hale-Continental Divide National Monument (Oct. 12, 2022).

Biden-Harris Administration Invests $80 Million to Improve Nutrition in School Meals (Oct. 11, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Biden-Harris Administration and EPA Announce Delivery of Historic Water Infrastructure Funding from the Bipartisan Infrastructure Law to Michigan (Oct. 14, 2022).

EPA awards Food Lifeline $200,000 for project to reduce methane, food waste in South Seattle (Oct. 12, 2022).

Biden-Harris Administration and EPA Announce Delivery of Historic Water Infrastructure Funding from the Bipartisan Infrastructure Law to Illinois (Oct. 11, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Takes Steps to Support Food Sovereignty with the Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation (Oct. 13, 2022).

USDA Announces Its Local Food Purchase Assistance Cooperative Agreement with Michigan (Oct. 12, 2022).

USDA Signs Cooperative Agreements with North Carolina to Promote Economic Opportunities for Farmers and Producers, Expand Local Foods in School Meals (Oct. 11, 2022).

Agricultural Research Service

Thrips Show Promise in Controlling the Invasive Brazilian Peppertree in Florida (Oct. 12, 2022).

Animal and Plant Health Inspection Service (APHIS)

USDA Proposes Additional Requirements for Imported Chilean Table Grapes (Oct. 14, 2022).

APHIS Provides Over $9 Million in Funding to Control and Prevent Chronic Wasting Disease (Oct. 12, 2022).

Food Safety and Inspection Service (FSIS)

USDA Releases Proposed Regulatory Framework to Reduce Salmonella Infections Linked to Poultry Products (Oct. 14, 2022).

Foreign Agricultural Service (FAS)

Export Sales to China, Philippines, and Unknown Destinations (Oct. 14, 2022).

Export Sales to China and Unknown Destinations (Oct. 13, 2022).

Export Sales to China (Oct. 12, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 10–14, 2022):            

Agricultural Marketing Service

87 FR 61559 Notice—Public Comment: “Information Collection for National Science Laboratories” (Oct. 12, 2022).

87 FR 61559 Notice—Public Comment: “United States Standards for Beans: Chickpea/Garbanzo Beans” (Oct. 12, 2022).

87 FR 61561 Notice: “United States Standards for Wheat” (Oct. 12, 2022).

87 FR 61268 Proposed Rule—Public Comment: “National Organic Program; Organic Livestock and Poultry Standards” (Oct. 11, 2022).

87 FR 61268 Proposed Rule—Public Comment: “Inert Ingredients in Pesticides for Organic Production” (Oct. 11, 2022).

Agriculture Department   

87 FR 62359 Request for Information: “Notice of Request for Public Comment on Providing Financial Assistance for Producers and Landowners Determined To Have Experienced Discrimination” (Oct. 14, 2022).

87 FR 62066 Notice: “Privacy Act of 1974; Systems of Records” (Oct. 13, 2022).

87 FR 61276 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Oct. 11, 2022).

Environmental Protection Agency

87 FR 61534 Final Rule: “Lysate of Willaertia magna C2c Maky; Exemption From the Requirement of a Tolerance” (Oct. 12, 2022).

87 FR 61531 Final Rule: “Dimethyl Sulfoxide; Exemption From the Requirement of a Tolerance” (Oct. 12, 2022).

87 FR 61537 Final Rule: “Siloxanes and Silicones, di-Me, Me Hydrogen; Tolerance Exemption” (Oct. 12, 2022).

87 FR 61557 Proposed Rule: “Notification of Submission to the Secretary of Agriculture; Pesticides; Addition of Chitosan (Including Chitosan Salts) to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products” (Oct. 12, 2022).

87 FR 61259 Final Rule: “Methoxyfenozide; Pesticide Tolerances” (Oct. 11, 2022).

Food and Nutrition Service

87 FR 61561 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request; Understanding the Relationship Between Poverty, Well-Being and Food Security” (Oct. 12, 2022).

Susquehanna River Basin Commission

87 FR 62174 Notice: “Public Hearing” (Oct. 13, 2022).

87 FR 62173 Notice: “Projects Approved for Consumptive Uses of Water” (Oct. 13, 2022).

87 FR 62175 Notice: “Projects Approved for Minor Modifications” (Oct. 13, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.9186 “To authorize the Secretary of Agriculture to provide grants to States to address contamination by perfluoroalkyl and polyfluoroalkyl substances on farms, and for other purposes.” Referred to the House Committee on Agriculture. (Oct. 14, 2022).

H.R.9184 “To codify the authority of the Secretary of Agriculture and the Secretary of the Interior to conduct certain landscape-scale forest restoration projects, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Oct. 14, 2022).

H.R.9183 “To facilitate the creation of designated shooting ranges on National Forest System land and public land administered by the Bureau of Land Management for the public to use for recreational target shooting, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Oct. 14, 2022).

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

S.5070 “A bill to authorize the Secretary of Agriculture to provide grants to States to address contamination by perfluoroalkyl and polyfluoroalkyl substances on farms, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Oct. 11, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Pennsylvania Protects 24 Farms In 10 Counties From Development: $7.5 Million Investment Feeds Our Economy And Future (Oct. 13, 2022).

National Champion Pennsylvania Christmas Tree Selected To Grace White House For 2022 Holidays (Oct. 10, 2022).

Keystone International Livestock Exposition Competition Highlights Include PA Livestock Hall Of Fame Inductee, Youth Recognition (Oct. 8, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 42—Oct. 15, 2022): 

Department of Agriculture

52 Pa.B. 6456 Notice: “Agricultural Hemp Promotion, Education and Export Promotion Matching Grant Program; 2022-2023 Application Period.”

52 Pa.B. 6457 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Agricultural Commodities Marketing Act Funding.”

Department of Environmental Protection 

52 Pa.B. 6462 Notice: “Applications, Actions and Special Notices.”

52 Pa.B. 6505 Notice—Bid Opportunity: “Acid Mine Drainage Abatement Project, Cucumber Run Rehab, Stewart Township, Fayette County.”

52 Pa.B. 6505 Notice—Bid Opportunity: “Cleaning Out and Plugging Ten Orphan Gas Wells, Moon Township, Ohio Township, and Sewickley Heights Borough, Allegheny County.”

52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 15 Orphan Gas Wells, Otto Township, McKean County.”

52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging Eight Orphan Gas Wells, Eulalia Township and Abbot Township, Potter County.”

52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 24 Orphan Gas Wells, Concord Township, Butler County.”

52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 22 Orphan Gas Wells, Eldred Township and Eldred Borough, McKean County.”

52 Pa.B. 6507 Notice: “Mine Families First Response and Communication Advisory Council Meeting.”

52 Pa.B. 6507 Notice: “Mosquitoborne Disease Control County Grants; Notice of Availability”

52 Pa.B. 6507 Notice: “Oil and Gas Technical Advisory Board Meeting Rescheduled”

52 Pa.B. 6508 Notice: “Planning Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988”

PENNSYLVANIA LEGISLATURE

No new agriculture-related actions this week.

 

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