Agricultural Law Weekly Review – Week Ending September 24, 2021

WOTUS: Supreme Court Petition Seeks Review of Rapanos Case Analysis 🌾
On September 24, 2021, Priest Lake, Idaho landowners Michael and Chantell Sackett filed a petition for writ of certiorari in the U.S. Supreme Court seeking to revisit the court’s 2006 Rapanos decision attempting to define jurisdictional “waters of the United States” under the Clean Water Act (CWA).  Michael Sackett, et ux. v. EPA, No. 21-454.  In Rapanos v. United States, the plurality opinion, in which four justices joined, determined that the CWA regulates surface waters only when they have a “continuous surface water connection” to a regulated body of water.  The concurring opinion, in which three dissenting justices joined, claimed that surface waters with a “significant nexus” to regulated waters are subject to the CWA.  The Sacketts petition for writ of certiorari appeals a August 2021 decision of the U.S. Court of Appeals for the Ninth Circuit, which used the “significant nexus” test to determine that surface waters on the Sacketts’ property is subject to CWA regulation.  A response is due from the U.S. Environmental Protection Agency by October 25, 2021.

Animal Health: USDA Announces Transport Suspension, African Swine Fever Protection Zone in Puerto Rico and U.S. Virgin Islands
On September 16, 2021, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced its issuance of a federal order suspending the interstate transport of all swine, swine products, and swine byproducts from Puerto Rico and the U.S. Virgin Islands.  The order is effective immediately and will remain in place until APHIS enacts “sufficient mitigations” to safely allow swine transport between the jurisdictions.  Promulgated under 7 USC §§ 8301 and  8305, APHIS issued the order in response to the July 2021 confirmation of African swine fever (ASF) in the Dominican Republic.  Additionally, on September 21, 2021, USDA reported a confirmed case of ASF in Haiti in a province bordering the Dominican Republic.  APHIS states that, although ASF has not been detected in either Puerto Rico or the U.S. Virgin Islands, the swine transport suspension acts as part of the agency’s larger effort to establish an ASF “protection zone” in the two territories.  On September 24, 2021, APHIS reported that it had submitted a record of its ASF protection efforts to the World Organization for Animal Health (OIE) to finalize the ASF protection zone.  This creates the foundation for permitting U.S. pork products to remain eligible for international export despite ASF’s potential future presence in either of the two U.S. territories.

Biotechnology: APHIS Announces Deregulation of Arctic Gala Apple
On September 22, 2021, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced that it will no longer regulate the PG451 Arctic Gala, an apple variety genetically engineered by Okanagan Specialty Fruits, Inc. (OSF) to avoid browning.  APHIS states that after reviewing public comments from its PG451 Arctic Gala Plant Pest Risk Similarity Assessment (PPRSA), preliminary Determination, and OSF’s deregulation request, the agency has determined that the PG451 Arctic Gala apple is unlikely to present a plant pest risk.  Previously, APHIS deregulated the same anti-browning trait in OSF’s GD743 Arctic Golden apple and GS784 Arctic Granny apple.  The agency now extends deregulation to OSF’s PG451 Arctic Gala.  For background, see ALWR—Week Ending July 2, 2021, “APHIS Publishes Environmental Assessments for Deregulation of Genetically Engineered Apple Variety.”

Dairy Policy:  Pennsylvania Milk Marketing Board Issues $1.00 Over-Order Premium
On September 22, 2021, the Pennsylvania Milk Marketing Board (PMMB) issued Official General Order No. A-1012, continuing the current $1.00 per hundredweight over-order premium (OOP) for all Class I milk produced, processed, and sold in Pennsylvania for the next six months, effective October 1, 2021, through  March 31, 2022.

CENTER FOR AGRICULTURAL AND SHALE LAW PROGRAMS & RESOURCES

Agricultural Law Podcast:
Special Episode #10. Glyphosate Litigation (Sept. 24, 2021).
Weekly Episode #194. White House Addresses Meat Industry Consolidation & USDA Announces $1.4 Billion in Grants for Food Workers and Small Businesses (Sept. 10, 2021).
Weekly Episode #193. Federal Court Vacates 2020 WOTUS Rule & D.C. Appeals Court Rules Animal Rights Groups May Challenge Hormel’s “Natural Choice” Advertising (Sept. 7, 2021).

Events:
Webinar Recording: Overview of Federal and State Purchase of Agricultural Conservation Easement (PACE) Programs, presented by Ross Pifer for the National Agricultural Law Center on Sept. 15, 2021.
Webinar Recording: Understanding Federal Milk Marketing Orders and Current Dairy Risk Management Tools, presented by Brook Duer for the National Agricultural Law Center on June 16, 2021.
Webinar: Pennsylvania’s Agritourism Act with the Farm Bureau, Sept. 30, 2021, 12:00 p.m.
Pennsylvania Senate Agriculture and Rural Affairs Committee, Hearing on Utility Scale Solar Development and Agricultural Land in Pennsylvania, recording of hearing and written testimony, nine witnesses including Brook Duer, Sept. 21, 2021.

Penn State News, Research, & Resources:

Software Tool That Finds Spots for Water-Quality Devices Will Work in Northeast (Sept. 14, 2021).

$2 Million Grant Awarded for Climate-Adaptive Infrastructure Design (Sept. 23, 2021)

Agricultural Law/Policy Resources of Interest: 

AFBF Market Intel, A Guide to Class I Milk Formula Options (Sept. 23, 2021)

Chris Clayton—DTN/Progressive Farmer, Ag Policy Blog: NFU Rolls Out Fairness for Farmers Campaign (Sept. 22, 2021).

DTN/Progressive Farmer, Cybersecurity and Ag Series: 1—Cybercriminals Take Aim at America’s Food Supply, 2—Ag Corporations Prepare for Battle Against Hackers (Sept. 21–23, 2021).

Tiffany Lashmet, Waters of the United States Update (Sept. 20, 2021).

Brigit Rollins, WOTUS Update: Breaking Down the Pre-2015 Regulatory Regime (Sept. 21, 2021).

Peggy Kirk Hall, Ohio Legislation on the Move: The Farm Science Review Edition (Sept. 24, 2021).

Roger A. McEowen, Estate Planning to Protect Assets From Creditors—Dancing On the Line Between Legitimacy and Fraud (Sept. 20, 2021).

Weekly Featured Graphic:

AFBF Market Intel, A Guide to Class I Milk Formula Options (Sept. 23, 2021)

AGENCY PRESS RELEASES—STATE/FEDERAL

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Secretary Of Agriculture: Dairy Innovation Fuels On-Farm Resiliency And STEM Careers (Sept. 20, 2021).

Secretary Of Agriculture, Second Lady Announce Partnership With DoorDash To Deliver Meals To Seniors In Need (Sept. 23, 2021).

U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:

USDA and HHS Launch Resource Guide to Help Rural Communities Increase Access to Child Care Services (Sept. 21, 2021).

USDA Takes Significant Steps to Build More Sustainable, Resilient and Inclusive Food Systems (Sept. 23, 2021).

USDA Announces Intent to Establish an Equity Commission, Solicits Nominations for Membership (Sept. 24, 2021).

USDA AGENCY PRESS RELEASES: 

Agricultural Marketing Service  

USDA to Host Educational Webinar Series for Pork Industry on Livestock Mandatory Reporting (Sept. 21, 2021).

USDA Pandemic Response and Safety Grant Program will Accept Applications Starting October 2021 (Sept. 22, 2021).

Seafood Processors Pandemic Response and Safety Block Grant Program (Sept. 23, 2021).

Animal and Plant Health Inspection Service 

USDA Statement on Confirmation of African Swine Fever in Haiti (Sept. 21, 2021).

USDA Deregulates Corn Developed Using Genetic Engineering (Sept. 22, 2021).

Extension of Deregulation to Apples Developed Using Genetic Engineering (Sept 22, 2021).

APHIS Adds New Harmonized Tariff Codes to Lacey Act Enforcement Schedule (Sept. 23, 2021).

New Time and Date—BRS Regulatory Status Review Webinar, Sept. 28 (Sept. 23, 2021).

APHIS Eliminates the Voluntary Trichinae Certification Program (Sept. 23, 2021).

USDA Submits Dossier to the World Organisation for Animal Health to Finalize African Swine Fever Protection Zone (Sept. 24, 2021).

Economic Research Service

The Market for Chicken Raised Without Antibiotics, 2012–17 (Sept. 22, 2021).

Food and Nutrition Service

USDA Increases Flexibilities for School Year 2021-2022 (Sept. 23, 2021).

Food Safety and Inspection Service

Constituent Update—FSIS Updates Labeling Guideline for Packaged Meal Kits (Sept. 24, 2021).

Foreign Agricultural Service  

Private Exporters Report Sales Activity for Guatemala (Sept. 23, 2021).

National Agricultural Statistics Service

USDA to Host Special Virtual Data Users’ Meeting to Gather Public Input on Statistical Programs (Sept. 22, 2021).

Agricultural Statistics Board Briefing—Quarterly Hogs and Pigs (Sept. 24, 2021).

National Institute of Food and Agriculture

NIFA Invests $6 Million in Science that Analyzes the Risks of Introducing New Biotechnologies (Sept. 23, 2021).

NIFA Invests $2.9 Million for Research and Extension on Alfalfa Productivity, Resilience, Quality, and Marketing (Sept. 23, 2021).

NIFA Invests over $900,000 for Canola and Hemp Research (Sept. 23, 2021).

Natural Resources Conservation Service

USDA Investing $75 million in Partner-Led Projects with Focus on Climate-Smart Ag, Equity in Program Delivery (Sept. 24, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 39—Sept. 25, 2021):         

Department of Environmental Protection

51 Pa.B. 6214 Notice: “2022 Environmental Education Grants; Notice of Availability.”

51 Pa.B. 6152 Notice: “Applications For NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”

51 Pa.B. 6216 Notice: “Technical Advisory Committee on Diesel-Powered Equipment Meeting.”

51 Pa.B. 6216 Notice: “Withdrawal of Technical Guidance [Pennsylvania Sewage Facilities Act Program Guidance; Site Suitability and Alternatives Analysis Guidelines for New Land Development Proposing Onlot Sewage Disposal].”

State Conservation Commission

51 Pa.B. 6239 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.”

Susquehanna River Basin Commission

51 Pa.B. 6240 Notice: “Advertisement for Mandatory Pre-Proposal Conference and Site Visit.”

51 Pa.B. 6240 Notice: “Grandfathering Registration Notice.”

51 Pa.B. 6241 Notice: “Projects Approved for Consumptive Uses of Water.”

51 Pa.B. 6242 Notice: “Projects Approved for Minor Modifications.”

PENNSYLVANIA LEGISLATURE:      

Legislation in Second Chamber  

H Res 139 “A Concurrent Resolution extending in whole the disaster emergency declared on August 31, 2021, in response to the aftereffects of Hurricane Ida.” Signed in Senate (Sept. 21, 2021).

HB 1598 “An Act amending . . . the Flood Plain Management Act, replacing references to the Department of Community Affairs with the Pennsylvania Emergency Management Agency; in miscellaneous and appropriations, repealing provisions related to appropriations; making a related repeal; and making editorial changes.” First consideration [Senate] (Sept. 21, 2021).

Identical Legislation in Both Chambers

SB 872 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for transition to renewable energy . . . . [Go 100% Pennsylvania].” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [Senate] (Sept. 22, 2021).

HB 100 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for transition to renewable energy . . . . [Go 100% Pennsylvania].” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (Sept. 22, 2021).

Senate Legislation

SB 868 “An Act providing for registration of extraordinary water users; imposing a water resource fee; establishing the Water Use Fund; and providing for submission of a question to the electorate authorizing incurring of indebtedness for water-related environmental initiatives.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [Senate] (Sept. 17, 2021).

SB 725 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in licensing of drivers, further providing for classes of licenses; and in commercial drivers, further providing for requirement for commercial driver’s license [Clarification of Legislative Intent – Exemption for Farmers from CDL Requirements].” Re-referred to APPROPRIATIONS [Senate] (Sept. 21, 2021).

S Res 179 “A Resolution designating the month of September 2021 as ‘Mushroom Month’ in Pennsylvania.” Referred to RULES AND EXECUTIVE NOMINATIONS [Senate] (Sept. 22, 2021).

House Legislation

HB 1882 “An Act amending . . . the Dam Safety and Encroachments Act, providing for abandonment of dams.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (Sept. 20, 2021).

HB 1901 “An Act amending Titles 3 (Agriculture) and 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, in Conservation Excellence Grant Program, further providing for criteria for evaluation of applications; and, in conservation and natural resources, providing for nonpoint source pollution reduction and establishing the Agriculture Conservation Assistance Program, the Pennsylvania Clean Water Procurement Program and the Municipal Storm Water Assistance Program.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (Sept. 23, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

FEDERAL EXECUTIVE AGENCIES (Federal Register Sept. 20–24, 2021): 

Agriculture Department  

86 FR 52123 Notice—comments accepted: “Submission for OMB Review; Comment Request [Animal & Plant Health Inspection Service: Gypsy Moth Identification Worksheet]” (Sept. 20, 2021).

86 FR 52632 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): 2022 Census of Agriculture—Substantive Change]” (Sept. 22, 2021).

86 FR 52872 Notice—Comment Period: “Information Collection Request; Request for Geospatial Products and Services” (Sept. 23, 2021).

Agricultural Marketing Service

86 FR 52397 Direct Final Rule—Comment Period: “Cotton Research and Promotion Program: Procedures for Conduct of Sign-Up Period” (Sept. 21, 2021).

86 FR 52420 Proposed Rule—Comment Period: “National Dairy Promotion and Research Board Reapportionment” (Sept. 21, 2021).

Animal and Plant Health Inspection Service

86 FR 52123 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Pale Cyst Nematode” (Sept. 20, 2021).

86 FR 52954 Final Rule: “Elimination of the Voluntary Trichinae Certification Program” (Sept. 24, 2021).

Environmental Protection Agency

86 FR 52077 Final Rule, comments accepted: “Fluazinam; Pesticide Tolerances” (Sept. 20, 2021).

86 FR 52083 Final Rule, comments accepted: “Pyraclostrobin; Pesticide Tolerances” (Sept. 20, 2021).

86 FR 52082 Rule: “Spinetoram; Pesticide Tolerances; Corrections” (Sept. 20, 2021).

86 FR 52624 Proposed Rule—Comment Period: “Receipt of Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities (September 2021)” (Sept. 22, 2021).

86 FR 53004 Final Rule, comments accepted: “Metalaxyl; Pesticide Tolerances” (Sept. 24, 2021).

Executive Office of the President

86 FR 52589 Presidential Document: “National Farm Safety and Health Week, 2021” (Sept. 22, 2021).

Food and Drug Administration

86 FR 52401 Final Rule—comment Period: “Import Tolerances for Residues of Unapproved New Animal Drugs in Food” (Sept. 21, 2021).

Food Safety and Inspection Service

86 FR 52439 Notice: “Availability of Kit Product Labeling Guideline” (Sept. 21, 2021).

Occupational Safety and Health Administration

86 FR 52502 Notice—Comment Period: “Migrant Worker Whistleblower Stakeholder Meeting” (Sept. 221, 2021).

Susquehanna River Basin Commission

86 FR 52944 Notice: “Actions Taken at September 17, 2021 Meeting” (Sept. 23, 2021).

86 FR 52965 Final Rule: “Review and Approval of Projects” (Sept. 24, 2021).

U.S. Codex Office

86 FR 52124 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Nutrition and Foods for Special Dietary Uses” (Sept. 20, 2021).

U.S. Customs and Border Protection

86 FR 52609 Rule: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada” (Sept. 22, 2021).

86 FR 52611 Rule: “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico” (Sept. 22, 2021).

U.S. HOUSE AGRICULTURE COMMITTEE:   

H.R.5282 “To establish a mental health program for Federal wildland firefighter, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Sept. 17, 2021).

H.R.5283 “Housing for our Firefighters Act.” Referred to the Committees on Natural Resources and Agriculture (Sept. 17, 2021).

H.R.5290 “To extend authorization for livestock mandatory reporting.” Referred to the House Committee on Agriculture (Sept. 17, 2021).

H.R.5309 “Fresh Produce Procurement Reform Act of 2021.” .” Referred to the House Committee on Agriculture (Sept. 21, 2021).

H.R.5341 “To fill vacancies for Forest Service recreation management and planning staff in National Forests and Grasslands, and for other purposes.” Referred to the House Committee on Agriculture (Sept. 22, 2021).

H.R.5346 “To amend the Food and Nutrition Act of 2008 to provide for the direct certification and enrollment of households of active members of the Armed Forces of the United States in the supplemental nutrition assistance program; and for other purposes.” Referred to the Committees on Agriculture and Armed Services (Sept. 23, 2021).

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

No new actions Sept. 20–24, 2021.

U.S. CONGRESSIONAL LEGISLATIVE HEARINGS: 

Senate Agriculture Committee: 

Milk Pricing: Areas for Improvement and Reform (recorded Sept. 15, 2021).

Connect with the Center on Facebook or on Twitter @AgShaleLaw

Top #AgLaw HotLinks  Sept. 20–24, 2021 

Regan: Ag WOTUS Exemptions to Remain, DTN Progressive Farmer

Fires Fuel New Risks to California Farmworkers, Inside Climate News

New Study Adds to Mounting Evidence That Farmworkers Suffer Higher Rates of COVID-19, FERN’s Ag Insider

Attempts to Cut Milk Production Fall Short, Brownfield

Cargill Launches Carbon Farming Program, Farm Progress

Vilsack: US Moving Forward with Net Zero Greenhouse Gas Emissions Plan, Meat+Poultry

Podcast: From Academia to DC, and Back Again, Meat+Poultry

Op-ed: Giant Meat and Dairy Companies Are Dominating the Plant-Based Protein Market, Civil Eats

Modern-Day Dairy Crisis Facing Industry, Feedstuffs

Rural Covid-Death Rate Twice as High as Urban One, Daily Yonder

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