Thursday, November 7, 2019

Agricultural Law Weekly Review - November 7, 2019

Written by:  
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Agricultural Finance:  Chapter 12 Farm Bankruptcies Increasing 
On October 30, 2019, American Farm Bureau (AFB) released a market intelligence report authored by Chief Economist John Newton showing that Chapter 12 farm bankruptcy filings rose 24% in the 12-month period ending September 2019 as compared to the same period one year earlier.  There were a total of 580 Chapter 12 filings, which nevertheless remains lower than the recent high of 676 filings in 2011.  Individual state and regional filings varied greatly but nine states recorded totals at or above 10-year highs (Iowa, Kansas, Maryland, Minnesota, Nebraska, New Hampshire, South Dakota, Wisconsin and West Virginia).  More than 40% of the filings, 255, were in a 13-state region of the Midwest.  That compares to 78 filed in the Northeast and Mid-Atlantic regions combined.  The Southeast recorded the second-highest total with 118 filings, an increase in that region of 31%.  While Newton also reported record-high total farm income projections for 2019 of $88 billion, nearly 40% of that income or approximately $33 billion, is attributable to trade war aid, disaster assistance, farm bill programs and insurance indemnities.

Right to Farm Laws:  Pennsylvania Attorney General Releases 2019 ACRE Annual Report 
On October 25, 2019, the Pennsylvania Office of Attorney General (OAG) released its annual report of case review and enforcement activity under Pennsylvania’s 2005 Agriculture, Communities and Rural Environment (ACRE) statute.  Under the ACRE statute, OAG has the authority, among other things, to review a local ordinance upon referral and determine if it  meets the statute’s definition of “unauthorized” due to infringement upon the conduct of a “normal agricultural operation’ as defined in Pennsylvania’s Right to Farm Law.  If so, OAG may seek injunctive relief against its enforcement.  In the state fiscal year from July 2018 to June 2019, OAG received nineteen (19) referrals of new cases, as compared to eight (8) the previous fiscal year, closed twelve (12) cases and continued working on fifteen (15) cases remaining from previous years.  Since the 2005 inception of the ACRE program, OAG reports 174 total referrals, 33 of which remain pending and 141 of which have been resolved. Of the 174 total referrals since 2005, 7 resulted in lawsuits being filed.  Frequently, cases are resolved through negotiation with township governments for ordinance amendments.  The report details the status of each lawsuit and what case law precedent has been established.  The report is not yet posted on OAG’s website but is available upon request at

Conservation Programs:  NRCS Proposes Revisions to the National Handbook of Conservation Practices Mandated by the 2018 Farm Bill 
On October 23, 2019, the Natural Resources Conservation Service (NRCS) published proposed revisions to the National Handbook of Conservation Practices (NHCP) regarding standards for planning, designing, installing, operating and maintaining an enumerated list of thirteen (13) conservation practices used in conservation systems that treat highly erodible land (HEL) or on land determined to be a wetland. There is a thirty (30) day public comment period which closes on November 22, 2019.  These revisions stem from a mandate contained in the 2018 Farm Bill for NRCS to review current conservation practice standards to increase flexibility, optimize site-specific needs and minimize risks of design failure.  The conservation practice standards proposed to be revised support programs such as the Environmental Quality Incentives Program and Conservation Stewardship Program. Ultimately, those programs help producers cover part of the costs for implementing these practices. 

Food Policy:  USDA, EPA, and FDA Partner with the Food Waste Reduction Alliance
On October 30, 2019, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) announced a Memorandum of Understanding (MOU) establishing a formal collaboration with the Food Waste Reduction Alliance (FWRA).  The FWRA is an initiative between the Grocery Manufacturers Association, the Food Marketing Institute, and the National Restaurant Association that aims to reduce the creation of food waste, increase donations of food to those in need, and divert inevitable food waste from landfills through recycling.  The collaboration between the federal agencies and the FWRA is intended to further the Winning on Reducing Food Waste Federal Interagency Strategy of the EPA, USDA, and FDA.  According to the MOU, the parties intend to share best practices on food waste reduction, collaborate on industry education efforts to reduce food waste, and encourage “safe and effective food donation” through the promotion of the Bill Emerson Good Samaritan Act, a 1996 federal statute encouraging food donation by limiting liability risks.   

From National Ag Law Experts: 
Penn State Research:
Sam Sholtis Malaria parasite lives on the edge (October 31, 2019)

Pennsylvania Department of Agriculture:

Pennsylvania Executive Agencies—Actions and Notices: 
Department of Agriculture

Department of Environmental Protection

Delaware River Basin Commission

Pennsylvania Legislature
H.B.1085 “An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the State Personal Property Tax Act.” Presented to the Governor (October 29, 2019)
S.B.147 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in Pennsylvania Game Commission, further providing for accountability; and, in hunting and furtaking, further providing for hunting on Sunday prohibited and for trespass on private property while hunting and providing for hunting on Sunday without written permission.” Passed in House (October 30, 2019)
S.B.350 “An Act amending Titles 3 (Agriculture), 18 (Crimes and Offenses) and 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, providing for adult-use cannabis and establishing the Adult-Use Cannabis Grant Program and the Adult-Use Cannabis Fund; in criminal history record information, further providing for expungement; in sentencing, providing for commutation and dismissal of cannabis-related offenses; and imposing penalties.” Referred to Agriculture and Rural Affairs (October 31, 2019)
H.B.188 “An Act providing for property owner's bill of rights statement.” Laid on table, House (October 30, 2019)
H.B.827 “An Act designating certain activity by the Delaware River Basin Commission as the exercise of the power of eminent domain that entitles the owners of the property in question to appropriate and just compensation.” Removed from table in House (October 29, 2019)

Federal Executive Agencies—Actions and Notices:
USDA - Agricultural Marketing Service
“Establishment of a Domestic Hemp Production Program,” Interim Final Rule (October 31, 2019). 

Animal and Plant Health Inspection Service

Environmental Protection Agency
“Isotianil; Pesticide Tolerances,” Final Rule (November 1, 2019). 

Farm Credit Administration

Fish and Wildlife Service

Food and Drug Administration

Food and Nutrition Service

Forest Service

Geological Survey

International Trade Administration

Susquehanna River Basin Commission
“Commission Meeting,” Notice (November 6, 2019)

Wage and Hour Division
“Fluctuating Workweek Method of Computing Overtime,” Proposed Rule (November 5, 2019). 

Workers Compensation Programs Office

U.S. House Agriculture Committee Actions: 
H.R.4895 “CFTC [Commodity Futures Trading Commission] Reauthorization Act of 2019” Introduced, Referred to Committee (October 29, 2019). 
H.R.4902 “ARPA [Advanced Research Projects Agency]-Terra Act of 2019,” Introduced, Referred to Committee (October 29, 2019).
H.R.4909 “CFTC [Commodity Futures Trading Commission] Cost-Benefit Analysis Improvement Act,” Introduced, Referred to Committee (October 29, 2019). 
H.R.4874 “Rebuild Rural America Act of 2019,” Introduced, Sponsor introductory remarks (October 30, 2019). 
H.R.4930 “To amend the Federal Lands Recreation Enhancement Act to provide for a lifetime National Recreational Pass for any veteran with a service-connected disability,” Introduced, Referred to Committees (October 30, 2019). 
H.Con.Res.71 “Urging all nations to outlaw the dog and cat meat trade and to enforce existing laws against such trade,” Introduced, Referred to Committees (October 31, 2019). 

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 
S.2732 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to establish the Advanced Research Projects Agency-Terra, and for other purposes,” Read twice and referred to committee (October 29, 2019). 
S.2744 “A bill to amend the Federal Meat Inspection Act to modify requirements for a meat food product of cattle to bear a "Product of U.S.A." label, and for other purposes,” Read twice and referred to committee (October 30, 2019). 
S.2752 “A bill to amend the Richard B. Russell National School Lunch Act to improve program requirements, and for other purposes,” Read twice and referred to committee (October 30, 2019). 
S.2760 “A bill to amend the Richard B. Russell National School Lunch Act to enhance direct certification under the school lunch program,” Read twice and referred to committee (October 31, 2019). 

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