Monday, August 17, 2020

Agricultural Law Weekly Review—week ending August 14, 2020


Agricultural Law Weekly Review—week ending August 14, 2020

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

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Right to Farm: Supreme Court Filing Challenges Indiana’s Right to Farm Act
On July 17, 2020, the Plaintiffs in the case Himsel v. Himsel (Ind. Ct. App. 18A-PL-00645) filed a petition for writ of certiorari in the U.S. Supreme Court (docket No. 20-72) challenging the constitutionality of Indiana’s Right to Farm Act. The Indiana Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the Defendants, dismissing the Plaintiffs’ claim that the “noxious emissions” from a neighboring concentrated animal feeding operation (CAFO) constituted “nuisance, negligence, and trespass” (No. 32D04-1510-PL-000150). The Plaintiffs claim that the act violates the Takings Clause of the U.S. Constitution. Any response to the petition is due August 24, 2020.

COVID-19: Coronavirus Food Assistance Program Further Expands Eligible Commodities; Application Deadline Extended
On August 14, 2020 the U.S. Department of Agriculture (USDA) published in the Federal Register two rules: “Notification of Funding Availability; Coronavirus Food Assistance Program (CFAP) Additional Eligible Commodities” (85 FR 49589) and “Coronavirus Food Assistance Program; Correction” (85 FR 49593). According to USDA’s August 10, 2020 announcement, the two rules expand CFAP eligibility to additional commodities and extend the application deadline for the program until September 11, 2020. Going forward. approved producers who have already received 80% of their eligible payment will automatically receive the remaining 20% and new producers first applying for CFAP, USDA will issue 100% of their eligible payment amount upon approval. USDA lists the following commodities now eligible for the program:
  • Specialty Crops: aloe leaves, bananas, batatas, bok choy, carambola (star fruit), cherimoya, chervil (french parsley), citron, curry leaves, daikon, dates, dill, donqua (winter melon), dragon fruit (red pitaya), endive, escarole, filberts, frisee, horseradish, kohlrabi, kumquats, leeks, mamey sapote, maple sap (for maple syrup), mesculin mix, microgreens, nectarines, parsley, persimmons, plantains, pomegranates, pummelos, pumpkins, rutabagas, shallots, tangelos, turnips/celeriac, turmeric, upland/winter cress, water cress, yautia/malanga, and yuca/cassava.
  • Non-Specialty Crops and Livestock: liquid eggs, frozen eggs and all sheep. Only lambs and yearlings (sheep less than two years old) were previously eligible.
  • Aquaculture: catfish, crawfish, largemouth bass and carp sold live as foodfish, hybrid striped bass, red drum, salmon, sturgeon, tilapia, trout, ornamental/tropical fish, and recreational sportfish.
  • Nursery Crops and Flowers: nursery crops and cut flowers.
National Agricultural Policy: USDA Announces Urban Agriculture County Committees and Seeks Nominations
On August 12, 2020, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced the creation of new urban agriculture-focused county committees, which “represent farmers and set priorities at the local level” for the implementation of FSA programs. The first five committees, which are coordinated through USDA’s Office of Urban Agriculture and Innovative Production, will be located in Albuquerque, N.M.; Cleveland, Ohio; Philadelphia, Pa.; Portland, Ore.; and Richmond, Va. The department plans to announce five additional county committees in the fall. Nominations will be accepted beginning on September 8, 2020, and nomination forms must be postmarked by October 2, 2020. The Office of Urban Agriculture and Innovative Production will host a webinar on August 27, 2020 at 2:00 p.m. EDT further discussing the new urban agriculture county committees.

WOTUS: 6th Circuit Dismisses WOTUS Challenge as Moot
On August 5, 2020, the U.S. Court of Appeals for the Sixth Circuit issued an opinion in the case State of Ohio v. EPA (No. 19-3500) “dismiss[ing] the appeal as moot.” The case, originally filed in 2015 by the states of Ohio and Tennessee against the U.S. Environmental Protection Agency (EPA), sought to temporarily enjoin the 2015 Clean Water Rule (80 FR 37053), which defined the “waters of the United States” (WOTUS). The court stated that, because the EPA and U.S. Army Corps of Engineers (Engineers Corps) have since repealed the 2015 rule (84 FR 56626) and replaced it with a new rule that became effective on June 22, 2020 (85 FR 22250), “the Agencies have already provided the States . . . [the] relief” they seek and “a preliminary injunction . . . would lack any practical effect” (see also “Navigable Waters Protection Rule Published in Federal Register,” Agricultural Law Weekly Review—April 23, 2020).

Agricultural Antitrust: New York Attorney General Files Suit Against Hillandale
On August 11, 2020, the Attorney General of New York announced the filing of a petition against Hillandale Farms in the Commercial Division of New York State Supreme Court for New York County, alleging that the company had gouged prices on more than four million cartons of eggs during the COVID-19 pandemic. The lawsuit claims that Hillandale, which is based in Ohio and Pennsylvania, took advantage of the pandemic to “line its own pockets and profit off New Yorkers during a time of crisis” by increasing egg prices to “double, triple, and even quadruple the prices it charged for the same products in January 2020.” In a statement released to the press, Hillandale denies the allegations and says that it is “prepared to defend against [the] allegations in court.”

COVID-19: FMCSA Extends Trucking Hours of Service Waiver Until September 14, 2020
On August 11, 2020, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced a further 30-day extension of its Emergency Declaration No. 2020-002 Under 49 CFR § 390.25 until September 14, 2020. The declaration, which has been extended monthly since its March 13, 2020 issuance and was previously set to expire on August 14, 2020, waives hours of service limits for transport of “essential supplies,” including food, feed and livestock. For more on this topic, see “Expanded Emergency Declaration Relaxes Hours of Service Trucking Rules For Food and Other Cargo until April 12, 2020,” Agricultural Law Weekly Review - March 19, 2020 and “Hours of Service Trucking Rules Exemption Includes Feed and Fertilizer as well as Food and Livestock,” Agricultural Law Weekly Review—April 2, 2020.

Local Meat Processing: FSIS Signs Cooperative Interstate Shipment Agreement with Vermont
On August 11, 2020, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) announced it had finalized a Cooperative Interstate Shipment (CIS) agreement with the State of Vermont. The CIS program allows “state-inspected plants [to] operate as federally-inspected facilities, under specific conditions, and ship their product[s] in interstate commerce and internationally.” The program is only available in states with an established Meat and Poultry Inspection Program that implement FSIS-equivalent regulatory standards. Products sold under a CIS program are labeled with a federal inspection mark.

COVID-19: Coronavirus Food Assistance Program (CFAP) Pennsylvania Data
Every Monday, USDA updates its publicly available data on aggregate Coronavirus Food Assistance Program (CFAP) payments. Pennsylvania totals as of August 10, 2020, are below:
PENNSYLVANIA                     Payments             Applications
Non-Specialty Crops                $15,647,116.47               4,153
Specialty Crops                          $4,353,780.11                    76
Livestock                                  $23,247,607.07               4,547
Dairy                                         $79,937,330.92              2,410
                        TOTALS          $123,185,834.57             11,186

Ag Progress Days Town Hall with Dean Roush and Secretary Redding
View the August 10, 2020, virtual town hall meeting with Penn State College of Agricultural Sciences Dean Rick Roush and Pennsylvania Department of Agriculture Secretary Russell Redding addressing the COVID-19 impact on Pennsylvania agriculture.

Subscribe to the Pennsylvania Farm Employers’ Listserv
The Penn State Center for Agricultural and Shale Law invites all Pennsylvania agricultural employers to participate in the newly-established Pennsylvania Farm Employers’ Listserv (PFEL). The PFEL is an email networking and resource-sharing group specifically tailored to agricultural labor issues for those with human resources responsibilities at agricultural operations In this forum, farm employers can exchange information and resources to better prepare them to do their jobs confidently and efficiently, keep up on the latest news and developments, and learn how to best comply with legal requirements from state and federal laws and agencies. The Penn State Center for Agricultural and Shale Law will participate and provide content. To subscribe, please send an email to: In the subject line, type “subscribe” and type any word in the body (to circumvent spam filtering).

From National Ag Law Authorities & Sources:
Roger A. McEowen, Demolishing Farm Buildings and Structures – Any Tax Benefit? (Aug. 12, 2020).
Nicole Cook, Farm Bill Helps Heirs Property Farmland Owners (Aug. 11, 2020).
Peggy Kirk Hall, Facing Farm Financial Stress: Assessing the Bankruptcy Option (Aug. 12, 2020).
Brigit Rollins, Hot Topics in Environmental Law: Litigation Updates (Aug. 12, 2020).

Penn State Research & News:
Cover Crop Roots are Key to Understanding Ecosystem Services (Aug. 12, 2020).
Research Helps Explain Source of Pathogen that Causes Bitter Rot Disease (Aug. 13, 2020).

Pennsylvania Department of Agriculture Press Releases:
Department of Agriculture Releases COVID-19 Restaurant Enforcement Actions (Aug. 12, 2020).
Secretary of Agriculture Announces $10 Million to Support Pennsylvania Agriculture Producers, Charitable Food System (Aug. 13, 2020).

U.S. Department of Agriculture (USDA) Press Releases:
USDA Announces More Eligible Commodities for CFAP (Aug. 11, 2020).
USDA Assists Farmers, Ranchers, and Communities Affected by Recent Derecho (Aug. 12, 2020).
Trump Administration Invests $371 Million to Improve Rural Electric Infrastructure in 11 States (Aug. 13, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:
New USDA Survey to Measure Areas for Improvement (Aug. 7, 2020).
USDA Accepting Applications to Help Cover Costs for Organic Certification (Aug. 10, 2020).
USDA Announces More Eligible Commodities for CFAP (Aug. 11, 2020).
USDA Announces New Farm Service Agency County Committees for Urban Agriculture, Requests Nominations (Aug. 12, 2020).
APHIS Awards Contracts to Provide up to Eight Million Low-Frequency Radio Frequency Identification Tags to Cattle and Bison Producers (Aug. 12, 2020).

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 33 Aug 15, 2020):
Department of Environmental Protection
50 Pa.B. 4194 Notice: “Draft National Pollutant Discharge Elimination System General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12).”
50 Pa.B. 4194 Notice:“Agricultural Advisory Board and Nutrient Management Advisory Board Joint Virtual Meeting.”

Fish and Boat Commission
50 Pa.B. 4214 Notice: “Proposed Changes to List of Class A Wild Trout Waters; October 2020.”
50 Pa.B. 4213 Notice: “Classification of Wild Trout Streams; Proposed Additions; October 2020.”

Pennsylvania Legislature
Senate Legislation
S.B. 1249 “An Act amending . . . Tax Reform Code of 1971, in sales and use tax, further providing for imposition of tax.” Referred to Finance [Senate] (Aug. 11, 2020).
S.B.1248 “An Act creating the Pennsylvania Investment in Economic Stimulus Act.” Referred to Community, Economic and Recreational Development [Senate] (Aug. 11, 2020).

House Legislation
H.B. 2795 “An Act amending. . . the Public School Code of 1949, in terms and courses of study, providing for science curriculum to include climate change.” Referred to Education [House] (Aug. 13, 2020).
H.B. 2786 “An Act providing for the expansion of broadband access in underserved areas; establishing the Underserved and Unserved Broadband Deployment Grant Program and the Underserved and Unserved Broadband Deployment Fund; and transferring funds from the COVID-19 Response Restricted Account.” Referred to Consumer Affairs [House] (Aug. 13, 2020).
H.B. 2778 “An Act amending . . . the Alternative Energy Portfolio Standards Act, further providing for definitions and for alternative energy portfolio standards, providing for solar photovoltaic technology requirements, for contract requirements for solar photovoltaic energy system sources, for renewable energy storage report, for energy storage deployment targets and for contracts for solar photovoltaic technologies by Commonwealth agencies and further providing for portfolio requirements in other states; and making a related repeal.” Referred to Environmental Resources and Energy [House] (Aug. 13, 2020).

Federal Executive Agencies (Federal Register August 10–14, 2020):
Agriculture Department
85 FR 48149 Notice: “Board for International Food and Agricultural Development.” (Aug. 10, 2020).
85 FR 49589 Rule: “Notification of Funding Availability; Coronavirus Food Assistance Program (CFAP) Additional Eligible Commodities.” (Aug. 14, 2020).
85 FR 49593 Rule: “Coronavirus Food Assistance Program; Correction.” (Aug. 14, 2020).

Agricultural Marketing Service
85 FR 49281 Proposed Rule—Comment Period:“Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Assessment Rate Increase.” (Aug. 13, 2020).
85 FR 49616 Notice: “Designation for the Cedar Rapids, Iowa Area.” (Aug. 14, 2020).

Environmental Protection Agency
85 FR 48654 Rule—Comment Period: “Pethoxamid; Pesticide Tolerance.” (Aug. 12, 2020).
85 FR 48651 Rule—Comment Period: “Nitrapyrin; Pesticide Tolerances.” (Aug. 12, 2020).
85 FR 49084 Rule: “National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing Residual Risk and Technology Review.” (Aug. 12, 2020).
85 FR 49261 Rule—Comment Period: “Novaluron; Pesticide Tolerances” (Aug. 13, 2020).

Farm Service Agency
85 FR 48149 Notice: “Notice of Funds Availability (NOFA) for the Organic Certification Cost Share Program.” (Aug. 10, 2020).

Fish and Wildlife Service
85 FR 48487 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Northern Spotted Owl.” (Aug. 11, 2020).
85 FR 48723 Notice—Comment Period: “Proposed Habitat Conservation Plan for the Taylor's Checkerspot Butterfly and Three Subspecies of the Mazama Pocket Gopher, Puget Sound Energy; Categorical Exclusion.” (Aug. 12, 2020).
85 FR 49391 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for Karner Blue Butterfly and Frosted Elfin in the Albany Pine Bush Preserve, Albany, Colonie and Guilderland, New York; Categorical Exclusion.” (Aug. 13, 2020).

Food and Drug Administration
85 FR 48124 Proposed Rule—Comment Period: “Request for Information and Comments on Consumption of Certain Uncommon Produce Commodities in the United States; Establishment of a Public Docket.” (Aug. 10, 2020).
85 FR 48542 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Third Party Disclosure and Recordkeeping Requirements for Reportable Food.” (Aug. 11, 2020).
85 FR 48650 Rule: “Food Additives Permitted in Feed and Drinking Water of Animals; Chromium Propionate.” (Aug. 12, 2020).
85 FR 49240 Rule: “Food Labeling; Gluten-Free Labeling of Fermented or Hydrolyzed Foods.” (Aug. 13, 2020).
85 FR 49657 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Recordkeeping and Reporting Requirements for Human Food and Cosmetics Manufactured From, Processed With, or Otherwise Containing Material From Cattle.” (Aug. 14, 2020).

Food and Nutrition Services
85 FR 49621 Notice—Comment Period: “Agency Information Collection Activities: Recordkeeping for Employment and Training Program Activity Report and Requests for Additional 100 Percent Funding.” (Aug. 14, 2020).
85 FR 49622 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Evaluation of Child Support Cooperation Requirements in the Supplemental Nutrition Assistance Program.” (Aug. 14, 2020).

Food and Safety Inspection Service
85 FR 49619 Notice—Comment Period: “Salmonella-State of the Science.” (Aug. 14, 2020).

Forest Service
85 FR 48500 Notice—Comment Period: “Pacific Northwest Region; Oregon; Land Management Plan Amendment; Forest Management Direction for Large Diameter Trees in Eastern Oregon.” (Aug. 11, 2020).
85 FR 48475 Rule: “Land Uses; Special Uses; Procedures for Operating Plans and Agreements for Powerline Facility Maintenance and Vegetation Management Within and Abutting the Linear Boundary of a Special Use Authorization for a Powerline Facility; Correction.” (Aug. 11, 2020).
85 FR 49625 Notice: “Request for Applications: The Community Forest and Open Space Conservation Program.” (Aug. 14, 2020).

Interior Department:
85 FR 49393 Notice—Comment Period: “Draft Invasive Species Strategic Plan; Tribal and Alaska Native Corporation Consultations, Public Listening Sessions and Request for Public Comments.” (Aug. 13, 2020).

Labor Department
85 FR 48271 Notice—Comment Period: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Disclosures to Workers Under the Migrant and Seasonal Agricultural Worker Protection Act.” (Aug. 10, 2020).
85 FR 49683 Notice—Comment Period: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Housing Occupancy Certificates Under the Migrant and Seasonal Agricultural Worker Protection Act.” (Aug. 14, 2020).

Small Business Administration
85 FR 48593 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Alabama.” (Aug. 11, 2020).
85 FR 48593 Notice: “Administrative Declaration of a Disaster for the State of Wisconsin.” (Aug. 11, 2020).
85 FR 49411 Notice: “Administrative Declaration of a Disaster for the State of Tennessee.” (Aug. 13, 2020).

U.S. House Agriculture Committee Actions:
H.R.7985 “To provide for assistance to rural water and waste disposal systems affected by the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (Aug. 7, 2020).
H.R.7978 “To increase wildfire preparedness and response throughout the United States, and for other purposes.” Referred to the Subcommittee on Economic Development, Public Buildings, and Emergency Management (Aug. 10, 2020).
H.R.7996 “To authorize the Secretary of Agriculture to subsidize payments on loans made under certain rural development loan programs, and for other purposes.” Referred to the House Committee on Agriculture (Aug. 11, 2020).
H.R.8064 “To authorize retail food stores and restaurants approved under the Food and Nutrition Act of 2008 to provide meals for immediate consumption, and frozen prepacked meals, to recipients of benefits provided under such Act.” Referred to the House Committee on Agriculture (Aug. 14, 2020).
H.R.8057 “To amend the Consolidated Farm and Rural Development Act with respect to the conservation loan and loan guarantee program.” Referred to the House Committee on Agriculture (Aug. 14, 2020).
H.R.8042 “To provide for agricultural economic injury disaster loans, and for other purposes.” Referred to the Committee on Agriculture and the Committee on Ways and Means (Aug. 14, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.4522 “A bill to amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to authorize appropriations for the United States-Israel Binational Agricultural Research and Development Fund.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 11, 2020).

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
August 10–14, 2020 Top #AgLaw links:
FDA/USDA Say They Are Making Progress on Labeling Cell-Made Food, Food Safety News (Aug. 7, 2020).
Extended Deadline Sought for CFAP, Feedstuffs (Aug. 7, 2020).
Dairy Sector Quietly Reaching New Global Milestones, Feedstuffs (Aug. 6, 2020).
Ag Progress Days Online Expo Features Live Webinars, Virtual Tours, Education, Farm and Dairy (Aug. 8, 2020).
USDA World Food Security Report Measures the Damage Caused by COVID-19 Pandemic, Food and Safety News (Aug. 11, 2020).
FEEDSTUFFS IN FOCUS: COVID, Cage-Free Movement Pose Ongoing Challenges to Egg Industry, Feedstuffs (Aug. 7, 2020).
NJA Announces Instructions for Spotted Lanternfly, Morning Ag Clips (Aug. 12, 2020).
CDC Report Documents COVID-19 Spread in Meat Plant, Meat+Poultry (Aug. 11, 2020).
Agriculture Replaces Fossil Fuels as Largest Human Source of Sulfur in the Environment, University of Colorado Boulder (Aug. 10, 2020).

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