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 pennstateaglaw.com.
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Antitrust: U.S. Department of Justice Indicts Six More Poultry Executives Over Alleged Price Fixing
On October 7, 2020, the U.S. Department of Justice announced a grand jury indictment in the U.S. District Court for the District of Colorado of six additional poultry executives for conspiring to rig bids and fix prices of U.S. broiler chickens in violation of the Sherman Act: Timothy R. Mulrenin, William Vincent Kantola, Jimmie Lee Little, William Wade Lovette, Gary Brian Roberts, and Rickie Patterson Blake. United States v. Penn, No. 1:20-cr-00152. Four indictments were previously issued in the same proceeding. Together, the ten defendants represent JBS, Pilgrim’s Pride Corp., Perdue Farms, Tyson Foods, Inc., Koch Foods, Inc., Case Farms, and George’s Inc. A trial date is yet to be released. For more on this topic, see “Poultry Industry Executives Indicted on Antitrust Charges,” ALWR—week ending June 12, 2020
Right to Farm Laws: U.S. Supreme Court Declines Challenge to Indiana's Right to Farm Act
On October 5, 2020, the Supreme Court of the United Stated denied certiorari in a case challenging Indiana’s Right to Farm Act as an unconstitutional “taking” without due process. (Himsel v. Himsel, Ind. Ct. App. 18A-PL-00645). On April 22, 2019, the Court of Appeals of Indiana upheld the trial court’s grant of summary judgment for the defendants which upheld the constitutionality of the law. For background, see ALWR-week ending August 14, 2020, “Supreme Court Filing Challenges Indiana’s Right to Farm Act.”
Agricultural Labor: Federal Court Enjoins Presidential Proclamation re: Non-Immigrant Work Visas
On October 1, 2020, the U.S. District Court for the Northern District of California entered a temporary injunction against the April 22, 2020 Presidential Proclamation 10014, titled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” extended until December 31, 2020 by Proclamation 10052. National Association of Manufacturers, et al. v. United States Department of Homeland Security, et al., No. 4:20-cv-04887. The court found that the Proclamation exceeded the President’s Congressionally delegated power and unlawfully “eviscerate[d] whole categories of legislatively-created visa categories” in the Immigration and Nationality Act, noting the nullification of the H-2B visa category. The court also noted that the finding of “displace[ment] and disadvantag[e]” to U.S. workers by the Secretary of Labor and the Secretary of Homeland Security stated in the Proclamation was insufficient as a matter of law due to lack of record evidence. The injunction remains in effect pending further litigation and is only applicable against the plaintiffs in the case.
Government Ethics: USDA Secretary Violates Hatch Act
On October 8, 2020, the U.S. Office of Special Counsel (OSC) issued letters to complainants U.S. Representative Marcia Fudge and Citizens for Responsibility & Ethics in Washington (CREW) publicly disclosing OSC’s finding that USDA Secretary Sonny Perdue violated the Hatch Act on August 24, 2020 when he made comments encouraging the public to vote for President Donald Trump at a USDA-funded function related to the Farmers to Families Food Box program. The OSC stated that Secretary Perdue must reimburse the U.S. Treasury for his travel expenses in order for OSC to close its file in the matter without further action.
COVID-19: Michigan Supreme Court Invalidates Governor’s COVID-19 Executive Orders
On October 2, 2020, the Michigan Supreme Court issued an opinion invalidating Michigan Governor Gretchen Whitmer’s COVID-19-related executive orders, including first-of-its-kind state mandatory agricultural worker protections and testing, issued under Michigan’s Emergency Management Act (EMA) and Emergency Powers of the Governor Act (EPGA). In re Certified Questions from the United States District Court, Western District of Michigan, Southern Division, No. 161492. The court found that because the legislature had not authorized the declaration of state of emergency after April 30, 2020, the orders were in violation of the EMA, and that the EPGA was an improper delegation of legislative power to the executive branch in violation of the Michigan Constitution. For background, see: “Michigan Governor Issues Executive Order for Agricultural Workers,” ALWR—week ending June 5, 2020; “Michigan Requires COVID-19 Testing for Agricultural Employees,” ALWR—week ending August 7, 2020; “Federal Court Denies Temporary Restraining Order Against Michigan’s Mandatory Ag Worker COVID-19 Testing,” ALWR—week ending August 21, 2020; “Sixth Circuit Upholds Denial of Injunction for Michigan Ag Worker Covid-19 Testing,” ALWR—week ending September 4, 2020.
Air/Water Quality: Pennsylvania Department of Agriculture and EPA Sign Letter of Understanding
On September 30, 2020, the Pennsylvania Department of Agriculture (PDA) and the U.S. Environmental Protection Agency (EPA) signed a Letter of Understanding (LOU) memorializing a list of program areas where the agencies’ may collaborate and coordinate their activities and work directly together, notably including the possibility of direct grants to PDA and also incorporating the following text in apparent reference to Chesapeake Bay TMDL compliance efforts: “EPA may provide advance notification to PDA prior to conducting planned EPA inspections on farms in Pennsylvania and prior to issuing any formal enforcement actions that may originate from the inspections. Where practicable EPA may invite PDA to accompany them on the farm inspection or field visit.” The LOU is non-binding, with an initial term of five years. The parties will summarize their activities in an annual report.
APHIS Publishes National Poultry Improvement Plan Final Rule
On October 5, 2020, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a final rule titled “National Poultry Improvement Plan and Auxiliary Provisions” (85 FR 62559). Among several changes, the rule conforms indemnity regulations for low pathogenic avian influenza to current policy practices and creates a U.S. Newcastle Disease Clean program. The rule becomes effective November 4, 2020.
COVID-19: CFAP 1 and CFAP 2 Pennsylvania Data
PENNSYLVANIA CFAP 1 Payments Applications (as of 10/4/20)
Dairy $104,772,996 2,742
Livestock $33,801,788 5,835
Non-Specialty Crops $22,469,609 4,989
Specialty Crops $8,400,312 167
Aqua Nursery Flora $1,015,420 20
TOTALS $170,460,125 13,753
PENNSYLVANIA CFAP 2 Payments Applications (as of 10/6/20)
Dairy $13,400,691 317
Sales Commodities $9,877,032 83
Acreage-Based $8,131,959 681
Livestock $4,606,966 509
Eggs/Broilers $727,112 14
TOTALS $78,206,490 1,604
Agricultural Law/Policy Resources of Interest:
NEW: Pennsylvania Farm Bureau Podcast “Farm Focus”
Drew Mitchell, Rule Change Alters Farm Service Agency Programs Eligibility and Payment Limits (Oct. 8, 2020).
Sarah Catherine Copper, All American: ‘Made in the USA’ Labeling Proposed Rule Faces Scrutiny (Oct. 6, 2020).
Peggy Kirk Hall, Court of Appeals Confirms Decision Not to Allow Weddings on Hay Farm as “Agritourism” (Oct. 7, 2020).
Roger A. McEowen, TMDL Requirements - The EPA’s Federalization of Agriculture (Oct. 9, 2020).
Tiffany Lashmet, 2020 USDA Land Values Summary Report (Oct. 5, 2020).
Penn State Research & News:
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
U.S. Department of Agriculture (USDA) Press Releases:
USDA Awards $10 Million to Move SNAP Participants Forward (Oct. 9, 2020).
U.S. Department of Agriculture (USDA) Agencies Press Releases:
USDA Announces 2021 Upland Cotton Marketing Assistance Loan Rate, FSA (Oct. 1, 2020).
USDA Announces Commodity Credit Corporation Lending Rates for October 2020, FSA (Oct. 1, 2020).
USDA Wildlife Services Posts FY2019 Data on Damage Management Actions and Funding Sources, APHIS (Oct. 5, 2020).
Papua New Guinea Added to List of Regions Affected by African Swine Fever, APHIS (Oct. 5, 2020).
Dairy Margin Coverage Program Enrollment for 2021 Opens Oct. 13, FSA (Oct. 8, 2020).
USDA Revises Requirements for Importing Fresh Blueberries from Chile into the United States, APHIS (Oct. 9, 2020).
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 41—Oct. 10, 2020):
Department of Agriculture
50 Pa.B. 5663 Notice: “Controlled Plant and Noxious Weed Committee Virtual Meeting [Oct. 22, 2020].”
50 Pa.B. 5663 Notice: “Fiscal Year 2020-2021 Annual Plan for Awarding Grants Under the Pennsylvania Agricultural Fair Act.”
Pennsylvania Public Utility Commission
50 Pa.B. 5657 Proposed Rulemaking: “Proposed Revisions to Water Audit Methodology; Water Conservation Measures—Statement of Policy; Advanced Notice of Proposed Rulemaking.”
Presented to the Governor
HB 2513 “An Act amending . . . The Administrative Code of 1929, providing for establishment operation [Re-Open Restaurants].” Presented to the Governor (Oct. 6, 2020).
HB 2487 “An Act amending . . . the Public Official Compensation Law, further providing for judicial salaries, for compensation of Governor and Lieutenant Governor, State Treasurer, Auditor General, Attorney General, Commissioners of the Pennsylvania Public Utility Commission and heads of departments and for members of the General Assembly; providing for cost-of-living adjustment hiatus; and making a repeal.” Presented to the Governor (Oct. 6, 2020).
Senate Legislation in the House
SB 1296 “An Act amending . . . The County Code, in contracts, further providing for certain contract provisions prohibited [Keeping Properties on Third Class City Tax Rolls].” Referred to Local Government (Oct. 8, 2020).
SB 1330 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for milk sell by date and best by date labeling.” Referred to Agriculture and Rural Affairs (Oct. 8, 2020).
Federal Executive Agencies (Federal Register Oct. 5–9, 2020):
Agricultural Marketing Service
85 FR 62615 Proposed Rule—Comment Period, 11/19/2020: “Pistachios Grown in California, Arizona, and New Mexico; Increased Assessment Rate” (Oct. 5, 2020).
85 FR 62617 Proposed Rule—Comment Period, 12/04/2020: “Lamb Promotion, Research, and Information Order; Activity Changes” (Oct. 5, 2020).
85 FR 62545 Direct Final Rule—Comment Period, 11/04/2020: “Cotton Board Rules and Regulations: Adjusting Supplemental Assessment on Imports (2020 Amendments)” (Oct. 5, 2020).
85 FR 63039 Proposed Rule, Referendum Order: “Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida; Continuance Referendum” (Oct. 6, 2020).
85 FR 62942 Final Rule: “Egg Research and Promotion; Reapportionment” (Oct. 6, 2020).
85 FR 62934 Final Rule: “Amendments to Quality Systems Verification Programs and Conforming Changes” (Oct. 6, 2020).
Animal and Plant Health Inspection Service
85 FR 62559 Final Rule: “National Poultry Improvement Plan and Auxiliary Provisions” (Oct. 5, 2020).
85 FR 63500 Notice: “Import Requirements for the Importation of Fresh Blueberries From Chile Into the United States” (Oct. 8, 2020).
Environmental Protection Agency
85 FR 63548 Notice—Comment Period, 11/09/2020: “Pesticides; Draft Guidance for Waiving Acute Dermal Toxicity Tests for Pesticide Technical Chemicals and Supporting Retrospective Analysis; Notice of Availability and Request for Comment” (Oct. 8, 2020).
85 FR 63450 Final Rule—Comments Accepted: “Kasugamycin; Pesticide Tolerances for Emergency Exemptions” (Oct. 8, 2020).
85 FR 63453 Final Rule—Comments Accepted: “Afidopyropen; Pesticide Tolerances” (Oct. 8, 2020).
85 FR 63449 Rule, Notification of Submission to Secretary of Agriculture: “Pesticides; Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone Requirements” (Oct. 8, 2020).
85 FR 64144 Notice: “Pesticide Emergency Exemptions; Agency Decisions and State and Federal Agency Crisis Declarations” (Oct. 9, 2020).
85 FR 64308 Proposed Rule—Comment Period, 12/08/2020: “Pesticides; Exemptions of Certain Plant-Incorporated Protectants (PIPs) Derived From Newer Technologies” (Oct. 9, 2020).
Farm Credit Administration
85 FR 62945 Final Rule: “Organization; Funding and Fiscal Affairs, Loan Policies and Operations, and Funding Operations; Investment Eligibility” (Oct. 6, 2020).
Federal Emergency Management Agency
85 FR 63131 Notice—Comment Period, 01/04/2021: “Proposed Flood Hazard Determinations [Iowa]” (Oct. 6, 2020).
85 FR 63130 Notice—Comment Period, 01/04/2021: “Proposed Flood Hazard Determinations [Fla., Miss.]” (Oct. 6, 2020).
85 FR 63133 Notice—Comment Period, 01/04/2021: “Proposed Flood Hazard Determinations [Tex., Va.]” (Oct. 6, 2020).
85 FR 63128 Notice: “Changes in Flood Hazard Determinations [Ala., Colo., Fla., Okla., Or., Pa., Tex., Va.]” (Oct. 6, 2020).
85 FR 63132 Notice: “Final Flood Hazard Determinations [Minn., Tex.]” (Oct. 6, 2020).
Fish and Wildlife Service
85 FR 63474 Proposed Rule—Comment Period, 12/07/2020: “Endangered and Threatened Wildlife and Plants; Reclassification of the Red-Cockaded Woodpecker From Endangered to Threatened With a Section 4(d) Rule” (Oct. 8, 2020).
Food and Nutrition Service:
85 FR 62632 Proposed Rule—Comment Period, 01/21/2021: “Requirements for Additional Traceability Records for Certain Foods; Proposed Rule; Public Meetings; Request for Comments” (Oct. 5, 2020).
Foreign Agricultural Service
85 FR 62690 Notice: “Assessment of Fees for Dairy Import Licenses for the 2021 Tariff-Rate Import Quota Year” (Oct. 5, 2020).
Small Business Administration
85 FR 62778 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of California [Wildfires]” (Oct. 5, 2020).
85 FR 63159 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Florida [Hurricane Sally]” (Oct. 6, 2020).
85 FR 63628 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Florida [Hurricane Sally]” (Oct. 8, 2020).
85 FR 63628 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of California [Wildfires]” (Oct. 8, 2020).
85 FR 63629 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the Commonwealth of Puerto Rico [Earthquakes]” (Oct. 8, 2020).
85 FR 64213 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of New York [Tropical Storm Isaias]” (Oct. 9, 2020).
85 FR 64212 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Delaware [Tropical Storm Isaias]” (Oct. 9, 2020).
85 FR 64213 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of North Dakota [Severe Storms and Flooding]” (Oct. 9, 2020).
Susquehanna River Basin Commission
85 FR 63328 Notice—Comment Period, 11/18/2020: “Public Hearing [Nov. 5, 2020]” (Oct. 7, 2020).
U.S. House Legislation:
H.R.8522 “To amend the Agricultural Foreign Investment Disclosure Act of 1978 to increase oversight and enforcement with respect to foreign investment in agricultural lands within the United States, and for other purposes.” Referred to the House Committee on Agriculture (Oct. 2, 2020).
H.R.8531 “To direct the Secretary of Agriculture to make grants to States to support the establishment and operation of grocery stores in underserved communities, and for other purposes.” Referred to the House Committee on Agriculture (Oct. 6, 2020).
H.R.2795 “Wildlife Corridors Conservation Act of 2019.” Placed on the Union Calendar (Oct. 9, 2020).
H.R.5179 “Tribal Wildlife Corridors Act of 2019.” Placed on the Union Calendar (Oct. 9, 2020).
H.R.8557 “To amend the Packers and Stockyards Act, 1921, to establish a cattle contract library, and for other purposes.” Referred to the House Committee on Agriculture (Oct. 9, 2020).
Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
Oct. 5–9, 2020 Top #AgLaw links:
EPA Decision Imminent on Drifting, Cancer-lLinked Weedkiller, Greenwire (Oct. 6, 2020).
How High Could Farm Subsidies Go? $40 Billion This Year., Successful Farming (Oct. 6, 2020).
Lawsuit Filed to Protect States’ Labeling of Genetically Engineered Seeds, Center for Food Safety (Oct. 5, 2020).
USDA Updates Poultry Improvement Plan, Meat+Poultry (Oct. 2, 2020).
U.S. Agriculture Secretary Says Unsure if China Will Meet Phase 1 Farm Commitment, Reuters (Oct. 2, 2020).
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