COVID-19: Federal Courts Affirm Stay and Consolidate Cases Challenging OSHA’s Vaccination and Testing Emergency Temporary Standard
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an opinion reaffirming the court’s November 6, 2021 temporary stay of the U.S. Department of Labor (DOL) Occupational Safety and Health Administration’s (OSHA) November 5, 2021 COVID-19 Vaccination and Testing Emergency Temporary Standard (86 FR 61402). BST Holdings v. OSHA, No. 21-60845. OSHA’s “Emergency Temporary Standard” webpage now states that, although the agency “remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Those further developments will include disposition of a motion for a permanent injunction against the ETS. On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation ordered that all further legal proceedings in twelve separate legal challenges to the ETS filed in the twelve U.S. Circuit Courts of Appeals shall be decided in one consolidated case and decided by the Sixth Circuit Court of Appeals. For more, see ALWR—Nov. 5, 2021, “OSHA Vaccination Mandate Issued and Immediately Stayed by Federal Court.”
WOTUS: EPA and Army Publish Proposed Rule to Reestablish the Pre-2015 “Waters of the United States” Definition
On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army released the text and announced the forthcoming Federal Register publication of a new proposed 290-page proposed rule titled, “Revised Definition of “Waters of the United States” which is intended to “re-establish the pre-2015 definition of ‘waters of the United States,’ which had been in place for decades, updated to reflect consideration of Supreme Court decisions.” The agencies stated “[t]he proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely.” Once published, there will be a 60-day public comment period at Regulations.gov, docket No. EPA-HQ-OW-2021-0602. Three virtual public hearings will be conducted on January 12, 13 and 18, with speaker registration for a 3-minute time slot closing on January 7, 10, and 13 respectively. More information is available at EPA’s dedicated webpage, titled Public Outreach and Stakeholder Engagement Activities.
Pesticides/Herbicides: EPA Releases Final Biological Evaluations for Glyphosate, Atrazine, and Simazine
On November 12, 2021, the U.S. Environmental Protection Agency (EPA) announced the final biological evaluations (BE) for herbicides glyphosate, atrazine, and simazine. Public comment was taken on November 2020 draft BEs for all three herbicides and the EPA Response to Public Comments was also issued on November 12. In the BEs, EPA determined that all registered uses and approved product labels for all three herbicides were “likely to adversely affect” (LAA) certain listed species or their designated critical habitats. EPA noted that the “LAA threshold for a BE is very sensitive because the likely ‘take’ of even one individual of a species, which includes unintentional harm or death, triggers an LAA determination.” The U.S. Fish and Wildlife Service and the National Marine Fisheries Service will use EPA’s BEs determinations to generate biological opinions, including jeopardy determinations, for the three herbicides and will further propose additional protections as required. In early 2021 after the release of the draft BEs, atrazine and simazine registrants requested a voluntary prohibition of use in Alaska, Hawaii, and the U.S. territories, and to delete selected uses from the product registrations to minimize overlap between registered use and impacted species and/or habitat.
International Trade: National Cattlemen’s Beef Association Asks USDA to Suspend Brazilian Beef Imports Due to Delayed Animal Health Reporting
On November 12, 2021, the National Cattlemen’s Beef Association (NCBA) sent a letter to Agriculture Secretary Tom Vilsack asking the U.S. Department of Agriculture (USDA) to indefinitely suspend Brazilian beef imports into the United States until USDA conducts a risk assessment review of the Brazil’s Ministry of Agriculture, Livestock, and Food Supply (MAPA). Also announced by NCBA, the letter cited two June 2021 cases of atypical bovine spongiform encephalopathy identified in Brazil that were not reported to the World Organization for Animal Health (OIE)—which requires countries to report such findings withing 24 hours—until September 3, 2021. The letter included additional examples of Brazil’s delayed OIE reporting from 2019, 2014, and 2012 and stated that “Brazil’s history of failing to report incidences of BSE calls into question its commitment to reporting other significant diseases such as African Swine Fever, Avian Influenza, or Foot-and-Mouth Disease.” NCBA asks that the beef suspension continue “until MAPA makes systemic changes and takes necessary steps to demonstrate Brazil’s commitment to an objective, science-based regulatory system that restores confidence in Brazil’s participation in the global food supply.”
CENTER FOR AGRICULTURAL AND SHALE LAW (CASL) PROGRAMS & RESOURCES
Agricultural Law Podcast:
Weekly Episode #199. Investors Adequately Alleged Securities Claims Against Bayer’s Monsanto Purchase & Industry Groups Appeal WOTUS Vacatur (Nov. 5, 2021).
Weekly Episode #198. Court Declines to Dismiss Suit to Compel USDA Animal Welfare Regulation & Producer Groups Challenge Chlorpyrifos Revocation (Nov. 2, 2021).
Weekly Episode #197. Biofuel Group Seeks Supreme Court Review of E15 Vacatur & R-CALF Has Standing to Continue Beef Checkoff Challenge (Oct. 15, 2021).
Special Episodes #13 – 15. Three-Part Series on Pennsylvania Milk Marketing Board:
- #13. Milk Marketing Board—Part 1: What is the Board & What Does It Do? (Nov. 15, 2021).
- #14. Milk Marketing Board—Part 2: Recent Developments in Producer Payment and Termination (Nov. 15, 2021).
- #15. Milk Marketing Board—Part 3: Payment Bond Claims, Dean Bankruptcy, & Bulk Tank Calibration (Nov. 15, 2021).
Special Episode #12. Cell Cultured Food Regulations (Nov. 1, 2021).
Special Episode #11. Bioengineered Food & Genetically Modified Salmon (Oct. 1, 2021).
Penn State News, Research, & Resources:
Keeping Chocolate Milk Smooth, Stable without Carrageenan (Nov. 12, 2021).
Horn fly resistance observed in organic Holstein cattle, study finds (Nov. 16, 2021).
Agricultural Law/Policy Resources of Interest:
NALC/Elizabeth Rumley, “Custom Exempt” Slaughter: The Exception, or the Rule? (Nov. 19, 2021).
NALC/Brigit Rollins, Court Vacates CWA Section 401 Certification Rule (Nov. 18, 2021).
NALC, Resources for Underserved Communities: Highlight on Heirs Property and Estate Planning (Nov. 12, 2021).
NALC, The Adulterating Foodborne Pathogens: The Other 78% of the Food Supply (Nov. 16, 2021).
Ohio State Extension/Peggy Kirk Hall, Ohio Legislative Update, (Nov. 18, 2021).
Washburn School of Law (KS)/Roger A. McEowen, Self-Employment Taxation of CRP Rents—Part Two (Nov. 14, 2021).
Washburn School of Law (KS)/Roger A. McEowen, Self-Employment Taxation of CRP Rents—Part Three (Nov. 19, 2021).
Texas A&M/Tiffany Lashmet, Case Addresses Easement Access for Landlocked Parcel, (Nov. 15, 2021).
- Successful Succession: An Introduction
- Step 1: Flight Plan-Where You Are Now
- Step 2: Communicate & Strategize
- Step 3: Design Business Succession
- Step 4: Develop Estate Plan
- Step 5: Draft & Implement Your Plan
AEI.ag Presents Podcast Series, Season 2: Corn Saves America.
- Episode 1 – Are Carbon Markets the New Ethanol? (November 4, 2021)
- Episode 2 – Origin Story (Nov. 9, 2021)
- Episode 3 – Chosen One (Nov. 15, 2021)
- Episode 4 – Chosen Too (Nov. 22, 2021)
National Milk Producers Federation, Regulatory Register Fall 2021, (Oct. 2021).
National Milk Producers Federation, Dairy Data Highlights, (Nov. 2021).
Yale Center for Business and the Environment, Soil Health Policy: Developing Community-Driven State Soil Health Policy and Programs and accompanying press release. (Nov. 2021).
Yale Center for Business and the Environment, Agrivoltaics: Producing Solar Energy While Protecting Farmland (Nov. 2021).
New Yorker, The Great Organic Food Fraud (Nov. 8, 2021).
Agriculture-Related Legislative Hearings:
U.S. House Agriculture Committee, The Immediate Challenges to our Nation’s Food Supply Chain, video and written testimony (recorded Nov. 3, 2021).
U.S. House Select Subcommittee on Coronavirus Crisis, Hybrid Hearing on “How the Meatpacking Industry Failed The Workers Who Feed America” (recorded Oct. 27, 2021).
U.S. House Agriculture Committee, Agricultural Biotechnology: 21st Century Advancements and Applications, video and written testimony (recorded Oct. 26, 2021).
U.S. House Agriculture Committee, A Hearing to Review the State of the Livestock Industry, video and written testimony (recorded Oct. 7, 2021). Pre- and post-hearing analysis: DTN/Progressive Farmer, Congress Looking Again at Cattle Markets, Comprehensively (Oct. 6, 2021) and Increase Processing to Offset Packers (Oct. 7, 2021).
U.S. Senate Agriculture/Subcommittee on Nutrition, Agricultural Research, and Specialty Crops, The State of Nutrition in America 2021 (recorded Nov. 2, 2021).
Weekly Featured Graphics:
Farmdoc Daily, New and Beginning Farmers (Nov. 3, 2021).
AGENCY PRESS RELEASES—STATE/FEDERAL
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
Secretary Vilsack Statement on the Cost of Thanksgiving Staples (Nov. 17, 2021).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
Pre-Solicitation Announcement for Section 32 Purchase of Fresh Pears (Nov. 12, 2021).
Pre-Solicitation Announcement for Section 32 Purchase of Hazelnuts (Nov. 16, 2021).
USDA Announces Grain Inspection Advisory Committee Meeting (Nov. 17, 2021).
USDA Announces Appointments to the Mushroom Council (Nov. 18, 2021).
Animal and Plant Health Inspection Service
Economic Research Service
Rural America at a Glance: 2021 Edition (Nov. 17, 2021).
Food and Nutrition Service
Food Safety and Inspection Service
Let’s Talk Turkey: Tips for a Safe Thanksgiving (Nov. 17, 2021).
Constituent Update (Nov. 19, 2021).
Foreign Agricultural Service
CORRECTION: Export Sales to Mexico and Unknown Destinations (Nov. 15, 2021).
Export Sales to Mexico and Unknown Destinations (Nov. 16, 2021).
Vietnam Lowers Tariffs on Corn, Wheat, Pork (Nov. 16, 2021).
Export Sales to China and India (Nov. 17, 2021).
National Institute of Food and Agriculture
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 47—Nov. 20, 2021):
Fish and Boat Commission
51 Pa.B. 7319 Notice: “Classification of Wild Trout Streams; Proposed Additions and Revisions; January 2022.”
51 Pa.B. 7320 Notice: “Proposed Changes to List of Class A Wild Trout Waters; January 2022.”
Susquehanna River Basin Commission
51 Pa.B. 7326 Notice: “Commission Meeting [December 17, 2021].”
51 Pa.B. 7326 Notice: “Grandfathering Registration Notice.”
51 Pa.B. 7326 Notice: “Projects Approved for Consumptive Uses of Water.”
51 Pa.B. 7328 Notice: “Rescheduled Public Hearing [December 2, 2021].”
Signed into Law
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].” Act. No. 90 (Nov. 17, 2021).
Legislation in Second Chamber
HB 122 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for vehicles exempt from registration; and, in licensing of drivers, further providing for persons exempt from licensing [Ag Transportation].” Referred to TRANSPORTATION [Senate] (Nov. 18, 2021).
HB 1307 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for vehicles exempt from registration [Multipurpose Agricultural Vehicles].” Referred to TRANSPORTATION [Senate] (Nov. 18, 2021).
HB 1842 “An Act amending . . . The Clean Streams Law, in other pollutions and potential pollution, providing for notice of discharge endangering public health or environment.” Removed from table [House] (Nov. 17, 2021).
FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 15–19, 2021):
Agricultural Marketing Service
86 FR 62984 Notice: “Grain Inspection Advisory Committee Meeting [December 15, 2021]” (Nov. 15, 2021).
86 FR 64343 Final Rule: “Domestic Dates Produced or Packed in Riverside County, California; Increased Assessment Rate” (Nov. 18, 2021).
86 FR 64408 Proposed Rule—Comment Period: “Increased Assessment Rate for Texas Oranges and Grapefruit” (Nov. 18, 2021).
86 FR 64830 Proposed Rule—Comment Period: “Pears Grown in Oregon and Washington; Increased Assessment Rate” (Nov. 19, 2021).
86 FR 62984 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Petitions for Rulemaking]” (Nov. 15, 2021).
86 FR 62985 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: 7 CFR 1951-R, Rural Development Loan Servicing]” (Nov. 15, 2021).
Animal and Plant Health Inspection Service
86 FR 63329 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Agriculture Organisms and Vectors; Import and Transport Permits” (Nov. 16, 2021).
Environmental Protection Agency
86 FR 64931 Notice—Comment Period: “Proposed Information Collection Request; Comment Request; Meat and Poultry Products Industry Data Collection” (Nov. 19, 2021).
Fish and Wildlife Service
86 FR 62980 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Replacement of the Regulations for the Nonessential Experimental Population of Red Wolves in Northeastern North Carolina” (Nov. 15, 2021).
86 FR 64000 Final Rule: “Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Atlantic Pigtoe and Designation of Critical Habitat” (Nov. 16, 2021).
86 FR 64158 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Removal of the Okaloosa Darter From the Federal List of Endangered and Threatened Wildlife” (Nov. 17, 2021).
86 FR 64224 Notice—Comment Period: “Proposed Programmatic Safe Harbor Agreement for Viticultural Activities on Vineyards in the Santa Rosa Plain for the Sonoma County Population of California Tiger Salamander, Sonoma County, California” (Nov. 17, 2021).
86 FR 64181 Notice: “Chippewa National Forest Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64177 Notice: “El Dorado County Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64179 Notice: “Huron-Manistee Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64179 Notice: “Sabine-Angelina Resource Advisory Committee; Meeting” (Nov. 17, 2021).
86 FR 64181 Notice: “Shasta County Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64178 Notice: “Siskiyou County Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64180 Notice: “Siuslaw Resource Advisory Committee” (Nov. 17, 2021).
86 FR 64177 Notice: “Trinity County Resource Advisory Committee; Meeting” (Nov. 17, 2021).
86 FR 64446 Notice: “Del Norte County Resource Advisory Committee” (Nov. 18, 2021).
86 FR 64448 Notice: “Southwest Montana Resource Advisory Committee” (Nov. 18, 2021).
86 FR 64447 Notice: “Tri-County Resource Advisory Committee” (Nov. 18, 2021).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.5977 “To amend the controlled substances Act regarding marihuana, and for other purposes.” Referred to the Committees on the Judiciary, Energy and Commerce, Natural Resources, Agriculture, Transportation and Infrastructure, Armed Services, Ways and Means, Small Business, Veterans’ Affairs, Oversight and Reform, Education and Labor, and Foreign Affairs (Nov. 15, 2021).
H.R.4690 “Sustaining America’s Fisheries for the Future Act of 2021.” Subcommittee Hearings Held (Nov. 16, 2021).
H.R.3326 “Public Land Renewable Energy Development Act of 2021.” Ordered to be Reported by Unanimous Consent (Nov. 17, 2021).
H.R.5992 “Cattle Price Discovery and Transparency Act of 2021.” Referred to the House Committee on Agriculture (Nov. 17, 2021).
H.R.6000 “To continue the acceleration of the discovery, development, and delivery of 21st century cures, and for other purposes.” Referred to the Committees on Energy and Commerce, Ways and Means, the Budget, Science, Space, and Technology, Agriculture, Education and Labor, Armed Services, Natural Resources, Veterans’ Affairs, Homeland Security, and the Judiciary (Nov. 17, 2021).
H.R.6003 “To amend the Consolidated Farm and Rural Development Act to improve and extend the appropriate technology transfer for rural areas program.” .” Referred to the House Committee on Agriculture (Nov. 17, 2021).
H.Res.811 “Expressing support for the designation of November 18, 2021, as ‘National Rural Mental Health Day.’” Referred to the Committee on Energy and Commerce and Committee on Agriculture (Nov. 18, 2021).
H.R.4374 “Broadband Internet Connections for Rural America Act.” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than Dec. 3, 2021 (Nov. 18, 2021).
H.R.6028 “To address the supply chain backlog in the freight network at United States ports, and for other purposes.” Referred to the Committees on Transportation and Infrastructure, Homeland Security, Agriculture, Natural Resources, and Armed Services (Nov. 18, 2021).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
S.Res.447 “A resolution celebrating the 125th anniversary of the National Grain and Feed Association and recognizing the Association and its members for transforming the bounty of United States farmers into safe, nutritious, sustainable, and affordable human and animal food.” Referred to the Committee on Agriculture, Nutrition, and Forestry (Nov. 17, 2021).
S.3216 “A bill to amend the Child Nutrition Act of 1966 to require the Secretary of Agriculture to establish a publicly available database of bid solicitations for infant formula under the special supplemental nutrition program for women, infants, and children.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Nov. 17, 2021).
S.3220 “A bill to amend the Animal Welfare Act to restrict the use of exotic and wild animals in traveling performances.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Nov. 17, 2021).
S.3226 “A bill to amend the Child Nutrition Act of 1966 to permit video or telephone certifications under the special supplemental nutrition program for women, infants, and children, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Nov. 17, 2021).
S.3229 “A bill to amend the Agricultural Marketing Act of 1946 to establish a cattle contract library, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Nov. 17, 2021).
Top #AgLaw HotLinks Nov. 15–19, 2021
China’s Coarse Grain Imports for 2020/21, Doubles the Previous Record, Univ. of Ill. Farm Policy News
Nutrien Agrees to Pay EPA Dicamba Fine, Brownfield
Biden, Xi Hold Virtual Summit, as Brazilian Soy and Corn from Ukraine in Focus, Univ. of Ill. Farm Policy News
Bayer Announces Partnership with Microsoft to Develop Agriculture-Focused Tech Tools, St. Louis Post Dispatch
Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to [email protected].
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney