Ag-Gag Statutes: Kansas Files for Supreme Court Review of its ‘Ag-Gag’ Law
On November 17, 2021, Kansas Governor Laura Kelly and Kansas Attorney General Derek Schmidt filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the U.S. Court of Appeals for the Tenth Circuit’s August 2021 decision that: (1) portions of the “Kansas Farm Animal and Field Crop and Research Facilities Protection Act (Act)” (Kan. Stat. Ann. § § 47-1825–47-1828) violate First Amendment free speech protections; and (2) Kansas is prohibited from enforcing § 47-187 (b), (c), and (d) of the Act. Laura Kelly, Governor of Kansas, et al., v. Animal Legal Defense Fund, et al., No. 21-760. For background, see ALWR—Aug. 27, 2021, “Tenth Circuit Affirms Unconstitutionality of Kansas’s Ag-Gag Law.” Kansas argues that the dissenting opinion correctly found that the statute does not criminalize constitutionally protected speech and that false statements made to successfully gain access to a property and commit trespassing create a legally cognizable harm and are unprotected speech. Kansas additionally argues that the statute is viewpoint neutral, because the “Act applies regardless of whether the deceptive speech is critical or laudatory of the animal facility.”
Antitrust: U.S. Justice Department Files Suit to Prevent U.S. Sugar from Acquiring Imperial Sugar Co.
On November 23, 2021, the U.S. Department of Justice (DOJ), Antitrust Division, filed a complaint in the U.S. District Court for the District of Delaware under Section 7 of the Clayton Act, 15 U.S.C. § 18, seeking to prohibit United States Sugar Corporation (U.S. Sugar) from purchasing Imperial Sugar Company (Imperial). United States v. United States Sugar Corporation, No. 1:21-cv-01644. In an accompanying press release, DOJ announced that Imperial’s acquisition by U.S. Sugar, a member of the marketing cooperative United Sugars Corporation which establishes prices for all sugar produced by U.S. Sugar and three other sugar producers, would result in just two companies, United and Domino, controlling 75% of all sugar sales in the Southeastern United States. DOJ states that under such a “cozy duopoly” by which “fragile supply chains would be further strained, and American families would pay more for sugar and many staple food and beverage products.”
Animal Welfare: USDA Publishes Animal Welfare Act Final Rule for Animal Research Facilities
On November 24, 2021, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) posted a final rule in the Federal Register amending Animal Welfare Act (AWA) regulations, titled “AWA Research Facility Registration Updates, Reviews, and Reports” (86 FR 66919). Also announced by APHIS, the amendments apply to registered animal research facilities. The final rule replaces such facilities’ yearly reviews of Institutional Animal Care and Use Committee-approved protocols with a single review every three years and specifies the time period and termination criteria for registration. Additionally, facilities are no longer required: (1) to update their information every three years because facilities must already notify APHIS of information changes within ten days of the change; (2) request inactive status if it has not used, handled, or transported live animals for at least two years so as to eliminate the need to submit an annual animal use report; and (3) obtain the signature of the facility’s chief executive officer or institutional official on its annual report. The final rule is effective December 27, 2021.
Agribusiness: USDA Announces Applications Now Available for Rural Development Broadband ReConnect Program
On November 24, 2021, the U.S. Department of Agriculture (USDA) announced that it is accepting applications for the ReConnect Program from state, local, and tribal governments; cooperative organization; corporations; and limited liability companies. According to the announcement, USDA has allocated $1.15 billion in funding for the program, separate from the $2 billion available through the recently passed Infrastructure Investment and Jobs Act (H.R.3684), including $700 million for grants, $200 million for loans, and $250 million for grant/loan combinations. The funds must be used to improve broadband connectivity in rural areas where at least 90% of the households lack service at minimum speeds of 100 megabits per second (Mbps) (download) and 20 Mbps (upload). USDA states that it will prioritize low-density population areas and areas without broadband service at minimum speeds of 25 Mbps (download) and 3 Mbps (upload).
Water Quality: Comprehensive 100-year History of Nitrogen in the Bay Published
On November 10, 2021, the U.S. Department of the Interior, U.S. Geological Survey (USGS) released a 178-page report titled Nitrogen in the Chesapeake Bay Watershed—A Century of Change, 1950–2050, the goal of which is to examine historically “the delivery mechanisms and magnitude of nitrogen export from the watershed to the Bay” and ultimately provide “a long-term perspective to help inform decisions to better balance the use, release and management of nitrogen” in the Bay and other coastal areas. The report concludes “The Chesapeake Bay is not the only estuary combating nutrient enrichment . . . The science, management, and regulation efforts to save the Chesapeake Bay are unprecedented and if the Nation’s largest estuary can rebound, they will serve as a model for the world.”
COVID-19: $270 Million in Contract Grower Payments Begin
On November 18, 2021, USDA announced that it has begun issuing approximately $270 million in payments to contract growers of broilers, pullets, layers, chicken eggs, turkeys, hogs and pigs, ducks, geese, pheasants and quail under the Pandemic Assistance for Producers programs. While the funding was contained in December 27, 2020’s Consolidated Appropriations Act of 2021, providing up to $1 billion for payments to contract producers for revenue losses from Jan. 1, 2020, through Dec. 27, 2020, the implementation was slower than other pandemic aid programs. On August 24, 2021, USDA published program details and opened the application process through October 12, 2021. Contract producers who did not own the animals they raised were not provided benefits under the CFAP 1 and 2 programs as initially designed implemented.
CENTER FOR AGRICULTURAL AND SHALE LAW (CASL) PROGRAMS & RESOURCES
Agricultural Law Podcast:
Weekly Episode #200. OSHA Vaccination Mandate Immediately Stayed by Federal Court & EPA and Army Published “Waters of the United States” Proposed Rule (Nov. 24, 2021).
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).
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).
2022 Mid-Atlantic Fruit and Vegetable Convention, Hershey PA, Center Staff Attorney Jackie Schweichler will be presenting on Wed. Feb. 2, 2022 at 11:00am on “Legal Liability Risks from Business Invitees on the Farm,” and again at 2:30pm on “Legal Considerations for Agritourism.”
Penn State News, Research, & Resources:
Urbanization Not Always Bad for Food and Land Use Diversity (Nov. 19, 2021).
Climate Uncertainty Colors Flood Risk Assessment (Nov. 18, 2021).
Agricultural Law/Policy Resources of Interest:
USDA Economic Research Service, Examining the Decline in U.S. Per Capita Consumption of Fluid Cow’s Milk, 2003–18 (Oct. 2021)
NALC/Micah Brown, Lending for Livestock, Credit for Crops: Taking Possession of Collateral (Nov. 23, 2021).
Univ. of Neb.-Lincoln/Ctr. for Ag. Profitability, Exploring the Cooperative Advantage (Nov. 22, 2021).
U of Ill./Farm Policy News, China’s Phase One Purchases Slow (Nov. 23, 2021)
U of Ill./Farm Policy News, China’s Soy Imports Slump in October, as “U.S. Pork Exports to Mexico Show Promise” (Nov. 22, 2021)
U of Ill./Farm Doc Daily, US Dairy Market and Policy Overview (Nov. 22, 2021).
DTN Progressive Farmer/Ag Policy Blog/Chris Clayton, Biofuel Groups Back Ag Provisions in Build Back Better Act (Nov. 23, 2021).
Mother Jones, After Years of Injustice, Black Farmers Had a Shot at Debt Relief. Then Stephen Miller Stepped In (Nov. 2021); The “Machine That Eats Up Black Farmland” (June 2021).
DTN Progressive Farmer/Todd Neeley, Ag Laments EPA Trump Water Rule Repeal (Nov. 19, 2021).
A.G. Kawamura (former California Secretary of Agriculture), A Farmer’s Reflections from COP 26 (Nov. 17, 2021).
New York Times, The Latest Farm Product: Carbon Credits (Nov. 23, 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. Senate Agriculture/Subcommittee on Nutrition, Agricultural Research, and Specialty Crops, The State of Nutrition in America 2021 (recorded Nov. 2, 2021).
Weekly Featured Graphics:
U of Ill./Farm Policy News, China’s Phase One Purchases Slow (Nov. 23, 2021)
Note: “Phase One” Trade Deal agricultural goods purchase target: $80.17M by 12/31/21. Actual to date: $53.5M.
U of Ill./Farm Doc Daily, US Dairy Market and Policy Overview (Nov. 22, 2021)
AGENCY PRESS RELEASES—STATE/FEDERAL
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Announces National Peanut Board Appointments (Nov. 24, 2021).
AMS Enforcement Actions
Edmond Shackleford Rochelle, dba Settles Civil Action brought in the United States District Court for the Eastern District of Texas (Texarkana Division) for Failure To Comply with an Order issued by the Secretary of Agriculture (Nov. 26, 2021).
Agricultural Research Service
Making Air Travel More Sustainable with Soy-Fuel Innovations (Nov. 22, 2021).
Animal and Plant Health Inspection Service
Additional Information on the Potato Wart Situation (Nov. 24, 2021).
APHIS Proposes Amendments to Import Regulations for Horses (Nov. 26, 2021).
Economic Research Service
Agricultural Income and Finance Situation and Outlook: 2021 Edition (Nov. 23, 2021).
Foreign Agricultural Service
Export Sales to Mexico, India, and Unknown Destinations (Nov. 24, 2021).
National Institute of Food and Agriculture
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 48—Nov. 27, 2021):
Department of Environmental Protection
51 Pa.B. 7347 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”
Milk Marketing Board
51 Pa.B. 7388 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 3.”
51 Pa.B. 7388 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 5.”
51 Pa.B. 7389 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 6.”
State Conservation Committee
51 Pa.B. 7392 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.”
HB 2095 “An Act amending . . . the Tax Reform Code of 1971, in corporate net income tax, further providing for imposition of tax.” Referred to FINANCE [House] (Nov. 23, 2021).
HB 2104 “[Responsible Decommissioning of Solar/Wind Energy Facilities] An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for decommissioning of alternative energy facilities.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (Nov. 23, 2021).
H Res 158 “A Resolution urging the Congress of the United States, President of the United States, Attorney General of the United States, Drug Enforcement Administration and Department of Health and Human Services to remove cannabis as a Schedule I controlled substance under the Controlled Substances Act.” Referred to JUDICIARY [House] (Nov. 23, 2021).
FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 15–19, 2021):
Agricultural Marketing Service
86 FR 66462 Proposed Rule—Comment Period: “Suspension of Reporting and Collection Requirements for Washington Apricots” (Nov. 23, 2021).
86 FR 66515 Notice—Comment Period: “Plant Variety Protection Office: Notice of Request for Extension and Revision of a Currently Approved Information Collection” (Nov. 23, 2021).
86 FR 66269 Notice: “[Forest Service: Grazing Permit Administration Forms] Submission for OMB Review; Comment Request” (Nov. 22, 2021).
86 FR 66270 Notice: “[Agricultural Research Service: Information Collection for Document Delivery Services] Submission for OMB Review; Comment Request” (Nov. 22, 2021).
86 FR 66270 Notice: “[Rural Business-Cooperative Service: Rural Development Co-operative Agreements] Submission for OMB Review; Comment Request” (Nov. 22, 2021).
86 FR 66516 Notice: “[Animal Plant and Health Inspection Service: African Swine Fever; Importation of Live Dogs for Resale from Regions Where ASF Exists or Is Reasonably Believed to Exist] Submission for OMB Review; Comment Request” (Nov. 23, 2021).
86 FR 67430 Notice: “[Agricultural Research Service: Patent License Application]” Submission for OMB Review; Comment Request” (Nov. 26, 2021).
Animal and Plant Health Inspection Service
86 FR 66271 Notice: “Notice of Decision to Authorize the Importation of Fresh Mango Fruit from Colombia into the United States” (Nov. 22, 2021).
86 FR 66516 Notice: “Addition of Malaysia to the List of Regions Considered Affected With African Horse Sickness” (Nov. 23, 2021).
86 FR 66518 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Permanent, Privately Owned Horse Quarantine Facilities” (Nov. 23, 2021).
86 FR 66517 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Standards for Privately Owned Quarantine Facilities for Ruminants” (Nov. 23, 2021).
86 FR 66919 Final Rule: “Research Facility Registration Updates, Reviews, and Reports” (Nov. 24, 2021).
86 FR 67019 Notice: “Addition of the Kingdom of Bhutan to the List of Regions Affected With African Swine Fever” (Nov. 24, 2021).
Delaware River Basin Commission
86 FR 66291 Notice—Comment Period: “Notice of Proposed Methodology for the 2022 Delaware River and Bay Water Quality Assessment Report” (Nov. 22, 2021).
Environmental Protection Agency
86 FR 66512 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (November 2021)” (Nov. 23, 2021).
86 FR 67055 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses (November 2021)” (Nov. 24, 2021).
86 FR 67419 Proposed—Comment Period: “Renewable Fuel Standard (RFS) Program: Extension of Compliance and Attest Engagement Reporting Deadlines” (Nov. 26, 2021).
86 FR 67460 Notice—Comment Period: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Pesticides Data Call-In (DCI) Program” (Nov. 26, 2021).
Fish and Wildlife Service
86 FR 66624 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; 12-Month Finding for Pascagoula Map Turtle; Threatened Species Status with Section 4(d) Rule for Pearl River Map Turtle; and Threatened Species Status for Alabama Map Turtle, Barbour’s Map Turtle, Escambia Map Turtle, and Pascagoula Map Turtle Due to Similarity of Appearance with a Section 4(d) Rule” (Nov. 23, 2021).
86 FR 67012 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat” (Nov. 24, 2021).
86 FR 67013 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” (Nov. 24, 2021).
86 FR 67352 Final Rule—Comment Period: Endangered and Threatened Wildlife and Plants; Technical Corrections for 18 Southwestern United States Species Found in Arizona, New Mexico, and Texas” (Nov. 26, 2021).
Food and Nutrition Service
86 FR 66519 Notice—Comment Period: “Agency Information Collection Activities; Comment Request: USDA National Hunger Clearinghouse Database Form (FNS 543)” (Nov. 23, 2021).
86 FR 67430 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Federal Claims Collection Methods for Supplemental Nutrition Assistance Program Recipient Claims” (Nov. 26, 2021).
Land Management Bureau
86 FR 66331 Notice—Comment Period: “Notice of Intent to Amend Land Use Plans Regarding Greater Sage-Grouse Conservation and Prepare Associated Environmental Impact Statements” (Nov. 22, 2021).
86 FR 66153 Proclamation: “National Rural Health Day, 2021” (Nov. 22, 2021).
Rural Business-Cooperative Service
86 FR 66273 Notice: “Inviting Applications for the Rural Energy for America Program; Amendment [State Director and Administrator priority points for FY 2022]” (Nov. 22, 2021).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.6072 “To establish a program to assist States in establishing or enhancing community integration network infrastructure for health and social services.” Referred to the Committees on Energy and Commerce, Agriculture, Financial Services, Transportation and Infrastructure, and Education and Labor (Nov. 23, 2021).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
No actions Nov. 22–26, 2021.
Top #AgLaw HotLinks Nov. 22–26, 2021
U.S. Senator Introduces Bill to Block Brazilian Beef Imports after ‘Mad Cow’ Reports, Successful Farming/Reuters
Vilsack on House passage of President’s Build Back Better Act, Morning Ag Clips/USDA
Opportunities to Reduce Nitrogen in Chesapeake Bay Are in Ag, Developed Areas, Morning Ag Clips/U.S. Geological Survey
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