COVID 19:  OSHA Vaccination Mandate Issued and Immediately Stayed by Federal Court 🌾
On November 5, 2021, the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) published in the Federal Register, “COVID-19 Vaccination and Testing; Emergency Temporary Standard (86 FR 61402), an interim final rule that consists of an emergency temporary standard (ETS) immediately effective requiring employers of 100 or more employees by December 5, 2021, to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” A public comment period on the ETS closes on December 6, 2021.  Information is available on OSHA’s dedicated webpage about the ETS, including webinars, FAQs and employment policy templates.  The ETS does not mention the so-called “agricultural exemption” from OSHA enforcement for employers with 10 or less employees and no employer-supplied housing.  However an OSHA ETS could not legally supersede that act of the U.S. Congress.  That same day, multiple legal challenges, which included emergency motions requesting the ETS be stayed temporary and permanently, were filed by numerous parties, including state governments and state attorneys general, in numerous federal courts across the country.  On November 6, 2021, the United States Court of Appeals for the Fifth Circuit, located in New Orleans, Louisiana, entered an order stating, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the [ETS], the [ETS] is hereby STAYED pending further action by this court.”  BST Holdings, et. al, v. OSHA, et. al, No. 21-60845.  The DOL was ordered to respond to the petition for a permanent injunction by 5:00 PM November 8, 2021 and the petitioner were ordered to reply by the same time on November 9, 2021. No hearing or oral argument date was set.

Antitrust: Broiler Chicken Antitrust Plaintiffs Oppose Defendants’ Judgment Sharing Agreement
On October 28, 2021, several In re Broiler Chicken Antitrust Litigation plaintiffs filed a motion in the U.S. District Court for the Northern District of Illinois opposing fourteen defendants’ use of a “judgment sharing agreement” (JSA) in which they “agree[d] in advance to their relative responsibility for any antitrust damages awarded at trial against any of them.” In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637.  In order to effectuate the JSA, if settling, participating defendants must utilize particular settlement agreement language that compels the settling plaintiff to reduce any final judgment in its favor by the respective proportion of responsibility assigned in the JSA to any defendant settling before trial.  Of the U.S.’s four largest poultry producers, Pilgrim’s Pride (owned by JBS) and Tyson have already settled using the JSA-prescribed settlement language, but Perdue and Sanderson (owned by Cargill) have not yet settled any claims.  Among other grounds, the objecting plaintiffs allege the use of this particular JSA is “antithetical to the federal antitrust regime carefully constructed and maintained by Congress.”  The issue is apparently one of first impression in an antitrust case involving treble damages.  If successful in having the use of the JSA prohibited in the case, the prior settlements with Pilgrim’s Pride and Tyson, as well as settlements with any other participating defendants, would become void and, if possible, be re-negotiated.

Organic Agriculture: USDA Announces CARES Act Funding for Organic and Transitional Education and Certification Program Expenses
On November 5, 2021, the U.S. Department of Agriculture’s (USDA) Farm Service Agency (FSA) published in the Federal Register a notice of funds availability designating $20 million from the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) for the Organic and Transitional Education and Certification Program (OTECP) (86 FR 61113).  Also announced by FSA, the funding is designed to compensate both certified and transitional organic operations for education and certification expenses paid during the 2020, 2021, and 2022 fiscal years.  Under OTECP, certified operations can receive 25% of their eligible certification expenses, capped at $250 per certification category— crop, livestock, wild crop, handling, and State Organic Program fee.  Transitioning operations can receive 75% of their eligible expenses, capped at $750 per year.  Both certified and transitional operations are eligible for 75% of expenses from National Organic Program-required soil testing, up to $100 per year, and qualified educational event registration fees, up to $200 per year.  Producers may apply for OTECP funding through their local FSA office beginning Nov. 8, 2021 until Jan. 7, 2022.

Food Policy: Maine Voters Approve State Constitution “Right to Food” Amendment
On November 2, 2021, Maine voters approved ballot measure Question 3, which amends the state’s constitution to create a “Right to Food,” as follows, “All individuals have a natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food.”  The Maine legislature passed Resolution LD 95 (HP 61), “Proposing an Amendment to the Constitution of Maine To Establish a Right to Food,” on July 2, 2021, creating the ballot referendum question which was opposed by the Maine Farm Bureau.

Environmental Policy: New York Voters Approve State Constitution Environmental Rights Amendment
On November 2, 2021, New York voters approved Ballot Proposal 2, which amends the state’s constitution to add the following language, “§19 Environmental rights. Each person shall have a right to clean air and water, and a healthful environment.”  The ballot proposal was preceded by the New York legislature’s approval of two identical bills in successive legislation sessions, S2072, formerly A2064, on April 30, 2019 and S528, formerly A1368, on February 8, 2021.

Dairy Policy: Hershey Partners with a2 Milk to Release New Chocolate Milk
On October 26, 2021, New Zealand-based a2 Milk Company announced that it is partnering with The Hershey Company to co-brand a line of chocolate milk made with 2% reduced fat a2 milk. According to the announcement, “a2 Milk comes from cows that naturally produce only the A2 protein rather than the combination of A1 and A2 proteins contained in most dairy products. Published research suggests a2 Milk that naturally contains the A2 protein may help avoid stomach discomfort in some people.”  The product will be available in retail outlets in January 2022.


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).

Weekly Episode #196. Supreme Court Petition Challenges California’s Proposition 12 & New Mexico District Court Vacates Navigable Waters Protection Rule (Oct. 5, 2021).

Special Episode #12. Cell Cultured Food Regulations (Nov. 1, 2021).

Special Episode #11. Bioengineered Food & Genetically Modified Salmon (Oct. 1, 2021).


Berks Agricultural Resource Network (BARN), Agritourism Law Event, presenter—CASL’s Brook Duer, Nov. 9, 2021 at 5:30 pm.

Penn State Extension, Carbon Markets in Pennsylvania, presenter—CASL’s Brook Duer, Nov. 10, 2021 at 11:30 am.

Penn State News, Research, & Resources:

People Prefer Climate Change Policies That Give Incentives, Energy Alternatives (Nov. 2, 2021).

Engineers to Sustainably Mine Rare Earth Elements from Fertilizer Byproduct (Nov. 4, 2021).

Agricultural Law/Policy Resources of Interest: 

National Agricultural Law Center, Ag & Food Law Quarterly Report: Third Quarter 2021 (Nov. 3, 2021).

National Agricultural Law Center/Brigit Rollins, EPA Releases PFAS Strategic Roadmap (Nov. 4, 2021).

National Agricultural Law Center, The Adulterating Foodborne Pathogens: Meat, Poultry, and Some Egg Products (Nov. 2, 2021).

UMD/Agriculture Law Education Initiative, October 2021 Quarterly Update (Oct. 2021).

UMD/Sarah Everhart, COVID-19, the Produce Safety Rule, and Records for Qualified Exempt Growers (Nov. 1, 2021).

Ohio State Extension/Jeffrey K. Lewis, Help Wanted: Recruiting During a Labor Shortage (Nov. 4, 2021).

Texas A&M/Tiffany Lashmet, Prescribed Burning Liability Considerations (Nov. 1, 2021).

Washburn School of Law (KS)/Roger A. McEowen, The Tax Rules Involving Prepaid Farm Expenses (Oct. 31, 2021).

AFBF/Market Intel, Reduced Crop Yields, Orchard Removals and Herd Sell-Offs — New AFBF Survey Results Reveal How Farmers and Ranchers are Dealing with Drought (Nov. 3, 2021).

Progressive Farmer/Ag Policy Blog/Chris Clayton, House Passes $1.2 Trillion Infrastructure Package, Giving President Biden a Legislative Win (Nov. 5, 2021).

Progressive Farmer/Ethanol Blog/Todd Neeley, Ethanol Industry Group ‘Encouraged’ by Biden Rejection of SRE Request (Nov. 5, 2021).

AEI.AG Presents podcast series: Corn Saves America: Are Carbon Markets the New Ethanol? (Nov. 4, 2021).

Bay Journal, Funding strategy to offset Conowingo pollution impacts proves elusive (Nov. 4, 2021).

Vox, The chicken industry’s worker safety problem (Nov. 5, 2021)

New York Times, As Demand for Green Energy Grows, Solar Farms Face Local Resistance (Nov. 2, 2021).

Agriculture-Related Legislative Hearings:

U.S. Senate Agriculture/Subcommittee on Nutrition, Agricultural Research, and Specialty Crops, The State of Nutrition in America 2021 (recorded Nov. 2, 2021).

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 Agriculture Committee,  Agricultural Biotechnology: 21st Century Advancements and Applications, video and written testimony (recorded Oct. 26, 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, 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).

Pennsylvania General Assembly’s Center for Rural Pennsylvania, Solar Development in Rural Pennsylvaniavideo and written testimony (recorded Oct. 1, 2021).

Weekly Featured Graphics:

Dairy Foods, 2021 State of the Industry: Milk is on a long and winding road (Nov. 5, 2021).



Agriculture Secretary: 2022 Farm Show Competitor Deadlines Approaching (Nov. 1, 2021).

Wolf Administration Working To Support Dairy Industry, Ensure School Children Have Nutritious Food (Nov. 2, 2021).

Clean & Green Tax Credits Underscore Wolf Administration Commitment To Strong, Sustainable Agricultural Future (Nov. 4, 2021).

Wolf Administration: PA Hardwoods Enrich Lives Worldwide, Support Environment, Jobs, Economy (Nov. 5, 2021).


Launching Agriculture Innovation Mission for Climate (Nov. 2, 2021).

U.S., EU Launch Collaboration Platform on Agriculture (Nov. 3, 2021).

USDA Announces Additional Farm Service Agency and Rural Development State Directors (Nov. 4, 2021).

USDA Underscores Commitment to Climate Action at COP26 (Nov. 5, 2021).


Agricultural Marketing Service

USDA Settles a Packers and Stockyards Case Against Jerry Stokes (Nov. 5, 2021).

USDA Restricts PACA Violators in California and Texas from Operating in the Produce Industry (Nov. 5, 2021).

USDA Settles a Packers and Stockyards Case against Tait Gurney and Talkin T Cattle Company LLC (Nov. 5, 2021).

USDA Settles a Packers and Stockyards Case Against Ultrasort LLC and Kenneth Bode (Nov. 5, 2021).

USDA Withdraws Inactive Poultry Proposed Rule to Clear Way for New Proposal Under the Packers and Stockyards Act (Nov. 4, 2021).

Animal and Plant Health Inspection Service 

APHIS Seeks Comment on Draft Pest Risk Assessment for the Importation of Mango Fruit from Saint Lucia

APHIS Seeks Comment on Draft Pest Risk Assessment for the Importation of green mature Banana from Uganda (Nov. 1, 2021).

Confirmation of COVID-19 in Hyenas at a Colorado Zoo (Nov. 5, 2021).

Economic Research Service

Understanding the Components of U.S. Food Expenditures During Recessionary and Non-Recessionary Periods (Nov. 3, 2021).

Farm Service Agency

USDA Announces November 2021 Lending Rates for Agricultural Producers (Nov. 1, 2021).

USDA Provides $1.8 Billion to Offset Market Fluctuations (Nov. 1, 2021).

2021 Farm Service Agency County Committee Elections Underway (Nov. 3, 2021).

USDA Builds Pandemic Support for Certified Organic and Transitioning Operations (Nov. 4, 2021).

Food and Nutrition Service

USDA Invests $3.5 Million to Provide Food Purchasing Options to Tribal Communities (Nov. 1, 2021).

Food Safety and Inspection Service

Constituent Update—FSIS Posts FY2020 Foodborne Illness Outbreak Investigations Summary Report (Nov. 5, 2021).

Foreign Agricultural Service  

Private Exporters Report Sales Activity for China [Soybeans] (Nov. 1, 2021).

Launching Agriculture Innovation Mission for Climate (Nov. 2, 2021).

USDA Radio: FAS Administrator Whitley on Upcoming UAE Trade Mission (Nov. 2, 2021).

U.S., EU Launch Collaboration Platform on Agriculture (Nov. 3, 2021).

Private Exporters Report Sales Activity for Egypt (Nov. 4, 2021).

USDA Underscores Commitment to Climate Action at COP26 (Nov. 5, 2021).

National Institute of Food and Agriculture

NIFA Invests $2.6 M in Potato Research (Nov. 3, 2021).

NIFA Invests $2.8M in Rural Food Animal Veterinary Medicine Across the U.S. (Nov. 3, 2021).

NIFA Invests Over $3.5M to Develop Food, Agriculture and Farm Safety Education for Youth in Underserved Communities (Nov. 4, 2021).

Natural Resources Conservation Service

USDA Invests $11 Million in Partnerships to Restore Wetlands, Support Historically Underserved Producers (Nov. 3, 2021).


PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 45—Nov. 6, 2021):          

Department of Agriculture

51 Pa.B. 6929 Notice: “Controlled Plant and Noxious Weed Committee Virtual Special Meeting [Wednesday, November 17, 2021].”

Department of Environmental Protection

51 Pa.B. 6930 Notice: “Applications For NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”

Environmental Quality Board

51 Pa.B. 7008 Notice: “November Meeting [Tuesday, November 16, 2021].”

Fish and Boat Commission

51 Pa.B. 7008 Notice: “Changes to List of Class A Wild Trout Waters; October 2021.”

51 Pa.B. 7009 Notice: “Classification of Wild Trout Streams; Additions and Revisions; October 2021.”

51 Pa.B. 7009 Notice: “Special Regulation Designations.”

Game Commission

51 Pa.B. 7009 Executive Order: “Chronic Wasting Disease—Designation of Disease Management Areas and Endemic States and Canadian Provinces Order # 10.”

Governor’s Office

51 Pa.B. 6903 “EXECUTIVE ORDER 2021-06 Worker Protection and Investment.”

State Conservation Commission

51 Pa.B. 7037 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 425 “An Act amending  . . .  the Liquor Code, in licenses and regulations and liquor, alcohol and malt and brewed beverages, further providing for sales by liquor licensees and restrictions and for prepared beverages and mixed drinks for off-premises consumption during disaster emergency and providing for safekeeping.” Signed by Governor, Act. No. 81 (Nov. 5, 2021).

SB 916 “An Act amending . . . The Fiscal Code, providing for American Rescue Plan water, sewer and storm water assistance grants; and making an appropriation.” Referred to LOCAL GOVERNMENT [Senate] (Nov. 1, 2021).

HB 2047 “An Act amending . . . as the Dog Law, in short title and definitions, further providing for definitions; and further providing for enforcement and penalties.” Referred to AGRICULTURE AND RURAL AFFAIRS [House] (Nov. 3, 2021).


FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 1–5, 2021): 

Agricultural Marketing Service

86 FR 60779 Proposed Rule, withdrawal: “Poultry Grower Ranking Systems; Withdrawal of Proposed Rule” (Nov. 4, 2021).

Agriculture Department  

86 FR 60198 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Floriculture Survey]” (Nov. 1, 2021).

86 FR 60441 Notice: “Solicitation of Nominations for Membership on the Equity Commission Advisory Committee and Equity Commission Subcommittee on Agriculture Extension of Application Period; Correction” (Nov. 2, 2021).

86 FR 60791 Notice: “Submission for OMB Review; Comment Request; Correction [National Agricultural Statistics Service: Local Food Marketing Practices Survey]” (Nov. 4, 2021).

Animal and Plant Health Inspection Service

86 FR 60613 Notice—Comment Period: “Notice of Proposed Revision to Requirements for the Importation of Plums From Chile Into the United States” (Nov. 3, 2021).

Census Bureau

86 FR 60614 Notice: “Agency Information Collection Activities; Submission to the Office of Management and Budget (OMB) for Review and Approval; Comment Request; 2022 Commodity Flow Survey” (Nov. 3, 2021).

Economic Research Service

86 FR 60198 Notice—Comment Period: “Notice of Intent To Request New Information Collection” (Nov. 1, 2021).

Engineers Corps

86 FR 60449 Notice:  “National Wetland Plant List” (Nov. 2, 2021).

Environmental Protection Agency

86 FR 60178 Final Rule: “Fluensulfone; Pesticide Tolerances” (Nov. 1, 2021).

86 FR 60233 Notice: “Atrazine, Simazine, and Malathion; Cancellation Order for Certain Pesticide Registrations and Amendments to Terminate Uses” (Nov. 1, 2021).

86 FR 60368 Rule—Comment Period: “Benzobicyclon; Pesticide Tolerances” (Nov. 2, 2021).

Farm Service Agency

86 FR 61113 Notice, comments accepted: “Notice of Funds Availability (NOFA) for the Organic and Transitional Education and Certification Program (OTECP)” (Nov. 5, 2021).

Fish and Wildlife Service

86 FR 60641 Notice—Comment Period: “Endangered and Threatened Wildlife and Plants; Draft Recovery Plan for the Diamond Y Invertebrates” (Nov. 3, 2021).

86 FR 61286 Notice: “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews of Six Listed Animal and Plant Species” (Nov. 5, 2021).

86 FR 61314 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Eastern Indigo Snake, Citrus County, FL; Categorical Exclusion” (Nov. 5, 2021).

86 FR 61287 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Sand Skink, Lake County, FL; Categorical Exclusion” (Nov. 5, 2021).

Food and Drug Administration

86 FR 60258 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Recordkeeping Requirements for Microbiological Testing and Corrective Measures for Bottled Water” (Nov. 1, 2021).

86 FR 60258 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Recordkeeping Requirements for Microbiological Testing and Corrective Measures for Bottled Water” (Nov. 2, 2021).

Food Safety and Inspection Service

86 FR 60549 Rule, correcting amendment: “Egg Products Inspection Regulations; Correction” (Nov. 3, 2021).

Labor Department

86 FR 60916 Notice—Comment Period: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; National Compensation Survey” (Nov. 4, 2021).

Land Management Bureau

86 FR 60905 Notice: “Notice of Competitive Offer for Solar Energy Development on Public Lands in the State of Arizona” (Nov. 4, 2021).

Occupational Safety and Health Administration

86 FR 61402 Interim Final Rule—Comment Period: “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (Nov. 5, 2021).

Rural Business-Cooperative Service

86 FR 60753 Final Rule: “Rural Innovation Stronger Economy Grant Program” (Nov. 4, 2021).

Small Business Administration

86 FR 60396 Proposed Rule—Comment Period: “Small Business Size Standards: Calculation of Number of Employees for All Programs and of Average Annual Receipts in the Business Loan, Disaster Loan, and Small Business Investment Company Programs” (Nov. 2, 2021).

Trade Representative, Office of the United States

86 FR 60961 Notice: “Reallocation of Unused Fiscal Year 2021 Tariff-Rate Quota Volume for Raw Cane Sugar” (Nov. 4, 2021).


H.R.5589 “Pyrolysis Innovation Grants Act.” Placed on the Union Calendar, Calendar No. 122 (Nov. 1, 2021).

H.Res.745 “Expressing support for the designation of the week of October 24, 2021, to October 31, 2021, as ‘BatWeek.’” Referred to the Subcommittee on Livestock and Foreign Agriculture (Nov. 3, 2021).

H.R.4252 “To provide additional funding for scholarships for students at 1890 institutions.” Placed on the Union Calendar, Calendar No. 126 (Nov. 3, 2021).

H.R.5631 “Tim Hart Wildland Firefighter Classification and Pay Parity Act.” Referred to the Subcommittee on Conservation and Forestry (Nov. 3, 2021).

H.R.5680 “Saving Workers by Eliminating Economic Tampering and Ensuring Reliability Act” or the “SWEETER Act.” Referred to the Subcommittee on General Farm Commodities and Risk Management (Nov. 3, 2021).

H.R.5724 “White House Conference on Food, Nutrition, Hunger, and Health Act.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Nov. 3, 2021).

H.R.5863 “To strengthen enforcement actions against unlawfully sourced palm oil and deforestation in developing countries, and for other purposes.” Referred to the Committees on Agriculture, Energy and Commerce, Foreign Affairs, Financial Services, and Natural Resources (Nov. 4, 2021).


No new actions Nov. 1–5, 2021.

Connect with the Center on Facebook or on Twitter @AgShaleLaw     

Top #AgLaw HotLinks Nov. 1–5, 2021 

No Signs of Relenting—Implications From Elevated Input Costs Continue to Unfold for Producers, Univ. of Ill. Farm Policy News

Minnesota Adds Greenhouse Gas Estimates to Environmental Assessments; Ag Groups Say It’s Too Early, AgWeek

Lamb Industry Loses Livestock Risk Protection Program, AgWeek

EU and US Deal Relieves Ag Export Duties, Brownfield

Growth Energy Files Intent to Sue EPA over Biofuel Delays, Brownfield

Bill Gates’s Latest Big Climate Investment Is . . . Milk, Fast Company

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].

Written by:  
Audry Thompson—Research Assistant 
Brook Duer—Staff Attorney