Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
The following information is an update of
recent local, state, national, and international legal developments relevant to
agriculture:
Agricultural Finance: Chapter 12
Farm Bankruptcies Increasing
On October 30, 2019, American Farm Bureau (AFB)
released a
market intelligence report authored by Chief Economist John Newton showing
that Chapter 12 farm bankruptcy filings rose 24% in the 12-month period ending
September 2019 as compared to the same period one year earlier. There
were a total of 580 Chapter 12 filings, which nevertheless remains lower than
the recent high of 676 filings in 2011. Individual state and regional
filings varied greatly but nine states recorded totals at or above 10-year
highs (Iowa, Kansas, Maryland, Minnesota, Nebraska, New Hampshire, South
Dakota, Wisconsin and West Virginia). More than 40% of the filings, 255,
were in a 13-state region of the Midwest.
That compares to 78 filed in the Northeast and Mid-Atlantic regions
combined. The Southeast recorded the
second-highest total with 118 filings, an increase in that region of 31%.
While Newton also reported record-high total farm income projections for 2019 of
$88 billion, nearly 40% of that income or approximately $33 billion, is
attributable to trade war aid,
disaster assistance, farm bill programs and insurance indemnities.
Right to Farm Laws: Pennsylvania
Attorney General Releases 2019 ACRE Annual Report
On October 25, 2019, the Pennsylvania Office of
Attorney General (OAG) released its annual report of case review and
enforcement activity under Pennsylvania’s 2005 Agriculture, Communities and
Rural Environment (ACRE)
statute. Under the ACRE statute, OAG has the
authority, among other things, to review a local ordinance upon referral and
determine if it meets the statute’s definition of “unauthorized” due to
infringement upon the conduct of a “normal agricultural operation’ as defined
in Pennsylvania’s Right to Farm Law. If so, OAG may seek injunctive
relief against its enforcement. In the
state fiscal year from July 2018 to June 2019, OAG received nineteen (19)
referrals of new cases, as compared to eight (8) the previous fiscal year,
closed twelve (12) cases and continued working on fifteen (15) cases remaining
from previous years. Since the 2005 inception of the ACRE program, OAG
reports 174 total referrals, 33 of which remain pending and 141 of which have
been resolved. Of the 174 total referrals since 2005, 7 resulted in lawsuits being
filed. Frequently, cases are resolved
through negotiation with township governments for ordinance amendments.
The report details the status of each lawsuit and what case law precedent has
been established. The report is not yet
posted on OAG’s website but is available upon request at acre@attorneygeneral.gov.
Conservation Programs: NRCS Proposes
Revisions to the National Handbook of Conservation Practices Mandated by the
2018 Farm Bill
On October 23, 2019, the Natural Resources
Conservation Service (NRCS) published proposed
revisions to the National Handbook of Conservation Practices (NHCP)
regarding standards for planning, designing, installing, operating and
maintaining an enumerated list of thirteen (13) conservation practices used in
conservation systems that treat highly erodible land (HEL) or on land
determined to be a wetland. There is a thirty (30) day public
comment period which closes on November 22, 2019. These revisions
stem from a mandate contained in the 2018 Farm Bill for NRCS to review
current conservation practice standards to increase flexibility, optimize
site-specific needs and minimize risks of design failure. The
conservation practice standards proposed to be revised support programs such as
the Environmental Quality Incentives Program and Conservation Stewardship
Program. Ultimately, those programs help producers cover part of the costs for
implementing these practices.
Food Policy: USDA, EPA, and FDA
Partner with the Food Waste Reduction Alliance
On October 30, 2019, the U.S. Department of
Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the
U.S. Food and Drug Administration (FDA) announced
a Memorandum
of Understanding (MOU) establishing a formal collaboration with the Food Waste Reduction Alliance
(FWRA). The FWRA is an initiative between the Grocery Manufacturers
Association, the Food Marketing Institute, and the National Restaurant
Association that aims to reduce the creation of food waste, increase donations
of food to those in need, and divert inevitable food waste from landfills
through recycling. The collaboration between the federal agencies and the
FWRA is intended to further the Winning
on Reducing Food Waste Federal Interagency Strategy of the EPA, USDA, and
FDA. According to the MOU, the parties intend to share best practices on
food waste reduction, collaborate on industry education efforts to reduce food
waste, and encourage “safe and effective food donation” through the promotion
of the Bill
Emerson Good Samaritan Act, a 1996 federal statute encouraging food
donation by limiting liability risks.
From National Ag Law Experts:
Brigit Rollins, Natural
Resources Threatened? Iowa Environmentalists Sue Over Raccoon River (October
30, 2019)
Penn State Research:
Matthew Carroll, Combining
satellites, radar provides path for better forecasts (November 04,
2019)
Sam Sholtis Malaria
parasite lives on the edge (October 31, 2019)
Pennsylvania Department of Agriculture:
“Agriculture
Department Calls for Research Proposals to Combat Chronic Wasting Disease in
Pennsylvania” (November 4, 2019)
“Agriculture
Secretary Joins Celebration of Lancaster County Farmland Preservation,
Highlights Opportunities for Preserved Farm Owners” (October 31, 2019)
Pennsylvania Executive Agencies—Actions
and Notices:
Department of Agriculture
“Chronic
Wasting Disease Research Projects; Request for Applications” (November 2,
2019)
Department of Environmental Protection
“Growing
Greener Plus Grants Program” (November 2, 2019)
“Nutrient
Credit Trading Program; Certification Requests” (November 2, 2019)
“Nutrient
Credit Trading Program; Mass Certification” (November 2, 2019)
Delaware River Basin Commission
“Public
Hearing and Business Meeting” (November 2, 2019)
Pennsylvania Legislature
H.B.1085
“An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the
State Personal Property Tax Act.” Presented to the Governor (October 29, 2019)
S.B.147
“An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in
Pennsylvania Game Commission, further providing for accountability; and, in
hunting and furtaking, further providing for hunting on Sunday prohibited and
for trespass on private property while hunting and providing for hunting on
Sunday without written permission.” Passed in House (October 30, 2019)
S.B.350
“An Act amending Titles 3 (Agriculture), 18 (Crimes and Offenses) and 42
(Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes,
providing for adult-use cannabis and establishing the Adult-Use Cannabis Grant
Program and the Adult-Use Cannabis Fund; in criminal history record
information, further providing for expungement; in sentencing, providing for
commutation and dismissal of cannabis-related offenses; and imposing
penalties.” Referred to Agriculture and Rural Affairs (October 31, 2019)
H.B.188
“An Act providing for property owner's bill of rights statement.” Laid on
table, House (October 30, 2019)
H.B.827
“An Act designating certain activity by the Delaware River Basin Commission as
the exercise of the power of eminent domain that entitles the owners of the
property in question to appropriate and just compensation.” Removed from table
in House (October 29, 2019)
Federal Executive Agencies—Actions and
Notices:
USDA - Agricultural Marketing Service
“Establishment
of a Domestic Hemp Production Program,” Interim Final Rule (October 31,
2019).
Animal and Plant Health Inspection Service
“Notice
of Request for Revision to and Extension of Approval of an Information
Collection; Domestic Quarantine Regulations,” Notice (November 1,
2019).
“Notice
of Request for Revision to and Extension of Approval of an Information
Collection; Veterinary Services Field Operations Export Services Customer
Service Survey Project,” Notice (November 1, 2019).
Environmental Protection Agency
“Isotianil;
Pesticide Tolerances,” Final Rule (November 1, 2019).
“Pesticides;
Agricultural Worker Protection Standard; Revision of the Application Exclusion
Zone Requirements,” Proposed Rule (November 1, 2019).
Farm Credit Administration
“Sunshine
Act Meeting; Farm Credit Administration Board,” Notice (November 6, 2019).
Fish and Wildlife Service
“Endangered
and Threatened Wildlife and Plants; Removing Oenothera coloradensis (Colorado
Butterfly Plant) From the Federal List of Endangered and Threatened Plants,”
Final Rule (November 5, 2019).
“Endangered
and Threatened Wildlife and Plants; Draft Recovery Plan for the Gunnison
Sage-Grouse,” Notice (November 1, 2019).
“Endangered
and Threatened Wildlife and Plants; Draft Recovery Plan for the Streaked Horned
Lark,” Notice (October 30, 2019).
Food and Drug Administration
“Comment
Request-Supplemental Nutrition Assistance Program-Trafficking Controls and
Fraud Investigations,” Notice (November 6, 2019).
Food and Nutrition Service
“National
School Lunch, Special Milk, and School Breakfast Programs, National Average
Payments/Maximum Reimbursement Rates,” Notice (November 1, 2019).
Forest Service
“Missouri
River Resource Advisory Committee,” Notice (October 31, 2019).
Geological Survey
“Submission
to the Office of Management and Budget for Review and Approval; State Water
Resources Research Institute Program Annual Application, National Competitive
Grants, and Reporting” Notice (October 31, 2019).
International Trade Administration
“Quarterly
Update to Annual Listing of Foreign Government Subsidies on Articles of Cheese
Subject to an In-Quota Rate of Duty,” Notice (November 5, 2019).
Susquehanna River Basin Commission
“Commission
Meeting,” Notice (November 6, 2019)
Wage and Hour Division
“Fluctuating
Workweek Method of Computing Overtime,” Proposed Rule (November 5,
2019).
“Comment
Request; Information Collections: Application for a Farm Labor Contractor or
Farm Labor Contractor Employee Certificate of Registration,” Notice
(October 31, 2019).
Workers Compensation Programs Office
“Advisory
Board on Toxic Substances and Worker Health,” Notice (October 31,
2019).
U.S. House Agriculture Committee
Actions:
H.R.4895
“CFTC [Commodity Futures Trading Commission] Reauthorization Act of 2019”
Introduced, Referred to Committee (October 29, 2019).
H.R.4902
“ARPA [Advanced Research Projects Agency]-Terra Act of 2019,” Introduced,
Referred to Committee (October 29, 2019).
H.R.4909
“CFTC [Commodity Futures Trading Commission] Cost-Benefit Analysis Improvement
Act,” Introduced, Referred to Committee (October 29, 2019).
H.R.4874
“Rebuild Rural America Act of 2019,” Introduced, Sponsor introductory remarks
(October 30, 2019).
H.R.4930
“To amend the Federal Lands Recreation Enhancement Act to provide for a
lifetime National Recreational Pass for any veteran with a service-connected
disability,” Introduced, Referred to Committees (October 30, 2019).
H.Con.Res.71
“Urging all nations to outlaw the dog and cat meat trade and to enforce
existing laws against such trade,” Introduced, Referred to Committees (October
31, 2019).
U.S. Senate Agriculture, Nutrition, And
Forestry Committee Actions:
S.2732
“A bill to amend the Department of Agriculture Reorganization Act of 1994 to
establish the Advanced Research Projects Agency-Terra, and for other purposes,”
Read twice and referred to committee (October 29, 2019).
S.2744
“A bill to amend the Federal Meat Inspection Act to modify requirements for a
meat food product of cattle to bear a "Product of U.S.A." label, and
for other purposes,” Read twice and referred to committee (October 30,
2019).
S.2752
“A bill to amend the Richard B. Russell National School Lunch Act to improve
program requirements, and for other purposes,” Read twice and referred to
committee (October 30, 2019).
S.2760
“A bill to amend the Richard B. Russell National School Lunch Act to enhance
direct certification under the school lunch program,” Read twice and referred
to committee (October 31, 2019).
Follow us on Twitter at PSU Ag & Shale
Law (@AgShaleLaw)
to receive AgLaw HotLinks:
“‘Avoid
Solving One Problem by Creating Another’: Plant-Based Boom Faces Sustainability
and Nutrition Challenges” (October 25, 2019)
“Can
Regenerative Agriculture Reverse Climate Change? Big Food is Banking on it.”
(October 29, 2019)
“New
Tool Released to Calculate Value of Pa. Dairy” (October 29, 2019)
“USDA
Draft Hemp Cultivation Rule Seen as Consistent With State Rules that Already
Govern Industry” (October 30, 2019)
“Trump's
Attempt to Force Feed China U.S. Farm Products Stymies Trade Talks”
(October 30, 2019)
“Farm
Bankruptcies Reach Decade-High Levels” (October 31, 2019)
“USDA
Invests $1.4 Billion in Rural Electric Infrastructure Improvements in 21
States” (November 1, 2019)
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