June 17, 2024
Agricultural Law Weekly Review—June 17, 2024
Antitrust: USDA Publishes Poultry Grower, Dealer Proposed Rule 🌾
On June 10, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a proposed rule (89 FR 49002) pursuant to the Packers and Stockyards Act titled “Poultry Grower Payment Systems and Capital Improvement Systems.” Also announced by the USDA, the proposed rule would establish several requirements for live poultry dealers (LPDs) and agreements between LPDs and broiler growers. Particularly, the rule would “[p]rohibit LPDs from discounting or reducing a grower’s rate of compensation as disclosed in the broiler growing arrangement based on the grower’s grouping, ranking, or comparison to others” and require LPDs to
- “Design and operate their broiler grower ranking system to provide a fair comparison among growers, with particular attention to certain factors including the distribution of inputs and flock production practices, the time period of the comparison, the conditions and circumstances for the comparison, and the reasonableness of efforts to resolve disputes,”
- “Establish and maintain written documentation of their processes for the design and operation of a broiler grower ranking system that is consistent with the duty of fair comparison, review their compliance with these processes not less than once every two years, and retain all relevant written records for five years,”
- “Provide a grower with a Capital Improvement Disclosure Document when an LPD requests that the grower make an additional capital investment,” and
- “Introduce a severability clause that would permit for certain parts of the regulations to remain in effect even if others are deemed unenforceable.”
According to the rule, “USDA would enforce the regulations through referral to the Department of Justice (DOJ) for appropriate action or, where failure to pay is implicated, through administrative action” and “AMS would . . . conduct compliance reviews of adherence to the proposed regulatory requirements and . . . investigate suspected violations.” Additionally, the rule would allow “[i]njured individuals . . . a right to proceed in Federal court.” USDA has posted a free webinar explaining the proposed rule. The proposed rule is available for public comment until August 9, 2024, via Regulations.gov (AMS-FTPP-22-0046).
Animal Health: USDA Publishes National Poultry Improvement Plan Proposed Rule, Conditions Indemnity Payments on Biosecurity Plan Compliance
On June 11, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a proposed rule (89 FR 49107) to amend regulations for the National Poultry Improvement Plan (nationalpoultryimprovement.org), a “voluntary federal-state cooperative testing and certification program for poultry breeding flocks, baby chicks, poults, hatching eggs, hatcheries, and dealers.” According to the proposed rule, the changes would “condition indemnity for low pathogenicity avian influenza on adherence to biosecurity plans” and “align the regulations more closely with current producer practices.” Additionally, APHIS states that the “proposed changes were voted on and approved by the voting delegates at the NPIP’s 2022 National Plan Conference.” The proposed rule is available for public comment until August 12, 2024.
Right to Farm: Maryland Appellate Court Finds Nutrient Management Program Expansion Protected by Right-to-Farm Law
On May 30, 2024, the Maryland Court of Appeals issued an opinion reversing the lower court’s decision and affirming the Talbot County Agricultural Resolution Board’s determination that Maryland’s right-to-farm law protects farmers from nuisance complaints so long as the agricultural land has been “used continuously for some type of agricultural operation for one year.” In the Matter of Cheryl Lewis, et al., C-20-CV-22-000143. The appellees alleged that a neighboring farm’s expansion of its nutrient management program violated state nuisance laws. The Court of Appeals determined that both the legislative history and plain language of the right-to-farm law supports the interpretation that “agricultural land may change the modality of its operations without losing liability protection.” The court further held that the law “does not require a particular agricultural operation to exist for one year in order to enjoy liability protection,” stating, “Instead, it requires the agricultural land to be used continuously for some type of agricultural operation for one year.” The appellate court remanded the case to the lower court with directions to affirm the Board’s initial decision. For more on Right to Farm, see the Center’s Pennsylvania Right to Farm Act Virtual Resource Room.
Water Quality: Oklahoma Passes Poultry Producer Nuisance Liability Protection Law
On May 31, 2024, Oklahoma Governor Kevin Stitt signed into law a bill amending the Oklahoma Registered Poultry Feeding Operations Act (SB 1424), which provides statutory immunity from nuisance liability for poultry companies and farmers in compliance with a state-approved nutrient management plan. The law protects poultry producers from both civil and criminal punishment for polluting Oklahoma waterways, even if their actions cause harm, so long as the producer “take[s] all actions feasible to prevent pollution from stored poultry waste.” The law also imposes fines for producers who do not comply with the nutrient management plan—if a producer’s poultry waste pollutes Oklahoma waterways while not following the safety guidelines, the producer may be charged with a misdemeanor and fined $500–10,000 per day and/or imprisoned for up to six months.
_________________________________________________
aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn
CENTER PROGRAMS & RESOURCES
Understanding Agricultural Law Series. A free monthly Zoom webinar series for agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Fridays, noon–1 pm (ET). Upcoming:
- June 28, 2024, Understanding the Basics of the Clean Water Act & Agriculture
- July 26, 2024, Understanding the Basics of Agritourism Laws
- Aug. 23, 2024, Understanding the Basics of the H-2A Temporary Agricultural Worker Program
Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:
- July 16, 2024, Overview of U.S. State Milk Pricing Systems, Part 2
“HPAI in Poultry and Cattle: How Can We Miss You if You Won’t Go Away?”
- July 17, 2024, noon–1 pm (ET), online. Staff Attorney Brook Duer Presents with the National Agricultural Law Center.
Podcasts:
Agricultural Law Podcast
USDA Takes First Regulatory Steps on Carbon Credit Production (May 14, 2024)
USDA Takes New Approach in HPAI Outbreak in Dairy Cattle (Apr. 26, 2024)
Farmland Legal Energy Podcast
Agrivoltaics & Large-Scale Solar Energy in Pennsylvania Update (May 15, 2024)
Artificial Intelligence in Agriculture (Apr. 29, 2024)
Resources of Interest:
Iowa St. Univ. Ctr. Agric. Law & Tax’n, New Iowa Form 100A is Ready for Those Claiming 2023 Iowa Capital Gain Deduction for Sale of Breeding or Dairy Livestock, Kristine A. Tidgren (June 7, 2024)
Southern Ag Today, Examining Farm Bill Base Acre Proposals, Bart Fischer, Texas A&M, Joe Outlaw, Texas A&M (June 6, 2024)
Nat’l Agric. Law Ctr., Cell-Cultured Meat Updates: State Bans, Labeling Requirements, and Regulatory Clarifications, Emily Stone (June 6, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, USDA Wants Farmer Input on Rules for a Voluntary Carbon Market, Peggy Kirk Hall (June 5, 2024)
Univ. Md. Risk Mgmt. Educ. Blog , State Appellate Court Overturns Circuit Court’s Right-to-Farm Decision, Paul Georinger (June 5, 2024)
Southern Ag Today, Building Equity, Kevin Burkett, Univ. of Clemson (June 5, 2024)
Tex. A&M Agric. Law Blog, Court Analyzes Liability of Landowner When Tree Falls Across Roadway, Tiffany Dowell Lashmet (June 4, 2024)
Southern Ag Today, Humanely Processed Chicken May Bring a Premium Price, Dennis Brothers, Ala. A&M and Auburn Univ. (June 4, 2024)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
Agriculture and Interior Departments Invest $2.8 Billion to Protect Public Lands, Support Conservation Efforts Across the United States (June 4, 2024)
USDA Proposes Next Steps to Promote Fairer Poultry Markets, Protect Producers, and Enhance Transparency (June 3, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Services
USDA Farmers Market Opens for 27th Market Season (June 4, 2024)
Animal and Plant Health Inspection Service
USDA APHIS Announces Plans for Eradicating Asian Longhorned Beetle in Massachusetts, New York, Ohio, and South Carolina (June 6, 2024)
Farm Service Agency
USDA Announces Loan Rates for 2024-Crop Peanuts (June 6, 2024)
USDA Announces June 2024 Lending Rates for Agricultural Producers (June 3, 2024)
National Institute of Food and Agriculture
NIFA Invests $5.7M in Pollinator Health (June 5, 2024)
NIFA Invests $9M for Ag Risk Management Education Partnerships (June 5, 2024)
Natural Resources Conservation Service (NRCS)
May Weather Improves Water Supply Outlook, Yet More Precipitation is Needed (June 7, 2024)
NRCS Invites Proposals for 2024 Conservation Innovation Grants (June 3, 2024)
NRCS Texas Announces ‘Notice of Funding Opportunity’ for $1M in Conservation Innovation Grants for FY24 (June 3, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register June 3–7, 2024):
Agriculture Department
89 FR 48495 Rule: “Civil Monetary Penalty Inflation Adjustments for 2024” (June 7, 2024)
89 FR 47892 Notice: “Submission for OMB Review; Comment Request” (June 4, 2024)
Agricultural Marketing Service
89 FR 48257 Rule: “Fees for Official Inspection and Weighing Services Under the United Stated Grain Standards Act” (June 6, 2024)
Animal and Plant Health Inspection Service
89 FR 48131 Rule: “Horse Protection Amendments; Correction” (June 5, 2024)
89 FR 47893 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Control and Eradication of African Swine Fever; Conditions for Payment of Indemnity Claims” (June 4, 2024)
Farm Service Agency
89 FR 48142 Notice: “Information Collection Request; Coronavirus Food Assistance Program 2 (CFAP 2)” (June 5, 2024)
Forest Service
89 FR 47894 Notice: “Solicitation of Nominations for Membership for the Pacific Northwest Region Recreation Resource Advisory Committee” (June 4, 2024)
89 FR 47510 Notice: “Southern Arizona Resource Advisory Committee” (June 3, 2024)
89 FR 47509 Notice: “Alpine County Resource Advisory Committee” (June 3, 2024)
Rural Business-Cooperative Service
89 FR 48551 Notice—Comment Period: “Notice of Request for Revision of a Currently Approved Information Collection” (June 7, 2024)
89 FR 47895 Notice—Comment Period: “Notice of Revision of a Currently Approved Information Collection” (June 4, 2024)
Rural Housing Service
89 FR 48499 Rule: “Single Family Housing Section 504 Home Repair Loans and Grants in Presidentially Declared Disaster Areas Pilot Program” (June 7, 2024)
89 FR 47510 Notice: “Notice of Funding Availability for the Community Facilities Technical Assistance and Training Grant Program for Fiscal Year 2024” (June 3, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.8656 “To provide for the implementation of certain recommendations from the Report of the Wildland Fire Mitigation and Management Commission.” Referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture, Education and the Workforce, Oversight and Accountability, Armed Services, Energy and Commerce, Science, Space, and Technology, Transportation and Infrastructure, and Small Business, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned (June 7, 2024)
H.R.8640 “To provide for the establishment of a National Interagency Seed and Restoration Center, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned (June 5, 2024)
H.R.8611 “To amend the Federal Agriculture Improvement and Reform Act of 1996 and the Federal Crop Insurance Act with respect to transitioning producers from the noninsurance crop assistance program to whole farm revenue insurance.” Referred to the House Committee on Agriculture (June 4, 2024)
H.R.8598 “To amend the Consolidated Farm and Rural Development Act to provide for a pilot program under which development loans and loan guarantees may be made to beginning farmers and ranchers, and for other purposes.” Referred to the House Committee on Agriculture (June 3, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.4480 “A bill to direct the Secretary of Agriculture to establish a program to provide to rural communities technical assistance in recovering from disasters, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 5, 2024)
S.4472 “A bill to amend the Federal Agriculture Improvement and Reform Act of 1996 with respect to transitioning producers from the noninsured crop assistance program to the whole farm revenue insurance plan.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 5, 2024)
S.4441 “A bill to amend the Consolidated Farm and Rural Development Act to provide for a pilot program under which development loans and loan guarantees may be made to beginning farmers and ranchers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (June 3, 2024)
Agriculture-Related Legislative Hearings & Reports
Senate Committee on Ag., Nutrition, & Forestry, Hearing on the High Plains: Combating Drought with Innovation, June 26, 2024, 11:00 a.m. EDT.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES
Governor Shapiro’s $10 Million Agriculture Innovation Program Moves Closer To Becoming Law With Bipartisan Support (June 5, 2024)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 23—June 8, 2024):
Department of Conservation and Natural Resources
54 Pa.B. 3173 Notice: “Revisions to Schedule of Prices for State Parks”
Department of Environmental Protection
54 Pa.B. 3174 Applications: “Applications for national pollutant discharge elimination system (NPDES) permits and water quality management (WQM) permits under the Clean Streams Law and federal Clean Water Act”
PENNSYLVANIA LEGISLATURE
SB 37 “An Act amending the… Rural Pennsylvania Revitalization Act, in Center for Rural Pennsylvania, further providing for board of directors; establishing the Rural Population Revitalization Commission and providing for duties of the commission; and making a repeal.” Presented to the Governor. (June 4, 2024)
HR 445 “A Resolution designating the month of June 2024 as “Dairy Month” in Pennsylvania.” Reported as Committed. (June 3, 2024)
HB 245 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for vehicles exempt from registration.” Laid on the table. (June 3, 2024)
Contributors:
Victoria Dutterer—Research Assistant
Samuel Sweeten—Research Assistant
Audry Thompson—Staff Attorney
