December 9, 2024

Agricultural Law Weekly Review—December 10, 2024

This Week:

NEW:

Agricultural Labor: Two Federal Courts Block ‘Temporary Ag Workers’ Rule, Nationwide Stay Issued 🌾
On November 25, 2024, the U.S. District Court for the Southern District of Mississippi issued an order temporarily staying nationwide the U.S. Department of Labor’s (DOL) recent H-2A final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (89 FR 33898). Int’l Fresh Produce Assoc. v. U.S. Dept. Labor, No. 1:24-cv-00309. On the same day, the U.S. District Court for the Eastern District of Kentucky published an order preliminarily enjoining DOL from enforcing the rule in Kentucky, Alabama, Ohio, and West Virginia. Barton v. DOL, No. 5:24-cv-00249. Both courts followed the reasoning from the recent order from the U.S. District Court for the Southern District of Georgia, which found that, although the rule falls within DOL’s authority under the H-2A visa program, it “violates the [National Labor Relations Act] because the DOL attempts to unconstitutionally create law . . . by affording some agricultural workers—H-2A workers and American workers similarly situated—the right to collectively bargain.” State of Kansas v. DOL (No. 2:24-cv-00076). The Mississippi district court likewise stated, “DOL seeks to confer upon H-2A agricultural workers NLRA-style rights that Congress specifically chose to not confer upon domestic agricultural workers,” noting that the law states, “The term ‘employee’ . . . shall not include any individual employed as an agricultural laborer.” However, the Mississippi court diverged from the other courts by issuing a stay of the rule, reasoning that “if Plaintiffs succeed on the merits ‘it is likely that the default remedy—vacatur—will be appropriate. And the temporary version of vacatur is a stay.” The court further reasoned that the stay should apply nationally due to “the harm caused by the amendments . . . the public interest in maintaining national uniformity, and the likelihood that the amendments will be found unlawful.”

See also ALWR—Oct. 23, 2024, “Employer Groups Challenge H-2A ‘Improving Protections for Temporary Ag Workers’ Rule,” ALWR—Oct. 3, 2024, “Two More Suits Filed Against ‘Improving Protections for Temporary Ag Workers’ Rule,” and ALWR—Sept. 10, 2024, “Federal Court Grants Preliminary Injunction Against New H-2A Protections Rule.” For more on the H-2A Program, see materials & recording from Understanding the Basics of the H-2A Temporary Agricultural Worker Program.

Avian Influenza: USDA Issues Raw Milk Testing Order, National Milk Testing Strategy
On December 6, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a federal order and corresponding guidance “requiring that raw (unpasteurized) milk samples nationwide be collected and shared with USDA for testing.” Also announced by USDA, the agency states that the order “mark[s] the official beginning” of its National Milk Testing Strategy (NMTS), which identifies five steps to “demonstrate H5 freedom in U.S. dairy cattle.” The order establishes three requirements: (1) “it requires the sharing of raw milk samples, upon request, from any entity responsible for a dairy farm, bulk milk transporter, bulk milk transfer station, or dairy processing facility that sends or holds milk intended for pasteurization,” (2) it “requires herd owners with positive cattle to provide epidemiological information that enables activities such as contact tracing and disease surveillance,” and (3) “it requires that private laboratories and state veterinarians report positive results to USDA that come from tests done on raw milk samples drawn as part of the NMTS,” similar to the department’s April 24 order. According to the announcement, the “new Federal Order does not override or supersede” and “is intended to complement and enhance” the April 24 order. USDA states that “the first round of silo testing under the Federal Order . . . is scheduled to begin the week of Dec. 16, 2024, although some states are already conducting testing compatible with the NMTS.” For more on Raw Milk, see recording & materials from the October 2024 Quarterly Dairy Legal Webinar: Raw Milk—An Overview of State Raw Milk Regulations.

Biosecurity:  USDA Issues New World Screwworm Import Restriction for Cattle, Bison from Mexico
On November 22, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued an import alert “temporarily suspending the importation of ruminants, including live cattle and bison, from Mexico” due to “a positive detection of New World screwworm (NWS) . . . in the southern Mexico state of Chiapas, at an inspection checkpoint close to the border with Guatemala.” Also announced by APHIS, the import suspension allows importation of horses if they are examined according to APHIS protocol prior to export and quarantined for seven days upon arrival in the United States as well as “the importation of dogs . . . if accompanied by a health certificate signed by a full-time, salaried SENASICA veterinary official.” The import suspension is effective “until further notice.” For more on animal disease, see materials from Understanding the Basics of Animal Disease Control & Quarantines.

Dairy Policy: USDA Publishes Final FMMO Decision in Federal Register
On December 2, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a proposed rule (89 FR 95466) of the agency’s final decision regarding amendments to the uniform pricing formulas for the 11 Federal Milk Marketing Orders (FMMOs) following USDA’s National Federal Milk Marketing Order Pricing Formula Hearing, along with a regulatory economic impact analysis of the final decision (AMS-DA-23-0031). AMS is currently conducting a referendum through December 31, 2024, on the final decision, on which AMS states that producers may not “vote . . . on individual provisions,” and that “producers must vote on the entire FMMO.” AMS additionally states that, “if passed by a two-thirds majority,” the agency expects to publish the final rule in the Federal Register “in early 2025,” which “would include implementation timelines.” According to AMS, “if the approval threshold is not met in any individual FMMO, proceedings to terminate the respective FMMO(s) will begin.” See also ALWR—Nov. 26, 2024, “USDA Announces Final Decision to Amend Federal Milk Marketing Order Pricing.” For more on FMMO processes, see materials from the July 2023 Quarterly Dairy Legal Webinar: Administrative Process to Establish and Amend Federal Milk Marketing Orders (FMMOs).

Packers and Stockyards Act: USDA Extends Comment Period of ‘Price Discovery and Competition in Markets for Fed Cattle’ Proposed Rule Until January 10, 2025
On November 25, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a notice (89 FR 92853) extending the comment period for its proposed rule, “Price Discovery and Competition in Markets for Fed Cattle.” The proposed rule (89 FR 82519) was originally published in the Federal Register on October 11, 2024. As announced by USDA, the proposed rule would establish regulations regarding alternative marketing agreements, most of which are “formula pricing agreements that use an external benchmark price to establish a base price” that “is not known when the contract is signed, and . . . fluctuates in accordance with the benchmark.” The comment period is now open until January 10, 2025. For background on the proposed rule, see ALWR—Oct. 23, 2024, “USDA Publishes ‘Price Discovery and Competition in Markets for Fed Cattle’ Proposed Rule.” For more on the Packers and Stockyards Act, see materials & recording from Understanding the Basics of Livestock Market Regulation.

Agricultural Finance: Farm Storage Facility Loans Now Available for Controlled Atmosphere Storage
On December 3, 2024, the Pennsylvania state office of the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that Farm Storage Facility Loans are now available for controlled atmosphere storage, which “regulates the concentrations of oxygen, carbon dioxide and nitrogen in a storage room to increase the shelf life of crops” and are “widely used by specialty crop producers.” According to the announcement, “loans of up to $50,000 can be secured by a promissory note/security agreement” while “loans between $50,000 and $100,000 may require additional security and loans exceeding $100,000 require additional security.” FSA states that “borrowers do not need to demonstrate lack of commercial credit availability to apply” and that funds may be used to “renovate existing storage facilities to include controlled atmosphere storage monitoring equipment.” FSA state offices in nine additional states also issued the same announcement: Illinois, Kentucky, Minnesota, Missouri, Montana, New Hampshire, New York, Oklahoma, and Virginia.

Disaster Assistance Programs: Several PA Counties Designated as Eligible Primary, Contiguous for Emergency Loans
On December 4, 2024, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that it had designated three Pennsylvania counties—Pike, Potter, and Tioga—as contiguous counties eligible for emergency farm loans due to Hurricane Debby. Previously, on November 22, 2024, FSA designated nine primary and nineteen contiguous Pennsylvania counties eligible for emergency loans due to Tropical Storm Debby (Aug. 9–10, 2024): Primary—Cambria, Cameron, Clearfield, Elk, Indiana, Sullivan, Susquehanna, Wayne, and Wyoming; Contiguous—Armstrong, Bedford, Blair, Bradford, Centre, Clinton, Columbia, Forest, Jefferson, Lackawanna, Luzerne, Lycoming, McKean, Monroe, Pike, Potter, Somerset, Warren, and Westmoreland. Additionally, on November 26, 2024, FSA designated Delaware county as a primary county and Chester, Montgomery, and Philadelphia counties as contiguous counties eligible for emergency loans due to drought. Producers have until July 2025 to apply for funding.

 

_________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

Complying with the New U.S. Treasury ‘Beneficial Ownership Information’ Filing Requirements, Brook Duer Presents with SBDC Agriculture Center of Excellence

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:

Quarterly Dairy 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:

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 48—Nov. 30, 2024)

Department of Environmental Protection

54 Pa.B. 7679 Notice: “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”

54 Pa.B. 7764 Notice: “Availability of Technical Guidance”

54 Pa.B. 7765 Notice: “Federal Consistency under the Coastal Zone Management Act; FDR Park – Nature Phase Environmental Restoration”

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. ENVIROMENTAL PROTECTION AGENCY

California to Receive Nearly $1.2 Million from EPA to Help Businesses Prevent Pollution (Nov. 26, 2024)

EPA Announces Over $1 Million in Grants to Help Businesses in Nevada Prevent Pollution (Nov. 26, 2024)

EPA Fines Puerto Rico Construction Company $80,000 for Polluting Cañas River (Nov. 26, 2024)

EPA Report Shows US Fuel Economy Hits Record High and CO2 Emissions Reach a Record Low (Nov. 25, 2024)

USDA AGENCY PRESS RELEASES:

Animal and Plant Health Inspection Service

APHIS in Action: Ohio Asian Longhorned Beetle Eradication Program Gifts Residents Free Trees (Nov. 25, 2024)

Mexico Notifies United States of New World Screwworm Detection (Nov. 24, 2024)

Farm Service Agency

USDA anuncia más de $ 2 mil millones para fortalecer el sector de cultivos especializados y ampliar el almacenamiento de cultivos para los productores después de los desastres naturales de 2024 (Nov. 27, 2024)

USDA Designates Delaware County, Pennsylvania, as Primary Natural Disaster Areas for Drought, Additional Counties in Pennsylvania, Delaware and New Jersey (Nov. 26, 2024)

FEMA Amends Presidential Major Disaster Declaration 4822 (Nov. 26, 2024)

Multiple Farm Recovery Centers to be Held in December 2024 (Nov. 25, 2024)

Federal Emergency Management Agency Designates 13 Counties in Kansas as Natural Disaster Areas Due to Severe Storms, Straight-line Winds, Tornadoes, and Flooding (Nov. 22, 2024)

USDA Designates New Jersey Counties Primary Natural Disaster Areas Due to Excessive Heat, Excessive Rain and High Winds; Additional Counties in Pennsylvania and New York as Contiguous (Nov. 22, 2024)

Food and Nutrition Service

USDA Expands Safeguards for SNAP Benefits with Pilot Targeting Out-of-State Fraud (Nov. 18, 2024)

USDA Announces Approval of D-SNAP for Virginia Disaster Areas (Nov. 15, 2024)

USDA Publishes Final Rule on SNAP Employment and Training Program Effectiveness (Nov. 15, 2024)

USDA Publishes Final Rule to Standardize SNAP Utility Allowances and Recognize Internet as a Basic Utility (Nov. 15, 2024)

U.S. Departments of Agriculture and Education Announce New Partnership to Expand SNAP Awareness and Access for Eligible College Students (Nov. 7, 2024)

USDA Announces Approval of D-SNAP for South Carolina Disaster Areas (Nov. 4, 2024)

Food Safety and Inspection Service

Increase in the Frequency of Salmonella Enteritidis with Decreased Susceptibility to Ciprofloxacin (Nov. 22, 2024)

Constituent Update – November 22, 2024 (Nov. 22, 2024)

Foreign Agriculture Service

U.S. Products Shine at Food Ingredients Asia in Jakarta (Nov. 27, 2024)

Export Sales to China (Nov. 27, 2024)

Export Sales to Mexico (Nov. 25, 2024)

USDA Accepting Applications for Agribusiness Trade Mission to Guatemala (Nov. 20, 2024)

National Institute of Food and Agriculture

NIFA-Funded Projects Behind Your Holiday Meal (Nov. 26, 2024)

Tribal Colleges and Universities Building Stronger Communities (Nov. 25, 2024)

National Resource Conservation Service

Notice of Intent North Cache Valley Watershed Plan Environmental Impact Statement, Franklin County, Idaho and Cache County, Utah (Nov. 27, 2024)

NRCS Agricultural Land Easements Protect Privately-Owned Croplands and Grasslands (Nov. 27, 2024)

NRCS-WA Outreach and Communication Team Earns 2024 Chief’s Conservation Stewardship Award (Nov. 26, 2024)

USDA’s Natural Resources Conservation Service Announces December 20th as the Deadline to Apply for a Conservation Restoration Plan for the Hermit’s Peak/Calf Canyon Fire and Floods (Nov. 26, 2024)

Sign up open for USDA Climate-Smart Ag & Forestry Conservation Programs in Rhode Island (Nov. 26, 2024)

USDA Announces Strategy to Uphold its Federal Trust Responsibilities to Increase Support for Conservation on Tribal Lands (Nov. 26, 2024)

Additional Inflation Reduction Act Funding Through the Agricultural Conservation Easement Program FY 25 (Nov. 25, 2024)

Conservation Through the Years: Three Generations of Innovation (Nov. 25, 2024)

Rooted in Regeneration: A Family’s Experimental Journey to Regenerative Agriculture (Nov. 25, 2024)

Reseeding a Ranching: Legacy with Conservation and Innovation (Nov. 25, 2024)

Conservation Stewardship Program (CSP) – Inflation Reduction Act (IRA) Funding for Climate-Smart Agriculture in Illinois (Nov. 25, 2024)

Sustaining the Land: Tribal Land Management and Conservation at Fort Belknap (Nov. 25, 2024)

Flourishing with Flowers: Rodi Farms is Blooming Under Carah Ronan’s Care (Nov. 25, 2024)

Additional Inflation Reduction Act Funding Through the Agricultural Conservation Easement Program FY 25 (Nov. 25, 2024)

Earthshare Gardens (Nov. 22, 2024)

Risk Management Agency

USDA Expands Revenue Protection to Flax Producers, Expands Options for Specialty and Organic Growers (Nov. 27, 2024)

Rural Development

Biden-Harris Administration’s Inflation Reduction Act Tops $1Billion in Clean Energy Investments to Nearly 7,000 American Farms and Rural Small Businesses (Nov. 14, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 18–22, 2024):   

Agricultural Marketing Service

89 FR 93148 Rule: “Walnuts Grown in California; Increased Assessment Rate” (Nov. 26, 2024)

89 FR 92853 Notice—Comment Period: “Price Discovery and Competition in Markets for Fed Cattle; Extension of Comment Period” (Nov. 25, 2024)

Animal and Plant Health Inspection Service

89 FR 92887 Notice—Comment Period: “Deregulation of Light Brown Apple Moth for the Importation of Fruit From New Zealand Into the United States” (Nov. 25, 2024)

89 FR 92886 Notice: “Privacy Act of 1974; System of Records” (Nov. 25, 2024)

Environmental Protection Agency

89 FR 93581 Notice—Comment Period: “Agency Information Collection Activities Submission to the Office of Management and Budget for Review and Approval; Comment Request; Toxic Chemical Release Reporting (Renewal)” (Nov. 27, 2024)

89 FR 93574 Notice—Comment Period: “Agency Information Collection Activities; Proposed Renewal of an Existing ICR Collection and Request for Comment; Assessment of Environmental Performance Standards and Ecolabels for Federal Procurement” (Nov. 27, 2024)

89 FR 93572 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Background Checks for Contractor Employees (Renewal)” (Nov. 27, 2024)

89 FR 93573 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Annual Public Water Systems Compliance Report (Renewal)” (Nov. 27, 2024)

89 FR 93575 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Exchange Network Grants Progress Reports (Renewal)” (Nov. 27, 2024)

89 FR 93580 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; NESHAP for Aerospace Manufacturing and Rework Facilities (Renewal)” (Nov. 27, 2024)

89 FR 93582 Notice—Comment Period: “Proposed Settlement With Bona Fide Prospective Purchaser, Miners Point Ventures, LLC, Central City, Clear Creek Superfund Site, Colorado” (Nov. 27, 2024)

89 FR 93576 Notice—Comment Period: “Certain New Chemicals; Receipt and Status Information for October 2024” (Nov. 27, 2024)

89 FR 93538 Proposed Rule: “West Virginia Underground Injection Control (UIC) Program; Class VI Primacy” (Nov. 27, 2024)

89 FR 93286 Notice—Comment Period: “Settlement Agreement and Order on Consent: Uintah Mining District Site Summit County, Utah” (Nov. 26, 2024)

89 FR 93287 Notice—Comment Period: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Beryllium (Renewal)” (Nov. 26, 2024)

89 FR 93285 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Comment Request; NESHAP for Gold Mine Ore Processing (Renewal)” (Nov. 26, 2024)

89 FR 93287 Notice—Comment Period: “Proposed Consent Decree, Clean Water Act Claim” (Nov. 26, 2024)

89 FR 93285 Notice—Comment Period: “Proposed Cost Recovery Settlement Agreement Between the United States of America and Paramount Global Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as Amended; In Re: Wells G&H Superfund Site, Operable Unit 4, in Woburn, Massachusetts” (Nov. 26, 2024)

89 FR 93289 Notice—Comment Period: “Proposed Cost Recovery Settlement Agreement Between the United States of America and Raytheon Company Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as Amended; In Re: Wells G&H Superfund Site, Operable Unit 4, in Woburn, Massachusetts” (Nov. 26, 2024)

89 FR 93239 Notice—Comment Period: “Air Plan Approval; New York; Knowlton Technologies LLC” (Nov. 26, 2024)

89 FR 93187 Direct Final Action—Comment Period: “Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure to Submit State Implementation Plan (SIP)” (Nov. 26, 2024)

89 FR 93243 Proposed Action—Comment Period: “Excess Emissions During Periods of Startup, Shutdown, and Malfunction; Partial Withdrawals of Findings of Failure to Submit State Implementation Plan (SIP)” (Nov. 26, 2024)

89 FR 92873 Proposed Rule: “Clean Data Determination and Proposed Approval of Base Year Emissions Inventory; California; Los Angeles-South Coast Air Basin; 189(d) Plan for the 2006 24-Hour PM2.5 NAAQS” (Nov. 25, 2024)

89 FR 92821 Rule: “Various Fragrance Components in Pesticide Formulations; Tolerance Exemption” (Nov. 25, 2024)

89 FR 92816 Rule: “Finding of Failure to Attain and Reclassification of the Missouri Portion of the St. Louis Nonattainment Area as Serious for the 2015 Ozone National Ambient Air Quality Standards” (Nov. 25, 2024)

Food Safety and Inspection Service

89 FR 93470 Final Action—Comment Period: “Uniform Compliance Date for Food Labeling Regulations” (Nov. 27, 2024)

89 FR 92607 Proposed Rule—Notification of Public Meetings: “Salmonella Framework for Raw Poultry Products” (Nov. 22, 2024)

Forest Service

89 FR 93548 Notice: “Intent to Renew the Northwest Forest Plan Area Advisory Committee” (Nov. 27, 2024)

89 FR 93273 Notice: “Fresno and Madera Resource Advisory Committee” (Nov. 26, 2024)

89 FR 92888 Notice: “Newspapers Used for Publication of Legal Notices in the Southwestern Region, Which Includes Arizona, New Mexico, and Parts of Oklahoma and Texas” (Nov. 25, 2024)

89 FR 92808 Rule: “Law Enforcement; Criminal Prohibitions” (Nov. 25, 2024)

89 FR 92890 Notice: “Central Idaho Resource Advisory Committee” (Nov. 25, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.10261 “To spark a renaissance in American manufacturing through the establishment of a American Manufacturing Renaissance Act to develop and monitor a national manufacturing strategy, to identify and address supply chain weaknesses as well as identify and address obstacles to inclusion and align manufacturing with strategic opportunities and imperatives through local multi-stakeholder Manufacturing Renaissance Councils, which are analogous to the technology hubs established in the Chips and Science Act, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Education and the Workforce, Financial Services, and 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. (Nov. 26, 2024)

U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:

No Agriculture actions Nov. 25-29, 2024.

Agriculture-Related Legislative Hearings & Reports

No Upcoming Hearings or Reports.

 

Contributors:
Audry Thompson—Staff Attorney
Riley Amdor—Research Assistant
Victoria Dutterer—Research Assistant