April 10, 2024

Agricultural Law Weekly Review—April 10, 2024

Conservation Programs: Fish and Wildlife Service Publishes Three Endangered Species Act Final Rules 🌾
On April 5, 2024, the U.S. Department of the Interior’s (DOI) Fish and Wildlife Service (FWS) published in the Federal Register three final rules revising regulations for “Endangered and Threatened Wildlife and Plants.” The first rule, “Listing Endangered and Threatened Species and Designating Critical Habitat” (89 FR 24300), amends the “procedures and criteria used for listing, reclassifying, and delisting species” and specifies that endangered and threatened species determinations shall be made “without reference to possible economic or other impacts of such determination.” The second rule, “Regulations for Interagency Cooperation” (89 FR 24268), “revis[es] the definition of ‘effects of the action’ by adding ‘but that are not part of the action’ to the end of the first sentence” and “revis[es] . . . the definition of ‘environmental baseline’ by replacing the term ‘consequences’ with the word ‘impacts’ [and] removing the term ‘ongoing,’” among other revisions. The third rule, “Regulations Pertaining to Endangered and Threatened Wildlife and Plants” (89 FR 23919), “reinstate[s] the general application of the ‘blanket rule’ option for protecting newly listed threatened species,” among other revisions. Also announced by FWS, all three rules become effective May 6, 2024.

Avian Influenza: Pennsylvania Department of Agriculture Issues HPAI Quarantine Order for Dairy Cattle
On April 6, 2024, the Pennsylvania Department of Agriculture (PDA) published an Interstate and International Quarantine Order titled “Restriction of Movement and Pre-Movement Influenza Testing of Dairy Cattle.” The order states that “dairy cattle from a State, Commonwealth, foreign nation, province or territory where [highly pathogenic avian influenza (HPAI)] has been confirmed in dairy cattle within the past 30 days may not be imported into, stopped off in, or unloaded in Pennsylvania without meeting . . . [certain] testing requirements for [HPAI],” which are detailed in the order. The order exempts the following three categories of dairy cattle from the testing requirements prior to entry into the state: (1) calves “less than 1 year of age,” (2) dairy cattle imported “for the purpose of immediate slaughter at a licensed meat establishment . . . provided that they are slaughtered within 72 hours of arriving and are not commingled with other dairy cattle that are not destined for immediate slaughter,” and (3) dairy cattle subject to “a formalized commuter agreement” where PDA “has determined sufficient biosecurity and other risk mitigations exist to allow predefined movements of cattle to occur in a safe manner.” The order “bec[a]me effective immediately upon signature of the Secretary of the Pennsylvania Department of Agriculture and shall remain in effect unless rescinded or modified by a subsequent Order.”

Avian Influenza: HPAI Confirmed in Dairy Herds and Human, Nebraska Issues Import Order
On March 29, 2024, the U.S. Department of Agriculture (USDA), Food and Drug Administration (FDA), and Centers for Disease Control and Prevention (CDC) published an update on detections of highly pathogenic avian influenza (HPAI) in dairy herds across multiple states and, on April 1, 2024, USDA confirmed the presence of HPAI in cattle in New Mexico, stating that the agency has “[t]o date . . has confirmed the detection of HPAI in dairy herds in Texas (7), Kansas (2), Michigan (1), and New Mexico (1).” Additionally, on April 1, 2024, the Texas Department of State Health Services reported the first human case of HPAI and the CDC published a concurrent press release confirming the finding. Texas reports that the individual “had direct exposure to dairy cattle presumed to be infected with avian influenza.” In response to the ongoing HPAI outbreak, the Nebraska Department of Agriculture published an importation order on April 1, 2024, “prohibiting all breeding female dairy cattle from entering the state of Nebraska without a Permit issued by the Department.” The Nebraska importation order is effective through April 30, 2024.

Pesticides/Herbicides: EPA Announces Warning for Dacthal, Cites ‘Significant Health Risks to Pregnant Individuals’
On April 1, 2024, the U.S. Environmental Protection Agency (EPA) issued an announcement warning about the “serious, permanent, and irreversible health risks” associated with the use of dimethyl tetrachloroterephthalate (DCPA, or Dacthal), an herbicide typically used on turf and crops “such as broccoli, Brussels sprouts, cabbage, and onions” and manufactured exclusively by the company AMVAC. According to the announcement, EPA “found concerning evidence of health risks associated with DCPA use and application, even when personal protective equipment and engineering tools are used,” following the agency’s assessment of “data that it compelled AMVAC to submit, which had been overdue for almost 10 years.” Although DCPA’s labelling claims that treated fields must only be restricted for 12 hours after application, EPA found “evidence indicat[ing] that . . . previously treated fields remained at unsafe levels for 25 days or more.” EPA states that the risks most seriously affect “developing babies of pregnant individuals,” citing “changes to fetal thyroid hormone levels . . . linked to low birth weight, impaired brain development, decreased IQ, and impaired motor skills later in life,” and “estimates that some pregnant individuals handling DCPA products could be subjected to exposures from four to 20 times greater than what current DCPA product label use instructions indicate is considered safe.” While AMVAC has proposed changes to the product’s registrations that “eliminate exposures to DCPA from recreational activities on and around turf,” EPA states that the proposals “do not adequately address the serious health risks for people who work with and around” the herbicide and that the agency “is . . . preparing to take further action under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as quickly as possible to protect people from the risks of DCPA.”

Technology: Oregon Governor Signs Right to Repair Law
On March 27, 2024, Oregon Governor Tina Kotek signed into law SB 1596, “Oregon’s Right to Repair reforms.” Also announced by the governor, the law “requires an original equipment manufacturer to make available to an owner of consumer electronic equipment or an independent repair provider on fair and reasonable terms any documentation, tool, part or other device or implement that the original equipment manufacturer makes available to an authorized service provider for the purpose of diagnosing, maintaining or repairing consumer electronic equipment.” The law explicitly identifies that manufacturers of “farm and utility tractors, farm implements and machinery,” are subject to the law.

Conservation Programs: USDA Announces $1.5 Billion for Regional Conservation Partnership Program Grants
On April 3, 2024, the U.S. Department of Agriculture announced the availability of $1.5 billion from the Farm Bill and Inflation Reduction Act for the Regional Conservation Partnership Program (RCPP). The funds will be available through two grants: the RCPP Classic and RCPP Alternative Funding Arrangements (AFA). USDA is accepting project proposals for both grant programs until July 2, 2024 and USDA’s Natural Resources Conservation Services will hold informational webinars for applicants on April 23, 2024 and May 30, 2024.

 

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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:

Podcasts:

Agricultural Law Podcast

PFAS Soil Contamination Fuels Liability Suit Over Biosolid Land Application (Mar. 21, 2024)

Farmland Legal Energy Podcast

Introduction to Wind Farms and How Farmers Can Utilize Wind Power

Methane Production From Manure

An Introduction to Hydrogen and Agriculture

An Introduction to Anaerobic Digestion

Publications:

Anaerobic Digestion: An Alternative Energy Source for Farmers (Dec. 2023).

Specialty Crop Producers’ Guide to Understanding Liability Protection, Regulatory Processes, & Other Legal Risks (Nov. 2023)

More Center Publications.

Resources of Interest:

Nat’l Agric. Law Ctr., Farm Animal Housing in 2024: Laws, Proposals and Challenges, Elizabeth Rumley (Mar. 28, 2024)

Nat’l Agric. Law Ctr., USDA Finalizes Voluntary “Product of USA” Rule, Emily Stone (Mar. 28, 2024)

Ohio St. Univ. Ext. Farm Off. Blog, The Ag Law Harvest, Jeffrey Lewis (Mar. 28, 2024)

Southern Ag Today, Census Reveals Tobacco Farms Disappearing from Southern Agriculture, Will Snell (Mar. 27, 2024)

Southern Ag Today, Incentives Help Solar Battle Electricity Cost Increases on Commercial Poultry Farms, Dennis Brothers (Mar. 26, 2024)

Tex. A&M Agric. Law Blog, Case Addresses Fence Boundary Line Dispute Between Neighbors, Tiffany Dowell Lashmet (Mar. 25, 2024)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Readout of Meeting with Agricultural Stakeholders on the Port of Baltimore and Francis Scott Key Bridge Collapse (Mar. 29, 2024)

Biden-Harris Administration Invests in Clean Energy and Fertilizer Production to Strengthen American Farms and Businesses as Part of Investing in America Agenda (Mar. 28, 2024)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA issues PFAS test order as part of National Testing Strategy (Mar. 25, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Files Action Against Atlantic Frozen Foods LLC in Pennsylvania for Alleged PACA Violations (Mar. 28, 2024)

USDA Restricts PACA Violators in California, Florida and Texas from Operating in the Produce Industry (Mar. 28, 2024)

USDA Partners with the Commonwealth of the Northern Mariana Islands to Award $2 Million to Strengthen Food Supply Chain Infrastructure (Mar. 25, 2024)

Animal and Plant Health Inspection Service (APHIS)

USDA, FDA and CDC Share Update on HPAI Detections in Dairy Cattle (Mar. 29, 2024)

Federal and State Veterinary, Public Health Agencies Share Update on HPAI Detection in Kansas, Texas Dairy Herds (Mar. 25, 2024)

Farm Service Agency (FSA)

USDA Announces 2024 Marketing Assistance Loan Rates for Wheat, Feed Grains, Oilseeds, Rice, and Pulse Crops (Mar. 29, 2024)

USDA Announces No Actions Under Feedstock Flexibility Program (Mar. 25, 2024)

National Agricultural Statistics Service (NASS)

US farmers expect to plant less corn and more soybean acres (Mar. 28, 2024)

United States hog inventory up 1% (Mar. 28, 2024)

Natural Resources Conservation Service (NRCS)

Easements in Action in North Carolina (Mar. 27, 2024)

NRCS in Texas announces funding opportunities through Texas Partners for Conservation Program (Mar. 26, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Mar. 25–29, 2024):   

Agricultural Marketing Service

89 FR 21441 Proposed Rule—Comment Period: “Olives Grown in California; Decreased Assessment Rate” (Mar. 28, 2024)

89 FR 21484 Notice—Comment Period: “National Bioengineered Food Disclosure Standard; Annual Review of the List of Bioengineered Foods” (Mar. 28, 2024)

Agriculture Department

89 FR 22116 Notice: “Submission for OMB Review; Comment Request [Forest Service: Interagency Generic Clearance for Federal Land Management Agencies Collaborative Visitor Feedback Surveys on Recreation and Transportation Related Programs and Systems]” (Mar. 29, 2024)

89 FR 22116 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Qualitative Research on Food Safety Behaviors Among Parents and Caregivers who prepare meals for minors or older adults. In-Depth Interview Research]” (Mar. 29, 2024)

89 FR 21233 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: WIC Participant and Program Characteristics 2024 & 2026 Study] (Mar. 27, 2024)

Economic Research Service

89 FR 21485 Notice: “Agency Information Collection Activities: Comment Request [Foodborne Illness Prevention Valuation Survey]” (Mar. 28, 2024)

Environmental Protection Agency

89 FR 20962 Notice: “Proposed Information Collection Request; Comment Request; POTW Influent PFAS Study Data Collection” (Mar. 26, 2024)

Securities and Exchange Commission

89 FR 21668 Rule: “The Enhancement and Standardization of Climate-Related Disclosures for Investors” (Mar. 28, 2024)

Social Security Administration

89 FR 21199 Rule: “Omitting Food From In-Kind Support and Maintenance Calculations” (Mar. 27, 2024)

Rural Housing Service

89 FR 22094 Proposed Rule—Comment Period: “Multifamily Housing Program Update to the Credit Report Process” (Mar. 29, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.7850 “To amend the Food Security Act of 1985 to provide a waiver to the payment limitation under the Environmental Quality Incentives Program, and for other purposes.” Referred to the House Committee on Agriculture. (Mar. 29, 2024)

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

S.J.Res.62 “A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Animal and Plant Health Inspection Service relating to “Importation of Fresh Beef From Paraguay” Held at the desk. (Mar. 26, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

No New Actions.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 13—Mar. 30, 2024): 

Department of Agriculture

54 Pa.B. 1682 Notice: “Addendum to the Order of Quarantine; Spotted Lanternfly”

54 Pa.B. 1682 Notice: “eneral Quarantine Order; Exhibition of Ornamental Feathers, Unfertilized Eggs, Market Poultry and Feathers Used for Arts and Crafts”

54 Pa.B. 1686 Notice: “The Resilient Food Systems Simplified Equipment-Only Grant Program; 2024 Application Period”

Department of Environmental Protection

54 Pa.B. 1688 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”

PENNSYLVANIA LEGISLATURE

HB 1869 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, further providing for definitions, providing for food allergy awareness and further providing for powers of department.” Third consideration and final passage. (Mar. 26, 2024)

HB 1543 “An Act repealing obsolete provisions of law relating to crossing bridge with horse faster than a walk, driving cattle faster than a walk, carrying fire over a bridge and a supplement to an act relating to roads, highways and bridges.” Third consideration and final passage. (Mar. 25, 2024)

Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney