August 21, 2024
Agricultural Law Weekly Review—August 21, 2024
This Friday Aug. 23—Understanding the Basics of the H-2A Temporary Agricultural Worker Program
Pesticides: EPA Emergency Order Halts Use of Pesticide Dacthal 🌾
On August 7, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice of Emergency Order (89 FR 64445) immediately suspending the registration and use of all pesticides containing dimethyl tetrachloroterephthalate (DCPA or Dacthal), citing the danger the substance poses to pregnant women and unborn babies. Also announced by EPA, the agency states that it “has determined that continued sale, distribution, or use of DCPA products during the time required to cancel such products would pose an imminent hazard and that an emergency exists that does not permit EPA to hold a hearing before suspending such products.” According to the order, although “the sole registrant of DCPA products, AMVAC Chemical Corporation, has attempted to address these concerns, EPA has determined that there is no combination of practicable mitigations under which DCPA use can continue without presenting an imminent hazard.” For background, see ALWR—Apr. 10, 2024, “EPA Announces Warning for Dacthal, Cites ‘Significant Health Risks to Pregnant Individuals’”
Food Safety: USDA Publishes Proposed Rule on Salmonella Framework for Raw Poultry
On August 7, 2024, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service published in the Federal Register a proposed rule and proposed determination (89 FR 64678) titled “Salmonella Framework for Raw Poultry Products.” Docket No. FSIS-2023-0028. Also announced by USDA, the proposed rule and determination marks the “culmination of FSIS’ three-year effort to reevaluate its strategy for controlling Salmonella rates in poultry,” preceded by the agency’s October 2022 notice (87 FR 62784) and announcement of its proposed framework. USDA states that the proposed rule “establish[es] final product standards to prevent raw chicken carcasses, chicken parts, ground chicken, and ground turkey products that contain any type of Salmonella at or above 10 colony forming units (CFU) per gram/ml and any detectable level of at least one of the Salmonella serotypes of public health significance from entering commerce.” The proposed framework also requires poultry producers and establishments “to develop a microbial monitoring program to prevent pathogen contamination throughout the slaughter system.” The proposed rule is available for public comment until October 7, 2024. For background, see ALWR—Oct. 21, 2022, “USDA Announces Proposed Regulatory Framework to Reduce Salmonella in Poultry.”
Agricultural Finance: USDA Publishes Final Rule ‘Enhancing Program Access and Delivery for Farm Loans’
On August 8, 2024, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) published in the Federal Register a final rule with request for comment (89 FR 65020) amending the Farm Loan Programs. Also announced by FSA, the rule introduces the Distressed Borrower Set-Aside (DBSA) Program, which will allow distressed farmers to “defer up to one annual loan installment per qualified loan at a reduced interest rate” and provides that farmers need not “suffer a loss from a declared disaster to qualify.” The final rule becomes effective September 25, 2024.
Animal Welfare: Federal Court Finds Massachusetts’ Question 3 Not Preempted by Federal Meat Inspection Act
On July 22, 2024, the U.S. District Court for the District of Massachusetts published a memorandum and order holding that Massachusetts’ Prevention of Farm Cruelty Act (Question 3), which prohibits the in-state sale of pork not compliant with the state’s confinement standards, is not preempted by the Federal Meat Inspection Act (FMIA). Triumph Foods, LLC v. Campbell, No. 1:23-cv-11671. The court determined that federal preemption of the state Act was unsupported by Supreme Court precedent, “the scope of the Act, and the text of the FMIA,” which the court stated, “does not regulate pig farmers, only slaughterhouses.” Although the plaintiff pork packing facility argued that, under the FMIA, “[r]equirements . . . with respect to premises, facilities and operations . . . in addition to, or different than those made under . . . [the FMIA] may not be imposed” and claimed that it “has had to make ‘changes to how pork is physically stored at and shipped from [its] facility,’” the court determined that such changes—while they “may make Triumph’s tracking and organization of compliant pork easier and more manageable”—“are not required under the [Massachusetts] law,” stating, “Though the Act requires changes in operations for pig farmers, which the FMIA does not cover, slaughterhouses may continue to operate as they did previously—they are simply only allowed to ship compliant pork meat for sale in Massachusetts.” The court denied summary judgment for the pork producer plaintiffs and granted summary judgment in favor of the state. See also ALWR—Feb. 20, 2024, “Federal Court Rules Massachusetts’ Question 3 ‘Slaughterhouse Exemption’ Violates Constitution.” For more on animal confinement issues, see the Center’s Animal Confinement Issue Tracker.
Water Quality: Supreme Court Vacates, Remands Swampbuster Provision Challenge
On July 2, 2024, the U.S. Supreme Court granted a petition for certiorari vacating and remanding—in consideration of the Court’s June 2024 reversal of the Chevron doctrine—a 2023 judgment from the U.S. Court of Appeals for the Eight Circuit, which had deferred to the U.S. Department of Agriculture’s (USDA) “reasonable interpretation” of the Swampbuster Act’s review provision and upheld the agency’s review regulation (7 C.F.R. § 12.30(c)(6)). Foster v. USDA, No. 23-133 (U.S.); Foster v. USDA, No. 22-2729 (8th Cir.). While the Swampbuster review provision states that “a prior wetland certification ‘shall remain valid and in effect . . . until such time as the person affected by the certification requests review of the certification by the Secretary,’” USDA’s regulation allows a farm to “request review of a certification only if a natural event alters the topography or hydrology of the subject land . . . or if [the Natural Resources Conservation Service (NRCS)] concurs with an affected person that an error exists in the current wetland determination.” In the Eighth Circuit, the plaintiff farmer had argued that the two provisions were in conflict, although the court determined that they were not in conflict “[b]ecause the Swampbuster Review Provision is silent as to the nature of an effective review request.” Additionally, the court found that the regulation “imposes reasonable procedural requirements” that “preserve[] agency resources by allowing the NRCS to refuse to consider facially-meritless review requests, and . . . promote[] certainty among farmers by preventing farmers from nullifying certifications at will.” The case now returns to the Eighth Circuit for reconsideration.
WOTUS: Sixth Circuit Remands February 2023 WOTUS Challenge, Says Sackett ‘Alleviated Majority of Alleged Harms’
On July 29, 2024, the U.S. Court of Appeals for the Sixth Circuit issued an opinion vacating and remanding the lower court’s dismissal of a case challenging the Environmental Protection Agency (EPA) and Army Corps of Engineers’ January 2023 “Waters of the United States” rule (88 FR 3004). Kentucky v. EPA, No. 23-5343 (6th Cir.); Kentucky v EPA, No. 3:23-cv-00007 (E.D. Ky.). The appellate court held that “the district court erred when it dismissed the complaint sua sponte,” or on its own without prompting from a party, “without affording the plaintiffs notice and the opportunity to be heard.” However, the court “add[ed] . . . an additional note” that EPA’s amendment of the rule in September 2023 (88 FR 61964) in response to “the Supreme Court’s decision in Sackett v. EPA . . . alleviated the vast majority of Plaintiffs’ alleged harms and put the viability of th[e] suit into question.” The court stated, “On remand, Plaintiffs must file notice of their intent to file a new suit, amend their present complaint, or dispense with this litigation altogether.”
Water Quality: Michigan Supreme Court Upholds Livestock Waste ‘Extra Conditions’
On July 31, 2024, the Supreme Court of the State of Michigan issued a 5-2 opinion holding that the conditions set by the Michigan Department of Environment, Great Lakes and Energy (EGLE) for the 2020 General Permit for Concentrated Animal Feeding Operations (CAFO) national pollutant discharge elimination system (NPDES) did not violate Michigan’s Administrative Procedures Act (APA). Michigan Farm Bureau v. Department of Environment, Great Lakes and Energy (MSC Docket No. 165166). The court held that “neither the [2020] general permit nor the discretionary conditions are rules under” the APA, and thus EGLE did not need to “follow the procedures required under” the APA. The court determined that “federal and state law give EGLE discretion to include extra conditions (discretionary conditions) in a permit that are more stringent than th[e] mandatory conditions when EGLE decides those discretionary conditions are necessary to achieve applicable Part 4 water-quality standards to comply with applicable laws and regulations.”
Conservation Programs: Bureau of Land Management Publishes Public Lands Rule Guidance Documents
On August 8, 2024, the U.S. Department of the Interior (DOI) Bureau of Land Management (BLM) announced a series of guidance documents for implementing the Public Lands Rule, published in April 2024 (89 FR 40308). The documents detail the BLM’s restoration prioritization policy, which includes a reassessment of priority landscapes every five years, and the BLM’s watershed condition policy, which includes watershed condition assessments every ten years. The BLM also published additional guidance documents regarding land health standards, monitoring of ecological resources, mitigation leasing, land use planning, and areas of critical environmental concern.
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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:
Fair Labor Standards Act for Farmers
- Aug. 29, 2024, noon–1 pm (ET).
2024 Pennsylvania Agricultural Law Symposium
- Sept. 19, 2024, 8:30am–4:30pm, In-person at Penn State Law in University Park, Pa., 6 CLE Credits (5 substantive, 1 ethics):
- 2023-24 Ag Law Year in Review
- Legal Landscape of Land Application: Biosolids and Food Processing Waste
- Agricultural Cooperatives: Is Everything Old New Again?
- Carbon Credits and Contracts: Common and Uncommon Provisions
- Using Farm Labor Contractors for Domestic and H-2A Workers
- Conflicts and Ethical Issues in Farm Family Representation
- REGISTER NOW! Limited seating.
Podcasts:
Farmland Legal Energy Podcast
An Overview of Critical Minerals (Aug. 6, 2024)
Commercial Energy Payments on Farmland (July 17, 2024)
Resources of Interest:
Nat’l Agric. Law Ctr., Farm Bill 2024: Themes in the Proposed Energy and Miscellaneous Titles, Samantha Capaldo (Aug. 8, 2024)
Southern Ag Today, Commodity Program Payment Limits, Farm Entity Creation, and Implications for the Next Farm Bill, Hunter Biram, Euchun Park, and Ryan Loy, Univ. of Ark. (Aug. 7, 2024)
Nat’l Agric. Law Ctr., Farm Bill 2024: Themes in the Proposed Conservation Titles, Brigit Rollins (July 30, 2024)
Nat’l Agric. Law Ctr., Regulation of Food for GLP-1 Drug Users: Off-Label Advertisements, Emily Stone (Aug. 1, 2024)
Tex. A&M Agric. Law Blog, Texas v. New Mexico – Where Are We Now?, Tiffany Dowell Lashmet (Aug. 5, 2024)
Southern Ag Today, Texas v. New Mexico, Jesse Richardson, West Va. Univ., Tiffany Dowell Lashmet, Texas A&M (Aug. 2, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, Ohio Supreme Court Rules on Bone Found in Boneless Wing, Robert Moore (Aug. 1, 2024)
Agric. Law & Tax’n Blog, More Legal Scenarios Involving Farmers and Ranchers, Roger A. McEowen (Aug. 8, 2024)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. ENVIROMENTAL PROTECTION AGENCY
EPA Issues Emergency Order to Stop Use of Pesticide Dacthal to Address Serious Health Risk (Aug. 6, 2024)
EPA Reaches $584,000 Settlement with RBL Products in Detroit, Michigan, for Allegedly Selling Unregistered Pesticide Products (Aug. 5, 2024)
EPA resolves Clean Water Act violations with Enumclaw company for $63,984 (July 30, 2024)
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Assists Farmers, Ranchers, and Communities Affected by Hurricane Debby (Aug. 7, 2024)
USDA Updates Farm Loan Programs to Increase Financial Freedom, Resilience and Profitability for Agricultural Producers (Aug. 7, 2024)
USDA Forest Service announces $25M funding opportunity to reduce wildfire risk, support local businesses, (Aug. 6, 2024)
USDA Announces Additional RAPP Funding to Expand, Diversify Export Markets (Aug. 5, 2024)
USDA Proposes New Policy to Reduce Salmonella in Raw Poultry Products (July 29, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service
USDA Restricts PACA Violators in Florida, New Jersey and Texas From Operating in the Produce Industry (Aug. 1, 2024)
USDA Settles a Packers and Stockyards Case with J.H. Routh Packing Company (Aug. 1, 2024)
USDA Settles a Packers and Stockyards Case with Amite Livestock Sales Inc. (Aug. 1, 2024)
Agricultural Research Service
ARS Scientists Discover Strategically Applied Livestock Grazing Can Benefit Sagebrush Communities (Aug. 5, 2024)
USDA Research Documents Absence of Trichinella Infection in Commercial Pigs (Aug. 2, 2024)
Cow “Challenge” Study Should Help Turn Tables on H5N1 in Dairy Herds (July 29, 2024)
Animal and Plant Health Inspection Service
USDA Begins 2024 Oral Rabies Vaccination Efforts Targeting Wildlife in Eastern United States (Aug. 9, 2024)
APHIS Announces FY 2025 Funding Opportunities Supporting Animal Disease Preparedness and Response Activities (Aug. 8, 2024)
APHIS in Action: Battling Bad Bugs: How APHIS is Saving Your Favorite Fruits and Veggies! (Aug. 5, 2024)
USDA Continues Field Assessment of Oral Rabies Vaccine for Raccoons and other Wildlife (July 29, 2024)
USDA APHIS Asks for Help Looking for Asian Longhorned Beetle by Checking Trees (July 29, 2024)
Economic Research Service
U.S. Agricultural Exports in Southeast Asia (Aug. 6, 2024)
Farm Service Agency
USDA Announces August 2024 Lending Rates for Agricultural Producers (Aug. 1, 2024)
Food Safety and Inspection Service
Constituent Update – August 9, 2024 (Aug. 9, 2024)
Foreign Agricultural Service
USDA Announces Additional RAPP Funding to Expand, Diversify Export Markets (Aug. 5, 2024)
USDA Trade Mission to Expand Market Access, Ag Exports in Colombia (July 29, 2024)
National Institute of Food and Agriculture
NIFA Awards $7M to Study Water Quantity and Quality (A1411) (Aug. 7, 2024)
NIFA Invests $7.4M in Data Science for Food and Agricultural Systems (A1541) (Aug. 7, 2024)
NIFA Invests $7.1M in Professional Development for Agricultural Literacy (A7501) (July 31, 2024)
NIFA Invests $7.9M in Agricultural Microbiome Research (A1402) (July 31, 2024)
NIFA Invests $5.3M in Critical Agriculture Research and Extension (CARE) (A1701) (July 31, 2024)
NIFA Invests $8.7M in Inter-Disciplinary Engagement in Animal Systems (A1261) (July 31, 2024)
Natural Resource Conservation Service
USDA Invests $22 Million in 29 Projects to Expand Conservation for Livestock Producers (Aug. 6, 2024)
FY’25 EQIP Classic batching deadline announced (Aug. 1, 2024)
Risk Management Agency
USDA Announces Changes to Enhanced Coverage Option Insurance Program (July 29, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register July 29–Aug. 9, 2024):
Agricultural Department
89 FR 61058 Notice: “Submission for OMB Review; Comment Request” (July 30, 2024)
Agricultural Marketing Service
89 FR 64783 Rule: “National Organic Program: 2025 Sunset Review and Substance Renewals” (Aug. 8, 2024)
89 FR 63157 Notice—Comment Period: “Notice of Request for an Extension of a Currently Approved Information Collection” (Aug. 2, 2024)
89 FR 63079 Rule: “Onions Grown in South Texas; Redistricting and Reapportionment of Committee Membership” (Aug. 2, 2024)
Agricultural Research Service
89 FR 64866 Notice—Comment Period: “Notice of Intent to Renew a Currently Approved Information Collection” (Aug. 8, 2024)
Animal and Plant Health Inspection Service
89 FR 65312 Notice: “Notice of Availability of Final Environmental Assessment and Finding of No Significant Impact for Release of Lophodiplosis indentata for Biological Control of Melaleuca quinquenervia (Myrtaceae) in the Contiguous United States” (Aug. 9, 2024)
89 FR 64402 Notice—Comment Period: “Notice of Availability of a Pest Risk Analysis for the Importation of Fresh Cape Gooseberry Fruit from Peru into the United States” (Aug. 7, 2024)
89 FR 64401 Notice—Comment Period: “Notice of Availability of an Evaluation of the Classical Swine Fever Disease Status of Costa Rica” (Aug. 7, 2024)
Commodity Credit Corporation
89 FR 63157 Notice: Domestic Sugar Program-2023-Crop Sugar Marketing Allotments and Cane and Beet Processor Allocations (Aug. 2, 2024)
Environmental Protection Agency
89 FR 64810 Rule—Comment Period: “Indoxacarb; Pesticide Tolerances” (Aug. 8, 2024)
89 FR 64842 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (June 2024)” (Aug. 8, 2024)
89 FR 64458 Notice: “Chlorpyrifos; Final Cancellation Order for Certain Pesticide Registrations and Amendment of Certain Pesticide Registrations to Terminate Certain Uses” (Aug. 7, 2024)
89 FR 64445 Notice: “Pesticides; Emergency Order Suspending the Registrations of All Pesticide Products Containing Dimethyl Tetrachloroterephthalate (DCPA)” (Aug. 7, 2024)
89 FR 63291 Rule—Comment Period: “Potassium Carbonate; Exemption from the Requirement of a Tolerance” (Aug. 5, 2024)
89 FR 63199 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (June 2024)” (Aug. 2, 2024)
89 FR 61351 Rule—Comment Period: “Pendimethalin; Pesticide Tolerance” (July 31, 2024)
Farm Service Agency
89 FR 65020 Rule: “Enhancing Program Access and Delivery for Farm Loans” (Aug. 8, 2024)
Food and Nutrition Service
89 FR 63910 Notice: “Agency Information Collection Activities: Commodity Supplemental Food Program Participant Characteristics and Program Operations Study” (Aug. 6, 2024)
Food Safety and Inspection Service
89 FR 64678 Proposed Rule: “Salmonella Framework for Raw Poultry Products” (Aug. 7, 2024)
Forest Service
89 FR 63962 Notice: “Alaska Subsistence Regional Advisory Council Meetings for 2025” (Aug. 6, 2024)
89 FR 63911 Notice: “Modoc Resource Advisory Committee” (Aug. 6, 2024)
89 FR 61058 Notice: “Gila National Forest; Revision of the Land Management Plan for the Gila National Forest” (July 30, 2024)
Rural Business-Corporation Service
89 FR 64867 Notice: “Notice of Solicitation of Applications for the Intermediary Relending Program for Fiscal Year 2025” (Aug. 8, 2024)
89 FR 64403 Notice—Comment Period: “Notice of Revision of a Currently Approved Information Collection” (Aug. 7, 2024)
Rural Utility Service
89 FR 64404 Notice—Comment Period: “Notice of a Revision to a Currently Approved Information Collection” (Aug. 7, 2024)
U.S. Codex Office
89 FR 65312 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Food Labelling” (Aug. 9, 2024)
Rural Housing Service
89 FR 60856 Notice: “Announcement of the Availability of Community Facilities Program Disaster Grants” (July 29, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.9277 “To prohibit Federal agencies from implementing environmental justice standards when issuing rules, and for other purposes.” Referred to the Committee on the Judiciary, and in addition to the Committees on Natural Resources, Energy and Commerce, Science, Space, and Technology, Foreign Affairs, Financial Services, Oversight and Accountability, Agriculture, Transportation and Infrastructure, Intelligence (Permanent Select), and Armed Services, 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. (Aug. 2, 2024)
H.R.9251 “To amend the Poultry Products Inspection Act to allow poultry processing facilities to perform regular slaughter and custom exempt at the same facility.” Referred to the House Committee on Agriculture (Aug. 2, 2024)
H.R.9242 “To designate the U.S. National Poultry Research Center of the Department of Agriculture located in Athens, Georgia, as the “Abit Massey Poultry Research Center”.” Referred to the House Committee on Agriculture (Aug. 2, 2024)
H.R.9240 “To amend the Specialty Crops Competitiveness Act of 2004 to require the Secretary of Agriculture to establish a pilot program to provide recovery payments to producers of seasonal and perishable crops that experience low prices caused by imports, and for other purposes.” Referred to the House Committee on Agriculture. (Aug. 2, 2024)
H.R.9226 “To direct the Secretary of Agriculture and the Secretary of Commerce to incentivize domestic seafood processing capacity, to strengthen local seafood supply chains, to prohibit any Federal agency from funding or regulating commercial finfish aquaculture operations in the Exclusive Economic Zone in the absence of specific congressional authority, and for other purposes.” Referred to the Subcommittee on Coast Guard and Maritime Transportation (July 31, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.4982 “A bill to amend the Specialty Crops Competitiveness Act of 2004 to require the Secretary of Agriculture to establish a pilot program to provide recovery payments to producers of seasonal and perishable crops that experience low prices caused by imports, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 1, 2024)
S.4945 “A bill to direct the Secretary of Agriculture to carry out research, technical studies, demonstrations, and pilot programs to further the mission of the Rural Business-Cooperative Service” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 1, 2024)
S.4941 “A bill to promote meat product innovation, including in specialty meats, and value-added meat product development for the economic benefit of United States farmers and their communities, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Aug. 1, 2024)
S.4836 “A bill to require the creation of a simplified Department of Agriculture grant form for use by rural communities.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 30, 2024)
Agriculture-Related Legislative Hearings & Reports
No upcoming hearing or reports.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES
Shapiro Administration Invests $13 Million in Tax Credits to Support Farmers Improving Water, Soil Quality (Aug. 5, 2024)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 31—Aug. 3, 2024):
Department of Agriculture
54 Pa.B. 5126 Notice: “Program Requirements for the 2024-2025 Agriculture and Youth Organization Grant Program”
54 Pa.B. 4479 Notice: “Fiscal Year 2024-2025 Annual Plan for Awarding Grants under the Pennsylvania Agricultural Fair Act”
54 Pa.B. 4480 Notice: “Western Pennsylvania Animal Diagnostic Testing Laboratory”
PENNSYLVANIA LEGISLATURE
No new Agriculture actions July 29-Aug. 9, 2024.
Contributors:
Riley Amdor —Research Assistant
Victoria Dutterer—Research Assistant
Samuel Sweeten—Research Assistant
Audry Thompson—Staff Attorney
