December 4, 2023
Agricultural Law Weekly Review—December 4, 2023
International Trade: Panel Report Finds Canada’s Dairy Tariff-Rate Quotas ‘Not Inconsistent’ with USMCA 🌾
On November 10, 2023, the dispute settlement panel formed under the United States-Mexico-Canada Agreement (USMCA) published its final report concerning Canada’s dairy tariff-rate quota (TRQ) allocation measures. Also announced by the U.S. Trade Representative (USTR), the report concluded that “Canada’s measures are not inconsistent with the USMCA provisions cited by the United States.” However, “[a] dissenting panelist agreed with the United States that by excluding retailers and others, Canada was breaching its commitment to make its dairy TRQs available to all applicants active in the Canadian food or agriculture sector.” Additionally, USTR published several statements from U.S. officials expressing disappointment regarding the final ruling. See also the Center’s Dairy and Dairy Products Law Virtual Resource Room.
Antitrust: Federal District Court Denies Deere’s Motion, Allows Multidistrict Antitrust Suit to Proceed
On November 27, 2023, the U.S. District Court for the Northern District of Illinois issued an opinion and order denying Deere & Co.’s motion for judgment on the pleadings in a consolidated multidistrict action alleging monopolization and trade restraint violations under the Sherman Antitrust Act. Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-50188. The plaintiffs, “a group of agricultural crop farms and farmers,” allege that Deere “deliberately designed its Tractors so that both the diagnosis and the completion of a repair frequently requires software tools and resources (‘Repair Tools’) that Deere keeps under tight lock” and then “restricts access to the Repair Tools to preserve ‘supracompetitive monopoly profits.’” The court’s opinion follows a hearing, held August 2023, for which the court issued a preliminary list of questions. The court found the plaintiffs’ allegations “plausible” and “sufficient” to support their claims and denied Deere’s motion, allowing the case to proceed. See also the Center’s Agricultural Antitrust Litigation Issue Tracker.
Antitrust: Federal Court Dismisses Antitrust Suit Against Dairy Farmers of America
On October 5, 2023, the U.S. District Court for the District of Vermont issued an order granting a stipulated motion to dismiss with prejudice a class action complaint filed by a class of farmers alleging that Dairy Farmers of America (DFA) had “sought to stifle . . . all competition in the market for the purchase of raw milk in the Northeast” by “foreclosing Northeast dairy farmers’ ability to market their milk through DFA,” in violation of the Sherman Antitrust Act. S.R.J.F., Inc. v. Dairy Farmers of America, No. 2:22-cv-00147. Previously, on September 26, 2023, the court issued an opinion and order granting partial summary judgment in favor of DFA and finding the farmers’ complaint in violation of a previous settlement agreement, which was approved by the court in June 2016 and affirmed by the U.S. Court of Appeals for the Second Circuit in May 2020. Allen v. Dairy Farmers of America, Inc., No. 5:09-cv-00230.
- Related Podcast: DOJ Sues Agri-Stats Directly for Collusion in Protein Sector (Nov. 20, 2023)
Packers and Stockyards Act: USDA Publishes Poultry Grower Contracting Final Rule
On November 28, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a final rule (88 FR 83210), titled “Transparency in Poultry Grower Contracting and Tournaments.” Also announced by USDA, the final rule amends the Packers and Stockyards Act to “require[] that dealers disclose earnings for growers by quintile, establish minimum flock placements, and explain variable costs growers may incur and how companies handle certain important circumstances such as sick flocks and natural disasters.” USDA states that the rule “also establishes an accountability and governance framework that must be certified by the poultry company’s CEO.” The final rule becomes effective February 12, 2024.
Avian Influenza: HPAI detected in Ohio and Maryland, Commercial Table Egg Flocks
As of November 30, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service’s (APHIS) HPAI Confirmed Detections database reflected confirmed detections of highly pathogenic avian influenza (HPAI) in commercial flocks in Ohio and Maryland—in addition to previous detections in multiple other states—totaling 25 affected states with either commercial and/or backyard flocks. According to the database, HPAI has recently been detected in
- Caroline County, Maryland—commercial broiler production (192,900 birds affected) and
- Union County Ohio—commercial table egg layers (1,348,900 birds affected).
HPAI has been previously detected in additional commercial table egg layer flocks in
- Wright County, Minnesota (940,000 birds affected),
- Taylor County, Iowa (1,121,100 birds affected),
- Sioux County, Iowa (1,616,300 birds affected), and
- Sonoma, California (82,500 birds affected).
International Trade: Regional Agricultural Promotion Program Final Rule Published, USDA Opens Application Period
On November 17, the U.S. Department of Agriculture (USDA) Commodity Credit Corporation (CCC) published in the Federal Register a final rule (88 FR 80092) amending the Agricultural Trade Promotion Program to establish the Regional Agricultural Promotion Program (RAPP). Among other actions, the final rule “updates terminology used throughout the regulation” and “clarifies timeframes for reporting requirements.” CCC is accepting comments on the final rule until December 18, 2023. Additionally, on November 29, 2023, USDA announced the opening of the RAPP application period, which is available until February 2, 2024. See also ALWR—Oct. 30, 2023, “USDA Allocates $2.3 Billion in CCC Funds for Trade Promotion, Surplus Commodity Purchases.”
International Trade: USDA Publishes Final Rule Allowing Beef Imports from Paraguay
On November 14, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a final rule (88 FR 77883) providing for the “importation of fresh (chilled or frozen) beef from Paraguay.” Also announced by APHIS, the agency states that it expects the newly allowed beef imports to be “fewer than 6500 metric tons annually . . . due to a quota Paraguay faces on beef exports to the United States.” In September 2023, the U.S. Trade Representative reported that Paraguay and the United States discussed the beef imports at a Trade and Investment Council meeting. The final rule allowing beef importation becomes effective December 14, 2023.
Biotechnology: USDA Publishes Final Rule Updating Bioengineered Foods List
On November 29, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a final rule (88 FR 83305), which updates the List of Bioengineered Foods under the National Bioengineered Food Disclosure Standard. The rule changes “squash (summer)” to “squash (summer, coat protein-mediated virus-resistant varieties)” and adds “sugarcane (Bt insect-resistant varieties)” to the list. The rule becomes effective December 29, 2023, and regulated entities must comply with the rule by June 23, 2025. See also the Center’s Bioengineered Food Disclosure Issue Tracker and Virtual Resource Room.
Biotechnology: USDA Proposes Exemptions for Five Genetic Modifications of Plants
On November 14, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a notice (88 FR 78285) “proposing to add five new types of genetic modifications a plant can contain and be exempt from regulations . . . because such modifications could otherwise be achieved through conventional breeding methods.” Also announced by APHIS, the agency states that the “proposed exemptions would be in addition to those exemptions already in place.” APHIS is accepting comments on the proposed exemptions until December 15, 2023.
Agricultural Labor: USDA Extends Time-Limited Trials, Allows Increased Meatpacking Line Speeds to Continue
On November 28, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued a constituent update special alert announcing a 90-day extension of the time-limited trial period for the six facilities operating under the New Swine Slaughter Inspection System (NSIS) to allow for an additional, FSIS-commissioned study of “the impact of increased line speed on workers.” See ALWR—Aug. 26, 2022, “Sixth Meatpacking Facility Granted Approval in Time-Limited Trial, Lifting Line Speed Maximum.” According to the update, “a third-party team of worker safety experts . . . determined that the [previous] data submitted was not sufficient to evaluate the impact of increased line speeds on worker safety.” The trial period was set to expire November 30, 2023.
Agricultural Labor: DOJ Fines North Carolina Employers $139K For H-2A Violations
On November 16, 2023, the U.S. Department of Justice (DOJ) announced that it had assessed $139,039 in penalties to McClenny Farms Inc. of Mount Olive and Francisco Valadez Jr. of Smithfield for H-2A and minimum wage violations. According to the announcement, the employers had “received a contract to recruit, hire, house and transport H-2A workers to harvest cucumbers, sweet potatoes, tomatoes, tobacco and watermelons in Wayne County, North Carolina.” Their violations included
- “Not reimbursing workers for visa and application fees, and for inbound transportation expenses to the work site and instead requiring them to sign receipts without receiving pay”;
- “Failing to have accurate records, including earnings, hours statements and reasons for pay deductions”;
- “Not satisfying the job order’s requirements by failing to state actual terms and conditions, such as establishing a fixed worksite”;
- “Permitting unlawful cost-shifting by using a bus driver who demanded workers pay $150 each before getting on the bus”;
- “Failing to pay the required wage rates by paying $8 per hour in cash instead of $13.15 per hour, as stated in the work contract”; and
- “Trying to discriminate and intimidate workers by confiscating their passports and visas upon arrival at the farm to restrict their ability to leave when the employers failed to pay full wages.”
Additionally, DOJ stated that it had blocked Valdez from the H-2A program for two years and recovered $97,100 in unpaid wages for the workers. See also the Center’s H-2A Program Issue Tracker.
Agricultural Labor: House Ag Labor Working Group Publishes Interim Report on H-2A Program
On November 7, 2023, the House Agricultural Labor Working Group announced the publication of an interim report on the Group’s activities and findings from its last five roundtable meetings over the previous four months. The report details each roundtable topic: (1) “History of Ag Labor and H-2A Reform in the United States,” (2) “Accessibility Challenges in Agricultural Labor and H-2A,” (3) “Current Complexities of the H-2A Program,” (4) “Labor Perspectives of the H-2A Program,” and (5) “Producer Perspectives of the H-2A Program.” According to the report, 52% of producers surveyed stated that their reason for not participating in the H-2A Visa Program was that either they found it “overly complicated to comply with regulations” for the program or they found the program to be “too expensive.” According to the announcement, the Group “invites interested parties to provide feedback and offer legislative recommendations” that the Group may incorporate into a “final list of policy recommendations” for the House Committee on the Judiciary, the group with legislative jurisdiction.
Seed Law: USDA Issues Letters to Seed Companies Advising ‘Careful Review’ of Federal Seed Act Labeling Requirements
On November 8, 2023, the U.S. Department of Agriculture (USDA) announced that the Agricultural Marketing Service (AMS) sent “multiple letters to seed companies” asking the companies to “carefully review” AMS’s March 2023 Notice to Trade on varietal labeling requirements under the Federal Seed Act (FSA) and “take any steps necessary to ensure compliance with the FSA regulations.” The letter states that “seed kind and varietal information [must] be printed on seed containers, or labels, in a form that is clearly legible” and that a Brand name “must be clearly identified as not being the kind or variety name.” The letter further states that “AMS is authorized to initiate administrative proceedings against anyone who violates any FSA provision or regulation” and that “[e]nforcement outcomes may range from cease-and-desist orders and monetary penalties to seizure of the seed and criminal sanctions in the Federal court system.” See also materials and recording from Understanding the Basics of Federal & State Seed Laws.
Pesticides/Herbicides: EPA Requests Feedback on Digital Pesticide Label Plan
On November 15, 2023, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (88 FR 78357) making available for public comment a white paper, titled “Benefits of the Adoption of Structured Content and Digital Pesticide Labels.” Also announced by EPA, the agency states that its “plan for digital labels covers the creation of both a structured label—which would provide a framework for consistently placing and ordering label information—and a digital label, which would organize the label information as electronic data.” According to the announcement, EPA “is specifically requesting feedback on the proposed organization of digital labels and the proposed phases of developing these labels.” EPA is accepting comments on the white paper until March 14, 2024.
Pesticides/Herbicides: European Commission Announces Renewal of Glyphosate Approval
On November 16, 2023, the European Commission issued a statement confirming that it will renew its approval of glyphosate, after member states declined to “reach the required qualified majority to renew or reject the [herbicide’s] approval.” According to the statement, the 10-year renewal period is “subject to certain new conditions and restrictions,” which “include a prohibition of pre-harvest use as a desiccant and the need for certain measures to protect non-target organisms.” According to the Commission’s webpage, Renewal of the approval of glyphosate: Questions and Answers, “Member States remain responsible for national authorisation of plant protection products containing glyphosate.” See also ALWR—July 17, 2023, “European Food Safety Authority Determines ‘No Critical Areas of Concern’ for Glyphosate.” For more, see the Center’s Glyphosate Issue Tracker.
Water Quality: EPA Seeks Comment on Draft 2026 NPDES Pesticide Permit
On November 28, 2023, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (88 FR 83120) making available and soliciting comment on the agency’s Draft 2026 National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) for Discharges from Pesticide Application, which “contains proposed permit requirements for point source discharges of biological pesticides and chemical pesticides that leave a residue.” According to EPA’s Pesticide Permitting-Proposed 2026 PGP webpage, “the draft 2026 PGP largely has the same conditions and requirements as EPA’s previously issued PGPs.” EPA states that it “proposes to issue this permit for five years in all areas of the country where EPA is the NPDES permitting authority.” Additionally, EPA published a 128-page Fact Sheet on the draft permit. EPA is accepting public comment on the draft permit until January 12, 2024.
Water Quality: North Carolina Court of Appeals Finds Animal Waste Permit Conditions Invalid
On November 7, 2023, the North Carolina Court of Appeals issued an opinion finding that the North Carolina Department of Environmental Quality (NCDEQ) improperly adopted three conditions in the 2019 General Permit for animal waste management systems: requirements that (1) “farmers with waste structures within the 100-year floodplain . . . install monitoring wells,” (2) “certain farmers . . . conduct a Phosphorus Loss Assessment Tool analysis,” and (3) “all permitted farmers . . . submit an annual report summarizing the system’s operations.” N.C. Dep’t of Env’t Quality v. N.C. Farm Bureau Fed’n, No. COA22-1072. The plaintiff argued that the conditions should have gone through the rulemaking process under the N.C. Administrative Procedure Act (NCAPA), rather than the stakeholder process. The Court determined that “the conditions . . . are generally applicable regulations under the NCAPA,” stating, “They are rules.” The Court found that the challenged conditions were improperly adopted because NCDEQ did not go through the rulemaking process and concluded that the “conditions are invalid until they are adopted through the rulemaking process.”
Farmland Preservation: Michigan Passes Solar Facility Law, Defers Farmland Preservation Tax Credits
On November 28, 2023, the Governor of Michigan signed into law SB 277, establishing a solar facility as a permitted used under the state’s Farmland and Open Space Preservation Program, which provides tax credits and exemptions for enrolled, restricted-use land for defined time periods. Under the law, a “landowner [may] not claim the tax credit under the program from the time the facility is being built to the time it is completely removed,” but instead can defer their tax credits during that time. According to the legislative analysis, the law codifies current state policy. For more on solar issues, see the Center’s Virtual Resource Room, Solar Electricity Generation on Rural Lands.
Right to Farm Laws: Texas Voters Approve ‘Right to Farm’ State Constitutional Amendments
On November 7, 2023, Texas voters approved HJR 126 (Proposition 1), establishing a constitutional amendment “protecting the right to engage in farming, ranching, timber production, horticulture, and wildlife management.” The amendment allows for “regulation of generally accepted” agricultural practices (1) “when there is clear and convincing evidence that the law or regulation is necessary to protect the public health and safety from imminent danger,” (2) “to prevent a danger to animal health or crop production,” and (3) “to preserve or conserve the natural resources of th[e] state under . . . th[e] constitution.” In addition to HJR 126, Texas voters also approved twelve other proposed amendments to the Texas Constitution. Under Article 17 of the Texas Constitution, the amendments became effective upon passage. For more on Right to Farm, see the Center’s Pennsylvania Right to Farm Act Virtual Resource Room.
- Webinar Dec. 11: Making Laws Work for You, Part 2: PA’s Right to Farm, ACRE, and Agritourism Activity Protection Act
Agribusiness: Michigan Passes Law Extending Application Times for Grain Dealer Licenses
On November 7, 2023, the Governor of Michigan signed into law HB 4998, which amends the state’s Grain Dealers Act to increase, from thirty days to sixty days, the time allowed for the state to “issue or deny” a grain dealer license. Under the law, if the state takes longer than sixty days to process a license application, the state must return the application fees to the applicant and grant the applicant a 15% reduction on their next application. See also the Center’s Grain Dealer Regulatory Compilation.
National Agricultural Policy: USDA Announces Updated Domestic Origin Requirements for USDA Meat Purchases
On November 8, 2023, the U.S. Department of Agriculture (USDA) announced that the Agricultural Marketing Service (AMS) “is clarifying that meat products must be from animals that are born, raised, and slaughtered in the U.S. to meet the domestic origin requirements for purposes of USDA purchasing.” On November 16, 2023, AMS held a webinar on its domestic origin requirements.
Animal Welfare: USDA Adds ‘Animal Confinement Legislation’-Compliant Hogs to Weekly Reporting
On November 16, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced that, beginning November 20, 2023, the agency would begin adding into its Weekly Direct Swine Non-Carcass Merit Premiums Report, under its Swine Direct Reports, a “noncarcass merit premium” for “hogs raised in compliance with animal confinement legislation (ACL),” such as California’s Proposition 12. Under 7 U.S.C. §1635i, “‘noncarcass merit premium’ means an increase in the base price of the swine offered by an individual packer or packing plant, based on any factor other than the characteristics of the carcass . . . .” Separate from the ACL category, the noncarcass merit premium report currently lists an “other” category combining the qualities of “Animal Welfare, Antibiotic Free, Diet/Feed, Genetics, Meat Quality, Process Verified Program, and Sow Housing.” According to the November 27, 2023, report, the average premium for “other” was $3.19 per 100 pounds and the average premium for ACL-compliant swine was $5.07 per 100 pounds. For more, see the Center’s Animal Confinement Issue Tracker.
Animal Welfare: Arizona Restaurant Owner Files Complaint Against State Cage-Free Egg Sale Rule
On November 16, 2023, an Arizona restaurant owner filed, in the Superior Court of the State of Arizona, Maricopa County, a complaint seeking declaratory and injunctive relief against the Arizona Department of Agriculture’s (AZDA) April 2022 final rule, which phases in cage-free housing requirements for in-state egg sales. Krueger v. AZDA, CV2023-018151. The complaint alleges that AZDA did not have the authority to promulgate the rule and claims that the implementing statute (A.R.S. § 3-710), which “authorizes the AZDA director to ‘adopt rules for poultry husbandry and the production of eggs sold in’ Arizona,” is “so expansive that it functions as little more than an enabling act permitting AZDA to make whatever laws it wishes regarding poultry husbandry and the sale of eggs in Arizona.” The complaint also alleges that the rule “directly injures” the plaintiff restaurant owner by increasing egg costs and “by restricting [the plaintiff’s] right to buy and sell egg products it would otherwise buy and sell.” The plaintiff stated in an interview that he has “seen egg prices triple and quadruple based on this ruling,” although the complaint states that the rule could result in a wholesale price increase of $0.39 per dozen. The complaint requests that the court permanently enjoin AZDA from enforcing the rule. See also materials from Understanding the Basics of Farm Animal Handling & Confinement Laws.
Dairy Policy: FDA Publishes Small Entity Compliance Guide for Yogurt Standards of Identity
On November 28, 2023, the U.S. Food and Drug Administration (FDA) published in the Federal Register a notice (88 FR 83024) making available a small entity compliance guide for the agency’s 2021 final rule amending the standards of identity for yogurt (86 FR 31117). Also issued in a constituent update, FDA states that the guidance “restates, in plain language and in a question-and-answer format, the provisions in the final rule,” and includes questions such as
- “What did we change for yogurt products?”
- “How does the rule describe ‘yogurt’?”
- “What are the pH requirements for yogurt?”
- “What are the requirements for milkfat and milk solids not fat?”
- “Are there different requirements for producing reduced fat, lowfat, or nonfat yogurt?” and
- “What sweeteners may you use in yogurt?”
Manufacturers must comply with the rule beginning January 1, 2024.
Dairy Policy: Elanco and Athian Announce Carbon Marketplace for Dairy Farmers
On November 2, 2023, Elanco Animal Health Inc. and carbon credit technology company Athian announced a “voluntary livestock carbon insetting marketplace” that will utilize “feed management products from Elanco” to “reduc[e] enteric methane emissions” and allow “companies in the dairy value chain . . . to purchase credits for Scope 3 emissions reduction goals.” According to the announcement, the “marketplace aligns with the broader commitment of the U.S. dairy industry to attain greenhouse gas neutrality by the year 2050.”
Conservation Programs: Fish and Wildlife Service Publish Final Rule Reinstating Gray Wolf as ‘Endangered’ in Compliance with 2022 Court Order
On November 3, 2023, the U.S. Fish and Wildlife Service (FWS) published in the Federal Register a final rule (88 FR 75506) vacating the agency’s 2020 final rule (85 FR 69778), which removed the gray wolf from the List of Endangered and Threatened Wildlife (List) under the Endangered Species Act. FWS issued the rule, which officially returns the gray wolf to the List, in compliance with the U.S. District Court for the Northern District of California’s February 2022 court order that vacated and remanded the 2020 rule. DOW v. USFWS, No. 4:21-cv-00344; NRDC v. U.S. Dep’t Interior, No. 4:21-cv-00561; WildEarth Guardians v. Bernhardt, No. 4:21-cv-00349. Multiple parties appealed the District Court’s order to the U.S. Court of Appeals for the Ninth Circuit, which is holding the appeal in abeyance until February 2, 2024. According to the 2023 final rule, FWS “intends to submit . . . [by February 2, 2024] a proposed rule concerning the listing status of gray wolves in the lower 48 United States,” which “will be based on the best available information as of the time of publication.” FWS further states that, if the Ninth Circuit reverses the lower court, the agency “will take appropriate action to comply with and implement the Court of Appeals’ judgment, including, if required, publishing another final rule reinstating the Service’s 2020 delisting rule.”
Industrial Hemp: Hemp Growers File Complaint Alleging Alaska’s Hemp Regulations Violate 2018 Farm Bill
On November 2, 2023, the Alaska Industrial Hemp Association, Inc. filed, in the U.S. District Court for the District of Alaska, a complaint alleging that new state hemp regulations violate the 2018 Farm Bill, the U.S. Constitution’s Dormant Commerce Clause, and the Due Process Clause. AK Industrial Hemp Association v. Alaska Dep’t of Natural Resources, No. 3:23-cv-00253. The complaint claims that the regulations “creat[e] an inconsistency between the State and Federal definitions of ‘hemp’ . . . which do not align with the 2018 Farm Bill” and “effectively creat[e] a total ban of hemp products containing any amount of delta-9-THC.” The plaintiffs seek an injunction enjoining the state from enforcing the regulations.
Disaster Assistance Programs: USDA Announces Adjustable Dates for ELAP, LIP Loss Submission
On November 29, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that, for the Emergency Assistance for Livestock, Honeybees, and Farm-raised Fish (ELAP) and Livestock Indemnity Program (LIP), the agency is waiving the requirement to submit “notices of loss within a pre-determined number of days for 2023.” FSA states that producers may “submit 2023 notices of loss as soon as possible, once losses are realized, following a natural disaster event or no later than the established annual program application for payment deadlines for each program.”
_________________________________________________
aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn
CENTER PROGRAMS & RESOURCES
Events:
Making Laws Work for You, Part 2: Right to Farm, ACRE, and the Agritourism Activity Protection Act
- Mon. Dec. 11, 2023, noon–1:30pm (ET). Virtual. Staff attorney Brook Duer will present with the Small Business Development Center.
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:
- Dec. 15, 2023, Understanding the Basics of the Perishable Agricultural Commodities Act
- Jan. 26, 2023, Understanding the Basics of Food Labeling
Publications:
Specialty Crop Producers’ Guide to Understanding Liability Protection, Regulatory Processes, and Other Legal Risks (November 2023)
Podcasts:
Agricultural Law Podcast
252. U.S. Treasury’s New “Beneficial Ownership Information” Filing for Business Entity Structures Formed Under State Law (Nov. 28, 2023)
251. DOJ Sues Agri-Stats Directly for Collusion in Protein Sector (Nov. 20, 2023)
250. Beef and Pork Processing Plant Nationwide Wage-Fixing Class Action Suit Survives Motions to Dismiss (Nov. 14, 2023)
249. U.S. Supreme Court Declines to Hear Case Permitting FLSA Overtime Claim of H-2A Worker (Nov. 9, 2023)
Farmland Legal Energy Podcast
160. Methane Production From Manure (Oct. 31, 2023)
159. An Introduction to Hydrogen and Agriculture (Oct. 10, 2023)
158. An Introduction to Anaerobic Digestion (Sept. 26, 2023)
Resources of Interest:
Nat’l Agric. Law Ctr., FTC Warns Trade Associations and Nutrition Influencers of Lack of Disclosures in Sponsored Social Media Posts, Harrison M. Pittman (Nov. 21, 2023)
Nat’l Agric. Law Ctr., Legal Challenges to State Hemp Laws and Regulations, Samantha Capaldo (Nov. 16, 2023)
Nat’l Agric. Law Ctr., Spotlighting State Restrictions on Foreign Land Investments: Arkansas – Part Two, Micah Brown (Nov. 14, 2023)
Southern Ag Today, Historic Research Yields Modern Solutions, Max Runge (Nov. 22, 2023)
Southern Ag Today, Corn Price Prospects When We Start the Year with a 2-Billion-Bushel Carryover, J. Mark Welch (Nov. 20, 2023)
Southern Ag Today, Implications of Reverting to Dairy Policy in the 1948 Farm Bill, Jack Myers (Nov. 16, 2023)
Tex. A&M Agric. Law Blog, A Tofurkey Lawsuit for Thanksgiving Week, Tiffany Dowell Lashmet (Nov. 20, 2023)
Ohio St. Univ. Ext. Farm Off. Blog, Ten legal tips for the fall hunting season, Peggy Kirk Hall (Nov. 22, 2023)
Ohio St. Univ. Ext. Farm Off. Blog, Calculate Long-Term Care Risks, Robert Moore (Nov. 16, 2023)
Ohio St. Univ. Ext. Farm Off. Blog, An Environmental Law Harvest, Peggy Hall (Nov. 14, 2023)
Agric. Law & Tax’n Blog, Odds and Ends in Ag Law and Tax, Roger McEowen (Nov. 13, 2023)
Agric. Law & Tax’n Blog, More on Gift Giving, Roger McEowen (Nov. 25, 2023)
______________________________________________________________________
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA and the U.S. Small Business Administration Strengthen Partnership to Create Jobs and Economic Growth in Rural America (Nov. 20, 2023)
USDA Announces Planned Trade Missions for 2024, Shares Next Steps for Regional Agricultural Promotion Program (Nov. 16, 2023)
Statement from Agriculture Secretary Tom Vilsack on the Economic Research Service’s 2023 Rural America at a Glance Report (Nov. 15, 2023)
FACT SHEET: Year Two of the Bipartisan Infrastructure Law at USDA (Nov. 15, 2023)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
Biden-Harris Administration Announces $2 Billion to Fund Environmental and Climate Justice Community Change Grants as Part of Investing in America Agenda (Nov. 21, 2023)
EPA Proposes Stronger Rules to Protect People from Persistent, Bioaccumulative, and Toxic Chemical Exposures (Nov. 20, 2023)
EPA Administrator Regan Announces Members of First-Ever National Environmental Youth Advisory Council (Nov. 16, 2023)
EPA awards $38M for re-use, recycling, composting infrastructure and outreach projects in Alaska and the Pacific Northwest (Nov. 15, 2023)
EPA Penalizes Home Renovators in Kansas, Missouri, and Nebraska for Lead-Based Paint Violations (Nov. 14, 2023)
EPA takes action for noncompliance with Ocean Dumping Act (Nov. 13, 2023)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Partners with New Mexico to Award over $3.7 Million to Strengthen Food Supply Chain Infrastructure (Nov. 22, 2023)
USDA Partners with Rhode Island to Award over $1.5 Million to Strengthen Food Supply Chain Infrastructure (Nov. 21, 2023)
USDA Partners with Kansas to Award over $6.4 Million to Strengthen Food Supply Chain Infrastructure (Nov. 21, 2023)
USDA Files Action Against United Vegetable Produce Inc. in New York for Alleged PACA Violations (Nov. 20, 2023)
USDA Partners with Alabama to Award over $5.7 Million to Strengthen Food Supply Chain Infrastructure (Nov. 20, 2023)
USDA Restricts PACA Violators in California, Illinois and Texas from Operating in the Produce Industry (Nov. 20, 2023)
Agricultural Research Service (ARS)
USDA Introduces a Multi-Year Plan to Strengthen U.S. Genebank Management of Plant Germplasm (Nov. 17, 2023)
USDA Unveils Updated Plant Hardiness Zone Map (Nov. 15, 2023)
USDA Researchers Confirm Six Unique Strains of African Swine Fever Virus (Nov. 13, 2023)
Animal and Plant Health Inspection Service (APHIS)
APHIS Finds That 12 Different Plants Submitted for Review Are Not Subject to Its Biotechnology Regulations (Nov. 14, 2023)
APHIS Proposes Five Additional Exemptions for Modified Plants (Nov. 14, 2023)
Economic Research Service (ERS)
Food Price Outlook (Nov. 23, 2023)
How China’s African Swine Fever Outbreaks Affected Global Pork Markets (Nov. 22, 2023)
Food and Nutrition Service (FNS)
States and Tribes Partner with USDA to Kick Off New Summer EBT Program (Nov. 21, 2023)
USDA Nutrition Incentives Improve Access to Healthy Food (Nov. 13, 2023)
Food and Safety Inspection Service (FSIS)
FSIS and the National Antimicrobial Resistance Monitoring System (NARMS): The Public Health Impact of NARMS (Nov. 24, 2023)
Foreign Agricultural Service (FAS)
USMCA Panel Releases Canada Dairy Report (Nov. 21, 2023)
U.S. Agribusiness Trade Mission Cements U.S. Presence in Southeast Asia (Nov. 16, 2023)
Forest Service
National Agricultural Statistics Service (NASS)
USDA invites agriculture producers to respond online to the 2023 Irrigation and Water Management Survey (Nov. 17, 2023)
USDA announces 2022 Census of Agriculture data release details, preliminary return rate, and upcoming special studies (Nov. 16, 2023)
National Institute of Food and Agriculture (NIFA)
NIFA Invests $550K in Response to Extreme Weather Events Across the U.S. (AFRI A1712) (Nov. 22, 2023)
NIFA Invests Nearly $2M in Research Facilities Act Program (Nov. 15, 2023)
USDA Invests Nearly $28M for Beginning Farmers and Ranchers (Nov. 15, 2023)
Natural Resources Conservation Service (NRCS)
USDA Increases Minimum Annual Payment for Conservation Stewardship Program (Nov. 22, 2023)
USDA Streamlines Regional Conservation Partnership Program (Nov. 21, 2023)
Popular NRCS Conservation Program Expediting Rankings, Funding Contracts (Nov. 20, 2023)
Producers in El Paso County, Texas, Encouraged to Apply for Conservation Assistance to Improve Irrigation, Conserve Water (Nov. 20, 2023)
NRCS Helps Enhance Local Community Parks in Muncy, PA (Nov. 17, 2023)
USDA Increases Minimum Annual Payment for Conservation Stewardship Program (Nov. 16, 2023)
Conserving Land for the Future (Nov. 16, 2023)
USDA Offers Assistance to Protect Privately-Owned Agricultural Lands and Grasslands (Nov. 16, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 13–24, 2023):
Agriculture Department
88 FR 82313 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Generic Clearance for Stakeholder Feedback and Surveys as Part of FNS Planning: Regulatory Actions, Semi-annual Regulatory Agenda, Program Changes, Research Studies, Outreach, Training and/or Development of Guidance]” (Nov. 24, 2023)
88 FR 81040 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Customer Data Worksheet Request for Business Partner Record Change]” (Nov. 21, 2023)
88 FR 80269 Noitce: “Submission for OMB Review; Comment Request [Farm Service Agency: Increasing Land, Capital, and Market Access Program]” (Nov. 17, 2020)
88 FR 78719 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: National Veterinary Accreditation Program Application Form]” (Nov. 16, 2023)
88 FR 77549 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: 2023 Pulse Survey: Operational Challenges in Child Nutrition Programs]” (Nov. 13, 2023)
Agricultural Marketing Service
88 FR 82313 Notice: “Notice of Availability of the Programmatic Environmental Assessment for AMS Organic Market Development Grant Program; Correction” (Nov. 24, 2023)
88 FR 82230 Rule: “Nomenclature Changes; Technical Amendments” (Nov. 24, 2023)
88 FR 81039 Notice—Comment Period: “Notice of Request to Extend and Revise a Previously Approved Information Collection” (Nov. 21, 2023)
88 FR 80687 Notice—Comment Period: “Notice of Availability of the Programmatic Environmental Assessment for AMS Organic Market Development Grant Program” (Nov. 20, 2023)
88 FR 80687 Notice—Comment Period: “Request for Extension and Revision of a Currently Approved Information Collection [List of U.S. Manufacturers of Specific CVM-Regulated Products with Interest in Exporting Covered Products to China]” (Nov. 20, 2023)
88 FR 78679 Proposed Rule—Comment Period: “Raisins Produced from Grapes Grown in California; Increased Assessment Rate” (Nov. 16, 2023)
Animal and Plant Health Inspection Service
88 FR 78285 Notice—Comment Period: “Movement of Organisms Modified or Produced Through Genetic Engineering; Notice of Proposed Exemptions” (Nov. 15, 2023)
88 FR 77883 Rule: “Importation of Fresh Beef from Paraguay” (Nov. 14, 2023)
Commodity Credit Corporation
88 FR 80092 Rule—Comment Period: “Regional Agricultural Promotion Program” (Nov. 17, 2023)
Environmental Protection Agency
88 FR 82286 Proposed Rule—Comment Period: “Pesticides; Petition Seeking Rulemaking for Registration of Neonicotinoid Insecticides and Other Systemic Insecticides; Notice of Availability and Request for Comment” (Nov. 24, 2023)
88 FR 82272 Rule: “Oxathiapiprolin; Pesticide Tolerances” (Nov. 24, 2023)
88 FR 82287 Proposed Rule—Comment Period: “Decabromodiphenyl Ether and Phenol, Isopropylated Phosphate (3:1); Revision to the Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under the Toxic Substances Control Act (TSCA)” (Nov. 24, 2023)
88 FR 81410 Notice: “Certain New Chemicals or Significant New Uses; Statements of Findings for September 2023” (Nov. 22, 2023)
88 FR 81019 Proposed Rule—Comment Period: “New Source Performance Standards Review for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels); Extension of Comment Period” (Nov. 21, 2023)
88 FR 81021 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (October 2023)” (Nov. 21, 2023)
88 FR 80682 Proposed Rule—Comment Period: “New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule” (Nov. 20, 2023)
88 FR 80594 Rule: “New Source Performance Standards Review for Secondary Lead Smelters” (Nov. 20, 2023)
88 FR 80655 Proposed Rule—Comment Period: “Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Regional Haze State Implementation Plan for the Second Implementation Period” (Nov. 20, 2023)
88 FR 80480 Rule: “Adoption and Submittal of State Plans for Designated Facilities: Implementing Regulations Under Clean Air Act Section 111(d)” (Nov. 17, 2023)
88 FR 80300 Notice: “Environmental Impact Statements; Notice of Availability [Odessa Subarea Special Study Columbia Basin Project to Replace Groundwater Currently Used for Irrigation Grant Adams Walla Walla and Franklin Counties WA]” (Nov. 17, 2023)
Federal Crop Insurance Corporation
88 FR 78226 Rule: “Early Harvest Insurance Flexibility for Sugar Beets” (Nov. 15, 2023)
Forest Service
88 FR 82313 Notice: “Proposed New Recreation Fee Site” (Nov. 24, 2023)
88 FR 81361 Notice: “Proposed New Recreation Fee Site” (Nov. 22, 2023)
88 FR 81361 Notice: “Proposed New Recreation Fee Sites” (Nov. 22, 203)
88 FR 80270 Notice: “Stanislaus National Forest; California; Social and Ecological Resilience Across the Landscape 2.0 EIS” (Nov. 17, 2023)
National Agricultural Statistics Service
88 FR 80688 Notice—Comment Period: “Notice of Intent to Request Revision and Extension of a Currently Approved Information Collection” (Nov. 20, 2023)
Rural Business-Cooperative Service
88 FR 82225 Rule: “Guaranteed Loanmaking and Servicing Regulations” (Nov. 24, 2023)
88 FR 82314 Notice—Comment Period: “Notice of Revision of a Currently Approved Information Collection” (Nov. 24, 2023)
Rural Housing Service
88 FR 80641 Proposed Rule—Comment Period: “Streamlining and Improvement of Single Family Housing Direct Programs” (Nov. 20, 2023)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.6473 “Community Connect Grant Program Act of 2023” Referred to the Committee on Agriculture. (Nov. 21, 2023)
H.Res.882 “Declaring support and gratitude by the House of Representatives to food banks, food pantries, and other community-based organizations working to end food insecurity and providing other essential services in the United States.” Referred to the House Committee on Agriculture. (Nov. 21, 2023)
H.R.6469 “Farmland Security Act of 2023” Referred to the House Committee on Agriculture. (Nov. 21, 2023)
H.R.5283 “Protecting our Communities from Failure to Secure the Border Act of 2023” Placed on the Union Calendar, Calendar No. 220. (Nov. 17, 2023)
H.R.6449 “To amend the Department of Agriculture Reorganization Act of 1994 to reauthorize the Office of Urban Agriculture and Innovative Production.” Referred to the House Committee on Agriculture. (Nov. 17, 2023)
H.R.6441 “To allow holders of certain grazing permits to make minor range improvements and to require that the Secretary of Agriculture and the Secretary of the Interior respond to requests for range improvements within 30 days, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Nov. 15, 2023)
H.R.6423 “To amend the Food and Nutrition Act of 2008 to provide certain alternative eligibility requirements applicable to foster care youth, and homeless youth, who are enrolled at least half-time in an institution of higher education; and for other purposes.” Referred to the House Committee on Agriculture. (Nov. 15, 2023)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.3309 “A bill to authorize the Secretary of Agriculture to provide rural partnership program grants and rural partnership technical assistance grants, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 15, 2023)
S.3300 “A bill to require a report on the competitiveness of United States exports of specialty crops.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 14, 2023)
S.3294 “A bill to amend the Richard B. Russell National School Lunch Act with respect to reimbursements under the child and adult care food program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 14, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Agriculture Department Warns Consumers To Discard “Hilltop Meadow Farm” Brand Contaminated ‘60 Day Aged Pepper Jack Raw Milk Cheese’ (Nov. 22, 2023)
Shapiro Administration Awards $605,398 In PA Farm Bill Grants To Strengthen Child Nutrition, Hands-On Ag Education (Nov. 14, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 46—Nov. 18, 2023 & No. 47—Nov. 25, 2023):
Department of Environmental Protection
53 Pa.B. 7292 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” (Nov. 25, 2023).
53 Pa.B. 7338 Notice: “Availability of Rebates through the Driving PA Forward Initiative: Onroad Rebate Program” (Nov. 25, 2023).
53 Pa.B. 7338 Notice: “Availability of Technical Guidance” (Nov. 25, 2023).
53 Pa.B. 7183 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” (Nov. 18, 2023).
53 Pa.B. 7247 Notice: “Extension of General Permit for the Beneficial Use of Exceptional Quality Biosolids by Land Application (PAG-07)” (Nov. 18, 2023).
53 Pa.B. 7247 Notice: “Extension of General Permit for the Beneficial Use of Biosolids by Land Application (PAG-08)” (Nov. 18, 2023).
53 Pa.B. 7248 Notice: “Extension of General Permit for the Beneficial Use of Residential Septage by Land Application (PAG-09)” (Nov. 18, 2023).
Independent Regulatory Review Commission
53 Pa.B. 7341 Notice: “Notice of Filing of Final Rulemakings” (Nov. 25, 2023).
Judicial System General Provisions
53 Pa.B. 7129 Rule: “Promulgation of Financial Regulations Pursuant to Act 22 of 2023; No. 601 Judicial Administration Docket” (Nov. 18, 2023).
Fish and Boat Commission
53 Pa.B. 7268 Notice: “Classification of Wild Trout Streams; Proposed Additions and Revisions; January 2024” (Nov. 18, 2023).
53 Pa.B. 7269 Notice: “Proposed Changes to List of Class A Wild Trout Waters; January 2024” (Nov. 18, 2023).
PENNSYLVANIA LEGISLATURE
HB 295 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in soil and plant amendment, further providing for registration, for inspection fees, for tonnage reports and for disposition of funds.” Act No. 30 of 2023. (Nov. 21, 2023)
HB 295 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in soil and plant amendment, further providing for registration, for inspection fees, for tonnage reports and for disposition of funds.” Presented to the Governor. (Nov. 15, 2023)
HB 1777 “An Act amending the act of June 30, 1981 (P.L.128, No.43), known as the Agricultural Area Security Law, further providing for purchase of agricultural conservation easements, for Agricultural Conservation Easement Purchase Fund and for Land Trust Reimbursement Program.” Removed from table. (Nov. 15, 2023)
HB 1661 “An Act amending the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, further providing for definitions and for prohibited acts and penalties; and providing for secure storage of xylazine.” Re-referred to APPROPRIATIONS. (Nov. 15, 2023)
HB 1540 “An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, in terms and courses of study, further providing for Commission for Agricultural Education Excellence.” Re-referred to APPROPRIATIONS. (Nov. 14, 2023)
SB 686 “An Act authorizing the Department of General Services, with the approval of the Department of Agriculture and the Governor, to grant and convey to Joshua R. Snyder a certain tract of land located in Windsor Township, Berks County.” Second consideration. (Nov. 14, 2023)
SB 979 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in domestic animals, providing for posted notice with information on dangerous transmissible diseases.” Re-referred to APPROPRIATIONS. (Nov. 14, 2023)
Contributors:
Victoria Dutterer—Research Assistant
Avery McLean—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney
