February 13, 2024

Agricultural Law Weekly Review—February 13, 2024

Dairy Policy: Federal Milk Marketing Order Hearing Ends, Brief Filing Open Until April 1 🌾
On February 2, 2024, the U.S. Department of Agriculture (USDA) received an order “Notification to the Hearing Clerk Pursuant to 7 CFR § 900.10” for the National Federal Milk Marketing Order Pricing Formula Hearing, which began on August 23, 2023 and ended after forty-nine days on January 30, 2024. According to the notice, 511 exhibits were introduced in the hearing. Additionally, USDA’s Agricultural Marketing Service (AMS) will publish forty-nine volumes of the hearing transcript on its website. Proposed transcript corrections may be filed up to 30 days after publication of the entire transcript. The deadline to file proposed briefs and Findings and Conclusions is April 1, 2024. For more on dairy law, see the Center’s Dairy and Dairy Products Virtual Resource Room.

Pesticides/Herbicides: District Court Issues Order Vacating Three Dicamba Registrations
On February 6, 2024, The U.S. District Court for the District of Arizona issued an order granting summary judgment to the plaintiff environmental group and vacating the U.S. Environmental Protection Agency’s (EPA) 2020 registrations of three dicamba products: XtendiMax, Engenia, and Tavium. Ctr. Biological Diversity v. U.S. EPA, No. 4:20-cv-00555. The court found that EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Administrative Procedure Act (APA) when it issued registrations for the products without notice and comment and instead relied upon previous registrations—which were vacated—to determine that “the [over-the-top] OTT dicamba applications in 2020 did not meet the ‘new use’ definition.” The court stated, “Given the unequivocal revocation and cancellation of the [2018] XtendiMax and Engenia registrations that authorized the ‘new use’ of low-volatility dicamba products for postemergent OTT spraying for DT cotton and soybean crops, the EPA’s determination that the 2020 registrations were not also ‘new use’ registrations is so implausible the Court cannot ascribe it to be a mere difference in view. It is not a product of agency expertise.” Additionally, in vacating the registrations, the court found “no evidence . . . that the ramifications of vacatur . . . on growers or the environment [are] more dire . . . [than] in 2020 when the Ninth Circuit vacated the 2016 . . . registrations,” noting that “the benefits for OTT dicamba is waning due to weed resistance,” and contrasted dicamba with “sufloxefor, where growers had no other pesticide options,” stating, “growers do have options for OTT dicamba because they can switch to using the OTT 2,4-D system.” For more on dicamba registration and litigation, see the Center’s Dicamba Issue Tracker.

Pesticides/Herbicides: EPA Publishes Final Rule Reinstating Chlorpyrifos Food Tolerances
On February 5, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a final rule (89 FR 7625) reinstating tolerances for the pesticide chlorpyrifos, consistent with the U.S. Court of Appeals for the Eighth Circuit’s November 2023 opinion. Tolerances were reinstated for the following commodities: alfalfa, almonds, apples, bananas, beets, cattle, cherries, citrus, corn, cotton, cranberries, cucumbers, eggs, figs, goats, hazelnuts, hogs, horses, kiwifruits, milkfat, nectarines, onions, peaches, peanuts, pears, pecans, peppers, peppermint, plums, poultry, pumpkin, radishes, rutabagas, sheep, spearmint, sorghum, soybean seeds, strawberries, sunflower seeds, sweet potato roots, turnips, leafy brassica, legumes, walnuts, and wheat (40 CFR §180.342). The final rule became effective upon publication. For background, see ALWR—Nov. 14, 2023, “Circuit Court Remands Chlorpyrifos Tolerance Revocation for Further Reconsideration.” For more on chlorpyrifos, see the Center’s Chlorpyrifos Issue Tracker.

Pesticides/Herbicides: EPA Publishes Document Supporting 2021 Paraquat Interim Decision
On February 1, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (89 FR 6521) making available a document that “presents EPA’s preliminary reconsideration of the issues raised” in a case challenging the agency’s 2021 interim decision for paraquat dichloride, including EPA’s “assessment of whether paraquat poses a risk of Parkinson’s Disease, its analysis of respiratory and dermal exposures, as well as exposures to direct and indirect paraquat drift; the analysis of benefits; the consideration of health-related costs; and the required balancing of paraquat’s risks and benefits” EPA-HQ-OPP-2011-0855. See also California Rural Legal Assistance Found’n v. USEPA, No. 21-71287 (9th Cir.). According to the document, which EPA presents in support of its 2021 interim decision, “EPA notes that additional information has been submitted during the development of th[e] document” that “has not been incorporated . . . due to timing constraints,” including “approximately 90 submissions including scientific studies,” “testimony filed in an ongoing state lawsuit concerning paraquat,” and letters from Earthjustice and the Michael J. Fox Foundation. Additionally, EPA published in the same docket a letter to paraquat registrants reminding them of their “obligations under [the Federal Insecticide, Fungicide, and Rodenticide Act] . . . to report information concerning unreasonable adverse effects of their products.” The document and Federal Register notice are open for public comment until April 1, 2024.

Pesticides/Herbicides: USDA Publishes 2022 Pesticide Data Program Annual Summary
On January 30, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published the 2022 Pesticide Data Program (PDP) Annual Summary, also announced by the agency. According to the report, “over 99% of the samples tested had residues below the tolerances established by the EPA with 27.6% having no detectable residue.” Of the 10,665 total samples tested, “residues exceeding the tolerance were detected in 0.53% (56 samples)” and “residues with no established tolerance were found in 2.5% (269 samples).” Additionally, the report found that in corn grain and soybean grain, “the most frequently detected residue was for glyphosate,” which was detected in 23.6% of corn samples and 91.8% of soybean samples in amounts below the tolerance levels. 

Conservation: USDA Requests Public Comments on National Conservation Practice Standards
On February 2, 2024, the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) published in the Federal Register a notice (89 FR 7358) seeking public comments on proposed revisions to the conservation practice standards in the National Handbook of Conservation Practices (NHCP). USDA is seeking feedback on proposed revisions on the following eight conservation practice standards: field border, filter strip, grazing management, hedgerow planting, mulching, seasonal water management for wildlife, structure for water control, and wetland restoration. Comments will be accepted until March 4, 2024.

Agricultural Labor: USCIS Publishes Final Rule Increasing Some Immigration Benefit Petition Fees
On January 31, 2024, the U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS) published in the Federal Register a final rule (89 FR 6194) increasing fees for certain immigration benefit petitions, including petitions for H-2A nonimmigrant workers with unnamed and named beneficiaries. Also announced by USCIS, the rule increases the filing fee for H-2A nonimmigrant workers with unnamed beneficiaries from $460 to $530 and from $460 to $1,090 for named beneficiaries. For small employers and nonprofits, the fee for H-2A workers with unnamed beneficiaries remains $460 and for named beneficiaries increases from $460 to $545.The final rule is effective April 1, 2024. For more on H-2A issues, see the Center’s H-2A Issue Tracker.

Agricultural Data: ERS Publishes Report on Socially Disadvantaged, Women, and Limited Resource Producers
On February 1, 2024, the U.S. Department of Agriculture (USDA) Economic Research Service (ERS) published a report titled, “An Overview of Farms Operated by Socially Disadvantaged, Women, and Limited Resource Farmers and Ranchers in the United States.” The study found that farms operated by such underserved producers differ from non-underserved producers in several respects, noting that Hispanic and socially disadvantaged “farms were less likely to receive farm payments (11 and 21 percent of farms received payments, respectively) than [non-Hispanic] White farms (34 percent)” and that “[t]he average value of production per farm was lower on women-only ($28,492) and joint operations ($160,468) compared with men-only operations ($209,083).”

 

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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:

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:

ACRE Law 101: Agriculture, Local Regulations, and Nutrient Management

  • Mar. 6, 2024, 9:00 am–1:00 pm. In-person at US Hotel Tavern, Hollidaysburg, PA. Free PDH Engineering, Nutrient Management, and CLE credits available, lunch provided.

Podcasts:

Agricultural Law Podcast

Farmland Legal Energy Podcast

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:

Agric. Law & Tax’n Blog, Top Ten Developments in Agricultural Law and Taxation in 2023 – (Part Seven): No. 1 – SCOTUS and the Definition of a “Water of the United States”, Roger McEowen (Feb. 2, 2024)

Southern Ag Today, WOTUS Update, Brigit Rollins (Feb. 2, 2024)

Nat’l Agric. Law Ctr., EPA Proposes Updates to Effluent Limitations for Meat and Poultry Processors, Brigit Rollins (Feb. 1, 2024)

Southern Ag Today, Proposed Safety Net Choice Could Add Risk to Farmers, Joe Outlaw (Feb. 1, 2024)

Southern Ag Today, Foreign Investment in U.S. Agricultural Land: Leasing vs. Owning, Festus Attah (Jan. 31, 2024)

Univ. Md. Risk Mgmt. Educ. Blog, Federal Estate Tax and Gift Tax Limits Announced For 2024, Paul Goeringer (Jan. 30, 2024)

Nat’l Agric. Law Ctr., Legal Issues with Land Trusts: Tax Benefits and the IRS Crackdown, Brigit Rollins (Jan. 29, 2024)

Agric. Law & Tax’n Blog, Top Ten Developments in Agricultural Law and Taxation in 2023 – (Part Six): Foreign Ownership of Agricultural Land, Roger McEowen (Jan. 27, 2024)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Agriculture Secretary Vilsack Visits Minnesota to Highlight Biden-Harris Administration’s Investments in Clean Energy Infrastructure in Rural America (Feb. 1, 2024)

Farmers, Ranchers Now Can Make USDA Farm Loan Payments Online (Jan. 29, 2024)

Biden-Harris Administration Announces Investments to Strengthen U.S. Specialty Crops Sector (Jan. 29, 2024)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Biden-Harris Administration Announces New Steps to Protect Communities from PFAS and Other Emerging Chemicals of Concern (Feb. 1, 2024)

Oil Companies to Pay $7.4 Million in Civil Penalties to Resolve U.S. Claims for Pipeline Spill on Allotted Tribal Land (Jan. 30, 2024)

EPA develops 6PPD-q water testing method for widespread use (Jan. 30, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Releases 2022 Pesticide Data Program Annual Summary (Jan. 30, 2024)

Animal and Plant Health Inspection Service (APHIS)

USDA APHIS Makes Gains Removing Asian Longhorned Beetle in New York (Jan. 31, 2024)

Economic Research Service

An Overview of Farms Operated by Socially Disadvantaged, Women, and Limited Resource Farmers and Ranchers in the United States (Feb. 1, 2024)

Farm Service Agency (FSA)

USDA Announces February 2024 Lending Rates for Agricultural Producers (Feb. 1, 2024)

Farmers, Ranchers Now Can Make USDA Farm Loan Payments Online (Jan. 29, 2024)

Foreign Agricultural Service (FAS)

Biden-Harris Administration Announces Investments to Strengthen U.S. Specialty Crops Sector (Jan. 29, 2024)

National Institute of Food and Agriculture

NIFA Invests $600K in Response to Extreme Weather Events Across the U.S. (A1712) (Jan. 31, 2024)

Natural Resources Conservation Service (NRCS)

USDA Invests Approximately $11.5 Million in Composting and Food Waste Reduction Projects in 23 States, Including Montana (Jan. 29, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 29-Feb. 2, 2024):   

Agricultural Marketing Service

89 FR 7353 Notice: “Notice of Availability of the Final Programmatic Environmental Assessment and Finding of No Significant Impact for the AMS Organic Market Development Grant Program” (Feb. 2, 2024)

89 FR 6440 Proposed Rule—Comment Period: “Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida; Increased Assessment Rate” (Feb. 1, 2024)

89 FR 6401 Rule: “Milk in the Appalachian, Florida, and Southeast Marketing Areas; Amendments to Marketing Agreements and to Orders” (Feb. 1, 2024)

89 FR 5757 Rule: “Walnuts Grown in California; Decreased Assessment Rate” (Jan. 30, 2024)

Agriculture Department

89 FR 5855 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Supplemental Nutrition Assistance Program—Store Applications]” (Jan. 30, 2024)

89 FR 5484 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: APHIS Credit Account and User Fee Programs] (Jan. 29, 2024)

89 FR 5480 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Reporting and Recordkeeping Requirements under Regulations (Other than Rules of Practice) Under the Perishable Agricultural Commodities Act, 1930]” (Jan. 29, 2024)

Animal and Plant Health Inspection Service

89 FR 5795 Proposed Rule—Comment Period: “Agricultural Bioterrorism Protection Act of 2002; Biennial Review and Republication of the Select Agent and Toxin List” (Jan. 30, 2024)

Environmental Protection Agency

89 FR 7291 Rule: “Saflufenacil; Pesticide Tolerances” (Feb. 2, 2024)

89 FR 6521 Notice—Comment Period: “EPA Document in Support of the Paraquat Interim Registration Review Decision; Notice of Availability” (Feb. 1, 2024)

89 FR 6016 Rule: “O-Benzyl-P-Chlorophenol (OBPCP); Exemption from the Requirement of a Pesticide Tolerance” (Jan. 31, 2024)

89 FR 5773 Rule: “Expedited Approval of Alternative Test Procedures for the Analysis of Contaminants Under the Safe Drinking Water Act; Analysis and Sampling Procedures” (Jan. 30, 2024)

89 FR 5527 Notice: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Clean School Bus (CSB) Rebate Program (Renewal)” (Jan. 29, 2024)

Federal Reserve System

89 FR 6574 Rule: “Community Reinvestment Act” (Feb. 1, 2024)

Fish and Wildlife Service

89 FR 7345 Proposed Rule—Comment Period “National Wildlife Refuge System; Biological Integrity, Diversity, and Environmental Health” (Feb. 2, 2024)

National Agricultural Library

89 FR 5485 Notice: “Notice of Second Interested Party Feedback Period Regarding Increasing Public Access to the Results of USDA-Funded Research” (Jan. 29, 2024)

Natural Resources Conservation Service

89 FR 7358 Notice—Comment Period: “Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service” (Feb. 2, 2024)

Forest Service

89 FR 5485 Notice: “National Urban and Community Forestry Advisory Council” (Jan. 29, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.5089 “Reducing Regulatory Burdens Act of 2023 [This bill modifies requirements governing the use of pesticides in or near navigable waters]” Ordered to be Reported. (Jan. 31, 2024)

H.R.7146 “To direct the Secretary of Agriculture to provide grants to covered entities to develop, modify, or implement climate adaptation and climate mitigation proposals on agricultural land, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 30, 2024)

H.R.7130 “To amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to ensure that consumers can make informed decisions in choosing between meat and poultry products and imitation meat and imitation poultry products, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 30, 2024)

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

S.3693 “A bill to amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to ensure that consumers can make informed decisions in choosing between meat and poultry products and imitation meat and imitation poultry products, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 30, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

No New Actions

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 5—Feb. 3, 2024): 

Department of Environmental Protection

54 Pa.B. 499 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. 555 Notice: “State Board for Certification of Water and Wastewater Systems Operators Meeting”

54 Pa.B. 554 Notice: “Proposed Modifications to Residual Waste General Permit WMGR081 Base Permit”

Independent Regulatory Review Commission

54 Pa.B. 584 Notice: “Notice of Comments Issued [Environmental Quality Board: Water Quality Standards—Site-Specific Water Quality Criteria]”

PENNSYLVANIA LEGISLATURE

HB 1981 “An Act amending the act of August 9, 1955 (P.L.323, No.130), known as The County Code, in special powers and duties of counties, providing for county humane officers.” Referred to AGRICULTURE AND RURAL AFFAIRS. (Jan. 31, 2024)

HB 1973 “An Act amending Title 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes, providing for Public Facilities Infrastructure Grant Program.” Referred to LOCAL GOVERNMENT (Jan. 31, 2024)

SR 225 “A Concurrent Resolution calling for a convention under Article V of the Constitution of the United States to consider amendments that limit the number of terms that members of Congress may serve.” Referred to STATE GOVERNMENT. (Jan. 29, 2024)

 

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