February 20, 2024
Agricultural Law Weekly Review—February 20, 2024
Pesticides/Herbicides: EPA Issues Existing Stocks Order for Three Dicamba Products After Registration Vacatur 🌾
On February 14, 2024, the U.S. Environmental Protection Agency (EPA) issued an existing stocks order for the dicamba-based herbicides XtendiMax, Enginia, and Tavium following vacatur of the herbicides’ registrations. See ALWR—Feb. 13, 2024, “District Court Issues Order Vacating Three Dicamba Registrations.” The order permits the “limited sale and distribution of dicamba [over-the-top] products that were already in the possession of growers or in the channels of trade and outside the control of pesticide companies as of February 6, 2024.” Also announced by EPA, the order only authorizes use of existing products “consistent with the previously approved labeling” and terminates use in phases June 12, 2024 through July 30, 2024, depending upon state and crop. For more on dicamba, see the Center’s Dicamba Issue Tracker.
Pesticides/Herbicides: Eleventh Circuit Finds ‘No Federal Preemption’ in Bayer-Monsanto Roundup Product Liability Appeal
On February 5, 2024, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion holding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) did not preempt the plaintiff’s Georgia state law failure-to-warn claim in John Carson v. Monsanto Company, No. 21-10994. The court determined that “Monsanto could comply with both state and federal labeling requirements” but found that “Monsanto did not request—and the [U.S. Environmental Protection Agency (EPA)] did not consider, much less reject—a cancer warning at all.” Additionally, the court noted that, “in 2022, the Agency publicly stated that it ‘could approve’ warning language that ‘[t]he International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans,’ and products with that warning ‘would not be considered misbranded.’” The court further determined that “Monsanto cannot meet its burden to show that the Agency ‘informed [Monsanto] that [it] would not approve changing the . . . label to include that warning,’” and held that “impossibility preemption does not apply.” Following the court’s opinion, Bayer published a statement disagreeing with the court and stating that the company “will continue to seek a ruling by the U.S. Supreme Court on federal preemption.” For more on glyphosate litigation, see the Center’s Glyphosate Issue Tracker.
Agricultural Labor: D.C. Federal Court Upholds 2022 H-2A Rule
On January 29, 2024, the U.S. District Court for the District of Columbia issued a memorandum opinion denying the National Council of Agricultural Employers’ (NCAE) motion for summary judgment and upholding the U.S. Department of Labor’s (DOL) 2022 H-2A final rule. Nat’l Council Agric. Employers v. U.S. Dep’t Labor, No. 1:22-cv-03569. The final rule was published in the Federal Register in October 2022 after a previous rule was published on DOL’s website and submitted for Federal Register publication by the outgoing administration in January 2021—but was never published in the Federal Register—and then immediately withdrawn by the Biden administration on January 20, 2021. The court found that the 2022 rule was properly promulgated because the January 2021 rule was never made final through Federal Register publication. Additionally, the court held that the NCAE did not have standing to challenge DOL’s withdrawal of the 2021 H-2A Rule, writing that the NCAE “failed to show ‘that any of its members suffered an injury in fact from the withdrawal of the 2021 Rule.” For background, see ALWR—Jan. 9, 2023, “Ag Employer Group Challenges October 2022 H-2A Final Rule,” and ALWR—Feb. 27, 2023, “D.C. Court Declines to Enjoin 2022 H-2A Regulation Revisions.” For more on the H-2A program, see the Center’s H-2A Program Issue Tracker.
Animal Welfare: Federal Court Rules Massachusetts’ Question 3 ‘Slaughterhouse Exemption’ Violates Constitution
On February 5, 2024, the U.S. District Court for the District of Massachusetts published a memorandum and order holding that the slaughterhouse exemption of Massachusetts’ Prevention of Farm Cruelty Act, commonly known as Question 3, violates the U.S. Constitution’s Commerce Clause because it has a discriminatory effect on out-of-state meat processors. Triumph Foods, LLC v. Campbell, No. 1:23-cv-11671. The court determined that the exemption, which permits the sale of noncompliant pork products “on the premises of a [Federal Meat Inspection Act (FMIA)]-inspected facility,” would allow “a large end-user of pork in Massachusetts—a hospital system, the state prison system, a large school district, etc. . . . [to] purchase and take possession of cheaper, noncompliant pork on the premises of an in-state facility” while an out-of-state processor “would have no way to provide that same customer with its noncompliant pork, because it does not have an in-state, federally inspected facility.” The court ruled that the slaughterhouse exception is severable from the rest of the Act and vacated a previous order granting summary judgment against the plaintiffs on all other counts and claims, allowing the court to consider whether the Act, without the now-severed slaughterhouse exemption, is preempted by the Federal Meat Inspection Act (FMIA). See also ALWR—Oct. 23, 2023, “Iowa and 12 States File Amicus Brief in Massachusetts Question 3 Challenge.” For more on animal confinement issues, see the Center’s Animal Confinement Issue Tracker.
Agricultural Labor: Eleven Attorneys General Petition Department of Labor, Congress, and White House for Occupational Heat Standard
On February 9, 2024, eleven attorneys general sent petitions to the U.S. Department of Labor (DOL) Secretary and Assistant Secretary, congressional labor committee members, and White House climate and labor advisors seeking worker protections from extreme heat. Also announced by the Attorneys General of Illinois, Maryland, and New York, the petitions ask the DOL Occupational Safety and Health Administration (OSHA) “to issue an emergency temporary standard for occupational heat exposure for farmworkers and construction workers, at minimum, beginning May 1, 2024,” and the legislative and executive branches to pass and sign the Asunción Valdivia Heat Illness, Injury, and Fatality Prevention Act (S. 2501/H.R. 4897), “which would direct . . . OSHA to establish interim and permanent standards to protect workers from extreme heat.” Additionally, the DOL petition states that, under federal law, “OSHA is required to promulgate an emergency temporary standard if it finds (1) workers are exposed to a grave danger in the workplace, and (2) an emergency standard is necessary to protect workers from such danger,” both factors which, the petition states, “are undeniably met.” The petitioners were the Attorneys General of Arizona, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and the District of Columbia.
Agricultural Labor: DOL Publishes Notice Updating H-2A Meal Charge and Travel Reimbursement Rates
On February 13, 2024, the Department of Labor (DOL) Employment and Training Administration published in the Federal Register a notice (89 FR 10101) updating the allowable meal charges and travel-related subsistence reimbursement rates for H-2A and H-2B programs. Due to a 2.7% increase in food prices during 2023, the notice increases from $15.46 to $15.88 the amount that employers may charge H-2A employees for providing three meals per day, as required by law. Additionally, the notice allows H-2A and H-2B employees to claim up to a maximum of $59 per day for lodging and meals “incurred . . . during travel to the place of employment from the place from which the worker has come to work for the employer . . . [or] departed to work for the employer, as well as any such costs . . . to obtain[] a visa.” The notice was effective upon publication.
Agricultural Data: USDA Publishes 2022 Census of Agriculture
On February 13, 2024, the U.S. Department of Agriculture’s (USDA) National Agricultural Statistics Service (NASS) published data from the 2022 Census of Agriculture. Also announced by NASS, the census data is “collected directly from producers” every five years. According to the announcement, while the 2022 census “shows a continued decline in the total number of U.S. farms,” it also depicts a “rise in the number of new and beginning (operating 10 or fewer years on any farm) as well as young (under the age of 35) producers.” NASS also published highlight snapshots of U.S. farm producers and farm economics, which show that, in 2022, 3.4 million producers operated 1.9 million farms encompassing 880.1 million acres and produced $543.1 billion in agricultural products.
Agricultural Data: USDA Publishes Agricultural Projections to 2033
On February 14, 2024, the U.S. Department of Agriculture’s (USDA) Economic Research Service (ERS) published its Agricultural Projections to 2033, also known as the Agricultural Baseline Projections. According to USDA, the projections are based on the October 2023 World Agricultural Supply and Demand Estimates (WASDE) report and assume that the Agriculture Improvement Act of 2018 will remain effective. Generally, the report predict that agricultural production and trade remain relatively stable, although it “assumes that no new domestic or external shocks occur during the projection period that would affect underlying global agricultural supply and demand trends” and notes that “[c]hanges in any of these assumptions can significantly affect the projections, and actual conditions will alter the outcomes.”
Nutrition Programs: USDA Secretary Sends Letters to 47 Jurisdictions Requesting Action to Improve SNAP Administration
On February 8, 2024, U.S. Department of Agriculture (USDA) Secretary Tom Vilsack sent letters to the governors of 44 U.S. states and the District of Columbia, Guam, and the Virgin Islands asking them to “take appropriate steps” to ensure that their administration of the Supplemental Nutrition Assistance Program (SNAP) “meets basic Federal requirements” and maintains adequate application processing timeliness rates (APT), payment error rates (PER), and case and procedural error rates (CAPER). Also announced by USDA’s Food and Nutrition Service (FNS), the letters cite each jurisdiction’s APT, PER, and CAPER and advises the governors that they “should consider all options available under current law,” including “assigning the longest certification periods allowed for the household or streamlining verification” to meet the program’s goals. Letters were sent to governors of all U.S. states except Alabama, Idaho, South Dakota, Vermont, Wisconsin, and Wyoming.
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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:
- Feb. 23, 2024, Understanding Clean & Green Separations and Split-offs: Leasing, Subdividing, or Selling Enrolled Land
- Mar. 22, 2024, Understanding the Basics of Organic Production
- Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default
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:
- Apr. 16, 2024, Overview of U.S. State Milk Pricing Systems
On-Farm Negligence, Gross Negligence & Liability Issues
- Mar. 2, 2024, 9:00–2:00pm. Staff Attorney Brook Duer presents at Eastern Snyder County’s Child Safety Awareness Meeting.
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.
Legal Considerations for Agritourism Operations
- Mar. 6, 2024, 8:30am–1:00pm. Staff Attorney Jackie Schweichler presents at “Agritourism and On-Farm Markets & Events: Planning for Your Success in 2024.”
Legal and Tax Structures for Business and Land Ownership
- Mar. 9, 2024. Staff Attorney Brook Duer presents at “Beginning Farmer Intensive: Land, Law, and Transition.”
Exploring Succession and Estate Planning: A Panel Discussion
- Mar. 15, 2024. 2:00–4:00pm. Staff Attorney Brook Duer presents “Pros and Cons of Various Transition Methods/Tools” with the panel.
Podcasts:
Agricultural Law Podcast
Dicamba Registrations Vacated Again (Feb. 19, 2024)
California’s Proposition 12 Finally Fully Effective (Feb. 13, 2024)
EPA Proposes More Stringent Meat and Poultry Processing Plant Effluent Discharge Standards (Jan. 24, 2024)
EPA’s Response to Federal Court’s Decision on Chlorpyrifos Use (Jan. 19, 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).
Resources of Interest:
Nat’l Agric. Law Ctr., U.S. Department of Labor Finalizes Independent Contractor Rule, Samantha Capaldo (Feb. 8, 2024)
Nat’l Agric. Law Ctr., Supreme Court of Nevada Issues Important Decision Impacting Groundwater Rights, Samantha Capaldo (Feb. 7, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, Current Agricultural Use Value (CAUV) Increases in 2023 Impact Property Taxes on Farmland in 2024, Barry Ward (Feb. 7, 2024)
Nat’l Agric. Law Ctr., Who Owns the Ag Land? Congress Considering Changes to the Federal Reporting Regime, Micah Brown (Feb. 6, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, Long-Term Care and the Farm Webinar Available, Robert Moore (Feb. 5, 2024)
Tex. A&M Agric. Law Blog, Lawsuit Challenges Texas Animal Health Commission Authority over White-Tailed Deer, Tiffany Dowell Lashmet (Feb. 5, 2024)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
Statement from Agriculture Secretary Tom Vilsack on the 2024 Farm Sector Income Forecast (Feb. 7, 2024)
USDA Announces $270 Million Awarded to Build Food Supply Chain Resiliency (Feb. 7, 2024)
U.S. Department of Agriculture Announces Key Staff Appointments (Feb. 7, 2024)
USDA Announces 2024 Agricultural Export Market Challenge Participants (Feb. 5, 2024)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
EPA finalizes changes to strengthen implementation of Toxic Substances Control Act, improve chemical reviews (Feb. 8, 2024)
EPA finalizes stronger standards for harmful soot pollution, significantly increasing health and clean air protections for families, workers, and communities (Feb. 7, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Partners with Iowa to Award Over $3 Million to Strengthen Food Supply Chain Infrastructure (Feb. 9, 2024)
USDA Partners with Kentucky to Award Over $7 Million to Strengthen Food Supply Chain Infrastructure (Feb. 7, 2024)
USDA Announces $270 Million Awarded to Build Food Supply Chain Resiliency (Feb. 7, 2024)
Agricultural Research Service (ARS)
USDA Develops Cold-Hardiness Kiwifruit for Immediate Release to Public (Feb. 5, 2024)
Animal and Plant Health Inspection Service (APHIS)
USDA Provides more than $70 Million to Protect our Food Supply and Natural Resources from Invasive Pests and Diseases in 2024 (Feb. 6, 2024)
Economic Research Service (ERS)
Selected Charts from Ag and Food Statistics: Charting the Essentials, 2024 (Feb. 8, 2024)
Amber Waves: 2023 Year in Review (Feb. 8, 2024)
Farm Service Agency (FSA)
USDA to Issue $306 Million in Final Payments to Producers Impacted by 2020 and 2021 Natural Disasters (Feb. 6, 2024)
Food and Nutrition Service (FNS)
Agriculture Secretary Calls on States to Take Action to Improve SNAP Administration for Families in Need (Feb. 8, 2024)
Foreign Agricultural Service (FAS)
USDA Identifies 2024 McGovern-Dole Priority Countries (Feb. 6, 2024)
National Institute of Food and Agriculture
NIFA Invests $5M in NSF Collaboration to Increase Food and Nutrition Security (Feb. 6, 2024)
Natural Resources Conservation Service (NRCS)
USDA Partners with Louisiana to Award Over $4.6 Million to Strengthen Food Supply Chain Infrastructure (Feb. 7, 2024)
Deadline Announced for EQIP’s Organic Transition Initiative (Feb. 6, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 5-9, 2024):
Agricultural Marketing Service
89 FR 8398 Notice—Comment Period: “Meeting of the National Organic Standards Board” (Feb. 7, 2024)
Agriculture Department
89 FR 8142 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Conservation Practice Adoption Motivations Survey—Substantive Change]” (Feb. 6, 2024)
89 FR 8142 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Importation of Live Swine, Pork and Pork Products, and Swine Semen from the European Union] (Feb. 6, 2024)
Environmental Protection Agency
89 FR 9103 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (December 2023)” {Feb. 9, 2024)
89 FR 9634 Proposed Rule: “Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions” (Feb. 9, 2024)
89 FR 8675 Notice: “Pesticides; Flexible Packaging; Child Resistant Packaging Requirements; Notice of Availability” (Feb. 8, 2024)
89 FR 8606 Proposed Rule—Comment Period: “Listing of Specific PFAS as Hazardous Constituents” (Feb. 8, 2024)
89 FR 8425 Notice: “Integrated Science Assessment for Lead” (Feb. 7, 2024)
89 FR 8198 Notice—Comment Period: “Agency Information Collection Activities; Proposed Information Collection Request; Comment Request; Greenhouse Gas Reduction Fund Accomplishment Reporting” (Feb. 6, 2024)
89 FR 7704 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (December 2023)” (Feb. 5, 2024)
89 FR 7625 Rule: “Chlorpyrifos; Reinstatement of Tolerances” (Feb. 5, 2024)
Farm Service Agency
89 FR 7682 Notice—Comment Period: “Information Collection Request; Volunteer Program” (Feb. 5, 2024)
Food Safety and Inspection Service
89 FR 8399 Notice—Comment Period: “Notice of Request To Renew an Approved Information Collection: Mechanically Tenderized Beef Products” (Feb. 7, 2024)
U.S. Codex Office
89 FR 9116 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Contaminants in Foods” (Feb. 9, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.7294 “To amend the Agricultural Credit Act of 1978 to authorize the Secretary of Agriculture to carry out emergency watershed protection measures on National Forest System land, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 7, 2024)
H.R.7285 “To amend the Food and Nutrition Act of 2008 to increase the Federal cost share for the supplemental nutrition assistance program administration to improve staffing and retention.” Referred to the House Committee on Agriculture. (Feb. 7, 2024)
H.R.7284 “No IRIS Act of 2024” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Agriculture. (Feb. 7, 2024)
H.R.7241 “Rural Water System Disaster Preparedness and Assistance Act” Referred to the House Committee on Agriculture. (Feb. 5, 2024)
H.R.7229 “WALL Act of 2024” Referred to the Committee on Ways and Means, and in addition to the Committees on Homeland Security, Energy and Commerce, Financial Services, the Judiciary, Agriculture, and Appropriations. (Feb. 5, 2024)
H.R.7221 “Wildlife Corridors and USDA Conservation Programs Act of 2024” Referred to the Committee on Agriculture. (Feb. 5, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.3760 “A bill to amend the Agricultural Credit Act of 1978 to authorize the Secretary of Agriculture to carry out emergency watershed protection measures on National Forest System land, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 7, 2024)
S.3761 “A bill to amend the Food, Conservation, and Energy Act of 2008 to reauthorize the Farm and Ranch Stress Assistance Network and establish a national agricultural crisis hotline, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 7, 2024)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
DEP Enforcement Actions Lead to Appointment of a Receiver to Manage East Dunkard Water Authority (Feb. 8, 2024)
DEP Begins Emergency Project to Plug Abandoned Gas Wells in Scott Township, Allegheny County (Feb. 5, 2024)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 6—Feb. 10, 2024):
Department of Environmental Protection
54 Pa.B. 621 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”
Fish and Boat Commission
54 Pa.B. 700 Notice: “Changes to List of Class A Wild Trout Waters”
54 Pa.B. 700 Notice: “Classification of Wild Trout Streams; Additions and Revisions; January 2024”
State Conservation Commission
54 Pa.B. 703 Notice: “Access to Nutrient Management Plans, under Review and Acted upon by the State Conservation Commission, for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Nutrient Management Program”
54 Pa.B. 704 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program”
54 Pa.B. 704 Noitce: “ccess to Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program”
PENNSYLVANIA LEGISLATURE
HB 2022 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, further providing for well permits.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY. (Feb. 9, 2024)
HB 316 “A Resolution designating September 18, 2024, as “State Grange Day” in Pennsylvania and celebrating the Pennsylvania State Grange on its 151st anniversary.” Referred to AGRICULTURE AND RURAL AFFAIRS. (Feb. 7, 2024)
SB 1058 “An Act providing for the abrogation of regulations relating to the CO2 Budget Trading Program.” Second consideration. (Feb. 6, 2024)
SB 832 “An Act amending Title 71 (State Government) of the Pennsylvania Consolidated Statutes, in boards and offices, establishing the Independent Energy Office.” Re-reported as committed. (Feb. 5, 2024)
Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney
