February 27, 2023

Agricultural Law Weekly Review—February 27, 2023

Agricultural Labor: D.C. Court Declines to Enjoin 2022 H-2A Regulation Revisions 🌾
On February 16, 2023, the U.S. District Court for the District of Columbia issued a memorandum opinion denying a preliminary injunction against the November 14, 2022, H-2A final rule. National Council of Agricultural Employers v. United States Department of Labor, No:1:22-cv-03569-RC. The case alleges that the Biden Administration’s 2021 Inauguration Day withdrawal of the Trump Administration’s previous version of the H-2A final rule and publication of its own version on October 12, 2022, violated the Administrative Procedures Act (APA). The underlying legal challenge remains pending.

Antitrust: DOJ Files Opposition to John Deere’s Motion to Dismiss in ‘Right to Repair’ Antitrust Case
On February 14, 2023, the U.S. Department of Justice (DOJ) filed a statement of interest in a “right to repair” case against John Deere pending in the U.S. District Court for the Northern District of Illinois. In re: Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-50188.  In the statement, DOJ asserted the United States’ interest in the case as “promoting a correct interpretation of the federal antitrust laws” and opposed John Deere’s motion to dismiss the case, stating that neither U.S. Supreme Court nor Circuit Court of Appeals precedent supports John Deere’s argument that the plaintiffs must allege that the company “deceived or surprised” customers regarding its repair policies to prevail in their claim.

Agricultural Labor: Meatpacking Plant Sanitation Contractor Pays $1.5M Fine for Child Labor Violations
On February 17, 2023, the U.S. Department of Labor (DOL) announced that Packers Sanitation Services Inc. LTD (Packers) has paid $1.5 million in fines resulting from child labor violations under the Fair Labor Standards Act (FLSA). Walsh v. Packers Sanitation Services, Inc., No:4:22-cv-03246. Following an investigation, DOL filed a complaint in the U.S. District Court of Nebraska alleging that Packers employed at least 102 children ages 13–17 at processing facilities in eight states in hazardous occupations, working night shifts and cleaning equipment with hazardous chemicals. The fine totals $15,138 per child, the maximum amount allowed under the law. Previously, Packers agreed to take steps to ensure future compliance with the FSLA according to a consent order and judgment entered by the U.S. District Court of Nebraska on December 6, 2022. See also, ALWR—Nov. 18, 2022, “Federal Court Issues Temporary Restraining Order Against Packers Sanitation.”

Pesticides: EPA Announces June Dicamba Cut-Off Dates for Four States
On February 16, 2023, the U.S. Environmental Protection Agency (EPA) announced additional labeling restrictions for over-the-top dicamba use. According to the announcement, the new restrictions prohibit dicamba use in Iowa, Illinois, and Indiana after June 12 and in South Dakota after June 20. The restrictions were requested by various product registrants and, in South Dakota, requested by the state.

Food Safety: 2022 Food Code Allows Food Donation from Retail Food Establishments
On February 14, 2023, the U.S. Food and Drug Administration (FDA) issued a constituent update stating that the agency’s recently released 2022 Food Code “clarify[ies] . . . that food donations from retail food establishments are acceptable as long as proper food safety practices are followed.” Specifically, the 2022 Food Code added two new sections addressing food donations:

  • Subpart 3-204, “Food Donation,” under Chapter 3, “Food,” Part 3-2 “Sources, Specifications, and Original Containers and Records,” and
  • § 3-204.10, “Food Donation,” which outlines when an establishment may offer food for donation and contains new specified public health reasons for the section to “address food donation compliance with law and Code applicability.”

Pesticides/Herbicides: EPA Proposes New Rule for Pesticide Application Exclusion Zone
On February 16, 2023, the Environmental Protection Agency (EPA) published a proposed rule in the Federal Register amending the pesticide Application Exclusion Zone (AEZ) requirements by returning largely to the 2015 Agricultural Worker Protection Standards (WPS) from those contained in a 2020 final rule. The proposed rule reduces the AEZ, the area surrounding a pesticide application, from 100 feet to 25 feet for medium or larger sprays applied from a height of greater than 12 inches and, for fine sprays, increases the AEZ to 100 feet. The proposed rule retains aspects of the 2020 regulation on the 1) resumption of suspended pesticide application once individuals have left the AEZ; and 2) immediate family exemption, which allows farm owners and their immediate family to remain within an AEZ if in an enclosed home during pesticide application. The proposed rule is available for public comment until April 17, 2023.

Conservation Programs: USDA Announces Signups for 2023 Conservation Reserve Program
On February 16, 2023, the U.S. Department of Agriculture (USDA) Foreign Agricultural Service (FAS) announced the application opening for the Conservation Reserve Program (CRP) from February 27 through April 7, 2023. Interested landowners should contact their local USDA Service Center to apply while landowners with expiring CRP agreements can utilize the Transition Incentives Program (TIP) to reenroll.

Crop Insurance: The GAO Publishes a Report Recommending Tying Crop Insurance Payments to Climate Resiliency
On February 16, 2023, the U.S. Government Accountability Office (GAO) published a report titled, “Climate Change: Options to Enhance the Resilience of Agricultural Producers and Reduce Federal Fiscal Exposure.” In compiling the report, the GAO was asked to review federal efforts to enhance the climate resilience of agricultural producers to reduce the risks from climate disasters on federal crop insurance programs, which, in 2021, covered $136.6 billion in commodities. The GAO made 13 recommendations to the U.S. Department of Agriculture (USDA)—including tying climate-resilient practices to crop insurance rates and requiring such practices to claim crop insurance premium subsidies, which would require the Federal Crop Insurance Corporation (FCIC) and the Risk Management Agency (RMA) to determine whether such requirements can be introduced under the Federal Crop Insurance Act (FCIA).

 

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CENTER PROGRAMS & RESOURCES

Events:

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Next in the series:

  • March 24, 2023, noon–1 pm (EST): Understanding the Basics of Farm Animal Handling & Confinement Laws
  • April 28, 2023, noon–1 pm (EST): Understanding the Basics of Agricultural Conservation Easements
  • May 19, 2023, noon–1 pm (EST): Understanding the Basics of Landowner Immunity Statutes

Protecting Your Farm-Based Food Business: Understanding Product Liability. Free seminar conducted live at Horizon Farm Credit, Mt. Joy, PA, with interactive live simulcast at three other Horizon Farm Credit locations (Chambersburg, New Stanton, Shoemakersville), and a virtual attendance option. Co-sponsored with the Pennsylvania Small Business Development Center’s Agriculture Center for Excellence and Horizon Farm Credit.

  • March 15, 2023, 10 am–2 pm (EST). Register.

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.

Legal Planning for Specialty Crop Producers. A free six-webinar series is available for on-demand viewing by registering.

Agricultural Law Podcast:

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

Resources of Interest:

Academic & Government Resources

Media and Industry Resources

Events of Interest

  • U.S. Dept. of Labor Wage & Hour Division, 2023 Virtual Agricultural Seminar, March 7, 2023, 10 am–5:30 pm (ET). Free live webinar containing 7.5 hours of education on federal labor laws as applied to agriculture, including H-2A visa program rules, filing the H-2A petition, USCIS’s role in the H-2A process, Fair Labor Standards Act requirements, child labor rules, Migrant and Seasonal Agricultural Worker Protection Act requirements, OSHA field sanitation standards and worker’s safety, and farm labor contractors.  Register.

Agriculture-Related Legislative Hearings and Reports:  

Penn State News, Research, and Resources:

Food Insecurity May Increase Cognitive Decline in Older Adults (Feb. 17, 2023).

Pa. Private Forest Landowners Want to Use Controlled Fire to Manage their Woods (Feb. 16, 2023).

New Grant Will Help Empower Small Farms with Sustainable Practices (Feb. 14, 2023).

PSU Ext., Carl T. Shaffer Recognized as State Corn Yield Winner (Feb. 14, 2023).

PSU Ext., East Palestine Train Derailment Hotlines (Feb. 14, 2023).

PSU Ext., Save the Date! Forest Health, Insect, and Disease Briefing (Feb. 14, 2023).

PSU Ext., Warm Winter Weather and Weeds (Feb. 14, 2023).

PSU Ext., 2022 Update of the Pennsylvania State Water Plan Complete (Feb. 13, 2023).

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE 

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Secretary Vilsack Awards Employees for Exceptional Service Supporting, Advancing U.S. Agriculture (Feb. 16, 2023).

Biden-Harris Administration Invests $63 Million in High-Speed Internet for People in Rural Illinois, Michigan, Minnesota and Mississippi (Feb. 16, 2023).

Statement by Agriculture Secretary Tom Vilsack on the Nomination of Under Secretary Xochitl Torres Small to Serve as Deputy Secretary of USDA (Feb. 15, 2023).

Biden-Harris Administration Provides $262 Million to Improve Access to Jobs, Health Care and Infrastructure Across the Rural Partners Network (Feb. 15, 2023).

Former Vice President Al Gore Announced as Opening Keynote Speaker at AIM for Climate Summit (Feb. 14, 2023).

USDA Unveils Strategic Approach and New Investments for Addressing Water Supply Challenges for Producers in the West (Feb. 13, 2023).

Biden-Harris Administration Announces Availability of Inflation Reduction Act Funding for Climate-Smart Agriculture Nationwide (Feb. 13, 2023).

USDA Announces Plenary Speakers for the 2023 Agricultural Outlook Forum (Feb. 13, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Region 8 announces March 8 Virtual Listening Session on Strategic Roadmap for PFAS contaminants (Feb. 16, 2023).

EPA Mid-Atlantic Region schedules March 2 virtual listening session on PFAS Strategic Roadmap (Feb. 16, 2023).

EPA Proposes Rule to Protect Farmworkers and Pesticide Handlers from Exposures (Feb. 16, 2023).

MEDIA ADVISORY: EPA Region 4 and USDA GA Farm Service Agency Convene Roundtable Discussion with Underserved and Underrepresented Producers (Feb. 14, 2023).

Statement from Regional Administrator Debra Shore on the East Palestine Train Derailment (Feb. 14, 2023).

EPA Region 7 Announces Virtual Listening Session on PFAS Strategic Roadmap (Feb. 13, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Files Action Against Frozen Food Development Inc. in Pennsylvania for Alleged PACA Violations (Feb. 16, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Indiana (Feb. 15, 2023).

USDA Removing Barriers to Becoming a USDA Foods Vendor with a New, Easier Financial Assessment Process (Feb. 15, 2023).

USDA Files Action Against Vantaggio Farming Corporation in California for Alleged PACA Violations (Feb. 14, 2023).

USDA Announces $133 Million in Grant Funding Available, including American Rescue Plan funds, through the Local Agriculture Market Program to Expand Local Food Systems (Feb. 14, 2023).

Agricultural Research Service (ARS)

DNA Research Finds Low Genetic Diversity Among U.S. Honey Bees (Feb. 15, 2023).

Animal and Plant Health Inspection Agency (APHIS)

USDA Announces Final Rule to Amend Animal Welfare Regulations to Include Birds Not Bred for Use in Research (Feb. 17, 2023).

USDA Partners with the National Association of State Departments of Agriculture and the Pork Industry to Further Protect the U.S. from African Swine Fever (Feb. 15, 2023).

APHIS Posts Investigative and Enforcement Services Annual Enforcement Data Reports (Feb. 15, 2023).

Solutions Through Science: Finding and Fighting Antimicrobial Resistance in Animals and the Environment (Feb. 13, 2023).

Farm Service Agency (FAS)

USDA Announces Conservation Reserve Program Signup for 2023 (Feb. 16, 2023).

Food and Nutrition Service (FNS)

USDA Proposes to Streamline and Modernize WIC and Offer Online Shopping to Participants (Feb. 17, 2023).

FNS, NIFA Partner to Improve WIC Participant Outcomes by Investing in a Strong and Diverse WIC Workforce (Feb. 16, 2023).

FACT SHEET: USDA Support for Food Banks and the Emergency Food System (Feb. 15, 2023).

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations (Feb. 17, 2023).

Export Sales to Unknown Destinations (Feb. 16, 2023).

Export Sales to Mexico (Feb. 15, 2023).

Former Vice President Gore to Keynote AIM for Climate Summit (Feb. 14, 2023).

Spreading Love Across the Globe with U.S. Foods (Feb. 14, 2023).

USDA Accepting Applications for Trade Mission to Japan (Feb. 13, 2023).

 National Agricultural Statistics Service (NASS)

Still time to respond to the 2022 Census of Agriculture, USDA to follow up with producers who have not yet responded (Feb. 15, 2023).

Still time to respond to the 2022 Puerto Rico Census of Agriculture, USDA to follow-up with producers who have not yet responded (Feb. 15, 2023).

National Institute of Food and Agriculture (NIFA)

Sowing the Seeds to Educate and Train the Next Generation of Maine’s Aquaculture Workforce (Feb. 17, 2023).

USDA 1890 National Scholar Program Recipient Reflects on Experience at NIFA (Feb. 16, 2023).

Market Research to Guide U.S. Aquaculture Recovery from the Pandemic and Shutdowns (Feb. 16, 2023).

Using Genomics Selection to Improve Fillet Yield and Quality in Rainbow Trout (Feb. 15, 2023).

State of Success: Wisconsin (Feb. 14, 2023).

NIFA Leadership Visits Florida Research Center (Feb. 14, 2023).

USDA NIFA-Funded Aquaculture Projects Featured at Aquaculture America 2023 (Feb. 14, 2023).

USDA NIFA-Funded Aquaculture Projects Featured at Aquaculture America 2023 (Feb. 14, 2023).

Extension Pioneer: Thomas Monroe Campbell (Feb. 13, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 13–17, 2022):            

Agricultural Marketing Service

88 FR 9426 Notice—Public Comment: “Meeting of the National Organic Standards Board” (Feb. 14, 2023).

Agriculture

88 FR 10281 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: North Carolina Labor Survey].” (Feb. 17, 2023).

88 FR 10281 Notice: “Submission for OMB Review; Comment Request [Forest Service: Financial Information Security Request Form.]” (Feb. 17, 2023).

88 FR 10282 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Animal Welfare.]” (Feb. 17, 2023).

88 FR 10075 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Understanding the Relationship Between Poverty, Well-Being, and Food Security.]” (Feb. 16, 2023).

Animal and Plant Health Inspection Service

88 FR 9852 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Export Health Certificate for Animal Products” (Feb. 15, 2023).

88 FR 9855 Notice: “Notice of Decision To Authorize the Importation of Fresh Mango (Mangifera indica L.) Fruit From Grenada Into the United States” (Feb. 15, 2023).

88 FR 9854 Notice: “Notice of Decision to Authorize the Importation of Fresh Oha Leaves (Pterocarpus mildbraedii) From Nigeria Into the Continental United States” (Feb. 15, 2023).

88 FR 9853 Notice: “Addition of the Kingdom of Thailand and the Republic of North Macedonia to the List of Regions Affected With African Swine Fever” (Feb. 15, 2023).

Environmental Protection Agency

88 FR 10242 Final Rule: “Penthiopyrad; Pesticide Tolerances” (Feb. 17, 2023).

88 FR 9753 Final Rule: “Pydiflumetofen; Pesticide Tolerances” (Feb. 15, 2023).

88 FR 9403 Final Rule: “Glycerides, Soya Mono- and Di-, Ethoxylated; Exemption From the Requirement of a Tolerance” (Feb. 14, 2023).

88 FR 9516 Notice—Public Comment: “Proposed Information Collection Request; Comment Request; Application for Registration and Pesticide Report for Pesticide-Producing and Device-Producing Establishments” (Feb. 14, 2023).

Farm Service Agency

88 FR 9855 Notice—Public Comment: “Information Collection Request; Inventory Property Management” (Feb. 15, 2023).

International Trade Administration

88 FR 10088 Notice: “Certain Lemon Juice From Brazil and the Republic of South Africa: Antidumping Duty Orders” (Feb. 16, 2023).

88 FR 9861 Notice: “Xanthan Gum From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2020-2021″ (Feb. 15, 2023).

National Agricultural Statistics Service

88 FR 10077 Notice—Public Comment: “Notice of Intent To Seek Reinstatement of an Information Collection” (Feb. 16, 2023).

88 FR 10078 Notice—Public Comment: “Notice of Intent To Seek Approval To Reinstate an Information Collection” (Feb. 16, 2023).

Natural Resources Conservation Service

88 FR 10079 Notice—Public Comment: “Notice of Intent To Prepare an Environmental Impact Statement for the Graveyard Wash Flood Retarding Structure Assessment, Graham County, Arizona” (Feb. 16, 2023).

88 FR 10080 Notice: Response to Western Water Quantity (WWQ) Listening Session” (Feb. 16, 2023).

Rural Utilities Service

88 FR 10237 Final Rule: “Electric Program Streamlining and Improvement” (Feb. 17, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.1020 “To amend the Agricultural Act of 2014 to include certain farm-raised fish losses under the livestock indemnity payment program, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 14, 2023).

H.R.989 “To remove legal impediments preventing construction of a border barrier along the international border between the United States and Mexico, improve the construction requirements for such barrier, make previously appropriated funds available for constructing such barrier until expended, and for other purposes.” Referred to the Committee on Homeland Security, and in addition to the Committees on Natural Resources, Energy and Commerce, Transportation and Infrastructure, Armed Services, Agriculture, Small Business, the Judiciary, and Oversight and Accountability. (Feb. 14, 2023).

H.R.204 “Drug Testing for Welfare Recipients Act.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Feb. 13, 2023).

H.R.200 “FIR Act.” Referred to the Subcommittee on Forestry. (Feb. 13, 2023).

H.R.189 “Action Versus No Action Act.” Referred to the Subcommittee on Forestry. (Feb. 13, 2023).

H.R.178 “Public Land Renewable Energy Development Act of 2023.” Referred to the Subcommittee on Forestry. (Feb. 13, 2023).

H.R.172 “Acre In, Acre Out Act.” Referred to the Subcommittee on Forestry. (Feb. 13, 2023).

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

S.502 “A bill to amend the Animal Health Protection Act with respect to the importation of live dogs, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 16, 2023).

S.497 “A bill to amend the Food and Nutrition Act of 2008 to exclude a basic allowance for housing from income for purposes of eligibility for the supplemental nutrition assistance program.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 16, 2023).

S.480 “A bill to require the establishment of a working group to evaluate the threat to food safety and animal health posed by beef imported from Brazil, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 16, 2023).

S.433 “A bill to require the Secretary of Agriculture to convene a blue ribbon panel to review the forest inventory and analysis program of the Forest Service, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 15, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Agriculture Secretary Provides Update On Animal Health Concerns Following East Palestine Train Derailment (Feb. 17, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 7—Feb. 18, 2023): 

Department of Agriculture

53 Pa.B. 945 Notice: “Standards and Requirements for the Agricultural Business Development Center Farm Vitality Planning Grant Program.”

Department of Environmental Protection 

53 Pa.B. 948 Notice: “Applications, Actions and Special Notices.”

Milk Marketing Board

53 Pa.B. 1037 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 3.”

53 Pa.B. 1038 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 5.”

53 Pa.B. 1039 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 6.”

Susquehanna River Basin Commission

53 Pa.B. 1042 Notice: “Commission Meeting.”

53 Pa.B. 1042 Notice: “Grandfathering Registration Notice.”

53 Pa.B. 1042 Notice: “Projects Approved for Consumptive Uses of Water.”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney
Brook Duer—Staff Attorney