January 18, 2024

Agricultural Law Weekly Review—January 18, 2024

Ag-Gag Statutes: Eighth Circuit Reverses Injunctions for Two Iowa ‘Ag-Gag’ Laws 🌾
On January 8, 2024, the U.S. Court of Appeals for the Eighth Circuit issued two opinions in separate cases reversing injunctions against two so-called Iowa “ag-gag” laws for First Amendment violations and remanding each case. Animal Legal Defense Fund v. Reynolds, No. 22-1830 (4:19-cv-00124, S.D. Iowa, filed Apr. 19, 2019) and Animal Legal Defense Fund v. Reynolds, No. 22-3464 (4:21-cv-00231, S.D. Iowa, filed Aug. 10, 2021). In the first opinion (22-1830), the plaintiffs had challenged Iowa’s “Agricultural Production Facility Trespass” law (Iowa Code § 717A.3B), which penalizes one who “uses deception” to obtain “access” or “employment” in an “agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility’s operations . . . .” The court determined that the “intent” provision of the law serves to regulate conduct and, as such, “is not a viewpoint-based restriction on speech, but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm.” The court noted that “[i]f a person uses deception to gain employment with intent to harm a facility, the offender would be liable for deceptively praising the facility (‘I love the work you do, and I want to support it!’) or deceptively criticizing the facility (‘This facility is poorly managed, and I will help increase profits.’),” and stated, “The statute does not prefer laudatory lies over critical falsehoods.” In the second opinion (22-3464), the challenged law (Iowa Code § 727.8A) establishes a criminal offense for “[a] person committing a trespass . . . who knowingly places or uses a camera or electronic surveillance device . . . on the trespassed property.” The court determined that, “[b]ecause the Act’s restrictions on the use of a camera only apply to situations when there has first been an unlawful trespass, the Act does not burden substantially more speech than is necessary to further the State’s legitimate interests.” The court noted, “Indeed, our court has upheld government restrictions on videotaping even when the public has a general right to access the venue or event to be recorded . . . so it follows that the State’s interests in preventing recording are even stronger when the public has no right to access the venue in the first place.” The court further stated, “Without a doubt, trespassing is a legally cognizable injury because it harms the privacy and property interests of property owners and other lawfully-present persons. Trespassers exacerbate that harm when they use a camera while committing their crime. The Act is tailored to target that harm and redress that evil.” For more on ag-gag laws, see the Center’s Ag Gag Statutes Issue Tracker.

Agricultural Labor: Department of Labor Publishes Final Rule: ‘Employee or Independent Contractor Classification Under the Fair Labor Standards Act’
On January 10, 2024, the U.S. Department of Labor (DOL) Wage and Hour Division published in the Federal Register a final rule (89 FR 1638), titled “Employee or Independent Contractor Classification Under the Fair Labor Standards Act (FLSA),” which rescinds and replaces the 2021 rule. Also announced by DOL, the rule uses the “term ‘independent contractor’ [to] refer[] to workers who, as a matter of economic reality, are not economically dependent on an employer for work and are in business for themselves.” Instead of the “core factors” identified in the 2021 rule, “the final rule returns to a totality-of-the-circumstances analysis of the economic reality test” that uses six factors that “do not have a predetermined weight and are considered in view of the economic reality of the whole activity”: (1) “any opportunity for profit or loss a worker might have,” (2) “the financial stake and nature of any resources a worker has invested in the work,” (3) “the degree of permanence of the work relationship,” (4) “the degree of control an employer has over the person’s work,” (5) “whether the work the person does is essential to the employer’s business,” and (6) “a factor regarding the worker’s skill and initiative.” The final rule becomes effective March 11, 2024. For more on FLSA, see materials & recording from Understanding the Basics of the Fair Labor Standards Act.

Agricultural Labor: 56-Hour Overtime Threshold for New York Farm Workers Effective January 1, 2024
On January 1, 2024, N.Y. Comp. Codes R. & Regs. tit. 12 § 190-2.4(b) became effective, establishing an overtime threshold of 56 hours per week for agricultural workers in New York state. The final regulations, adopted February 22, 2023 from recommendations by the state’s Farm Laborers Wage Board, phase in four-hour overtime threshold reductions for farm workers every two years until establishing a 40-hour workweek in 2032. For background, see ALWR—Oct. 7, 2022, “New York Labor Commissioner Issues Order Reducing Farm Worker Overtime Threshold from 60 to 40 Hours.”

Pesticides/Herbicides: EPA Issues Advisory Affirming Pesticide Use for Beehive Mite Control Must Comply with Label
On January 8, 2024, the U.S. Environmental Protection Agency (EPA) announced that the agency “had recently learned that beekeepers may be using products containing pesticide active ingredients (e.g., oxalic acid, formic acid, amitraz, and thymol) that are not registered pesticides to control Varroa mites in bee colonies.”  In response, EPA issued an advisory to affirm (1) that the “use of registered pesticides must comply with labeling requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),” (2) “that pesticide residues in or on food derived from beehives (e.g., honey, comb, wax, propolis, royal jelly, pollen) must comply with any federal tolerances under FFDCA [the Federal Food, Drug, and Cosmetic Act],” and (3) “that use of unregistered pesticides to control varroa mites cannot extend beyond personal use.” EPA adds that individual states may impose “more restrictive . . . requirements that must also be followed.” According to the announcement, “EPA has registered two new Varroa mite control products (i.e., Varroxsan and Ex-Ox tablets) containing oxalic acid as the active ingredient” that, the agency states, “allow[] for easier application of oxalic acid, and in the case of Varroxsan, a slower release and longer acting application of oxalic acid in the honey bee colony.” For more on pesticides, see materials & recording from Understanding the Basics of Pesticides.

Air Quality: EPA Accepting Comments Until February 15 on EPCRA Animal Waste Air Emission Reporting Requirements
On November 17, 2023, the U.S. Environmental Protection Agency (EPA) published in the Federal Register an advance notice of proposed rulemaking (ANPRM) (88 FR 80222) seeking information regarding “the potential development of regulations to reinstate the reporting of animal waste air emissions at farms under the Emergency Planning and Community Right-to-Know Act (EPCRA)” (EPA-HQ-OLEM-2023-0142-0001). According to the ANPRM, the agency requests comments from five information categories: (1) “health impacts,” (2) “implementation challenges,” (3) “costs and benefits,” (4) “small farm definition and potential reporting exemption,” and (5) “national report on animal waste air emissions.” EPA is accepting comments until February 15, 2024. See also ALWR—May 1, 2023, “EPA May Rescind EPCRA Farm Exemption; Conducts Meetings with Stakeholders.” For more on EPCRA, see the Center’s CERCLA/EPCRA Reporting Issue Tracker.

Food Policy: FDA Files Environmental Defense Fund Petition to Remove Four Solvents from Food Additive Regulations
On January 11, 2024, the U.S. Food and Drug Administration (FDA) published in the Federal Register a proposed rule (89 FR 1857) announcing that the agency had filed a petition, submitted by the Environmental Defense Fund, proposing to remove the solvents benzene, ethylene dichloride, methylene chloride, and trichloroethylene from food additive regulations (FDA-2023-F-5684). The proposed rule and petition are open for public comment until March 11, 2024.

Agricultural Labor: District Court Orders Nebraska Processing Company to Pay Overtime, Unpaid Wages for Pre- and Post-Shift Work
On December 19, 2023, the U.S. District Court for the District of Nebraska issued a consent order and judgment permanently enjoining Noah’s Ark Processors, LLC from violating the Fair Labor Standards Act (FLSA) and ordering the company to pay $230,000 in unpaid overtime wages for “duties performed outside the gang time hours and off of the clock.” Su v. Noah’s Ark Processors, No. 8:23-cv-00529. According to the complaint, filed by the U.S. Department of Labor (DOL), the company “required its employees to don and doff personal protective equipment . . . as well as clean equipment . . . before and after their scheduled shifts” but “failed to pay workers for time spent” performing those activities, which “were integral to the work being performed and should have been compensated.” Additionally, DOL states that Noah’s Ark “was aware of the amount of time employees spent performing these pre and post shift activities” and “knew that such uncompensated time regularly caused employees’ working hours to exceed forty hours in a workweek,” but “only paid its employees a specific amount of ‘gang time’ hours each day” for work performed while on the production line. Also announced by DOL on January 8, 2024, the consent order requires Noah’s Ark to make monthly payments of $19,166.67 through December 2024.

Agricultural Labor: Minnesota Attorney General Files Complaint Against Minnesota Dairy Farm, Cites Numerous Wage, Housing Violations
On January 8, 2024, the Minnesota Attorney General (AG) filed a complaint in Minnesota state court against Evergreen Acres Dairy, LLC, its owners, and affiliated entities alleging numerous wage and overtime violations in addition to unlawful pay and rent deductions for “squalid, substandard” housing that “do[es] not meet Minnesota’s standards for habitability.” According to the complaint, “Evergreen systematically underreports the number of hours that employees work on their paystubs, often shaving 12-24 hours from employee paystubs in each two-week pay period,” “frequently refuses to pay employees their outstanding wages once their employment with Evergreen has ceased,” and “gouges its employees by making systematic, unlawful deductions from employee pay without first obtaining written authorization to do so from its employees as required by law.” Also announced by the AG’s office, the AG alleges that the company and its owners “cultivated a workplace culture of fear, violence, and intimidation, and discouraged workers from complaining about their pay and housing through threats of violence and threats to call the police.” The complaint seeks at least $3 million in unpaid wages plus “an additional, equal amount . . . as liquidated damages” and $25,000 “for each separate violation” of Minnesota law.

International Trade: USDA Issues Report on Mexico’s Tariff Exemptions
On January 10, 2024, the U.S. Department of Agriculture’s (USDA) Foreign Agriculture Service (FAS) issued a Global Agricultural Information Network (GAIN) report translating and analyzing two presidential decrees from the Government of Mexico extending tariff exemptions through December 31, 2024 on “basic food basket product” imports, including certain meat, poultry, pork, fish, dairy, fruit, vegetable, and grain products. While the United States receives preferential tariff treatment from Mexico under the United States-Mexico-Canada Agreement (USMCA), Mexico’s tariff exemption extensions are relevant to countries that do not maintain standing trade agreements with Mexico. Also announced by FAS, the agency states that the “extension aims to control food inflation with Mexico’s presidential and governor, state, and legislative elections nearly five months away in June 2024.”

Local Food: USDA Partners with Pennsylvania, Announces $26 Million in Food Systems Infrastructure Grants
On January 10, 2024, the U.S. Department of Agriculture (USDA) announced that the agency had partnered with Pennsylvania to provide $26 million in grant funding for in-state recipients under the Resilient Food Systems Infrastructure Program, administered by the Pennsylvania Department of Agriculture (PDA). PDA states that it will “prioritize projects that pertain to . . . aggregation points . . . includ[ing] food hubs or farmer cooperatives . . . food processing infrastructure . . . [and] storage.” The program will provide Infrastructure Grants from $100,000 to $3 million and Simplified Equipment-Only Grants from $10,000 to $100,000. Applications for Infrastructure Grants opened on January 13, 2024 and will close on March 30, 2024. Applications for the Simplified Equipment-Only Grants will open on April 1, 2024, and close on May 15, 2024. For background, see ALWR—Aug. 21, 2023, “PA Department of Agriculture Seeks Comments on Plans for USDA Funding from Resilient Food Systems Infrastructure Program.”

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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:

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Protecting Your Farm’s Food Business with Product Liability Insurance

  • Feb. 9, 2024, 4:00pm (ET). Staff Attorney Brook Duer presents at PASA 2024 Sustainable Agriculture Conference

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.

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.

Podcasts:

Agricultural Law Podcast

254. Federal Appeals Court Vacates EPA’s 2022 Chlorpyrifos Ban and Orders Reconsideration of Food Tolerances / Uses (Dec. 21, 2023)
253. California’s Mandated Carcinogen Warning on Roundup Is Unconstitutional (Dec. 5, 2023)
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)

Farmland Legal Energy Podcast

162. Introduction to Wind Farms and How Farmers Can Utilize Wind Power (Dec. 22, 2023)

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., State Tax Changes Enacted in 2023 Affecting Agriculture, Samantha Capaldo (Jan. 11, 2024)

Nat’l Agric. Law Ctr., Who Owns the Business? Corporate Transparency Act and Foreign Entity Disclosures, Micah Brown (Jan. 9, 2024)

Ohio St. Univ. Ext. Farm Off. Blog, The Corporate Transparency Act Will Affect Many Farms, Robert Moore (Jan. 11, 2024)

Iowa St. Univ. Ctr. Agric. Law & Tax’n, IRS Unveils Voluntary Disclosure Program for Erroneous ERC Claims, Kristine Tidgren (Jan. 4, 2024)

Agric. Law & Tax’n Blog, 2023 in Review—Ag Law and Tax, Roger A. McEowen (Jan. 2, 2024)

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Written By:
Audry Thompson—Staff Attorney