January 29, 2024

Agricultural Law Weekly Review—January 29, 2024

Water Quality: EPA Publishes Proposed Rule for Meat and Poultry Point Source Effluent Limitations 🌾
On January 23, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a proposed rule (89 FR 4474) to amend Meat and Poultry Products Effluent Guidelines and Standards. Initially announced by EPA on December 15, 2023, the 2024 Proposed Rule offers three options, the first of which EPA claims as the agency’s preferred option. According to the proposed rule, Option 1 “would include new phosphorus limits and revised nitrogen limits for large direct dischargers and new pretreatment standards on certain conventional pollutants for large indirect dischargers.” EPA states that its “preferred option is estimated to cost $232 million annually and reduce pollutant discharges by approximately 100 million pounds per year.” Additionally, EPA published several documents on the proposed rule—a fact sheet, a technical development document, an environmental assessment, a benefit cost analysis, and a regulatory impact analysis. EPA is also conducting two public hearings on the proposed rule: an online-only hearing that was held January 24, 2024, and an in-person hearing in Washington, D.C. on January 31, 2024. The proposed rule is open for comments until March 25, 2024.

Agricultural Labor: DOL Appeals Board Finds H-2A Request Not ‘Temporary or Seasonal,’ Affirms Denial
On January 19, 2024, the U.S. Department of Labor’s (DOL) Board of Alien Labor Certification Appeals issued a decision and order affirming denial of a Florida employer’s labor certification request for six H-2A workers from January 6, 2024–June 6, 2024, for its tree farm operation because the “[e]mployer . . . failed to establish that its need for labor was temporary or seasonal.” In the Matter of Maria I Romero, No. 2024-TLC-00012 (See DOL case search). The employer—which also operates a citrus nursery and had filed previous applications requesting workers for its operations in Lake County from February 12–October 12, 2023 and from November 2, 2023–October 2, 2024—“argu[ed] that the applications were for different worksites with different crops, with open planting of trees as opposed to planting citrus in a greenhouse.” The board determined that the employer’s requests “demonstrate[] that Employer had a need for farm laborers in the same county for more than ten months out of the year,” during which “the workers had most of the same duties.” The board stated, “Despite Employer’s attempt to distinguish between the job duties at its different locations . . . the application all requested workers under the same Standard Occupational Classification Code: 45-2092.00, and title: ‘Farmworkers and Laborers, Crop, Nursery, and Greenhouse’ and they all required similar duties, including spacing plants, taking out plants, pulling weeds, and fertilizing plants. The fact that some of the work is in greenhouses and some of it is outdoors is immaterial given the fact that Employer requires the same type of work for each location, which are each within the same area of intended employment.” For more on the H-2A Program, see the Center’s H-2A Issue Tracker.

Crop Insurance: Federal Court Dismisses Crop Insurance Lawsuit
On January 11, 2023, the U.S. District Court for the Western District of Michigan issued an opinion and order dismissing a lawsuit filed by Boersen Farms against the Great American Insurance Company (GAI), the Federal Crop Insurance Corporation (FCIC), and the U.S. Department of Agriculture (USDA). New Heights Farm I, LLC v. Great American Insurance Company, No. 1:23-cv-00663. The complaint, filed by Boersen in June 2023, alleged breach of contract and numerous other harms after GAI halted its adjustment process for Boersen’s 2019 claims of loss on corn and soybean crops when USDA initiated an investigation into Boersen “for fraud associated with their insurance policies and claims.” The court dismissed all of Boersen’s claims as either unripe or subject to arbitration and determined that FCIC and USDA “have not waived sovereign immunity for any claim Plaintiffs advance” and “are therefore not subject to suit.” For more on crop insurance, see materials and recording from Understanding the Basics of Crop Insurance.

Antitrust: Federal Court Denies Syngenta, Corteva’s Motion to Dismiss, Price-Fixing Litigation to Continue to Trial
On January 12, 2024, the U.S. District Court for the Middle District of North Carolina published a Memorandum Opinion and Order denying Syngenta and Corteva’s motion to dismiss a case brought by the Federal Trade Commission (FTC) and several states alleging price-fixing. Federal Trade Commission v. Syngenta Crop Protection Ag., No. 1:22-cv-00828. The FTC’s complaint, filed in September 2022, alleges that pesticide manufacturers Syngenta and Corteva conspired with distributors to artificially inflate the prices of their products and suppress the sale of competitors’ generic products. The court held that Syngenta and Corteva “have not demonstrated that the widespread failure of generics to enter the market is due to competition on the merits rather than plausibly anticompetitive conduct by [Syngenta and Corteva].” Updates on this litigation can also be found on an FTC-run website.

Dairy Policy: PA Milk Marketing Board Issues Cost Replacement Orders for Areas No. 1, 2, 4
On January 3, 2024, the Pennsylvania Milk Marketing Board (PMMB) issued cost replacement orders for areas No. 1 (Southeastern PA), No. 2 (East Central PA), and No. 4 (South Central PA). Under the new orders, the rates of return for dealers and to retailers remain unchanged from the areas’ respective May and July 2023 orders (No. 1, No. 2, and No. 4): all three areas sustain a 3.5% rate of return for dealers while areas No. 1 and No. 4 maintain a 2.5% rate of return to retailers and area No. 2 maintains a 2.7% rate of return to retailers. See our upcoming webinar on Feb. 13, 2024, Overview of PA Milk Marketing Law (Beyond Over-Order Premium)

Dairy Policy: USDA Climate-Smart Grant Recipient Opens Dairy Manure Management Incentive Program
As of January 22, 2024, climate consulting company Carbon A List has opened applications for its Dairy Manure Management Incentive, part of its Transforming the Farmer to Consumer Supply Chain Project. The project, administered by Carbon A List in partnership with Danone North America, University of Madison-Wisconsin, and Sustainable Environmental Consultants, was the recent recipient of $70 million in U.S. Department of Agriculture (USDA) Partnerships for Climate-Smart Commodities Project grant funding. Carbon A List states that the Dairy Manure Management Incentive program will “compensate farmers for the cost of adopting new climate-smart manure management practices, including storage, handling, and cropland applications that fit their site-specific needs.” The program is available to producers in California, Idaho, Indiana, Kansas, Maryland, Michigan, Minnesota, New Mexico, New York, Ohio, Pennsylvania, Texas, Utah, and Wisconsin. Applications are due March 29, 2024, or February 15, 2024, for the expedited “Early Bird” deadline.

National Agricultural Policy: National Association of State Agriculture Departments Announce 2024 Policy Focus Issues
On January 22, 2024, the National Association of State Departments of Agriculture (NASDA) announced that the organization has chosen five core issues that comprise its 2024 policy focus and published one-page summaries on each: the 2024 Farm Bill, food safety, labor reform, pesticide regulation, and Per-and-poly-fluoroalkyl substances (PFAS). Within those areas, NASDA recommends increased funding for agricultural research, conservation, and state Food Safety Modernization Act programs, among others, and advocates for H-2A reform.

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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:

The Fair Labor Standards Act: What You Need to Know

  • Ja. 31, 2024, 1:30–2:30pm. Staff Attorney Audry Thompson presents at Mid-Atlantic Fruit & Vegetable Convention in Hershey, PA.

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.

Podcasts:

Agricultural Law Podcast

256. EPA Proposes More Stringent Meat and Poultry Processing Plant Effluent Discharge Standards (Jan. 24, 2024).

255. EPA’s Response to Federal Court’s Decision on Chlorpyrifos Use (Jan. 19, 2024)

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)

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:

Southern Ag Today, USDA Finalizes Rule on Organic Livestock and Poultry Standards, Samantha Capaldo (Jan. 26, 2024)

Nat’l Agric. Law Ctr., Challenges to the 2023 U.S. Department of Labor H-2A AEWR Methodology Rule, Samantha Capaldo (Jan. 25, 2024)

Southern Ag Today, Cotton Crop Insurance: Unveiling Regional Differences in Projected and Harvest Prices, Yangxuan Liu (Jan. 24, 2024)

Ohio St. Univ. Ext. Farm Off. Blog, Whenk.l?, Peggy Kirk Hall (Jan. 23, 2024)

Nat’l Agric. Law Ctr., USDA Proposes Updates to Foreign Held Agricultural Land Reporting, Micah Brown (Jan. 23, 2024)

Iowa St. Univ. Ctr. Agric. Law & Tax’n, Tax Bill Impacts Filing Season, Kristine Tidgren (Jan. 23, 2024)

Agric. Law & Tax’n Blog, Top Ten Developments in Agricultural Law and Taxation in 2023 – (Part Five): California’s Proposition 12 and the U.S. Supreme Court, Roger McEowen (Jan. 23, 2024)

Agric. Law & Tax’n Blog, Top Ten Developments in Agricultural Law and Taxation in 2023 – (Part Four): The Employee Retention Credit, Roger McEowen (Jan. 22, 2024)

Tex. A&M Agric. Law Blog, US Supreme Court Considers Texas Takings Case, Tiffany Dowell Lashmet (Jan. 22, 2024)

Agric. Law & Tax’n Blog, Top Ten Developments in Agricultural Law and Taxation in 2023 – (Part One), Roger McEwon (Jan. 12, 2024)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Invests Approximately $11.5 Million in Composting and Food Waste Reduction Projects in 23 States (Jan. 25, 2024)

USDA Urban and Community Forestry Program Award to Spur New Tree Cover Near Urban Congregations (Jan. 23, 2024)

Biden-Harris Administration Invests $207 Million in Clean Energy and Domestic Fertilizer Projects to Strengthen American Farms and Businesses as part of Investing in America Agenda (Jan. 22, 2024)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA moving forward with additional cleanup of residential yards in East Helena (Jan. 26, 2024)

EPA, HUD, DOE Sign Joint Letter Asking Utility Companies to Make Energy and Water Usage Data Available for Multifamily Properties (Jan. 25, 2024)

EPA takes action against Connecticut contractor for failing to follow lead-safe work practices when renovating (Jan. 25, 2024)

EPA penalizes private landowner for violating the Clean Water Act by discharging fill into the South Fork of the Coeur d’Alene River (Jan. 24, 2024)

Biden-Harris Administration announces nearly $11M in grants for wildfire smoke preparedness in community buildings (Jan. 23, 2024)

EPA Settlement Addresses Contractor’s Actions on Renovation TV Show Violating the Lead-Based Paint Rule (Jan. 22, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Settles a Packers and Stockyards Case against Ravenna Auction LLC and Laverne Lettinga (Jan. 26, 2024)

USDA Partners with Illinois to Award Over $5 Million to Strengthen Food Supply Chain Infrastructure (Jan. 22, 2024)

Animal and Plant Health Inspection Service (APHIS)

APHIS Conducts Biennial Review, Proposes to Remove Brucella from Select Agents and Toxins Registration List (Jan. 26, 2024)

Economic Research Service (ERS)

Selected Weekly Fresh-Market Vegetable Movement and Price (Jan. 25, 2024)

Rural-Urban Continuum Codes (Jan. 22, 2024)

Farm Service Agency (FSA)

USDA Invests Approximately $11.5 Million in Composting and Food Waste Reduction Projects in 23 States (Jan. 25, 2024)

USDA Encourages Producers Participating in Conservation Reserve Program to Consider Forest Management Incentive (Jan. 25, 2024)

Forest Service

USDA Forest Service celebrates historic investments in 2023 (Jan. 23, 2024)

National Institute of Food and Agriculture (NIFA)

NIFA Invests $4.45M in Tribal Colleges Research (Jan. 24, 2023)

Research Supporting Midsize Producers (Jan. 23, 2024)

University of Pennsylvania’s School of Veterinary Medicine Scientists Unravel Mystery of How Fish Develop Immunity to Disease (Jan. 22, 2024)

National Resources Conservation Service (NRCS)

Iowa NRCS Announces March 1 Application Cutoff for Organic Transition Initiative (Jan. 26, 2024)

USDA Invests Approximately $11.5 Million in Composting and Food Waste Reduction Projects in 23 States (Jan. 25, 2024)

Egan Slough Jaquette Easement (Jan. 23, 2024)

Application deadline for NRCS EQIP and AMA programs March 29 (Jan. 22, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 22-26, 2024):   

Agricultural Marketing Service

89 FR 4835 Proposed Rule—Comment Period: “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2024-2025 Marketing Year” (Jan. 25, 2024)

89 FR 4165 Rule: “Raisins Produced From Grapes Grown in California; Temporary Suspension of Continuance Referendum” (Jan. 23, 2024)

Agriculture Department

89 FR 4894 Notice: “Submission for OMB Review; Comment Request (Animal and Plant Health Inspection Service: Export Health Certificate for Animal Products)” (Jan. 25, 2024)

89 FR 4590 Notice: “Submission for OMB Review; Comment Request (Food Safety and Inspection Service: Small and Very Small Establishment Outreach Survey)” (Jan. 24, 2024)

Environmental Protection Agency

89 FR 5318 Proposed Rule—Comment Period: “Waste Emissions Charge for Petroleum and Natural Gas Systems” (Jan. 26, 2024)

89 FR 4559 Rule—Comment Period: “Baicalin in Pesticide Formulations; Tolerance Exemption” (Jan. 24, 2024)

89 FR 4606 Notice—Comment Period: “Scientific Integrity Policy Draft for Public Comment” (Jan. 24, 2024)

89 FR 4196 Rule—Comment Period: “Linuron; Pesticide Tolerances” (Jan. 23, 2024)

89 FR 4243 Proposed Rule—Comment Period: “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustors Voluntary Remand Response and 5-Year Review” (Jan. 23, 2024)

89 FR 4474 Proposed Rule—Comment Period: “Clean Water Act Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category” (Jan. 23, 2024)

Rural Business-Cooperative Service

89 FR 4770 Proposed Rule—Comment Period: “Biobased Markets Program” (Jan. 24, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.7076 “To promote innovative practices for soil health through USDA conservation programs, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 25, 2024)

H.R.6747 “Clean Electricity and Transmission Acceleration Act of 2023” Referred to the Subcommittee on Forestry. (Jan. 25, 2024)

H.R.6569 “EFFECTIVE Food Procurement Act” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Jan. 25, 2024)

H.R.6530 “Energy Parity Act” Referred to the Subcommittee on Forestry. (Jan. 24, 2024)

H.R.6501 “Snap Back Inaccurate SNAP Payments Act” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Jan. 24, 2024)

H.R.6413 “Agricultural Biorefinery Innovation and Opportunity Act of 2023” Referred to the Subcommittee on General Farm Commodities, Risk Management, and Credit. (Jan. 24, 2024)

H.R.5763 “To establish as a permanent program the organic market development grant program of the Department of Agriculture.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Jan. 24, 2024)

H.R.7072 “To require the Secretary of Agriculture to convey certain National Forest System land in the Chequamegon-Nicolet National Forest to Tony’s Wabeno Redi-Mix, LLC, and for other purposes.” Referred to the Committee on Agriculture. (Jan. 22, 2024)

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

S.3674 “A bill to amend the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 to prohibit the use of cell-cultivated meat under the school lunch program and the school breakfast program.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 25, 2024)

S.3666 “A bill to amend the Agricultural Foreign Investment Disclosure Act of 1978 to establish an additional reporting requirement, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 25, 2024)

S.3661 “A bill to direct the Secretary of Agriculture to periodically assess cybersecurity threats to, and vulnerabilities in, the agriculture and food critical infrastructure sector and to provide recommendations to enhance their security and resilience, to require the Secretary of Agriculture to conduct an annual cross-sector simulation exercise relating to a food-related emergency or disruption, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 25, 2024)

S.1380 “Neighborhood Tree Act of 2023” Committee on Banking, Housing, and Urban Affairs. Hearings held. (Jan. 25, 2024)

S.3645 “A bill to amend the Richard B. Russell National School Lunch Act to fund the information clearinghouse through fiscal year 2031, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 23, 2024)

S.3637 “A bill to amend the Farm Security and Rural Investment Act of 2002 with respect to the definition of biofuels and sustainable aviation fuel, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 23, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

Shapiro Administration, DEP Requires All Fracking Companies to be More Transparent About Chemicals Used in Drilling (Jan. 26, 2024)

Shapiro Administration Awards Funding to Protect Lake Erie Coastal Zone (Jan. 24, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 4—Jan. 27, 2023): 

Department of Environmental Protection

54 Pa.B. 391 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. 473 Notice: “Suspension of Enforcement of Initial Annual Reports”

54 Pa.B. 473 Notice: “Withdrawal of Technical Guidance”

PENNSYLVANIA LEGISLATURE

SB 586 “An Act amending Title 65 (Public Officers) of the Pennsylvania Consolidated Statutes, in ethics standards and financial disclosure, further providing for restricted activities.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY. (Jan. 22, 2024)

SB 587 “An Act amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, in enforcement and remedies, providing for criminal proceedings.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY. (Jan. 22, 2024)

SB 581 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, further providing for well location restrictions.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY. (Jan. 22, 2024)

 

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