January 7, 2024
Agricultural Law Weekly Review—January 8, 2024
Animal Welfare: California’s Proposition 12 Fully Effective January 1, 2024, Producer Certification Required 🌾
On January 1, 2024, California’s Proposition 12 and implementing regulations became fully effective, establishing the state’s Animal Care Program and requiring third-party certification for producers (HSC §§ 25990-25994 and 3 CCR §§ 1320-1327.3). According to a publication from the California Department of Food and Agriculture (CDFA), as of January 1, 2024, (1) “[p]roducers are required to have a valid Certificate of Compliance,” (2) “[c]overed products sold are required to be from producers with valid Certificates of Compliance,” and (3) “[d]istributors are required to have a valid Certificate of Compliance for new registrations and for the purposes of registration renewal.” For more, see the Center’s Animal Confinement Issue Tracker.
Agribusiness: Missouri Governor Issues Executive Order Prohibiting Agricultural Land Ownership by Foreign Adversaries Within 10 Miles of ‘Critical Military Facilities’
On January 2, 2024, Missouri Governor Michael Parson issued Executive Order (E.O) 24-01, which prohibits “any citizen, resident, or business from a foreign adversary . . . from owning or acquiring Missouri agriculture land within 10 miles of critical military facilities,” Also announced by the governor, E.O. 24-01 instructs the state’s Department of Agriculture Director to promulgate rules requiring that “all proposed acquisitions of agricultural land by aliens or foreign businesses . . . be submitted to the Missouri department of agriculture before the acquisition is finalized” and authorizes the director to “deny any proposed acquisition of Missouri agricultural land that violates th[e] executive order.” Under 15 C.F.R § 7.4, foreign adversaries currently include China, Cuba, Iran, North Korea, Russia, and Venezuela.
Pesticides/Herbicides: New York Passes Law Prohibiting Neonicotinoid Pesticides
On December 22, 2023, New York Governor Kathy Hochul signed into law S.1856-A/A.7640, titled the “Birds and Bees Protection Act.” The law prohibits, after January 1, 2027, the “sale or use” of “corn, soybean, or wheat seeds coated or treated with . . . clothianidin, imidacloprid, thiamethoxam, dinotefuran, or acetamiprid,” substances known as neonicotinoid pesticides. Additionally, the law immediately prohibits the use of clothianidin and dinotefuran on “outdoor ornamental plants and turf” and, after July 1, 2025, the use of imidacloprid, thiamethoxam, or acetamiprid on such outdoor plants and turf. Also announced by Governor Hochul, the law directs the state’s environmental and agricultural agencies and land grant university to “conduct a study to identify practicable and feasible alternatives to the use of” neonicotinoids and allows the Department of Environmental Conservation Commissioner, in consultation with the Commissioner of Agriculture and Markets, to suspend the seed provisions of the law. The state law is the first in the United States to prohibit neonicotinoids.
Pesticides/Herbicides: California Jury Issues Roundup Verdict In Favor of Bayer
On December 22, 2023, a jury in the California Superior Court for San Benito County issued a verdict in a product liability case claiming that Monsanto/Bayer’s glyphosate-based Roundup caused the plaintiff’s non-Hodgkin lymphoma. According to a statement issued by Bayer, the “jury’s verdict [was] in favor of the Company.” According to the statement, Bayer has won “ten of the last fifteen cases” alleging that Roundup causes cancer, which the company states “validates its strategy of taking cases to trial” as part of its five-point plan to manage its Roundup litigation. For more, see the Center’s Glyphosate Issue Tracker.
Food Safety: Federal Court Grants Summary Judgment Upholding New Swine Inspection System Rule
On December 12, 2023, the U.S. District Court for the Western District of New York issued a decision and order granting summary judgment in favor of the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) and upholding the agency’s “New Swine Inspection System” (NSIS) final rule, issued in October 2019 (84 FR 52300). Farm Sanctuary v. USDA, No. 6:19-cv-06910. The plaintiff animal advocacy groups claimed that “the NSIS violates the [Federal Meat Inspection Act] and the [Humane Methods of Slaughter Act], which require that government inspectors examine all animals before slaughter” because “under the NSIS, Defendants are handing over their oversight authority to establishment employees.” The court determined that “NSIS does not unlawfully delegate ante-mortem inspection duties,” noting that “there is no requirement . . . that FSIS inspectors conduct an examination and inspection of the humane handling of each hog. Rather, federal inspectors are required to examine and inspect ‘the method by which amenable species are slaughtered and handled . . . .” (emphasis in opinion). In September 2022, the rule was upheld in a separate federal case. See ALWR—Oct. 7, 2022, “Federal Court Upholds ‘New Swine Slaughter Inspection System’ Rule.”
International Trade: USDA Issues Notice, Updates ‘Animal Health Status of Regions’ Webpage for Paraguay Beef Imports
On December 14, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued Notice 66-23, “Eligibility of Paraguay to Export Raw Intact Beef Products to the United States,” which “provides instructions to inspection program personnel at official import inspection establishments that raw intact beef products are eligible to be imported from Paraguay,” consistent with the agency’s November 2023 final rule. See ALWR—Dec. 4, 2023, “USDA Publishes Final Rule Allowing Beef Imports from Paraguay.” Additionally, on December 26, 2023, APHIS updated its Animal Health Status of Regions webpage to include Paraguay in a list of countries that the agency “has not declared . . . to be free of [foot and mouth disease]” but from which FSIS is allowing “importation of certain commodities . . . if requirements specified in 9 CFR 94.29, in addition to other applicable requirements, are met.” For background, see ALWR—Dec. 15, 2023, “Congressmembers Send Letter, Introduce Legislation Opposing Paraguay Beef Imports.”
Packers and Stockyards Act: Congressmembers Request 180-Day Extension of Poultry Grower Contracting Rule
On December 15th, 2023, nineteen U.S. Senators and forty-five U.S. Representatives sent separate, nearly identical letters to Agriculture Secretary Tom Vilsack requesting that the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) extend the implementation date of the agency’s November 28, 2023, final rule, “Transparency in Poultry Grower Contracting and Tournaments” by at least 180 days after the rule’s official Federal Register publication. The Congressmembers state that “[b]y providing just 75 days to implement the rule, AMS has dramatically underestimated the number of people involved, hourly rates, and time required of compliance officers, regulatory consultants, attorneys, executives, and other services required to implement the rule,” which “establishes numerous additional disclosure requirements” and “changes what provisions must be included in contracts.” The Congressmembers’ request, if granted, would extend the rule’s effective date, currently February 12, 2024, until May 27, 2024. See ALWR—Dec. 4, 2023, “USDA Publishes Poultry Grower Contracting Final Rule.”
Avian Influenza: HPAI Detected in Northumberland County, Pennsylvania Game Bird Flock
On December 24, 2023, the Pennsylvania Department of Agriculture announced that the state had detected highly pathogenic avian influenza (HPAI) in a flock in Lower Mahanoy Township in Northumberland County. According to the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service’s (APHIS) HPAI Confirmed Detections database, the Northumberland County flock was designated as “Commercial Raised for Release Upland Game Bird” and affected 98,300 birds.
Dairy Policy: Dairy Farmers of America, Athian Conduct First Carbon Credit Sale
On January 3, 2024, Dairy Farmers of America announced that it had conducted, with carbon credit technology company Athian, “the first sale of verified carbon credits in the . . . livestock carbon insetting marketplace.” According to the announcement, “Texas dairy farmer Jasper DeVos utilized Athian’s first accepted protocol to generate carbon credits by reducing enteric methane and improving feed utilization through use of an innovative feed management product and quantification tool from Elanco Animal Health, resulting in nearly 1,150 metric tons of carbon dioxide equivalent (CO2e) reduction.” See also ALWR—Dec. 4, 2023, “Elanco and Athian Announce Carbon Marketplace for Dairy Farmers.”
Dairy Policy: Federal Milk Marketing Order Hearing to Reconvene January 16, 2024
On December 29, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a proposed rule (88 FR 90134) announcing that the National Federal Milk Marketing Order Pricing Formula Hearing, which recessed on December 8, 2023, will reconvene on January 16, 2024, in Carmel, Indiana. According to the proposed rule, “if the hearing is not completed by 5:00 p.m. ET on Friday, January 19, 2024, the hearing will reconvene at 8:00 a.m. ET on Monday, January 29, 2024,” and “will be held from 8:00 a.m. ET until 5:00 p.m. ET each weekday.” The proposed rule states, “If not completed, the hearing will recess at 5:00 p.m. ET on Friday, February 2, 2024, and reconvene at a later date.” For more, see the Center’s Dairy and Dairy Products Law Virtual Resource Room.
Crop Insurance: USDA Handbook Recognizes USDA Conservation Practices as ‘Good Farming Practices’
On December 6th, 2023, the U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) announced that the agency was “updating the Federal crop insurance program to affirm the use of USDA conservation practices as Good Farming Practices for crop insurance,” reflected in RMA’s Good Farming Practices Handbook. According to the announcement, the “handbook recognizes all conservation practices offered by USDA’s Natural Resources Conservation Service (NRCS) as Good Farming Practices for crop insurance” and recognizes NRCS “as an agricultural expert resource for cover crop management systems.” Additionally, RMS states that “appropriate use of NRCS conservation practices will have no impact on crop insurance coverage, which affirms how the rules have worked on the ground for years.”
Environmental Policy: USDA and Agencies Announce MOU to Implement American Climate Corps
On December 19, 2023, the U.S. Department of Agriculture (USDA) announced a formal memorandum of understanding (MOU) between USDA, the U.S. Department of the Interior (DOI), the U.S. Department of Commerce, the U.S. Department of Labor (DOL), the U.S. Department of Energy (DOE), the U.S. Environmental Protection Agency (EPA), and Americorps to establish an executive committee to implement the American Climate Corps. Additionally, executive branch officials will hold several listening sessions for potential Climate Corps applicants throughout January and February 2024. According to the announcement, “the American Climate Corps is on track to establish the first cohort of members in the summer of 2024.”
Conservation Programs: USDA Announces Intent to Prepare Environmental Impact Statement to Amend National Forest System Management Plans
On December 20, 2023, the U.S. Department of Agriculture (USDA) Forest Service published in the Federal Register a notice (88 FR 88042) announcing the agency’s intent to prepare an environmental impact statement to “amend all land management plans for units of the National Forest System (128 plans in total) to include consistent direction to conserve and steward existing and recruit future old-growth forest conditions and to monitor their condition across planning areas of the National Forest System.” Also announced by USDA, the notice is available for public comment until February 2, 2024.
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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:
- Jan. 12, 2024, Understanding the Basics of the Perishable Agricultural Commodities Act
- Jan. 26, 2024, Understanding the Basics of Food Labeling
- 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:
- Feb. 13, 2024, Overview of PA Milk Marketing Law (Beyond Over-Order Premium)
- Apr. 16, 2024, Overview of U.S. State Milk Pricing Systems
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).
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)
Resources of Interest:
Agric. Law & Tax’n Blog, Tax Issues with Customer Loyalty/Reward Programs, Roger A. McEowen (Dec. 28, 2023)
Agric. Law & Tax’n Blog, More Issues in Ag Law and Tax for Farmers, Ranchers and Rural Landowners, Roger A. McEowen (Dec. 26, 2023)
Nat’l Agric. Law Ctr., Recent Federal and State Legislation to Amend Child Labor Laws, Samantha Capaldo (Dec. 14, 2023)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Now Accepting Applications for 40 Climate Change Fellows to Help Record Number of Farmers and Rural Small Businesses Access Clean Energy Funds from President Biden’s Investing in America Agenda (Dec. 22, 2023)
USDA Appoints New Members to the Federal Advisory Committee for Urban Agriculture and Innovative Production (Dec. 20, 2023)
Biden-Harris Administration Announces New Agreement between Seven Federal Agencies to Implement the American Climate Corps (Dec. 19, 2023)
Biden-Harris Administration Proposes First-of-its Kind National Forest Plan Amendment to Conserve and Steward Old Growth Forests (Dec. 19, 2023)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
Biden-Harris Administration Selects Texas Southern University to Receive $50,000,000 to Fund Environmental Justice Projects Across Region 6 (Dec. 22, 2023)
EPA completes reviews at six Mass. Superfund sites (Dec. 20, 2023)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Partners with Oklahoma to Award over $6.3 Million to Strengthen Food Supply Chain Infrastructure (Dec. 27, 2023)
Animal and Plant Health Inspection Service (APHIS)
USDA and Smithsonian’s National Museum of Natural History Strengthen Scientific Partnership (Dec. 27, 2023)
APHIS Reopens Comment Period for Proposed Exemptions (Dec. 26, 2023)
Farm Service Agency (FSA)
USDA Announces 2024 Wool and Mohair Marketing Assistance Loan Rates (Dec. 27, 2023)
Natural Resources Conservation Service (NRCS)
NRCS Announces 2023 Rhode Island Conservation Innovation Grant Awardees (Dec. 27, 2023)
NRCS Missouri Announces Agricultural Conservation Easement Program (ACEP) Application Deadline (Dec. 26, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register Dec. 25–30, 2023):
Agricultural Marketing Service
88 FR 90134 Proposed Rule: “Milk in the Northeast and Other Marketing Areas; Notice of Hearing on Proposed Amendments to Marketing Agreements and Orders” (Dec. 29, 2023)
88 FR 89539 Rule: “National Organic Program (NOP); Organic Livestock and Poultry Standards; Correction” (Dec. 28, 2023)
88 FR 89327 Proposed Rule—Comment Period: “Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment Rate” (Dec. 27, 2023)
88 FR 89276 Rule: “Marketing Order for Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida” (Dec. 27, 2023)
Agriculture Department
88 FR 89654 Notice: “Agency Information Collection Activities; USDA Generic Solution for Solicitation for Funding Opportunity Announcement” (Dec. 28, 2023)
88 FR 89655 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Salmonella Initiative Program (SIP)]” (Dec. 28, 2023)
88 FR 89275 Rule: “Debt Management; Administrative Updates” (Dec. 27, 2023)
88 FR 88864 Notice: “Submission for OMB Review; Comment Request; Reinstatement [Agricultural Marketing Service: Fruit Crops]” (Dec. 26, 2023)
88 FR 88864 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Assessment of Mobile Technologies for Using Supplemental Nutrition Assistance Program (SNAP) Benefits]” (Dec. 26, 2023)
Animal and Plant Health Inspection Service
88 FR 89362 Notice: “Movement of Organisms Modified or Produced Through Genetic Engineering; Notice of Proposed Exemptions; Reopening of Comment Period” (Dec. 27, 2023)
Environmental Protection Agency
88 FR 90181 Notice—Comment Period: “Clothianidin; Receipt of Application for Emergency Exemption, Solicitation of Public Comment” (Dec. 29, 2023)
88 FR 89309 Rule: “Civil Monetary Penalty Inflation Adjustment” (Dec. 27, 2023)
88 FR 89446 Notice: “Product Cancellation Order for Certain Pesticide Registrations” (Dec. 27, 2023)
88 FR 89447 Notice: “Cancellation Order for Certain Pesticide Registrations and Amendments to Terminate Uses” (Dec. 27, 2023)
Food and Nutrition Service
88 FR 90230 Rule: “Establishing the Summer EBT Program and Rural Non-Congregate Option in the Summer Meal Programs” (Dec. 29, 2023)
Foreign Agricultural Service
88 FR 88865 Notice: “Notice of Solicitation for the Agricultural Policy Advisory Committee (APAC) and the Related Agricultural Technical Advisory Committees (ATACs) for Trade and Continuation of Requests for Nominations for the Agricultural Trade Advisory Committees” (Dec. 26, 2023)
Forest Service
88 FR 88866 Notice—Comment Period: “Ouachita National Forest, Scott and Sebastian Counties, Arkansas; Heavener Coal Leasing Project; Environmental Impact Statement” (Dec. 26, 2023)
Natural Resources Conservation Service
88 FR 89656 Notice: “Notice of Intent to Prepare an Environmental Impact Statement for the Rattlesnake Creek Watershed Plan, in Stafford, Pratt, Rice, Reno, and Edwards Counties, Kansas” (Dec. 28, 2023)
U.S. Codex Office
88 FR 89362 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Food Hygiene” (Dec. 27, 2023)
U.S. HOUSE AGRICULTURE COMMITTEE:
No New Actions
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No New Actions
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Agriculture Department Reminds Poultry Owners To Be Vigilant To Protect Against Highly Pathogenic Avian Influenza (Dec. 24, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 52—Dec. 30, 2023):
Department of Agriculture
53 Pa.B. 8054 Notice: “Pennsylvania Malt and Brewed Beverage Industry Promotion Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding”
53 Pa.B. 8066 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding”
Department of Environmental Protection
53 Pa.B. 8078 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”
53 Pa.B. 8132 Notice: “Air Quality Small Business Technical Assistance Grant”
53 Pa.B. 8133 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Discharges from Aquatic Animal Production Facilities (PAG-11)”
53 Pa.B. 8133 Notice: “Proposed Reducing Industrial Sector Emission in Pennsylvania Grant Program; Request for Information”
PENNSYLVANIA LEGISLATURE
No New Actions
Contributors:
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney
