June 10, 2024

Agricultural Law Weekly Review—June 10, 2024

Avian Influenza: USDA Announces Additional Funding, New Voluntary Bulk Milk Testing Pilot Program 🌾
On May 30, 2024, the U.S. Department of Agriculture (USDA) announced that the agency is providing an additional $824 million in funding and resources to address and prevent the spread of H5N1 (Highly Pathogenic Avian Influenza A) in livestock and poultry. Additionally, USDA’s Animal and Plant Health Inspection Service (APHIS) has launched a new Voluntary H5N1 Dairy Herd Status Pilot Program as an alternative to the testing and reporting requirements mandated by APHIS’s April 24, 2024 Federal Order. USDA states that participation in the pilot program will allow farmers to conduct weekly tests on bulk milk and ship cows without having to test individual animals after a herd tests negative for H5N1 for three consecutive weeks. USDA states that APHIS is working to identify states where a pilot phase of the program will be launched. Enrollment for participation in the program begins the week of June 3, 2024, and producers can contact their APHIS Area Veterinarian in Charge or State Veterinarian to sign a Herd Monitoring Plan agreement. USDA states that specific information and how to enroll in the Voluntary Program will be published on the APHIS HPAI website.

Avian Influenza: Pennsylvania Issues New Quarantine Order for Dairy Cattle Exhibition
On May 29, 2024, Pennsylvania Agriculture Secretary Russell Redding issued a General Quarantine Order; Influenza A Viruses in Ruminants, Exhibition of Dairy Cattle, which prohibits both lactating and non-lactating dairy cattle from entering exhibition premises if the cattle either “show[] clinical signs of infection with [HPAI]”; “have been on premises where HPAI has been confirmed in dairy cattle . . . [or] domestic birds”; or “have been on a premises which is located within a three-kilometer area of a premises where [HPAI] has been confirmed in domestic birds.” Additionally, all dairy cattle over 18 months old must be tested within seven days before they arrive on animal exhibition grounds. The quarantine order is effective immediately and will remain in effect until rescinded or modified by a later order.  

Antitrust: Minnesota Federal District Court Denies Agri Stats’s Motions to Dismiss, Change Venue
On May 28, 2024, the U.S. District Court for the District of Minnesota issued a memorandum opinion and order denying defendant Agri Stats’s motions to transfer venue and dismiss in a case brought by the United States and six individual states alleging that the company’s “reports encourage and facilitate its processor-subscribers to increase and stabilize prices and reduce the supply of meat” in violation of U.S. antitrust laws. U.S. v. Agri Stats, No. 0:23-cv-03009. Although Agri Stats had moved to transfer the case to the Northern District of Illinois, the location of additional pending antitrust litigation involving the company (In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637), or the Northern District of Indiana, Agri Stats’s primary place of business, the court determined that the Clayton Act allows a plaintiff to file an antitrust claim “in any district where[] [a corporation] . . . transacts business.” The court denied the venue change “[b]ecause at least one processor in each relevant industry has operated in Minnesota,” stating that “Plaintiffs’ forum choice deserves ‘considerable deference,’” which the court noted, “is especially entitled to deference . . . given that the United States chose to bring antitrust claims against Agri Stats in this forum, and the State of Minnesota is a Plaintiff State.” Additionally, the court found that the plaintiffs had standing under both Article III and the antitrust statutes and “decline[d] to dismiss Plaintiffs’ . . . claim because of the summary judgment ruling in Broilers,” stating that “the Broilers summary judgment order necessarily depended on the set of evidence and arguments offered before the Court at summary judgment.” The court further stated, “While the Broilers opinion will certainly be helpful to the Court’s own analyses, and maybe even persuasive, the Court declines, at this earlier stage of litigation, to deprive itself the opportunity to consider the evidence and arguments that will be developed during discovery in this highly complex antitrust action brought by the United States.” For more, see the Center’s Agricultural Antitrust Litigation Issue Tracker.  

Agricultural Labor: Third Circuit Affirms Pepperidge Farm Drivers as Independent Contractors
On May 10, 2024, the U.S. Court of Appeals for the Third Circuit issued a non-precedential opinion affirming the district court’s order granting summary judgment in favor of the defendant, Pepperidge Farm, Inc. Carpenter v. Pepperidge Farm, No. 23-2372;  No. 2:20-cv-03881 (E.D. Pa.). The complaint, filed by the plaintiff “independent direct-store-delivery partners” in August 2020, alleged that Pepperidge Farm violated Pennsylvania’s Wage Payment and Collection Law (43 Pa. Cons. Stat. § 260.1 et seq) “by wrongly classifying and paying them as independent contractors instead of employees.” The district court “applied the ten-factor test that Pennsylvania courts have used to determine whether a worker is an employee” under the law: (1) “the control of the manner that work is to be done,” (2) “responsibility for result only,” (3) “terms of agreement between the parties,” (4) “the nature of the work or occupation,” (5) “the skill required for performance,” (6) “whether one employed is engaged in a distinct occupation or business,” (7) “which party supplies the tools,” (8) “whether payment is by time or by job,” (9) “whether the work is part of the regular business of the employer,” and (10) “the right to terminate the employment at any time.” The court found that eight of the factors, including the “most important factor”—the “‘right to control’ the manner in which the work is done”—weighed in favor of drivers’ independent contractor status. The circuit court affirmed the district court’s finding, stating that while “Pepperidge Farm . . . has expectations about the results of Plaintiffs’ work . . . [the company] has little ability to control the time, place, and manner in which Plaintiffs achieve those ends.” The court further noted “a few examples of Plaintiffs’ autonomy,” stating that “Plaintiffs can . . . choose their distribution routes by buying and selling them, organize their distribution businesses as they like, hire employees to do their work for them, set their own hours, and make deliveries when and how they see fit.” The court declined the plaintiffs’ arguments, stating that, “[s]ome facts Plaintiffs cite merely show the kind of control over results that is expected when a company hires independent contractors to do its work . . . includ[ing] the fact that Pepperidge Farm gives them customer-created ‘planograms’ showing where to place products in certain retail stores and that it has rules about things like food safety and stale products” and noting that “[o]thers, when viewed in light of all the facts, are insufficient to demonstrate Pepperidge Farm’s comprehensive right to control the time, place, and manner of their work—for instance, that Pepperidge Farm requires them to use ‘a particular handheld computer’ needed to connect them to Pepperidge Farm’s inventory system; expects Plaintiffs to follow the same rules that all people follow when in its warehouses; and, on three occasions over fourteen years, communicated to one Plaintiff customer requests regarding store displays.” The court thus concluded, “Taken in context of the full record, none of the facts relied upon by Plaintiffs show that Pepperidge Farm has the right to control their work in a way that indicates an employment relationship.” See also materials from Understanding the Basics of the Fair Labor Standards Act. 

Agricultural Labor: Ninth Circuit Orders Exclusion of Certain AEWR-Based Harvest Job Wages from Wage Surveys Because Piece-Rate Prevailing Wage Higher
On May 24, 2024, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished memorandum opinion reversing and remanding the district court’s judgment denying the employee plaintiff’s challenge to the U.S. Department of Labor’s (DOL) approval of more than “160 H-2A job orders for 2023 harvest activities at the [Adverse Effect Wage Rate (AEWR)] despite the fact that higher, prevailing piece rates were available.” Hernandez v. Su, No. 23-35582; Hernandez v. DOL, No. 1:20-cv-03241 (E.D. Wash.). Although the district court stated, “Nothing in 20 C.F.R. § 655.120 nor § 122(l) requires DOL to check the AEWR against the prevailing wage rate before certification,” the circuit court determined that “[w]hen the prevailing wage is a piece-rate, § 655.120(a) requires that an H2A employer offer it,” stating, “Such a wage is always ‘at least the highest of’ the listed wages because a piece-rate wage offers workers the opportunity to earn more than they might under an hourly wage” and noting that DOL has since updated the regulation to “explicitly adopt[] the interpretation asserted by Plaintiffs.” The court ordered the district court to “enter an injunction requiring DOL to exclude from future prevailing wage surveys any reported wages that (1) exactly match the AEWR; (2) were paid by an employer that had received an AEWR-only job order for the 2023 harvest season; and (3) were paid during the 2023 harvest season for work in an agricultural activity with a piece-rate prevailing wage during that season.” See also ALWR—May 10, 2024, “Department of Labor Publishes H-2A Final Rule.”

Biofuels: Appeals Court Upholds EPA’s 2022 Renewable Fuel Standard
On May 14, 2024, the U.S. Court of Appeals for the District of Columbia issued an opinion upholding the U.S. Environmental Protection Agency’s (EPA) 2022 Renewable Fuel Standard (RFS) (87 FR 39600), which included a supplemental 250-million-gallon renewable fuel mandate to correct the agency’s 2016 “erroneous[] waiv[er] [of] 500 million gallons of total renewable fuel.” Sinclair Wyoming Refining Company v. EPA, No. 22-1210. The plaintiffs disputed EPA’s additional mandate, arguing that the Clean Air Act (CAA) “does not provide a ‘true-up mechanism on the back end if things didn’t go as planned.’” The court rejected this argument and held that the 2022 supplemental volume mandate complied with the CAA and was a reasonable exercise of EPA’s discretion to set renewable fuel requirements. The court further held that EPA has the authority to “increase later year volumes to make sure that volumes that should have been met in earlier years ‘are eventually sold or introduced into commerce.’” See also ALWR—May 6, 2022, “EPA Submits Final Renewable Fuel Standard Rule for White House Review.” 

Pesticides/Herbicides: EPA Opens Public Comment Period for BASF’s Proposed Dicamba Label New Use
On June 4, 2024, the Environmental Protection Agency (EPA) published in the Federal Register a notice (89 FR 47954) making available a 30-day comment period, as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for BASF Corporation’s proposed label and endangered species use limitations allowing a new use pattern for its dicamba-based Engenia Herbicide on dicamba-tolerant soybeans and cotton (EPA-HQ-OPP-2024-0154). Also announced by EPA, the proposed label would allow application of the product to dicamba-tolerant soybeans at all stages after planting and “over the top” application on soybean plants “through the ‘V2’ growth stage . . . but no later than June 12 of each year.” For use on cotton plants, the new label would allow the same application, and “over the top” application “no later than July 30 of each year.” The label is available for public comment until July 5, 2024. For more, see the Center’s Dicamba Issue Tracker.

Food Safety: FDA Modifies Organizational Structure, Creates ‘Human Foods Program’
On June 3, 2024, the U.S. Food and Drug Administration (FDA) published in the Federal Register a notice (89 FR 47567) titled “Statement of Organization, Functions, and Delegations of Authority,” finalizing the agency’s reorganization process following a formal external review process. Also announced by FDA, the notice marks the approval for the updated FDA organizational structure, the unified Human Foods Program, and the Office of Inspections and Investigations. FDA states that these changes will allow it to be “more efficient, nimble and prepared” to handle the industries the agency regulates. The organization became effective May 13, 2024, and FDA states that implementation of the changes is set to begin on October 1, 2024. See also ALWR—July 17, 2023, “FDA Updates Proposal for Reorganization of Human Foods Program and Office of Regulatory Affairs.”

Food Policy: USDA, EPA, and FDA Renew ‘Federal Interagency Collaboration to Reduce Food Loss and Waste’
On May 15, 2024, leaders from the U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA), and Food and Drug Administration (FDA) signed an agreement renewing their Federal Interagency Collaboration to Reduce Food Loss and Waste. Also announced by USDA, EPA, and FDA, the collaboration “was first formed in October 2018 and was renewed in December 2020,” and “also has forged a formal agreement with the national non-profit, ReFED.” Agency actions under the collaboration “include research, community investments, education and outreach, voluntary programs, public-private partnerships, tool development, technical assistance, event participation, and policy discussion.” See also ALWR—Dec. 15, 2023, “EPA, USDA, FDA Publish ‘Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics.’” 

Animal Welfare: European Commission Proposes New Regulation on Animal Welfare During Transport
On June 3, 2024, the U.S. Department of Agriculture (USDA) Foreign Agricultural Service (FAS) published a report titled “EU Proposes New Regulation on Animal Welfare During Transportation.” According to the report, on December 7, 2023, the European Commission proposed a new regulation on the protection of animals during transport, which would “reduce maximum journey times for live animals, increase space allowances, [and] amend the means of transport and transport conditions.” According to the report, the European Commission completed its final feedback period on April 12, 2024, and the European Parliament and Council of the European Union “are now assessing the Commission’s legislative proposal.” The report states, “With the upcoming European elections in June 2024, the file will most likely not be finalized by the end of this year and is expected to proceed in the course of 2025.

 

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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:

“HPAI in Poultry and Cattle: How Can We Miss You if You Won’t Go Away?”

  • July 17, 2024, noon–1 pm (ET), online. Staff Attorney Brook Duer Presents with the National Agricultural Law Center.

Podcasts:

Agricultural Law Podcast

USDA Takes First Regulatory Steps on Carbon Credit Production (May 14, 2024)

USDA Takes New Approach in HPAI Outbreak in Dairy Cattle (Apr. 26, 2024)

Farmland Legal Energy Podcast

Agrivoltaics & Large-Scale Solar Energy in Pennsylvania Update (May 15, 2024)

Artificial Intelligence in Agriculture (Apr. 29, 2024)

Resources of Interest:

Southern Ag Today, HPAI in Dairy Cattle: Is Pasteurization Dairy’s Only Reliable Protection?, Brook Duer, Penn State Law, Paul Goeringer, Univ. of Maryland (May 31, 2024)

Nat’l Agric. Law Ctr., Farm Bill 2024: Federal Crop Insurance Program Proposals, Ramie Parsons (May 30, 2024)

Nat’l Agric. Law Ctr., Colorado Legislature Passes Wetlands Permitting Bill, Brigit Rollins (May 28, 2024)

Ohio St. Univ. Ext. Farm Off. Blog, It’s High Season for Ohio’s Noxious Weeds Laws, Peggy Kirk Hall (May 29, 2024)

Southern Ag Today, Understand the Implications of a Price Slide When Buying and Selling Cattle, Kenny Burdine, Univ. of Ken. (May 29, 2024)

Southern Ag Today, Fewer Cattle on Feed, Higher Prices, David Anderson, Tex. A&M AgriLife Ext. (May 28, 2024)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Announces $824 Million in New Funding to Protect Livestock Health; Launches Voluntary H5N1 Dairy Herd Status Pilot Program (May 30, 2024)

USDA Announces Expansion of Interagency Collaboration to Help Reduce Food Loss and Waste (May 30, 2024)

USTR, USDA Announce Appointments to Seasonal and Perishable Agricultural Products Advisory Committee (May 30, 2024)

USDA Publishes Request for Information to Support Next Steps in Implementing the Growing Climate Solutions Act (May 28, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Services

USDA Partners with Washington to Award Over $7.3 Million to Strengthen Food Supply Chain Infrastructure

(May 30, 2024)

Animal and Plant Health Inspection Service

APHIS Extends Protections for World’s Plants Through Implementation of Revised Lacey Act Provisions

(May 30, 2024)

Farm Service Agency

USDA and FarmRaise Launch Additional Online Disaster Assistance Decision Tool for Livestock, Honey Bee and Farm-Raised Fish Producers (May 28, 2024)

National Institute of Food and Agriculture

Understanding How Wildfires Change Soil Could Aid Recovery (May 30, 2024)

Natural Resources Conservation Service (NRCS)

Southern Ute Indian Tribe Makes History with USDA to Conserve Natural Resources (May 31, 2024)

USDA Offers Disaster Assistance to Agricultural Producers in Iowa Impacted by Tornados and Flooding (May 30, 2024)

USDA Invests $7 Million in Wetland Mitigation Banking to Support Producers and Protect Wetland Ecosystems (May 30, 2024)

USDA-NRCS State Technical Committee meeting set for June 11 (May 29, 2024)

Biden-Harris Administration to Invest $50 Million in Projects that Restore Natural Functions and Values of Wetlands As Part of Investing in America Agenda (May 29, 2024)

USDA Offers Disaster Recovery Assistance to Agricultural Producers in Texas Impacted by Recent Flooding (May 28, 2024)

USDA Biofouling Conservation Practice Signup Extended for Rhode Island Oyster Farmers (May 28, 2024)

Evaluating cover crop termination technologies in the Southwest (May 28, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register May 27–31, 2024):   

Agriculture Department

89 FR 46853 Notice—Comment Period: “Agency Information Collection Activities; Outreach and Assistance to Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers Program (2501 Program) Application and Performance Reporting” (May 30, 2024)

Agricultural Marketing Service

89 FR 47121 Notice: “Meeting of the Advisory Committee on Universal Cotton Standards” (May 31, 2024)

89 FR 46335 Proposed Rule: “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program” (May 29, 2024)

89 FR 46055 Notice: “Request for Extension and Revision of a Currently Approved Information Collection” (May 28, 2024)

Animal and Plant Health Inspection Service

89 FR 47122 Notice—Comment Period: “Implementation of Revised Lacey Act Provisions” (May 31, 2024)

Environmental Protection Agency

89 FR 47152 Notice: “Environmental Impact Statements; Notice of Availability” (May 31, 2024)

89 FR 46998 Proposed Rule: “Water System Restructuring Assessment Rule” (May 29, 2024)

89 FR 46396 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; School Integrated Pest Management Awards Program (Renewal)” (May 29, 2024)

Farm Service Agency

89 FR 47126 Notice—Comment Period: “Information Collection Request; Assignment of Payment; Joint Payment Authorization; and Request for Waiver” (May 31, 2024)

Rural Utilities Service

89 FR 46056 Notice: “Distance Learning and Telemedicine (DLT) Program: Virtual Public Listening Session” (May 28, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

No new actions May 27–June 1, 2024.

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

No new actions May 27–June 1, 2024.

Agriculture-Related Legislative Hearings & Reports

No upcoming hearings or reports.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES

Shapiro Administration Continues A Summer Of Sweet, Made In PA Getaways On Scooped: An Ice Cream Trail (May 30, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 22—June 1, 2024): 

Department of Environmental Protection

54 Pa.B. 3098 Notice: “Proposed Clean Energy Campus Projects on Commonwealth-Owned Abandoned Mine Lands; Request for Information”

Environmental Hearing Board

54 Pa.B. 3132 Notice: “Aqua Pennsylvania, Inc. v. Department of Environmental Protection; EHB Doc. No. 2024-098-L”

Pennsylvania Fish and Boat Commission

54 Pa.B. 3132 Notice: “Proposed Special Regulation Designations”

Pennsylvania Game Commission

54 Pa.B. 3030 Notice: “Hunting and Trapping; General”

54 Pa.B. 3033 Notice: “Hunting and Trapping; Small Game”

PENNSYLVANIA LEGISLATURE

HB 2357 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, establishing the Pennsylvania Food Bucks Program and the Pennsylvania Food Bucks Program Account; and making an appropriation.” Referred to Agriculture and Rural Affairs. (May 30, 2024)

SB 1229 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in crop insurance, further providing for short title of chapter, for purpose of chapter, for definitions, for establishment of program, for powers and duties of department, providing for Dairy Margin Coverage Program Financial Assistance; and making editorial changes.” Referred to Agriculture and Rural Affairs. (May 29, 2024)

HB 2354 “An Act amending…the Dog Law… further providing for definitions; in licenses, tags and kennels, further providing for kennels, for kennels, for requirements for kennels, for revocation or refusal of kennel licenses and for health certificates for importation; and, in enforcement and penalties, further providing for rules and regulations.” Referred to Agriculture and Rural Affairs. (May 29, 2024)

SB 1191 “An Act establishing the Pennsylvania Climate Emissions Reduction Program; imposing powers and duties on the Environmental Quality Board, the Pennsylvania Public Utility Commission and the Department of Environmental Protection; and establishing the Consumer Protection Account, the Pennsylvania Energy Transformation Account, the Workforce Enhancement Fund, the Workforce Enhancement Fund Board and the Low-Income Support Account.” Referred to Environmental Resources and Energy. (May 28, 2024)

SB 1190 “An Act amending the… Alternative Energy Portfolio Standards Act, further providing for definitions; providing for force majeure; further providing for alternative energy portfolio standards, for portfolio requirements in other states, for health and safety standards and for interagency responsibilities; providing for zero emission credits; and making editorial changes.” Referred to Environmental Resources and Energy. (May 28, 2024)

HB 1615 “An Act providing for minimum energy and water efficiency standards for certain products sold in this Commonwealth; imposing penalties; and making repeals.” Referred to Environmental Resources and Energy. (May 28, 2024)

 

Contributors:
Victoria Dutterer—Research Assistant
Samuel Sweeten—Research Assistant
Audry Thompson—Staff Attorney