June 26, 2024

Agricultural Law Weekly Review—June 26, 2024

This Friday! June 28, 2024: Understanding the Basics of the Clean Water Act & Agriculture 

National Agriculture Policy: Federal Court Enjoins USDA’s ‘Socially Disadvantaged Farmers’ Consideration
On June 7, 2024, the U.S. District Court for the Northern District of Texas published a memorandum opinion and order enjoining the U.S. Department of Agriculture (USDA) from providing financial relief to farmers “based on its ‘socially disadvantaged farmer or rancher‘ designation” under the 2022 Emergency Relief Program (2022 ERP). Strickland v. USDA, No. 2:24-cv-00060. USDA “defines socially disadvantaged farmers and ranchers (SDFRs) as those belonging to groups that have been subject to racial or ethnic prejudice.” USDA considers the following groups of farmers to be SDFRs: American Indian or Alaska Native, Asian or Pacific Islander, Black or African American, Hispanic or Latino. For the 2022 ERP, USDA also considers women to be SDFRs. The complaint, filed on March 29, 2024, by a group of white Texas farmers, argued that USDA’s consideration of race and gender was unconstitutional and unlawful, and that “through the programs, USDA acted unilaterally to enshrine into law race and sex classifications that divide American farmers, and which are unmoored from any interest that the government may have in remedying specific, identified instances of past discriminations.” The court held that the USDA can “continue to apply progressive factoring on future relief applications, so long as [it] is done independently of any race- or sex-based considerations.” For background, see ALWR—Feb. 13, 2024, “ERS Publishes Report on Socially Disadvantaged, Women, and Limited Resource Producers.” 

Food Safety: FDA Publishes Proposed Rule to Exempt Grade ‘A’ Cottage Cheese from Food Traceability Rule
On June 17, 2024, the U.S. Food and Drug Administration (FDA) published in the Federal Register a proposed rule (89 FR 51281) to exempt Interstate Milk Shippers (IMS)-listed Grade “A” cottage cheese from Food Traceability Rule requirements. Also announced by FDA, the agency states that it is proposing the exemption “because of the specific processing requirements specified in the [Grade ‘A’ Pasteurized Milk Ordinance] that address the risk factors that resulted in the commodity ‘Cheese (made from pasteurized milk), fresh soft or soft unripened’ being on the [Food Traceability List], and because of the enhanced regulatory oversight of the manufacturing of such products.” The proposed rule is available for public comment until September 16, 2024. 

Food Policy: EPA, USDA, FDA, White House Publish ‘National Strategy for Reducing Food Loss and Waste and Recycling Organics’
On June 12, 2024, the White House published the National Strategy for Reducing Food Losses and Waste and Recycling Organics, developed by the U.S. Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA). Also announced by EPA, USDA, and FDA, the strategy identifies four main objectives: (1) “Prevent the loss of food where possible,” (2) “Prevent the waste of food where possible,” (3) “Increase the recycling rate for all organic waste,” and (4) “Support policies that incentivize and encourage food loss and waste prevention and organics recycling.” The strategy provides specific actions that the FDA, USDA, and EPA can take to meet each objective.  See also materials and recording from An Overview of U.S. Charitable Food Surplus Programs.  

Agricultural Labor: Seventeen States File Complaint Challenging New H-2A Rule
On June 10, 2024, the Attorneys General of Kansas and sixteen other states filed a complaint in the U.S. District Court for the Southern District of Georgia challenging the U.S. Department of Labor’s (DOL) recent H-2A final rule (89 FR 33898) titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” State of Kansas v. DOL, No. 2:24-cv-00076. The complaint alleges that the final rule—which protects certain collective bargaining activities of H-2A visa-holding agriculture farmworkers—is “arbitrary and capricious” and that the rule unlawfully “give[s] certain federal rights to alien workers that are not enjoyed by Americans.” The complaint argues that H-2A visa-holders are exempt from the collective-bargaining protections provided by the National Labor Relations Act and requests that the court “preliminary and permanently enjoin[] [DOL] from implementing or enforcing the Final Rule.” The final rule becomes effective June 28, 2024. For background on the final H-2A rule, see ALWR—May 10, 2024, “Department of Labor Publishes H-2A Final Rule.”  

Agricultural Labor: USDA Awards $50 Million for ‘Farm Labor Stabilization and Protection Pilot Program’
On June 14, 2024, the U.S. Department of Agriculture (USDA) announced its distribution of $50 million to 141 recipients through the Farm Labor Stabilization and Protection Pilot Program, created to “address[] agriculture labor challenges and instability, strengthen protections for farmworkers, and expand legal pathways for labor migration.” Eight Pennsylvania entities received funds as follows:  

  • Lady Moon Farms Inc.—$1,440,000
  • Spiral Path Farm LLC—$400,000 
  • Taproot Farm LLC—$200,000 
  • Blooming Glen Farm LLC—$100,000 
  • Cedar Meadow Farm—$100,000   
  • Quaker Valley Orchards LLC—$100,000   
  • Roots to River Farm LLC—$100,000   
  • William Penn Corporation (dba Penns Woods Winery)—$100,000 

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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. 

2024 Pennsylvania Agricultural Law Symposium 

  • Sept. 19, 2024, 8:30am–4:30pm, In-person at Penn State Law, Lewis Katz Building, University Park, Pa. Topics to include 2023-24 Ag Law Year in Review, Biosolids and Food Processing Waste Legal Issues, Agricultural Cooperatives, Carbon Credits and Contracts, Farm Labor Contractors and H-2A workers, and Farm Family Representation: Ethical Issues. Registration available soon! 

Podcasts: 

Agricultural Law Podcast 

  1. USDA Takes First Regulatory Steps on Carbon Credit Production (May 14, 2024)
  2. USDA Takes New Approach in HPAI Outbreak in Dairy Cattle (Apr. 26, 2024)

 Farmland Legal Energy Podcast 

  1. Agrivoltaics & Large-Scale Solar Energy in Pennsylvania Update (May 15, 2024)
  2. Artificial Intelligence in Agriculture (Apr. 29, 2024)

Resources of Interest:  

Nat’l Agric. Law Ctr., The Feed: Volume 2, Issue 11, Ramie Parsons (June 13, 2024) 

Nat’l Agric. Law Ctr., Ag & the ESA: When a Species is Listed ‘Wherever Found’, Brigit Rollins (June 11, 2024) 

Southern Ag Today, Product of the U.S.A. Rule and Trade Implications, Jennifer Friedel, Virginia Tech (June 14, 2024) 

Iowa St. Univ. Ctr. Agric. Law & Tax’n, Iowa Supreme Court Says Common Ownership Ends Boundary by Acquiescence, Kristine A. Tidgren (June 14, 2024) 

Ohio St. Univ. Ext. Farm Off. Blog, County Probate Rates, Robert Moore (June 11, 2024) 

Tex. A&M Agric. Law Blog, FTC Bans Most Non-Compete Agreements, Tiffany Dowell Lashmet (June 10, 2024) 

Agric. Law & Tax’n Blog, From the Desk…and Email…and Phone… (Ag Law Style), Roger A. McEowen (June 9, 2024) 

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE 

U.S. ENVIROMENTAL PROTECTION AGENCY 

The Environmental Protection Agency announces a public comment period for the Anniston PCB Site Operable Unit 4 Proposed Plan (June 12, 2024) 

EPA Releases Information that States and Tribes Can Use to Protect Local Fish from Toxic Tire Chemicals (June 10, 2024) 

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES 

USDA Awards $50 Million to Support Farmworkers and Agricultural Employers (June 14, 2024) 

Biden-Harris Administration Announces National Strategy to Reduce Food Loss and Waste and Recycle Organics (June 12, 2024) 

Biden-Harris Administration Announces Nearly $66M for Conservation Work with States, Tribes, Private Landowners as Part of Investing in America Agenda (June 11, 2024) 

Secretary Vilsack Announces USDA and FFAR Innovation Challenge to Catalyze Agricultural Solutions (June 11, 2024) 

USDA AGENCY PRESS RELEASES: 

Agricultural Marketing Services  

USDA Partners with Florida to Award Over $8 Million to Strengthen Food Supply Chain Infrastructure (June 10, 2024) 

Animal and Plant Health Inspection Service 

APHIS Protects Domestic Fruit Production and Deregulates Tomato Brown Rugose Fruit Virus in Fruit for Consumption (June 12, 2024) 

Economic Research Service 

The Food and Nutrition Assistance Landscape: Fiscal Year 2023 Annual Report (June 2024) 

Farm Service Agency 

USDA Awards $50 Million to Support Farmworkers and Agricultural Employers (June 14, 2024) 

USDA Opens Application Period for Composting and Food Waste Reduction Cooperative Agreements (June 12, 2024) 

USDA Reminds Producers to File Crop Acreage Reports (June 10, 2024) 

Food Safety and Inspection Service 

Constituent Update—June 14, 2024 (June 14, 2024) 

National Institute of Food and Agriculture 

NIFA Invests $7.9M to Promote Soil Health (June 12, 2024) 

NIFA Invests $5.5M in Agricultural Production Systems Research (June 12, 2024) 

Natural Resources Conservation Service (NRCS) 

USDA-NRCS Announces Sign-up Period for Entity-Held Easements under the Regional Conservation Partnership Program to Establish Grassland Strongholds across the Southern High Plains (June 14, 2024 

USDA Offers Disaster Assistance to Agricultural Producers in Missouri Impacted by Tornadoes (June 10, 2024) 

FEDERAL EXECUTIVE AGENCIES (Federal Register June 10–14, 2024):     

Agriculture Department 

89 FR 50546 Notice: “Submission for OMB Review; Comment Request” (June 14, 2024) 

89 FR 50254 Notice: “Submission for OMB Review; Comment Request” (June 13, 2024) 

Agricultural Marketing Service 

89 FR 49002 Proposed Rule: “Poultry Grower Payment Systems and Capital Improvement Systems” (June 2024) 

89 FR 50253 Notice—Comment Period: “Notice of Request for an Extension of a Currently Approved Information Collection: Qualitative Feedback on Agency Service Delivery” (June 13, 2024) 

89 FR 49145 Notice: “Notice of Request for Extension and Revision of a Currently Approved Information Collection” (June 11, 2024) 

Animal and Plant Health Inspection Service 

89 FR 49824 Notice: “Decision To Recognize Freedom From Citrus Longhorned Beetle and Asian Longhorned Beetle in Certain Countries” (June 12, 2024) 

Environmental Protection Agency 

89 FR 51134 Proposed Rule—Comment Period: “n-Methylpyrrolidone (NMP); Regulation Under the Toxic Substances Control Act (TSCA)” (June 14, 2024) 

89 FR 50410 Rule: “Protection of Stratospheric Ozone: Listing of Substitutes Under the Significant New Alternatives Policy Program in Commercial and Industrial Refrigeration” (June 13, 2024) 

Forest Service 

89 FR 50548 Notice: “Final Record of Decision for the Revised Land Management Plan for the Grand Mesa, Uncompahgre, and Gunnison National Forests” (June 14, 2024) 

89 FR 48868 Notice: “Directive Publication Notice” (June 10, 2024) 

Foreign Agricultural Service 

89 FR 50547 Notice: “Determination of Total Amounts of Fiscal Year 2025 WTO Tariff-Rate Quotas for Raw Cane Sugar and Certain Sugars, Syrups and Molasses” (June 14, 2024) 

National Agricultural Library 

89 FR 50255 Notice—Comment Period: “Notice of Intent to Seek Approval to Collect Information” (June 13, 2024) 

National Resource Conservation Service 

89 FR 50549 Notice—Comment Period: “Notice of Intent to Prepare an Environmental Impact Statement for the Elm and Turkey Creeks Watershed Project in Buffalo and Dawson Counties, Nebraska” (June 14, 2024) 

89 FR 50551 Notice—Comment Period: “Notice of Intent to Prepare an Environmental Impact Statement for the Lower Bear River Watershed Plan in Box Elder County, Utah” (June 14, 2024) 

Rural Business-Cooperative Service 

89 FR 49826 Notice—Comment Period: “Notice of Funding Opportunity for the Delta Health Care Services Grant Program for Fiscal Year 2024” (June 12, 2024) 

Rural Housing Service 

89 FR 50554 Notice: “Notice of Funding Availability for the Section 533 Housing Preservation Grant (HPG) for Fiscal Year 2024” (June 14, 2024) 

89 FR 48870 Notice: “Notice of Funding Availability for the Rural Community Development Initiative (RCDI) for Fiscal Year 2024” (June 10, 2024) 

U.S. HOUSE AGRICULTURE COMMITTEE:  

H.R.8765 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 with respect to emergency assistance for farm workers, and for other purposes.” Referred to the House Committee on Agriculture. (June 14, 2024) 

H.R.8757 “To prohibit the use of Federal funds to support cell-cultured meat, and for other purposes.” Referred to the House Committee on Agriculture. (June 14, 2024) 

H.R.8754 “To amend the Food Security Act of 1985 to encourage practices that benefit both soil and wildlife habitat by increasing payments to producers for such practices under the environmental quality incentives program and the conservation stewardship program, and for other purposes.” Referred to the House Committee on Agriculture. (June 14, 2024) 

H.R.8724 “To amend the Food and Nutrition Act of 2008 to allow States to waive certain administrative requirements for recertification, and for other purposes.” Referred to the House Committee on Agriculture. (June 13, 2024) 

H.R.8613 “To direct the Secretary of Agriculture and the Director of the National Science Foundation to carry out cross-cutting and collaborative research and development activities focused on the joint advancement of Department of Agriculture and National Science Foundation mission requirements and priorities, and for other purposes.” Ordered to be Reported (Amended) by Voice Vote. (June 13, 2024) 

H.J.Res.167 “Disapproving the rule submitted by the Department of Agriculture relating to “Use of Electronic Identification Eartags as Official Identification in Cattle and Bison”.” Referred to the House Committee on Agriculture. (June 13, 2024) 

H.R.8699 “To amend title 49, United States Code, to direct the Secretary of Transportation to develop an enforcement mechanism with respect to certain provisions relating to the transport of animals, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (June 11, 2024) 

H.R.8676 “To reduce enteric methane emissions, and for other purposes.” Referred to the House Committee on Agriculture (June 11, 2024) 

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

S.4551 “A bill to amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to modify the BARD Fund, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 13, 2024) 

S.4545 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 with respect to emergency assistance for farmworkers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 13, 2024) 

S.4543 “A bill to amend the Food and Nutrition Act of 2008 to allow States to waive certain administrative requirements for recertification, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 13, 2024) 

S.4525 “A bill to amend the Richard B. Russell National School Lunch Act to expand community eligibility, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 12, 2024) 

S.4523 “A bill to amend the Richard B. Russell National School Lunch Act to expand community eligibility, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 12, 2024) 

S.4499 “A bill to reauthorize grants to the Girl Scouts of the United States of America, the Boy Scouts of America, the National 4-H Council, and the National FFA Organization to establish pilot projects to expand the programs carried out by the organizations in rural areas and small towns, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 11, 2024) 

S.4488 “A bill to amend the Agriculture and Consumer Protection Act of 1973 to establish a pilot program to award grants to facilitate home delivery of commodities under the commodity supplemental food program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (June 11, 2024) 

Agriculture-Related Legislative Hearings & Reports 

Senate Committee on Ag., Nutrition, & Forestry, Hearing on the High Plains: Combating Drought with Innovation, June 26, 2024, 11:00 a.m. EDT.  

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES 

Shapiro Administration Invests $9.8 Million To Protect 2,629 Acres On 28 Farms In 19 Pennsylvania Counties From Future Development (June 13, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 24—June 15, 2024):   

Department of Agriculture 

54 Pa.B. 3413 Notice: “Fertilizer Nutrient Values” 

54 Pa.B. 3413 Notice: “General Quarantine Order; Influenza A Viruses in Ruminants; Exhibition of Dairy Cattle” 

54 Pa.B. 3318 Proposed Rule: “Milk Sanitation” 

54 Pa.B. 3415 Notice: “Program Requirements for the Very Small Meat and Poultry Processor Reimbursement Grant Program” 

Department of Conservation and Natural Resources 

54 Pa.B. 3419 Notice: “Wild Resource Conservation Program; Public Hearing” 

Department of Environmental Protection 

54 Pa.B. 3420 Notice: “Applications, Actions and Special Notices” 

PENNSYLVANIA LEGISLATURE  

HB 2420 “An Act establishing the Keystone Fresh Program; providing for the Fresh Schools Grant Program, for the Keystone Producer Grant Program, for the Keystone Assistance Grant Program and for the administration of the Keystone Fresh Program by the Department of Education and the Department of Agriculture; and establishing the Keystone Fresh Fund.” Referred to Agriculture and Rural Affairs (June 13, 2024) 

SB 277 “An Act amending the … Rural Pennsylvania Revitalization Act, in Center for Rural Pennsylvania, further providing for board of directors; establishing the Rural Population Revitalization Commission and providing for duties of the commission; and making a repeal.” Act No. 21 of 2024 (June 10, 2024) 

Contributors: 

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