May 1, 2023

Agricultural Law Weekly Review—May 1, 2023

WOTUS: Sixth Circuit Grants Administrative Stay of WOTUS Rule in Kentucky Until May 10, 2023 🌾
On April 22, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting an administrative stay of the U.S. Environmental Protection Agency’s (EPA) January 2023 WOTUS final rule (WOTUS). KY v. EPA, No. 23-5343. The Sixth Circuit case is an appeal from the Kentucky federal district court’s previous complete dismissal of the case legally challenging the WOTUS final rule. The administrative stay order was entered twice, once on April 20 and again on April 22, 2023, in response to an EPA motion for clarification. The revised April 22 order clarifies that the court is entering an administrative stay until May 10, 2023, of the January 2023 WOTUS final rule applicable only “inside the Commonwealth of Kentucky,” and strictly to the parties to this case. See also ALWR—April 10, 2023, “District Court Dismisses Kentucky WOTUS Challenge for Lack of Standing.”

Antitrust: JBS Agrees to $25 Million Antitrust Settlement
On April 14, 2023, the class Commercial and Institutional Indirect Purchaser Plaintiffs (CIIPPs) submitted a motion for preliminary approval of a class action settlement with defendants JBS S.A. and JBS USA Food Company (JBS) to the U.S. District Court for the District of Minnesota. In Re: Cattle and Beef Antitrust Litigation, No. 0:22-md-03031. Under the settlement, JBS will pay $25 million to a settlement fund and cooperate in other unsettled cases. This motion is awaiting court approval. For background see the Center’s Agricultural Antitrust Litigation Issue Tracker.

Air Quality: EPA May Rescind EPCRA Farm Exemption; Conducts Meetings with Stakeholders
On March 29, 2023, the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) received notice from the U.S. Environmental Protection Agency (EPA) that the agency is “considering rescinding” its June 2019 final rule exempting farms from air emissions reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). This EPA action was in response to a February 2022 federal court order remanding, but not immediately vacating, the EPCRA farm exemption. The order requires EPA to either rescind the rule or conduct notice-and-comment rulemaking and promulgate a new rule. Rural Empowerment Ass’n for Comm. Help v. EPA, No. 1:18-cv-02260 (D. D.C.). On April 3, 2023, EPA gave OMB’s OIRA notice of a “pre-rule” titled “Soliciting Information for Potential Rulemaking for Animal Waste Air Emissions under the Emergency Planning and Community Right-to-Know Act.” On April 18, 2023, EPA met with representatives from several producer groups, prompted by a request by the National Pork Producers Council (NPPC). Thee meeting included representatives from American Farm Bureau Federation, United Egg Producers, US Poultry and Egg Association, National Cattlemen’s Beef Association, National Chicken Council, National Turkey Federation, and National Milk Producers Federation.

Agricultural Labor: DOL Seeks to Pay Back Wages to 2,900 Workers Employed in 2015 HPAI Flu Outbreak
On April 10, 2023, the U.S. Department of Labor (DOL) announced that its Wage and Hour Division is seeking to locate 2,900 workers, employed at numerous sites throughout Iowa during the 2015 bird flu outbreak, who received less than the required prevailing wage for federal contractors. According to the announcement, DOL secured a consent judgment in September 2022 that allows the agency to recover $1.7 million for the workers (approximately $585 per person). The workers were employed by 145 subcontractors, including Clean Harbors Environmental Services Inc., Center for Toxicology & Environmental Health, Cotton Logistics, SWS Environmental Services, Trident Environmental Group LLC, and Triad Services.

Conservation Programs: USDA Announces Grassland Conservation Reserve Program Signup for 2023
On April 17, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced the enrollment period for the USDA Grassland Conservation Reserve Program for 2023. Enrollment will run from April 17 to May 26, 2023. Interested producers can apply through their local USDA Service Center.

Agricultural Labor: Congress Members Urge USDA Federal Suspension and Debarment Action Against JBS
On April 19, 2023, Senator Elizabeth Warren and Congressman Jamie Raskin formally requested via letter that Secretary of Agriculture Vilsack reconsider his decision not to initiate federal suspension and debarment proceedings against JBS USA (JBS), which includes Pilgrim’s Pride, citing JBS’s history of criminal conduct, convictions, and utilization of child labor. JBS contracted with Packers Sanitation Services Inc. (Packers), which was recently fined by the Department of Labor for employing children in hazardous occupations at JBS plants. The request states that, in 2022, JBS and Pilgrim’s Pride had federal protein procurement contracts worth $60 million. Preceding this request, on April 12, 2023, USDA announced that Secretary Vilsack formally requested via letter that the meat and poultry industry eliminate the use of child labor from their supply chains. The letter stated that USDA “would use [its] procurement and regulatory authorities” to address child labor usage “as quickly as possible.” Secretary Vilsack has not yet responded to Warren and Raskin’s letter. For background see, ALWR—Feb. 27, 2023, “Meatpacking Plant Sanitation Contractor Pays $1.5M Fine for Child Labor Violations.”

Technology: Colorado Governor Signs Right-to-Repair Law
On April 25, 2023, Colorado Governor Polis signed into law the first state so-called “right to repair” law in the United States, technically titled the “Consumer Repair Bill of Rights Act.” For background, see ALWR—Apr. 24, 2023, “Colorado Senate Passes Right-to-Repair Legislation.”

Animal Welfare: Xylazine Temporarily a Schedule III Drug in Pennsylvania
On April 22, 2023, the Pennsylvania Department of Health (PDH) published a Notice in the Pennsylvania Bulletin titled “Temporary Scheduling of Substance; Xylazine as a Schedule III Controlled Substance.” PDH intends to issue a final notice temporarily classifying Xylazine, a sedative commonly used by veterinarians, as a Schedule III drug under the Controlled Substance, Drug, Device and Cosmetic Act. This move will restrict access to Xylazine, which PDH hopes will help decrease opioid abuse. The Pennsylvania Office of the Attorney General has 30 days to comment on the Notice.

Water Quality: American Society of Agronomy Announces Memorandum of Understanding With NRCS
On April 18, 2023, the American Society of Agronomy announced that it had signed a Memorandum of Understanding (MOU) with the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) to improve nutrient management. Under the MOU, the ASA’s International Certified Crop Adviser (ICCA) will recommend producers to the NRCS Technical Service Provider program.

 

____________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

CENTER PROGRAMS & RESOURCES

Events:

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.

  • May 17, 2023, noon–1 pm (ET). Register.

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Next in the series:

  • May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes

An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.

  • June 21, 2023, noon–1 pm (ET). Register.

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Latest in the series:

Legal Planning for Specialty Crop Producers. A free six-webinar series is available for on-demand viewing by registering.

Podcasts:

Resources of Interest:

Legislative Hearings/Meetings/Reports:

U.S. Sen. Ag. Committee Hearings:

U.S. House Ag. Committee Hearings:

Pennsylvania General Assembly Committee Hearings:

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

_____________________________________________________________

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE 

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Highlights Critical Role of Agricultural R&D at G20 Meeting of Agricultural Chief Scientists (Apr. 20, 2023).

Biden-Harris Administration Announces New Steps for Climate Resilience and Forest Conservation (Apr. 20, 2023).

USDA Invests Over $46M in Sustainable Agriculture Research and Education (Apr. 19, 2023).

USDA Announces Funding Availability to Expand Meat and Poultry Processing Options for Underserved Producers and Tribal Communities (Apr. 19, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

MEDIA ADVISORY: EPA, USDA and the City of Atlanta to Recognize Earth Day at Community Engagement Event on Urban Farm (Apr. 19, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Illinois (Apr. 21, 2023).

USDA Takes Steps to Support Food Sovereignty with the Red Cliff Band of Lake Superior Chippewa Indians (Apr. 20, 2023).

USDA Announces Funding Availability to Expand Meat and Poultry Processing Options for Underserved Producers and Tribal Communities (Apr. 19, 2023).

USDA Cites Island Fresh De Puerto Rico Inc. in Puerto Rico for PACA Violations (Apr. 18, 2023).

Agricultural Research Service (ARS)

USDA-ARS Names Two Scientists to Hall of Fame (Apr. 19, 2023).

Animal and Plant Health Inspection Service (APHIS)

USDA Announces $2.29 Million in Farm Bill Funding to Protect Animal Health (Apr. 21, 2023).

Economic Research Service (ERS)

Irrigation Organizations: Groundwater Management (Apr. 18, 2023).

Farm Service Agency (FSA)

USDA Announces 2023 Cotton Loan Rate Differentials (Apr. 17, 2023).

USDA Announces Grassland Conservation Reserve Program Signup for 2023 (Apr. 17, 2023).

Food and Nutrition Service (FNS)

Putting the CO in Co-located Services (Apr. 21, 2023).

USDA Announces Funding Availability to Expand Meat and Poultry Processing Options for Underserved Producers and Tribal Communities (Apr. 19, 2023).

USDA Continues to Modernize, Innovate WIC Program to Improve Maternal, Child Health (Apr. 18, 2023).

USDA to Host National Consultations on Tribal Barriers the Week of April 24 (Apr. 18, 2023).

Foreign Agricultural Service (FAS)

USDA Trade and Foreign Agricultural Affairs Under Secretary Taylor Launches Trade Mission to the Netherlands (Apr. 17, 2023).

National Institute of Food and Agriculture (NIFA)

USDA Invests Over $46M in Sustainable Agriculture Research and Education (Apr. 19, 2023).

NIFA-Funded Researchers Aim to Develop Climate-Resilient Rice (Apr. 18, 2023).

Engaging Community Volunteers Helps Reduce Food Insecurity in Montana (Apr. 17, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 17 – Apr. 21, 2023):            

Agricultural Marketing Service

88 FR 23323 Final Rule: “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2023-2024 Marketing Year” (Apr. 17, 2023).

Agriculture Department

88 FR 24382 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Review of Major Changes in the Supplemental Nutrition Assistance Program (SNAP).]” (Apr. 21, 2023).

88 FR 23618 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: Broadband Technical Assistance Program.]” (Apr. 18, 2023).

88 FR 23618 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Cotton Ginning Survey.]” (Apr. 18, 2023).

Animal and Plant Health Inspection Service

88 FR 23619 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; National Veterinary Accreditation Program” (Apr. 18, 2023).

88 FR 23365 Proposed Rule—Public Comment: “Cut Flowers Regulations; Removal of Chrysanthemum White Rust-Related Provisions” (Apr. 17, 2023).

88 FR 23391 Notice: “General Conference Committee of the National Poultry Improvement Plan” (Apr. 17, 2023).

88 FR 23390 Notice—Public Comment: “Deregulation of Chrysanthemum White Rust and the Importation of Chrysanthemum spp. Cuttings, and In Vitro Plantlets, and Synonymous Genera From Certain Countries Into the Continental United States” (Apr. 17, 2023).

Environmental Protection Agency

88 FR 24616 Notice: “Pesticide Program Dialogue Committee; Notice of Public Meeting” (Apr. 21, 2023).

Food and Nutrition Service

88 FR 23559 Final Rule: “Supplemental Nutrition Assistance Program: Non-Discretionary Quality Control Provisions of Title IV of the Agricultural Improvement Act of 2018” (Apr. 18, 2023).

Land Management Bureau

88 FR 24627 Notice: “Notice of Availability of the Draft Programmatic Environmental Impact Statement for Approval of Herbicide Active Ingredients for Use on Public Lands” (Apr. 21, 2023).

Rural Housing Service

88 FR 24544 Notice: “Community Facilities Technical Assistance and Training Grant Program for Fiscal Year 2023” (Apr. 21, 2023).

88 FR 24148 Notice: “Notice of Funding Availability for the Section 533 Housing Preservation Grant (HPG) for Fiscal Year 2023” (Apr. 19, 2023).

Rural Utilities Service

88 FR 24154 Notice—Public Comment: “Funding Opportunity Announcement for the Broadband Technical Assistance for Fiscal Year 2023” (Apr. 19, 2023).

Susquehanna River Basin Commission

88 FR 23490 Notice—Public Comment: “Public Hearing” (Apr. 17, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.2787 “To amend the Consolidated Farm and Rural Development Act to modify provisions relating to rural decentralized water systems grants.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).

H.R.2786 “To amend the Cooperative Forestry Assistance Act of 1978 to prioritize urban and community forestry assistance for areas with low tree equity scores, to establish a grant program to enhance public elementary and secondary school rooftop gardens, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Education and the Workforce. (Apr. 20, 2023).

H.R.2783 “To establish an integrated research, education, and extension competitive grant program and scholarship grant program for certain Asian American Native American Pacific Islander-Serving agricultural institutions, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).

H.R.2742 “To amend the Animal Welfare Act to provide for greater protection of roosters, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Oversight and Accountability. (Apr. 20, 2023).

H.R.2740 “To establish an Office of Colonia Affairs within the Department of Agriculture, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).

H.R.2723 “Local Farms and Food Act of 2023.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).

H.R.2720 “To direct the agricultural research service to expand organic research, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).

H.R.2719 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to establish a competitive grant program under which the Secretary of Agriculture provides grants to land-grant colleges and universities to support agricultural producers in adopting conservation and innovative climate practices, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).

H.R.1646 “New Markets for State-Inspected Meat and Poultry Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).

H.R.1645 “Biochar Research Network Act of 2023.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 19, 2023).

H.R.1624 “Puppy Protection Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).

H.R.1614 “Range Access Act.” Referred to the Subcommittee on Forestry. (Apr. 19, 2023).

H.R.1604 “U.S.A. Beef Act.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).

H.R.1473 “Targeting and Offsetting Existing Illegal Contaminants Act.” Referred to the Subcommittee on Forestry. (Apr. 19, 2023).

H.R.2695 “To amend the Agricultural Act of 2014 to provide emergency relief to producers of livestock with herds adversely affected by Mexican gray wolves, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 18, 2023).

H.R.2689 “To improve the service delivery of agencies and public perception of agency interactions, and for other purposes.” Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Foreign Affairs, Ways and Means, Natural Resources, Agriculture, Energy and Commerce, Education and the Workforce, Veterans’ Affairs, Homeland Security, Small Business, and Armed Services. (Apr. 18, 2023). H.R.2645 “Keeping Families Fed Act of 2023.” Referred to the House Committee on Agriculture. (Apr. 17, 2023).

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

S.1238 “A bill to amend the Plant Protection Act for purposes of mitigating the threat of invasive species, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).

S.1233 “A bill to amend the Consolidated Farm and Rural Development Act to modify provisions relating to rural decentralized water systems grants.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).

S.1224 “A bill to amend the Food Security Act of 1985 to modify the conservation reserve enhancement program.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).

S.1216 “A bill to amend Public Law 91-378 to authorize activities relating to Civilian Conservation Centers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 19, 2023).

S.1205 “A bill to modify market development programs under the Department of Agriculture, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 19, 2023).

S.1188 “SNAP Reform and Upward Mobility Act of 2023.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 18, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Shapiro Administration Invites Proposals For $2.187 Million For Research Critical To Growing Pennsylvania Agriculture Industry (Apr. 21, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 16—Apr. 22, 2023) 

Department of Agriculture

53 Pa.B. 2190 Notice: “Program Requirements for the Very Small Meat and Poultry Processor Reimbursement Grant Program.”

Department of Environmental Protection 

53 Pa.B. 2193 Notice: “Applications.”

53 Pa.B. 2266 Notice: “Climate Change Advisory Committee Meeting Location Change.”

53 Pa.B. 2266 Notice: “Federal Consistency under the Coastal Zone Management Act; Packer Marine Terminal Turning Basin Dredged Material Disposal at the Fort Mifflin Confined Disposal Facility.”

53 Pa.B. 2266 Notice: “Interstate Pollution Transport Reduction; Final 2023 Ozone Season Nitrogen Oxide Emission Limits for Nonelectric Generating Units.”

State Conservation Commission

53 Pa.B. 2279 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

Susquehanna River Basin Commission

53 Pa.B. 2280 Notice: “Grandfathering Registration Notice.”

53 Pa.B. 2280 Notice: “Projects Approved for Consumptive Uses of Water.”

53 Pa.B. 2282 Notice: “Projects Approved for Minor Modifications.”

53 Pa.B. 2282 Notice: “Public Hearing.”

PENNSYLVANIA LEGISLATURE

HB 953 “An Act repealing the act of September 1, 1965 (P.L.420, No.215), known as The Frozen Dessert Law.” Referred to Agricultural and Rural Affairs [House]. (Apr. 20, 2023).

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Brook Duer—Staff Attorney