October 11, 2024

Agricultural Law Weekly Review—October 11, 2024

Agricultural Labor: Federal Court Partially Enjoins 2023 H-2A Adverse Effect Wage Calculation Rule 🌾
On September 18, 2024, the U.S. District Court for the Western District of Louisiana issued a memorandum opinion partially granting a preliminary injunction against the Department of Labor’s (DOL) February 2023 final rule, which amended the H-2A adverse effect wage rate (AEWR) calculations to include data from non-agricultural occupations. Teche Vermilion Sugar Cane Growers Assoc. Inc v. Su, No. 6:23-cv-00831. In their complaint, the plaintiffs “challenge[d] the DOL’s decision to base the AEWR for H-2A workers who haul sugarcane from the field to the processing plants using heavy or tractor-trailer trucks on the wage rates for . . . non-agricultural heavy truck drivers,” which raised the wage rates for Louisiana H-2A sugarcane workers “from approximately $13 an hour to approximately $25 an hour.” Although federal courts in two previous cases had rejected challenges to the rule, the Louisiana Western District Court noted that, under Loper Bright, “Chevron’s rule of deference is no longer applicable,” and determined that it “must . . . exercis[e] independent judgment in determining the meaning of” the underlying statute to analyze whether the two groups of workers are “similarly employed” such that the H-2A sugar cane workers’ wages might adversely affect the wages of domestic heavy truck drivers. The court then analyzed the employment duration, work environment, nature of tasks performed, and credential requirements and found that the two groups of workers are not “similarly employed,” noting that “DOL does not address the fact that an H-2A worker with no [Commercial Driver’s License] is qualified to haul sugarcane during the harvest season but would not be qualified to perform other transportation jobs falling under the non-farm Heavy and Tractor-trailer Truck Driver” classification. The court further stated, “DOL appears to ground its new AEWR methodology—at least as it applies to sugarcane truck drivers—solely on the type of equipment used by these workers without considering the broader question of whether the wages and working conditions of one group will have any impact on the wages and working conditions of the other group, which is what section 1188 requires.” The preliminary injunction is “limited to H-2A workers employed in sugar cane farming and processing operations in the State of Louisiana,” and “applies only to H-2A workers hired by the . . . Plaintiffs” and their members. See also materials from Understanding the Basics of the H-2A Program and the Center’s H-2A Issue Tracker.

Pesticides/Herbicides: EPA Publishes Pesticide Exposure Final Rule
On October 4, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a final rule titled, “Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments” (89 FR 80767). Also announced by EPA, the rule “finalizes the agency’s 2023 proposed rule without change” and reinstates several provisions of the 2015 Agricultural Worker Protection Standards. The final rule reduces the application exclusion zone (AEZ), the area surrounding a pesticide application, from 100 feet to 25 feet for medium or larger sprays applied from a height of greater than 12 inches and, for fine sprays, increases the AEZ to 100 feet. Additionally, the final rule allows farm owners and their immediate family members to remain within an AEZ during pesticide application if they are inside an enclosed home. See also ALWR—Feb. 27, 2023, “EPA Proposes New Rule for Pesticide Application Exclusion Zone.”

Regulatory Policy: Food and Drug Administration Announces Reorganization Structures
On September 30, 2024, the U.S. Food and Drug Administration (FDA) published in the Federal Register a notice (89 FR 79622) announcing that the agency’s “Center for Veterinary Medicine’s (CVM), Office of Management (OM) and Office of New Animal Drug Evaluation (ONADE) have modified their organizational structures.” According to the notice, “the reorganization retitled ONADE to the Office of New Animal Product Evaluation (ONAPE)” and “established the Office of Generic Animal Drugs (OGAD),” among other changes. Additionally, on October 1, 2024, FDA began implementation of its new Unified Human Foods Program, which the agency called “the single largest reorganization in the agency’s recent history.” See also ALWR—June 10, 2024, “FDA Modifies Organizational Structure, Creates ‘Human Foods Program.’” 

Conservation Programs: GAO Publishes Study on Conservation Reserve Program
On September 25, 2024, the U.S. Government Accountability Office (GAO) published a study on the Conservation Reserve Program (CRP) titled “Improving How USDA Selects Land Could Increase Environmental Benefits.” The study found that the Farm Service Agency (FSA) inconsistently applies “science-based information” to land selection and lacks a set procedure for reviewing CRP selection methods. The GAO recommended that the FSA (1) build efforts to incorporate “reliable science-based information” for CRP selection methods, (2) develop review processes for selection methods for the CRP, (3) address findings from new review processes to update and enhance the CRP selection methods, and (4) analyze information about environmental benefits annually and report the information to the general public.

Technology: EPA, FDA, and USDA Publish ‘Unified Website for Biotechnology Regulation’
On October 2, 2024, the U.S. Environmental Protection Agency (EPA), Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) announced the Unified Website for Biotechnology Regulation. According to the agencies, the new website “provides a starting point for researchers and developers, especially those new to biotechnology product development, to navigate the regulatory requirements for genetically modified microorganisms,” which were previously spread across EPA, FDA, and USDA websites. The website is part of the Coordinated Framework for the Regulation of Biotechnology, a multi-agency regulatory plan updated to fulfill Executive Order 14081, issued by the Biden administration on September 15, 2022.

 

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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:

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Navigating Employment Regulations on the Farm, Center Staff Attorney Brook Duer with Penn State Extension. A producer-focused review of laws and regulations governing farm employment (No attorney CLE).

  • Oct. 28, 2024, 1:00–2:30pm (ET)

Podcasts:

Farmland Legal Energy Podcast

Introduction to Precision Agriculture

An Overview of Critical Minerals

Commercial Energy Payments on Farmland

Resources of Interest:

Lancaster Farming, Pennsylvania, Maryland Seek Tighter Rules for Spreading Food Processing Waste, Brook Duer, Center for Agricultural and Shale Law (Sep. 20, 2024)

Nat’l Agric. Law Ctr., Meat and Poultry Labels: Updated Guidelines & Opportunity for Comment, Elizabeth Rumley (Sep. 26, 2024)

Agric. Law & Tax’n Blog, More “Stuff” in the Ag Law and Tax World, Roger A. McEowen (Sep. 24, 2024)

Univ. Md. Risk Mgmt. Educ. Blog, MDE Seeks Public Input On Animal Feeding Operations Permit, Nicole Cook (Sep. 24, 2024)

Southern Ag Today, Contract Broilers Growers Could See Changes in Their Pay Arrangements, Dennis Brothers, Alabama Coop. Ext. (Sep. 23, 2024)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. ENVIROMENTAL PROTECTION AGENCY

EPA Reaches Settlement with Underwater Creations Inc. in St. Louis Park, Minnesota, for Alleged Pesticide Violations (Sep. 27, 2024)

EPA settlement with Superior Farms resolves chemical risk violations at North Denver facility (Sep. 25, 2024)

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Biden-Harris Administration Partners with Organizations to Bring Affordable Clean Energy to Rural Americans as Part of Investing in America Agenda (Sep. 25, 2024)

USDA Invests $466.5 Million in Food Assistance, Agricultural Development Projects Worldwide (Sep. 24, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service

USDA Cites American Fruit & Produce Corp. in Florida for PACA Violations (Sep. 24, 2024)

USDA Restricts PACA Violators in California, Maryland and Texas from Operating in the Produce Industry (Sep. 24, 2024)

USDA Restricts PACA Violators in Louisiana, New York and Texas From Operating in the Produce Industry (Sep. 23, 2024)

USDA Restricts PACA Violators in Florida, New Jersey and Texas from Operating in the Produce Industry (Sep. 23, 2024)

Animal and Plant Health Inspection Service

Plant Protection Today: USDA’s Snail Study Benefits From Collective Efforts (Sep. 26, 2024)

Economic Research Service

Recent Developments in Ad Hoc Assistance Programs for Agricultural Producers (Sep. 26, 2024)

Farm Service Agency

USDA Offers $58 Million in Available Assistance to Help Organic Dairy Producers (Sep. 26, 2024)

USDA Announces Fiscal Year 2025 Sugar Loan Rates (Sep. 24, 2024)

National Institute of Food and Agriculture

NIFA Invests $3.7M in Small and Medium-Sized Farms (Sep. 25, 2024)

NIFA Invests $6.7 Million in Food and Agricultural Nonformal Education (Sep. 25, 2024)

NIFA Invests $5.3M in Engineering for Precision Crop and Water Management (Sep. 25, 2024)

NIFA invests $5.1M to Develop Agriculture Systems and Technology (Sep. 25, 2024)

National Resource Conversation Service

Historic On-Farm Conservation Funding Assistance Available for Producers (Sep. 27, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Sep. 23–27, 2024):   

Agricultural Department

89 FR 79226 Notice: “Submission for OMB Review; Comment Request” (Sep. 27. 2024)

89 FR 78841 Notice: “Submission for OMB Review; Comment Request; Reinstatement” (Sep. 26, 2024)

89 FR 78841 Notice: “Submission for OMB Review; Comment Request” (Sep. 26, 2024)

Agricultural Marketing Service

89 FR 79175 Proposed Rule—Comment Period: “Irish Potatoes Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon; Increased Assessment Rate” (Sep. 27, 2024)

Animal and Plant Health Inspection Service

89 FR 79227 Notice: “Notice of Decision to Authorize the Importation of Fresh Table Beet Root for Consumption from the United Kingdom into the Continental United States, Hawaii, Puerto Rico, and the U.S. Virgin Islands” (Sep. 27, 2024)

Food and Nutrition Service

89 FR 79174 Proposed Rule: “Supplemental Nutrition Assistance Program (SNAP): Disaster Supplemental Nutrition Assistance Program (D-SNAP); Withdrawal” (Sep. 27, 2024)

Forest Service

89 FR 79227 Notice: “Dakota Prairie Grasslands; North Dakota; Withdrawal of the Notice of Intent for Dakota Prairie Grasslands Land and Resource Plan Amendment and Site-Specific Projects for the Elkhorn Ranchlands” (Sep. 27, 2024)

89 FR 79228 Notice: “Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act” (Sep. 27, 2024)

89 FR 78842 Notice: “Proposed Recreation Fee Sites” (Sep. 26, 2024)

89 FR 78842 Notice—Comment Period: “Eldorado and Stanislaus National Forests; California; Mokelumne Amador Calaveras Forest Resilience Project” (Sep. 26, 2024)

National Resource Conservation Service

89 FR 77811 Notice—Comment Period: “Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service” (Sep. 24, 2024)

Rural Housing Service

89 FR 79229 Notice: “Notice of Funds Availability (NOFA) for the Multifamily Housing Preservation and Revitalization Demonstration Program (MPR) and for Section 515 Subsequent Loans for Preservation Activities for the Fiscal Year (FY) 2024” (Sep. 27, 2024)

89 FR 78279 Notice—Comment Period: “60-Day Notice of Proposed Information Collection: Civil Rights Compliance Requirements; OMB Control No.: 0575-0018″ (Sep. 25, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.9795 “HOMEGROWN Soil Health Act” Referred to the House Committee on Agriculture (Sep. 25, 2024)

H.R.9794 “Industrial Agriculture Conversion Act of 2024” Referred to the House Committee on Agriculture (Sep. 25, 2024)

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

S.5231 “A bill to require the Secretary of Agriculture to establish a pilot program to implement a pre-qualification or pre-approval process for farmers and ranchers with respect to a direct farm ownership loan under the Consolidated Farm and Rural Development Act, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sep. 25, 2024)

Agriculture-Related Legislative Hearings & Reports

No Upcoming Hearings or Reports

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES

Shapiro Administration Announces 2025 PA Farm Show Theme: Powering Pennsylvania (Sep. 26, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 39—Sep. 28, 2024): 

Department of Environment Protection

54 Pa.B. 6121 Notice: “Pennsylvania Agriculture Innovation Grant Program; 2024-2025 Program Guidelines”

PENNSYLVANIA LEGISLATURE

HB 42 “An Act amending the act of April 28, 1937 (P.L.417, No.105), known as the Milk Marketing Law, in licenses of milk dealers, further providing for penalties in lieu of suspension; and, in weighing and testing, further providing for certified testers and for certified weighers and samplers.” Laid on the table (Sep. 23, 2024)

 

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