October 15, 2023

Agricultural Law Weekly Review—October 16, 2023

Agricultural Labor: Supreme Court Denies Case to Apply FLSA ‘Agricultural Exemption’ to On-Farm Construction 🌾
On October 2, 2023, the U.S. Supreme Court denied a petition for certiorari in a case questioning whether a company must pay overtime to H-2A employees who construct on-farm livestock confinement facilities or whether those employees are exempted from Fair Labor Standards Act (FLSA) overtime requirements as “agricultural workers.” Signet Builders Inc. v. Vanegas, No. 22-869. The petitioner construction company sought to overturn a decision from the U.S. Court of Appeals for the Seventh Circuit, which found that the company had failed to show that the FLSA agricultural exemption barred the plaintiff’s overtime claims. Vanegas v. Signet Builders, Inc., No. 21-2644. The Seventh Circuit stated that “work falls within the FLSA secondary agricultural exemption only if it is both ‘performed by a farmer or on a farm’ and if it ‘does not amount to an independent business’” and noted that the Department of Labor’s (DOL) “regulations establish a fact-intensive, totality-of-the-circumstances test to determine whether work performed on a farm is agricultural or if it is an independent business.” The suit will now continue in the U.S. District Court for the Western District of Wisconsin. Vanegas v. Signet Builders, Inc., No. 3:21-cv-00054.

Food Policy: California Pass Five Bills Affecting Food, Climate, Pesticides, and Water
On October 7–8, 2023, California Governor Gavin Newsom approved five bills affecting food, climate and environment, pesticides, and water:

Effective January 1, 2027, AB 418 prohibits the sale or manufacture of food containing brominated vegetable oil, potassium bromate, propylparaben or red dye 3. SB 253 will phase in emissions reporting requirements through 2025–2030 for companies with annual revenues over $1 billion. AB 363 requires the state’s Department of Pesticide Regulation to “evaluate the impacts of neonicotinoid pesticide use in nonagricultural settings” and AB 1016 would add a “private applicator” category to the state’s unmanned pest control aircraft pilot’s certificate. SB 389 authorizes the California State Water Resources Control Board “to investigate and ascertain whether or not a water right is valid” and provides that “[a] diversion or use of water ascertained to be unauthorized may be enforced as a trespass.”

Dairy Policy: Pennsylvania Milk Marketing Board to Hold Cost Replacement and Over-Order Premium Hearings
On October 7, 2023, the Pennsylvania Milk Marketing Board (PMMB) published in the Pennsylvania Bulletin three notices announcing public hearings on cost replacement in Milk Marketing Areas No. 1 (53 Pa.B. 6321), No. 2 (53 Pa.B. 6322), and No. 4 (53 Pa.B. 6322). Also, on October 10, 2023, PMMB published on its website Bulletin No. 1637 announcing over-order premium hearings for all six Milk Marketing Areas. The cost replacement hearings will be held on December 6, 2023, at 9:00am, 9:30am, and 9:45am, respectively, and the over-order premium hearing will be held on December 6, 2023, at 10:00am. See also the Center’s PMMB Legal Development Issue Tracker.

Avian Influenza: USDA Confirms HPAI Detected in South Dakota, Utah, and Minnesota Commercial Turkey Flocks
As of October 11, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) has updated its online database of highly pathogenic avian influenza (HPAI) confirmed detections to reflect HPAI detections in commercial turkey flocks in Jerauld County, South Dakota (47,300 birds); Sanpete County, Utah (141,800 birds); and Meeker County, Minnesota (115,000 birds). These cases are the first detections of HPAI in commercial poultry flocks since April 2023. APHIS continues to maintain its public database and map, with 847 confirmed affected flocks across 47 affected states—seven of which have been affected in the last 30 days with at least one confirmed infected flock. See also ALWR—Sept. 11, 2023, “Pennsylvania Recognized as ‘HPAI-Free,’ Cleared to Resume Normal Poultry Trade.”

Dairy Policy: USDA Awards $23 Million to Dairy Business Innovation Program, Vermont Initiative Receives $7 Million
On October 3, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced $23 million for its Dairy Business Innovation Initiatives (DBII) grant program. AMS granted funds to DBI initiatives at four entities: California State University Fresno, the University of Tennessee, the University of Wisconsin, and the Vermont Agency of Agriculture, Food & Markets (VAAFM), which announced on October 5, 2023, that the agency’s Northeast Dairy Business Innovation Center (NE-DBIC) was awarded $7,053,333 through the DBII program. NE-DBIC supports dairy production in 11 Northeast states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont. See also the Center’s Dairy and Dairy Products Law Virtual Resource Room.

Agribusiness: Smithfield Foods and Tyson Foods, Inc. Announce Plant Closures
On October 9, 2023, Smithfield Foods announced that the company will close its Charlotte, North Carolina pork-processing plant and relocate production to another facility in Tar Heel, North Carolina. According to the announcement, the plant closure will impact 107 employees. Recently, on August 7, 2023, Tyson Foods, Inc’s Q3 2023 report disclosed the company’s plans to close four chicken facilities in Corydon, Indiana; Dexter, Missouri; Noel, Missouri; and North Little Rock, Arkansas and shift production to other facilities within the first two quarters of fiscal 2024. See also the Center’s Agricultural Antitrust Litigation Issue Tracker.

Agricultural Labor: New York Producer Group Seeks Injunction Against State’s 2020 Farm Labor Act
On October 2, 2023, the New York State Vegetable Growers Association (NYSVGA) filed a complaint in the U.S. District Court for the Western District of New York seeking an injunction against New York’s 2020 Farm Laborers Fair Labor Practices Act. New York State Vegetable Growers Association Inc. v. Hochul, No. 1:23-cv-01044. The NYSVGA alleges that the law’s required treatment of H-2A workers is preempted by federal law and violates due process because it requires farmers “‘to bargain over terms and conditions of employment that will apply to H-2A workers before such workers are actually employed’ based on the ‘votes’ (union card signatures) of a prior group of H-2A workers who ‘have returned to their home countries and are not employed.’” According to a scheduling order, the defendant’s answer is due November 20, 2023, the plaintiff’s reply is due December 11, 2023, and a preliminary injunction hearing is scheduled for December 28, 2023. See also the Center’s H-2A Program Agricultural Issue Tracker. 

 

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CENTER PROGRAMS & RESOURCES

Podcasts:

Agricultural Law Podcast

247. Environmental Organizations Sue EPA for Refusal to Expand CAFO Regulation (Oct. 10, 2023)

246. EPA’s Revised WOTUS Rule Conforming to Sackett (Sept. 25, 2023)

Farmland Legal Energy Podcast

159. An Introduction to Hydrogen and Agriculture (Oct. 10, 2023)

158. An Introduction to Anaerobic Digestion (Sept. 26, 2023)

Events:

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering 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.

Medicaid Look-back Ag Professional Continued Education Program with PA Farm Link

  • Wed. Oct. 25, 2023, 1:00–3:00pm (ET). Virtual and in-person at the Sheraton Harrisburg Hershey Hotel. Two hours of substantive CLE credit available for Pennsylvania-licensed attorneys at no cost to attendees. Presenter: MacGregor Brillhart, attorney at Stock & Leader.

ACRE Law 101: Agriculture, Stormwater, and Local Regulations with PA Agricultural Ombudsman Program

  • Thurs. Oct. 26, 10:30am–1:30pm (ET). In-person at Loyalsock Twp Volunteer Fire in Williamsport, PA. CLE and PDH Engineering credits available, lunch provided. Presenter: Robert Willig, Senior Deputy Attorney General for PA Office of the Attorney General.

Understanding Agricultural Law Series. 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. Upcoming:

Where Will Pennsylvania’s Solar Future Be Located and How Will It Get There?

  • Wed. Oct. 25, 2023, 1:00–2:00pm (ET), Virtual. Staff attorney Brook Duer will present with WeConservePA.

Legal Considerations for Retail Farmers Market Part 2

  • Tues. Oct. 31, 2023, noon–1 pm (ET), Virtual. Staff Attorney Brook Duer will present with the Small Business Development Center.

Keystone Crops and Soils Conference

  • Nov. 2, 2023. In person at the Grantville Holiday Inn. Staff Attorney Brook Duer will present “PA Fertilizer Law—What You Need to Know to be Compliant” at 2:00pm.

Making Laws Work for You, Part 1: Ag Security Areas, Farmland Preservation, and Clean & Green

  • Mon. Nov. 6, 2023, noon–1:30pm (ET). Virtual. Staff attorney Brook Duer will present with the Small Business Development Center.

Making Laws Work for You, Part 2: Right to Farm, ACRE, and the Agritourism Activity Protection Act

  • Mon. Dec. 11, 2023, noon–1:30pm (ET). Virtual. Staff attorney Brook Duer will present with the Small Business Development Center.

2023 Annual Agricultural and Environmental Law Conference

  • Nov. 16, 2023. In-person at the Crowne Plaza Hotel in Annapolis. Staff Attorney Brook Duer will present “HPAI: How Can We Miss You, If You Won’t Go Away?” at 12:45pm.

Resources of Interest:

Ohio St. Univ. Ext. Farm Off. Blog, Ohio Contemplating Temporary CAUV Changes, Jeffrey Lewis (Oct. 6, 2023)

Nat’l Agric. Law Ctr., The NALC Quarterly Newsletter: 3Q23, Harrison Pittman (Oct. 6, 2023)

Nat’l Agric. Law Ctr., DOL, DHS, and USDA Launch New Proposed Rules and Initiatives Affecting H-2 Programs, Samantha Capaldo (Oct. 5, 2023)

Southern Ag Today, U.S. Agricultural Imports are Expected to Surpass Exports Post Covid and Beyond, Luis Ribera (Oct. 5, 2023)

Southern Ag Today, Dairy Revenue Protection Historical Performance for Class Price, Wyatt Haley (Oct. 4, 2023)

Nat’l Agric. Law Ctr., State Proposals on Restricting Foreign Ownership of Farmland: Part Eight, Micah Brown (Oct. 3, 2023)

Univ. Md. Risk Mgmt. Educ. Blog, New Shellfish Pilot Crop Insurance Program for Container-Grown Oystershu, Nicole Cook (Oct. 3, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, The Ag Law Harvest, Jeffrey Lewis (Oct. 2, 2023)

Agric. Law & Tax’n Blog, KSU Tax Institutes – Kansas and Online, Roger McEowen (Oct. 2, 2023)

Tex. A&M Agric. Law Blog, Texans to Vote on Right to Farm Constitutional Amendment November 7, Tiffany Dowell Lashmet (Oct. 2, 2023)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Announces $27.6 Million to Support Underserved and Veteran Farmers and Ranchers through the 2501 Program (Oct. 4, 2023)

U.S. Department of Agriculture Announces Key Staff Appointments (Oct. 3, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Biden-Harris Administration Advances Latest Actions to Address Climate-Damaging HFC Emissions and Boost American Leadership on Safer, More Efficient Technologies (Oct. 6, 2023)

EPA Announces $4 Million Now Available for Technical Assistance Providing Evaluation Support for EPA Grant Funding Recipients (Oct. 5, 2023)

EPA $6.3M grant to Salmon-Safe expands agricultural certification program across Columbia Basin (Oct. 4, 2023)

EPA Announces nearly $700,000 in Settlements for Clean Air Act Violations with Companies in the San Juan Basin (Oct. 3, 2023)

EPA settlement with XTO Energy resolves Safe Drinking Water Act injection well violations in Utah (Oct. 3, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Services (AMS)

USDA Awards $23 Million to Support Dairy Initiatives (Oct. 3, 2023)

USDA Cites Mestizos Group LLC in Texas for PACA Violations (Oct. 2, 2023)

USDA Settles a Packers and Stockyards Case with Zane Webb (Oct. 2, 2023)

Animal and Plant Health Inspection Service (APHIS)

APHIS Celebrates African Swine Fever Preparedness and Prevention Accomplishments (Oct. 4, 2023)

Economic Research Service (ERS)

Livestock and Meat International Trade Data (Oct. 6, 2023)

Adoption of Genetically Engineered Crops in the U.S. (Oct. 4, 2023)

Commodity Costs and Returns (Oct. 2, 2023)

Farm Services Agency (FSA)

USDA Announces October 2023 Lending Rates for Agricultural Producers (Oct. 2, 2023)

Food Safety and Inspection Service (FSIS)

The Kitchen Sink: An Overlooked Place for Food Safety (Oct. 3, 2023)

Foreign Agricultural Service (FAS)

FY 2024 Funds Available for Export Credit Guarantee Program (GSM-102) (Oct. 6, 2023)

National Institute of Food and Agriculture (NIFA)

NIFA Invests $8.2 Million in Food and Agricultural Nonformal Education (A7801) (Oct. 2, 2023)

NIFA Invests $5 Million in AgVets Program (Oct. 2, 2023)

NIFA Invests $3.8 Million in Rural Food Animal Veterinary Medicine Across the U.S. (Oct. 2, 2023)

NIFA Invests $7.6 Million in Data Science for Food and Agricultural Systems (A1541) (Oct. 2, 2023)

NIFA Invests Nearly $1 Million in Laying Hen and Turkey Research (Oct. 2, 2023)

NIFA Invests $3.6 Million for 4-H Military Grants (Oct. 2, 2023)

Natural Resources Conservation Service (NRCS)

Reminder of NRCS Conservation Funding Application Date Set for October 27 (Oct. 5, 2023)

Announcing Application Dates for Agricultural Conservation Easement Programs (Oct. 4, 2023)

Applications being accepted for NRCS financial and technical assistance programs through November 17 (Oct. 4, 2023)

Kansas NRCS Announces Fiscal Year 2024 Farm Bill and IRA EQIP and CSP Funding (Oct. 2, 2023)

Palouse CD to start accepting RCPP Palouse River Watershed applications (Oct. 2, 2023)

Risk Management Agency (RMA)

Crop Insurance for Specialty and Organic Crops Grow as Options Improve and Expand (Oct. 5, 2023)

USDA Offers New Crop Insurance Program for Producers Using Controlled Environments (Oct. 2, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 2-6, 2023):   

Agricultural Marketing Service

88 FR 69529 Rule: “Redefining Bona Fide Cotton Spot Markets” (Oct. 6, 2023)

88 FR 68500 Proposed Rule: “Almonds Grown in California; Amendments to the Marketing Order” (Oct. 4, 2023)

88 FR 67621 Rule: “Marketing Order Regulations for Almonds Grown in California” (Oct. 2, 2023)

Agriculture Department

88 FR 69115 Notice: “Submission for OMB Emergency Review: Hawaii Agricultural Disaster Survey” (Oct. 5, 2023)

88 FR 68559 Notice: “Submission for OMB Review; Comment Request [Risk Management Agency: Area Risk Protection Insurance]” (Oct. 4, 2023)

88 FR 68094 Notice: “Submission for OMB Review; Comment Request [Forest Service: Disposal of Mineral Materials]” (Oct. 3, 2023)

88 FR 68094 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Origin of Livestock—Variance Request]” (Oct. 3, 2023)

Environmental Protection Agency

88 FR 69632 Notice: “Certain New Chemicals or Significant New Uses; Statements of Findings for August 2023” (Oct. 6, 2023)

88 FR 69039 Rule—Comment Period: “Ledprona Double-Stranded RNA; Exemption From the Requirement of a Tolerance” (Oct. 5, 2023)

88 FR 68469 Rule: “Air Plan Approval; MO; Control of Emissions From Volatile Organic Liquid Storage” (Oct. 4, 2023)

88 FR 68532 Proposed Rule—Comment Period: “Air Plan Approval; Colorado; Serious Attainment Plan Elements and Related Revisions for the 2008 8-Hour Ozone Standard for the Denver Metro/North Front Range Nonattainment Area” (Oct. 4, 2023)

88 FR 68535 Proposed Rule—Comment Period: “New Source Performance Standards Review for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels)” (Oct. 4, 2023)

88 FR 68475 Rule: “Cypermethrin; Pesticide Tolerances” (Oct. 4, 2023)

88 FR 67748 Notice: “Pesticide Program Dialogue Committee; Notice of Public Meeting” (Oct. 2, 2023)

88 FR 67749 Notice—Comment Period: “Pesticides; Draft Guidance and Proposed Method for Antimicrobial Product Efficacy Claims Against Planktonic Legionella Pneumophila in Cooling Tower Water; Notice of Availability and Request for Comments” (Oct. 2, 2023)

Forest Service

88 FR 69610 Notice: “Proposed New Recreation Fee Sites” (Oct. 6, 2023)

88 FR 68562 Notice: “Newspapers Used for Publication of Legal Notices in the Southwestern Region; Arizona, New Mexico, and Parts of Oklahoma and Texas” (Oct. 4, 2023)

88 FR 68035 Proposed Rule—Comment Period: “Law Enforcement; Criminal Prohibitions” (Oct. 3, 2023)

88 FR 67694 Proposed Rule—Comment Period: “Special Uses; Land Use Fees; Temporary Land Use Fee Reductions for Recreation Residence Permits” (Oct. 2, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.5877 “USDA Express Loan Act” Referred to the House Committee on Agriculture. (Oct. 3, 2023)

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

S.3023 “Soil CARE Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Oct. 4, 2023)

S.3034 “Meals for At-Risk Americans Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Oct. 4, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Keystone International Livestock Expo Brings America’s Best Livestock, Aspiring Agriculture Leaders, Unique Family Fun To PA Farm Show Complex (Oct. 3, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 40—Oct. 7, 2023): 

Department of Environmental Protection

53 Pa.B. 6191 Policy Statement—Comment Period: “Water Quality Toxics Management Strategy—Statement of Policy”

53 Pa.B. 6200 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. 6268 Notice: “Public Comment Meeting on the Interim-Final Environmental Justice Policy and Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Document Public Comment Meeting; Location Change for October 16, 2023, Meeting”

Environmental Quality Board

53 Pa.B. 6170 Proposed Rule—Comment Period: “Triennial Review of Water Quality Standards”

Independent Regulatory Review Commission

53 Pa.B. 6319 Notice: “Actions Taken by the Commission [Environmental Quality Board # 7-572: Administration of the Land Recycling Program Vanadium MSC Rule (amends 25 Pa. Code)]”

Milk Marketing Board

53 Pa.B. 6321 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 1”

53 Pa.B. 6322 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 2”

53 Pa.B. 6322 Notice: “Hearing and Presubmission Schedule; Milk Marketing Area No. 4”

Susquehanna River Basin Commission

53 Pa.B. 6377 Notice: “Actions Taken at September Meeting”

PENNSYLVANIA LEGISLATURE

HB 1522 “An Act establishing the Wildlife Rehabilitation Grant Program and the Wildlife Rehabilitation Grant Fund; and imposing duties on the Pennsylvania Game Commission.” Re-committed to APPROPRIATIONS. (Oct. 4, 2023)

HB 1540 “An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, in terms and courses of study, further providing for Commission for Agricultural Education Excellence.” Third consideration and final passage. (Oct. 4, 2023)

HB 1661 “An Act amending the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, further providing for definitions and for prohibited acts and penalties; and providing for secure storage of xylazine.” (Oct. 4, 2023)

HB 1219 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, in personal income tax, further providing for classes of income and for special tax provisions for poverty and providing for alternative special tax provisions for poverty; in corporate net income tax, further providing for definitions, for imposition of tax, for reports and payment of tax, for consolidated reports and for manufacturing innovation and reinvestment deduction; in realty transfer tax, further providing for transfer of tax; in tax credit and tax benefit administration, further providing for definitions; in entertainment production tax credit, further providing for definitions, for credit for qualified film production expenses, for carryover, carryback and assignment of credit and for limitations; in Pennsylvania Economic Development for a Growing Economy (PA EDGE) tax credits, providing for biotechnology; in neighborhood assistance tax credit, further providing for tax credit and for grant of tax credit; providing for expanded neighborhood improvement zones; in Pennsylvania Child and Dependent Care Enhancement Tax Credit Program, further providing for credit for child and dependent care employment-related expenses; providing for Public Transportation Trust Fund; and, in general provisions, further providing for underpayment of estimated tax, for method of filing and for allocation of tax credits.” Third consideration and final passage. (Oct. 3, 2023)

 

Contributors:
Victoria Dutterer—Research Assistant
Avery McLean—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney