September 10, 2024

Agricultural Law Weekly Review—September 10, 2024

Deadline Extended! Register by Sept. 12, 2024, noon (ET) for the Pennsylvania Agricultural Law Symposium!

Pesticides: Third Circuit Finds FIFRA Preempts State Law Label Warning Requirement 🌾
On August 15, 2024, the U.S. Court of Appeals for the Third Circuit issued a precedential opinion reversing the lower court’s judgment—which was jointly stipulated by the parties for the purpose of appeal—and holding that the state-law duty to include a cancer warning label on the glyphosate-based herbicide Roundup is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). David Schaffner, Jr. v. Monsanto Corp, No. 22-3075; Schaffner v. Monsanto, No. 2:19-cv-01270 (W.D. Pa.). The court noted that FIFRA “mandates nationwide uniformity in pesticide labeling by prohibiting states from imposing labeling requirements that are in addition to or different from the requirements imposed under FIFRA itself.” The court then reasoned, “Because regulations promulgated to implement FIFRA require the health warnings on a pesticide’s label to conform to the proposed label approved by the [U.S. Environmental Protection Agency (EPA)] during the registration process, and because during Roundup’s registration process the EPA approved proposed labels omitting a cancer warning following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity, we conclude that the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore preempted by FIFRA.” This ruling from the Third Circuit breaks from those of the Ninth and Eleventh Circuit Courts, which previously found that the state laws in question were not preempted by FIFRA. See also ALWR—Feb. 20, 2024, “Eleventh Circuit Finds ‘No Federal Preemption’ in Bayer-Monsanto Roundup Product Liability Appeal” and ALWR—May 14, 2021, “Ninth Circuit Denies Bayer’s Appeal of Federal Jury’s Glyphosate.”  

Agricultural Labor: Federal Court Grants Preliminary Injunction Against New H-2A Protections Rule
On August 26, 2024, the U.S. District Court for the Southern District of Georgia published an order preliminarily enjoining the U.S. Department of Labor (DOL) from enforcing its recent H-2A final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (89 FR 33898). State of Kansas v. DOL, No. 2:24-cv-00076. The court determined that, though the rule falls within  DOL’s authority under the H-2A visa program, the rule “violates the [National Labor Relations Act] because the DOL attempts to unconstitutionally create law . . . by affording some agricultural workers—H-2A workers and American workers similarly situated—the right to collectively bargain.” The court stated, “Congress has not created that right. And in fact, the NLRA reflects Congressional intent to not create such a right.” DOL issued a press release on August 28, 2024, stating that the agency “is carefully reviewing the Kansas Order and assessing various options to comply with the Order.” For background, see ALWR—June 26, 2024, “Seventeen States File Complaint Challenging New H-2A Rule” and ALWR—May 10, 2024, “Department of Labor Publishes H-2A Final Rule.”

Agricultural Labor: OSHA Publishes Heat Injury Proposed Rule in Federal Register, Opens Comment Period
On August 30, 2024, the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) published in the Federal Register a proposed rule (89 FR 70698) titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” Initially announced by OSHA on July 2, 2024, the agency states that the “proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards” that includes “evaluat[ing] heat risks and—when heat increases risks to workers—implement[ing] requirements for drinking water, rest breaks and control of indoor heat,” and identifying how they will “protect new or returning workers unaccustomed to working in high heat conditions.” Additionally, “[e]mployers would also be required to provide training, have procedures to respond if a worker is experiencing signs and symptoms of a heat-related illness, and take immediate action to help a worker experiencing signs and symptoms of a heat emergency.” The proposed rule is available for public comment until December 30, 2024.

Food Labeling: USDA Publishes New Guideline on ‘Substantiating Animal-Raising or Environment-Related Labeling Claims’
On August 28, 2024, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published in the Federal Register (89 FR 73253) a notification of availability and request for comment on the agency’s updated Guideline on Substantiating Animal-Raising or Environment-Related Labeling Claims, such as “Raised Without Antibiotics,” “Grass-Fed,” “Free-Range,” “Raised using Regenerative Agriculture Practices,” and “Climate-Friendly.” Also announced by USDA, the agency states that it “strongly encourages the use of third-party certification to substantiate animal-raising or environment-related claims” and “recommends that establishments using ‘negative’ antibiotic claims (e.g., ‘Raised Without Antibiotics’ or ‘No Antibiotics Ever’) implement routine sampling and testing programs to detect antibiotic use in animals prior to slaughter or obtain third-party certification that includes testing.” USDA is accepting public comment on the guidance until November 12, 2024.  See also Emily Stone, Food Labeling: What are Third-Party Certifications?, Nat’l Agric. Law Ctr. (Aug. 29, 2024).

Pesticides: EPA Publishes Dacthal Voluntary Cancellation in Federal Register, Opens Comment Period
On August 29, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (89 FR 70181) announcing the agency’s receipt of AMVAC Chemical Corporation’s request to voluntarily cancel its pesticide registration for dimethyl tetrachloroterephthalate (DCPA or Dacthal), available for public comment until September 30, 2024. Also announced by the agency, EPA states that it “intends to grant th[e] request[] . . . unless . . . [it] receives substantive comments within the comment period that would merit its further review . . . or unless the registrants withdraw its requests.” EPA further stated that, if the agency grants the request and cancels Dacthal’s registration at the end of the comment period, “any sale, distribution, or use of products . . . will not be permitted.” See also ALWR—Aug. 21, 2024, “EPA Emergency Order Halts Use of Pesticide Dacthal.”

Pesticides: EPA Publishes Final Herbicide Strategy for Federally Listed Species
On August 20, 2024, the Environmental Protection Agency (EPA) published its final Herbicide Strategy, which EPA states it will use “to identify measures to reduce the amount of herbicides exposure to [endangered] species when it registers new herbicides and . . . reevaluates registered herbicides . . . [during] registration review” (EPA-HQ-OPP-2023-0365). Also announced by EPA, the agency states that, “[u]nlike EPA’s historic approach to [Endangered Species Act] compliance”—which EPA described as “on a pesticide-by-pesticide, species-by-species basis”—“the Herbicide Strategy identifies protections for hundreds of listed species up front and will apply to thousands of pesticide products as they go through registration or registration review.” EPA states that the “final strategy includes more options for mitigation measures compared to the draft,” including “cover crops, conservation tillage, windbreaks, and adjuvants” and notes that “some measures, such as berms, are enough to fully address runoff concerns.” Additionally, EPA published a document describing “multiple real-world examples” of pesticide mitigation in accordance with the strategy, although the “final strategy itself does not impose any requirements or restrictions on pesticide use.” See also ALWR—Aug. 7, 2023, “EPA Releases Draft Herbicide Strategy for Federally Listed Species.”

Pesticides/Herbicides: EPA Publishes Bilingual Pesticide Labeling Resources, Spanish Translation Required by 2030
On August 27, 2024, the U.S. Environmental Protection Agency (EPA) updated its Bilingual Pesticide Labeling webpage to include new resources to help pesticide registrants translate their labels into Spanish, as required by the Pesticide Registration Improvement Act of 2022. According to EPA, by “December 29, 2025, product labels on restricted use pesticide products and agricultural use products with the highest toxicity (category 1) will be required to bear Spanish language translations for the health and safety sections” and, by 2030, “[a]ll pesticide labels must have translations.” Under the law, “translations must appear on the pesticide product container or must be provided through a hyperlink or other readily accessible electronic method.”

Biotechnology: USDA Issues Letter Determining Genetically Modified Wheat ‘Not Subject to Regulation’
On August 27, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a letter to Trigall Genetics SA, a subsidiary of Argentina-based Bioceres Crop Solutions, determining that the company’s genetically modified wheat “is unlikely to pose an increased plant pest risk relative to its comparators,” and thus, is not subject to regulation under the Plant Protection Act. According to the letter, “the wheat was modified to impart increased drought tolerance, and resistance to glufosinate,” a naturally occurring herbicide. Also announced by APHIS, the agency states that its decision to deregulate the genetically modified wheat “extends to any progeny of the modified plant that is derived from crosses with other nonmodified plants or [unregulated] modified plants.”

Agricultural Data: Federal Communication Commission Announces $9 Billion for Rural 5G Broadband
On August 29, 2024, the Federal Communication Commission (FCC) published a report and order “adopt[ing] new rules to move forward with targeted investments in the deployment of advanced, 5G mobile wireless broadband services in rural communities.” Also announced by the FCC, the report identifies several actions the agency will take, including distributing “up to $9 billion” to rural areas through a “multi-round reverse auction” under the 5G Fund for Rural America, established in 2020. FCC states that it now possesses “improved mobile coverage data . . . reflected on [its] new National Broadband Map” that allows the agency “the most comprehensive picture to date about where mobile broadband service is and is not across the entire country,” which “has significantly enhanced [its] ability to hold a successful 5G Fund auction.” According to the announcement, FCC “will announce the expected start of the auction through a Public Notice.” See also ALWR—Mar. 25, 2024, “FCC Report Finds Rural Areas Lack Sufficient Internet, Adopts New Broadband Benchmark.”

Avian Influenza: USDA Accepting Submissions for Livestock HPAI Vaccine Field Studies
On August 28, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) Center for Veterinary Biologics (CVB) posted notice 24-13, which states that “CVB is now accepting submissions for field studies to support . . . licensure of nonviable, non-replicating vaccines” for Highly Pathogenetic Avian Influenza (HPAI) in livestock. According to the notice, such field studies “may be conducted outside of containment without terminal disposal of milk and other commodities.” CVB states that it had “[p]reviously . . . indicated that all studies, even those not involving virus challenge, were to be conducted in containment facilities regardless of risk profile.”

Food Safety: USDA Extends Salmonella Proposed Rule Comment Period Until November 7, 2024
On August 16, 2024, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published a Constituent Update stating that the agency had extended the comment period for its August 7, 2024 Salmonella Framework for Raw Poultry Products proposed rule (FSIS-2023-0028). The comment period is now open until November 7, 2024. See also ALWR—Aug. 21, 2024, “USDA Publishes Proposed Rule on Salmonella Framework for Raw Poultry.”

 

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CENTER PROGRAMS & RESOURCES

2024 Pennsylvania Agricultural Law Symposium

  • Sept. 19, 2024, 8:30am–4:30pm, In-person at Penn State Law in University Park, Pa., 6 CLE Credits (5 substantive, 1 ethics):
    • 2023-24 Ag Law Year in Review
    • Legal Landscape of Land Application: Biosolids and Food Processing Waste
    • Agricultural Cooperatives: Is Everything Old New Again?
    • Carbon Credits and Contracts: Common and Uncommon Provisions
    • Using Farm Labor Contractors for Domestic and H-2A Workers
    • Conflicts and Ethical Issues in Farm Family Representation

REGISTER NOW! Deadline: September 12, 2024, noon (EDT).

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:

Podcasts:

Farmland Legal Energy Podcast

Introduction to Precision Agriculture (Aug. 22, 2024)

An Overview of Critical Minerals (Aug. 6, 2024)

Resources of Interest:

Nat’l Agric. Law Ctr., Food Labeling: What are Third-Party Certifications?, Emily Stone (Aug. 29, 2024)

Tex. A&M Agric. Law Blog, USDA To Require Electronic Tags for Certain Cattle & Bison Crossing State Lines, Tiffany Dowell Lashmet (Aug. 26, 202)

Southern Ag Today, Land Ownership and the Preservation of Family Farm Legacies, Adam Rabinowitz, Auburn University (Aug. 30, 2024)

Southern Ag Today, Timeline of the ARC and PLC Programs: Why Are Payments Received a Year Later?, Yangxuan Liu, University of Georigia (Aug. 29, 2024)

Agric. Law & Tax’n Blog, More Legal and Tax Issues Involving Farmers and Ranchers, Roger A. McEown (Aug 28, 2024)

Agric. Law & Tax’n Blog, Kansas Supreme Court Upholds Property Rights—Right-to-Farm Law Inapplicable when Farming Operation Not in Compliance with State Law—All of It, Roger A. McEowen (Aug. 25, 2024)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. ENVIROMENTAL PROTECTION AGENCY

EPA Fines Walmart and Hartz Mountain for Violating Federal Pesticide Law in Colby, Kansas (Aug. 27, 2024)

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Biden-Harris Administration Invests $140 Million to Lower Energy Costs, Create Jobs in Rural Nevada and Kentucky Communities (Aug. 29, 2024)

USDA Releases Updated Guideline to Strengthen Substantiation of Animal-Raising and Environment-Related Claims on Meat and Poultry Labels (Aug. 28, 2024)

Biden-Harris Administration Partners with Farmers to Expand Innovative Domestic Fertilizer Production (Aug. 28, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service

USDA Announces $300,000 in Funding Available to Support U.S. Sheep Industry (Aug. 29, 2024)

USDA Announces Almost $10 million in Organic Market Development Grants, Resulting in $85 million Invested to Expand Markets for U.S. Organic Products (Aug. 26, 2024)

Animal and Plant Health Inspection Service

USDA and CDFA Declare California Free of Invasive Fruit Flies (Aug. 27, 2024)

Economic Research Service

International Food Security Assessment, 2024–34 (Aug. 29, 2024)

Measurement of Output, Inputs, and Total Factor Productivity in U.S. Agricultural Productivity Accounts (Aug. 27, 2024)

Farm Service Agency

USDA Announces No Actions Under Feedstock Flexibility Program (Aug. 30, 2024)

USDA Launches Online Debt Consolidation Tool to Increase Farmer and Rancher Financial Viability (Aug. 29, 2024)

Foreign Agricultural Service

USDA Trade Mission to Expand Ag Exports in Vietnam, Southeast Asia (Aug. 28, 2024)

Forest Service

USDA Forest Service invests $15M to help underserved and small-acreage landowners access climate markets (Aug. 28, 2024)

National Institute of Food and Agriculture

NIFA Announces $3.8M Investment in Veterinary Services Grant Program (Aug. 28, 2024)

NIFA Invests Nearly $10.7 Million for Pests and Beneficial Species in Agricultural Production Systems A1112 (Aug. 28, 2024)

National Resource Conservation Service

USDA Announces funding for Farmland Preservation and Wetland Restoration (Aug. 30, 2024)

Risk Management Agency

USDA Expands Shellfish Insurance Program (Aug. 30, 2024)

Rural Development

Biden-Harris Administration Partners with Farmers to Expand Innovative Domestic Fertilizer Production (Aug. 28, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 26–Aug. 30, 2024):   

Agricultural Department

89 FR 70161 Notice: “Submission for OMB Review; Comment Request [Regulations Governing the Voluntary Grading of Shell Eggs, Poultry Products, and Rabbit Products]” (Aug. 29, 2024)

89 FR 68578 Notice: “Submission for OMB Review; Comment Request [Focus Groups to Understand Insights and Experiences of Manureshed Managers]” (Aug. 27, 2024)

89 FR 68579 Notice: “Submission for OMB Review; Comment Request [School Breakfast Program]” (Aug. 27, 2024)

89 FR 68576 Notice: “Submission for OMB Review; Comment Request [Child and Adult Care Food Program]” (Aug. 27, 2024)

89 FR 68577 Notice: “Submission for OMB Review; Comment Request [National School Lunch Program]” (Aug. 27, 2024)

89 FR 68321 Rule: “USDA Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards” (Aug. 26, 2024)

Animal and Plant Health Inspection Service

89 FR 70162 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Highly Pathogenic Avian Influenza; Testing, Surveillance, and Reporting of Highly Pathogenic Avian Influenza in Livestock; Dairy Herd Certification” (Aug. 29, 2024)

89 FR 68581 Notice: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Foot-and-Mouth Disease: Prohibition on Importation of Farm Equipment” (Aug. 27, 2024)

89 FR 68580 Notice: “Addition of Bangladesh, Montenegro, and Albania to the List of Regions Affected by African Swine Fever” (Aug. 27, 2024)

89 FR 68386 Notice—Comment Period: “Notice of Request for Approval of an Information Collection; Unified Website for Biotechnology Regulation; Contact Page” (Aug. 26, 2024)

Agricultural Marketing Service

89 FR 70591 Notice—Comment Period: “Meeting of the National Organic Standards Board” (Aug. 30, 2024)

89 FR 68376 Proposed Rule—Comment Period: “Fair and Competitive Livestock and Poultry Markets” (Aug. 26, 2024)

Environmental Protection Agency

89 FR 70525 Rule: “Phenol; Revoking Exemption from the Requirement of a Pesticide Tolerance” (Aug. 30, 2024)

89 FR 70103 Rule—Comment Period: “Tetraacetylethylenediamine (TAED), and Its Metabolite Diacetylethylenediamine (DAED); Exemption from the Requirement of a Pesticide Tolerance” (Aug. 29, 2024)

89 FR 70181 Notice—Comment Period: “Dimethyl Tetrachloroterephthalate (DCPA); Notice of Receipt of Requests to Voluntarily Cancel Pesticide Registrations” (Aug. 29, 2024)

89 FR 68897 Notice: “Pesticides; Final Guidance and Test Method for Antimicrobial Product Efficacy Claims Against Planktonic Legionella Pneumophila in Cooling Tower Water; Notice of Availability” (Aug. 28, 2024)

89 FR 68783 Rule—Comment Period: “Pseudomonas Chlororaphis IPD072Aa Protein; Exemption From the Requirement of a Tolerance” (Aug. 28, 2024)

89 FR 68571 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (July 2024)” (Aug. 27, 2024)

Food Safety and Inspection Service

89 FR 68851 Notice: “National Advisory Committee on Microbiological Criteria for Foods: Public Meeting” (Aug. 28, 2024)

Forest Service

89 FR 70592 Notice: “Proposed Recreation Fee Sites” (Aug. 30, 2024)

89 FR 70348 Rule: “Subsistence Management Regulations for Public Lands in Alaska-2024-25 and 2025-26 Subsistence Taking of Wildlife Regulations” (Aug. 29, 2024)

89 FR 70163 Notice—Comment Period: Forest Service Manual 2470, Silvicultural Practices (Aug. 29, 2024)

89 FR 70164 Notice: “Deschutes-Ochoco Resource Advisory Committee” (Aug. 29, 2024)

89 FR 68581 Notice: “Fremont and Winema Resource Advisory Committee” (Aug. 27, 2024)

Rural Housing Service

89 FR 68582 Notice—Comment Period: “60-Day Notice of Proposed Information Collection: Rural Community Development Initiative (RCDI) Grant Program; OMB Control No.: 0575-0180” (Aug. 27, 2024)

Rural Utilities Service

89 FR 68387 Notice—Comment Period: “Notice of Revision of a Currently Approved Information Collection” (Aug. 26, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.7588 “Agricultural Food Chemical Reassessment Act of 2024” Referred to the Subcommittee on Livestock, Dairy, and Poultry (Aug. 30, 2024)

H.R.6891 “MORE USDA Grants Act” Referred to the Subcommittee on Commodity Markets, Digital Assets, and Rural Development (Aug. 29, 2024)

H.R.6806 “Farm Tech Act” Referred to the Subcommittee on General Farm Commodities, Risk Management, and Credit (Aug. 29, 2024)

H.R.6712 “American Seasonal and Perishable Crop Support Act” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture (Aug. 29, 2024)

H.R.6621 “Rural Uplift and Revitalization Assistance Act” Referred to the Subcommittee on Commodity Markets, Digital Assets, and Rural Development (Aug. 29, 2024)

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

No new actions Aug. 26 – Aug. 30.

Agriculture-Related Legislative Hearings & Reports

U.S. House Ag Comm., “Severe Food Distribution Shortages in Tribal and Elderly Communities”, Sep. 11, 2024

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES
No new press release Aug. 19 – Aug. 23.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 35—Aug. 31, 2024): 

Department of Environmental Protection

54 Pa.B. 5474 Notice: “The Pennsylvania Clean Streams Law And The Federal Clean Water Act 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”

PENNSYLVANIA LEGISLATURE

No new Agriculture actions Aug. 26 – Aug. 30, 2024.

 

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