September 10, 2023
Agricultural Law Weekly Review—September 11, 2023
Antitrust: Federal Court Dismisses Monopsony Claims Against Tyson Fresh Meats 🌾
On August 28, 2023, the U.S. District Court for the Eastern District of Washington issued an order granting Tyson Fresh Meats Inc.’s motion to dismiss a lawsuit filed by a former cattle feeder, Cody Allen Easterday. Easterday v. Tyson Fresh Meats Inc., No. 4:23-cv-05019. Easterday alleged that the company created a monopsony market in the Pacific Northwest where cattle feeders “have no reasonable choice but to contract with [Tyson]” in violation of the Packers and Stockyard Act, the Sherman Antitrust Act, and the Washington Consumer Protection Act. The Court noted that Easterday’s position as the President of Easterday Ranches rendered his injuries “derivative of any direct injury to Easterday Ranches” and stated that “[i]f [Easterday] was allowed to assert antitrust claims, there is a potential for double recovery.” The Court determined that Easterday “does not have standing to assert the federal claims presented . . . because each of the claims relates to contracts between [Tyson] and Easterday Ranches, not [Easterday] individually.” For more on agricultural antitrust issues, see the Center’s Agricultural Antitrust Litigation Issue Tracker.
Agricultural Labor: Department of Labor Recovers $540K in Unpaid Wages for H-2A Workers
On August 28, 2023, the U.S. Department of Labor (DOL) Wage and Hour Division announced that two investigations had reclaimed $540,221 in unpaid wages from two North Carolina farm labor contractors for 268 H-2A workers. The investigations found that Luis A. Becerra, owner of Becerra Enterprises Inc., and his son Luis A. Becerra Jr. “recruited, hired, housed and transported H-2A workers to harvest” various crops at three farms in North Carolina. The investigations found that the Becerras violated “federal laws includ[ing] failing to pay some workers their full wages, to provide safe and adequate housing and to reimburse workers transportation costs.” The employers were also “assessed $33k in [civil] penalties,” and “Becerra Enterprises was also debarred from participating in the H-2A program for three years.” DOL states that it will “make[] every effort to locate and notify all employees due back wages” and that the agency will retain recovered wages “in a continued effort” to find unlocated employees. Additionally, DOL maintains a searchable database of Workers Owed Wages, accessible in both English and Spanish.
- Upcoming Webinar Nov. 17, 2023: Understanding the Basics of the Fair Labor Standards Act
Crop Insurance: USDA Announces New Grapevine Insurance Program
On August 29, 2023, the U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) announced a new grapevine insurance program that will supplement the existing grape crop insurance program. According to the announcement, the grapevine program is considered a “‘mortality policy,’ paying losses when the vine is dead or so badly damaged it will not recover in the following 12 months” and “covers freeze, fire, hail, flood, and failure of the irrigation water supply caused by an unavoidable, naturally occurring event.” The program will be available during the 2024 crop year in select counties in California, Idaho, Michigan, New York, Ohio, Oregon, Pennsylvania, Texas, and Washington. The application deadline for the program is November 1, 2023.
Crop Insurance: USDA Announces Changes to Whole Farm Revenue Protection and Micro Farm Policies
On August 31, 2023, the U.S. Department of Agriculture (USDA) announced changes to the Whole Farm Revenue Protection (WFRP) and Micro Farm Policies (Micro Farm) for the 2024 policy year. Changes to WFRP for the 2024 policy year include
- “allowing all eligible producers to qualify for 80% and 85% coverage levels;
- allowing producers to purchase catastrophic coverage level policies for individual crops with WFRP;
- expanding yield history to a 10-year maximum (from 4 years) for all crops not covered by another federal crop insurance policy;
- making the policy more affordable for single commodity producers; and
- allowing producers to customize their coverage by choosing whether WFRP will consider other federal crop insurance policies as primary insurance when calculating premium and revenue to count during claim time.”
Changes to Micro Farm for the 2024 policy year include
- “moving the sales closing date to a less busy time of year to help agents dedicate time to marketing the program;
- allowing producers to purchase other Federal crop insurance with Micro Farm;
- allowing vertically integrated entities to be eligible for Micro Farm; and
- making the expanding operations feature available with Micro Farm.”
Nutrition Programs: USDA Publishes Child Nutrition Program Integrity Final Rule
On August 23, 2023, the U.S. Department of Agriculture’s (USDA) Food and Nutrition Service (FNS) published a final rule on Child Nutrition Program integrity in the Federal Register (88 FR 57792). USDA announced that the “final rule strengthens program integrity by modernizing how state agencies oversee child nutrition programs.” Provisions of the rule include safeguards “designed to increase program operators’ accountability and operational efficiency, while improving the ability of FNS and State agencies to address severe or repeated violations of program requirements.” The rule is effective September, 22, 2023, though “each provision has a separate compliance date for implementation.”
Agricultural Finance: Iowa Reinstates Grain Indemnity Fund Fees
On September 1, 2023, grain fee assessments on cash transactions were reinstated for the Iowa Grain Depositors and Sellers Indemnity Fund, announced by the Iowa Department of Agriculture and Land Stewardship (IDALS) on June 2, 2023 and August 24, 2023. Iowa’s grain indemnity fund “was created by the Iowa Legislature in 1986 as a result of the Farm Crisis and exists to protect farms from financial losses that are the result of an Iowa licensed grain warehouse or grain dealer failure.” According to the announcements, House File 666, signed by Governor Reynolds on June 1, 2023, “contained a provision that moved the reinstatement date from July 1 to September 1 [2023]” and marks the first time that grain fees have been collected for the indemnity fund since 1989. The announcements state that the “¼ cent per bushel fee,” which “must remain in effect for at least one full year,” has been reinstated due to “the balance of the Fund . . . [falling] below $3 million.” For more on grain dealer indemnity laws, see the Center’s Grain Dealer Regulatory Compilation.
Animal Welfare: Pennsylvania Recognized as ‘HPAI-Free,’ Cleared to Resume Normal Poultry Trade
On August 30, 2023, Pennsylvania Governor Josh Shapiro and the Pennsylvania Department of Agriculture (PDA) announced that the state “has reached the critical milestone of [highly pathogenic avian influenza] HPAI-free status recognized by the World Animal Health Organization.” According to the announcement, “normal international trade conditions for Pennsylvania’s $7.1 billion poultry industry” can resume “for the first time since April 2022.” Despite the status, Pennsylvania will remain under a general quarantine and PDA will continue to test and monitor for HPAI. PDA stated, “[D]etections of the virus in surrounding states indicate that the threat to the industry warrants continued vigilance, especially as wild bird migration season approaches.” See also Agricultural Law in the Spotlight: 2022’s Highly Pathogenic Avian Influenza Outbreak (Sept. 2022)
Farmland Preservation: Pennsylvania Announces $8.6 Million to Preserve 2,645 Farmland Acres
On August 25, 2023, Pennsylvania Governor Josh Shapiro announced that the state will spend $8.64 million under the state’s Farmland Preservation Programs to preserve 2,645 acres of Pennsylvania farms. The funds secure the prohibition of future residential and commercial development on the farmland. The preserved lands, and correlating investments, are in the following counties:
- Adams ($197,885)
- Allegheny ($782,674)
- Beaver ($443,267)
- Berks ($261,416)
- Chester ($35,405)
- Columbia ($98,314)
- Cumberland ($527,830)
- Dauphin ($476,632)
- Erie ($167,886)
- Lackawanna ($264,606)
- Lancaster ($1,760,783)
- Lebanon ($416,258)
- Lehigh ($423,529)
- Lycoming ($196,827)
- Montgomery ($168,863)
- Northampton ($10,133)
- Union ($177,491)
- York ($701,603).
See also materials from Understanding the Basics of Pennsylvania’s ‘Clean and Green’ Preferential Tax Assessment Program and Pennsylvania’s Clean and Green Act Virtual Resource Room
Local Food: Oregon Legislature Allocates $9M for Meat Inspection Program
On July 31, 2023, Oregon Governor Tina Kotek signed into law HB 3410, which included $9 million in funding for the Oregon Department of Agriculture’s (ODA) State Meat Inspection Program “for the purpose of funding the grant program related to establishments that process and sell meat products.” ODA announced that “[t]he funding is part of an ongoing effort to boost economic development and enable Oregonians access to locally produced meat products.” ODA states that the program is meant to “complement[] the federal program and increase[] the state’s capacity by supporting smaller, local businesses to produce, process, and ship statewide.”
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CENTER PROGRAMS & RESOURCES
Podcasts:
Farmland Energy Legal Podcast: 156. An Introduction to Carbon Pricing Programs and Agriculture (Part 1) (Sept. 5, 2023)
Events:
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. Upcoming:
- Fri. Sept. 22, 2023, noon–1 pm (ET), Understanding the Basics of Pesticides
- Fri. Oct. 27, 2023, noon–1 pm (ET), Understanding the Basics of the Plant Protections Act & PA Seed Law
- Fri. Nov. 17, 2023, noon–1 pm (ET), Understanding the Basics of the Fair Labor Standards Act
- Fri. Dec. 15, noon–1 pm (ET), Understanding the Basics of the Perishable Agricultural Commodities Act
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.
- Tues. Oct. 17, 2023, noon–1 pm (ET), Risk Management/Income & Revenue Protection
Legal Considerations for Retail Farmers Market
- Thurs. Sept. 14, 2023, noon–1 pm (ET). Staff Attorney Brook Duer will present with the Small Business Development Center.
- Wed. Sept. 20, 2023, 1:15pm (ET). Staff Attorney Jackie Schweichler will present as part of the “Starting and Improving Farms Conference,” Sept. 19–20, 2023.
Medicaid Look-back Ag Professional Continued Education Program with PA Farm Link
- 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.
Where Will Pennsylvania’s Solar Future Be Located and How Will It Get There?
- Oct. 25, 2023, 1:00–2:00pm (ET). Staff attorney Brook Duer will present with WeConservePA.
Resources of Interest:
Iowa St. Univ. Ctr. Agric. Law & Tax’n, Boundary by Acquiescence Claim Requires “Still Known and Definite” Line, Kitt Jensen (Sept. 1, 2023)
Southern Ag Today, Pecan Risk Management, Amy Hagerman (Aug. 30, 2023)
Nat’l Agric. Law Ctr., WOTUS Update: EPA Revises 2023 Rule in Light of Sackett Decision, Brigit Rollins (Aug. 30, 2023)
Ohio St. Univ. Ext. Farm Off. Blog, Western Ohio Cropland Values and Cash Rents 2022-23, Barry Ward (Aug. 29, 2023)
Univ. Md. Risk Mgmt. Educ. Blog, Federal Court Grants Summary Judgment For Murphy-Brown in New Hog Farm Litigation, Paul Goeringer (Aug. 29, 2023)
Tex. A&M Agric. Law Blog, Who Owns Produced Water from Oil and Gas Operations in Texas?, Tiffany Dowell (Aug. 28, 2023)
Agric. Law & Tax’n Blog, Ag Law and Tax Ramblings, Roger McEowen (Aug. 27, 2023)
Iowa St. Univ. Ctr. Agric. Law & Tax’n, Fourth Circuit Analyzes EPA Regulatory Authority under Clean Water Act, Kitt Jensen (Aug. 25, 2023)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
Final Oil and Gas Lease to be Relinquished in Montana’s Badger-Two Medicine Area (Sept. 1, 2023)
Biden-Harris Administration Invests $20M for Research on Restoration of Degraded Forests, Grasslands, and Watersheds (Sept. 1, 2023)
USDA Encourages Ag Producers, Residents to Prepare for Hurricane Idalia (Aug. 29, 2023)
Biden-Harris Administration Announces More Than $800 Million to Strengthen Rural Infrastructure and Create Jobs (Aug. 28, 2023)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
EPA Selects Three Alaska Native Corporations for $2.5 Million to Assess and Clean Up Legacy Contamination on ANCSA Conveyed Lands (Sept. 1, 2023)
EPA penalizes Idaho property owner $88,000 for asbestos violations (Aug. 31, 2023)
Tadano Group to Pay $40 Million to Settle Clean Air Act Violations After Selling Noncompliant Diesel Engines (Aug. 31, 2023)
To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of the United States” Rule (Aug. 29, 2023)
EPA penalizes Yakima companies $194,000 for violating federal rules aimed at preventing accidental chemical releases (Aug. 28, 2023)
USDA AGENCY PRESS RELEASES:
Animal and Plant Health Inspection Service (APHIS)
Nov. 15 APHIS BRS Stakeholder Meeting—Save the Date (Aug. 28, 2023)
USDA and DOJ Secure Surrender of Close to 150 Animals from Michigan Animal Dealer (Aug. 28, 2023)
APHIS Reopening Comment Period for the National List of Reportable Animal Diseases Revised Proposed Rule (Aug. 25, 2023)
Economic Research Service (ERS)
Dairy Data (Aug. 31, 2023)
Outlook for U.S. Agricultural Trade: August 2023 (Aug. 31, 2023)
Farm Income and Wealth Statistics (Aug. 31, 2023)
Farm Household Well-being (Aug. 31, 2023)
International Food Security Assessment, 2023–2033 (Aug. 29, 2023)
Agricultural Exchange Rate Data Set (Aug. 29, 2023)
Sugar and Sweeteners Yearbook Tables (Aug. 28, 2023)
Livestock and Meat Domestic Data (Aug. 28, 2023)
Farm Services Agency (FSA)
USDA Announces September 2023 Lending Rates for Agricultural Producers (Sept. 1, 2023)
Food and Nutrition Service
USDA Encourages Ag Producers, Residents to Prepare for Hurricane Idalia (Aug. 29, 2023)
Foreign Agricultural Service (FAS)
FAS Helps Brew Up Business for U.S. Hops Industry (Aug. 31, 2023)
Forest Service
USDA Forest Service announces landscape scale investments to restore forests across tribal, state, and privately managed lands (Aug. 29, 2023)
National Institute of Food and Agriculture (NIFA)
NIFA Invests Over $7M in Critical Ag Research and Extension (A1701) (Aug. 30, 2023)
Natural Resources Conservation Service (NRCS)
USDA Announces Waiver of Cost-Share Requirements for EWP in Areas Impacted by the Cerro Pelado Wildfire (Aug. 31, 2023)
Partner Spotlight: Africulture (Aug. 28, 2023)
Rural Development
Biden-Harris Administration Announces More Than $800 Million to Strengthen Rural Infrastructure and Create Jobs (Aug. 28, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 28–Sep. 1, 2023):
Agricultural Marketing Service
88 FR 53451 Notice: “Solicitation of Nominations for Members of the Grain Inspection Advisory Committee” (Aug. 8, 2023)
88 FR 52108 Notice: “Grain Inspection Advisory Committee Meeting” (Aug. 7, 2023)
Agriculture Department
88 FR 58234 Notice: “Submission for OMB Review; Comment Request” [Farm Service Agency: Farm Loan Program (FLP)—Guaranteed Farm Loans] (Sept. 1, 2023)
88 FR 60431 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Quality Samples Program]” (Sept. 1, 2023)
88 FR 58542 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Tobacco Reports]” (Aug. 28, 2023)
88 FR 58234 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Operating Guidelines, Forms, Waivers, and Annual State Report on Verification of SNAP Participation]” (Aug. 25, 2023)
Animal and Plant Health Inspection Service
88 FR 58542 Notice – Comment Period: “National List of Reportable Animal Diseases; Revising Proposed Rule, and Reopening of Comment Period” (Aug. 28, 2023)
88 FR 58542 Notice – Comment Period: “Notice of Availability of Pest Risk Analysis for the Importation of Ugu Leaves (Telfairia occidentalis Hook.f.) From Nigeria Into the Continental United States” (Aug. 28, 2023)
Environmental Protection Agency
88 FR 60450 Notice – Comment Period: “Proposed Information Collection Request; Comment Request; Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency (Renewal); EPA ICR No. 2260.08, OMB Control No. 2090-0029” (Sept. 1, 2023)
88 FR 60206 Notice: “Pesticide Emergency Exemptions; Agency Decisions and State and Federal Agency Crisis Declarations” (Aug. 31, 2023)
88 FR 60207 Notice – Comment Period: “Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations” (Aug. 31, 2023)
88 FR 59914 Notice: “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses” (Aug. 30, 2023)
88 FR 58265 Notice – Comment Period: “Ortho-Phthalaldehyde; Receipt of Application for Emergency Exemption, Solicitation of Public Comment” (Aug. 25, 2023)
Farm Service Agency
88 FR 60168 Notice – Comment Period: “Information Collection Requests; Disaster Assistance-General (0560-0170); Transfer of Farm Records Between Counties (0560-0253); Customer Data Worksheet Request for Business Partner Record Change (0560-0265)” (Aug. 31, 2023)
Foreign Agriculture Service
88 FR 60171 Notice: “Adjustment of Appendices Under the Dairy Tariff-Rate Quota Import Licensing Regulation” (Aug. 31, 2023)
88 FR 60170 Notice: “Assessment of Fees for Dairy Import Licenses for the 2024 Tariff-Rate Import Quota Year” (Aug. 31, 2023)
National Institute of Food and Agriculture
88 FR 60173 Notice – Comment Period: “Notice of Intent To Extend and Revise a Currently Approved Information Collection” (Aug. 31, 2023)
Natural Resources Conservation Service
88 FR 59865 Notice – Comment Period: “Notice of Intent To Prepare an Environmental Impact Statement for the Lower Little Tallapoosa River Watershed Carroll County, Georgia” (Aug. 30, 2023)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.5296 “Fair Credit for Farmers Act of 2023” Referred to the House Committee on Agriculture. (Aug. 29, 2023)
H.R.4855 “SNAP Ban Study Act” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Aug. 28, 2023)
H.R.4456 “OHH SNAP Act of 2023” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Aug. 28, 2023)
H.R.4425 “Women in Agriculture Act” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Aug. 28, 2023)
H.R.4387 “Cybersecurity in Agriculture Act of 2023” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Aug. 28, 2023)
H.R.5289 “Livestock Consolidation Research Act of 2023” Referred to the House Committee on Agriculture. (Aug. 25, 2023)
H.R.5284 “Rural Microentrepreneur Assistance Act of 2023” Referred to the House Committee on Agriculture. (Aug. 25, 2023)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No New Action Aug. 25-Sept. 1, 2023.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Pennsylvania Invests $8.6 Million To Ensure 35 Farms, 2,645 Acres In 18 Counties Will Remain Farms Forever (Aug. 25, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 35—Sept. 2, 2023):
Department of Agriculture
53 Pa.B. 5513 Notice: “Fiscal Year 2023-2024 Annual Plan for Awarding Grants under the Pennsylvania Agricultural Fair Act”
Department of Environmental Protection
53 Pa.B. 5515 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. 5576 Notice: “Availability of Technical Guidance [Water Sampling Requirements]”
53 Pa.B. 5577 Notice: “Food Recovery Infrastructure Grant Awards under the Municipal Waste Planning, Recycling and Waste Reduction Act of 1988, Act 101”
Executive Board
53 Pa.B. 5509 Rule: “Reorganization of the Department of Environmental Protection”
State Conservation Commission
53 Pa.B. 5604 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”
PENNSYLVANIA LEGISLATURE
No recent actions.
Contributors:
Victoria Dutterer—Research Assistant
Avery McLean—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney
