September 24, 2023

Agricultural Law Weekly Review—September 25, 2023

Pesticides: Federal Court Approves Settlement in 2011 EPA Pesticide Registration Dispute 🌾
On September 12, 2023, the U.S. District Court for the Northern District of California issued an order approving a stipulated settlement agreement between the U.S. Environmental Protection Agency (EPA) and plaintiff environmental groups, resolving a longstanding dispute over EPA’s registration of 382 pesticide active ingredients. Center for Biological Diversity v. Environmental Protection Agency, No. 3:11-cv-00293. Also announced by EPA, the settlement “resolves all outstanding claims” of the “megasuit,” filed in 2011 and partially settled in 2019, “which was ultimately reduced to 35 active ingredients covering over 1,000 pesticide products.” According to EPA’s announcement, the settlement requires the agency to, among other actions, (1) “[develop and implement] an Herbicide Strategy . . . a Rodenticide Strategy, Insecticide Strategy, and Fungicide strategy . . . which will identify mitigation measures for entire classes of pesticides to address their potential impacts to hundreds of ESA-listed species”; (2) “[complete] ESA work for eight organophosphates and four rodenticides”; and (3) “[host] a workshop for stakeholders to explore how to offset pesticide impacts on ESA-listed species in situations where eliminating or modifying pesticide use may not be feasible.”

Agricultural Labor: Department of Labor Publishes Proposed Rule Amending H-2A Regulations
On September 12, 2023, the U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published in the Federal Register a proposed rule (88 FR 63750) titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” amending several H-2A program regulations. Also announced by DOL, the agency states that the proposed rule, among other things, will

  • “Clarify[] workers’ rights to invite and accept guests—including labor organizations—to employer-provided housing”;
  • “Clarify that an employer only terminates a worker ‘for cause’ when the worker either fails to meet pre-specified productivity standards or fails to comply with employer policies after the employer applies a system of progressive discipline”;
  • “Require employers to provide a copy of all agreements with any agent or recruiter the employer engages in recruiting prospective H-2A workers to the department, regardless of whether the agent is in the U.S. or abroad”;
  • “Require employers to identify and disclose the name and location of anyone soliciting H-2A workers on their behalf”;
  • “Prohibit the use of any employer-provided vehicle to transport H-2A workers unless each occupant is wearing a seat belt before the vehicle is operated”; and
  • “Mak[e] new wage rates applicable immediately upon their publication in the Federal Register rather than weeks later.”

Comments on the proposed rule may be submitted until November 14, 2023.

Agricultural Labor: DHS Publishes Proposed Rule Amending H-2 Program
On September 20, 2023, the U.S. Department of Homeland Security (DHS) published in the Federal Register a proposed rule (88 FR 65040) titled “Modernizing H-2 Program Requirements, Oversight, and Worker Protections.” Also announced by DHS, the proposed rule would “provide H-2A and H-2B workers [who report their employers for program violations] with ‘whistleblower protection’ comparable to . . . that . . . currently offered to H-1B workers” and “extend[] grace periods for [workers] seeking new employment, preparing for departure from the United States, or seeking a change of immigration status.” The proposed rule would also establish permanent H-2 portability, “which would allow employers who are facing worker shortages to hire H-2 workers who are already lawfully in the United States while the employer’s H-2 petition for the worker is pending.” Comments on the proposed rule may be submitted until November 20, 2023.

Crop Insurance: USDA Extends Comment Period for Prevented Planting Crop Insurance Provisions
On September 12, 2023, the U.S. Department of Agriculture (USDA) Federal Crop Insurance Corporation (FCIC) and Risk Management Agency (RMA) published in the Federal Register a notice (88 FR 62524) reopening the comment period for its May 23, 2023 request for public comment (88 FR 33081) on the prevented planting provisions of the Common Crop Insurance Policy (CCIP), Basic Provisions. Also announced by RMA, the agencies are requesting stakeholder input, among other items, on (1) “whether to allow the prevented planting payment calculations to be based on the higher of projected price or harvest price under the revenue protection plan of insurance,” (2) “challenges or experiences since the [‘1 in 4’] rule was implemented nationwide,” (3) whether “RMA should reinstate the option to buy-up prevented planting coverage by 10 percent,” and (4) “how prevented planting payments should be calculated for contract crops.” Comments may be submitted until October 12, 2023. For background, see ALWR—June 5, 2023, “Federal Crop Insurance Corporation Seeks Public Comment on Prevented Planting Provisions, Hosts Listening Sessions.”

Dairy Policy: USDA Announces $5 Million for Second Round Organic Dairy Marketing Assistance Payments
On September 20, 2023, the U.S. Department of Agriculture’s (USDA) Farm Service Agency (FSA) announced $5 million for a second round of payments under the Organic Dairy Marketing Assistance Program (ODMAP).  According to the announcement, participating producers need not take actions to receive the second payment, which will be issued automatically. For background on ODMAP, see ALWR—May 29, 2023,“USDA Announces $104 Million in Organic Dairy Marketing Assistance Program” and ALWR—Jan. 30, 2023, “USDA Announces Second Round of Pandemic Market Volatility Assistance and New Organic Dairy Marketing Assistance.”

International Trade: China Extends Tariff Exclusion Period for Sorbitol until April 2024
September 19, 2023, the U.S. Department of Agriculture’s (USDA) Foreign Agricultural Service (FAS) published a report titled “China Issues Extension of the Exclusion of Section 301 Retaliatory Tariffs on Sorbitol Again.” According to the report, on September 13, 2023, China’s State Council Tariff Commission (SCTC) published an announcement extending until April 30, 2024, the previous September 15, 2023, expiration date of its retaliatory tariff period for 124 U.S. commodities, including the food additive sorbitol. The report states that, in 2022, the “United States was the second largest supplier of sorbitol to China with . . .  imports reaching $1.4 million” and that this extension marks the sixth instance in which “China has extended the tariff exclusion period for sorbitol.”

Conservation Programs: Fish and Wildlife Service Publishes Proposed Rule Allowing Incidental Take of Colorado Gray Wolf
On September 19, 2023, the U.S. Fish and Wildlife Service (FWS) published in the Federal Register a proposed rule (88 FR 64399) making available the agency’s final environmental impact statement and draft record of decision “establishing a nonessential experimental population (NEP) of the gray wolf (Canis lupus) in the State of Colorado.” Also announced by FWS, the agency action follows a request by the State of Colorado and allows the “legal, purposeful, and incidental take of the gray wolf within . . . Colorado.” FWS stated that it will issue a final record of decision after October 19, 2023.

Nutrition Programs: USDA Publishes Proposed Rule to Change SNAP Quality Control Processes
On September 19, 2023, the U.S. Department of Agriculture’s (USDA) Food and Nutrition Service (FNS) announced and published in the Federal Register a notice of proposed rulemaking (88 FR 64756) titled “Provisions to Improve the Supplemental Nutrition Assistance Program’s Quality Control [QC] System.” According to the proposed rule, the new provisions would “change the active case review to focus on eligibility actions instead of a random, point-in-time review for each case” and “would eliminate the two-comparison allotment tests from the QC review and instead focus on eligibility determinations, consider cases that a State agency cannot validate as total dollar errors, and alter the sampling and sampling plan requirements to correspond to the changed review focus.” Comments on the proposed rule may be submitted until November 20, 2023.

National Agriculture Policy: USDA Announces $1 Billion for Urban and Community Forest Program
On September 14, 2023, the U.S. Department of Agriculture’s (USDA) Forest Service announced more than $1 billion for 385 grant proposal projects under the Urban and Community Forest Program to “plant and maintain trees, combat extreme heat and climate change, and improve access to nature in cities, towns, and suburbs.” According to the announcement, grants were awarded to projects in “all 50 states, the District of Columbia, and several U.S. Territories and Tribal Nations.” In Pennsylvania, grants were awarded to the following partners and projects:

  • Borough of Mechanicsburg & Trees for All ($500,000)
  • Borough of State College & Borough of State College Urban Forestry Sustainability Plan ($369,355)
  • City of Allentown & City of Allentown Urban Forestry ($920,800)
  • City of Connellsville & Connellsville Community Tree Program ($500,000)
  • City of Easton & Easton Urban Forest Equity Project ($1,000,000)
  • City of Harrisburg & Harrisburg City Riverside ($1,000,000)
  • City of Harrisburg & Harrisburg City TreeVestment ($1,000,000)
  • City of Johnstown & Johnstown Urban Orchards project ($659,300)
  • City of Lancaster & Proactive Systemic Maintenance: Pruning, Planting and Removal ($1,000,000)
  • City of Pittsburgh & Pittsburgh Vacant Lots Tree Planting ($1,000,000)
  • Friends of the Pittsburgh Urban Forest (DBA Tree Pittsburgh) & Pittsburgh Canopy Alliance ($8,000,000)
  • Public Health Management Corporation & Philly Tree Plan Implementation: Growing an Equitable Forest: ($12,000,000)

Food Safety: FAO/WHO Publish ‘Prevention and Control of Microbiological Hazards in Fresh Fruits and Vegetables’ Report
On September 6, 2023, the United Nations Food and Agriculture Organization (FAO) announced the publication of a joint meeting report with the World Health Organization (WHO) titled “Prevention and Control of Microbiological Hazards in Fresh Fruits and Vegetables” along with the publication of a summary and conclusions document. The report covers four commodity groups: leafy vegetables and herbs, berries and tropical fruits, melons and tree fruits, and seeded and root vegetables. According to the report, “preventive measures such as Good Agricultural Practices (GAP) and Good Hygiene Practices (GHP) during primary production remains the most effective means of reducing the risk of contamination . . . in all fruit and vegetable commodities during cultivation.”

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CENTER PROGRAMS & RESOURCES

Podcasts:

Agricultural Law Podcast

245. USDA rolls-out another phase of farm loan debt-relief authorized by the Inflation Reduction Act, and an unusual Maryland state court ruling on Clean Water Act permitting and ammonia air emissions is reversed by the Maryland Supreme Court (Sept. 19, 2023)

244. EPA Releases Draft Herbicide Strategy for Endangered Species Listings; Eleventh Circuit Panel Remands Prior Glyphosate Preemption Decision (Sept. 11, 2023)

243. USDA Will Commence Hearing on Federal Milk Marketing Order Reform; Federal Court Denies Poultry Producers’ Motions to Dismiss, Antitrust Price-Fixing Litigation Will Continue to Trial (Aug. 25, 2023)

 

Farmland Legal Energy Podcast

157. An Introduction to Carbon Pricing Programs and Agriculture (Part 2) (Sept. 12, 2023)

156. An Introduction to Carbon Pricing Programs and Agriculture (Part 1) (Sept. 5, 2023)

Events:

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:

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

  • Wed. 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.

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

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

Legal Considerations for Retail Farmers Market Part 2

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

Resources of Interest:

Southern Ag Today, EPA Publishes Updated Waters of the United States Rule, Rusty Rumley (Sept. 15, 2023)

Southern Ag Today, Crop Insurance Rating: the Curious Case of STAX, Bart Fischer (Sept. 14, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, Sale of Residence Has Special Tax Rules, Robert Moore (Sept. 14, 2023)

Nat’l Agric. Law Ctr., Landowners Question Authority of Agency Adjudication, Brigit Rollins (Sept. 14, 2023)

Southern Ag Today, 2023 Land Values and Buyer Motivations, Mykel Taylor (Sept. 13, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, New law bulletins focus on business entities for farm businesses, Peggy Hall (Sept. 12, 2023)

Univ. Md. Risk Mgmt. Educ. Blog, FDA Guide for Small Farms on the FSMA Food Traceability Rule, Nicole Cook (Sept. 12, 2023)

Tex. A&M Agric. Law Blog, Ag Law in the Field Podcast: Episodes 151-160, Tiffany Dowell Lashmet (Sept. 11, 2023)

Agric. Law & Tax’n Blog, Developments in Ag Law and Ag Tax, Roger McEowen (Sept. 10, 2023)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Encourages Ag Producers, Residents to Prepare for Hurricane Lee (Sept. 15, 2023)

Biden-Harris Administration Invests $1 Billion for Nearly 400 Projects to Expand Access to Trees and Green Spaces in Communities and Neighborhoods Nationwide through Investing in America Agenda (Sept.14, 2023)

USDA Announces Approval of D-SNAP for Hawaii Disaster Areas (Sept. 14, 2023)

USDA Celebrates First Year of Partnerships for Climate-Smart Commodities Market Opportunity (Sept. 13, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Issues Final Rule to Strengthen Water Protections, Support Clear and Timely Reviews of Infrastructure and Development Projects (Sept. 14, 2023)

Biden-Harris Administration Invests More than $100 Million in Recycling Infrastructure Projects Through Investing in America Agenda (Sept. 13, 2023)

New EPA Report Shows Major Emissions Reductions in Electricity Sector from President Biden’s Inflation Reduction Act (Sept. 12, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Services (AMS)

USDA Settles a Packers and Stockyards Case with Wall Sections Inc./Sage Livestock LLC (Sept. 14, 2023)

USDA Settles a Packers and Stockyards Case with Beken Livestock Inc., Resulting in a $9,000 Penalty (Sept. 14, 2023)

USDA Settles a Packers and Stockyards Case with Mast Livestock, Resulting in a $3,000 Penalty (Sept. 14, 2023)

USDA Restricts PACA Violators in Florida, Illinois and New York From Operating in the Produce Industry (Sept. 14, 2023)

Agricultural Research Service (ARS)

USDA Announces 2023 Awardees of 1890 Faculty Research Sabbatical Program, Accepting Applications for 2024 (Sept. 13, 2023)

USDA Commemorates 100 Years of Contributions to the Grape Industry (Sept. 12, 2023)

Animal and Plant Health Inspection Service (APHIS)

USDA Announces Rabies Action Plan to Protect Public, Domestic Animals and Wildlife (Sept. 14, 2023)

APHIS Finalizes Amendments to Import Regulations for Horses (Sept. 13, 2023)

USDA Announces Awards to Support One Health Initiatives (Sept. 12, 2023)

Economic Research Service (ERS)

State Agricultural Trade Data (Sept. 14, 2023)

World Agricultural Supply and Demand Estimates at a Glance (Sept. 13, 2023)

WASDE Report [The World Agricultural Supply and Demand Estimates] (Sept. 12, 2023)

Farm Services Agency (FSA)

USDA Announces Milk Loss Assistance for Dairy Operations Impacted by 2020, 2021 and 2022 Disaster Events (Sept. 11, 2023)

Food and Nutrition Service (FNS)

FNS Awards $723,564 to the Texas HHSC to Improve Recipient Fraud Prevention, Detection and Investigation Efforts (Sept. 15, 2023)

FNS Awards $749,987 to the Michigan Department of Health and Human Services to Improve Recipient Fraud Prevention, Detection and Investigation Efforts (Sept. 15, 2023)

FNS Awards $662,689 to the Wisconsin Department of Health Services to Improve Recipient Fraud Prevention, Detection and Investigation Efforts (Sept. 15, 2023)

FNS Awards $537,504 to the Colorado Department of Human Services to Improve Recipient Fraud Prevention, Detection and Investigation Efforts (Sept. 15, 2023)

USDA Announces Approval of D-SNAP for Hawaii Disaster Areas (Sept. 14, 2023)

Food Safety and Inspection Service (FSIS)

Constituent Update—September 15, 2023 (Sept. 15, 2023)

Foreign Agricultural Service (FAS)

USDA Trade Mission Builds New Opportunities for U.S. Agribusinesses in Chile (Sept. 13, 2023)

National Agricultural Statistics Service (NASS)

USDA forecasts US corn production up, soybean and cotton production down from 2022 (Sept. 12, 2023)

National Institute of Food and Agriculture (NIFA)

The General Services Administration (GSA)/System for Award Management (SAM) is Experiencing Delays (Sept. 14, 2023)

Natural Resources Conservation Service (NRCS)

NRCS in Arizona Accepting Applications from Producers, Landowners for Inflation Reduction Act Funding (Sept. 15, 2023)

NRCS Oregon Announces Sign-Up Period for the Agricultural Conservation Easement Program (Sept. 15, 2023)

Urban Agriculture Forum provides opportunity for information, networking (Sept. 13, 2023)

Funds for On-Farm Conservation Available to Producers in the Raritan Basin (Sept. 12, 2023)

State Technical Advisory Committee Meeting Scheduled for October 10 (Sept. 11, 2023)

NRCS in N.H. Announces Signup Date for Fiscal Year 2024 Under EQIP, AMA and CSP (Sept. 11, 2023)

Risk Management Agency (RMA)

USDA Extends Deadline to October 12 for Input on Crop Insurance Coverage for Prevented Planting (Sept. 15, 2023)

USDA Invests about $6.5 Million in Risk Management Education for Farmers, Including Underserved and Organic Producers (Sept. 14, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register Sept. 11–15, 2023):   

Agricultural Marketing Service

88 FR 62695 Rule: “Nomenclature Change; Technical Amendment” (Sept. 13, 2023)

Agriculture Department

88 FR 63550 Notice: “Submission for OMB Review; Comment Request [Accreditation of Laboratories, Transactions, and Exemptions]” (Sept. 15, 2023)

Animal Health and Inspection Service

88 FR 62993 Rule: “Import Regulations for Horses” (Sept. 14, 2023)

Environmental Protection Agency

88 FR 63046 Proposed Rule—Comment Rule: “Revisions to the Air Emissions Reporting Requirements” (Sept. 14, 2023)

88 FR 63103 Notice: “Certain New Chemicals or Significant New Uses; Statements of Findings for June and July 2023” (Sept. 14, 2023)

88 FR 62492 Proposed Rule—Comment Rule: “Pesticide Tolerances; Implementing Registration Review Decisions for Certain Pesticides (FY23Q4)” (Sept. 12, 2023)

88 FR 62464 Rule: “Fluazaindolizine; Pesticide Tolerances” (Sept. 11, 2023)

Farm Service Agency

88 FR 62285 Rule: “Milk Loss Program and Emergency Relief Program” (Sept. 11, 2023)

Food and Nutrition Service

88 FR 62526 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request: Additional Information To Be Collected From Sub-Grantees Under Uniform Grant Application Package for Discretionary Grant Programs” (Sept. 12, 2023)

88 FR 62527 Notice—Comment Period: “Agency Information Collection Activities: Supplemental Nutrition Assistance Program (SNAP) Forms: Applications, Periodic Reporting, and Notices” (Sept. 12, 2023)

National Agricultural Statistics Service

88 FR 62530 Notice—Comment Period: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection” (Sept. 12, 2023)

Risk Management Agency

88 FR 62524 Notice—Comment Period: “Request for Information on Prevented Planting” (Sept. 12, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.5500 “PLACE Act of 2023” Referred to the House Committee on Agriculture. (Sept. 14, 2023)

H.R.5466 “BUFFER Act” Referred to the House Committee on Agriculture. (Sept. 14, 2023)

H.R.5462 “To amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to require that the slaughter date, package date, freeze date, and country of origin be labeled on meat and poultry products.” Referred to the House Committee on Agriculture. (Sept. 14, 2023)

H.R.5459 “Precision Agriculture Workforce Training and Development Act” Referred to the House Committee on Agriculture. (Sept. 14, 2023)

H.R.1567 “ACRES Act” Received in the Senate and Read twice and referred to the Committee on Energy and Natural Resources. (Sept. 14, 2023)

H.R.5445 “Designating the Guam and Western Pacific USDA Rural Development Office Act” Referred to the House Committee on Agriculture. (Sept. 13, 2023)

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

S.2798 “BUFFER Act” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 14, 2023)

H.R.3389 “Emergency Wildfire Fighting Technology Act of 2023” Received in the Senate and Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 13, 2023)

S.2792 “Strengthening Local Meat Economies Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 13, 2023)

S.2786 “Farmers’ Market Expansion Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 13, 2023)

S.2772 “School MEALS Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 12, 2023)

S.2756 “Streamlining Organic Research Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sept. 11, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

None

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 37—Sept. 16, 2023): 

Department of Agriculture

53 Pa.B. 5781 Notice: “List of Pesticides Which May be used by Medical Marijuana Growers and Processors”

Department of Environmental Protection

53 Pa.B. 5786 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. 5853 Notice: “Availability of National Pollutant Discharge Elimination System General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12)”

53 Pa.B. 5853 Notice: “Availability of National Pollutant Discharge Elimination System General Permit for Discharges from the Application of Pesticides (PAG-15)”

Department of Community and Economic Development

53 Pa.B. 5774 Proposed Rule: “Inspections and Fees”

Fish and Boat Commission

53 Pa.B. 5858 Notice: “Special Regulation Designations”

PENNSYLVANIA LEGISLATURE

SB 925 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in bees, providing for apiary registration and for notification of pesticide application.” Referred to AGRICULTURE AND RURAL AFFAIRS (Sept. 14, 2023)

 

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