Agricultural Law Weekly Review – Week Ending April 2, 2021

Agricultural Labor: Federal Court Vacates Swine Slaughter Rule Line Speed Elimination 🌾
On March 31, 2021, the U.S. District Court for the District of Minnesota issued an order vacating the elimination of pork slaughter plant line speed controls which was included in the U.S. Department of Agriculture’s (USDA) October 2019 Modernization of Swine Slaughter Inspection rule (84 FR 52300).  United Food and Commercial Workers Union, Local No. 663 v. United States Department of Agriculture, No. 0:19-cv-02660.  The United Food and Commercial Workers Union (UFCW) challenged the rule on behalf of pork processing plant workers as an Administrative Procedure Act (APA) violation and claimed USDA failed to consider worker safety when it promulgated the rule eliminating line speeds.  UFCW presented testimony from multiple plant workers stating that the higher evisceration line speeds compel faster overall production and increase the likelihood of worker injury, particularly by workers accidentally cutting themselves or others or dropping the 400-pound hog carcasses on themselves or others.  The court found that USDA had received many comments regarding worker safety during the rule’s comment period, but failed to consider the issues raised, stating, “[t]he only response FSIS gave to the worker safety comments it solicited was to state that it lacked authority to regulate worker safety.”  The court vacated the rule’s elimination of evisceration line speeds but declined to set aside any other portion of the rule.  Per the judgment, the order and entry of judgment are stayed for 90 days to allow the agency time to develop a plan to address plants that have adopted the rule.  For background, see ALWR—September 19, 2019, “USDA Announces Swine Slaughter Inspection Final Rule.”

Food Labeling: Eighth Circuit Affirms Injunction Denial of Missouri’s Meat Labeling Law
On March 29, 2021, the U.S. Court of Appeals for the Eighth Circuit issued an opinion affirming the federal district court’s denial of an injunction against Missouri’s meat labeling law (Mo. Rev. Stat. § 265.494(7)).  Turtle Island Foods, SPC v. Thompson, No. 19-3154.  For the lower court docket, see Turtle Island Foods, SPC v. Richardson, No. 2:18-cv-04173 (W.D. Mo.).  Missouri’s statute creates a class A misdemeanor for any person advertising, offering for sale or selling all or part of a carcass who misrepresents a product as meat that is “not derived from harvested production livestock or poultry.”  The suit, brought by The Tofurky Company and The Good Food Institute, claimed that the statute imposed a content-based restriction on their commercial speech.  However, the court found that the statute does not apply to Tofurky’s speech because the company’s product labeling conforms with guidance from the Missouri Department of Agriculture and “clearly indicate[s] that the products do not contain meat from slaughtered animals” and “clearly label[s]” the products “as plant based, vegan, or vegetarian.”  The circuit court upheld the district court’s determination that the statute did not prohibit Tofurky’s commercial speech and as such, the company had failed to show a substantial likelihood of success on the merits.

Antitrust: Tyson and Others to Pay $104 Million to End-User Class in Poultry Antitrust Settlement
On March 22, 2021, the U.S. District Court for the Northern District of Illinois issued an order granting preliminary approval of settlement agreements between the end-user plaintiffs and defendants Tyson Foods Inc., George’s Farms Corp., Peco Foods Inc., and Fieldale Corp. in a class action civil antitrust suit alleging that the companies conspired to rig bids and fix chicken prices.  In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637.  According to the plaintiffs’ memorandum supporting the settlement agreements, the four companies collectively will pay $104 million into a fund to settle claims from the end-user plaintiffs; Tyson will pay $99 million, George’s and Peco will pay $1.9 million each, and Fieldale will pay $1.7 million.  The settlement class includes “persons and entities who indirectly purchased fresh or frozen raw chicken . . . whole cut-up birds purchased within a package, or ‘white meat’ parts including breasts and wings” from the companies between January 1, 2009 and July 31, 2019 in the following states: California, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island (after July 15, 2013), South Carolina, South Dakota, Tennessee, Utah, and Wisconsin.  Instructions and timelines for filing end user plaintiff claims have yet to be released.  Recently, in February 2021, both Tyson and Pilgrim’s Pride Corp. agreed to pay $155 million to the direct purchaser plaintiffs, who may file claims at broilerchickenantitrustlitigation.com until May 17, 2021.  See ALWR—Week Ending February 26, 2021, “Court Grants Preliminary Approval of Civil Antitrust Settlement; Tyson and Pilgrim’s to Pay $155 Million.”

Antitrust:  JBS to Pay $20 Million to Indirect Purchaser Class in Pork Antitrust Settlement
On April 2, 2021, the U.S. District Court for the District of Minnesota issued an order granting preliminary approval of a settlement between the consumer indirect purchaser plaintiffs (IPP) and defendants JBS USA Food Company, JBS USA Food Company Holdings, and Swift Pork Company—collectively, “JBS”—in a class action civil antitrust suit alleging that JBS conspired with other plaintiffs to manipulate pork prices through production cutbacks.  In Re Pork Antitrust Litigation, No. 0:18-cv-01776.  According to the settlement agreement, and supporting memorandum filed with the court on March 26, 2021, JBS will pay $20 million into a settlement fund to the consumer IPP class, defined as U.S.-based “persons and entities who purchased pork indirectly from any of the Defendants for personal use” between January 1, 2009 and the date of the order, April 2, 2021.  The $20 million settlement fund will be used to pay IPP claims, litigation expenses, and claim administration expenses.  Recently, in January 2021, JBS agreed to pay $24.5 million to settle claims with the direct purchaser plaintiffs.  For more background information, see ALWR—week ending January 22, 2021, “Court Grants Preliminary Approval to JBS’s $24.5 Million Partial Settlement in Pork Antitrust Class Action.”

Antitrust: DFA Sells Two Dairy Plants to Complete Antitrust Stipulation for Dean Foods Purchase
As of March 24, 2021, Dairy Farmers of America (DFA) has finalized the sale of two former Dean Foods dairy processing plants (located in De Pere, Wisconsin and Harvard, Illinois) to a partnership between New Dairy Opco and Select Milk Producers, according to an announcement by investment banking and bankruptcy restructuring firm Capstone Headwaters, who represented the buyers.  New Dairy Opco is the entity which purchased the majority of Borden Dairy Company’s assets out of its bankruptcy in July 2020.  The sale was part of an October 2020 stipulated judgment entered in the U.S. District Court for the Northern District of Illinois ordering the divesture as the conclusion of the U.S. Department of Justice’s Antitrust Division investigation into the DFA purchase of Dean Foods assets. United States of America v. Dairy Farmers of America, Inc., No. 1:20-cv-02658.  On December 17, 2020, the stipulated judgment was amended to drop a former Dean Foods dairy plant in Franklin, Massachusetts (and ancillary facilities) from the original list of three dairy plants acquired by DFA subject to the divestiture order.  The purchase price for the two sold plants was undisclosed.  For background, see ALWR—May 7, 2020, “Justice Department Concludes Investigation of Dean Foods Asset Sale.”

Environmental Policy: USDA Seeks Comment, Will Hold Listening Session on New Rural Renewable Energy Pilot Program
On March 30, 2021, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register titled, “Request for Information and Notice of Stakeholder Listening Session on a Rural Energy Pilot Program” (86 FR 16575).  It was accompanied by a USDA announcement on April 1, 2021.  The notice seeks stakeholder input on a new Rural Renewable Energy Pilot Program, to be created with $10 million from the Consolidated Appropriations Act, 2021 (PL116-260; H.R.133), to carry out a pilot program to provide financial assistance for rural communities to further develop renewable energy.  The agency seeks public comment on several issues, including the program’s purpose, goals, metrics and standards; eligible applicants; eligible technologies, and potential program impacts.  USDA will hold a listening session on Thursday, April 22, 2021 2:00–4:30 p.m.  Written comments may be submitted until April 29, 2021.

Agricultural Labor: Agriculture Workforce Coalition Strongly Urges U.S. Senate to Enact Workforce Reform
On March 22, 2021, the Agriculture Workforce Coalition (AWC) sent a letter (signed by thirteen of the largest U.S. agricultural lobbying organizations, including American Farm Bureau Federation, National Milk Producers Federation, National Pork Producers’ Council and National Farmers Union) to U.S. Senate majority and minority leadership strongly urging the passage of legislation addressing “America’s agricultural labor crisis,” stating that “many farmers do not see a future in labor-intensive agriculture as the margins between profitability and loss disappear due to the federal government’s outdated policies and broken immigration system.”  The letter follows the March 18, 2021 U.S. House of Representatives’ passage of H.R.1603, “Farm Workforce Modernization Act of 2021,” now pending in the U.S. Senate Judiciary Committee.  On March 18, 2021, President Biden issued a statement in support of H.R. 1603.  The substantially identical bill by the same name passed the U.S. House Of Representatives in December 2019 but the U.S. Senate took no action on it.

Center Upcoming Events:

On Tuesday, April 27, 2021, at 12 noon – 1 pm EDT Penn State Law’s Center for Agricultural and Shale Law will be conducting a third webinar in its series titled “Quarterly Dairy Industry Legal Update.”
Click here to register for this webinar.
For more information, see the event page on our website.
1 hour of substantive CLE credit is available for Pennsylvania licensed attorneys at no charge to attendees.

Participate in PASA Sustainable Agriculture’s 15-minute Survey on the Impact of COVID-19 on Pennsylvania Farmers

Participate in Cornell Agricultural Workforce Development’s 2020 Farm Employee Compensation Benchmark Survey:  According to Cornell, producers who participate can compare their compensation to other farm businesses and make better compensation plans.  The process takes about 10 minutes per employee, is entirely confidential and each participant will receive a report of the results and an invitation to attend a webinar discussion of the findings. Only aggregate data, with no way to identify farms or individuals, will be published or shared.

Penn State Agricultural Law Podcast: Listen to the latest episode of our weekly podcast here. 

Upcoming Webinars:

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Accountant, Penn State Extension, April 27, 2021 at 9:00 am ET.  

Penn State Research & News:

Urban Agriculture Can Help, But Not Solve, City Food Security Problems (Mar. 24, 2021).

Scientists Turn to Deep Learning to Improve Air Quality Forecasts (Mar. 30, 2021).

Agricultural Law/Policy Resources of Interest: 

Todd Janzen, Creating Carbon Credits (Mar. 26, 2021)

Kristine A. Tidgren, Congress Has Passed the PPP Extension Act (Mar. 25, 2021).

Kristine A. Tidgren, USDA Unveils Pandemic Assistance for Producers (Mar. 26, 2021).

Brigit Rollins, The Deal with Dicamba: Updates from the First Quarter of 2021 (Mar. 25, 2021).

Brigit Rollins, In the Dirt: Introduction to Sodbuster (Apr. 1, 2021).

Roger A. McEowen, C Corporation Compensation Issues (Mar. 26, 2021).

Roger A. McEowen, Damaged and/or Destroyed Trees and Crops – How is the Loss Measured? (Mar. 29, 2021).

Nicole Cook, Historic Debt Relief and Other Assistance for Black Farmers and Farmers of Color (Mar. 30, 2021).

Chris Clayton, USDA’s Latest Aid Enrollment and Payments for CFAP

Weekly Featured Graphic:

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department of Agriculture Releases COVID-19 Restaurant Enforcement Actions, March 22 – 28, 2021 (Mar. 30, 2021).

Department of Agriculture Funds Projects to Elevate Pennsylvania Hemp Market, Increase Industry Opportunities (Mar. 31, 2021).

Secretary of Agriculture Cautions Counties, Municipalities, Will Face More Expenses Without A Dog License Fee Increase (Apr. 1, 2021).

Department of Agriculture to Distribute 7.9 Million Pounds of Emergency Food to Pennsylvania Food Banks (Apr. 2, 2021).

U.S. Department of Agriculture (USDA) Press Releases:

Biden-Harris Administration Extends Moratorium on Residential Evictions in USDA Multifamily Housing Communities in Accordance with CDC Guidance (Mar. 29, 2021).

U.S. Department of Agriculture Announces Oscar Gonzales as Assistant Secretary for Administration (Mar. 29, 2021).

FACT SHEET: Update on USDA Activities to Contain the COVID-19 Pandemic (Mar. 31, 2021).

Statement from Agriculture Secretary Tom Vilsack on the President’s American Jobs Plan (Mar. 31, 2021).

USDA Seeks Public Input to Help Create a New Rural Renewable Energy Pilot Program (Apr. 1, 2021).

USDA Increases Emergency SNAP Benefits for 25 million Americans; Ensures COVID-19 Relief Reaches Those Struggling the Most (Apr. 1, 2021).

USDA Agency Press Releases:

AMS Issues a Complaint Against Chakota Rowdy Ray Snow, d.b.a. R&R Cattle Co. and d.b.a. Rowdy Snow Cattle for Alleged Violations of the Packers and Stockyards Act, Agricultural Marketing Service (Mar. 29, 2021).

USDA Restricts PACA Violators in California, Maryland, New York and Texas from Operating in the Produce Industry, Agricultural Marketing Service (Mar. 29, 2021).

New Website Documents Check Dams Fixing Erosion of Minor Channels in Southwest, Agricultural Research Service (Mar. 30, 2021).

April 5, 2021 – BRS Permit Applicants Required to Use APHIS eFile, Animal and Plant Health Inspection Service (Mar. 31, 2021).

USDA Announces 2021 Marketing Assistance Loan Rates for Wheat, Feed Grains, Oilseeds, Rice and Pulse Crops, Farm Service Agency (Mar. 31, 2021).

USDA Announces April 2021 Lending Rates for Agricultural Producers Farm Service Agency (Apr. 1, 2021).

USDA Increases Emergency SNAP Benefits for 25 million Americans, Food and Nutrition Service (Apr. 1, 2021).

Private Exporters Report Sales Activity for Unknown Destinations, Foreign Agricultural Service (Mar. 30, 2021).

US Farmers Expect to Plant More Corn and Soybean Acreage, National Agricultural Statistics Service (Mar. 31, 2021).

Grain Stocks, Prospective Plantings, Rice Stocks, National Agricultural Statistics Service (Mar. 31, 2021).

Quarterly Hogs and Pigs, National Agricultural Statistics Service (Mar. 25, 2021).

March Crop Production, National Agricultural Statistics Service (Mar. 9, 2021).

USDA Announces Expansion of DamWatch® to Serve Forest Service Dams, Natural Resources Conservation Service (Mar. 29, 2021).

USDA, Partners Unveil New Fire Mapping Tool with National Wildfire Management Implications, Natural Resources Conservation Service (Mar. 30, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 14—Apr. 3, 2021): 

Department of Agriculture

51 Pa.B. 1831 Notice: “General Permit Standards and Requirements for Hemp.”

Department of Environmental Protection

51 Pa.B. 1940 Notice: “Pennsylvania Infrastructure Investment Authority: Environmental Assessment Approval for PENNVEST Funding Consideration.”

Susquehanna River Basin Commission

51 Pa.B. 1947 Notice: “Actions Taken at March Meeting.”

51 Pa.B. 1948 Notice: “Grandfathering Registration Notice.”

51 Pa.B. 1948 Notice: “Projects Approved for Consumptive Uses of Water.”

51 Pa.B. 1950 Notice: “Projects Approved for Consumptive Uses of Water.”

Pennsylvania Legislature

HB 1072 “An Act amending . . . the Dog Law, in licenses, tags and kennels, further providing for service dogs and dogs used by municipal or State Police departments.” Referred to Agriculture and Rural Affairs [House] (Apr. 1, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Mar. 29–Apr. 2, 2021): 

Agriculture Department

86 FR 16856 Proposed Rule: “Semiannual Regulatory Agenda, Fall 2020” (Mar. 31, 2021).

86 FR 17350 Notice: “Adjustment to Fiscal Year 2021 Specialty Sugar Tariff-Rate Quota Tranche Opening Date” (Apr. 2, 2021).

86 FR 17350 Notice: “Submission for OMB Review; Comments Requested; Correction [Agricultural Marketing Service: Reporting and Recordkeeping Requirements (United States Grain Standards Act and Agricultural Marketing Act of 1946)]” (Apr. 2, 2021).

Agricultural Marketing Service

86 FR 16287 Final Rule: “Walnuts Grown in California; Order Amending Marketing Order No. 984.” (Mar. 29, 2021).

86 FR 17349 Notice: “National Organic Standards Board (NOSB): Call for Nominations” (Apr. 2, 2021).

Environmental Protection Agency

86 FR 16718 Notice—Comment Period: “Agency Information Collection Activities; Proposed Renewal of an Existing Collection and Request for Comment; Pesticide Data-Call-In Program” (Mar. 31, 2021).

86 FR 16720 Notice—Comment Period: “Agency Information Collection Activities; Proposed Renewal of an Existing Collection and Comment Request; Pesticide Environmental Stewardship Program Annual Measures Reporting” (Mar. 31, 2021).

86 FR 17073 Final Rule: “Extension of 2019 and 2020 Renewable Fuel Standard Compliance and Attest Engagement Reporting Deadlines” (Apr. 1, 2021).

86 FR 17382 Notice: “Cancellation Order for Certain Pesticide Registration and Amendments To Terminate Uses” (Apr. 2, 2021).

86 FR 17380 Notice: “Product Cancellation Order for Certain Pesticide Registrations” (Apr. 2, 2021).

86 FR 17385 Notice: “Product Cancellation Order for Certain Pesticide Registrations” (Apr. 2, 2021).

Farm Service Agency

86 FR 17351 Notice—Comment Period: “Information Collection Request; Coronavirus Food Assistance Program (CFAP 2.0)” (Apr. 2, 2021).

86 FR 17350 Notice—Comment Period: “Information Collection Request; Representation for CCC and FSA Loans and Authorization To File a Financing Statement” (Apr. 2, 2021).

Federal Emergency Management Agency

86 FR 17078 Final Rule: “Suspension of Community Eligibility [Oklahoma, Iowa]” (Apr. 1, 2021).

86 FR 17173 Notice—Comment Period: “National Flood Insurance Program (NFIP); Assistance to Private Sector Property Insurers, Notice of FY 2022 Arrangement” (Apr. 1, 2021).

Fish and Wildlife Service

86 FR 16385 Notice—Comment Period: “Draft Environmental Assessment and Proposed Habitat Conservation Plan; Receipt of an Application for an Incidental Take Permit, Habitat Conservation Plan for the Hine’s Emerald Dragonfly, Blanding’s Turtle, Spotted Turtle, Leafy Prairie Clover, and Lakeside Daisy, Will County, Illinois” (Mar. 29, 2021).

86 FR 16382 Notice—Comment Period: “Draft Environmental Assessment and Habitat Conservation Plan; CPS Energy Programmatic Habitat Conservation Plan, Bexar County, Texas” (Mar. 29, 2021).

86 FR 16388 Notice—Comment Period: “Draft Environmental Assessment and Proposed Habitat Conservation Plan; Receipt of an Application for an Incidental Take Permit, Bitter Ridge Wind Farm, Jay County, Indiana” (Mar. 29, 2021).

86 FR 16385 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Sand Skink and Blue-Tailed Mole Skink; Osceola County, FL; Categorical Exclusion” (Mar. 29, 2021).

86 FR 16384 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Sand Skink and Blue-Tailed Mole Skink; Polk County, FL; Categorical Exclusion” (Mar. 29, 2021).

86 FR 16383 Notice—Comment Period: “Receipt of Incidental Take Permit Application and Proposed Habitat Conservation Plan for the Sand Skink, Orange County, FL; Categorical Exclusion” (Mar. 29, 2021).

86 FR 16755 Notice—Comment Period: “Endangered and Threatened Species; Receipt of Recovery Permit Applications” (Mar. 31, 2021).

86 FR 16751 Notice—Comment Period: “Endangered Species; Receipt of Recovery Permit Applications” (Mar. 31, 2021).

Food and Drug Administration

86 FR 17156 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Substances Prohibited From Use in Animal Food or Feed” (Apr. 1, 2021).

Forest Service

86 FR 17302 Final Rule: “Community Forest Program” (Apr. 2, 2021).

Rural Business-Cooperative Service

86 FR 16575 Notice—Comment Period: “Request for Information and Notice of Stakeholder Listening Session on a Rural Energy Pilot Program” (Mar. 30, 2021).

86 FR 17112 Notice: “Inviting Applications for the Rural Business Development Grant Program To Provide Technical Assistance for Rural Transportation Systems” (Apr. 1, 2021).

86 FR 17352 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection” (Apr. 2, 2021).

Rural Utilities Service

86 FR 17117 Notice: “Announcement of Application Deadlines and Requirements for Section 313A Guarantees for Bonds and Notes Issued for Utility Infrastructure Purposes for Fiscal Year (FY) 2021” (Apr. 1, 2021).

86 FR 17274 Final Rule, confirmation and response to comments: “Special Servicing of Telecommunications Programs Loans for Financially Distressed Borrowers” (Apr. 2, 2021).

U.S. House Agriculture Committee

H.R.1258 “Strengthening Local Processing Act of 2021” Referred to the Subcommittee on Livestock and Foreign Agriculture (Mar. 29, 2021).

H.R.1291 “Reinforcing Utility Restoration After Losses (RURAL) Act” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Mar. 29, 2021).

H.R.1313 “Healthy Food Access for All Americans Act” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Mar. 29, 2021).

H.R.2313 “To amend the Federal Insecticide, Fungicide, and Rodenticide Act to provide for better protection of workers using registered pesticides, and for other purposes.” Referred to the House Committee on Agriculture (Apr. 1, 2021).

H.R.2336 “To authorize the establishment of HOPE Account Pilot Projects, HOPE Action Plans Pilot Projects, and competitive grants for pilot projects.” Referred to the Committees on Financial Services, Energy and Commerce, Agriculture, Education and Labor, Ways and Means, and the Judiciary (Apr. 1, 2021).

H.R.2349 “To provide for equal protection of the law and to prohibit discrimination and preferential treatment on the basis of race, color, national origin, or sex in the administration of programs of the Department of Agriculture, and for other purposes.” Referred to the House Committee on Agriculture (Apr. 1, 2021).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:

No new actions Mar. 29–Apr. 2, 2021

Connect with the Center on Facebook or on Twitter @AgShaleLaw

Top #AgLaw HotLinks Mar. 29–Apr. 2, 2021  

Rural Broadband is on Biden’s Infrastructure List, Successful Farming

Farm Bureau Asking That Ag Workers Be Next to Receive COVID-19 Vaccine, Brownfield

Analyst Sees No Major Ag Impacts From Blocked Suez Canal Yet, Brownfield

Ohio Considers Spotted Lanternfly Quarantine, Farm and Dairy

Dicamba Labels Bring Few Recommendation Changes, Farm Progress

Ag Secretary Vilsack Calls for Equity in Ag Aid Payments, Brownfield

Biden’s Infrastructure Plan Seen as Aiding ‘Initial Link’ in Farm Supply Chain, Roll Call

USDA-APHIS Declines to Finalize Proposed RFID Rule, Meat+Poultry

‘Amicable Resolution’ May be Near for Contested Withdrawal of Organic Animal Welfare Final Rule Under Trump Administration, Food Navigator-USA

Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

Written by:
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney