December 23, 2022

Agricultural Law Weekly Review—Week Ending December 16, 2022

Agricultural Labor: Fifth Circuit Finds No Federal Jurisdiction In Worker Suit Against Swift Beef For Inadequate COVID Protections 🌾
On December 7, 2022, the U.S. Court of Appeals for the Fifth Circuit issued an opinion vacating and remanding the federal district court’s orders in an action filed by Swift Beef Company employees alleging that they contracted COVID-19 due to the company’s “fail[ure] to provide a safe work environment.”  Garcia v. Swift Beef, No. 22-10050; Garcia v. Swift Beef Company, No. 2:20-cv-00263 (N.D. Tex).  The case was originally filed in Texas state court but Swift Beef removed it claiming that the President’s April 28, 2020 Executive Order, “Delegating Authority Under the Defense Production Act With Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19” (E.O. 13917), allowed the company to remove the case to federal court based on “federal officer jurisdiction.”  The district court agreed with Swift Beef and (1) held that it had jurisdiction over the case; (2) denied a request to remand to the state court; and (3) dismissed the case pursuant to Texas’s Pandemic Liability Protection Act.  However, the Fifth Circuit vacated the district court’s orders, applying its July 2022 holding in Glenn v. Tyson Foods that “a food production company does not act at the direction of a federal officer . . . simply because the government designated its facilities ‘critical infrastructure’ during the COVID-19 pandemic.”  The Fifth Circuit, and other courts, have consistently applied the Glenn rationale to remand district court dismissals based on federal officer removal jurisdiction premised on E.O. 13917 (see ALWR—Oct. 7, 2022, “Circuit Court Reinstates Tyson Workers’ COVID-19 Claims Against Employer”).  The court then remanded the case to the district court for further proceedings, which may include determining federal jurisdiction based on diversity of citizenship or federal question jurisdiction. 

Agricultural Labor: Suit Alleging Perdue Contract Poultry Growers Misclassified as ‘Independent Contractors’ Survives Motion to Dismiss
On December 9, 2022, the U.S. District Court for the Middle District of Georgia issued an order denying in part and granting in part Defendant Perdue Farms Inc.’s motion to dismiss the putative class action case of Roger Parker v. Perdue Farms, Inc., et al., No.5:22-cv-00268-TES.  Roger Parker filed a complaint on July 22, 2022 claiming that Perdue misclassified him and similarly situated contract poultry growers as independent contractors as opposed to employees.  Although the court granted Perdue’s motion to dismiss a state-law fraud claim and a Packers & Stockyards Act claim, the court denied Purdue’s motion to dismiss Parker’s Fair Labor Standards Act (FLSA) claim and others.  The court found that Perdue’s objections to the FLSA claims—that the court lacks jurisdiction over similarly situated plaintiffs outside the state of Georgia and that FLSA’s agriculture exemption precludes Parker’s claims—were premature because each required the creation of a more extensive factual record to decide.  Additionally, while the court dismissed Parker’s state-law fraud claim due to heightened pleading requirements, it did so without prejudice to allow Parker to amend his complaint with more specific facts in support.

Biotechnology: USDA and U.S. Trade Representative Release Joint Statement after Meeting on Biotech Corn Imports with Mexican Officials
On December 16, 2022, the U.S. Department of Agriculture (USDA) Secretary Tom Vilsack, with U.S. Trade Representative (USTR) Katherine Tai, released a joint statement after meeting with Mexican Government officials regarding Mexico’s 2020 decree, which would limit U.S. bioengineered (BE) corn imports into Mexico.  According to the statement, also published by the USTR, the Mexican officials “presented some potential amendments to the decree in an effort to address [U.S.] concerns,” which USDA and USTR state they will “review . . . closely” and quickly respond to with “questions or concerns.”  USDA and USTR state, “There is a joint recognition that time is of the essence and we must determine a path forward soon.”  For background, see ALWR—Nov. 25, 2022, “USDA Secretary Releases Statement on U.S.-Mexico Corn Trade After Meeting with Mexican President.”

Agricultural Labor: Department of Labor Publishes 2023 Adverse Effect Wage Rates
On December 16, 2022, the U.S. Department of Labor’s (DOL) Employment and Training Administration published in the Federal Register two notices announcing the adverse effect wage rates (AEWR) for H-2A “seasonal nonimmigrant foreign workers” in range (87 FR 77141) and non-range (87 FR 77142) agricultural occupations.  Under H-2A regulations, “range” occupations consist of “herding or production of livestock on the range” while “non-range” occupations involve “agricultural labor or services other than the herding or production of livestock on the range.”  The 2023 AEWR for range occupations is $1,901.21 per month while the 2023 non-range AEWR varies by state and is based on the field and livestock workers’ combined 2022 wage rate from the U.S. Department of Agriculture’s (USDA) National Agricultural Statistics Service (NASS) most recent Farm Labor Report, published on November 23, 2022.  The 2023 non-range AEWR for Pennsylvania is $16.55.  All 2023 AEWRs become effective January 1, 2023.  For a detailed analysis of the Adverse Effect Wage Rate, see American Farm Bureau Federation, Examining the 2023 AEWR.

Biotechnology: Federal Agencies Jointly Seek Input on Coordinated Framework for Regulation of Biotechnology
On December 20, 2022, the Office of Science and Technology Policy (OSTP)—on behalf of the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA)—published in the Federal Register a notice (87 FR 77900) seeking information to “identify any regulatory ambiguities, gaps, or uncertainties in the Coordinated Framework for the Regulation of Biotechnology.”  The request for information is consistent with the directive to the three agencies in Section 8(a) of the September 2022 Executive Order, “Executive Order on Advancing Biotechnology and Biomanufacturing Innovation for a Sustainable, Safe, and Secure American Bioeconomy.”  Also announced by FDA, the agencies’ notice requests “relevant data and information, including case studies . . . particularly with regard to new and emerging biotechnology products.”  The OSTP, FDA, EPA, and USDA will hold a virtual listening session on Thursday, January 12, 2023 at 1:00 pm EDT and parties may submit comments through the Regulations.gov docket APHIS-2022-0076 until February 3, 2022.

Conservation Programs: USDA Announces Additional $325 Million for Climate-Smart Commodities Projects
On December 12, 2022, the U.S. Department of Agriculture (USDA) announced the second round of investment in the Partnerships for Climate-Smart Commodities program.  This program seeks to expand opportunities for American producers developing climate-smart goods and services.  These additional funds, totaling $325 million, will go towards 71 projects.  A complete list of the funded projects can be found here.

Dairy Policy: PA Milk Marketing Board Continues $1 Over-Order Premium Until June 30, 2023
On December 14, 2022, the Commonwealth of Pennsylvania, Milk Marketing Board (Board) published General Order No. A-1015 renewing its over-order premium (OOP) of $1.00 per hundredweight for fluid milk produced, processed, and sold in Pennsylvania from January 1, 2023, through June 30, 2023.

Conservation Programs: Indigo Distributes Second Year of Carbon Contract Payments
On December 15, 2022, Indigo Agriculture announced that it distributed year two of carbon contract payments through its Carbon by Indigo Program, which pays producers for “carbon sequestration . . . outcomes” achieved through “sustainable practices like planting cover crops, converting to no-till or reduced tillage, changing the timing of [their] nitrogen applications, and adding a new cash crop to their rotation.”  According to Indigo, producers earned $30 per carbon credit sold, which the company says amounts to “at least 75% of the average buyer price for each credit issuance.”  Overall, Indigo reports that it issued payments totaling more than $3.7 million to more than 450 producers.  Additionally, Indigo states that the 267 producers who generated carbon credits in the company’s first payment distribution on September 9, 2021, received another payment “reflect[ing] the $30 per credit final payment rate” for year one.  Indigo further states that the year one final payment rate amounts to “a 200% increase over the original minimum payment rate.”  According to the announcement, Indigo plans a second carbon credit issuance during the first half of 2023.

 

________________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

CENTER PROGRAMS & RESOURCES

Events:

3rd Annual Pennsylvania Farm Show Agricultural Law Symposium
On January 10 and 12, 2023, the Penn State Center for Agricultural and Shale Law will be hosting the 3rd Annual Pennsylvania Farm Show Agricultural Law Symposium.  The symposium consists of four hours of educational webinars on current topics of importance in agricultural law presented by the Center’s legal staff.  Symposium sessions are free and open to the public and will be conducted via Zoom. Four hours of substantive Pennsylvania CLE credits are available for licensed attorneys at no cost to attendees.

  • Tuesday, January 10, 2023 (1:00–3:15pm)
    • 1:00–2:00pm          Agricultural Law: The Year 2022 in Review
      • A review of the major federal and state legal developments across all three branches of government affecting agriculture in 2022.
    • 2:15–3:15pm    U.S. Supreme Court Deep Dive: Searching for Clarity in WOTUS and the Dormant Commerce Clause
      • Sackett v. EPA seeks to define the Clean Water Act’s phrase “waters of the United States” and National Pork Producers Council v. Ross questions whether the dormant Commerce Clause prohibits California’s in-state pork sales restrictions, which largely affect out-of-state producers. Oral argument was presented for both cases in October. We’ll review the precedential case law, history, and arguments of each case as we wait for the final opinions.
  • Thursday, January 12, 2023 (1:00–3:15pm)
    • 1:00-2:00pm          Agricultural Antitrust: Protein Sector Spotlight
      • The poultry, pork, and beef sectors are each entangled in federal multi-district class action litigation and facing Department of Justice investigations and enforcement for alleged price-fixing and conspiracy. Learn the details in this session.
    • 2:15-3:15pm     Agriculture & the Environment: 2022 in Pesticides & the Chesapeake Bay
      • First, we’ll review the continuing complex status of EPA’s glyphosate and dicamba product registrations and the federal litigation over them that continues. Then, we’ll provide a complete update on Pennsylvania’s status and activities in the countdown to the Chesapeake Bay’s 2025 nutrient reduction goals.

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 prior webinars, more information, and registration available here. Next in the series:

Recent webinar recordings available:

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. 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.  Recordings and materials available here.  Next in series:

  • Jan. 17, 2022, noon ET: Interstate Regulation of Milk Production & Processing. Registration available soon.

Resources of Interest:

Academic & Government Resources

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports 

Top #AgLaw HotLinks Dec. 10–16, 2022:

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu. 

__________________________________________________________

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE  

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Joint Statement from Secretary Vilsack and Ambassador Tai after Meeting with Mexican Government Officials (Dec. 16, 2022).

USDA Invests in Critical Infrastructure to Lower Costs, Create Jobs, and Combat Climate Change Across Rural America (Dec. 15, 2022).

USDA Announces New Members of the USDA/1890 Task Force (Dec. 15, 2022).

Biden-Harris Administration Announces an Additional $325 Million in Pilot Projects through Partnerships for Climate-Smart Commodities, for Total Investment of $3.1 Billion (Dec. 12, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Parties Agree to Pay $150 Million Toward Clean Up of the Lower Passaic River in New Jersey (Dec. 16, 2022).

EPA Highlights Ongoing Progress in the Rouge River Area of Concern in Southeast Michigan (Dec. 15, 2022).

$10.3 Million in Grants Awarded to Improve the Health of Long Island Sound (Dec. 12, 2022).

EPA Announces $25.7 Million in Grants to Support Water Systems in Rural and Small Communities (Dec. 12, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Montana (Dec. 15, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Utah (Dec. 14, 2022)

USDA Takes Steps to Support Food Sovereignty with the Spirit Lake Tribe (Dec. 13, 2022).

USDA Takes Steps to Support Food Sovereignty with the Fond du Lac Band of Lake Superior Chippewa (Dec. 12, 2022).

Animal and Plant Health Inspection Service (APHIS)

APHIS Issues Regulatory Status Review Responses: ZeaKal, Inc., Soybean and Suntory Flowers Limited Chrysanthemum (Dec. 16, 2022).

APHIS Announces New Common Names for Regulated Lymantria Moths (Dec. 14, 2022).

USDA Extends Comment Period for Proposed Importation of Chilean Table Grapes Under a Systems Approach or Irradiation (Dec. 13, 2022).

Farm Service Agency (FSA)

Biden-Harris Administration Announces an Additional $325 Million in Pilot Projects through Partnerships for Climate-Smart Commodities, for Total Investment of $3.1 Billion (Dec. 12, 2022).

Foreign Agricultural Service (FAS)

Joint Statement from Secretary Vilsack and Ambassador Tai after Meeting with Mexican Government Officials (Dec. 16, 2022).

USDA Invests More Than $200 Million to Expand Agricultural Exports Through Market Development Programs (Dec. 16, 2022).

Export Sales to Mexico (Dec. 15, 2022).

Export Sales to Unknown Destinations (Dec. 13, 2022).

US Accepting Applications for Panama Agribusiness Trade Mission (Dec. 12, 2022).

National Agriculture Statistics Service (NASS)

USDA, local partners conduct Puerto Rico 2022 Census of Agriculture (Dec. 15, 2022).

El USDA y sus socios locales realizan el Censo de Agricultura de Puerto Rico 2022 (Dec. 15, 2022).

USDA releases 2021 Organics data (Dec. 15, 2022).

National Institute of Food and Agriculture (NIFA)

NIFA-Funded Researcher Spotlight: Maria Carlota Dao (Dec. 16, 2022).

State of Success: Alabama (Dec. 14, 2022).

USDA Invests Additional $10M to Support Community Food Projects (Dec. 14, 2022).

December is Worldwide Food Service Safety Month (Dec. 13, 2022).

Building a Culture of Composting (Dec. 13, 2022).

NIFA and APLU Announce National Teaching Awards for Food and Agricultural Sciences (Dec. 12, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Dec. 12–16, 2022):            

Agriculture Department

87 FR 77057 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Dec. 16, 2022).

87 FR 76452 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Dec. 14, 2022).

87 FR 76453 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Dec. 14, 2022).

Animal and Plant Health Inspection Service

87 FR 77058 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Case-Control Study on Highly Pathogenic Avian Influenza in Turkeys” (Dec. 16, 2022).

87 FR 77057 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Phytosanitary Export Certification” (Dec. 16, 2022).

87 FR 76174 Notice—Public Comment: “Notice of Proposed Revision to Requirements for the Importation of Grapes From Chile Into the United States” (Dec. 13, 2022).

Environmental Protection Agency

87 FR 76946 Final Rule—Public Comment: “Tetraniliprole; Pesticide Tolerances” (Dec. 16, 2022).

87 FR 76944 Final Rule—Public Comment: “Propyzamide; Extension of Tolerance for Emergency Exemption” (Dec. 16, 2022).

87 FR 76474 Notice: “Chlorpyrifos; Notice of Intent To Cancel Pesticide Registrations” (Dec. 14, 2022).

87 FR 76488 Notice: “Pesticides; Removal of PFAS Chemicals From Approved Inert Ingredient List for Pesticide Products” (Dec. 14, 2022).

87 FR 76191 Notice—Public Comment: “Chlorpyrifos; Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate/Amend Certain Uses” (Dec. 13, 2022).

Federal Crop Insurance Corporation

87 FR 76919 Rule: “Walnut Crop Insurance Provisions; Correction” (Dec. 16, 2022).

Food and Drug Administration

87 FR 76559 Final Rule—Public Comment: “International Dairy Foods Association and Chobani, Inc.: Response to the Objections and Requests for a Public Hearing on the Final Rule To Revoke the Standards for Lowfat Yogurt and Nonfat Yogurt and To Amend the Standard for Yogurt” (Dec. 15, 2022).

87 FR 76418 Final Rule: “New Animal Drugs; Approval of New Animal Drug Applications; Change of Sponsor; Change of Sponsor Address” (Dec. 14, 2022).

International Trade Administration

87 FR 76181 Notice: “Certain Frozen Warmwater Shrimp From India: Notice of Court Decision Not in Harmony With the Final Results in the Antidumping Duty Administrative Review; Notice of Amended Final Results” (Dec. 13, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.Res.1528 “Recognizing the duty of the Federal Government to protect the rights of restaurant workers.” Referred to the Committee on Education and Labor, and in addition to the Committees on Ways and Means, the Judiciary, Financial Services, Energy and Commerce, Agriculture, Oversight and Reform, Armed Services, Veterans’ Affairs, Natural Resources, Foreign Affairs, and House Administration, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Dec. 16, 2022).

H.R.4374 “Broadband Internet Connections for Rural America Act.” Placed on the Union Calendar, Calendar No. 466. (Dec. 16, 2022).

H.R.9597 “To create a coordinated domestic wildlife disease surveillance framework for State, Tribal, and local governments to monitor and respond to wildlife disease outbreaks to prevent pandemics, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Dec. 15, 2022).

H.R.9591 “To require the Secretary of Agriculture to initiate hearings to review Federal milk marketing orders relating to pricing of Class I skim milk, and for other purposes.” Referred to the House Committee on Agriculture. (Dec. 15, 2022).

H.R.9556 “To promote innovation in financial services, and for other purposes.” Referred to the Committee on Financial Services, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Dec. 15, 2022).

H.R.9552 “To amend the Animal Health Protection Act to increase transparency with respect to livestock and poultry depopulation, and for other purposes.” Referred to the House Committee on Agriculture. (Dec. 14, 2022).

H.R.9372 “Pipeline Permitting for Energy Security Act.” Referred to the Subcommittee on Conservation and Forestry. (Dec. 14, 2022).

H.R.6936 “Stamp Out Invasive Species Act.” Reported by the Committee on Natural Resources. (Dec. 14, 2022).

H.R.6435 “To provide for the application of certain provisions of the Secure Rural Schools and Community Self-Determination Act of 2000 for fiscal year 2021.” Reported by the Committee on Natural Resources. (Dec. 14, 2022).

H.R.3686 “Ski Hill Resources for Economic Development Act.” Reported (Amended) by the Committee on Natural Resources. (Dec. 14, 2022).

H.R.3670 “SOAR Act.” Placed on the Union Calendar, Calendar No. 460. (Dec. 14, 2022).

H.R.3326 “Public Land Renewable Energy Development Act of 2021.” Placed on the Union Calendar, Calendar No. 459. (Dec. 14, 2022).

H.R.1506 “Transparency in Energy Production Act of 2021.” Placed on the Union Calendar, Calendar No. 454. (Dec. 14, 2022).  

H.R.1503 “Restoring Community Input and Public Protections in Oil and Gas Leasing Act of 2021.” Placed on the Union Calendar, Calendar No. 452. (Dec. 14, 2022).

H.Res.1485 “Expressing support for the designation of November 17, 2022, as ‘National Rural Mental Health Day.’” Referred to the Subcommittee on Biotechnology, Horticulture, and Research. (Dec. 14, 2022).

H.Res.1156 “Expressing the commitment of the House of Representatives to building on the twenty years of success of the George McGovern-Robert Dole Food for Education and Child Nutrition Program.” Motion to reconsider laid on the table Agreed to without objection. (Dec. 13, 2022).

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

S.5278 “A bill to amend the Plant Protection Act to require the publication of information on violations of wood packaging material regulations, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Dec. 15, 2022).

S.5292 “A bill to protect and expand access to donor milk, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Dec. 15, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Ag Secretary Reminds Dog Owners To License Their Pets By January — ‘Love Your Dog. License Your Dog’. (Dec. 16, 2022).

Pennsylvania Protects 30 Farms In 18 Counties From Development, Forever Protecting 170 Farms, 13,069 New Acres In 2022 (Dec. 15, 2022).

Agriculture Secretary Encourages PA Farmers To Be Counted In 2022 Agriculture Census (Dec. 14, 2022).

Agriculture Secretary Announces $300,000 Available To Support Success Of Pennsylvania Farms (Dec. 13, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 50—Dec. 17, 2022): 

Department of Agriculture

52 Pa.B. 7714 Notice: “Temporary Order Designating Dangerous Transmissible Diseases.”

Department of Environmental Protection 

52 Pa.B. 7717 Notice: “Applications, Actions and Special Notices.”

52 Pa.B. 7781 Notice: “Availability of Technical Guidance.”

52 Pa.B. 7782 Notice: “Board and Committee Meeting Schedules for 2023.”

52 Pa.B. 7786 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Operation of Concentrated Animal Feeding Operations (PAG-12).”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney 
Brook Duer—Staff Attorney