Biofuels
Agricultural Law Weekly Review—week ending November 6, 2020
Agricultural Labor: Department of Labor Modifies H2A Minimum Wage Calculation
On November 5, 2020, the U.S. Department of Labor’s (DOL) Employment and Training Administration published in the Federal Register a final rule titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (85 FR 70445), which changes the calculation method of the Adverse Effect Wage Rate (AEWR), or the minimum wage for agricultural guest workers. Under the final rule, DOL will base the AEWR for field and livestock workers on the 2019 Farm Labor Survey (FLS) “average annual gross […]
Shale Law Weekly Review – September 25, 2020
Pipelines: Court Orders Additional Briefing on Continued Operation of Dakota Access Pipeline
On September 11, 2020, U.S. District Court for the District of Columbia issued an order requesting additional briefing to be submitted to it in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. (Case Number 16-1534 (JEB)).  The parties’ additional briefs will assist the court in determining whether it should issue an injunction preventing the Dakota Access pipeline, spanning 1,272 miles, from operating.  In the order, the district court denied the U.S. Army Corps’ request to pause the litigation while the Corps decides whether to allow the pipeline to continue operating, a […]
Agricultural Law Weekly Review—week ending September 18, 2020
Biofuels: EPA Denies Sixty-Eight Small Refinery Exemptions to Renewable Fuel Standard 🌾
On September 14, 2020, the U.S. Environmental Protection Agency (EPA) announced its denial of sixty-eight pending small refinery exemption (SRE) petitions requesting relief from Renewable Fuel Standard (RFS) blending compliance for 2011–2018. Following the Tenth Circuit Court of Appeals’ January 24, 2020 ruling in Renewable Fuels Assn. v. EPA, holding that EPA’s grant of economic hardship exemptions, rather than statutory-authorized extensions, exceeded EPA’s legal authority. Refiners filed sixty-eight petitions seeking, in various ways, to backfill their previous history of exemptions with new EPA grants of […]
Agricultural Law Weekly Review—week ending May 22, 2020
COVID-19: USDA Announces Details of Direct Payments Portion of Coronavirus Food Assistance Program
On May 19, 2020, U.S. Secretary of Agriculture Sonny Perdue announced the direct payments portion of the Coronavirus Food Assistance Program (RIN 0503-AA65), which will provide $16 billion in direct payments to producers of wool, livestock, dairy, and specialty and non-specialty crops who have experienced a “five-percent-or-greater price decline due to COVID-19.” Payments are limited to $250,000 “per person or entity” with exceptions for corporate entities of up to three shareholders who “contribute[] substantial labor or management” to operations. USDA will accept applications […]
Agricultural Law Weekly Review—April 16, 2020
Avian Influenza: Highly Pathogenic Avian Influenza Detected in South Carolina:
On April 9, 2020, USDA Animal & Plant Health Inspection Service (APHIS) announced the confirmed presence of H7N3 highly pathogenic avian influenza (HPAI) in a commercial turkey flock in Chesterfield County, South Carolina.  APHIS stated that there is no immediate human health concern.  A report issued by APHIS to the World Organization for Animal Health (OIE) states that 34,160 turkeys were “suspectible,” 1,583 died, and 32,577 were culled.  APHIS also stated that this is the first confirmed case of HPAI in commercial poultry in the United States since 2017, and it appears […]
Agricultural Law Weekly Review—March 26, 2020
Dairy Policy: Dean Foods Bankruptcy Asset Sale Proceeds Without DFA as Pre-Negotiated Opening Bidder
On March 19, 2020, a hearing was conducted in the Dean Foods Chapter 11 bankruptcy, pending in the U.S. Bankruptcy Court for the Southern District of Texas, Case #19-36313, on a motion filed by Debtor Southern Foods Group, LLC and forty-two affiliated companies (Dean Foods) to amend the February 17, 2020, “Bidding Procedures for Sale of Debtors’ Assets” Order.  That Order established dairy producer cooperative Dairy Farmers of America, Inc. (DFA) as what is referred to in bankruptcy terminology as a “Stalking Horse Bidder” whose bid […]
Agricultural Law Weekly Review—March 12, 2020
Food Safety: U.S. Customs Agricultural Inspection Workforce Expanded
On March 3, 2020, President Trump signed into law Senate Bill 2107, now designated as Public Law No. 116-122, titled “Protecting America’s Food and Agriculture Act of 2019.”  This legislation authorizes the U.S. Customs and Border Protection (CBP) to annually hire up to two-hundred forty (240) and two-hundred (200) new CBP Agriculture Specialists and CBP Agriculture Technicians respectively. The gross number of each employee type to be achieved and maintained is determined by an annual calculation of CBP’s need.  The law also provides an escalating yearly appropriation for federal fiscal years 2020 […]
Agricultural Law Weekly Review—February 13, 2020
National Agricultural Policy: USDA Inspector General Confirms Investigation of Trade Aid Package
On February 11, 2020, USDA Inspector General Phyllis K. Fong confirmed during testimony before the U.S. House of Representatives Committee on Appropriations’ Subcommittee on Agriculture that her office is conducting an investigation of the legal authority and administration of the so-called “Trade Aid Packages” for 2018 and 2019.  The trade aid packages were undertaken by USDA pursuant to Section 5 of the Commodity Credit Corporation (CCC) Charter Act of 1948, 15 U.S.C. 714 et seq., to compensate agricultural producers for lost revenue due to Chinese tariff retaliation and trade […]
Agricultural Law Weekly Review – January 30, 2020
WOTUS: EPA Releases New Navigable Waters Protection Rule to Replace 2015 WOTUS Rule
On January 23, 2020, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively “EPA”) announced the issuance of the Navigable Waters Protection Rule.  This long-awaited rule will provide a new regulatory definition of “waters of the United States” for the purpose of establishing the limits of EPA’s regulatory jurisdiction under the Clean Water Act (CWA). It will be published in the Federal Register as a final rule, without any additional comment period, and its effective date will be sixty days after publication.  To date, the Federal […]
Agricultural Law Weekly Review —January 9, 2020
Dairy Policy:Â Borden Dairy Files Chapter 11 Bankruptcy
On January 5, 2020, Borden Dairy Company, headquartered in Dallas, TX, and seventeen affiliated companies (collectively “Borden”) filed Chapter 11 reorganization bankruptcy petitions in the U.S. Bankruptcy Court for the District of Delaware. The bankruptcy proceedings are being jointly administered under Case No. 20-10010.  Borden’s bankruptcy claims agent has established a website for public access to the court dockets, filings, notices and other legally required disclosures at www.donlinrecano.com/borden. A thirty-one page declaration of Borden CFO Jason Monaco filed in support of the bankruptcy petitions contains a lengthy narrative account of the firm’s history […]
