WOTUS: Sixth Circuit Grants Administrative Stay of WOTUS Rule in Kentucky Until May 10, 2023
On April 22, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting an administrative stay of the U.S. Environmental Protection Agency’s (EPA) January 2023 WOTUS final rule (WOTUS). KY v. EPA, No. 23-5343. The Sixth Circuit case is an appeal from the Kentucky federal district court’s previous complete dismissal of the case legally challenging the WOTUS final rule. The administrative stay order was entered twice, once on April 20 and again on April 22, 2023, in response to an EPA motion for clarification. The revised April 22 order clarifies that the court is entering an administrative stay until May 10, 2023, of the January 2023 WOTUS final rule applicable only “inside the Commonwealth of Kentucky,” and strictly to the parties to this case. See also ALWR—April 10, 2023, “District Court Dismisses Kentucky WOTUS Challenge for Lack of Standing.”
Antitrust: JBS Agrees to $25 Million Antitrust Settlement
On April 14, 2023, the class Commercial and Institutional Indirect Purchaser Plaintiffs (CIIPPs) submitted a motion for preliminary approval of a class action settlement with defendants JBS S.A. and JBS USA Food Company (JBS) to the U.S. District Court for the District of Minnesota. In Re: Cattle and Beef Antitrust Litigation, No. 0:22-md-03031. Under the settlement, JBS will pay $25 million to a settlement fund and cooperate in other unsettled cases. This motion is awaiting court approval. For background see the Center’s Agricultural Antitrust Litigation Issue Tracker.
Air Quality: EPA May Rescind EPCRA Farm Exemption; Conducts Meetings with Stakeholders
On March 29, 2023, the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) received notice from the U.S. Environmental Protection Agency (EPA) that the agency is “considering rescinding” its June 2019 final rule exempting farms from air emissions reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). This EPA action was in response to a February 2022 federal court order remanding, but not immediately vacating, the EPCRA farm exemption. The order requires EPA to either rescind the rule or conduct notice-and-comment rulemaking and promulgate a new rule. Rural Empowerment Ass’n for Comm. Help v. EPA, No. 1:18-cv-02260 (D. D.C.). On April 3, 2023, EPA gave OMB’s OIRA notice of a “pre-rule” titled “Soliciting Information for Potential Rulemaking for Animal Waste Air Emissions under the Emergency Planning and Community Right-to-Know Act.” On April 18, 2023, EPA met with representatives from several producer groups, prompted by a request by the National Pork Producers Council (NPPC). Thee meeting included representatives from American Farm Bureau Federation, United Egg Producers, US Poultry and Egg Association, National Cattlemen’s Beef Association, National Chicken Council, National Turkey Federation, and National Milk Producers Federation.
Agricultural Labor: DOL Seeks to Pay Back Wages to 2,900 Workers Employed in 2015 HPAI Flu Outbreak
On April 10, 2023, the U.S. Department of Labor (DOL) announced that its Wage and Hour Division is seeking to locate 2,900 workers, employed at numerous sites throughout Iowa during the 2015 bird flu outbreak, who received less than the required prevailing wage for federal contractors. According to the announcement, DOL secured a consent judgment in September 2022 that allows the agency to recover $1.7 million for the workers (approximately $585 per person). The workers were employed by 145 subcontractors, including Clean Harbors Environmental Services Inc., Center for Toxicology & Environmental Health, Cotton Logistics, SWS Environmental Services, Trident Environmental Group LLC, and Triad Services.
Conservation Programs: USDA Announces Grassland Conservation Reserve Program Signup for 2023
On April 17, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced the enrollment period for the USDA Grassland Conservation Reserve Program for 2023. Enrollment will run from April 17 to May 26, 2023. Interested producers can apply through their local USDA Service Center.
Agricultural Labor: Congress Members Urge USDA Federal Suspension and Debarment Action Against JBS
On April 19, 2023, Senator Elizabeth Warren and Congressman Jamie Raskin formally requested via letter that Secretary of Agriculture Vilsack reconsider his decision not to initiate federal suspension and debarment proceedings against JBS USA (JBS), which includes Pilgrim’s Pride, citing JBS’s history of criminal conduct, convictions, and utilization of child labor. JBS contracted with Packers Sanitation Services Inc. (Packers), which was recently fined by the Department of Labor for employing children in hazardous occupations at JBS plants. The request states that, in 2022, JBS and Pilgrim’s Pride had federal protein procurement contracts worth $60 million. Preceding this request, on April 12, 2023, USDA announced that Secretary Vilsack formally requested via letter that the meat and poultry industry eliminate the use of child labor from their supply chains. The letter stated that USDA “would use [its] procurement and regulatory authorities” to address child labor usage “as quickly as possible.” Secretary Vilsack has not yet responded to Warren and Raskin’s letter. For background see, ALWR—Feb. 27, 2023, “Meatpacking Plant Sanitation Contractor Pays $1.5M Fine for Child Labor Violations.”
Technology: Colorado Governor Signs Right-to-Repair Law
On April 25, 2023, Colorado Governor Polis signed into law the first state so-called “right to repair” law in the United States, technically titled the “Consumer Repair Bill of Rights Act.” For background, see ALWR—Apr. 24, 2023, “Colorado Senate Passes Right-to-Repair Legislation.”
Animal Welfare: Xylazine Temporarily a Schedule III Drug in Pennsylvania
On April 22, 2023, the Pennsylvania Department of Health (PDH) published a Notice in the Pennsylvania Bulletin titled “Temporary Scheduling of Substance; Xylazine as a Schedule III Controlled Substance.” PDH intends to issue a final notice temporarily classifying Xylazine, a sedative commonly used by veterinarians, as a Schedule III drug under the Controlled Substance, Drug, Device and Cosmetic Act. This move will restrict access to Xylazine, which PDH hopes will help decrease opioid abuse. The Pennsylvania Office of the Attorney General has 30 days to comment on the Notice.
Water Quality: American Society of Agronomy Announces Memorandum of Understanding With NRCS
On April 18, 2023, the American Society of Agronomy announced that it had signed a Memorandum of Understanding (MOU) with the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) to improve nutrient management. Under the MOU, the ASA’s International Certified Crop Adviser (ICCA) will recommend producers to the NRCS Technical Service Provider program.
CENTER PROGRAMS & RESOURCES
Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.
- May 17, 2023, noon–1 pm (ET). Register.
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. Next in the series:
- May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes
An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.
- June 21, 2023, noon–1 pm (ET). Register.
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 from the series, more information, and registration available here. Latest in the series:
- 1st Quarter 2023—Int’l Dairy Trade: Canada-U.S. USMCA Arbitration Round 2, recorded April 18, 2023 (coming soon).
- 240. Louisiana’s Truth in Labeling is Constitutional; Dispositive Motion Filed in Dicamba Registration Challenge (Apr. 26, 2023)
- 239. WOTUS Final Rule Enjoined in 24 States; Perdue Farms Wage-Fixing Litigation Settlement (Apr. 18, 2023).
- 238. ‘Gruyere’ is Generic; “Product of the USA’ Labeling Proposed Rule (Apr. 11, 2023).
- 237. Comparability Test for Clean Water Act Citizen Suits; 2022 Chesapeake Bay Report and DEP WIP Progress Report (Apr. 7, 2023).
- 236. PA Quarantine Order Following Avian Influenza Outbreak; Injunctions Against WOTUS Final Rule in Texas and Idaho (Apr. 4, 2023).
Resources of Interest:
- USDA APHIS, 2021 Impact Report.
- USDA APHIS, Strategic Plan: Fiscal Years 2023-2027.
- Nat’l Agric. Law Ctr., Idaho Enacts Law Limiting Foreign Investments in Agricultural Land, Micah Brown (Apr. 18, 2023).
- Tex. A&M Agric. Law Blog, Transferring the Over-65 or Disabled Property Tax Exemption, Tiffany Dowell Lashmet (Apr. 16, 2023).
- Southern Ag Today, 4 Tips for Better Board Meetings, John Park—Tex. A&M AgriLife Ext. (Apr. 21, 2023).
- Agric. Law & Tax’n Blog, Bibliography – First Quarter of 2023, Roger A. McEowen (Apr. 20, 2023).
- Chesapeake Bay Foundation, Proposed Settlement Of Lawsuit Against EPA For Failing To Hold Pennsylvania Accountable For Meeting Chesapeake Bay Water Pollution Reduction Goals Focuses On Actions In 7 PA Counties(Apr. 20, 2023).
- Bay Journal, Settlement Proposed For Chesapeake Bay Cleanup Lawsuit Over EPA’s Oversight Of Pennsylvania, Karl Blankenship (Apr. 20, 2023).
- PA Capital-Star, EPA Settles Lawsuit With States, Enviros Over Chesapeake Bay Pollution From PA, Josh Kurtz (Apr. 20, 2023).
- StateImpactPA, EPA Reaches Settlement Over PA Pollution To Chesapeake Bay, Rachel McDevitt ( 21, 2023).
- Assoc. Press, EPA Agrees To Make Pennsylvania Cut Chesapeake Bay Pollution, Apr. 20, 2023).
- Progressive Farmer/DTN:
- Chesapeake Bay Settlement Opens Door for EPA Enforcement on Pennsylvania Farms, Todd Neeley (Apr. 20, 2023).
- EPA Head Regan Tells House Ag Committee Agency Paying Price for Ignoring Endangered Species Act, Todd Neeley (Apr. 19, 2023).
- Mitigate Tax Issues When It’s Time to Exit the Farm, Rod Mauszycki (Apr. 19, 2023).
- EPA Reaches Settlement on RFS With Center for Biological Diversity on Endangered Species Act Reviews, Todd Neeley (Apr. 17, 2023).
- Federal Court in Arizona Asked to Vacate Dicamba’s EPA Registration, Todd Neeley (Apr. 17, 2023).
- Colorado Becomes First State to Pass Ag Right-to-Repair Legislation, Todd Neeley (Apr. 13, 2023).
- The Guardian, EPA accused of failing to regulate use of toxic herbicides despite court order, Tom Perkins (Apr. 24, 2023).
- Related content: Revealed: Monsanto predicted crop system would damage US farms, Carey Gilliam (Mar 30, 2020).
- American Farmland Trust:
- ATTRA Sustainable Agriculture, Legal Resources for Farmers, Lee Rinehart (Apr. 2023).
- Ars Technica, Colorado governor signs tractor right-to-repair law opposed by John Deere, Jon Brodkin (Apr. 26, 2023).
- Center for Dairy Excellence webinar, Federal Milk Market Order Reform: Where Are We Now?, recorded 26, 2023.
- Lancaster Farming, Redding Unveils Plan for Pennsylvania’s Dairy Over-Order Premium, Phil Gruber (Apr.25, 2023).
U.S. Sen. Ag. Committee Hearings:
- Conservation in the Farm Bill: Making Conservation Programs Work for Farmers and Ranchers, recorded Apr. 20, 2023.
- SNAP And Other Nutrition Assistance in the Farm Bill, recorded Apr. 19, 2023.
U.S. House Ag. Committee Hearings:
- The Future of Digital Assets: Identifying the Regulatory Gaps in Spot Market Regulation, recorded Apr. 27, 2023.
- Producer Perspectives on the 2023 Farm Bill, recorded Apr. 26, 2023.
- For the Purpose of Receiving Testimony from EPA Administrator Regan, recorded Apr. 19, 2023.
- A Review of USDA Animal Disease Prevention and Response Efforts, recorded Apr. 18, 2023.
Pennsylvania General Assembly Committee Hearings:
- Pennsylvania Senate Agriculture Committee hearing, Public Hearing on future of Over Order Premium on Class I Milk, recorded 25, 2023.
- Pennsylvania House Agriculture Committee Hearing, Informational meeting to discuss the status of organic production in PA, recorded Apr. 11, 2023.
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 firstname.lastname@example.org.
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
Agricultural Research Service (ARS)
USDA-ARS Names Two Scientists to Hall of Fame (Apr. 19, 2023).
Animal and Plant Health Inspection Service (APHIS)
Economic Research Service (ERS)
Irrigation Organizations: Groundwater Management (Apr. 18, 2023).
Farm Service Agency (FSA)
USDA Announces 2023 Cotton Loan Rate Differentials (Apr. 17, 2023).
Food and Nutrition Service (FNS)
Putting the CO in Co-located Services (Apr. 21, 2023).
Foreign Agricultural Service (FAS)
National Institute of Food and Agriculture (NIFA)
NIFA-Funded Researchers Aim to Develop Climate-Resilient Rice (Apr. 18, 2023).
FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 17 – Apr. 21, 2023):
Agricultural Marketing Service
88 FR 23323 Final Rule: “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2023-2024 Marketing Year” (Apr. 17, 2023).
88 FR 24382 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Review of Major Changes in the Supplemental Nutrition Assistance Program (SNAP).]” (Apr. 21, 2023).
88 FR 23618 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: Broadband Technical Assistance Program.]” (Apr. 18, 2023).
88 FR 23618 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Cotton Ginning Survey.]” (Apr. 18, 2023).
Animal and Plant Health Inspection Service
88 FR 23619 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; National Veterinary Accreditation Program” (Apr. 18, 2023).
88 FR 23365 Proposed Rule—Public Comment: “Cut Flowers Regulations; Removal of Chrysanthemum White Rust-Related Provisions” (Apr. 17, 2023).
88 FR 23391 Notice: “General Conference Committee of the National Poultry Improvement Plan” (Apr. 17, 2023).
88 FR 23390 Notice—Public Comment: “Deregulation of Chrysanthemum White Rust and the Importation of Chrysanthemum spp. Cuttings, and In Vitro Plantlets, and Synonymous Genera From Certain Countries Into the Continental United States” (Apr. 17, 2023).
Environmental Protection Agency
88 FR 24616 Notice: “Pesticide Program Dialogue Committee; Notice of Public Meeting” (Apr. 21, 2023).
Food and Nutrition Service
88 FR 23559 Final Rule: “Supplemental Nutrition Assistance Program: Non-Discretionary Quality Control Provisions of Title IV of the Agricultural Improvement Act of 2018” (Apr. 18, 2023).
Land Management Bureau
88 FR 24627 Notice: “Notice of Availability of the Draft Programmatic Environmental Impact Statement for Approval of Herbicide Active Ingredients for Use on Public Lands” (Apr. 21, 2023).
Rural Housing Service
88 FR 24544 Notice: “Community Facilities Technical Assistance and Training Grant Program for Fiscal Year 2023” (Apr. 21, 2023).
88 FR 24148 Notice: “Notice of Funding Availability for the Section 533 Housing Preservation Grant (HPG) for Fiscal Year 2023” (Apr. 19, 2023).
Rural Utilities Service
88 FR 24154 Notice—Public Comment: “Funding Opportunity Announcement for the Broadband Technical Assistance for Fiscal Year 2023” (Apr. 19, 2023).
Susquehanna River Basin Commission
88 FR 23490 Notice—Public Comment: “Public Hearing” (Apr. 17, 2023).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.2787 “To amend the Consolidated Farm and Rural Development Act to modify provisions relating to rural decentralized water systems grants.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).
H.R.2786 “To amend the Cooperative Forestry Assistance Act of 1978 to prioritize urban and community forestry assistance for areas with low tree equity scores, to establish a grant program to enhance public elementary and secondary school rooftop gardens, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Education and the Workforce. (Apr. 20, 2023).
H.R.2783 “To establish an integrated research, education, and extension competitive grant program and scholarship grant program for certain Asian American Native American Pacific Islander-Serving agricultural institutions, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).
H.R.2742 “To amend the Animal Welfare Act to provide for greater protection of roosters, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Oversight and Accountability. (Apr. 20, 2023).
H.R.2740 “To establish an Office of Colonia Affairs within the Department of Agriculture, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 20, 2023).
H.R.2723 “Local Farms and Food Act of 2023.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).
H.R.2720 “To direct the agricultural research service to expand organic research, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).
H.R.2719 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to establish a competitive grant program under which the Secretary of Agriculture provides grants to land-grant colleges and universities to support agricultural producers in adopting conservation and innovative climate practices, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 19, 2023).
H.R.1646 “New Markets for State-Inspected Meat and Poultry Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).
H.R.1645 “Biochar Research Network Act of 2023.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 19, 2023).
H.R.1624 “Puppy Protection Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).
H.R.1614 “Range Access Act.” Referred to the Subcommittee on Forestry. (Apr. 19, 2023).
H.R.1604 “U.S.A. Beef Act.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 19, 2023).
H.R.1473 “Targeting and Offsetting Existing Illegal Contaminants Act.” Referred to the Subcommittee on Forestry. (Apr. 19, 2023).
H.R.2695 “To amend the Agricultural Act of 2014 to provide emergency relief to producers of livestock with herds adversely affected by Mexican gray wolves, and for other purposes.” Referred to the House Committee on Agriculture. (Apr. 18, 2023).
H.R.2689 “To improve the service delivery of agencies and public perception of agency interactions, and for other purposes.” Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Foreign Affairs, Ways and Means, Natural Resources, Agriculture, Energy and Commerce, Education and the Workforce, Veterans’ Affairs, Homeland Security, Small Business, and Armed Services. (Apr. 18, 2023). H.R.2645 “Keeping Families Fed Act of 2023.” Referred to the House Committee on Agriculture. (Apr. 17, 2023).
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.1238 “A bill to amend the Plant Protection Act for purposes of mitigating the threat of invasive species, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).
S.1233 “A bill to amend the Consolidated Farm and Rural Development Act to modify provisions relating to rural decentralized water systems grants.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).
S.1224 “A bill to amend the Food Security Act of 1985 to modify the conservation reserve enhancement program.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 20, 2023).
S.1216 “A bill to amend Public Law 91-378 to authorize activities relating to Civilian Conservation Centers, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 19, 2023).
S.1205 “A bill to modify market development programs under the Department of Agriculture, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 19, 2023).
S.1188 “SNAP Reform and Upward Mobility Act of 2023.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 18, 2023).
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 16—Apr. 22, 2023)
Department of Agriculture
53 Pa.B. 2190 Notice: “Program Requirements for the Very Small Meat and Poultry Processor Reimbursement Grant Program.”
Department of Environmental Protection
53 Pa.B. 2193 Notice: “Applications.”
53 Pa.B. 2266 Notice: “Climate Change Advisory Committee Meeting Location Change.”
53 Pa.B. 2266 Notice: “Federal Consistency under the Coastal Zone Management Act; Packer Marine Terminal Turning Basin Dredged Material Disposal at the Fort Mifflin Confined Disposal Facility.”
53 Pa.B. 2266 Notice: “Interstate Pollution Transport Reduction; Final 2023 Ozone Season Nitrogen Oxide Emission Limits for Nonelectric Generating Units.”
State Conservation Commission
53 Pa.B. 2279 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.”
Susquehanna River Basin Commission
53 Pa.B. 2280 Notice: “Grandfathering Registration Notice.”
53 Pa.B. 2280 Notice: “Projects Approved for Consumptive Uses of Water.”
53 Pa.B. 2282 Notice: “Projects Approved for Minor Modifications.”
53 Pa.B. 2282 Notice: “Public Hearing.”
HB 953 “An Act repealing the act of September 1, 1965 (P.L.420, No.215), known as The Frozen Dessert Law.” Referred to Agricultural and Rural Affairs [House]. (Apr. 20, 2023).
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Brook Duer—Staff Attorney