Southern Ag Today

Category: Ag Law

  • Department of Labor Finalizes New H-2A Regulations

    Department of Labor Finalizes New H-2A Regulations

    Labor is in high demand for agriculture in the United States (“U.S.”) and the H-2A visa program is an important component of this critical issue. Over the last few years, there has been a growing interest in amending regulations related to the H-2A program. On September 15, 2023, DOL issued a notice of proposed rulemaking in the Federal Register to amend its regulations governing the H-2A visa program. The proposed rule went through a sixty-day comment period, and now DOL released its final rule.

    The H-2A program is a visa program for temporary and seasonal agricultural workers authorized through the Immigration and Nationality Act. The purpose of this program is to meet the U.S. agricultural labor needs by allowing employers to employ temporary foreign workers. To qualify for the program, an employer must “offer a job that is of a temporary or seasonal nature, demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition”. U.S Citizenship and Immigration Services, H-2A Temporary Agricultural Workers.

    On April 26, 2024, DOL announced it had finalized its “Improving Protections for Workers in Temporary Agricultural Employment in the United States” rule. The purpose of the rule, as laid out by DOL, is to promote employer accountability and to “ensure farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace, and are able to perform their work safely.” DOL adopted most of the provisions in the proposed rule as they were proposed and modified or added other provisions. The final rule addresses multiple areas – increasing protections for workers who advocate for better working conditions, creating new or clarifying existing definitions critical to the H-2A program, and measures related to transparency in the H-2A program.

    The final rule adopted the proposed provisions that will add protections for workers who self-organize to change working conditions. Under the final rule, employees will be protected from intimidation, threats, restraint, coercion, or any forms of discrimination for self-organization. Additionally, the final rule adopted the proposed provision preventing employers from restricting employees from granting access to their living quarters, common areas, and outdoor spaces to guests during nonproductive times. Under the final rule, employers would be able to impose reasonable restrictions on access to living quarters, common areas, and outdoor spaces, for worker safety or enjoyment of housing.

    The proposed rule clarified that an H-2A worker may be terminated for cause, for failing to meet productivity standards or failing to comply with employer policies or rules. The final rule adopted this provision and added an additional reason employers may terminate a worker for cause. Under the final rule, an employer may also terminate an H-2A worker for “failing to satisfactorily perform job duties in accordance with reasonable expectations based on criteria listed in the job offer.” The proposed rule outlined six criteria that must be satisfied for an employer to terminate an employee for cause, and the final rule adopted the following five criteria:

    1. “The employee has been informed (in a language understood by the worker) of the policy, rule, or productivity standard, or reasonably should have known of the policy, rule, or productivity standard;
    2. Compliance with the policy, rule, or performance expectation is within the workers’ control;
    3. The policy, rule, or performance expectation is reasonable and applied consistently to the employer’s H-2A workers and workers in corresponding employment; 
    4. The employer undertakes a fair and objective investigation into the job performance or misconduct; and
    5. The employer corrects the worker’s performance or behavior using progressive discipline, which is a system of graduated and reasonable responses to an employee’s failure to satisfactorily perform job duties or comply with employer policies or rules.”

    Lastly, the proposed rule and now the final rule seeks to provide transparency on the wages paid to H-2A employees. First, the proposed rule would require that employers disclose applicable rates in the job order, including any piece rate or the highest applicable hourly rate. This provision was adopted in the final rule. Additionally, the final rule adds a minor change to the proposed provision that requires employers to pay workers daily during a delay. The change adds that employers must pay employees for minor delays, which are identified in the final rule as less than fourteen days. Under the final rule, if the employer does not notify the employee or state workforce agency of a delay within the required timeframe, the employer must pay the highest hourly wage under the offered wage rate regulations. Lastly, the final rule adds provisions amending the job orders and wage rates for herding and range livestock jobs. Under the final rule, all applicable rates of pay must be included in the job order and employers may prorate the wage rate in specified circumstances. 

    The rule went into effect on June 28, 2024. However, only applications for H-2A employer certifications submitted to DOL on or after Aug. 29, 2024, will be processed according to the new rules.

    Capaldo, Samantha. “Department of Labor Finalizes New H-2A Regulations.” Southern Ag Today 4(29.5). July 19, 2024. Permalink

  • Animal Ag in the “Farm, Food and National Security Act of 2024”

    Animal Ag in the “Farm, Food and National Security Act of 2024”

    The Farm Bill proposal by Rep. Glenn “G,T.” Thompson has made it through the initial markup and passed through the House Agricultural Committee. While there is still a long road between now and what is ultimately enacted, there are a few provisions in the proposed bill of particular interest to folks in animal agriculture. 

    One proposed provision would prohibit states from setting conditions for sale on products derived from “covered livestock” that are different than those imposed by the state where the animal was raised.  As a reminder, the US Supreme Court recently ruled that states do have the ability to set sales restrictions, allowing California to enforce Proposition 12.  If this proposal is enacted, it would prohibit California (and Massachusetts) from enforcing their current sales restrictions.  Additionally, it would prevent other states (such as New York, which is considering a similar bill), from enforcing any in the future.  Note, however, that the definition of “covered livestock” in the farm bill proposal specifically excludes laying hens.  In other words, the provisions of Prop 12 covering pork and veal products would not be enforceable, but the provisions requiring cage free egg production would be.  Similarly, other states that have passed or are considering laws requiring specified types of production methods for egg laying hens could still enforce those requirements.

    Another proposed provision would create a pilot program allowing some custom exempt facilities to sell meat products directly to consumers.  “Custom exempt” does not require continuous inspection by a FSIS or state inspector during the slaughter process.  Currently, “custom exempt” meat cannot be sold, and is instead only available for consumption by the owner of the living animal.  More information on that here.  The proposal would allow participating custom exempt plants or customers who have animals processed at a custom exempt plant to sell the meat to the public, conditioned on the meat not being re-sold past the original buyer.  This pilot program would operate until 2029.

    The Farm Bill is still a moving target, and provisions may look very different when/if they are ultimately passed. However, both of these provisions would both have a significant impact for livestock producers and should be watched carefully during the process.  

    Rumley , Elizabeth. “Animal Ag in the “Farm, Food and National Security Act of 2024”. Southern Ag Today 4(25.5). June 21, 2024. Permalink

  • Product of the U.S.A. Rule and Trade Implications

    Product of the U.S.A. Rule and Trade Implications

    On May 17, 2024, the USDA’s new “Product of the USA” rule took effect nationwide. At your local meat counter, “Product of the USA” now has a new meaning. Previously, labels using “Product of the USA,” “Made in the USA” and use of the American flag imagery could be used whenever any single part of the processing of meat, poultry and eggs occurred within the U.S. This meant that even where the only processing involved was repackaging on U.S. soil, labels could claim that the product was “Made in the USA.” In a 2022 USDA conducted study, 63% of consumers mostly incorrectly believed that “Product of the USA” meant that all production steps occurred in the U.S., an additional 21% reported not knowing what “Product of the USA” meant, while only 16% of consumers could correctly define this marketing claims.[i]

    On March 11, 2024, USDA Secretary Tom Vilsak announced USDA’s new rule for labeling meat, poultry, and eggs as “Product of the USA” or “Made in the USA,”, as well as the use of the American flag on labels. Under the new rule, these claims may only be used if the product is derived from animals born, raised, slaughtered, and processed in the United States. Meaning, every step from birth to processing must be done in the U.S. in order to use these marketing claims. The same is true whether it is a single-ingredient product, such as ground beef, or a multi-ingredient product such as pork sausage. With the exception for spices and flavorings, which may be of foreign origin, each individual ingredient must be of U.S. origin and entirely processed within the United States. Compliance for those choosing to use these marketing claims is mandated by January 1, 2026. The new rule is intended to better align with consumer understanding of the label claims. In the announcement of the new rule, Vilsak stated that consumers should be able to rely on the packaging claims of meat, poultry and egg products which they are purchasing, without hidden nuances and misleading claims. 

    As we saw with country-of-origin labeling (COOL), Mexico and Canada have openly expressed objection to the new Product of the USA rule in terms of compliance with existing trade agreements, suggesting that the rule violates the United States-Mexico-Canada Agreement (USMCA) and U.S. obligations to the World Trade Organization by discriminating against Mexico and Canada exports and ignoring economic integration principles. Further, Mexico alleges that the rule hinders binational production chains, ignores North America’s extensive integration of meat and livestock industries, and may result in food chain disruptions.[ii] It is anticipated that the countries will consult and work towards a mutually agreeable resolution, as is first required by USMA’s dispute resolution process.

    This conflict follows on the heals of a U.S.-Mexico USMCA dispute regarding Mexico’s ban on biotech and genetically modified (GM) corn, initially in tortillas and dough, with the intent to gradually ban the use of biotech and GM corn in all products intended for human and animal consumption. The U.S. alleges that Mexico’s ban is not based in science and undermines market access guaranteed by the USMCA. In August of 2023, the U.S. established a dispute panel under provisions of the USMCA in an effort to ensure that U.S. producers continue to have “full and fair access to the Mexican market.”[iii] A hearing on this dispute is scheduled for June 2024 with an expected report and decision by the dispute panel in November 2024.

    [i]https://www.fsis.usda.gov/sites/default/files/media_file/documents/Product_of_USA_Consumer_Survey_Final_Report.pdf

    [ii] Gobierno De Mexico, Press Release form the Ministry of Agriculture. March 11, 2024. https://www.gob.mx/agricultura/prensa/press-release-from-the-ministry-of-agriculture

    [iii] Office of the U.S. Trade Representative, Press Release. August 17, 2023. https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/august/united-states-establishes-usmca-dispute-panel-mexicos-agricultural-biotechnology-measures

    Friedel, Jennifer. “Product of the U.S.A. Rule and Trade Implications.” Southern Ag Today 4(24.5). June 14, 2024. Permalink

  • HPAI in Dairy Cattle:  Is Pasteurization Dairy’s Only Reliable Protection? 

    HPAI in Dairy Cattle:  Is Pasteurization Dairy’s Only Reliable Protection? 

    It has been approximately eight weeks since the U.S. dairy industry became immersed in efforts to monitor and potentially control the outbreak of Highly Pathogenic Avian Influenza in dairy cattle confirmed in 63 locations across 9 nine states as of May 28, 2024, from Idaho to North Carolina.  FDA maintains a wealth of on-line data which is updated regularly and appears to be a model of government transparency. 

    On March 25, 2024, the first joint USDA/FDA/CDC public confirmation of  a HPAI outbreak in dairy cattle in Texas and Kansas, along with communication by most federal and state animal health and food safety authorities has contained this by-now familiar public health advisory:

    “The FDA and USDA have indicated that based on the information currently available, our commercial milk supply is safe because of these two reasons:

    1) the pasteurization process and

    2) the diversion or destruction of milk from sick cows.”

    These statements are based upon the standardized dairy production practices and safeguards mandated in the U.S. Department of Health and Human Services, United States Public Health Services’ Grade “A” Pasteurized Milk Ordinance, 2019 Revision (PMO). In its earliest forms, the PMO dates back to 1924 and acts as the comprehensive and uniform national regulation of milk production for human consumption, its pasteurization, and sales in interstate commerce. It is enforced in all 50 states by a system of milk regulatory officials employed in federal and state government and by private industry through cooperative agreements in some jurisdictions. Pasteurization and the destruction of milk from sick cows is required by the PMO.  

    However, these public health statements contain buried and fundamental assumptions about regulatory and disease control processes that should be unpacked for a clearer understanding of why the impact and nature of these HPAI detections are qualitatively different than detections in poultry. Many distinguishing points exist.  

    • Milk production, processing and sale for the vast majority of human consumption nationwide mandates pasteurization, a “kill step” which has proven to be a relatively foolproof regulatory requirement for the prevention of disease transmission through milk. Perhaps no commodity is better situated to deal with the potential of HPAI in its supply chain. 
    • The biological circumstances of both the disease and the host animal—a large mammal of significant monetary value—do not indicate euthanasia as a disease control measure. Widespread cow-to-cow transmission has not materialized. Hopefully, that does not change in the future, or the consequences will be unprecedented and catastrophic. 
    • A dairy herd, its housing, and the land occupied for dairy production is much more difficult to “lock down” from a bio-security standpoint than the precedent established for controlling this disease in poultry.  Dairy production involves a complex daily routine of feeding, multiple milkings, milk storage, and truck transport for processing no less frequent than every 72 hours (a requirement of the PMO). Through this daily process, in order to achieve the immediate and effective disease transmission prevention aspired to in the poultry context would likely require immediate removal from the herd and culling of cows testing positive. Current conditions and pasteurization support a determination that the removal of objectively sick cows from the milking herd is sufficient. The removal and quarantine of sick cows on an individual basis from milk production if detected (or for example those treated with antibiotics) is a common occurrence and required by the PMO.
    • However, if sick cow numbers increase drastically, the logistics of withdrawing from the herd and retaining sick cows under quarantine conditions on-site for ultimate return to production simply may not be within the capabilities of many dairy operations. 

    All of these circumstances mean that quarantine processes, procedures, and movement restrictions on and off the farm are vastly different and comparatively reduced, as compared to poultry. Most important is that thus far, beyond interstate movement testing and restrictions, USDA APHIS federal quarantine orders have been used sparingly in comparison to poultry. Individual states’ animal health officials are presently filling in any void they feel necessary by imposing their own quarantine orders to serve their own perceived needs. However, this 50-state patchwork is not likely sustainable on a long-term basis should this outbreak in this species become more virulent or protracted.  

    Only time will tell if the current approach to disease control is effective in this species and with this commodity’s production methods. The ability to sustain these practices will depend entirely upon the number of HPAI detections.  

    However, one development has thrown a monkey wrench in the second statement in the two-pronged public health advisory noted above (“. . . diversion or destruction of milk from sick cows.”)  The assumption that such a measure is being reliably taken depends upon every individual dairy herd operator’s 100% accurate determination of which cows may be “sick” with HPAI. We have learned in recent weeks that HPAI in this species is not necessarily able to be routinely or accurately diagnosed.  

    We learned on May 10, 2024, that FDA has engaged in testing of 297 retail dairy products for HPAI virus detection, ostensibly to confirm that the pasteurization “kill step” was 100% effective. 

    “While the FDA collected the 297 samples at retail locations in 17 states, these retail samples represent products produced at 132 processing locations in 38 states.”

    Pasteurization scored a perfect 100% – no active HPAI virus.  However, 59 of the 297 samples tested showed evidence of “dead” HPAI virus components (essentially “killed” by pasteurization). That means 20% of the retail dairy products tested showed evidence that milk from one or more cows carrying HPAI was not diverted from the milk supply. This finding evidences the problems with routinely and accurately diagnosing infected dairy cattle. This result may be through absolutely no shortcoming of dairy operators’ diligence and more likely is caused by the inability to detect this disease’s presence in this species in any way that should be relied upon. The PMO requirement to exclude “sick” cows from the milking herd remains an essential regulatory policy. However, in a crisis of this magnitude, the observational tools of dairy operators for individual cow illness in the herd have proven at least 20% ineffective. Without pasteurization as the tried-and-true backstop, that would be wholly unacceptable and is misplaced if cited as the second most important reason the U.S. milk supply remains safe. 

    These findings illustrate the need for a more robust testing regime of dairy cattle and on-farm milk storage (“bulk tank units”) during this outbreak. Ideally, this should occur at a stage where further contamination can be stopped at the farm gate and before transport for processing as co-mingled milk from multiple premises.  

    Lastly, to boost public confidence, more focus should be on coupling pasteurization with a concentration on the evidence, or lack thereof, that milk can be a transmission medium of HPAI from cows to humans.[1]

    The perceived safety of consumer dairy products[2] is equally a matter of public health as well as economic survival of many in the dairy industry.    

    [1] In terms of disease transmission in mammals by consuming milk containing the live virus, there has been a late-breaking development. On May 24, 2024, the New England Journal of Medicine published a report from research primarily conducted at the University of Wisconsin-Madison concluding that the HPAI virus can infect mice through consumption of milk containing the live virus. At press time, further expert, USDA, or FDA input on the impact of this research was not available. 

     

    [2] As written, this article is strictly limited to the impact of HPAI as a pathogen in milk. However, transmission through the consumption of beef has also been the subject of another very recent development. To date in this outbreak, no HPAI has been confirmed in beef cattle but culled dairy cattle and beef from dairy cattle species increasingly contribute to the U.S. consumer beef supply. On May 1, 2024, USDA-APHIS reported that retail ground beef samples collected in the same states as confirmed HPAI-positive dairy cattle all tested negative for the presence of HPAI. However, on May 24, 2024, USDA’s Food Safety and Inspection Service (FSIS) announced that testing of beef tissue from 96 culled dairy cows sent to FSIS-inspected meat processing plants (but diverted by FSIS staff due to signs of illness) confirmed  the presence of HPAI “viral particles” in beef tissue from one cow. Further information may be forthcoming on the broader implications of this one finding.  Nevertheless, like pasteurization, cooking beef tissue appears to be the reliable “kill step.” On May 16, 2024, USDA’s Agricultural Research Service (ARS) published test results from cooking ground beef heavily inoculated with the HPAI virus.  No active virus was detectable after cooking temperatures of 140 – 160° F.

    Duer, Brook, and Paul Goeringer. “HPAI in Dairy Cattle: Is Pasteurization Dairy’s Only Reliable Protection?” Southern Ag Today 4(22.5). May 31, 2024. Permalink

  • A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.

    A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.

    The University of Maryland recently completed a study, “Reclaimed Water Use Regulations in the U.S.: Evaluating Changes and Regional Patterns in  Patchwork State Policies from 2004–2023,” offering a comprehensive overview of the changing legal landscape of reclaimed water use across the U.S. (Thilmany, Newton, Goeringer, Rosenberg Goldstein, 2024).  Reclaimed water is treated municipal wastewater that can be used again, often known as water reuse. As states contend with drought pressures and growing populations, reclaimed water can often be a valuable source of irrigation water for agricultural operations (Bastian & Murray, 2012).  With no federal regulations, only federal guidelines provided by the Environmental Protection Agency (EPA), states have adopted various approaches for reusing water as a potential irrigation source (Bastian & Murray, 2012).  As a part of this work, resources were developed to enable stakeholders and policymakers to clarify state water reuse regulations and highlight areas adopting direct reclaimed water regulations which can improve agricultural resilience.

    Reclaimed water is increasingly vital for U.S. agriculture, which consumes 42% of surface and groundwater (Dieter et al., 2018). Between 2012 and 2023, the number of states allowing food crop irrigation rose from 16 to 23, signaling wider acceptance and integration into agricultural practices (Thilmany et al., 2024).  Additionally, as of November 2023, 37 states (74%) enacted direct, statewide reclaimed water use regulations, 4 states (8%) established only guidelines, and 9 states (18%) had no regulations or guidelines concerning reclaimed water use, reflecting a diverse regulatory environment (Figure 1). 

    Figure 1 – Distribution of states with reclaimed water guidelines or regulations, 2004-2023

    In looking at the regulatory landscape for reclaimed water based on geographic location, interesting results arise (Figure 2).  For instance, potentially due to trends in water scarcity and increases in freshwater demand, New Mexico and Texas have directly regulated the use of reclaimed water (USDA-NASS, 2018). In contrast, states like Arkansas and Mississippi do not have direct regulations of reclaimed water as of 2023 (Figure 2).  The spatio-temporal variability among states adopting reclaimed water regulations highlights the need for policies tailored to each region’s unique environmental and agricultural conditions, as demonstrated by the diverse approaches in the southern U.S.

    Figure 2 – State reclaimed water regulations for agricultural uses in 2023.

    As a result of this study, the University of Maryland created the “CONSERVE Map Regulation Projects Reclaimed Wastewater Database” [go.umd.edu/CONSERVE_map]. This database includes detailed classifications and regulations essential for analyzing reclaimed water regulation trends and informing policy-making.  At the same time, producers can utilize the database to understand better if water reuse is allowed in their state. This database can be paired with additional data sources on water demand, food production, and drought conditions to provide policymakers with valuable insights to optimize reclaimed water use in the future. 

    Funding statement: This work was supported by the United States Department of Agriculture-National Institute of Food and Agriculture, Grant number 2016-68007-25064, awarded to the University of Maryland School of Public Health that established CONSERVE: A Center of Excellence at the Nexus of Sustainable Reclaimed water use, Food and Health. The University of Maryland also supports this work: MPowering the State, a strategic alliance between UMB and UMCP created in 2012 to significantly expand research, business development, and student opportunities at both universities.

    References:

    Bastian, R.; Murray, D. Guidelines for Reclaimed Water Use; U.S. EPA Office of Research and Development: Washington, DC, USA, 2012; EPA/600/R-12/618.

    Dieter, C.A.; Maupin, M.A.; Caldwell, R.R.; Harris, M.A.; Ivahnenko, T.I.; Lovelace, J.K.; Barber, N.L.; Linsey, K.S.Estimated Use of Water in the United States in 2015; U.S. Geological Survey Circular; U.S. Geological Survey: Reston, VA, USA, 2018; p. 1441, [Supersedes USGS Open-File Report 2017–1131].

    Thilmany EA, Newton S, Goeringer P, Rosenberg Goldstein RE. Reclaimed Water Use Regulations in the U.S.: Evaluating Changes and Regional Patterns in Patchwork State Policies from 2004–2023. Water. 2024; 16(2):334. https://doi.org/10.3390/w16020334

    USDA National Agricultural Statistics Service (USDA-NASS). 2018 Irrigation and Water Management Survey. 2019. Available online: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Farm_and_Ranch_Irrigation_Survey/index.php (accessed on 20 June 2023).

    Thilmany, Elizabeth, and Paul Goeringer. “A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.” Southern Ag Today 4(18.5). May 3, 2024. Permalink