DTN Ag Headlines

Prior to entering office, President Joe Biden issued a comprehensive labor plan. Within his plan was a call to enforce current laws against employers that misclassify employees as independent contractors.

Further in the plan was an endorsement of California's law that establishes a new test for independent-contractor status. To put it in perspective, California's test is so strict that soon after it became law, the legislature passed an amendment because of the public outcry. President Biden's labor plan calls for federal legislation that would make worker misclassification a substantive violation of federal labor, employment and tax laws with additional penalties beyond those imposed for other violations.

(Editor's Note: The House of Representatives passed the Protecting the Right to Organize (PRO) Act, HR 482, on March 9, and it awaits possible action in the Senate. The bill would redefine what constitutes an independent contractor and make it easier for employees to organize a union.)


Because of the nature of farming, this could have a huge impact on the industry. Although the test might change, I wanted to review independent-contractor classification. This isn't black or white; you need to look at the IRS and Department of Labor's (DOL) regulatory guidance, as well as case law to determine if a worker is an employee or independent contractor.

The common law test developed by the IRS uses 20 factors to determine if a worker is an employee or independent contractor. The IRS subsequently updated the employee/independent contractor test into three controlling factors: behavioral control, financial control and relationship control.

The behavioral control test boils down to the employer having control over the worker and how he or she accomplishes the job. Factors include the type of instruction given, degree of instruction, evaluation system and training. To sum it up, a person is an employee if the employer controls where/when he or she works, provides detailed instructions on how the work should be done, and provides detailed training and periodic feedback on how he or she is doing.

The financial control test looks at who bears the economic benefits and burdens of the workplace relationship. This test focuses on the employee side of the equation. Independent contractors typically make a significant investment, typically in equipment, in order to accomplish their jobs. They are more likely to have unreimbursed expenses and may incur a loss in the business relationship. An independent contractor also tends to have a separate place of business, advertises and has the ability to work for others. Another sign of being an independent contractor is irregular pay -- that is, compensation is not paid weekly, biweekly or monthly.

The relationship test focuses on how both sides perceive their relationship. Factors include written contracts, employee benefits, duration of relationship and services provided. Does the worker have paid vacation and/or retirement benefits? Is the relationship long-standing?

You must look at the 20 factors and three-factor tests through the lens of the entirety of the relationship. Some of the tests may lean toward treating the worker as an employee, whereas others lean toward independent contractor. This is why determining the correct classification can sometimes be difficult.

In addition to the IRS, the DOL uses an economic reality test that focuses on six factors. The DOL test is more likely to classify a worker as an employee than the IRS.

Why is worker classification important? The consequences of a wrong classification can be severe, including criminal prosecution, and could be worse in the near future.


DTN Tax Columnist Rod Mauszycki, J.D., MBT, is a tax principal with CLA (CliftonLarsonAllen) in Minneapolis, Minnesota. Read Rod's "Ask the Taxman" column at www.about.dtnpf.com/tax. You may email Rod at taxman@dtn.com.

WASHINGTON (DTN) -- USDA announced this week that it will soon implement the Dairy Donation Program (DDP) as established in the Consolidated Appropriations Act of 2021.

Agriculture Secretary Tom Vilsack noted Wednesday at a House Agriculture Appropriations Subcommittee hearing that USDA would not continue the Families to Farmers Food Box Program started by the Trump administration but expected to distribute dairy products from the dairy donation program.

"The program will facilitate the timely donation of dairy products to nonprofit organizations who distribute food to persons in need and prevent and minimize food waste," USDA said in the announcement.

"Because the statute allows retroactive reimbursements of donations made before donation and distribution plans are approved, USDA is providing advance notice of the minimum provisions to be included in the program to encourage the dairy industry to process and donate surplus milk supplies as it moves through the spring surplus milk production season.

"Although the DDP regulations have not yet been published, the following are the minimum key program requirements included in the statute:

1. a donation and distribution plan must be submitted and approved by USDA;

2. the reimbursement will be at least equivalent to the minimum classified value of milk used to make the donated product on the date of manufacturing;

3. records related to donating and receiving products must be maintained and available for review and/or audit;

4. eligibility is open to dairy farmer cooperatives and processors who "account to" a federal milk marketing order (FMMO) and donate dairy products to any private or public nonprofit food distribution entity."

After Vilsack said the food box program would not be continued, National Milk Producers Federation President and CEO Jim Mulhern said in a news release, "While the Farmers to Families Food Box program was very helpful last year in responding quickly to both last year's food supply chain disruptions and the dramatic rise in the number of Americans experiencing food insecurity, it also had its challenges."

"That's why we are not surprised by the decision to move beyond the food box program, and in fact, expected it," Mulhern said.

"The important focus now is addressing the twin needs of assisting food insecure families and aiding food supply chains like dairy that are still dealing with the effects of reduced foodservice demand.

"We support USDA's efforts to use multiple programs, including TEFAP, Section 32, the new dairy donation program and other efforts to purchase dairy products, produce, meat and other products for distribution through food banks and other charitable organizations in the most efficient and effective ways. This will help farmers do what they do best: Serve people who benefit from the nutrition they provide."

International Dairy Foods Association President and CEO Michael Dykes said in a release, "The Farmers to Families Food Box Program represented an innovative approach to tackling what was a massive issue last spring -- finding a way to use existing foodservice distribution capacity to deliver nutritious dairy products, fruits, vegetables, and meat to people in need."

"While we're optimistic about the positive trajectory of COVID-19 cases, vaccination rates, and the relative normalcy returning to restore our economy, millions of Americans continue to face hunger and nutrition insecurity," Dykes said.

"Dairy has a vital role to play in meeting the nutritional needs of Americans, especially in this time of great need. Dairy is a unique and nutritionally dense food group that is under-consumed by 90% of Americans according to the recent Dietary Guidelines for Americans, and it provides eleven essential nutrients, including protein, vitamin A, niacin, vitamin B12, riboflavin, and iodine and three of the four under-consumed nutrients of concern in the DGA: calcium, vitamin D, and potassium.

"Because dairy products are so nutrient-dense, they deliver more nutrients for fewer dollars in federal nutrition programs.

"IDFA looks forward to working with USDA on further bolstering of the U.S. nutrition safety net through SNAP, TEFAP, and other important programs to ensure families struggling with hunger and malnutrition continue to receive the unique nutritional benefits of dairy products."

USDA Agricultural Marketing Service -- USDA Provides Notice of Retroactive Reimbursements Under the Dairy Donation Program, Encourages Donation of Surplus Dairy Products: https://www.ams.usda.gov/…

Jerry Hagstrom can be reached at jhagstrom@nationaljournal.com

Follow him on Twitter @hagstromreport

LINCOLN, Neb. (DTN) -- When California voters approved Proposition 12 in November 2018, hog producers across the country were ready to adjust their operations to suit the law's pen-size requirements to ship to the state.

The law takes effect in January 2022 and California regulators have yet to issue guidance rules on those requirements.

The future of Proposition 12 is in the hands of a federal appeals court following a hog industry lawsuit in 2019; hog producers still have no idea how to comply.

Even if producers are willing to invest millions in their operations, they're unable to do so with any certainty.

Agriculture groups have argued the state's law placing animal-welfare restrictions on hog producers who sell pork in the state violates the Commerce Clause by regulating hog producers in other states.

The law forbids the sale of pork meat in California from hogs born of sows not housed in conformity with the law. Proposition 12 forbids sows from being confined in such a way that they cannot lie down, stand up, fully extend their limbs or turn around without touching the sides of their stalls or other animals.

"It's probably one of the reasons (lack of rules) that more producers haven't started making investments," Michael Formica, assistant vice president and general counsel for the National Pork Producers Council, said during a news conference Thursday.

"There's a lot of discussion out in the countryside. We get more questions on Prop 12 than maybe anything else. A lot of producers are looking at options. They built their livelihoods around managing these animals, have decades of experience, generations of experience, and happened to be in a position where they just might have a little bit more knowledge as to what is and isn't in the best interest of an animal than somebody in a state 2,000 miles away who's never been on a hog farm."


Southwest Minnesota hog farmer Greg Boerboom was one of several farmers who provided declarations in the NPPC's 2019 lawsuit against California's Proposition 12.

Boerboom built his first individual stall barn to protect sows from hurting each other between weaning and breeding in 1988, he explained in his declaration.

"I have noticed my productivity rates have gone up and these injuries have almost completely disappeared," he said.

Boerboom's farm is one of few to also use an electronic sow feeding system -- which would not meet Proposition 12's space requirements.

"I believe that we are doing a better job of managing an open pen system than other farms in the U.S., having some of the best performance of any farm in the U.S.," he said.

"While we are successful and protect sow welfare, my current production practices do not comply with all of the requirements. It would increase my labor costs to stop using individual stalls for the seven days after weaning to breed my sows."

Nick Giordano, NPPC vice president and counsel of global government affairs, said on Thursday that Proposition 12 will likely hit small farmers harder because of challenges in finding capital.

"Look, almost anytime you have a government mandate the big folks are usually the ones that are best situated to foot the bill for the cost of regulation," he said.

"So our position has never been that all regulation is bad -- of course not. But we're for science-based, commercially reasonable regulation. And often what happens is, in some of these issues it's very well meaning, but what happens is the strong survive. It drives consolidation and it hurts smaller producers."


Earlier this week, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments from NPPC, American Farm Bureau Federation, the state of California and animal welfare groups.

You can read more about it here: https://www.dtnpf.com/…

In addition, the North American Meat Institute asked the Supreme Court to review another Ninth Circuit ruling on a NAMI challenge, where the court upheld the California law.

Brook Duer, staff attorney at the Center for Agricultural and Shale Law at Penn State University, said the Proposition 12 cases are "one of the most important dormant Commerce Clause cases in recent decades, certainly the most important with regard to agricultural law."

The Ninth Circuit's ruling in the NAMI case gives some indication of where the court may stand on the NPPC case, he said.

The three-judge panel hearing the NPPC case includes Judges Sandra Ikuta, John E. Steele and Milan Dale Smith Jr. Ikuta was one of the judges on the three-panel court ruling on the NAMI case.

In the NAMI case the panel ruled, "Given the inconsistencies in dormant Commerce Clause jurisprudence, the district court did not abuse its discretion to hold that Proposition 12 does not have a discriminatory effect because it treats in-state meat producers the same as out-of-state meat producers.

"The district court also did not abuse its discretion in holding that Proposition 12 does not substantially burden interstate commerce. Proposition 12 does not impact an industry that is inherently national or requires a uniform system of regulation."

Duer said the Ninth Circuit's reference to "dormant Commerce Clause jurisprudence" may be telling in how the court may rule in NPPC.

"Dormant Commerce Clause jurisprudence is somewhat notorious for fitting the off-handed, slightly tongue-in-cheek proposition that 'you can find a case to say whatever you want,'" he said.

"Having said that, this short quote makes it easy to quickly see how the Ninth Circuit previously resolved some of the same arguments."

However, Duer said the NAMI decision is what is called a memorandum opinion. That means it is unpublished in official case reports for the federal circuit courts and is not supposed to be relied on as precedent in other cases.

"However the NPPC case turns out will likely dictate the path of individual state initiatives regarding production methods and labeling across a wide spectrum of agricultural commodities and food, as well as products used in agriculture and components used in food production," he said.

"As consumers and retailers continue to exert growing influence on production methods and labeling, the core of the arguments being made in the NPPC case have been escalated to a potential historical significance."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

LINCOLN, Neb. (DTN) -- All sides in a legal challenge to California's Proposition 12 laid out their cases during oral arguments in a federal court on Wednesday.

Agriculture groups have argued the state's law placing animal-welfare restrictions on hog producers who sell pork in the state violates the Commerce Clause by regulating hog producers in other states.

The law requires hog producers to abide by certain regulations in order to sell pork in California. Voters in the state passed Proposition 12 in 2018 with nearly 63% of votes supporting it.

The law forbids the sale of pork meat in California from hogs born of sows not housed in conformity with the law. Proposition 12 forbids sows from being confined in such a way that they cannot lie down, stand up, fully extend their limbs or turn around without touching the sides of their stalls or other animals.

An attorney for two national agriculture groups told a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California, that when the law takes effect next January, it will distort the hog market as a result of added costs to producers to comply, https://www.dtnpf.com/….

"Nearly all of the pork consumed in California is produced outside the state; 99.8% of the pork sold in California comes from elsewhere," Timothy Bishop, attorney for the National Pork Producers Council and the American Farm Bureau Federation, told the court.

"So, a farmer can only raise a sow that gives birth to a market pig. But the cut of meat from the market hog is what is sold, not a whole hog. So, the result of that is that Proposition 12's costs of housing a sow are translated into costs. But cuts of meat that are not sold into California or were raised in California have nothing to do with California and that's going to distort prices throughout the national market."

Judge Milan Dale Smith Jr., the senior judge on the panel, questioned whether ag groups have a legal argument because of rulings made by the Ninth Circuit in other Commerce Clause cases, suggesting states like California have the right to regulate commerce within their borders.

"It seems to me that much of your argument is focused on some regulations that have not yet been promulgated officially," Smith Jr. said.

"The reality is you're suggesting that the pork industry needs uniformity because of what you just described. So, you don't have uniformity even now, even before Prop 12."

The three-judge panel also includes Judge Sandra Ikuta and John E. Steele.

The California law requires 24-square-foot pens for hogs, among other requirements. Bishop pointed to an Ohio law that provides flexibility to hog producers across the country.

"Virtually everyone in the industry, for both efficiency and sow welfare, use individual stalls for at least the period after weaning when sales are weak and they need protection," Bishop said, things that Prop 12 prohibits.

He added: "Your honor, there is no other state that requires this sort of square footage. In fact, states do not require square footage. The Ohio law is important because it allows you to allow something that virtually every farmer in the United States does, which is to use individual stalls post-weaning until pregnancy is confirmed. California law specifically prohibits that."

Matthew R. Wise, deputy attorney general for the state of California, told the court Proposition 12 applies to pork sales only in California.

"This court has repeatedly affirmed the fundamental principle of federalism at stake here, that each state is permitted to regulate commerce within its borders," Wise said.

As of Jan. 1, 2022, Proposition 12 prohibits the sale of pork not produced according to California's production standards. Proposition 12 applies to any uncooked pork sold in the state, regardless of whether it was raised in California.

According to the National Pork Producers Council, less than 1% of pork produced in the United States meets Proposition 12 requirements.

The state needs about 700,000 sows to satisfy its pork demand. About 1,500 out of California's 8,000 sows are used in commercial breeding housed in small farms. The NPPC has argued that because the state must import most of its sows, Proposition 12 essentially regulates farmers beyond state borders.

NPPC Assistant Vice President and General Counsel Michael Formica said in a statement to DTN that Proposition 12 will have "wide-reaching implications" for the industry by "imposing arbitrary animal housing standards that reach far outside the state's borders to farms" across the country.

"It's a clear regulatory overreach and a violation of the Commerce Clause of the U.S. Constitution," Formica said.

The Humane Society of the United States and other animal welfare groups have intervened in the case.

Bruce A. Wagman, the attorney representing animal welfare groups, told the judges the law sets a floor for compliance for hog producers and not a limit.

"It's not a requirement; you can go more than 24 feet, you can use something different, you just can't use the inhumane treatment that California has found is inhumane," he said during oral arguments.

"We don't want to see the products of animal cruelty on shelves, but there is a health and safety issue. We're just coming out of a pandemic, both of which suggests that treating animals in certain ways leads to health and safety issues and public problems. And so, there's no question about the wisdom of Proposition 12 in trying to limit the products of that kind of cruelty, coming into California."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

WASHINGTON (DTN) -- In a three-hour, wide-ranging hearing, U.S. Agriculture Secretary Tom Vilsack told the House Agriculture Appropriations Subcommittee on Wednesday that USDA will end the Farmers to Families Food Box Program established by the Trump administration. However, USDA will continue to distribute the produce and dairy products that became popular with food banks and other beneficiaries.

A year after USDA started the Farmers to Families Food Boxes, USDA now will shut down the program by the end of May.

Vilsack said USDA's information gathering on the program had shown it had "significant administrative costs and inadequate accounting of where the boxes were delivered" but that he wants to incorporate the best of that program into traditional food distribution programs.

USDA first launched the food boxes April 17 of last year and quickly announced the department would purchase up to $3 billion in commodities in the first round of the program. USDA then added another $1 billion in funding for the program later in 2020.

The program ended up distributing 157.1 million boxes of fruits and vegetables, dairy products and cooked meats through food pantries, food banks, churches and other charities around the country. Throughout the past year, there was high demand for the boxes with food banks often having long lines of automobiles waiting for food deliveries.

Vilsack, in Wednesday's hearing, told lawmakers USDA will purchase fresh produce for The Emergency Food Assistance Program (TEFAP), using pandemic assistance funding made available by Congress, and that he also expects USDA to receive dairy products through food donations.

"We are going to continue to provide healthy food through the most efficient system we have," Vilsack told Rep. David Valadao, R-Calif., who asked why USDA was canceling the food box program.

The United Fresh Produce Association said it "appreciates that USDA is including fresh produce boxes in the TEFAP program but strongly urges that a new produce box program be developed as part of a fundamental realignment of USDA feeding programs."

United Fresh noted that USDA recently concluded its public listening session and comment period on the future of the food box program in which United Fresh's 80-member working group on the produce box program submitted 30 recommendations to USDA on ways to best implement the program for the future.

The food boxes were a lifeline for the dairy industry as well. Jim Mulhern, president and CEO of the National Milk Producers Federation, said the program was very helpful for the dairy industry in responding to supply chain disruptions and the rise of Americans facing food insecurity. But the program also had its challenges, which is why it is not a surprise USDA is ending it.

"The important focus now is addressing the twin needs of assisting food insecure families and aiding food supply chains like dairy that are still dealing with the effects of reduced foodservice demand," Mulhern said. "We support USDA's efforts to use multiple programs, including TEFAP, Section 32, the new dairy donation program and other efforts to purchase dairy products, produce, meat and other products for distribution through food banks and other charitable organizations in the most efficient and effective ways. This will help farmers do what they do best: Serve people who benefit from the nutrition they provide."


At the hearing, Rep. Sanford Bishop, D-Ga., subcommittee chairman, noted that the budget release from the White House last week was "bare outlines of the budget" and asked Vilsack to present his vision for running the department a second time.

Vilsack repeated previous statements that he wants to focus on four big ideas:

-- The notion that climate change, while an existential threat, presents an opportunity to bring profitability back to agriculture.

-- Moving beyond compensating individuals who have experienced racial discrimination and toward addressing systemic discrimination and rural areas of persistent poverty.

-- Recognizing that farm profitability is an important part of sustainability and resilience.

-- Making nutrition security as important as food security to address obesity and diet-related diseases.

Rep. Jeff Fortenberry, R-Neb., subcommittee ranking member, told Vilsack he wants to move the discussion about broadband from wiring communities to "an ecosystem of livability" in which people know how to use telehealth, distance learning and e-commerce.

Fortenberry noted that USDA Inspector General Phyllis Fong told the subcommittee that she did not know what the metrics of success on broadband should be. Fortenberry told Vilsack he is concerned about people knowing how to use broadband, and Vilsack said he wants to make sure that broadband speeds are as fast as needed.

Fortenberry said the public is fatigued with political infighting and said Congress and the administration should work together to get some things done.

"Our world is screaming for meaning," Fortenberry added. "I don't believe anything should be thrown away."

Fortenberry also noted that Microsoft founder Bill Gates recently said that wealthy countries need to move toward 100% synthetic meat and asked Vilsack if he agreed with that statement.

Vilsack said he agreed with Gates that farmers are great stewards and that emerging technologies cannot be banned, because competitors will take them up.

House Appropriations Committee Chairwoman Rosa DeLauro, D-Conn., questioned whether JBS, a Brazilian-owned meat producer with an American subsidiary, should be eligible for aid because it has been involved in corruption cases. Vilsack said the federal government needs to examine its procurement policies to make sure they are supportive of American values. He added that the Packers and Stockyards Act needs to be enforced and that more meat plants should be built.

House Appropriations Committee ranking member Kay Granger, R-Texas, questioned about U.S. dependence on farm exports to China. Vilsack said that, as CEO of the U.S. Dairy Export Council, he learned that the United States needs more "people on the ground" to analyze and appreciate markets, partnerships between commodity groups and universities to create products that use U.S. ingredients and telling the story of U.S. food safety and product quality.

Vilsack also told Granger that sign-ups for USDA programs are at the same level as in pre-pandemic times. Local Farm Service Agency (FSA) offices have gotten flexibility on opening offices with more than 25% of employees present, although only those who want to go to the office under those conditions are required to do so.

After Rep. Chellie Pingree, D-Maine, urged Vilsack to finalize the organic livestock and poultry rule, he said he wants to move forward quickly, but questions have been raised about the economic analysis of the poultry section and that it will be necessary to start from scratch on that.

When Rep. Andy Harris, R-Md., noted that the American Farm Bureau Federation is concerned about changes to the estate tax, including stepped-up basis, Vilsack said concern about those issues requires understanding the details of the situation and that estate taxes are not likely to apply to many farms. But he added that he would make sure Treasury Department officials know of the farmers' concerns.

Harris, a physician, noted that physicians are urging that rules on what people can buy with the Supplemental Nutrition Assistance Program (SNAP) benefits and suggest that the SNAP rules be aligned with the rules under the Special Nutrition Program for Women, Infants and Children (WIC), which has nutritional standards.

The exchange with Harris also resulted in a display of the differences between Republicans and Democrats about the programs to provide aid to farmers of color.

Harris said his constituents believe that "USDA was color blind, but now it is color-preferenced and part of a woke agenda." USDA has a reputation as a nonpolitical agency and should stay that way, Harris said.

Bishop asked Vilsack to explain how the Biden administration's USDA Equity Commission will be established. Vilsack said that the commission will be established under the Federal Advisory Committee Act and that the committee will be composed of outside experts. He also explained that Black farmers' lack of access to farm subsidies and farm programs when white farmers had them had long-term implications.

DTN Ag Policy Editor Chris Clayton contributed to this report.

Jerry Hagstrom can be reached at jhagstrom@nationaljournal.com

Follow him on Twitter @hagstromreport

Editor's Note: This article originally appeared in the April 2021 issue of Progressive Farmer magazine. For more content from the latest issue of the magazine, visit https://www.dtnpf.com/….


If you're in an accident in a rural area, pray someone like John Bentley takes the call. "I've grown up here. I know where it is," the Macedonia, Iowa, farmer said. A volunteer fireman for 22 of his 40 years, he not only knows where most of the residents of Macedonia live, all 245 of them, but he knows who works in which fields, saving precious minutes in an emergency.

Even though Bentley is technically a volunteer fireman, he will tell you he was drafted. His late father, Rod, had three farm fires in one year. The locals ribbed him, saying he had so many fires he needed to join the fire department.

He didn't want to, so he sent his son John instead.

John Bentley has no regrets, even though his plate is pretty full. He farms 2,600 acres, feeds around 850 head of cattle, and is a single dad to Ethan, 12.

"It is a way to give back to the community," he said. He is one of 14 volunteers at the Macedonia Fire Department, which also has an ambulance with four active emergency medical technicians (EMTs). In all, they cover around 30 square miles and serve 550 residents.


Like Bentley, Eddie Tigue grew up in the area he serves, in Dutton, Alabama. His father, Charles, was a charter member of the Dutton Fire Department and the Scottsboro-Jackson County Rescue Squad. Tigue, 62, joined as a junior volunteer when he was 15.

"I washed trucks, coiled hoses and went to classes," he said. Tigue works full time for the municipal water system in Jackson County and runs a small cow-calf operation with his son, Alex. He still finds time to take every fire and rescue class that comes along.

He's a certified fireman and instructor through the state fire college, and has had a rappelling class, a basic EMT class and a FEMA-sponsored wide-area search class. "Some people have hobbies like hunting, fishing or golf. This is my hobby," he said.

You'd think in these days of GPS and 9-1-1 addresses, emergency workers like Bentley and Tigue wouldn't have to rely on longtime ties to a community to know how to find a fire. But, you'd be wrong. Tigue said finding the emergency is a struggle every day on every call.

"I doubt 10% of the addresses are marked right," he said. "Unless it is somebody we know, we're slowing down and turning around trying to find them. Most everybody has a 9-1-1 address now, but they don't display them properly."

Tigue encourages everyone to mark their mailboxes so they can be seen at night and in the rain. Use 3-inch, high-reflective letters and numbers on a dark background. Peel back the shrub from your mailbox. Remember, emergency responders are running down the highway at 60 miles per hour trying to reach you to help. Make sure they can see those numbers.

In Bentley's home county of Pottawattamie, Iowa, rescue squads have it a bit easier. Their rural areas are laid out in square 640-acre sections with roads running either east-west or north-south. The county provides signs to homeowners, and they're placed next to the road. Roads, even gravel roads, are marked. Numbered signs are in place at each field where there are grain bins. Knowing the name of crossroads near the incident helps, and Bentley said the lay of the land, with few trees, typically means they can see smoke a half-mile or more away.

He added it's a good idea when possible to send someone to meet emergency responders at an easy-to-find spot. "If somebody is there with any other type of vehicle, it is very helpful if they can meet the fire trucks at the road and lead them to the fire."


Today, a lot of people think it's not important to mark their home addresses with GPS technology.

"If you put my address in, it takes you a mile down the road," said Tigue, noting that GPS can be off considerably. Ken Burns agreed, saying it takes money to update guidance information, a resource many rural communities don't have. Burns is Emergency Management Agency head for Randolph County, Georgia, as well as fire chief. He recommended in addition to clearly marking your address on the mailbox and house, you consider signing up for a free home inspection where available.

"A lot of fire departments offer free home inspections," he said. "That gets them to your house and lets you meet them. It's also a good way to let them know if a disabled person lives at the address who might need extra help.

In many areas, he added, signs with 9-1-1 numbers can be obtained from the county or the fire department for a small charge or, in some cases, for free.

Burns added that hunt camps are good examples of remote locations where accidents happen and emergency responders can have a hard time finding them. Field roads going to hunt camps often don't have assigned 9-1-1 numbers, and many aren't marked. He urged hunters to tell the sheriff's office the location of their camp so responders have access to the data. To aid in rescues in these remote areas, Burns added they outfitted a Polaris Ranger with a stretcher.

Even with high-tech aids and specially outfitted rescue equipment, Alabama's Tigue said the most important element is always going to be you. "People want to display their favorite football team or a cow or a tractor sign, but not their 9-1-1 address. Make sure it can be seen."

The following is a breakdown of wholesale prices and trends of the various fertilizers in March and first two weeks of April 2021.



Fertilizer application in the Southern U.S. was delayed overall as winter weather and frequent rains kept fields wet ahead of a warming trend later in March. Pasture-use land saw urea applied in the first half of the month; however, ammonia direct application was only just beginning as frequent rains kept fieldwork subdued in much of the country.

In the first week of March, U.S. producers began to reoffer ammonia around $125 per short ton (t) higher in the Corn Belt following production interruptions in February, related to the large winter storm that crippled chemical production in the U.S. Gulf, as well as much of the country's nitrogen fertilizer production.

From Ohio to the Mississippi River, Eastern Corn Belt initial pricing following the production interruptions was reported at $600-$650/t free-on-board (FOB), while to the west, price offers ranged from $570-$590/t FOB in Iowa and Illinois. In Nebraska, prices were reported at $570-$600/t FOB, while in North Dakota, offers were reported as high as $675/t.

In Oklahoma, ammonia plant prices rose to $530-$600/t compared to first offers after the nitrogen production interruptions in February at $470-$520/t. Meanwhile, Port Neal prices were said to be at $570-$590/t in Iowa at the end of March, an increase of $100-$120/t from February.

From a quiet front half of March forward, domestic ammonia prices are expected to continue firming when prompt demand inevitably puts a strain on transport logistics and drives prices higher for available tonnage with the potential to soften as U.S. supplies return to pre-February levels.


March was a month of further firming in the ammonia market that concluded with another $100 monthly increase at Tampa, as Yara and Mosaic had agreed to a price for April shipment of $545 per metric ton (mt) cost and freight (CFR). That increase followed February's $115 increase from $330/mt CFR.

Global ammonia firmed for much of March on tight availabilities from top producers. By the end March, there had been no further spot business in the Black Sea, however, with availability from Russia's largest producers set to be tight through April and into May. Prices were flat through much of March at $430/mt FOB, up $60 from the previous month's highs.

Similarly, Yara was unable to agree on fixed prices with its Russian contract suppliers for March, and fallback formulas were employed to find a range of $420-470/mt FOB.

Supply was also tight through March in the Middle East, resulting in traders selling volumes for shipment from the Red Sea to the United States, Jordan and India. Given firm pricing across the globe, our outlook remains firm in the short term on ammonia values.



Granular urea barges were assessed at $365-$405/t FOB at New Orleans, Louisiana, (NOLA) to end March, higher from February trades from $346-$359. Trading heated up in anticipation of India's most recent tender before the event would take a bearish toll on the market on fewer volumes accepted than offered.

Further complicating barge transactions in March were stevedoring delays due to daylight-only unloading restrictions and high water on the lower Mississippi River, which were estimated to be causing around one week of delays for unloading import cargoes at peak. River terminal prices along the upper and lower sections retreated slightly from March's highs to $410-$430/t FOB but still surpassed February's offers at $380-$390/t FOB.

At the plant level, offers were reported at $450-$460/t FOB in eastern Oklahoma, up from $400-$420 in late February. Port Neal urea in Iowa rose from similar levels to $460/t FOB during one of the last weeks of river closings as barges are now able to transit to the Upper Mississippi River once again, which will help balance supplies in markets north of Cincinnati and St. Louis.

We expect urea prices to firm in the short term as preplant applications finish and sidedress needs emerge, especially if urea stays at its current discount to UAN on a per-unit-nitrogen basis.


With many positions hedged on the timing of India's tender announcement, the global urea market was perceived in a standoff throughout the better part of March. Questions on how much volume China and the AG can provide for India fueled trepidation for both traders and for buyers who had opted to defer purchases.

On the last day of the month, India accepted a total of 802,500 mt through its latest urea purchase tender, which closed March 22 for shipment from load ports by April 28 at the latest, only about half of the over 1.93 million total mt offered originally, due in part to shipping constraints for suppliers.

The largely stable market in March was dotted by pockets of firmness, such as Egypt, where prices increased from $385-$390/t FOB to $400 by the end March, and high freights from the Arab Gulf to NOLA were of concern for producers and traders alike. Brazil had exhibited largely upward trends throughout the month as well, at $395-$408/t CFR to end the month, up from $385-$390 in the month prior.

Following the India tender, the urea market ended March somewhat soft as the Easter holiday brought activity to a slowdown to the month as traders awaited the Indian outcome before taking further positions.


Offers have remained more or less unchanged since UAN producers reoffered volumes following production interruptions in February and have not seen too much upward pressure with the U.S. planting season and application activities pushed out later into the season by bands of rain in the central and eastern U.S.

Initial offerings in March were around $100/t higher from February offers before Winter Storm Uri arrived in the U.S. Gulf. The storm brought NOLA UAN 32% barges to the $300/t FOB level where they stayed for much of March on low liquidity on account of slow prompt demand.

With most nitrogen production now having been restored, river terminal volumes for UAN were also reoffered at levels in line with NOLA barges at $325-$330/t FOB at main terminals in Cincinnati and St. Louis. Meanwhile, on the U.S. East Coast, the price for Russian import volumes rose to $310/mt CFR on account of rising freight costs in absence of much volume trading in March.

With many in the market having filled their tanks in late 2020 already, prompt UAN sales aren't expected to pick up significantly until sidedress demands begin to drain tanks in the coming weeks. This should help support stable pricing in the UAN market, as it remains at a premium to urea in terms of nitrogen content following March's higher offers. We expect UAN prices to be stable in the short term with some firming possible as demand picks up.



Some P&K application activity had begun on the U.S. East Coast by mid-March, but rainfall in the Corn Belt and Southern Plains pushed the start to spring applications later into the last days of March leading up to Easter. As a result, phosphate barge transactions slowed in March ahead of applications, but tight supplies continued to provide support to prices, especially in the U.S. interior.

DAP barges traded at $538-$542/t FOB for prompt shipment from NOLA in late March, up from $518-$530 at the start of the month. MAP changed hands at a lower $564-$575 for late March/first-half April loading, down from $570-$581/t FOB in first-half March. Both would go on to see a large amount of backwardation -- to the tune of $50-$60/t -- between early and late April ship barges, however.

River terminal DAP prices were mostly flat week-over-week to end the month but fell $5 on the high end to $570-$590/t FOB, compared to higher offers of $595 in February.

March also saw the U.S. International Trade Commission make formal its determinations regarding countervailing duties against Moroccan- and Russian-origin phosphates after the petition received a majority affirmative vote earlier in the month. Rates were unchanged after previous adjustments from the Department of Commerce at nearly 20% on Moroccan phosphates and anywhere from 9% to 47% on Russian product depending on the supplier.

U.S. phosphate prices are expected to firm in the short term once P&K applications become more widespread and existing volumes from fall buying are worked through the system. But strong applications in the latter half of 2020 could help relieve some pressure on spring supplies.


The pace of activity in the phosphates market slowed through the second half of March. Against a backdrop of slower demand in India, Chinese DAP prices took a weaker tone, alongside slower phosphate demand in Europe contributing to some softness in March.

A major Indian buyer was negotiating for Saudi Arabian DAP by month's end, but it was unclear whether this meant the start of a wave of significant import demand amid low stocks or more to try and set the much-anticipated next round of government subsidies on phosphates. DAP prices overall ended March at $515/mt CFR, up from $445-$446 in the month prior.

Meanwhile, in Brazil, MAP prices fell to $620-$630/mt CFR on relatively lackluster demand, down $15 from the month's highs but still $30 above price levels in February.

The outlook on global phosphates is stable to firm in the short term, however, with the potential still latent for a good season in India to come as well as European DAP seeing higher prices for those in need of prompt tons.


NOLA granular potash barges are assessed at $310-$320/t FOB on some further softening evident as barge trading waned in March. P&K applications were further delayed by inclement weather in the month despite seeing some headway on the East Coast with on-again-off-again rains sweeping across much of the country. Barge values reflect a $15 decrease month over month ahead of an expected push when the weather is forecast to turn for the better.

Mississippi River terminal volumes are also mostly flat at $350-$365/t FOB on very little movement to speak of, as well as mine prices in Saskatchewan and New Mexico remaining flat at $350/t FOB. Intrepid Potash did, however, announce an increase to its specialty potash product by $20/t.

Potash prices are still expected to rise when applications and fieldwork begin, but values remain stable for the short term. International potash contracts in the meantime are still being settled with major producers having to put extra effort into negotiations after Belarus Potash Company's earlier settlements came in far below market expectations, according to press releases from several other major producers earlier this year.


Editor's Note: This information was supplied courtesy of Fertecon, Agribusiness Intelligence, IHS Markit.

MEAD, Neb. (DTN) -- The owners of a small ethanol plant in Mead, Nebraska, that has become an environmental disaster are looking to sell off their adjoining 30,000-head cattle feedyard as the ethanol plant faces state litigation and angry residents.

AltEn LLC, a 24-million-gallon ethanol plant, remains idle and is facing a lawsuit from the state of Nebraska over millions of gallons of toxic water that spilled on Feb. 12-13, 2021, and 84,000 tons of distillers grains from treated corn seed piled on its property that is considered too toxic to feed to animals or spread on fields. The ethanol plant also owes more than $518,000 in back property taxes to Saunders County, Nebraska.

The ethanol plant was developed to support the feedyard, Mead Cattle Co., and both operations are owned by the same Kansas family, the Langleys. Following a lawsuit by the state and resident complaints, the Saunders County Board of Supervisors on Tuesday tabled a vote on a conditional use permit that would transfer operations for the feedyard to a Texas company, Champion Feeders. Supervisors required testing of lagoons and groundwater at the site and allowed the University of Nebraska Medical Center to conduct a study of the site.


"They are trying to get rid of assets," said Jody Weible, an early critic and community organizer who has questioned the safety of AltEn's operations to local residents.

Weible and others see the move to transfer a permit to a Texas company as a way for AltEn's owners to separate the feedyard, sell it off, then declare bankruptcy again on the ethanol plant and walk away from an environmental cleanup. "I'm concerned they are not going to clean up that pile," she said. "They are just going to leave it for us to clean up and they will not be accountable for anything. They will walk away from this for free and there will not be any repercussions for it."


The Saunders County Treasurer's Office states AltEn owes two years of back taxes, which total $518,799 with interest. While ownership has been the same family, the treasurer's office shows Mead Cattle Co. is current on its taxes and has never been delinquent.

Yet, even as the state is suing AltEn and the ethanol plant is delinquent on taxes, Nebraska media reported this week that the Nebraska Department of Economic Development had given AltEn more than $210,000 in aid funds tied to COVID-19 relief.

Local problems with the ethanol plant began after it came out of bankruptcy in 2015 and started using discarded corn seeds treated with insecticides and fungicides. It reached a point in which the only corn AltEn processed was unused, treated seeds. Residents in Mead, which has just under 600 people, eventually began to be overcome by odors from the ethanol plant.

"It's like I've had allergies for the past four years, which is a not a lot of fun with COVID when you are coughing and sneezing all of the time," Weible said.


On Monday night, about 60 residents met at a local church to learn more about the state of Nebraska's litigation against the ethanol plant. Residents also heard from university researchers who want to study the long-term health effects of exposure to tens of thousands of tons of seed treated with multiple forms of neonicotinoid pesticides and fungicides.

Experts who spoke Monday highlighted the longer the piles of treated distillers grains remain, the more the neonics and fungicides leach into the ground and potentially into the water table. Neonics are relatively water soluble and can flow into ground water, said John Schalles, a biology professor at Creighton University.

"The longer that sits on the ground and in lagoons that are leaking, the worse it gets," he said.

The seed was treated with varying combinations of insecticides and fungicides.

"We don't know a whole lot about the toxicology of fungicides," Schalles said.


Judy Wu-Smart, an extension entomologist at the University of Nebraska-Lincoln, also runs the UNL Bee Lab at a research facility just down the road from the AltEn plant. Around 2017, the lab's bee colonies at that site started dying off. They haven't been able to keep a colony alive anywhere around that facility ever since. That includes more than 20 colonies set up last year in the area.

Last week, the University of Nebraska and Creighton University health researchers announced they would collaborate on a study of the health of people who live in and around Mead. The researchers are asking the state Legislature and other groups to fund the research, which would include health screening, as well as soil, air and water sampling in the area. Wildlife would also be tested.

"There are going to be national implications to what is happening in Nebraska right now," Wu-Smart said.


The environmental problems at the plant heightened during the cold snap in February as a pipe burst, releasing as much as 4 million gallons of wastewater in the process. The busted pipe released a discharge from the feedyard and byproduct from AltEn's ethanol production at the time.

The Nebraska Attorney General's suit against AltEn seeks damages of up to $10,000 for environmental violations and seeks an injunction to remove the contaminated distillers grains from the site. However, the state cannot suggest where the toxic seed waste should go, said David Domina, an Omaha attorney. He also noted state laws are "woefully inadequate" to address all the problems at the ethanol plant.


In a response to the state's lawsuit, attorneys for AltEn denied ever producing 24 million gallons of ethanol annually. The response repeatedly "denies any inference that it violated applicable law" regarding the state prohibiting AltEn from applying distillers grains as a soil conditioner or using it for feed. The company agreed with the state's assessment that there has been 84,000 tons of distillers grains on the property, but AltEn also stated 40,000 tons have been taken to a solid waste facility. AltEn denied 18 different allegations by the state against the ethanol plant and asked that the state's complaint be dismissed.


Multiple residents saw their dogs get violently ill when AltEn's distillers grains were applied to a nearby acreage where their dogs would roam. The Nebraska Department of Agriculture had initially allowed the applications by classifying the product as a soil conditioner.

At Monday night's meeting, residents questioned why no state officials would meet with the group and they want some answers about the contamination levels, such as the risks to their groundwater. Currently, residents pay for any testing on their own.

Mead residents are getting support from environmental groups and university researchers, but they are not getting questions answered by any local, state or federal agency. At one time, the Nebraska Department of Environment and Energy (NDEE) had set up a meeting with residents, but it was canceled because state officials did not want NDEE to have such a meeting.

Residents have been told federal agencies such as the Environmental Protection Agency or the U.S. Fish and Wildlife cannot get engaged unless state officials invite them in to investigate.

Cody Morris moved his young family to Mead two years ago, seeking a small-town lifestyle. Since then, the entire family, including his kids -- ages 6 and 4 years -- have experienced chronic allergies with symptoms such as watery eyes and sneezing.

"As soon as you get into town, you feel the tingling and start sneezing," Morris told DTN. "So, what is coming out now kind of concerns us. It's scary. Something has to be done. I don't know what or how."


When the Mead plant first opened in the early 2000s, it was promoted as a "closed loop" system in which Mead Cattle Co. would consume the distillers grains, but also provide energy to the plant through an aerobic digester. But the ethanol plant went into bankruptcy in 2007. AltEn was formed after the plant came out of bankruptcy proceedings.

AltEn began using treated seeds as early as 2015 and Mead's village council at that time requested meetings with the Nebraska Department of Environment and Energy over odor complaints. "For three years, it's been pretty much a runaround," Weible said.


Last year, AltEn sent letters to seed companies soliciting their discarded treated seed and agreeing to accept and dispose of the seeds at zero cost. The letter stated the byproducts would all be land-applied. AltEn by that point claimed it was handling as much as 98% of the discarded treated seeds in North America. Still, even as AltEn was soliciting seeds to use, the Nebraska Department of Agriculture had told the company to stop selling the distillers grains and stop applying it to soils because of the high concentrations of pesticides.

Nebraska lawmakers have introduced two bills to deal with the situation. One would prohibit the use of treated seed to make ethanol if the distilled grain is considered too toxic to feed to livestock or apply to the land. That bill has advanced unanimously and will likely be passed by the state's unicameral legislature. A second bill would also make seed companies liable for damage if their pesticide-treated seeds are not disposed of in a safe manner. That bill has not moved out of committee.

The ethanol plant was started by Dennis Langley, a Kansas businessman involved in both natural gas and biofuels, and a former Kansas Democratic Party chairman. Langley died in 2015. His wife, Lynette Shaw, son Sean Langley and stepson Tanner Shaw took over as the owners of Dennis Langley's LLCs. Tanner Shaw is listed as president of AltEn.

AltEn has been owned by the Langley and Shaw family through a layer of different LLCs, originally derived from E3 Biofuels LLC.

The Langleys and Shaws lived in the Kansas City, Missouri, suburb of Lake Quivera, Kansas. Their home was once listed as the most expensive home in Kansas, known as the "Spirit of Avalon." The home was put up for sale at $11.8 million in 2019. It still remains on the market but is priced now at $5.75 million.

DTN reached out multiple times to the Langley and Shaw family but did not receive a response. Scott Tingelhoff, an attorney listed as general manager of AltEn, also did not return a call seeking comment.

DTN also asked EPA Region 7 about its role in the investigation with state tests showing toxic levels of pesticides thousands of times higher than those deemed safe by EPA. A spokesperson for EPA said NDEE is the lead regulatory agency but EPA Region 7 is providing assistance at the request of NDEE "and is closely monitoring the situation at the facility." EPA did provide emergency assistance during the spill at the plant in February. "EPA was on site to assess the spill, collect additional samples, and consult on mitigation and cleanup efforts."

For more information on this story, please read the following stories:




Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

California's Proposition 12 is under fire from at least 20 states, as the Supreme Court of the United States (SCOTUS) has been asked to review whether the California law is constitutional.

Proposition 12 would require that meat products from veal calves and breeding pigs raised outside of the state that are not raised in a way that meets California animal-welfare standards could not cross state lines and be sold there. This could force businesses and farmers who wish to be allowed into that market to be forced to restructure facilities and reengineer management protocol to meet one state's demands.

In past cases, some as recent as 2019, SCOTUS has held such requirements as outside of the requirements of the Dormant Commerce Clause and thus unconstitutional.

In that 2019 case, Tenn. Wine & Spirits Retailers Ass'n v Thomas, SCOTUS held the Commerce Clause restricts state protectionism, is deeply rooted in case law, and removing state trade barriers was a principal reason the Constitution was adopted. As a result, state statutes that are clearly discriminatory against interstate commerce (goods coming from outside of that state) are typically struck down unless the state can show there is a valid reason, aside from protectionism, for the law.

North American Meat Institute President and CEO Julie Anna Potts, in challenging the constitutionality of Proposition 12, noted, "If California is allowed to apply its laws to conduct in other states, a single state will dictate policies in all others, encouraging a patchwork of regulations and threatening the free flow of interstate commerce."

Twenty states filed an "amicus curiae" brief, which means "friend of the court." This brief is a way of furnishing the court with information or advice on a particular issue. In this case, that issue would be the impact of Proposition 12 on states outside of California, and businesses therein.

Those states that signed onto the brief included: Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

In part, the brief read: "It (Prop 12) freely permits California to impose regulations directly on out-of-state commercial conduct and thereby fosters inconsistent state regulatory obligations and enables tit-for-tat state regulatory conflict. The ultimate result may be transformation of America's current integrated national market into a patchwork of regulatory regions."

In February 2021, the Meat Institute asked SCOTUS to review the ruling by the U.S. Court of Appeals for the Ninth Circuit that held California's law extending Proposition 12 to states outside its borders to be constitutional.

This is not the first time California has enacted a law and

expected the rest of the country to follow it. In 2010, the state's legislature extended Proposition 2, which established confinement requirements for egg-laying hens, to out-of-state producers. The state did this by banning the sale of eggs from hens not confined in compliance with their law.

California did this under a purpose of protecting its consumers from foodborne pathogens. In this case, states also challenged the ban under the Commerce Clause. That challenge was dismissed, with SCOTUS denying review.

For more details on the Ninth Circuit Court's ruling on Proposition 12, see "Commerce Clause on Center State" by DTN Staff Reporter Todd Neeley here: https://www.dtnpf.com/…

Victoria Myers can be reached at vicki.myers@dtn.com

Follow her on Twitter @myersPF

Powered by DTN