October 3, 2022

Agricultural Law Weekly Review—Week Ending September 23, 2022

Dairy Policy: Pennsylvania’s Over-Order Premium Continues But ‘Should be Modified’ 🌾
On September 21, 2022, the Pennsylvania Milk Marketing Board (PMMB) entered a new 90-day over-order premium (OOP) order (OGO No. A-1014), as opposed to its customary 180-day order.  The order continues Pennsylvania’s OOP at $1.00 cwt for the period October 1, 2022 through December 31, 2022.  The order followed an August 30, 2022, hearing on a petition to consider the “level and duration” as well as the “existence” of the OOP.  The current OOP mandates a producer price premium over the federal order price through a calculation intended to approximate the volume of Pennsylvania-produced milk utilized as fluid milk. The hearing aired recurring complaints that (1) the current OOP calculation allows retailers and wholesalers to receive a mandated minimum retail and wholesale price on higher volumes of milk sold than the volumes of milk on which they are required to pay the over-order producer price; and (2) the OOP is only paid to producers deemed to be contributing to in-state fluid milk sales.  The PMMB’s written decision states, “Section 801 of the Law requires the Board to establish minimum producer prices that allow producers to recover their cost of production plus a reasonable profit. . . . We believe that the current over-order premium system should be examined and modified, as and if necessary, to ensure all Pennsylvania producers receive a minimum producer price that approaches section 801’s requirements.”  The Board went on to explain that legislative changes would be needed to allow it to act, stating that it “believes House Bill 224 would provide additional tools . . . to implement Section 801’s minimum producer price requirement in a way that would better align minimum retail prices with the amount received by producers . . . . The specific method or methods developed may take any number of forms, but we first need the tools and framework House Bill 224 would provide to begin to develop those specifics.”

Pesticides/Herbicides: EPA Withdraws 2020 Glyphosate Interim Decision, Will Re-Initiate Registration Review
On September 23, 2022, the U.S. Environmental Protection Agency (EPA) published an agency memorandum fully withdrawing its February 2020 Pesticide Registration Review: Interim Decision for Glyphosate (ID).  Various components required for a complete registration review under FIFRA were not completed in 2020, thus the decision was designated as “interim.”  Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), pesticide registrations must be reviewed every 15 years for a finding that the pesticide performs as intended “without unreasonable adverse effects on human health or the environment.”  Immediately following EPA’s 2020 publication of the ID, multiple petitions requesting review of the ID were immediately filed in the U.S. Court of Appeals for the Ninth Circuit, which remained pending over the last two and a half years.  For more background, see the Center’s Agricultural Law Issue Tracker—Glyphosate.  EPA’s withdrawal of the interim decision now ends the Ninth Circuit litigation and does not impact the present EPA-approved glyphosate usages and label.  EPA states, “Pesticide products containing glyphosate continue to remain on the market and be used according to the product label and are unaffected by this action.”  Previously, in June 2022, the Ninth Circuit (1) vacated the human health assessment, (2) ordered that an endangered species act assessment was necessary for a FIFRA-compliant review decision, and (3) ordered the completion of a new ecological assessment (to substitute for one partially withdrawn by EPA) by October 1, 2022.  On September 23, 2022, EPA conceded that it could not meet the October 1, 2022 deadline.  EPA will now draft and issue a new and complete glyphosate final registration review decision in full compliance with FIFRA, which EPA expects to publish in 2026.

Biotechnology: Federal Court Remands Text Message Option for Bioengineered Disclosure Regulation
On September 13, 2022, the U.S. District Court for the Northern District of California entered an order granting summary judgment in favor of the plaintiffs in a case challenging the bioengineered food disclosure regulations promulgated by the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS). Natural Grocers v. Perdue [Vilsack], No. 3:20-cv-05151-JD.  In the authorizing statute, Congress provided three product labeling options: (1) the printed text “Bioengineered food” or “Contains a bioengineered food ingredient,” (2) a symbol containing the word “BIOENGINEERED,” or (3) an electronic or digital link, such as a QR code, with “additional and comparable options” as determined necessary by USDA for consumer information access.  However, a study commissioned by AMS showed that the third “digital/electronic” option did not provide “sufficient access” to the bioengineered disclosure.  AMS then created a fourth compliance option: text message instructions directing consumers to “Text [command word] to [number] for bioengineered food information.”  The court found that AMS’s addition of the text messaging option violated the Administrative Procedure Act by effectively amending the controlling statute, stating that the “separate text message disclosure option did nothing to fix the problem of inaccessible electronic disclosures. It merely provided a fourth disclosure option that regulated entities can select instead . . . .”   The court remanded the regulation to AMS for reevaluation without vacatur of the optional text message disclosure regulation.

National Agricultural Policy: Supreme Court Filing Challenges Formation of Cattle Traceability Working Group and Producer Traceability Council
On September 19, 2022, the New Civil Liberties Alliance (NCLA) filed a writ of certiorari in the U.S. Supreme Court challenging the U.S. Court of Appeals for the Tenth Circuit’s May 2022 decision interpreting the Federal Advisory Committee Act (FACA), passed to ensure accountability when government agencies use outside groups to develop policy. Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) v. U.S. Department of Agriculture (USDA), No. 22-270; 10th Cir. No. 21-8042; D. Wyo. No. 1:19-cv-00205.  Under FACA, an advisory committee established or utilized by the President or an executive agency must meet specific requirements, including filing a charter, providing public access to committee meetings and records, and ensuring that the committee is balanced in viewpoint and functions.  In 2017 and 2019, respectively, the Cattle Traceability Working Group (CTWG) and the Producer Traceability Council (PTC) were formed to research the effectiveness of electronic identification (EID) technologies for cattle.  In 2019, USDA members attended PTC meetings and, in April 2019, APHIS published a fact sheet outlining a policy to encourage EID use in cattle and bison, which has now been removed from the agency’s website.  R-CALF claims that APHIS established CTWG and PTC and as a result, both are advisory committees under FACA.  R-CALF argues that, as advisory committees established by an executive agency, CTWG and PTC are subject to FACA standards, to which the entities have not adhered.  The writ filed by NCLA claims that the Tenth Circuit’s interpretation of the term “established” is contradictory to previous precedent.  A response is due from USDA by October 21, 2022.  For background, see ALWR—May 21, 2021, “Federal Court Dismisses R-CALF RFID Suit.”

Agricultural Antitrust: Court Approves $20 Million JBS Settlement in Class Action Pork Price-Fixing Case
On September 14, 2022, the U.S. District Court for the District of Minnesota issued an order approving a $20 million settlement between the Consumer Indirect Purchaser Plaintiffs and the JBS USA Food Company, JBS USA Food Company Holdings, and Swift Pork Company (JBS Defendants) in the class action case In re Pork Antitrust Litigation, No. 0:18-cv-01776.  Preliminary approval of the settlement was granted in April 2021.  Defendants in this class action are accused of sharing information about price, capacity, and demand for pork in an effort to inflate prices.  Of the $20 million settled upon, approximately $7 million will go toward attorney’s fees. More details about the settlement are available at overchargedforpork.com.  For background, see ALWR—April 2, 2021, “JBS to Pay $20 Million to Indirect Purchaser Class in Pork Antitrust Settlement.”

Biotechnology: APHIS Announces Genetically Modified Purple Tomatoes Not Subject to Regulation
On September 7, 2022, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced its decision that genetically modified purple tomatoes are unlikely to pose an increased plant pest risk compared to other tomatoes.  This decision means the purple tomatoes developed by Norfolk Plant Sciences are not subject to regulation under 7 CFR 340.  Plants that are unlikely to pose an increased plant pest risk may be safely grown and bred in the United States.  Genetically modified purple tomatoes contain increased levels of anthocyanins, which are antioxidants that assist in anti-inflammation. These healthier purple tomatoes could be available, both as a fruit and a seed, as early as 2023.

Dairy Policy: National Dairy FARM Program Opens Comment Survey on Animal Care Version 5 Standards
On September 12, 2022, the National Dairy Farmers Assuring Responsible Management (FARM) Program announced the opening of a comment survey on revisions to its Animal Care Version 5 Standards, which FARM revises every three years. The FARM Program provides standards, accountability measures, and rationale to demonstrate dairy farmers’ commitment to provide excellent care for dairy cattle and safe milk.  Proposed standards will be reviewed by the FARM Animal Care Task Force and the National Milk Producers Federation (NMPF) Animal Health and Well-Being Committee.  The NMPF Board of Directors provides the final approval for the revised standards.  Dairy industry stakeholders may submit comments on the standards until 5:00 pm EST on October 28th, 2022.  The adopted standards are proposed to become effective July 1, 2024 through June 30, 2027.

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CENTER PROGRAMS & RESOURCES

Agricultural Law Podcasts:

Events:

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge.  Recordings and materials from prior webinars, more information, and registration available here. Next in the series:

  • Oct. 21, 2022, noon ET: Understanding the Basics of Crop Insurance
  • Recent webinar recordings available:
    • Understanding the Basics of Livestock Market Regulation (Sept. 23, 2022)
    • Under the Basics of Agricultural Cooperatives (Aug. 26, 2022)
    • Understanding the Basics of Statutory Protections for Agricultural Operations (July 22, 2022)

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

Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series.  Register at any time to watch past recordings and attend all future webinars and access all materials.  Next in series:

Agricultural Law & Policy Resources of Interest:

Penn State News, Research & Resources:

Top #AgLaw HotLinks Sept. 17–23, 2022:

Agriculture-Related Legislative Hearings & Reports:

Sept. 20, 2022, 10:00 AM ET, House Agriculture Committee Hearing, Review of the Farm Bill: Stakeholder Perspectives on Title II Conservation Programs.

Sept. 29, 2022, 10:00 AM ET, House Agriculture Committee Hearing, Upcoming 2022 Review of the Farm Bill: Title XII – Department Operations and Outreach.

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

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Biden-Harris Administration Invests More Than $37 Million to Improve Recreational Sites and Cabins on National Forests and Grasslands (Sept. 23, 2022).

USDA Releases its Strategic Roadmap for Increasing Diversity, Equity, Inclusion and Accessibility (Sept. 23, 2022).

Historic Investment in Partnerships for Climate-Smart Commodities and Rural Projects (Sept. 22, 2022).

Biden-Harris Administration Announces $502 Million for High-Speed Internet in Rural Communities (Sept. 22, 2022).

Biden-Harris Administration Invests $178 Million in International Food for Progress Projects (Sept. 21, 2022).

Biden-Harris Administration Invests $220 Million in International School Feeding Projects (Sept. 21, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Takes Enforcement Action Against Two New Jersey Companies for Violations Related to Misbranded Pesticide Spray (Sept. 21, 2022).

EPA orders two Coachella Valley mobile home parks to provide safe drinking water (Sept. 19, 2022)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Colorado (Sept. 22, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Wisconsin (Sept. 21, 2022).

New York Mart Group Inc. in New York Satisfies Terms of Consent Decision and Order Involving Alleged PACA Violations (Sept. 21, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Wyoming (Sept. 20, 2022).

USDA Announces Its Local Food Purchase Assistance Cooperative Agreement with Arkansas (Sept. 19, 2022).

Agricultural Research Service (ARS)

Making Butter-like Spreads Healthier (Sept. 22, 2022).

Now You Don’t Have to Wait for Smoke to Know Where Fires Are Likely to Occur (Sept. 21, 2022).

Farm Service Agency (FSA)

USDA Seeks Input on New Grant Program to Strengthen Food Supply Chain, Reduce Irregular Migration, and Improve Labor Protections for Farmworkers (Sept. 21, 2022).

Food Safety and Inspection Service (FSIS)

Constituent Update (Sept. 23, 2022).

Foreign Agricultural Service (FAS)

Export Sales to Mexico and Unknown (Sept. 22, 2022).

Biden-Harris Administration Invests $178 Million in International Food for Progress Projects (Sept. 21, 2022).

USDA Funds Six International Research Projects on Climate-Smart Agriculture (Sept. 19, 2022).

Export Sales to China (Sept. 19, 2022).

Forest Service (FS)

Biden-Harris Administration Invests More Than $37 Million to Improve Recreational Sites and Cabins on National Forests and Grasslands (Sept. 23, 2022).

National Resource Conservation Service (NRCS)

Deadline Extended for Grazing Lands Conservation Initiative Cooperative Agreements (Sept. 22, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Sept. 19–23, 2022):            

Agency for International Development

87 FR 57864 Notice: “Notice of Meeting; Board for International Food and Agricultural Development” (Sept. 22, 2022).

Agriculture Department   

87 FR 58054 Notice: “Submission for OMB Review; Comment Request” (Sept. 23, 2022).

87 FR 57680 Notice: “Submission for OMB Review; Comment Request” (Sept. 21, 2022).

87 FR 57168 Notice: “Submission for OMB Review; Comment Request” (Sept. 19, 2022).

Animal and Plant Health Inspection Service

87 FR 57168 Notice: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Irradiation Phytosanitary Treatment of Imported Fruits and Vegetables” (Sept. 19, 2022).

Environmental Protection Agency

87 FR 58047 Notice—Public Comment: “Receipt of Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities (August 2022)” (Sept. 23, 2022).

87 FR 58084 Notice—Public Comment: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Grain Elevators (Renewal)” (Sept. 23, 2022).

87 FR 58081 Notice—Public Comment: “Pesticide Registration Review; Proposed Final Decision for Pentachloronitrobenzen; Notice of Availability” (Sept. 23, 2022).

87 FR 57627 Final Rule: “Pesticides; Expansion of Crop Grouping Program VI” (Sept. 21, 2022).

87 FR 57615 Final Rule: “Novaluron; Pesticide Tolerances” (Sept. 21, 2022).

87 FR 57621 Final Rule: “Glufosinate; Pesticide Tolerances” (Sept. 21, 2022).

87 FR 57696 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Uses (August 2022)” (Sept. 21, 2022).

87 FR 57494 Notice: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (August 2022)” (Sept. 20, 2022).

87 FR 57493 Notice: “Revision of Approved State Primacy Program for the State of Arizona” (Sept. 20, 2022).

Farm Service Agency

87 FR 58054 Notice—Public Comment: “Request for Information and Stakeholder Listening Sessions on Farm Labor Stabilization and Protection Pilot Program” (Sept. 23. 2022).

87 FR 57453 Notice—Public Comment: “Information Collection Requests; Direct Loan Making; Direct Loan Servicing-Regular; Servicing Minor Program Loans” (Sept. 20, 2022).

87 FR 57452 Notice—Public Comment: “Information Collection Request; In-Person and Online Registration for FSA-Hosted Events and Conferences” (Sept. 20, 2022).

Food and Drug Administration

87 FR 57905 Notice—Public Comment: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Abbreviated New Animal Drug Applications” (Sept. 22, 2022).

Food and Nutrition Service

87 FR 57304 Notice: “Streamlining Program Requirements and Improving Integrity in the Summer Food Service Program (SFSP)” (Sept. 19, 2022).

Food Safety and Inspection Service

87 FR 58056 Notice—Public Comment: “Notice of Request to Renew an Approved Information Collection: Interstate Shipment of Meat and Poultry Products” (Sept. 23, 2022). 87 FR 57169 Notice: “Notice of Request To Renew an Approved Information Collection: Modernization of Swine Slaughter Inspection” (Sept. 19, 2022).

International Trade Administration

87 FR 58061 Notice: “Urea Ammonium Nitrate Solutions From the Russian Federation: Termination of Antidumping Duty Changed Circumstances Review; Emulsion Styrene-Butadiene Rubber From the Russia Federation: Notification of Intent To Investigate Whether the Russian Federation is a Market Economy” (Sept. 23, 2022).

87 FR 58061 Notice; Correction: “White Grape Juice Concentrate From Argentina: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With the Final Antidumping Duty Determination; Correction” (Sept. 23, 2022).

87 FR 57680 Notice: “Advisory Committee on Supply Chain Competitiveness: Notice of Public Meeting” (Sept. 21, 2022).

International Trade Commission

87 FR 58130 Notice: “Certain Chocolate Milk Powder and Packaging Thereof; Commission Decision Not To Review an Initial Determination Granting Motion for Summary Determination of Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding” (Sept. 23, 2022).

87 FR 58134 Notice: “Ammonium Sulfate From China; Hearing Update for the Subject Reviews” (Sept. 23, 2022).

87 FR 57716 Notice: “Complaint: Certain Hazelnuts and Products Containing the Same” (Sept. 21, 2022).

87 FR 57717 Notice: “Certain Preserved Mushrooms From France, Netherlands, Poland, and Spain; Scheduling of the Final Phase of Antidumping Duty Investigations” (Sept. 21, 2022).

87 FR 57219 Notice: “Complaint: Certain Raised Garden Beds” (Sept. 19, 2022).

National Agricultural Statistics Service

87 FR 57864 Notice—Public Comment: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection” (Sept. 22, 2022).

Presidential Documents

87 FR 57565 Presidential Document: “National Farm Safety and Health Week, 2022” (Sept. 21, 2022).  

Susquehanna River Basin Commission

87 FR 57967 Notice: “Actions Taken at September 15, 2022 Meeting” (Sept. 22, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.8966 “To clarify regulatory certainty, and for other purposes” Referred to the Subcommittee on Water Resources and Environment (Sept. 23, 2022).

H.R.8981 “To streamline hardrock mine permitting on Federal lands, support technological and scientific advancements for mineral development, expand the mining workforce, track global supply chains, strengthen domestic refining and processing capacity, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture, among others (Sept. 22, 2022).

H.R.8950 “To amend the Commodity Exchange Act to provide the Commodity Futures Trading Commission jurisdiction to oversee the spot digital commodity market, and for other purposes” Referred to the House Committee on Agriculture (Sept. 22, 2022).

H.R.4374 “Broadband Internet Connections for Rural America Act” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than Nov. 14, 2022 (Sept. 22, 2022).

H.R.8928 “To improve the permitting process for mining on Federal land, and for other purposes” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture (Sept. 20, 2022).

H.Con.Res.106 “Supporting the designation of the week of September 19 through September 23, 2022, as ‘Malnutrition Awareness Week’” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Agriculture, among others (Sept. 20, 2022).

H.R.8730 “Digital Commodities Consumer Protection Act of 2022” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 19, 2022).

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

S.4941 “A bill to amend the Agricultural Trade Act of 1978 to extend and expand the Market Access Program and the Foreign Market Development Cooperator Program” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 22, 2022).

S.4931 “A bill to require reforms to programs of the Natural Resources Conservation Service, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 22, 2022).

S.4895 “Biochar Research Network Act of 2022” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 20, 2022).

S.4883 “Continued Rapid Ohia Death Response Act of 2022” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sponsor introductory remarks on measure: CR S4823) (Sept. 19, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 38—Sept. 17, 2022): 

Department of Environmental Protection 

52 Pa.B. 6009 Notice: “Agriculture Energy Efficiency Rebate Program; Notice of Availability.” 52 Pa.B. 5957 Notice: “Applications, Actions and Special Notices.”

52 Pa.B. 6010 Notice: “Availability of Fiscal-Year Report for the Reclamation Fee O & M Trust Account.”

52 Pa.B. 6011 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Discharges from the Application of Pesticides (PAG-15).”

PENNSYLVANIA LEGISLATURE

SB 1237 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in race horse industry reform, further providing for State Horse Racing Commission.” Presented to the Governor (Sept. 20, 2022).

 

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