March 27, 2023

Agricultural Law Weekly Review—March 27, 2023

Biosecurity: Pennsylvania Suffers Renewed 2023 HPAI Outbreak, Issues Additional Quarantine Order for Live Bird Market Supply Chain 🌾
From February 1, 2023, through March 17, 2023, Pennsylvania has confirmed thirty-two (32) premises, both commercial and non-commercial, infected by highly pathogenic avian influenza (HPAI) in the last eight (8) weeks, totaling approximately 295,000 depopulated birds, primarily smaller mixed species growers (7,000 birds or less) supplying East Coast live bird markets, but also including six (6) commercial production premises (turkey—3, ducks—2, and broilers—1). Twenty-three (23) of the detections have been in Lancaster County, as are the overwhelming majority of active control zones. As a result, on March 25, 2023, the Pennsylvania Department of Agriculture (PDA), Bureau of Animal Health, published in the PA Bulletin an additional immediately effective General Quarantine Order, titled General Quarantine Order; Enhanced Live Bird Market Production Flock and Live Bird Market Supplier Flock Surveillance, Quarantine Area Requirements. The order establishes a quarantine area in parts of Lancaster and Chester Counties, within which an entirely new movement, permitting, and diagnostic sampling and testing regime will be implemented in accordance with the order’s detailed terms until further PDA order. Nationally, the current HPAI outbreak, which commenced on February 8, 2022, has infected 323 commercial flocks, 488 backyard flocks, in forty-seven (47) states and resulting in 58.65 million birds depopulated. Pennsylvania (4.6 million) stands as the fourth highest state depopulation total after Iowa (15.9 million), Nebraska (6.7 million), Colorado (6.2 million), and followed closely by Minnesota (4.2 million), South Dakota (3.9 million), Ohio (3.7 million), Wisconsin (3.3 million), and Utah (2.2 million).

WOTUS: U.S. District Court Orders Injunctions Against WOTUS Final Rule in Texas and Idaho
On March 19, 2023, the U.S. District Court of the Southern District of Texas Galveston Division issued a memorandum opinion and order granting a preliminary injunction against the January 2023 Final Rule titled “Revised Definition of ‘Waters of the United States’” (WOTUS). State of Texas v. United States Environmental Protection Agency S.D. Texas, No. 3:23-cv-00017. The injunction, issued one day before the Final Rule’s March 20, 2023, effective date, enjoins the Final Rule from implementation in Idaho and Texas. Similar litigation is currently pending in several other states and the Supreme Court is set to soon deliver an opinion in the case, Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al. No. 21-454, which will address the statutory definition of WOTUS under the Clean Water Act. For background on pending litigation of the Final Rule, see ALWR—Mar. 13, 2023 “Kentucky Chamber of Commerce Files Suit Against EPA Over WOTUS Final Rule.” For background on the WOTUS Final rule, see ALWR—Jan. 23, 2023 “EPA Publishes Final Rule Defining ‘the Waters of the United States.’”

Agricultural Antitrust: Perdue Farms Files for Settlement Approval in Wage-Fixing Litigation
On March 14, 2023, a motion for preliminary approval of a settlement by Perdue Farms was filed in the case Jien v. Perdue Farms Inc., D. Md., No. 1:19-cv-02521. Plaintiffs Judy Jien et al. filed the motion seeking court approval of the settlement agreement reached on October 31, 2022, and filed on December 7, 2022. Under the settlement agreement, Perdue Farms Inc. agrees to pay $60.7 million to settle claims of Sherman Act violations in which Perdue conspired to suppress employee wages. Other defendants, Cargill Meat Solutions Corp., Sanderson Farms Inc., and Wayne Farms LLC filed a motion for preliminary approval of separate settlement agreements in September 2022. See ALWR—Sept. 16, 2022, “Cargill, Sanderson, and Wayne Farms Agree to $85 Million Settlement in Class Action Worker Wage Lawsuit.” 

WOTUS: U.S. House Passes Joint Resolution Disapproving of January 2023 WOTUS Final Rule
On March 9, 2023, the U.S. House of Representative passed H.J.Res.27, a joint resolution disapproving of the January 18, 2023, proposed rule defining “Waters of the United States” (WOTUS) in the Clean Water Act, which includes some intermittently flowing waters and wetlands. Also announced by the U.S. House Committee on Agriculture, the resolution declares that the January 2023 WOTUS rule “shall have no force or effect.” The resolution was received in the U.S. Senate March 14, 2023.  In accordance with the rarely-used 1996 Congressional Review Act, a joint resolution of Congress can stop an otherwise-properly promulgated regulation from being implemented if enacted in accordance with the traditional requirements for the enactment of legislation and is also subject to the same veto and veto override requirements for legislation.

National Agricultural Policy: USDA Announces Funding for Compost and Food Waste Reduction Pilot Programs
On March 16, 2023, the U.S. Department of Agriculture (USDA) Office of Urban Agriculture and Innovative Production (OUAIP) announced the release of $9.5 million for Compost and Food Waste Reduction (CFWR) pilot projects through cooperative agreements. OUAIP will accept applications for the fiscal year 2023 via grants.gov until June 15, 2023, 11:59 p.m. EDT. OUAIP requires that projects span two years, from December 1, 2023, through December 1, 2025. A recorded webinar providing more information about CFWR pilot projects will be posted to farmers.gov/urban.

Air Quality:  Intergovernmental Panel on Climate Change Releases Synthesis Report for Sixth Assessment Since 1990
On March 20, 2023, the Intergovernmental Panel on Climate Change (IPCC) published its AR6 Synthesis Report on Climate Change 2023, the culmination of its Sixth Assessment Report since 1990. The Sixth Assessment Report consists of the final Synthesis Report and reports from three working groups: 1) Climate Change 2021: The Physical Science Basis, released on August 9, 2021; 2) Climate Change 2022: Impacts, Adaptation and Vulnerability, released on February 28, 2022; and 3) Climate Change 2022: Mitigation of Climate Change, released on April 4, 2022. The IPCC’s Summary Report for Policymakers and accompanying figures state that in 2019, approximately 22% of global greenhouse gas emissions came from agriculture and forestry and emissions increases have outpaced reductions. However, the report notes many emission reduction opportunities that can be increased, including on-farm water management, soil moisture conservation, wetland restoration, reforestation, and other conservation practices.

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CENTER PROGRAMS & RESOURCES

Events:

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

  • April 28, 2023, noon–1 pm (ET): Understanding the Basics of Agricultural Conservation Easement Programs
  • May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes
  • June 23, 2023, noon–1 pm (ET): Understanding the Basics of the Farm Credit System

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.

  • May 17, 2023, noon–1 pm (ET). Register.

An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.

  • June 21, 2023, noon–1 pm (ET). Register.

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.

Legal Planning for Specialty Crop Producers. A free six-webinar series is available for on-demand viewing by registering.

Podcasts:

Resources of Interest:

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

USDA Announces Cooperative Agreements for Compost and Food Waste Reduction (Mar. 16, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Announces Accelerated Action on Four Organophosphate Pesticides Based on Updated Exposure Assessments (Mar. 15, 2023).

EPA Opens Application Period for Grant Supporting Education and Training for Pesticide Applicators (Mar. 13, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA, U.S. Senator Jon Ossoff, U.S. Representative Sanford Bishop Jr. Announce the Expansion of Local Foods in School Meals through Cooperative Agreement with Georgia (Mar. 13, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Tennessee (Mar. 15, 2023).

Agricultural Research Service (ARS)

Researchers Aim to Reduce Pesticide Drift in the Lower Mississippi Delta (Mar. 14, 2023).

Animal and Plant Health Inspection Service (APHIS)

USDA Extends Public Comment Period for Proposed Enhancements of Animal Disease Traceability Regulations (Mar. 17, 2023).

USDA Announces $15.8 Million in Farm Bill Funding to Protect Animal Health (Mar. 15, 2023).

Economic Research Service (ERS)

Linkages Between Rural Community Capitals and Healthcare Provision: A Survey of Small Rural Towns in Three U.S. Regions (Mar. 16, 2023).

ERS Annual Report, FY 2022 (Mar. 15, 2023).

Food and Nutrition Service (FNS)

Statement from FNCS Deputy Under Secretary Stacy Dean on Replacing Stolen SNAP Benefits (Mar. 14, 2023).

Foreign Agricultural Service (FAS)

USDA Accepting Applications for FY 2024 Export Programs (Mar. 17, 2023).

Export Sales to China (Mar. 17, 2023).

USDA McGovern-Dole and Food for Progress FY 2023 Public Meeting Webinar (Mar. 16, 2023).

Export Sales to China (Mar. 16, 2023).

Export Sales to China (Mar. 15, 2023).

Export Sales to China (Mar. 14, 2023).

National Agricultural Statistics Service (NASS)

USDA to host Data Users’ Meeting to gather public input on statistical programst (Mar. 16, 2023).

National Institute of Food and Agriculture (NIFA)

Iowa State Broiler Research Points to Lasers as Environmental Enrichment Devices (Mar. 16, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Mar. 13–Mar. 17, 2022):           

Agriculture

88 FR 15639 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Tuberculosis]” (Mar. 14, 2023).

Animal and Plant Health Inspection Service

88 FR 16371 Final Rule: “User Fees for Agricultural Quarantine and Inspection Services” (Mar. 17, 2023).

88 FR 16173 Final Rule: “Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act; Correction” (Mar. 16, 2023).

88 FR 15369 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; APHIS Credit and User Fee Accounts” (Mar. 13, 2023).

Commodity Futures Trading Commission

88 FR 15378 Notice: “Agricultural Advisory Committee” (Mar. 13, 2023).

Environmental Protection Agency

88 FR 16379 Final Rule—Public Comment: “Paraffin Waxes and Hydrocarbon Waxes, Carboxypolymethylene Resin, and Paraffin Waxes and Hydrocarbon, Oxidized, Lithium Salts in Pesticide Formulations; Tolerance Exemption” (Mar. 17, 2023).

88 FR 15915 Final rule—Public Comment: “Modified Potato Acetolactate Synthase (StmALS) in Potato; Exemption From the Requirement of a Tolerance” (Mar. 15, 2023).

88 FR 16004 Notice: “Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Cargill, Inc., Blair Facility” (Mar. 15, 2023).

88 FR 15616 Final Rule—Public Comment: “Bacteriophage Active Against Pseudomonas syringae pv. syringae; Bacteriophage Active Against Xanthomonas arboricola pv. corylina; Bacteriophage Active Against Xanthomonas arboricola pv. juglandis; and Bacteriophage Active Against Xanthomonas arboricola pv. pruni; Exemptions From the Requirement of Tolerances” (Mar. 14, 2023).

88 FR 15613 Final Rule—Public Comment: “BLB2 and AMR3 Proteins in Potato; Temporary Exemption From the Requirement of a Tolerance” (Mar. 14, 2023).

88 FR 15279 Final Rule—Public Comment: “Various Fragrance Components in Pesticide Formulations; Tolerance Exemption” (Mar. 13, 2023).

88 FR 15346 Proposed Rule—Public Comment: “Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments” (Mar. 13, 2023).

Farm Service Agency

88 FR 16394 Notice—Public Comment: “Information Collection Requests; Direct Loan Servicing-Regular; and Servicing Minor Program Loans” (Mar. 17, 2023).

88 FR 16230 Notice—Public Comment: “Notice of Funding Availability (NOFA); Emergency Grain Storage Facility Assistance Program” (Mar. 16, 2023).

Food and Drug Administration

88 FR 16182 Final Rule: “Listing of Color Additives Exempt from Certification; Spirulina Extract; Confirmation of Effective Date” (Mar. 16, 2023).  

88 FR 16267 Notice: “The Use of Published Literature in Support of New Animal Drug Approvals; Guidance for Industry; Availability” (Mar. 16, 2023).

Food Safety and Inspection Service

88 FR 15290 Proposed Rule—Public Comment: “Voluntary Labeling of FSIS-Regulated Products with U.S.-Origin Claims” (Mar. 13, 2023).  

International Trade Administration

88 FR 15375 Notice: “Agreement Suspending the Antidumping Duty Investigation on Fresh Tomatoes from Mexico: Final Results of the 2020-2021 Administrative Review” (Mar. 13, 2023).

Office of Partnerships and Public Engagement

88 FR 15370 Notice: “Advisory Committee on Minority Farmers” (Mar. 13, 2023).

Rural Business-Cooperative Service

88 FR 16404 Notice—Public Comment: “Notice of Funding Opportunity for the Socially Disadvantaged Groups Grant for Fiscal Year 2023” (Mar. 17, 2023).

88 FR 16396 Notice: “Notice of Funding Opportunity for the Value-Added Producer Grants for Fiscal Year 2023” (Mar. 17, 2023).

Susquehanna River Basin Commission

88 FR 16075 Notice: “Projects Approved for Consumptive Uses of Water” (Mar. 15, 2023).

Trade Representative, Office of United States

88 FR 15852 Notice: “Reallocation of Unused Fiscal Year 2023 WTO Tariff-Rate Quota Volume for Raw Cane Sugar” (Mar. 14, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.1646 “To amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to allow the interstate sale of State-inspected meat and poultry, and for other purposes.” Referred to the House Committee on Agriculture. (Mar. 17, 2023).

H.R.1645 “To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to direct the Secretary of Agriculture to establish a national biochar research network, and for other purposes.” Referred to the House Committee on Agriculture. (Mar. 17, 2023).

H.R.1642 “To amend the Federal Lands Recreation Enhancement Act to provide for an annual National Recreational Pass for law enforcement officers and firefighters.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Mar. 17, 2023).

H.R.1624 “To amend the Animal Welfare Act to provide for the humane treatment of dogs, and for other purposes.” Referred to the House Committee on Agriculture. (Mar. 17, 2023).

H.R.1614 “To facilitate the creation of designated shooting ranges on National Forest System land and public land administered by the Bureau of Land Management for the public to use for recreational target shooting, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Mar. 17, 2023).

H.R.1 “Lower Energy Costs Act.” Referred to the Subcommittee on Water Resources and Environment. (Mar. 15, 2023).

H.R.1604 “To amend the Federal Meat Inspection Act to modify requirements for a meat food product of cattle to bear a ‘Product of U.S.A.’ label, and for other purposes.” Referred to the House Committee on Agriculture. (Mar. 14, 2023).

H.R.1588 “To establish an AmeriCorps Administration to carry out the national and volunteer service programs, to expand participation in such programs, and for other purposes.” Referred to the Committee on Education and the Workforce, and in addition to the Committees on Ways and Means, Natural Resources, and Agriculture. (Mar. 14, 2023).

H.R.1586 “To allow the Secretary of the Interior and the Secretary of Agriculture to use a fire retardant, chemical, or water for fire suppression, control, or prevention activities.” Referred to the Committee on Transportation and Infrastructure, and in addition to the Committees on Natural Resources, and Agriculture. (Mar. 14, 2023).

H.R.1581 “To amend the Food and Nutrition Act of 2008 to standardize work requirements for able-bodied adults enrolled in the supplemental nutrition assistance program.” Referred to the House Committee on Agriculture. (Mar. 14, 2023).

H.R.1576 “To provide exceptions from permitting and fee requirements for content creation, regardless of distribution platform, including still photography, digital or analog video, and digital or analog audio recording activities, conducted on land under the jurisdiction of the Secretary of Agriculture and the Secretary of the Interior, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Mar. 14, 2023).

H.R.1571 “To amend the Personal Responsibility and Work Opportunity Act of 1996 to provide certain Federal public benefits to citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau who are lawfully residing in the United States if they are otherwise qualified, consistent with section 141 of the Compacts of Free Association.” Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Ways and Means, and Agriculture. (Mar. 14, 2023).

H.R.1335 “TAPP American Resources Act.” Referred to the Subcommittee on Forestry. (Mar. 13, 2023).

H.R.989 “Build the Wall Now Act.” Referred to the Subcommittee on Forestry. (Mar. 13, 2023).

H.R.945 “Strengthening Local Processing Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Mar. 13, 2023).

H.R.930 “Ski Hill Resources for Economic Development Act of 2023.” Referred to the Subcommittee on Forestry. (Mar. 13, 2023).

H.R.530 “A–PLUS Act.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Mar. 13, 2023).

H.R.323 “People-Centered Assistance Reform Effort Act.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Mar. 13, 2023).

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

S.846 “A bill to amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to allow the interstate sale of State-inspired meat and poultry, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 16, 2023).

S.834 “A bill to amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to reauthorize the Agriculture Advanced Research and Development Authority, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 16, 2023).

S.813 “A bill to direct the Secretary of Agriculture to amend regulations to allow for certain packers to have an interest in market agencies, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 15, 2023).

S.808 “A bill to amend the Healthy Forests Restoration Act of 2003 to require the Secretary of Agriculture to expedite hazardous fuel or insect and disease risk reduction projects on certain National Forest System land, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 15, 2023).

S.806 “A bill to amend the Consolidated Farm and Rural Development Act to establish a grant program to assist with the purchase, installation, and maintenance of point-of-entry and point-of-use drinking water quality improvement products, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 15, 2023).

S.802 “A bill to amend the Federal Insecticide, Fungicide, and Rodenticide Act to provide for a consistent definition for plant biostimulants.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 15, 2023).

S.795 “A bill to amend the Federal Crop Insurance Act to improve education and risk management assistance, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Mar. 14, 2023).

Legislative Hearings:

U.S. House Ag. Comm., “A Review of Title VII: USDA Implementation of Research Programs,” March 23, 2023, 10:00 am (ET), livestream.

U.S. Sen. Ag. Comm., “Oversight of the U.S. Department of Agriculture,” March 16, 2023, recording.

Pa. House Appropriations Comm. Budget Hearing—Department of Agriculture, Tuesday, March 21, 2023, 1:00 pm (ET), House Floor, livestream.

Pa. Senate Appropriations Comm. Budget Hearing—Department of Agriculture, Tuesday March 28, 2023, 1:00 m (ET), Hearing Room 1, North Office Building, livestream.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:          

No new press releases this week.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 11—Mar. 18, 2023):

Department of Agriculture

53 Pa.B. 1513 Notice: “Referendum on Continuation of the Pennsylvania Vegetable Marketing and Research Program.”

Department of Conservation and Natural Resources

53 Pa.B. 1514 Notice: “Conservation and Natural Resources Advisory Council Public Meeting.”

 Department of Environmental Protection

53 Pa.B. 1515 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 1614 Notice: “Environmental Assessment Approval for PENNVEST Funding Consideration.”

53 Pa.B. 1575 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Discharges from Small Flow Treatment Facilities (PAG-04).”

53 Pa.B. 1575 Notice: “Federal Consistency under the Coastal Zone Management Act; Personal Watercraft Lift—Presque Isle Bay, Erie County.”

53 Pa.B. 1576 Notice: “Planning Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988.”

53 Pa.B. 1576 Notice: “Small Business Compliance Advisory Committee Meeting Cancellation.”

PENNSYLVANIA LEGISLATURE

HB 526 “An Act amending the act of December 7, 1982 (P.L.784, No.225), known as the Dog Law, in licenses, tags and kennels, further providing for requirements for kennels.” Referred to Agricultural and Rural Affairs [House]. (Mar. 17, 2023).

HB 453 “An Act amending the act of June 30, 1981 (P.L.128, No.43), known as the Agricultural Area Security Law, further providing for limitation on certain governmental actions.” Referred to Transportation [House]. (Mar. 16, 2023).  

HB 333 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in alternative form of regulation of telecommunications services, further providing for network modernization plans.” Referred to Consumer Protection, Technology and Utilities [House]. (Mar. 13, 2023).

HB 347 “An Act amending the act of June 1, 1937 (P.L.1168, No.294), known as the Pennsylvania Labor Relations Act, further providing for definitions.” Referred to Labor and Industry [House]. (Mar. 13, 2023).

 

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