March 6, 2023

Agricultural Law Weekly Review—March 6, 2023

COVID-19: SCOTUS Denies Tyson’s Petition to Keep COVID Cases in Federal Court 🌾
On February 21, 2023, the Supreme Court of the United States (SCOTUS) denied Tyson Foods, Inc.’s (Tyson) petition to keep in federal court several negligence cases alleging that the 2020 COVID-related deaths of workers employed at Tyson’s Waterloo, Iowa plant were caused by Tyson’s negligence. Tyson Foods, Inc., et al., Petitioners v. Hus Hari Buljic, et al. No. 22-70. Tyson filed its petition following the Eight Circuit Court of Appeals’s opinion remanding the cases to state court in Fernandez v. Tyson Foods Inc, et al, No. 21-1012 and Hus Buljic, et al v. Tyson Foods Inc, et al, No. 21-1010. Tyson removed both cases to federal court, erroneously claiming the Executive Branch invoked the Defense Production Act to force the plant to remain open. Each level of federal court has rejected that argument. See also ALWR—Jan. 7, 2022 , “Eighth Circuit Remands Tyson COVID-19 Negligence Case to State Court, Finds No Federal Jurisdiction Under Defense Production Act” and Understanding Executive Order 13917—Delegating Defense Production Act Authority to USDA for Food Supply Chain Resources.

Food Labeling: FDA Publishes Draft Guidance on Labeling Plant-Based Milks
On February 22, 2023, the U.S. Food and Drug Administration (FDA) published draft guidance for industry (DGI) titled, Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements. This DGI aims to provide the public with FDA’s view on labeling plant-based milk alternatives under the Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. §343(a)(1) and §343(i)(1)) and provides recommendations on how to use voluntary nutritional statements. Public comment to the DGI will be accepted until April 24, 2023.

Agricultural Labor: DHS Issues Proposed Rule to Raise Immigration, H-2A Fees, Comment Period to Close March 13
On February 24, 2023, the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) extended the public comment period to March 13, 2023 for the proposed rule titled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” Issued and announced on January 3, 2023, the proposed rule would raise the H-2A processing fee from $460 for both named and unnamed beneficiaries to $1,690 for named beneficiaries and $1,180 for unnamed beneficiaries.   Both proposed fees include a $600 asylum program fee. According to the announcement and proposed rule, “USCIS receives approximately 96 percent of its funding from filing fees, not from congressional appropriations” and “[i]f DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners.”

Antimicrobial Use: FDA Will Require Prescriptions for Certain Previously OTC Antibiotics for Veterinary Use Starting June 11, 2023
On January 23, 2023, the U.S. Food and Drug Administration (FDA) announced that, as of June 11, 2023, certain veterinary antibiotics previously sold over the counter (OTC) will require a prescription. This move is part of the FDA’s Guidance for Industry (GFI) #263, which seeks to combat antimicrobial resistance. Similar moves were made in 2013 under the Veterinary Feed Directive, which limited the use of certain antimicrobials in animal feed. Under the new guidance, animal owners must form a veterinary-client-patient-relationship and obtain a prescription to purchase antibiotics from either a veterinarian directly or a distributor. The specific antibiotics affected are those deemed medically important by the FDA, which are those used to treat both humans and animals. Additionally, FDA published a list of affected antibiotics and “Frequently Asked Questions for Farmers and Ranchers.”

Pesticides/Herbicides: EPA and FDA to Seek Public Input on Modernizing Oversight Approaches of Pesticides and New Animal Drugs
On February 15, 2023, the Environmental Protection Agency (EPA) and Food and Drug Administration (FDA) jointly published a notice in the federal register to garner public input on the oversight of pesticides and new animal drugs. Also announced by FDA and EPA, this joint effort “seeks to modernize approaches to reflect modern science and practices.” A virtual public meeting will be held on March 22, 2023, to provide further information and hear public comments on current oversight procedures.

National Agricultural Policy: USDA Issues $59 Million to Five Entities in Meat and Poultry Processing Expansion Grants
On February 21, 2023, the U.S. Department of Agriculture (USDA) Rural Development (RD) announced its issuance of $59 million in grants to five entities under its Meat and Poultry Processing Expansion Program.  Entities receiving the grants are

  • Riverbend Meats, LLC, Idaho ($25,000,000),
  • Holly Poultyr LLC, Maryland ($2,015,000),
  • Prestage Farms of South Carolina LLC ($24,951,753),
  • CNF Enterprises, South Dakota ($3,300,000), and
  • Shenandoah Valley Organic LLC, Virginia ($3,567,302).

Farm Bill: FACA Published 2023 Farm Bill Recommendations
On February 22, 2023, the Food and Agriculture Climate Alliance (FACA) announced its recommendations for the 2023 farm bill. FACA’s membership includes more than 80 entities in the agriculture and food sectors, including a steering committee of American Farm Bureau Federation, The Food Industry Association, National Association of State Departments of Agriculture, National Farmers Union, National Council of Farmer Cooperatives, Environmental Defense Fund, The Nature Conservancy National Alliance of Forest Owners.  FACA’s farm bill 2023 recommendations were formed by 23 committee members and cover the areas of; a) conservation, risk management, and credit, b) energy, c) food waste, d) forestry, e) livestock and dairy, and f) research, extension, and innovation.

 

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CENTER PROGRAMS & RESOURCES

Events/Webinars:

Protecting Your Farm-Based Food Business: Understanding Product Liability. Free seminar conducted live at Horizon Farm Credit, Mt. Joy, PA, with interactive live simulcast at three other Horizon Farm Credit locations (Chambersburg, New Stanton, Shoemakersville), and a virtual attendance option. Co-sponsored with the Pennsylvania Small Business Development Center’s Agriculture Center for Excellence and Horizon Farm Credit.

  • March 15, 2023, 10 am–2 pm (EST). Register.

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

  • March 24, 2023, noon–1 pm (EST): Understanding the Basics of Farm Animal Handling & Confinement Laws
  • April 28, 2023, noon–1 pm (EST): Understanding the Basics of Agricultural Conservation Easements
  • May 19, 2023, noon–1 pm (EST): Understanding the Basics of Landowner Immunity Statutes

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.

Agricultural Law Podcast:

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.

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE  

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Biden-Harris Administration Invests Nearly $10 Million for Reforestation through Forest Nursery and Native Seed Partnerships (Feb. 24, 2023).

Biden-Harris Administration Invests $59 Million to Strengthen Food Supply Chain and Rural Economies (Feb. 21, 2023).

USDA Invests More than $48.6 Million to Manage Risks, Combat Climate Change (Feb. 21, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Releases Proposed Approach for Considering Cumulative Risks under TSCA (Feb. 24, 2023).

EPA Region 10 Announces Virtual Listening Session on PFAS Strategic Roadmap (Feb. 22, 2023).

EPA Orders Norfolk Southern to Conduct All Cleanup Actions Associated with the East Palestine Train Derailment (Feb. 21, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Restricts PACA Violators in Florida and New York From Operating in the Produce Industry (Feb. 22, 2023).

USDA Restricts PACA Violators in California and Michigan and Texas From Operating in the Produce Industry (Feb. 22, 2023).

USDA Settles a Packers and Stockyards Case with Jaime Chavira (Feb. 22, 2023).

USDA Restricts PACA Violators in California, Connecticut and Florida from Operating in the Produce Industry (Feb. 21, 2023).

Agricultural Research Service (ARS)

U.S. National Arboretum Offers Solution to Hemlock Woolly Adelgid Pest (Feb. 23, 2023).

Bioluminescence May Shine Light on Roundworm Secrets (Feb. 22, 2023).

Food and Nutrition Service (FNS)

ICYMI: 2025 Dietary Guidelines Advisory Committee Holds First Meeting (Feb. 24, 2023).

National Institute of Food and Agriculture (NIFA)

A Force to be Reckoned With: Fort Valley State’s First Meat Judging Team Wins National Award (Feb. 24, 2023).

Developing Sustainable Aquaculture Systems to Support the Atlantic Salmon Industry (Feb. 23, 2023).

Aquaculture Research Aims to Reduce Rainbow Trout Losses in U.S. Hatcheries (Feb. 22, 2023).

Transforming Shellfish Farming with Smart Technology and Management Practices for Sustainable Production (Feb. 20, 2023).

Extension Pioneer: Percy Hunter Stone (Feb. 20, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 21–Feb. 24, 2022):            

Agricultural Marketing Service

88 FR 11822 Proposed Rule—Public Comment: “Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Assessment Rate Increase” (Feb. 24, 2023).

88 FR 10481 Proposed Rule: “Onions Grown in South Texas and Imported Onions; Termination of Marketing Order 959 and Change in Import Requirements; Withdrawal” (Feb. 21, 2023).

Agriculture

88 FR 11194 Proposed Rule: “Semiannual Regulatory Agenda, Fall 2022” (Feb. 22, 2023).

88 FR 10495 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Sugar Imported for Exports as Refined Sugar, as a Sugar-Containing Product, or Used in Production of Certain Polyhydric Alcohols.] (Feb. 21, 2023).

Animal and Plant Health Inspection Service

88 FR 11779 Final Rule: “Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act” (Feb. 24, 2023).

88 FR 11888 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Phytophthora Ramorum; Quarantine and Regulations” (Feb. 24, 2023).

88 FR 10463 Final Rule: “Alignment of Canned Meat and Canned Product Requirements” (Feb. 21, 2023).

88 FR 10654 Final Rule: “Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act” (Feb. 21, 2023).

Environmental Protection Agency

88 FR 11912 Notice—Public Comment: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Certification of Pesticide Applicators” (Feb. 24, 2023).

88 FR 11401 Proposed Rule—Public Comment: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities January 2023” (Feb. 23, 2023).

88 FR 10724 Proposed Rule—Public Comment: “Clean Water Act Methods Update Rule for the Analysis of Effluent” (Feb. 21, 2023).

Food and Drug Administration

88 FR 11449 Notice—Public Comment: “Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements; Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request” (Feb. 23, 2023).

Food and Nutrition Service

88 FR 11516 Proposed Rule—Public Comment: “Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): Online Ordering and Transactions and Food Delivery Revisions To Meet the Needs of a Modern, Data-Driven Program” (Feb. 23, 2023).

88 FR 11403 Notice—Public Comment: “Privacy Act; Proposed New System of Records” (Feb. 23, 2023).

88 FR 10495 Notice: “Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): 2023/2024 Income Eligibility Guidelines” (Feb. 21, 2023).

International Trade Administration

88 FR 11892 Notice: “Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes from the Republic of Korea: Notice of Court Decision Not in Harmony with the Final Results in the Antidumping Duty Administrative Review; Notice of Amended Final Results” (Feb. 24, 2023).

88 FR 11899 Notice: “Quarterly Update to Annual Listing of Foreign Government Subsidies on Articles of Cheese Subject to an In-Quota Rate of Duty” (Feb. 24, 2023).

88 FR 10871 Notice: “Fresh Garlic from the People’s Republic of China: Rescission of Antidumping Duty New Shipper Review; 2021-2022″ (Feb. 22, 2023).

Rural Utilities Service

88 FR 10463 Final Rule: “Implementing Provisions of the Agriculture Improvement Act of 2018” (Feb. 21, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.1184 “To amend the Animal Health Protection Act with respect to the importation of live dogs, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 24, 2023).

H.R.1167 “To address the history of discrimination against Black farmers and ranchers, to require reforms within the Department of Agriculture to prevent future discrimination, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committees on Education and the Workforce, Financial Services, the Judiciary, and the Budget. (Feb. 24, 2023).

H.R.679 “To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to authorize the Secretary of Agriculture to waive the matching funds requirement under the specialty crop research initiative, and for other purposes.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Feb. 23, 2023).

H.R.674 “Root and Stem Project Authorization Act of 2023.” Referred to the Subcommittee on Forestry. (Feb. 23, 2023).

H.R.662 “Block Grant Assistance Act of 2023.” Referred to the Subcommittee on General Farm Commodities, Risk Management, and Credit. (Feb. 23, 2023).

H.R.651 “COMPOST Act.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Feb. 23, 2023).

H.R.636 “Forest Litigation Reform Act of 2023.” Referred to the Subcommittee on Forestry. (Feb. 23, 2023).

H.R.598 “Earth Act to Stop Climate Pollution by 2030.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Feb. 23, 2023).

H.R.209 “Permitting for Mining Needs Act of 2023.” Referred to the Subcommittee on Forestry. (Feb. 23, 2023).

H.R.934 “To require the Secretary of Agriculture to carry out activities to suppress wildfires, and for other purposes.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.930 “To amend the Omnibus Parks and Public Lands Management Act of 1996 to provide for the establishment of a Ski Area Fee Retention Account, and for other purposes.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.923 “To prohibit the President from issuing moratoria on leasing and permitting energy and minerals on certain Federal land.” Referred to the Subcommittee on Energy and Mineral Resources. (Feb. 21, 2023).

H.R.615 “Protecting Access for Hunters and Anglers Act of 2023.” Referred to the Subcommittee on Water, Wildlife, and Fisheries. (Feb. 21, 2023).

H.R.567 “SALVAGE Act.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.482 “Western Wildfire Support Act of 2023.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.439 “Public Land Search and Rescue Act.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.323 “To establish the People-Centered Assistance Reform Effort Commission, to improve the social safety net and increase social mobility by increasing access to resources which address the underlying causes of poverty.” Ways and Means; Education and the Workforce; Agriculture; Energy and Commerce; Financial Services; Transportation and Infrastructure; Rules; Judiciary; Natural Resources. (Feb. 21, 2023).

H.R.210 “Stamp Out Invasive Species Act.” Referred to the Subcommittee on Water, Wildlife, and Fisheries. (Feb. 21, 2023).

H.R.200 “FIR Act.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.189 “Action Versus No Action Act.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.188 “To direct the Secretary concerned to coordinate with impacted parties when conducting a forest management activity, and for other purposes.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.R.178 “Public Land Renewable Energy Development Act of 2023.” Referred to the Subcommittee on Energy and Mineral Resources. (Feb. 21, 2023).

H.R.172 “Acre In, Acre Out Act.” Referred to the Subcommittee on Federal Lands. (Feb. 21, 2023).

H.Res.147 “Expressing support for the designation of February 18 through February 25, 2023, as ‘National FFA Week,’ recognizing the important role of the National FFA Organization in developing the next generation of globally conscious leaders who will change the world and celebrating the 90th anniversary of the iconic FFA jacket.” Referred to the House Committee on Agriculture.

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

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Department Of Agriculture Adds Six Counties To Pennsylvania’s Spotted Lanternfly Quarantine, Announces Grants And Actions To Help Slow The Spread (Feb. 24, 2023).

Pennsylvania Protects 32 Farms, 3,047 Acres In 21 Counties From Future Development (Feb. 24, 2023).

The Shapiro Administration Announces Expanded Funding To Grow Farm Businesses (Feb. 21, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 8—Feb. 24, 2023): 

Department of Agriculture

53 Pa.B. 1066 Notice: “Addendum to the Order of Quarantine; Spotted Lanternfly.”

Department of Environmental Protection 

53 Pa.B. 1115 Notice: “Agriculture Energy Efficiency Rebate Program Deadline Extension.”

53 Pa.B. 1068 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 1115 Notice: “Electrifying Trucks for Cleaner Air in Our Communities: The Medium- and Heavy-Duty Zero-Emission Vehicle Fleet Pilot Grant Program; Application Deadline Extension.”

53 Pa.B. 1116 Notice: “Interstate Pollution Transport Reduction; Proposed 2023 Ozone Season Nitrogen Oxide Emission Limits for Nonelectric Generating Units.”

53 Pa.B. 1118 Notice: “Rates for Calculating Long-Term Operation and Maintenance Cost Bonds for Water Supply Replacement—Mining Operations.”

State Conservation Commission

53 Pa.B. 1146 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

PENNSYLVANIA LEGISLATURE

SB 48 “A Resolution urging the United States Department of Agriculture to include 2% and whole milk in the Nutrition Standards for the National School Lunch and Breakfast Programs and as a Smart Snacks option and urging the United States Department of Health and Human Services to recommend to the Dietary Guidelines Advisory Committee to modify the milk standard to include 2% and whole milk.” Referred to Education [Senate]. (Feb. 24, 2023).

SB 407 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for the use of hemp in commercial animal feed.” Referred to Agriculture and Rural Affairs [Senate]. (Feb. 21, 2023).

 

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