January 14, 2022

Agricultural Law Weekly Review – Week Ending January 7, 2022

Antitrust: White House Announces Plan to Increase Competition in Meat and Poultry Industries; USDA and DOJ Announce Joint Antitrust Initiative 🌾
On January 3, 2022, the White House held a roundtable conference with Agriculture Secretary Tom Vilsack, Attorney General Merrick B. Garland, and several independent producers to discuss anticompetitive industry practices and announce the administration’s Action Plan for a Fairer, More Competitive, and More Resilient Meat and Poultry Supply Chain.  The plan encompasses four primary focus areas to increase competition in the meat and poultry industries: 1) a joint initiative between the U.S. Department of Agriculture (USDA) and the Department of Justice (DOJ), 2) $1 billion in funding to expand independent processing facilities and support workers, 3) new regulations for the “Packers and Stockyards Act” (PSA) and “Product of USA” labeling, and 4) increased market transparency through new market reports.  Under the new USDA/DOJ initiative, the agencies will develop a streamlined process by February 2, 2022 for concerned producers to submit complaints regarding potential PSA and antitrust violations, in which the agencies state they will “protect the confidentiality of the complainants, if they so request, to the fullest extent possible under the law” and “support[] the strongest possible whistleblower protections.”  The agencies also state that they will cooperate to share information and case data and that USDA will refer potential PSA violations to the DOJ for antitrust enforcement.  The administration began working this past summer on the new regulations and implementing the market reporting and has previously announced some of the funding measures. In response to the roundtable announcement, North American Meat Institute issued a press release denouncing the administration’s efforts and attributing meat prices to inflation and labor shortages while the American Farm Bureau Federation issued a statement praising the administration’s initiatives, stating that the antitrust reporting system and stronger regulations “will go a long way to ensuring fairness in the industry.”

International Trade: Dispute Panel Finds Canada’s Tariff-Rate Quota Allocation in Violation of USMCA Agreement
On January 4, 2022, U.S. Trade Representative Katherine Tai announced that a dispute settlement panel, convened under the United States-Mexico-Canada Agreement (USMCA), found that Canada’s practice of reserving most of the country’s dairy tariff-rate quotas (TRQs) to Canadian processors was in violation of the USMCA.  In accordance with the USMCA, Canada maintains fourteen dairy TRQs, which allow for reduced import tariffs on those products.  According to the panel’s final report, since 1995, Canada has reserved access to 85–100% of those dairy TRQs exclusively for Canadian dairy processors—a supply side party in Canada’s dairy market—disallowing equal TRQ access to retailers—a demand side party.  The panel found that Canada’s practice of reserving TRQs for processors was in violation of USMCA Article 3.A.2.11(b) in failing to “ensure that” the country’s practice “does not . . . limit access to an allocation to processors.”  For background, see ALWR—May 28, 2021, “U.S. Initiates Formal USMCA Trade Dispute with Canada Over Tarif-Rate Quotas.”

Eighth Circuit Remands Tyson COVID-19 Negligence Case to State Court, Finds No Federal Jurisdiction Under Defense Production Act
On December 30, 2021, U. S. Court of Appeals for the Eighth Circuit issued an opinion remanding to state court two cases asserting negligence claims against Tyson Foods, Inc. for the COVID-19-related deaths of individuals who worked at Tyson’s Waterloo, Iowa plant.  Fernandez v. Tyson Foods Inc, et al, No. 21-1012; Hus Buljic, et al v. Tyson Foods Inc, et al, No. 21-1010.  The two cases were filed in the Black Hawk County District Court and removed by Tyson to the U.S. District Court for the Northern District of Iowa, which found that Tyson had failed to establish federal question jurisdiction for the plaintiffs’ state-law tort claims.  Fernandez v. Tyson Foods, Inc., No. 6:20-cv-02079; Buljic v. Tyson Foods, Inc., No. 6:20-cv-02055.  Tyson argued that the company was entitled to federal jurisdiction because it was acting at the direction of a federal officer under the Defense Production Act (DPA), authorized by Executive Order (E.O. 13917 of Apr 28, 2020).  The circuit court disagreed, finding that the executive order did not establish that Tyson was performing a basic governmental task,” but only designated the food and agriculture sector as “critical infrastructure,” thus encouraging sector companies to maintain regular operations and establishing a basis on which to provide them assistance.  The circuit court then affirmed the district court’s remand of the case to state court.  See also ALWR—April 30, 2020, “President Delegates Defense Production Act Authority to USDA Secretary to Ensure Continued Supply of Meat and Poultry” and Understanding Executive Order 13917—Delegating Defense Production Act Authority to USDA for Food Supply Chain Resources.

Right to Farm: North Carolina Appellate Court Upholds State’s Amended Right to Farm Law
On December 21, 2021, the North Carolina Court of Appeals issued an opinion upholding the North Carolina’s right to farm statute, which was amended in 2017 (HB 467) and 2018 (SB 711), in a suit challenging the statute’s facial constitutionality under the North Carolina state constitution equivalency of the federal constitution’s Due Process Clause.  Rural Empowerment Ass’n for Cmty. Help v. State of N.C., No. COA21-175.  The court found that the statute’s purpose was within the state’s interest of protecting agricultural activity to further “production of food, fiber, and other products.”  The court further determined that the statute’s alleged interference with a landowner’s enjoyment of property was reasonable and that the statute was within the state legislature’s power to enact.  The court then upheld the trial court’s order dismissing the case.  For related background, see ALWR—Nov. 20, 2020, “North Carolina Swine Production Facility Nuisance Verdict Upheld On Appeal and Smithfield Announced Unspecified Settlement of Claims” and ALWR—June 27, 2019, “Lawsuit Challenges North Carolina Farm Nuisance Protections.”

Conservation: Department of Interior Seeks Public Comment on American Conservation and Stewardship Atlas, Hosts Listening Sessions
On January 4, 2022, the U.S. Department of the Interior (DOI) published notice of a request for public comment and public listening session in the Federal Register titled, “Request for Information To Inform Interagency Efforts To Develop the American Conservation and Stewardship Atlas” (87 FR 235).  Also announced by the agency and issued in conjunction with the U.S. Department of Agriculture (USDA), Council on Environmental Quality (CEQ), and U.S. Department of Commerce (DOC), the notice seeks public comment on the development of the American Conservation and Stewardship Atlas, which the agencies will create to display land and water conservation standards.  The atlas is part of the America the Beautiful initiative, which aims to “conserve, connect, and restore” 30% of U.S. lands and waters by 2030.  The agencies will host three 90-minute public listening sessions, which will livestreamed at doi.gov/events:

Registration is required to comment during the sessions.  The 60-day public comment period closes March 4, 2022.

Water Quality: Two Reports Take Stock of Pennsylvania’s Progress Towards 2025 Chesapeake Bay Goals
In December 2021, with no press release, the Pennsylvania Department of Environmental Protection released its annual report on Pennsylvania’s Chesapeake Bay clean-up progress titled “Pennsylvania’s 2020 Chesapeake Bay Progress Report.” The report recounts 2020 progress of four million pounds of nitrogen reductions, four new completed Countywide Action Plans (CAPs), 26 more county agreements to implement CAPS in 2021.  The report also states that “Pennsylvania is at an unprecedented turning point in improving its share of the Chesapeake Bay Watershed.”  However, on January 5, 2022, the Chesapeake Bay Foundation released a report titled “2021 Chesapeake Bay State of the Blueprint,” outlining its account of the progress of Pennsylvania, Maryland, and Virginia towards the 2025 goals. It states that “Pennsylvania is not on track to achieve its 2025 pollution-reduction targets, and the Commonwealth is significantly behind in implementing the practices necessary to close the gap. More than 90 percent of its remaining pollution reductions must come from agriculture.”

CENTER PROGRAMS & RESOURCES 

 Agricultural Law Podcast: 

Weekly Episode #200. OSHA Vaccination Mandate Immediately Stayed by Federal Court & EPA and Army Published “Waters of the United States” Proposed Rule (Nov. 24, 2021).

Special Episodes #13–15. Three-Part Series on Pennsylvania Milk Marketing Board:

Events: 

2nd Annual Pennsylvania Farm Show Agricultural Law Symposium.  Symposium power-points from the four hours of educational webinars conducted on Jan. 11 and 13, 2022 are available on the Center’s website and videos for on-demand viewing will be posted shortly.

Feb. 1-3, 2022: 2022 Mid-Atlantic Fruit and Vegetable Convention, Hershey, PA. Center Staff Attorney Jackie Schweichler will present on Legal Liability Risks from Business Invitees on the Farm (Feb 2 at 11:00 a.m.) and Legal Considerations for Agritourism (2:30 p.m.).

Feb. 1–3, 2022: Pennsylvania Dairy Summit, Lancaster, PA. Center Staff Attorney Brook Duer will present on Feb. 2 on Protecting Yourself from Animal Activism (10:40 a.m.).

Feb. 10–12, 2022: PASA Sustainable Agriculture’s 2022 Sustainable Agriculture Conference, Lancaster, PA.  Virtual Pre-Conference from Jan. 4 to 28. Center Staff Attorney Brook Duer will present on Feb. 12 on Direct Sale of Raw and Processed Specialty Crop Products: Legal Liabilities and Contracting (9:00 a.m.).

Connect with the Center at aglaw.psu.edu, Facebook, or Twitter @AgShaleLaw 

Top #AgLaw HotLinks Jan. 3–7, 2022    

GMO Labeling Is Finally Here (Sort Of), Politico

Top 10 Ag Law, Policy Developments of 2021 To Watch in 2022, Farm Progress

U.S. Supreme Court to Review Year-Round E15 Friday, Brownfield

Both Sides of RFS Issue Testify Before EPA Hearing Tuesday, Brownfield

The USDA’s New Labeling for Genetically Modified Foods Goes Into Effect Jan. 1. Here’s What You Need To Know, The Washington Post

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

Agricultural Law & Policy Resources of Interest: 

Academic & Government Resources

Media & Industry Resources

Penn State News, Research & Resources

 Weekly Featured Graphics:

USDA AMS, Dairy: World Markets and Trade, Dairy Production and Trade Developments (Dec. 2021).

Agriculture-Related Legislative Hearings & Reports:

U.S. House Agriculture Committee Hearing, Implications of Electric Vehicle Investments for Agriculture and Rural America, Wednesday, January 12, 2022, 10:00 a.m.

2021 U.S. House Agriculture Committee hearings:

Climate Change and the U.S. Agriculture and Forestry Sectors (Feb. 25, 2021).

A Look at Food Insecurity in America (Mar. 11, 2021).

A Hearing to Review the State of Black Farmers in the U.S. (Mar. 25, 2021).

Rural Broadband—Examining Internet Connectivity Needs and Opportunities in Rural America (Apr. 20, 2021).

Title II Conservation Programs: Exploring Climate Smart Practices (May 12, 20210.

The Future of SNAP: Moving Past the Pandemic (May 26, 2021).

Examining Opportunities for Growth and Investment in Rural America (June 15, 2021).

Markup of Commodity Futures Trading Commission Whistleblower Program (June 16, 2021).

1890 Land Grant Institutions: Investing for Agricultural Resiliency, Equity, and Global Impact (June 16, 2021).

A Hearing to Review the Efficacy of the Farm Safety Net (June 23, 2021).

Supply Chain Recovery and Resiliency: Small Producers and Local Agricultural Markets (June 30, 2021).

Examining the SNAP Benefit Cliff (July 12, 2021).

The U.S. Wood Products Industry: Facilitating the Post COVID-19 Recovery (July 21, 2021).

State of the Beef Supply Chain: Shocks, Recovery, and Rebuilding (July 28, 2021).

21st Century Food Systems: Controlled Environment Agriculture’s Role in Protecting Domestic Food Supply Chains and Infrastructure (July 29, 2021).

Voluntary Carbon Markets in Agriculture and Forestry (Sept. 23, 2021).

A Hearing to Review the State of the Livestock Industry (Oct. 7, 2021).

Agricultural Biotechnology: 21st Century Advancements and Applications (Oct. 26, 2021).

The Immediate Challenges to our Nation’s Food Supply Chain (Nov. 3, 2021).

Hunger Among Veterans and Servicemembers: Understanding the Problem and Evaluating Solutions (Nov. 10, 2021).

A Look at the Renewable Economy in Rural America (Nov. 16, 2021).

Trade Policy and Priorities (Nov. 17, 2021).

Review of USDA Nutrition Distribution Programs (Dec. 8, 2021).

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:

Agriculture Department and Justice Department Issue Shared Principles and Commitments to Protect Against Unfair and Anticompetitive Practices (Jan. 3, 2022)

USDA Announces Additional Farm Service Agency and Rural Development State Directors (Jan. 4, 2022).

Statement by Agriculture Secretary Tom Vilsack on USMCA Dairy Panel Ruling (Jan. 4, 2022).

USDA Announces Increased Funding to Support School Meals and to Help Continue Serving Healthy Meals to Kids (Jan. 7, 2022).

USDA AGENCY PRESS RELEASES: 

Agricultural Marketing Service (AMS)

USDA Settles a Packers and Stockyards Case Against Mohammad Aziz (Jan. 4, 2022).

USDA Settles a Packers and Stockyards Case against Clinton Stockyards Inc. (Jan. 4, 2022).

USDA Settles a Packers and Stockyards Case against Stillwell Livestock Auction LLC (Jan. 5, 2022).

USDA Settles Packers and Stockyards Act Case Against Mark A. Oberly, d.b.a. Oberly Brothers Livestock (Jan. 5, 2022).

Agricultural Research Service (ARS)

USDA’s Systematic Entomology Laboratory Leads Acquisition for One of the World’s Largest Private Beetle Collections (Jan. 5, 2022).

Animal and Plant Health Inspection Service (APHIS)

APHIS Posts Investigative and Enforcement Services Annual Enforcement Data Reports (Jan. 7, 2022).

Economic Research Service (ERS)

Irrigation Organizations: Drought Planning and Response (Jan. 6, 2022).

Farm Service Agency (FSA)

USDA Announces January 2022 Lending Rates for Agricultural Producers (Jan. 3, 2022).

Food and Nutrition Service (FNS)

USDA Announces Approval of D-SNAP for Kentucky Disaster Areas (Jan. 4, 2022).

USDA Announces Increased Funding to Support School Meals and to Help Continue Serving Healthy Meals to Kids (Jan. 7, 2022).

Food Safety and Inspection Service (FSIS)

Constituent Update – January 7, 2022 (Jan. 7, 2022).

Foreign Agriculture Service (FAS)

Statement by Agriculture Secretary Tom Vilsack on USMCA Dairy Panel Ruling (Jan. 4, 2022).

Export Sales to Unknown Destinations [Soybeans] (Jan. 5, 2022).

Export Sales to Mexico [Soybeans] (Jan. 6, 2022).

Export Sales to Mexico and Unknown Destinations [Corn and Soybeans] (Jan. 7, 2022).

National Institute of Food and Agriculture (NIFA)

Fiscal Year 2022 Veterinary Shortage Situation Areas Now Available (Jan. 4, 2022).

NIFA Invests in Professional Development for Agricultural Literacy (Jan. 5, 2022).

NIFA Invests in Agricultural Workforce Training Grants (Jan. 5, 2022).

Risk Management Agency (RMA)

USDA Announces Details of New Insurance Option for Conservation-Minded Corn Farmers (Jan. 5, 2022).

Rural Development

USDA Announces Additional Farm Service Agency and Rural Development State Directors (Jan. 4, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 3–7, 2022): 

Agricultural Marketing Service

87 FR 920 Notice: “2022 Rates for Grain Inspection Services Under the United States Grain Standards Act” (Jan. 7, 2022).

Agriculture Department  

87 FR 921 Notice: “Privacy Act of 1974; New System of Records [Called ‘USDA Reasonable Accommodations and Personal Assistance Services (RAPAS)’]” (Jan. 7, 2022).

Animal and Plant Health Inspection Service

87 FR 29 Final Rule: “Importation of Sheep, Goats, and Certain Other Ruminants; Correction” (Jan. 3, 2022).

Farm Credit Administration

87 FR 434 Notice: “Sunshine Act Meetings [January 13, 2022, Portions Open to the Public]” (Jan. 5, 2022).

Fish and Wildlife Service

87 FR 109 Notice— Comment Period: “Endangered and Threatened Wildlife and Plants; Recovery Permit Applications” (Jan. 3, 2022).

Food and Drug Administration

87 FR 913 Proposed Rule—Comment Period: “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Relating to Agricultural Water; Proposed Rule; Public Meetings; Request for Comments” (Jan. 7, 2022).

Health Resources and Services Administration

87 FR 103 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection: Public Comment Request Rural Health Clinic COVID-19 Reporting Portal, OMB No. 0906-0056-Revision” (Jan. 3, 2022)

Interior Department

87 FR 235 Notice—Comment Period: “Request for Information To Inform Interagency Efforts To Develop the American Conservation and Stewardship Atlas” (Jan. 4, 2022).

Labor Department

87 FR 994 Notice—Comment Period: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; National Agricultural Workers Survey” (Jan. 7, 2022).

Office of Partnerships and Public Engagement

87 FR 68 Notice—Comment Period: “Notice of Request for Approval of an Information Collection [for Current USDA/1890 National Scholars Program Collection]” (Jan. 3, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:   

H.R.5977 “To amend the Controlled Substances Act regarding marihuana, and for other purposes.” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6028 “To address the supply chain backlog in the freight network at United States ports, and for other purposes.” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6100 “To amend the Animal Welfare Act to increase enforcement with respect to violations of that Act, and for other purposes.” Referred to the Subcommittee on Livestock and Foreign Agriculture (Jan. 4, 2022).

H.R.6147 “Driftless Area Landscape Conservation Initiative Act” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6163 “To require the Secretary of Agriculture to direct a study on soil health of Federal lands, and for other purposes.” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6203 “To amend the Food and Nutrition Act of 2008 to allow for blended workforces to carry out the supplemental nutrition assistance program under certain conditions.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Jan. 4, 2022).

H.R.6232 “To delay the implementation of a rule relating to the importation of sheep and goats and products derived from sheep and goats, and for other purposes.” Referred to the Subcommittee on Livestock and Foreign Agriculture (Jan. 4, 2022).

H.R.6250 “Protecting America’s Meatpacking Workers Act of 2021” Referred to the Subcommittee on Livestock and Foreign Agriculture (Jan. 4, 2022).

H.R.6272 “College Student Hunger Act of 2021” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Jan. 4, 2022).

H.R.6317 “To amend the Small Business Act to address the participation of cooperatives in the program carried out under section 7(a) of that Act, and for other purposes.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Jan. 4, 2022).

H.R.6334 “SNAP Tribal Food Sovereignty Act of 2021” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Jan. 4, 2022).

H.R.6336 “Western Wildfire Support Act of 2021” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6337 “Biking on Long-Distance Trails Act” Referred to the Subcommittee on Conservation and Forestry (Jan. 4, 2022).

H.R.6338 “To amend the Food and Nutrition Act of 2008 to permit supplemental nutrition assistance program benefits to be used to purchase additional types of food items.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Jan. 4, 2022).

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

S.3439 “To direct the Secretary of Agriculture to promulgate regulations modifying labeling requirements for beef and beef food products.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Jan. 4, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Ag Department Invites Proposals For Federal Grants To Strengthen Market For Vegetable, Fruit, Nut, Nursery Specialty Crops (Jan. 4, 2022).

Secretary Of Agriculture: Pennsylvania Farm Show Is Harvesting Investments In Future, Recognizes Youth At 2022 Show Opening (Jan. 8, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 2—Jan. 8, 2022):          

Department of Agriculture

52 Pa.B. 244 Notice: “Controlled Plant and Noxious Weed Committee Virtual Public Meeting [on Jan. 20, 2022].”

Department of Environmental Protection

52 Pa.B. 245 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”

PENNSYLVANIA LEGISLATURE:      

SB 979 “An Act amending . . . the Alternative Energy Portfolio Standards Act, further providing for short title, for definitions and for alternative energy portfolio standards; providing for Zero Emissions Certificate Program and for decarbonization; and establishing the ZEC Fund.” Referred to Consumer Protection and Professional Licensure [Senate] (Jan. 4, 2022).

HB 2212 “An Act repealing the act of September 1, 1965 (P.L.420, No.215), entitled ‘An act for the protection of the public health, and to prevent fraud and deception in the manufacture, sale, offering for sale, exposing for sale, and possession with intent to sell, of adulterated or deleterious frozen desserts, providing for licensing, authorizing and regulating the manufacture and sale of frozen desserts, conferring powers and imposing duties upon the Department of Agriculture, prescribing penalties, providing for the enforcement thereof, and making repeals.’” Referred to Agriculture and Rural Affairs [House] (Jan. 5, 2022).

Written by:           

Audry Thompson—Research Assistant
Noah Gochnauer—Research Assistant
Brook Duer—Staff Attorney