June 14, 2022

Agricultural Law Weekly Review—Week Ending June 10, 2022

Avian Influenza: New Commercial HPAI Detections Plummet Nationally 🌾
As of June 13, 2022, the U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS)’s HPAI 2022 Confirmed Detections database confirmed a total of 369 highly pathogenic avian influenza (HPAI) detections in 36 states (186 commercial flocks and 183 backyard flocks), resulting in 40.09 million birds depopulated. Iowa leads the nation with 13.374 million birds depopulated in 15 infected commercial premises, however there have been no new detections in Iowa since May 4th and the Iowa Department of Agriculture has ended a moratorium on live bird exhibitions effective June 3rd.

  • New commercial poultry premise detections have decreased nationally from a high of 45 during the first week of April to an average of 10.3 per week over the first three weeks of May, 0 in the final full week of May and 1 detection between May 29 – June 4th.
  • On May 27, 2022, USDA Secretary Vilsack authorized the transfer of $400 million from the Commodity Credit Corporation to APHIS to support HPAI response efforts, adding to previous emergency funding of $130 million in March and $263 million in April. USDA has not released information on the totals expended to date for administrative expense and producer indemnity and compensation.
  • Between April 15 through June 7, 2022, USDA APHIS has confirmed17 HPAI infected commercial poultry premise/flocks in Pennsylvania, totaling 4,254,700 birds depopulated. There are 8 infected premises in Lancaster County, totaling 3,767,300 layers, 68,400 broilers, and 19,300 ducks. There are 9 infected premises in neighboring Berks County, totaling 162,400 layers, and 207,000 ducks. Control Zone restrictions have been lifted at 8 Pennsylvania infected commercial premises. On June 9, 2022, the Pennsylvania Department of Agriculture confirmed via memorandum to the Pennsylvania State Association of County Fairs the continuation, until formally revised by subsequent order, the General Quarantine Order of April 16, 2022, prohibiting poultry and poultry product exhibition throughout the 2022 fair season.
  • In terms of states surrounding Pennsylvania, there have been zero commercial poultry detections in Ohio, West Virginia, Virginia, and New Jersey, while New York suffered one (9502 birds), Delaware three (1.438 million birds) and Maryland four (1.762 million birds).

Biofuels: Final Renewable Fuel Standards Volumes set for 2020, 2021, and 2022
On June 3, 2022, the U.S. Environmental Protection Agency (EPA) announced the long-awaited establishment of 2020, 2021, and 2022 renewable fuel volume blending obligations for the refining industry under the Renewable Fuel Standards (RFS) Program.  The most notable was the total 2022 renewable fuel volume of 20.63 million gallons, which consists of 5.63 billion gallons of advanced biofuels and 15 billion gallons of conventional biofuel, i.e. corn ethanol.  Multiple EPA actions were announced simultaneously which resolved multiple outstanding, delayed and challenged EPA decisions re: the RFS program extending back to the prior White House administration, including denying and restoring blending volume obligations waived through small refinery exemptions.  A portion of EPA’s announced RFS actions were required to comply with obligations established in a consent decree entered in Growth Energy v. EPA, D.D.C. No. 1:22-cv-00347.  On May, 23, 2022, EPA published a second consent decree, this one entered in Growth Energy v. Regan, D.D.C. No. 1:22-cv-01191 (D. DC), requiring 2023 RFS volumes to be published as proposed by September 6, 2022, and issued as a final rule by April 28, 2023.  EPA also announced $700 million in CARES Act funding through the Biofuel Producer Program paid as compensation to eligible biofuels producers for COVID-19 related market losses.

International Trade: Tariffs suspended on Asian Solar Cell Imports
On June 6, 2022, President Biden declared an emergency based upon threats to sufficient electricity generation and ordered a 24 month suspension on duty collection on specified solar cells and modules imported from Cambodia, Malaysia, Thailand, and Vietnam.

Pesticides/Herbicides: Glyphosate Prohibition on New York State-Owned Property Regulations Proposed
On June 8, 2022, the New York Department of Environmental Protection announced the publication of a proposed regulation banning the use of glyphosate on state-owned properties, which implements the terms of December 2020 amendments to New York’s Environmental Conservation Law enacted effective December 31, 2021.  Public comment is open from June 8 through August 22, 2022, and a public hearing will be held on August 17, 2022, with registration required.  A list of exceptions to the prohibition exist, only authorized if no actual or significant threat of direct human exposure exists (in instances of maintenance of critical infrastructure, management of roadside vegetation to ensure public safety, habitat management for the control of invasive species and pests of significant public health importance, noxious weeds injurious to ecosystem health, protection of critical native plant species, and research of glyphosate alternatives).

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PROGRAMS & RESOURCES

Agricultural Law Podcasts: 

  1. HPAI Confirmed Throughout the U.S. & USMCA Dispute Continues Over Canadian Dairy Tarif-Rate Quotas (May 23, 2022).

Top #AgLaw HotLinks June 6 – 10, 2022:

Ag-supported Ethanol Tax Credit Bill To Be Discussed In Michigan, Brownfield

RFA: USDA Relief Longtime Coming To Help Producers Reduce Pandemic Effects, Brownfield

2022 Confirmations of Highly Pathogenic Avian Influenza in Commercial and Backyard Flocks, USDA

Carbon Markets, Ag and Oversight, Progressive Farmer

Agriculture secretary approves $400 million for HPAI response, Meat+Poultry

Events:

Understanding Agricultural Law. A free monthly webinar series via ZOOM for general practice attorneys and business advisors of all kinds representing agricultural and rural clients. One hour of substantive CLE credit available for Pennsylvania licensed attorneys at no charge.  Recordings and materials of prior webinars in the series: Understanding the Basics of Agricultural Labor Laws (April 29, 2022) and Understanding the Basics of Leasing Farmland for Energy Development (May 20, 2022).

  • June 24, 2022, noon: Understanding the Basics of Local Land Use Regulation of Agriculture. To properly represent agricultural clients in land use regulation matters requires more specialized knowledge every year about agricultural structures and operations and the soil, stormwater and nutrient management requirements that apply. There are also some unique laws in Pennsylvania protective of agricultural uses, the understanding of which can make you invaluable to your clients. Register.

Legal Planning for Specialty Crop Producers. A free webinar series via ZOOM. Register at any time to watch recordings of past, and attend all future, sessions, as well as receive the webinar materials. Webinars 1–3 (recordings and materials now available to registrants): Mar. 9, 2022: Legal Liability Risks from Business Invitees on the Farm; Mar. 23, 2022: Legal Liabilities in Selling Raw and Processed Specialty Crop Products; Apr. 6, 2022: Business Structures for Operational Resilience and Liability Avoidance. Webinars 4–6 are upcoming:

Dairy Quarterly Legal Webinar. A free quarterly webinar series via ZOOM covering legal and regulatory developments in the U.S. dairy industry from the preceding quarter, plus an in-depth look at a single focus topic of law, regulation or government policy of interest to dairy professionals. One hour of substantive CLE credit available for Pennsylvania licensed attorneys at no charge. More info and registration.

  • July 26, 2022, noon ET.

2nd Quarter of 2022—In addition to a round-up of quarterly legal developments, the focus topic will be labeling of plant-based foods and beverages being manufactured and sold as substitutes for milk and dairy.

  • October 25, 2022, noon ET.

3rd Quarter of 2022—In addition to a round-up of quarterly legal developments, the focus topic will be the upcoming 2023 Farm Bill and the potential implications for the dairy industry.

Agricultural Law & Policy Resources of Interest:  

USDA APHIS, The essential resources on HPAI producer indemnity and compensation:

  1. Process and Procedure
  1. Producer Indemnity (payment for birds and eggs)
  1. Producer Compensation (payment for depopulation, disposal, and disinfection, i.e., “virus elimination”)

Nat’l Agric. Law Ctr., The Legality of Food Labeling Claims: FSIS’s Regulations for Meat and Poultry Labeling, Jana Caracciolo (June 7, 2022).

Agric. Law & Tax’n Blog, Recent Court Cases of Importance to Agricultural Producers and Rural Landowners, Roger A. McEowen (June 9, 2022).

Univ. Md. Risk Mgmt. Educ. Blog, USDA Seeks Comments On Rule To Make Poultry Growing Contracts And Tournaments More Transparent, Nicole Cook (June 7, 2022).

Tex. A&M Agric. Law Blog, June 10, 2022 Weekly Round Up, Tiffany Dowell Lashmet (June 10, 2022).

U. of Ill, Farmdoc Daily, The Continuation of Disaster Programs in U.S. Agriculture: Emergency Relief Program (June 6. 2022), Continued Discussion of Disaster Programs in U.S. Agriculture: Interactions with Crop Insurance (June 7, 2022).

Bay Journal, States challenge findings of Chesapeake computer modeling, Karl Blankenship (June 6, 2022).

U. of MD Center for Environmental Science, Chesapeake Bay Health Score Held Steady in 2021, (June 6, 2022).

Southern Ag Today, While Still Largely Profitable…Crop Producers Putting Historic Amount of Capital at Risk in 2022, Joe Outlaw, Agricultural and Food Policy Center at Texas A&M (June 9, 2022).

Phys.org, Invasive insect that kills grapes could reach California wine region by 2027, Laura Oleniacz, N.C. State (June 9, 2022).

USDA AMS, Measures of Growth in Federal Orders (May 18, 2022).

Penn State News, Research & Resources:

PSU Ext., 2022 Pennsylvania Vegetable Disease Update for June 8 (June 8, 2022).

PSU Ext., 2022 Disease Update: Management for Sooty Blotch and Flyspeck, Fire Blight, and Bacterial Spot (June 7, 2022).

PSU Ext., Sign Up to Receive the 2022 Ag Census (June 7, 2022).

PSU Ext., Postemergence Soybean Herbicide Options (June 7, 2022).

PSU Ext., Giant Ragweed (June 7, 2022).

Preparations underway for Penn State’s 2022 Ag Progress Days (June 10, 2022).

Why state funding matters: Penn State plays critical role for Pa. Agriculture (June 9, 2022).

Agriculture-Related Legislative Hearings & Reports:

Senate Ag, Nutrition, and Forestry Comm., 2023 Farm Bill: Perspectives From The Natural State, (June 17, 2022).

U.S. House Ag. Comm., The Role of Climate Research in Supporting Agricultural Resiliency, (June 15, 2022).

U.S. House Ag. Comm., A 2022 Review of the Farm Bill: Stakeholder Perspectives on Non-SNAP USDA Nutrition Programs, (June 14, 2022).

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

U.S. Department of Agriculture to Invest up to $65 Million in Pilot Program to Strengthen Food Supply Chain, Reduce Irregular Migration, and Improve Working Conditions for Farmworkers (June 10, 2022).

Statement by Agriculture Secretary Tom Vilsack on the Intent to Nominate Doug McKalip to Serve as Chief Agricultural Negotiator (June 8, 2022).

USDA Invests in New HBCU Agribusiness Innovation Center at NC A&T State University (June 8, 2022).

USDA Offering Nationwide Waiver for Infant Formula (June 6, 2022).

USDA Announces $503 Million to Improve Outdoor Recreation and Conservation on National Forests (June 6, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA, New Mexico Sign Local Food Purchase Assistance Cooperative Agreement to Support Local Underserved Food Producers (June 9, 2022).

USDA Announces Texas Joins Local Food Purchase Assistance Cooperative Agreement Program (June 8, 2022).

USDA Announces New Hampshire Signs Local Food Purchase Assistance Cooperative Agreement (June 7, 2022).

USDA Announces Maine Signs Local Food Purchase Assistance Cooperative Agreement and Receives Grant to Improve Reach and Resiliency of Emergency Food System (June 6, 2022).

Agricultural Research Service (ARS)

Genetically Modified Corn Does Not Damage Non-Target Organisms (June 6, 2022).

Animal and Plant Health Inspection Service (APHIS) 

USDA Asks for Help Protecting Citrus in the Lower Rio Grande Valley (June 10, 2022).

History Highlight: APHIS Makes Critical Contributions to the New Department of Homeland Security (June 8, 2022).

Farm Service Agency (FSA)

USDA Fiscal Year 2022 Sugar Program Actions (June 7, 2022).

Food and Nutrition Service (FNS)

USDA Awards Grants to Improve Reach and Resiliency of Emergency Food System (June 6, 2022).

Food Safety and Inspection Service (FSIS) 

World Food Safety Day Spotlights Global Health Threat (June 7, 2022).

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations (June 9, 2022).

Forest Service (FS)

USDA Forest Service Issues Rangeland Management Rule Change for Unauthorized or Excess Grazing (June 9, 2022).

National Institute of Food and Agriculture (NIFA)

USDA Invests in New HBCU Agribusiness Innovation Center at NC A&T State University (June 8, 2022).

Natural Resource Conservation Service (NRCS)

USDA, Army Corps of Engineers Renew Partnership on Infrastructure, Natural Resource Planning (June 9, 2022).

Rural Development

USDA Partners With Reinvestment Fund to Invest $22.6 Million to Increase Equitable Access to Healthy Foods Across Country (June 9, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register  May 16–20, 2022):            

Agricultural Marketing Service

87 FR 35465 Proposed Rule: “National Dairy Promotion and Research Board Reapportionment; Re-Opening of Comment Period” (June 10, 2022).

87 FR 35153 Notice—Comment Period: “Request for Extension of a Currently Approved Information Collection” (June 9, 2022).

87 FR 34814 Proposed Rule—Comment Period: “Poultry Growing Tournament Systems: Fairness and Related Concerns” (June 8, 2022).

87 FR 34980 Proposed Rule—Comment Period: “Transparency in Poultry Grower Contracting and Tournaments” (June 8, 2022).

87 FR 34631 Notice: “Grain Inspection Advisory Committee Meeting” (June 7, 2022).

87 FR 34232 Notice: “National Organic Standards Board: Call for Nominations” (June 6, 2022).

Agriculture Department     

87 FR 35490 Notice: “Submission for OMB Review; Comment Request [USDA Generic Solution for Solicitation for Funding Opportunity Announcements]” (June 10, 2022).

87 FR 35490 Notice: “Submission for OMB Review; Comment Request [Cooperative Wildland Fire Management and Stafford Act Response Agreements.]” (June 10, 2022).

87 FR 34631 Notice: “Submission for OMB Review; Comment Request [Supplemental Nutrition Assistance Program (SNAP) Forms: Applications, Periodic Reporting, and Notices Final Rulemaking: Supplemental Nutrition Assistance Program: 2008 Farm Bill Provisions on Clarification of Split Issuance; Accrual of Benefits and Definition Changes]” (June 7, 2022).

87 FR 34233 Notice: “Submission for OMB Review; Comment Request [Supplemental Nutrition Assistance Program Regulations—Quality Control]” (June 6, 2022).

Animal and Plant Health Inspection Service

87 FR 34632 Notice—Comment Period: “Notice of Availability of a Pest Risk Analysis for the Importation of Fresh Oha Leaves (Pterocarpus mildbraedii) From Nigeria Into the Continental United States” (June 7, 2022).

87 FR 34633 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Mycoplasma Bovis in Bison 2022 Case Control Study” (June 7, 2022).

87 FR 34634 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; National Animal Health Reporting System” (June 7, 2022).

Commodity Credit Corporation

87 FR 34635 Notice: “Domestic Sugar Program-2022-Crop Cane Sugar Marketing Allotments and Cane and Beet Processor Allocations” (June 7, 2022).

Environmental Protection Agency

87 FR 35318 Proposed Rule—Comment Period: “Clean Water Act Section 401 Water Quality Certification Improvement Rule” (June 9, 2022).

87 FR 34795 Rule: “Approval and Promulgation of Implementation Plans; Montana; Whitefish PM10” (June 8, 2022).

87 FR 34203 Rule—Comment Period: “Picarbutrazox; Pesticide Tolerances” (June 6, 2022).

87 FR 34206 Notice—Comment Period: “Teflubenzuron; Pesticide Tolerances” (June 6, 2022).

Fish and Wildlife Service

87 FR 34897 Notice—Comment Period: “Notice of Intent To Prepare an Environmental Impact Statement for the Kauai Island Utility Cooperative Habitat Conservation Plan, Kauai, HI” (June 8, 2022).

87 FR 34228 Proposed Rule: “Subsistence Management Regulations for Public Lands in Alaska-Applicability and Scope; Tongass National Forest Submerged Lands; Correction” (June 6, 2022).

Food and Drug Administration

87 FR 34879 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Mitigation Strategies To Protect Food Against Intentional Adulteration” (June 8, 2022).

Food and Nutrition Service

87 FR 35491 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Supplemental Nutrition Assistance Program Education and Obesity Prevention Grant (SNAP-Ed) National Program Evaluation and Reporting System (N-PEARS)” (June 10, 2022).

Food Safety and Inspection Service

87 FR 35154 Notice: “Elimination of Deadline for Partial Refunds of Overtime and Holiday Inspection Fees for Small and Very Small Establishments” (June 9, 2022).

Foreign Agricultural Service

87 FR 34838 Notice: “Notice of Request for Extension of Currently Approved Information Collection” (June 8, 2022).

Forest Service

87 FR 35097 Rule: “Assessing Fees for Excess and Unauthorized Grazing” (June 9, 2022).

87 FR 34838 Notice: “El Dorado County Resource Advisory Committee” (June 8, 2022).

87 FR 34838 Notice—Comment Period: “Notice of Proposed Administrative Settlement Agreement and Order on Consent for the Mill City Cabin Area of the Mammoth Stamp Mill Site, Inyo National Forest, Mono County, California” (June 8, 2022).

87 FR 34839 Notice: “Missoula Resource Advisory Committee” (June 8, 2022).

87 FR 34636 Notice: “Superior Resource Advisory Committee” (June 7, 2022).

87 FR 34234 Notice—Comment Period: “Request for Information (RFI) Regarding Wildfire Crisis Implementation Plan” (June 6, 2022).

Geological Survey

87 FR 34288 Notice—Comment Period: “Agency Information Collection Activities; Evaluation of the Arctic Rivers Project” (June 6, 2022).

International Trade Administration

87 FR 35501 Notice: “Raw Honey From Argentina, Brazil, India, and the Socialist Republic of Vietnam: Antidumping Duty Orders” (June 10, 2022).

87 FR 35164 Notice: “White Grape Juice Concentrate From Argentina: Postponement of Preliminary Determination in the Countervailing Duty Investigation” (June 9, 2022).

87 FR 34841 Notice: “Ripe Olives From Spain: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2020-2021″ (June 8, 2022).

87 FR 34844 Notice: “Certain Pasta From Italy: Notice of Court Decision Not in Harmony With the Results of Antidumping Duty Administrative Review; Notice of Amended Final Results” (June 8, 2022).

Land Management Bureau

87 FR 35569 Notice—Comment Period: “Notice of Realty Action: Non-Competitive/Modified Competitive Sale of Public Lands in Rio Blanco and Garfield Counties, CO” (June 10, 2022).

87 FR 34900 Notice: “Notice of Proposed Withdrawal Extension and Opportunity for Public Meeting for the Sweetwater River Recreational, Scenic, Riparian, Historic, and Wildlife Area Along the Sweetwater River, Wyoming” (June 8, 2022).

Rural Business-Cooperative Service

87 FR 34840 Notice—Comment Period: “Notice of Request for Comments on a New Information Collection” (June 8, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.8018 “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.” Referred to the House Committee on Agriculture (June 9, 2022).

H.R.8004 “To amend the Food and Nutrition Act of 2008 to restore and standardize work requirements for able-bodied adults enrolled in the supplemental nutrition assistance program.” Referred to the House Committee on Agriculture (June 9, 2022).

H.R.7606 “Meat and Poultry Special Investigator Act of 2022” Supplemental report filed by the Committee on Agriculture (June 9, 2022).

H.R.7813 “Cacao Tree Health Initiative Act of 2022” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (June 8, 2022).

H.R.7812 “Floriculture and Nursery Plant Health Initiative Act of 2022” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (June 8, 2022).

H.R.7768 “Farm Credit Administration Independent Authority Act” H.R.7768 Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (June 8, 2022).

H.R.7765 “American Food Supply Chain Resiliency Act of 2022” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (June 8, 2022).

H.R.7763 “To direct the Secretary of Agriculture to support and incentivize domestic activities to address fertilizer shortages and deficiencies, diversify fertilizer sources, and reduce dependency on foreign sources for fertilizer, and for other purposes.” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (June 8, 2022).

H.R.7752 “Plant Biostimulant Act of 2022” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (June 8, 2022).

H.Res.1156 “Expressing the commitment of the House of Representatives to building on the twenty years of success of the George McGovern-Robert Dole Food for Education and Child Nutrition Program.” Referred to the Committee on Agriculture, and in addition to the Committee on Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned (June 7, 2022).

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

No new actions June 6 – 10, 2022.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Wolf Administration Highlights Summer Food Assistance Programs, Summer Options Available For Children (June 6, 2022).

Agriculture Secretary Announces Funding Available For Agricultural Plastic Recycling Pilot Program (June 6, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 22—June 11, 2022): 

Department of Agriculture

52 Pa.B. 3325 Notice: “Fertilizer Nutrient Values”

Department of Environmental Protection 

52 Pa.B. 3374 Notice: “Availability of Technical Guidance”

52 Pa.B. 3326 Notice: “Applications, Actions and Special Notices”

PENNSYLVANIA LEGISLATURE:

SB1032 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for licensing and regulation of agricultural commodity handlers; creating an Agricultural Commodity Indemnity Fund; and providing for penalties and enforcement.” Removed from table [Senate] (June 8, 2022).

SB960 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for frozen dessert safety; and making a related repeal.” Referred to AGRICULTURE AND RURAL AFFAIRS [House] (June 8, 2022).

SB597 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for water and wastewater asset management plans.” Third consideration and final passage [Senate] (June 7, 2022).

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