June 6, 2022

Agricultural Law Weekly Review—Week Ending June 3, 2022

Food Policy: USDA Announces “Framework to Transform Food Systems” 🌾
On June 1, 2022, the U.S. Department of Agriculture announced details of a set of actions collectively called a “Food Systems Transformation” framework, funded by American Rescue Plan Act and other pandemic relief legislation, to serve the purposes announced in Executive Order 14017 (America’s Supply Chains) and “to benefit consumers, producers and rural communities by providing more options, increasing access, and creating new, more, and better markets for small and mid-size producers.”  The initial announcement outlined over $3 billion of investment in at least 16 USDA programs to serve those objectives.

Agricultural Antitrust: Federal Right to Repair Litigation Against Deere & Company Consolidated
On June 1, 2022, the United States Judicial Panel on Multidistrict Litigation entered an Order establishing that the United States District Court for the Northern District of Illinois, Judge Iain D. Johnston, shall be the federal district court where all lawsuits filed in federal district courts against Deere & Company making the following allegations shall be consolidated and conducted, regardless of where initially filed: “allegations that, through various anticompetitive practices, Deere has monopolized the market for repair and maintenance services for Deere agricultural equipment equipped with engine control units by restricting access to necessary repair-related software and diagnostic tools.”  The Order lists an initial six cases from federal district courts in Alabama, Illinois, Oklahoma, and Tennessee to be consolidated and acknowledges six additional pending cases to be potentially consolidated through future orders. The consolidated litigation shall be captioned In Re: Deere & Company Repair Services Antitrust Litigation, MDL No. 3030 (N.D. Ill.).

COVID-19: JBS Foods Settles with OSHA Over 2020 Plant Violations
On May 27, 2022, the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) announced a settlement with JBS Foods USA (JBS) arising from enforcement actions taken for “failures to protect workers from coronavirus hazards” related to April and May 2020 inspections and ultimate shutdowns of JBS’ plants in Greely, Colorado and Green Bay, Wisconsin. The settlement includes a $14,502 fine and a set of requirements to be implemented at seven JBS plants in Colorado, Illinois, Nebraska, Pennsylvania, Texas and Wisconsin, including engaging third-party expert panels to develop infectious disease preparedness plans.

WOTUS: EPA Science Advisory Board Convenes on Proposed Revised WOTUS Rule
On June 2, 2022, the U.S. Environmental Protection Agency’s Science Advisory Board concluded a three-day meeting deliberating on “the adequacy of the scientific and technical basis” for the December 7, 2021 proposed revised WOTUS rule (86 FR 69372).  An advisory report of its findings is not yet issued, however a draft report prepared from preparatory work for this meeting was prepared.

Water Quality: High-Resolution Imagery of Land Use Change in Chesapeake Bay Watershed Released
On May 17, 2022, the Chesapeake Bay Program, the U.S. Geological Survey, the Chesapeake Conservancy and the University of Vermont announced the release of the free, publicly-accessible and interactive “Very High- Resolution Land Use/Land Cover and Change Data,” which reflects land cover and land use change 30 times higher than satellite imagery previously used, across 99,000 square miles and 206 counties of the Chesapeake Bay watershed between the years 2013-14 and 2017-18.  The on-line data set and imagery is contained at “CBP Land Use/Land Cover Data Project” website and includes a 61-page overview of the project and a recorded webinar. Four of the seven largest increases in impervious surface were the Pennsylvania counties of Lancaster (#2; 2,424 acres), Chester (#4; 2,002 acres), York (#5; 1,770 acres), and Cumberland (#6; 1,763 acres).

Agricultural Finance: Outdated Federal Flood Insurance Guidance Updated
On May 31, 2022, the Farm Credit Administration, along with four other federal entities involved in administering the mandatory federal flood insurance mandate for mortgage loans made by federally regulated lending institutions, published a revised version of federal guidance titled, “Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding Flood Insurance.” (87 FR 3286).  This is the first revision of this primary federal guidance on flood insurance since 2011, reflecting many subsequent statutory and regulation changes.

Food Labeling: Kansas Enacts “Fake Meat Labeling” Law
On May 5, 2022, Kansas Governor Laura Kelly signed into law Kansas SB 261, informally named the “Fake Meat Labeling Bill,” requiring, among other things, that as of July 1, 2022, alternative meat products sold in Kansas using meat terms will be considered misbranded if without a disclaimer that the product does not contain meat in a prominent and conspicuous font size in close proximity to the meat term. Disclaimers can include vegetarian, vegan, meatless, meat-free, plant-based or other terms approved by the Kansas Secretary of Agriculture.

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 May 30 – June 3, 2022:

USDA Forecasts Record Farm Exports in FY 2022, Farm Policy News

USDA Investing $5.1M to Address Antimicrobial Resistance, Meat & Poultry

Wyoming Chalks a Win For Federal Lands Grazing, The Fence Post

APHIS Provides $400M For Avian Flu Response, FarmProgress

Dairy Group Seeks Clarification on Milk Pricing Changes, Capital Press

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., Lending for Livestock, Credit for Crops: Strict Foreclosure, Micah Brown (May 31, 2022).

Nat’l Agric. Law Ctr., Procedures: The Routes that a Dispute Can Take, Samantha Mikolajczyk (June 2, 2022).

Agric. Law & Tax’n Blog, Recent Court Decisions Involving Taxes and Real Estate, Roger A. McEowen (May 30, 2022).

Univ. Md. Risk Mgmt. Educ. Blog, Recent Wind Farm Decision Highlights Difference in State Processes, Paul Goeringer (June 1, 2022).

Ohio St. Univ. Ext. Farm Off. Blog, The Perils of Partition – The Forced Sale of Land (Part 1), Robert Moore (May 31, 2022).

Tex. A&M Agric. Law Blog, FREE Direct Beef Sales Programs, Tiffany Dowell (May 30, 2022).

Hemp Benchmarks, Where Does the U.S. Hemp Industry Go From Here? (May 11, 2022)

Courthouse News Service, Biofuels remain heavily subsidized, even as environmentalists turn against them (June 4, 2022).

Chesapeake Bay Program, What we’ve learned from exploring a century of nitrogen pollution (June 6, 2022).

USGS, Nitrogen in the Chesapeake Bay Watershed—A Century of Change,1950-2050. 

Penn State News, Research & Resources:

PSU Ext., 2022 Pennsylvania Vegetable Disease Update for June 1 (June 1, 2022).

PSU Ext., Hay Herbicide Options After 1st Cutting (June 1, 2022).

PSU Ext., Pokeweed Control in Corn and Soybean (June 1, 2022).

PSU Ext., Re-calibrating the Pre-Sidedress Soil Nitrate Test for Corn (May 31, 2022).

PSU Ext., Potato Leafhoppers Have Arrived in Pennsylvania Alfalfa Fields (May 31, 2022).

PSU Ext., Keep Your Eye on Fusarium Head Blight Risk in Pennsylvania (May 31, 2022).

Three honored for their commitment to diversity in College of Ag Sciences (June 3, 2022).

Penn State Extension offers webinar on food safety for volunteers (June 1, 2022).

Managing habitat for flowering plants may mitigate climate effects on bee health (June 1, 2022).

Biodiverse ‘keystone food spaces’ can help meet UN’s ‘Zero Hunger’ goal (May 31, 2022).

Agriculture-Related Legislative Hearings & Reports:

U.S. House Ag. Comm., A 2022 Review of the Farm Bill: Economic Perspectives on Title I Commodities and Title XI Crop Insurance (June 9, 2022).

U.S. House Ag. Comm., A 2022 Review of the Farm Bill: Stakeholder Perspectives on SNAP (June 8, 2022).

Senate Comm. On Ag., Nutrition, and Forestry, The Western Water Crisis: Confronting Persistent Drought And Building Resilience On Our Forests And Farmland (June 7, 2022).

Senate Comm. On Ag., Nutrition, and Forestry, Agricultural Trade: Priorities And Issues Facing America’s Farmers (June 9, 2022).

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

USDA Has Provided $700 Million to Restore Sustainable Fuel Markets Hit by Pandemic (June 3, 2022).

USDA Partners with States, Territories, and Tribes to Enhance Supply-Chain Resiliency Through Local Food Purchase Programs (June 3, 2022).

USDA Celebrates National Homeownership Month (June 1, 2022).

Biden-Harris Administration Drought Resilience Interagency Working Group Releases Summary Report, Marks One Year Since Interagency Coordination (June 1, 2022).

USDA Announces Framework for Shoring Up the Food Supply Chain and Transforming the Food System to Be Fairer, More Competitive, More Resilient (June 1, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Seeks Cotton Board Nominees (June 3, 2022).

USDA Proposes Revising Pecan Standards (June 2, 2022).

USDA Seeks Nominees for the National Potato Promotion Board (June 2, 2022).

USDA Seeks Nominees for the American Egg Board (June 2, 2022).

USDA Sets Dates for Honey Packers and Importers Research and Promotion Program Continuance Referendum (May 31, 2022).

Animal and Plant Health Inspection Service (APHIS) 

USDA is Notifying the Public that the Secretary of Agriculture is Soliciting Nominations for the National Wildlife Services Advisory Committee (June 3, 2022).

APHIS Publishes Notice for Importation of Commercial Oha Leaves from Nigeria (June 2, 2022).

APHIS Seeking Stakeholder Insight About Strategic Plan Framework (June 2, 2022).

USDA Confirms Highly Pathogenic Avian Influenza in Georgia (June 1, 2022).

History Highlight: APHIS Combats Bovine Spongiform Encephalopathy (June 1, 2022).

Farm Service Agency (FSA)

USDA Announces June 2022 Lending Rates for Agricultural Producers (June 1, 2022).

Food and Nutrition Service (FNS)

USDA Partners with States, Territories, and Tribes to Enhance Supply-Chain Resiliency Through Local Food Purchase Programs (June 3, 2022).

Nutrition Security in Action: A New Blog Series (June 1, 2022).

USDA Announces Framework for Shoring Up the Food Supply Chain and Transforming the Food System to Be Fairer, More Competitive, More Resilient (June 1, 2022).

USDA Opens Applications for Cooperative Agreement to Improve WIC Participation and Retention (May 31, 2022).

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations (June 3, 2022).

USTR Tai Signs Updated Beef Tariff Agreement with Japan (June 2, 2022).

Export Sales to Pakistan (June 1, 2022).

Export Sales to China (June 1, 2022).

Forest Service (FS)

USDA Seeks Proposals for Joint Chiefs’ Landscape Restoration Partnership (June 3, 2022).

National Agriculture Statistics Service (NASS)

Producers have until June 30 to sign up to receive the 2022 Census of Agriculture (June 2, 2022).

National Institute of Food and Agriculture (NIFA)

New CRISPR-Combo Boosts Genome Editing Power in Plants | College of Agriculture & Natural Resources at UMD (June 2, 2022).

USDA NIFA Invests $40M to Improve Dietary Health and Reduce Food Insecurity (June 1, 2022).

Natural Resource Conservation Service (NRCS)

USDA Seeks Proposals for Joint Chiefs’ Landscape Restoration Partnership (June 3, 2022).

Rural Development

USDA Has Provided $700 Million to Restore Sustainable Fuel Markets Hit by Pandemic (June 3, 2022).

USDA Celebrates National Homeownership Month (June 1, 2022).

USDA Announces Framework for Shoring Up the Food Supply Chain and Transforming the Food System to Be Fairer, More Competitive, More Resilient (June 1, 2022).

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

Agricultural Marketing Service

87 FR 33064 Notice—Comment Period: “Revising U.S. Grade Standards for Pecans in the Shell and Shelled Pecans” (June 1, 2022).

87 FR 32328 Proposed Rule: “Honey Packers and Importers Research, Promotion, Consumer Education, and Industry Information Order; Continuance Referendum” (May 31, 2022).

Animal and Plant Health Inspection Service

87 FR 33703 Notice: “National Wildlife Services Advisory Committee; Notice of Solicitation for Membership” (June 3, 2022).

Environmental Protection Agency

87 FR 33480 Notice—Comment Period: “National Environmental Justice Advisory Council; Notification for a Virtual Public Meeting.” (June 2, 2022).

87 FR 33151 Notice: “Local Government Advisory Committee (LGAC) and Small Communities Advisory Subcommittee (SCAS) Meeting” (June 1, 2022).

87 FR 32409 Notice—Comment Period: “Proposed Information Collection Request; Comment Request; Recordkeeping for Institutional Dual Use Research of Concern (iDURC) Policy Compliance (Renewal)” (May 31, 2022).

Fish and Wildlife Service

87 FR 33197 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; U.S. Fish and Wildlife Service Agreements With Friends Organizations” (June 1, 2022).

87 FR 33704 Notice—Comment Period: “Notice of Intent To Issue Forest Order Closing Hyalite Canyon on the Custer Gallatin National Forest to Recreational Shooting” (June 3, 2022).

International Trade Commission

87 FR 33831 Notice: “Raw Honey From Argentina, Brazil, India, and Vietnam” (June 3, 2022).

87 FR 33831 Notice: “Certain Electrolyte Containing Beverages and Labeling and Packaging Thereof; Notice of Commission Request for Written Submissions on Remedy, the Public Interest, and Bonding” (June 3, 2022).

National Institute of Food and Agriculture

87 FR 33117 Notice—Comment Period: “Notice of Intent To Reinstate a Previously Approved Information Collection” (June 1, 2022).

Risk Management Agency

86 FR 29553 Notice: “Notice of Funding Availability; Pandemic Cover Crop Program” (June 2, 2022).

Rural Utilities Service

87 FR 33118 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection; Comments Requested” (June 1, 2022).

87 FR 33119 Notice: “Notice of Request for Extension of a Currently Approved Information Collection; Comments Requested” (June 1, 2022).

U.S. Codex Office

87 FR 33467 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Spices and Culinary Herbs” (June 2, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.7933 “Keep Infant Formula Safe and On the Shelves Act of 2022” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Financial Services, Education and Labor, and Agriculture, 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 3, 2022).

H.R.7764 “To direct the Secretary of Agriculture to provide additional payments under the environmental quality incentives program for implementation of a nutrient management practice, and for other purposes.” Placed on the Union Calendar, Calendar No. 257. (June 3, 2022).

H.R.2606 “SUSTAINS Act” Placed on the Union Calendar, Calendar No. 259. (June 3, 2022).

H.R.2518 “PRECISE Act” Placed on the Union Calendar, Calendar No. 258. (June 3, 2022).

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

No new actions May 31- June 3, 2022.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

No new updates May 31- June 3, 2022.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 22—June 4, 2022): 

Department of Agriculture

52 Pa.B. 3226 Notice: “Program Requirements for Agricultural Plastic Recycling Pilot Program”

Department of Environmental Protection 

52 Pa.B. 3300 Notice: “Clean Water and Drinking Water State Revolving Fund Programs; Federal Fiscal Year 2022 Intended Use Plans; Available for Public Comment”

52 Pa.B. 3279 Notice: “Great Lakes Regional Water Resources Committee Public Meeting”

52 Pa.B. 3279 Notice: “Ohio Regional Water Resources Committee Public Meeting and Hearing”

52 Pa.B. 3278 Notice: “Delaware Regional Water Resources Committee Public Meeting”

PENNSYLVANIA LEGISLATURE:

House Bill 2520 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in race horse industry reform, further providing for State Horse Racing Commission.” Referred to Agriculture and Rural Affairs [Senate] (June 1, 2022).

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