April 5, 2022

Agricultural Law Weekly Review—Week Ending March 25, 2022

Animal Welfare: U.S. Supreme Court Will Hear Commerce Clause Challenge to California Prop 12 🌾
On March 25, 2022, the U.S. Supreme Court, for the eighth time since January 7, 2022, considered the Writ of Certiorari filed by the National Pork Producer Council requesting the Court hear its appeal to overturn the Ninth Circuit Court of Appeals’ July 28, 2021, decision that California’s Proposition 12 does not violate the U.S. Constitution’s Commerce Clause.  National Pork Producers Council, et al. v. Karen Ross, No. 21-468.  On March 28, 2022, with a one sentence order, the Court granted the petition and will now proceed to hear and decide the case, potentially before the close of 2022.  No dates for oral argument are yet set. The impact of the U.S. Supreme Court’s ultimate decision may potentially be wide-ranging, with effects far beyond state-mandated animal handling and confinement standards in animal protection agriculture and could permanently alter U.S. Constitutional Law interpreting the legal limits of state and local government actions which have the effect of regulating the conduct of any industry engaged in interstate commerce.

Avian Influenza: Detections in Domestic Poultry
The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) has confirmed highly pathogenic avian influenza (HPAI) detected in domestic poultry in 24 states as of April 4, 2022. APHIS has posted a completely re-tooled database of confirmed detections in domestic poultry, also containing a map, all of which can be manipulated to present and download information in multiple different formats and according to variable criteria.  A map organized by number of birds depopulated, shows the largest outbreaks as follows: Iowa has depopulated over 13.2 million birds at 12 premises, Wisconsin has depopulated over 2.7 million birds at 2 premises, Delaware has depopulated 1.5 million birds at three premises and Maryland has depopulated 1.6 birds at 4 premises and Nebraska has depopulated over 987,000 birds at 2 premises.  Nationwide totals are 118 separate premises/flocks, 72 of which are commercial chickens or turkeys, 46 backyard flocks of mixed species and a total of 22,851,072 birds depopulated.

Water Quality: Center for Biological Diversity Requests Vacatur of 2016 Cadmium Criteria for Aquatic Life
On March 22, 2022, environmental advocacy group Center for Biological Diversity (Center) filed a complaint in the U.S. District Court for the District of Arizona against the U.S. Environmental Protection Agency (EPA) alleging that EPA formulated its 2016 recommended Aquatic Life Criteria for Cadmium, a prominent ingredient in phosphate fertilizer, without consultation from the Services—the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)—in violation of Section Seven of the Endangered Species Act (16 U.S.C § 1536). Center for Biological Diversity v. United States Environmental Protection Administration, No. 4:22-cv-00138.  The complaint cites comments from NMFS on EPA’s draft cadmium criteria that “expressed concerns about EPA’s ‘piecemeal approach’ of foregoing consultation,” particularly regarding the effects of the “less protective chronic criteria” on sea turtles because of their long life span.  The Center seeks vacatur and remand of the 2016 criteria.  The legal theory set forth in this case may be one of first impression and is certainly the first voicing of this legal basis for vacatur since the EPA’s January 11, 2022, admission of long-term ESA compliance deficiencies in the pesticide approval process in its newly implemented “Endangered Species Act Protection Policy.”

International Trade: U.S. and Japan Announce Beef Tariff Safeguard Trigger Agreement
On March 24, 2022, Office of the U.S. Trade Representative (USTR) Secretary Katherine Tai, with U.S. Department of Agriculture (USDA) Secretary Tom Vilsack, announced that the United States and Japan have agreed to a new “three trigger” beef tariff safeguard agreement, which the agencies state will decrease the likelihood that Japan will impose higher tariffs on U.S. beef imports.  The agreement requires that all three “triggers” are met before Japan may impose additional beef tariffs: 1) U.S. beef imports must surpass the original safeguard level established under U.S.-Japan Trade Agreement; 2) Total beef imports from the United States and signatories to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) must surpass the CPTPP safeguard level; and 3) U.S. beef imports in a given year must surpass U.S. beef imports from the previous year.  The countries have yet to finalize the text of the agreement, but, according to the announcement, plan to do so and publish the final agreement at the “soonest, appropriate time.”

Invasive Species: Eleven Counties Added to Pennsylvania Spotted Lanternfly Quarantine
On March 25, 2022, the Pennsylvania Department of Agriculture announced the addition of eleven Pennsylvania counties to its Spotted Lanternfly Quarantine: Adams, Armstrong, Bedford, Centre, Fulton, Indiana, Lycoming, Mercer, Snyder, Union, and Washington.  The additional counties now bring the total number of quarantined counties to forty-five.  The quarantine regulates the movement of the insects and materials that may harbor spotted lanternfly egg masses, nymphs, and adults.  Businesses that operate in or travel through the quarantined areas must obtain a Spotted Lanternfly Permit.

Technology: John Deere Announces Self-Repair Options
On March 21, 2022, agricultural equipment manufacturer Deere & Company, known as John Deere, announced that in May 2022, the company will offer subscription purchase of its Customer Service ADVISOR database directly to customers and independent repair stores.  Previously only available through John Deere dealerships, Customer Service ADVISOR is a digital directory of manuals that allow users to connect their equipment with an electronic data link to take diagnostic readings, clear and refresh codes, and perform limited calibrations.  The company also stated that in in 2023, it will launch additional self-repair measures, including mobile interface functions and software update downloads for select John Deere equipment with embedded controllers and 4G capabilities.

 

CENTER PROGRAMS & RESOURCES

USDA APHIS Resources on HPAI Indemnity:

New at aglaw.psu.edu:

Agricultural Law Podcasts: 

Episode #210, Federal Court Enjoins Iowa’s March 2019 Ag-Gag Law & Tenth Circuit Affirms Dismissal of ‘Product of the USA’ Meat Labeling Lawsuit (Mar. 23, 2022).

Episode #209, Appropriations Act Provides $1 Million for Cattle Contract Library Pilot Program & FDA Approves Food Use for Genetically Altered Cattle (Mar. 15, 2022).

Episode #208, Federal Court Denies Prop 12 Preliminary Injunction & EPA Denies All Objections to Chlorpyrifos Rule (Mar. 10, 2022).

Episode #207, Ag Groups File Suit to Stay Chlorpyrifos Rule & High Path Avian Influenza Confirmed in Commercial Flocks (Feb. 28, 2022).

Episode #206, Pa. Mushroom Co-op Not Entitled to Antitrust Protection & USDA Opens Online Complaint Portal (Feb. 16, 2022).

Events:

Webinar Series: Legal Planning for Specialty Crop Producers: Understanding Liability Protections, Regulatory Processes and Other Legal Risks.  Free webinar series via Zoom for specialty crop producers consisting of 6 sessions, plus 2 recaps / workshops, on the prevention and planning necessary to best avoid contractual, tort, and regulatory liabilities in conducting income-augmenting activities such as direct sales, pick-your-own, value-added processing, or agritourism and agritainment. More info and one-time registration for the entire series is at aglaw.psu.edu.  Registration at any time will entitle you to attend all future sessions as well as to watch the recordings of all past sessions, as well as receive the webinar materials.  Registration ensures you’ll receive reminders and materials, even if your schedule does not permit live attendance.

Webinars 1 – 3

  • Mar. 9, 2022: Legal Liability Risks from Business Invitees on the Farm (registrants have access to the recording).
  • Mar. 23, 2022: Legal Liabilities in Selling Raw and Processed Specialty Crop Products (registrants have access to the recording).
  • Apr. 6, 2022, noon: Business Structures for Operational Resilience and Liability Avoidance.

Webinars 4 – 6

  • Nov. 16, 2022, noon ET: Licensing and Regulatory Obligations in Selling Raw and Processed Specialty Crop Products.
  • Nov. 30, 2022, noon ET: Municipal Law & Zoning for Agritourism / Agritainment, Specialty Crop Processing & Sales.
  • Dec. 14, 2022, noon ET: Statutory Protections/Restrictions: Understanding PA’s Ag Area Security, Right-To-Farm, ACRE, and Clean & Green Laws.

We Conserve PA, Solar Series (4 webinars): More info and registration for the series is at weconservepa.org. Center Staff Attorney Brook Duer will be a presenter and panelist in this series co-presented with Penn State Extension.

*Presented in Gettysburg PA as part of the Pennsylvania Land Conservation Conference.

April 6, 2022, Growing Careers in Agricultural & Food Law: Law Students, presented by the National Agricultural Law Center and American Agricultural Law Association, noon ET, Registration.

Apr. 28, 2022, Penn State Extension Webinar, Farmland Preservation Programs and Techniques in Pennsylvania, noon-1:30 pm, ET. Center Staff Attorney Brook Duer will be a presenter. Registration.

Agricultural Law & Policy Resources of Interest:   

Academic & Government Resources

Media & Industry Resources

Penn State News, Research & Resources

Weekly Featured Graphics:

  1. U. of Ill., Farmdoc Daily, Land Price-to-Rent Ratio and Interest Rates, Mar. 23, 2020).

“The ratio of farmland price to farmland rent is an example of a general type of ratio that relates an asset’s value to the income it generates. . . The specific ratio is [(average US per acre price of agricultural land and buildings) divided by (price index of agricultural services and rents)] . . . This ratio has trended upward, increasing 122% from 7.22 in 1971 to 16.01 in 2021 (see Figure 1).  The upward trend became more pronounced after 2000 as the ratio has increased 69%.”

  1. APHIS Update by USDA APHIS’ Dr. Chrislyn Wood.

 

Agriculture-Related Legislative Hearings & Reports:

U.S. House Ag. Comm., Upcoming Hearing on the Issues Between the Beef Packing Industry, the Cattlemen Ranchers, and the Rising Food Prices, April 27, 2022.

PA Senate Env. Res. Comm., Joint Public Hearing on Economic Impacts of RGGI, Mar. 29, 2022, 10:00 am, Hearing Room 1, N. Office Bldg. Livestreamed.

U.S. House Ag. Comm., 2022 Review of the Farm Bill: The Role of USDA Programs in Addressing Climate Change, recording and materials (recorded Mar. 16, 2022).

U.S. House Ag. Comm., Report: H. Rept. 117-203 – CATTLE CONTRACT LIBRARY ACT OF 2021 (Dec. 7, 2021).

Top #AgLaw HotLinks March 21–25, 2022

These Cattle Ranchers Are Raising Better Beef, Spending Less — And Reducing Carbon Emissions, CNBC

Market Outlook for Edible Beans Is Strong, AgWeek

Landowner Lawyer Fights Against Eminent Domain; Pipeline Hearings to Start in South Dakota, AgWeek

As Sanctions Bite Russia, Fertilizer Shortage Imperils World Food Supply, Reuters

U.S. Egg Prices Rise as Deadly Bird Flu Strikes Ahead of Easter, Bloomberg

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 Expands Cooperative Interstate Shipment Program for Meat Processors in Montana (Mar. 21, 2022).

USDA Urges Communities, Farmers, Ranchers to be Prepared for Severe Weather (Mar. 21, 2022).

USDA Announces More Resources to Increase and Expand Meat and Poultry Processing Capacity (Mar. 25, 2022).

USDA AGENCY PRESS RELEASES:           

Agricultural Marketing Service (AMS)

USDA Issues a Complaint against Clinton Livestock Auction LLC and Jack and Sandra Berry (Mar. 22, 2022).

USDA Settles a Packers and Stockyards Case against The Thomasville Stockyard LLC (Mar. 22, 2022).

Agricultural Research Service (ARS)

Benefits of Early Calving Are Increasing Due to Late Winter Warming (Mar. 22, 2022).

Animal and Plant Health Inspection Service (APHIS) 

APHIS Seeks Comment on Draft Pest Risk Assessment for the Importation of Dragon Fruit from Colombia (Mar. 21, 2022).

Prince Edward Island Table Stock Potato Imports to Resume into The United States (Mar. 24, 2022).

USDA Confirms Highly Pathogenic Avian Influenza in Minnesota (Mar. 26, 2022).

Food Safety and Inspection Service (FSIS) 

Constituent Update – March 25, 2022 (Mar. 25, 2022).

Foreign Agriculture Service (FAS) 

Export Sales to Unknown Destinations [Soybeans] (Mar. 22, 2022).

Ambassador Visits School Feeding Site in Kenya (Mar. 23, 2022).

Export Sales to Unknown Destinations [Soybeans] (Mar. 24, 2022).

U.S., Japan Reach Deal on Beef Tariff Safeguard (Mar. 24, 2022).

Export Sales to China [Soybeans] (Mar. 25, 2022).

USDA Accepting Applications for United Kingdom Trade Mission (Mar. 25, 2022).

National Institute of Food and Agriculture (NIFA)

Women’s History Month Spotlight: Dr. Racheal McKinney (Mar. 21, 2022).

How NIFA Supports Nation’s Farmers and Ranchers (Mar. 21, 2022).

Women’s History Month Spotlight: Dr. Lorrene Ritchie (Mar. 21, 2022).

Community Foods Projects Improving National Food Security (Mar. 22, 2022).

Evolving the National Reporting System (Mar. 23, 2022).

NIFA Invests over $6M to Support Foundational Knowledge of Ag Production Systems (Mar. 23, 2022).

Rural Development

USDA Extends to May 11 the Application Deadline for Meat and Poultry Processing Expansion Program Funding (Mar. 25, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register  March 21–25, 2022):            

Agricultural Marketing Service

87 FR 16371 Final Rule: “National Organic Program; National List of Allowed and Prohibited Substances-Crops and Handling from October 2019 NOSB” (Mar. 23, 2022).

Agriculture Department     

87 FR 15908 Notice: “Submission for OMB Review; Comment Request [Generic Clearance for Survey Research Studies]” (Mar. 21, 2022).

87 FR 16162 Notice: “Submission for OMB Review; Comment Request [WIC Nutrition Assessment and Tailoring Study In-Person Site Visit Data Collection]” (Mar. 22, 2022).

87 FR 17063 Notice: “Submission for OMB Review; Comment Request [Child and Adult Care Food Program (CACFP)]” (Mar. 25, 2022).

87 FR 17063 Notice: “Submission for OMB Review; Comment Request [The Second National Household Food Acquisition and Purchase Survey (FoodAps-2)]” (Mar. 25, 2022).

Engineers Corps

87 FR 15968 Notice: “Inland Waterways Users Board Meeting Notice [Apr. 20, 2022]” (Mar. 21, 2022).

Environmental Protection Agency

87 FR 15893 Rule: “Alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts (CAS No. 157627-92-4); Tolerance Exemption” (Mar. 21, 2022).

87 FR 16133 Notice—Comment Period: “Receipt of Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities-February 2022” (Mar. 22, 2022).

87 FR 16182 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses-February 2022” (Mar. 22, 2022).

87 FR 16471 Notice—Comment Period: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Labeling Requirements for Certain Minimum Risk Pesticides Under FIFRA Section 25(b) (Renewal)” (Mar. 23, 2022).

87 FR 16470 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients-February 2022” (Mar. 23, 2022).

87 FR 17013 Rule: “Butoxypolypropylene glycol, et al.; Exemption from the Requirement of a Tolerance” (Mar. 25, 2022).

Executive Office of the President

87 FR 16981 Proclamation: “National Agriculture Day, 2022” (Mar. 24, 2022).

Federal Crop Insurance Corporation

87 FR 15839 Rule: “Pandemic Cover Crop Program; Correction” (Mar. 21, 2022).

Fish and Wildlife Service

87 FR 16320 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d) Rule for Sand Dune Phacelia and Designation of Critical Habitat” (Mar. 22, 2022).

87 FR 16442 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Endangered Species Status for Northern Long-Eared Bat” (Mar. 23, 2022).

Food and Drug Administration

87 FR 16394 Rule: “Milk and Cream; Petition for an Administrative Stay of Action: Definitions and Standards of Identity for Yogurt, Lowfat Yogurt, and Nonfat Yogurt” (Mar. 23, 2022).

87 FR 16983 Rule: “Food Labeling [Correction of Nutrition Labeling of Dietary Supplements” (Mar. 25, 2022).

Food Safety and Inspection Service

87 FR 16105 Proposed Rule—Comment Period: “Privacy Act Exemption for AssuranceNet” (Mar. 22, 2022).

87 FR 16163 Notice: “Privacy Act of 1974; New System of Records” (Mar. 22, 2022).

Health and Human Services Department

87 FR 16750 Notice: “Meeting of the Tick-Borne Disease Working Group [Apr. 27 and 28, 2022]” (Mar. 24, 2022).

International Trade Administration

87 FR 16458 Notice: “Organic Soybean Meal from India: Final Affirmative Determination of Sales at Less Than Fair Value” (Mar. 23, 2022).

87 FR 16453 Notice: “Organic Soybean Meal from India: Final Affirmative Countervailing Duty Determination” (Mar. 23, 2022).

87 FR 16455 Notice: “Fresh Garlic from the People’s Republic of China: Final Results and Final Rescission, In Part, of the 26th Antidumping Duty Administrative Review; 2019-2020″ (Mar. 23, 2022).

International Trade Commission

87 FR 17103 Notice: “Lemon Juice from Argentina; Scheduling of a Full Five-Year Review” (Mar. 25, 2022).

National Institutes of Health

87 FR 17096 Notice: “National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting [Apr. 27-29, 2022]” (Mar. 25, 2022).

Reclamation Bureau

87 FR 16763 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Diversions, Return Flow, and Consumptive Use of Colorado River Water in the Lower Colorado River Basin” (Mar. 24, 2022).

Rural Housing Service

87 FR 17065 Notice: “Section 514 Off-Farm Labor Housing Loans and Section 516 Off-Farm Labor Housing Grants to Improve, Repair, or Make Modifications to Existing Off-Farm Labor Housing Properties for Fiscal Year 2022; Correction” (Mar. 25, 2022).

U.S. Codex Office

87 FR 16704 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Contaminants in Foods [Apr. 19, 2022]” (Mar. 24, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.4521 “America COMPETES Act of 2022 [Scientific Research, Economic Competitiveness, and Other Measures]” Considered by Senate (Mar. 24, 2022).

H.R.6936 “Stamp Out Invasive Species Act” Referred to the House Subcommittee on Biotechnology, Horticulture, and Research (Mar. 21, 2022).

H.R.7004 “PIGS Act of 2022 [Prohibits Confinement of Pregnant Pigs]” Referred to the House Subcommittee on Livestock and Foreign Agriculture (Mar. 21, 2022).

H.R.7019 “Rural Prosperity Act of 2022 [Establish the Office of Rural Prosperity to Promote Rural Development]” Referred to the House Subcommittee on Commodity Exchanges, Energy, and Credit (Mar. 21, 2022).

H.R.7026 “ID for EBT Act of 2022 [Changes to Supplemental Nutrition Assistance Program]” Referred to the House Subcommittee on Nutrition, Oversight, and Department Operations (Mar. 21, 2022).

H.R.7182 “Future of Water Act of 2022 [Prohibits Trading of Water and Water Rights for Future Delivery]” Referred to the House Committee on Agriculture (Mar. 21, 2022).

H.Res.992 “Recognizing the contribution and importance of maple syrup producers and their families in the State of New Hampshire and supporting the designation of March 19 and 20, 2022, as “New Hampshire Maple Weekend”” Referred to the House Subcommittee on Biotechnology, Horticulture, and Research (Mar. 22, 2022).

H.R.7060 “Connect Unserved Americans Act of 2022 [Funds Distance Learning, Telemedicine, and Broadband]” Referred to the House Subcommittee on Commodity Exchanges, Energy, and Credit (Mar. 22, 2022).

H.Res.1001 “Expressing support for the designation of March 24, 2022, as “National Women in Agriculture Day”” Referred to the House Committee on Agriculture (Mar. 24, 2022).

H.R.3617 “MORE Act [Marijuana Decriminalization]” Placed on the Union Calendar, Calendar No. 203 (Mar. 24, 2022).

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

S.3886 “Future of Water Act of 2022 [Prohibits Trading of Water and Water Rights for Future Delivery]” Read twice and referred to the Senate Committee on Agriculture, Nutrition, and Forestry (Mar. 21, 2022).

S.3892 “Conservation Reserve Program Improvement Act of 2022” Read twice and referred to the Senate Committee on Agriculture, Nutrition, and Forestry (Mar. 22, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Agriculture Secretary Joins Industry Leaders to Discuss Mental Health Services Available for Pennsylvania Farmers (Mar. 24, 2022).

Agriculture Department Adds Eleven Counties to Spotted Lanternfly Quarantine (Mar. 25, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 13—March 26, 2022): 

Department of Agriculture

52 Pa.B. 1744 Notice: “Addendum to the Order of Quarantine; Spotted Lanternfly.”

Department of Community and Economic Development

52 Pa.B. 1746 Notice: “Substantial Amendment to the 2019—2023 Consolidated Plan and 2019 Action Plan.”

Department of Environmental Protection 

52 Pa.B. 1748 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”

Governor’s Office

52 Pa.B. 1930 Notice: “Regulatory Agenda [Regulations Under Development or Consideration].”

State Conservation Commission

52 Pa.B. 1869 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.”

Susquehanna River Basin Commission

52 Pa.B. 1870 Notice: “Projects Approved for Consumptive Uses of Water [in Feb.].”

52 Pa.B. 1871 Notice: “Projects Approved for Minor Modification [in Feb.].”

PENNSYLVANIA LEGISLATURE:

HR 185 “A Resolution urging the Congress of the United States to reauthorize the United States Secretary of Agriculture to issue school food program waivers for the purpose of providing healthy meals to millions of students across the country through the 2022-2023 school year.” Referred to Agriculture and Rural Affairs [House] (Mar. 22, 2022).

HB 224 “An Act amending. . . the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in general powers of the board, providing for collection of premiums; in prices of milk, providing for board established premiums and further providing for cooperatives; and, in moneys and expenses of board, further providing for Milk Marketing Fund and for payment and providing for audits.” Referred to Agriculture and Rural Affairs [House] (Mar. 24, 2022).

HB 2457 “An Act amending. . . the Milk Marketing Law, in weighing and testing, further providing for certified testers and for certified weighers and samplers.” Referred to Agriculture and Rural Affairs [House] (Mar. 24, 2022).

SB 1167 “An Act amending Title 12 (Commerce and Trade) of the Pennsylvania Consolidated Statutes, providing for legitimate cannabis-related business.” Referred to Banking and Insurance [Senate] (Mar. 25, 2022).

Written by:
Audry Thompson—Research Assistant
Noah Gochnauer—Research Assistant
Brook Duer—Staff Attorney