May 17, 2022

Agricultural Law Weekly Review—Week Ending May 6, 2022

Avian Influenza: HPAI Confirmed at Thirteen Pennsylvania Commercial Poultry Operations  🌾
Between April 15 through May 14, 2022, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) has confirmed thirteen commercial poultry premise/flocks diagnosed with highly pathogenic avian influenza (HPAI) in Pennsylvania — 8 in Lancaster County and 5 in Berks County.  All premises have been quarantined, through orders of special quarantine, all birds have been depopulated, totally 4.166 million birds) and composted on site.  In addition, all commercial poultry facilities within a 10-kilometer (6.2 mile) radius of the infected premises became part of a “Control Zone” within which all poultry and associated material are subject to permitting for any movement as well as other extensive restrictions.  USDA APHIS continues to maintain its publicly available HPAI 2022 Confirmed Detections database for domestic poultry and accompanying map, now totaling detections in at least 34 states, 178 commercial flocks and resulting in the depopulation of 37.87 million birds.  According to USDA Secretary Vilsack, as of April 28, 2022, $146 million in indemnity had been paid to poultry owners, with an additional $263 million available, described as “about half of where we were in 2014-2015 with the last outbreak,” which resulted in a loss of approximately 50 million birds.  Nationally, Iowa leads the nation with HPAI diagnoses in 15 commercial flocks/premises and 13.374 million birds. In terms of states surrounding Pennsylvania, Ohio, West Virginia, Virginia, and New Jersey continue to have no confirmed HPAI cases in commercial poultry, while New York has one, Delaware has four (1.438 million birds) and Maryland has four (1.762 million birds).

Water Quality: EPA and USDA Detail 2022 Chesapeake Bay Restoration Funding and USDA Task Force on Crediting Bay Investments
On May 2, 2022, the U.S. Environmental Protection Agency (EPA) announced the nearly $48 million for 2022 Chesapeake Bay restoration from the Infrastructure Investment and Jobs Act (H.R.3684), a.k.a. the Bipartisan Infrastructure Law, which appropriated $238 million for Chesapeake Bay restoration through 2026, to include: (1) $25 million will be distributed as competitively awarded grants through the National Fish and Wildlife Foundation’s (NFWF) Chesapeake Stewardship Fund, split between $15 million in Small Watershed Grants (ranging from $75,000 to $500,000) and $10 million in Innovative Nutrient and Sediment Reduction Grants (ranging from $750,000 to $1 million) to conservation districts, communities, and non-profit organizations; (2) $15 million will be distributed directly to the seven Chesapeake Bay watershed jurisdictions to subsidize “farm-based” interventions “most beneficial to the downstream Chesapeake Bay” as follows: Pennsylvania—$5.59 million, Maryland—$3.21 million, Virginia—$3.14 million, New York—$1.28 million, Delaware—$750,000, West Virginia—$500,000, and the District of Columbia—$500,000; (3) $7.8 million will be directed to the Chesapeake Bay Program Office (CBPO) to support competitive grants for “on-the ground” renewal activities.  In addition, on May 6, 2022, the U.S. Department of Agriculture (USDA), National Resource Conservation Service (NRCS) announced $22.5 million for 2022 release through the Chesapeake Bay States’ Partnership Initiative as follows: (1) $10 million for the Environmental Quality Incentives Program (EQIP); (2) $10 million for the Agricultural Conservation Easement Program (ACEP), and; (3) $2.5 million for the Conservation Stewardship Program (CSP).  Lastly, on May 6, USDA announced the establishment, without further immediate detail, of a new Task Force on Crediting Chesapeake Bay Conservation Investments intended to identify and more fully credit farmers’ existing conservation efforts.

International Trade: U.S. Twice Rejects Canada’s USMCA Dairy Tariff-Rate Quota Proposals
On May 5, 2022, U.S. Trade Representative Katherine Tai met with Canadian Minister of Trade Mary Ng in Ottawa and thereafter publicly announced, amongst other things, the “importance of Canada fully meeting its USMCA commitments, including its allocation of dairy tariff-rate quotas.”  This was the first meeting of the top trade officials from each country since the January 4, 2022, disclosure of the December 20, 2021 USMCA Arbitration Panel Final Report concluding, in response to U.S. allegations, that Canada breached Article 3.A.2.11(b) of the United States-Mexico-Canada Agreement (USMCA) by reserving dairy tariff-rate quotas exclusively for the use of Canadian dairy processors.  This was also the first public statement by Tai that Canada’s first attempt to satisfy U.S. demands to cure the breach, a March 1, 2022 proposal of revised TRQs allocation and policy changes, had been formally rejected. Over the past month, Congressional representatives and the National Milk Producers Federation and U.S. Dairy Export Council have urged a public rejection.  According to media accounts, on May 14, 2022, after meeting with Canadian Agriculture Minister Marie-Claude Bibeau earlier that day, USDA Secretary Vilsack confirmed that a second Canadian proposal has also been rejected and again failed to include an allocation of TRQs to retailers. Further details have not been made public.  On May 12, 2022, New Zealand filed an identical request for consultation alleging Canada has breached the Trans-Pacific Partnership (TPP) trade agreement by limiting its TRQs to processers’ use.

Biosecurity: USDA Scientists Advance African Swine Fever Vaccine
On April 25, 2022, the U.S. Department of Agriculture’s (USDA) Agricultural Research Service (ARS) announced that USDA scientists, in collaboration with researchers from Vietnam’s National Veterinary Joint Stock Company (NAVETCO), have advanced an African Swine Fever (ASF) vaccine candidate, which remained “genetically stable” during testing.  The tests revealed that the potency of the ASF virus in the live attenuated vaccine candidate, ASFV-G-DI177L, remained lessened and the virus did not return to its regular virulency after being implanted in live swine.  Although there have not been any ASF outbreaks to date in the United States, the virus has spread through Africa, Central Europe, Asia, and, most recently, the Dominican Republic.  According to the announcement, NAVETCO, which has distribution capacities throughout Asia, Africa, and Europe, has selected the vaccine candidate for commercial development in Vietnam, where the “reversion to virulence” test is required for approval.  The research findings were published in the May 2022 issue of Viruses.

Biofuels: EPA Submits Final Renewable Fuel Standard Rule for White House Review
On April 29, 2022, the U.S. Office of Management and Budget (OMB) received from the U.S. Environmental Protection Agency (EPA) the final rule codifying the annual rules for the Renewable Fuel Standard (RFS) Program.  EPA issued the proposed rule on December 21, 2021 (86 FR 72436), which received 233 comments from interested stakeholders.  When published as proposed, this particular rule was stated to establish and/or modify multiple components of the RFS program, including: (1) modify the 2021 and 2022 statutory volume targets for cellulosic biofuel, advanced biofuel, and total renewable fuel and establish the 2022 volume target for biomass-based diesel; (2) modify the previously established cellulosic biofuel, advanced biofuel, and total renewable fuel volume requirements for 2020; (3) set the 2020, 2021, and 2022 renewable fuel standards for all four of the above biofuel categories; (4) address the court-ordered remand of the 2016 RFS standard-setting rulemaking; (5) make several  regulatory changes to the Renewable Fuel Standard (RFS) program including regulations for the use of biointermediates to produce qualifying renewable fuel, flexibilities for regulated parties, and clarifications of existing regulations.

Animal Welfare: Arizona Adopts Cage-Free Egg Regulation
On April 5, 2022, the State of Arizona, Governor’s Regulatory Review Council, approved an Arizona Department of Agriculture regulation amending R3-2-901-909 which phases in cage-free eggs according to the following sequence: (1) From October 1, 2022, until December, 31, 2024, all egg-laying hens in the state and all eggs sold in the state must come from laying hens raised according to the United Egg Producer (UEP) Animal Husbandry Guidelines and must be housed in a cage with at least one square foot of usable floor space per laying hen; (2) from January 1, 2025, forward, all laying hens in the state must be housed in a cage-free manner, and all eggs sold in the state must come from hens housed in a cage-free manner. A ballot referendum petition is currently being circulated, subject to a July 8, 2022 deadline, for a November 2022 Arizona general election ballot question prohibiting the in-state production or selling of veal, pork or eggs if raised/produced by caged animals or those without specifically defined dimensions of usable floor space by species.

CENTER PROGRAMS & RESOURCES

Essential USDA APHIS HPAI Resources on Indemnity and Compensation:

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

Top #AgLaw HotLinks May 2–6, 2022

Senators Seek Waiver on Shipping Rules for Food Aid, DTN Progressive Farmer

Senate Kicks Off Farm Bill Discussion in Michigan, Farm Progress

Facing a Wheat Crisis, Countries Race to Remake an Entire Market on the Fly, Wall Street Journal

Fed to Fight Inflation with Fastest Rate Hikes in Decades, Associated Press

White House Seeks $500 Million for Farmers to Grow More Wheat, Pay for Market Loans, Reuters

Events:

Penn State Ag Law Center Webinar Series: Understanding Agricultural Law. A monthly free 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.  Register.

  • May 20, 2022, noon
    Understanding the Basics of Leasing Farmland for Energy Development
    Gain an understanding of the ins and outs of leasing for gas and solar development to better serve current clients and build your skill set to take advantage of a growing market for professional advice in this area.
  • 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.
  • Prior webinar in series, Understanding the Basics of Agricultural Labor Laws, recording available for viewing.

Penn State Ag Law Center Webinar Series: Legal Planning for Specialty Crop Producers: Understanding Liability Protections, Regulatory Processes and Other Legal Risks.  Free webinar series via Zoom. Registration at any time will entitle you to watch recordings of and attend all sessions, as well as receive the webinar materials.

Webinars 1–3 (Recordings 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

  • 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.

Agricultural Law & Policy Resources of Interest:  

Farmdoc Daily, On Agriculture & Antitrust: A Brief Summary of Legislative History

Bloomberg, Can the World Feed Itself? Historic Fertilizer Crunch Threatens Food Security (May 1, 2022).

Reuters, Satellites Detect California Cow Burps, a Major Methane Source, From Space (Apr. 30, 2022).

Penn State News, Research & Resources:

PSU Ext., Pork 101 at Penn State, November 1-3, 2022 (Apr. 30, 2022).

PSU Ext., Dairy Revenue Protection—May 2022 (May 2, 2022).

PSU Ext., Heads Up, Barley Heads Are Out! (May 3, 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 Accepts 2 Million Acres in Offers Through Conservation Reserve Program General Signup (May 3, 2022).

USDA Renews People’s Garden Initiative (May 3, 2022).

Statements by Secretary of Agriculture Tom Vilsack and HHS Secretary Xavier Becerra on the White House Conference on Hunger, Nutrition, and Health (May 4, 2022).

USDA Promotes Program Access, Combats Discrimination Against LGBTQI+ Community (May 5, 2022).

Statement from Secretaries Fudge, McDonough, Vilsack and Yellen on Continued Efforts to Connect Homeowners to Pandemic Relief (May 6, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Settles a Packers and Stockyards Case against Nah Inc., dba Ziyadeh Meat Market (May 2, 2022).

Agricultural Research Service (ARS)

USDA Scientist Named Finalist for Samuel J. Heyman Service to America Medal for Excellence in Water Quality Research (May 2, 2022).

Animal and Plant Health Inspection Service (APHIS) 

History Highlight: Improving Care for Laboratory Animals (May 3, 2022).

APHIS Issues Notice of Final Environmental Assessment for a Biological Control Agent of Air Potato (May 5, 2022).

USDA Confirms Highly Pathogenic Avian Influenza in Oregon and Washington (May 6, 2022).

Economic Research Service (ERS)

USDA Conservation Technical Assistance and Within-Field Resource Concerns (May 5, 2022).

Farm Service Agency (FSA)

USDA to Provide $50 Million in Support to U.S. Cotton and Wool Apparel Manufacturers Impacted by the Pandemic (May 5, 2022).

USDA Announces Initiative, Invests $22.5 Million in Water Quality Improvements in Chesapeake Bay (May 6, 2022).

Food Safety and Inspection Service (FSIS) 

Constituent Update – May 6, 2022 (May 6, 2022).

National Agricultural Statistics Service (NASS)

Sign up and be Counted in the 2022 Census of Agriculture (May 6, 2022).

National Institute of Food and Agriculture (NIFA)

Lettuce Celebrate National Salad Month (May 6, 2022).

Risk Management Agency (RMA)

USDA Updates Livestock Insurance Options to Offer Better Protection, Flexibility (May 4, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register  May 2–6, 2022):

Agency for International Development

87 FR 27082 Notice: “Notice of May 23, 2022, Meeting of the Board for International Food and Agricultural Development” (May 6, 2022).

Agricultural Marketing Service

87 FR 26695 Proposed Rule—Comment Period: “Preserving Trust Benefits Under the Packers and Stockyards Act” (May 5, 2022).

Agriculture Department     

87 FR 25571 Final Rule: “Production or Disclosure of Official Information in Legal Proceedings” (May 2, 2022).

87 FR 26724 Notice: “Submission for OMB Review; Notice of Request for Emergency Approval [Cotton and Wool Apparel (CAWA) Program]” (May 5, 2022).

87 FR 27082 Notice: “Submission for OMB Review; Comment Request [Control of African Swine Fever; Restrictions on the Movement of Swine Products and Swine Byproducts from Puerto Rico and the U.S. Virgin Islands]” (May 6, 2022).

Animal and Plant Health Inspection Service

87 FR 26183 Notice: “Notice of Availability of an Environmental Assessment and Finding of No Significant Impact for Release of Lilioceris egena for Biological Control of Air Potato in the Continental United States” (May 3, 2022).

Environmental Protection Agency

87 FR 26691 Final Rule: “Cell Walls of Saccharomyces Cerevisiae; Tolerance Exemption” (May 5, 2022).

87 FR 26687 Final Rule: “Hydrolyzed Vegetable Proteins from Soy; Exemption from the Requirement of a Tolerance” (May 5, 2022).

87 FR 26684 Final Rule: “Trans-Anethole; Tolerance Exemption” (May 5, 2022).

87 FR 26755 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Pesticides; Notice of Availability [for Acrolein]” (May 5, 2022).

87 FR 27059 Proposed Rule—Comment Period: “Pesticides; Proposal to Add Chitosan to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products; Notice of Data Availability on Chitosan and Chitosan Salts” (May 6, 2022).

87 FR 27145 Notice—Comment Period: “Notice of Receipts of Requests to Voluntarily Cancel Certain Pesticide Registrations” (May 6, 2022).

Farm Credit Administration

87 FR 25637 Notice: “Sunshine Act Meetings [May 12, 2022]” (May 2, 2022).

Farm Service Agency

87 FR 27083 Notice: “Notice of Funds Availability; Cotton and Wool Apparel Program” (May 6, 2022).

Federal Crop Insurance Corporation

87 FR 26338 Notice—Comment Period: “Information Collection Request; Interpretations of Statutory and Regulatory Provisions and Written Interpretations of FCIC Procedures; Notice of Request for Renewal of a Currently Approved Information Collection” (May 4, 2022).

Fish and Wildlife Service

87 FR 26152 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Review of Species That Are Candidates for Listing as Endangered or Threatened; Annual Notification of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions” (May 3, 2022).

87 FR 26319 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d) Rule for the Silverspot Butterfly” (May 4, 2022).

Food and Drug Administration

87 FR 27161 Notice: “Grated Parmesan Cheese Deviating from Identity Standard; Amendment of Temporary Marketing Permit” (May 6, 2022).

Food and Nutrition Service

87 FR 26339 Notice—Comment Period: “Agency Information Collection Activities: Produce Safety University Nomination and Course Evaluation” (May 4, 2022).

87 FR 27089 Notice—Comment Period: “Agency Information Collection Activities: Generic Clearance for the Development of Nutrition Education Messages and Products for the General Public” (May 6, 2022).

87 FR 27087 Notice—Comment Period: “Agency Information Collection Activities: Special Milk Program for Children” (May 6, 2022).

Foreign Assets Control Office

87 FR 26094 Final Rule: “Ukraine-/Russia-Related Sanctions Regulations” (May 2, 2022).

Forest Service

87 FR 26184 Notice—Comment Period: “Information Collection: Annual Wildfire Summary Report” (May 3, 2022).

Land Management Bureau

87 FR 26225 Notice: “Filing of Plats of Survey: Alaska” (May 3, 2022).

Rural Utilities Service

87 FR 26961 Final Rule: “Standards and Specifications for Timber Products Acceptable for Use by Rural Utilities Service Electric and Telecommunications Borrowers; Correction” (May 6, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.4521 “United States Innovation and Competition Act of 2021 [Formerly ‘America COMPETES Act of 2022’]” Message on Senate action sent to the House (May 5, 2022).

H.R.7675 “To amend the Department of Agriculture Reorganization Act of 1994 to establish an Agricultural and Food System Supply Chain Resilience and Crisis Response Task Force, and for other purposes.” Referred to the House Committee on Agriculture (May 6, 2022).

H.R.4374 “Broadband Internet Connections for Rural America Act” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than May 26, 2022 (May 6, 2022).

H.R.7632 “To provide access to reliable, clean, and drinkable water on Tribal lands, and for other purposes.” Referred to the House Subcommittee on Commodity Exchanges, Energy, and Credit (May 5, 2022).

H.R.7614 “To provide for orderly and secure digital commodity exchange markets, and for other purposes.” Referred to the House Subcommittee on Commodity Exchanges, Energy, and Credit (May 5, 2022).

H.R.7606 “Meat and Poultry Special Investigator Act of 2022” Referred to the House Subcommittee on Livestock and Foreign Agriculture (May 5, 2022).

H.R.7513 “PREPARE Act of 2022 [establishes a committee to plan a path for potential federal cannabis regulation]” Referred to the House Subcommittee on Biotechnology, Horticulture, and Research (May 5, 2022).

H.R.7498 “TEMP Act [directs ‘the Federal Crop Insurance Corporation to conduct research and development on frost or cold weather insurance’]” Referred to the House Subcommittee on General Farm Commodities and Risk Management (May 5, 2022).

H.R.7437 “No Timber from Tyrants Act [stop importation of Russian timber]” Referred to the House Subcommittee on Conservation and Forestry (May 5, 2022).

H.R.7663 “Great Lakes Agricultural Stewardship Act” Referred to the House Committee on Agriculture (May 3, 2022).

H.R.7639 “Cattle Price Discovery and Transparency Act of 2022” Referred to the House Committee on Agriculture (May 3, 2022).

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

No relevant actions.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Wolf Administration Highlights Investments in Agritourism, Conservation, Education at Columbia County Farm (May 4, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 19—May 7, 2022):

Department of Agriculture

52 Pa.B. 2699 Rules and Regulations: “State Food Purchase Program Regulations.”

Department of Environmental Protection 

52 Pa.B. 2717 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”

PENNSYLVANIA LEGISLATURE:

HB 2210 “An Act amending. . . the Abandoned and Blighted Property Conservatorship Act, further providing for definitions [Addition of Land Banks].” Referred to Urban Affairs and Housing [Senate] (May 3, 2022).

HB 2564 “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.” Referred to Agriculture and Rural Affairs [House] (May 2, 2022).

HB 2567 “An Act updating and expanding the storm water planning requirements to be undertaken by counties. . . imposing duties and conferring powers on the Department of Environmental Protection, the Environmental Quality Board, counties, municipalities and water resources management authorities; providing for financing and for waiver of use for certain grant or loan funds; and making related repeals.” Referred to Environmental Resources and Energy [House] (May 3, 2022).

HB 2582 “An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in assault, further providing for the offense of aggravated assault [related to tampering with food].” Referred to Judiciary [House] (May 6, 2022).

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