November 14, 2022

Agricultural Law Weekly Review—Week Ending November 11, 2022

Agricultural Antitrust: Federal Court Denies Tyson’s Motion to Dismiss Poultry Renderers’ Antitrust Suit 🌾
On November 8, 2022, the U.S. District Court for the Northern District of Georgia issued an order denying a motion to dismiss filed by River Valley Ingredients, LLC; Tyson Poultry, Inc.; and Tyson Farms, Inc.—the defendants in an antitrust case filed by three southeast poultry rendering companies. American Proteins, Inc. v. River Valley Ingredients, LLC, No. 2:22-cv-00091.  According to the complaint, filed May 11, 2022, River Valley and Tyson acquired ten-year exclusive contracts with Wayne Farms and Koch Foods, two of the plaintiff rendering companies’ long-time supplier-customers, then used that acquisition to induce the plaintiffs to sell their assets to River Valley and Tyson for $825 million—half of River Valley and Tyson’s internal valuations of the assets, based on the companies’ board presentation materials.  The court found that the plaintiff rendering companies had plead a sufficient “antitrust injury” and had stated sufficient facts for claims of “unreasonable restraint of trade,” “monopolization,” and “conspiracy to monopolize” under the Sherman Act, stating, “Defendants threatened Plaintiffs, proposed to purchase Plaintiffs’ assets at half of their internal valuation of the assets, and have allegedly abused their monopoly power since the [asset purchase agreement] transaction.”  The case will now proceed to discovery and trial preparation.

Antitrust: George’s Agrees to $1.9 Million Settlement with End-User Consumer Plaintiffs
On October 28, 2022, the U.S. District Court for the Northern District of Illinois filed eleven stipulated orders dismissing claims with prejudice against George’s Inc. and George’s Farms, Inc., based on a proposed settlement agreement and eleven stipulations of dismissal between George’s and the end-user consumer plaintiffs (EUCPs), in the multi-district class-action case In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637.  According to the proposed settlement, George’s will pay $1.9 million into an escrow account to pay EUCP claims, which will be documented and administered through the plaintiffs’ counsel website overchargedforchicken.com.  For more information, see the Center’s Agricultural Antitrust Litigation Issue Tracker. 

Biofuels: Iowa Ethanol Producer Settles Renewable Fuel Standard Enforcement Action
On October 27, 2022, the U.S. Department of Justice (DOJ) filed a proposed consent decree in the U.S. District Court for the Northern District of Iowa with the Galva, Iowa Quad County Corn Processors Cooperative resolving the cooperative’s alleged violations of the Clean Air Act and the Renewable Fuel Standard (RFS) program. United States v. Quad County Corn Processors Cooperative, No. 5:22-cv-04057.  According to DOJ’s complaint filed on behalf of the U.S. Environmental Protection Agency (EPA), between May 26, 2015 and October 12, 2015, Quad included non-cellulosic material in its cellulosic production, which resulted in blended ethanol instead of pure cellulosic ethanol.  EPA and DOJ allege that Quad, which produces about 35 million gallons of ethanol per year, 1) breached its EPA-approved ethanol production process, 2) applied incorrect Renewable Identification Numbers (RINs) to its ethanol, and 3) failed to submit required data and chemical analysis to EPA—actions that EPA states caused “a failure to [reduce] . . . 4,689,959 pounds of carbon dioxide” from U.S. emissions.  Under the consent decree, Quad will retire 438,314 renewable fuel credits by December 31, 2024, and pay $320,000 in civil penalties, although DOJ’s complaint alleged that Quad could be liable for as much as $51,796 per day of violation—potentially totaling more than $7 million.  Also announced by EPA, on November 3, 2022, DOJ published notice of the consent decree in the Federal Register (87 FR 66327), which remained open for comment until December 5, 2022.

Dairy Policy: USDA Receives Petition from Dairy Cooperative Marketing Association to Amend to Federal Milk Marketing Orders 5, 6, and 7
On October 27, 2022, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) received a Federal Milk Marketing Order (FMMO) Petition from the Dairy Cooperative Marketing Association (DCMA) requesting a hearing to amend FMMOs 5, 6, and 7, and listing five proposed amendments.  According to the submitted materials, the proposed amendments would “update the cost reimbursement factors in the current transportation credit balancing funds in Orders 5 and 7” and “add Distributing Plant Delivery Credits through a Distributing Plant Delivery Credit fund to be established in Orders 5, 6, and 7,” which would “reimburse costs of delivery to distributing plants from in-area farms and year-round supplying farms which currently are not eligible for reimbursement from the Transportation Credit Balancing Funds.”  DCMA members and their corresponding FMMOs are as follows:

  • Appalachian Dairy Farmers Cooperative (5)
  • Cobblestone Milk Cooperative, Inc. (5 & 7)
  • Cooperative Milk Producers Assoc. (5)
  • Dairy Farmers of America, Inc. (5, 6, & 7)
  • Lanco Dairy Farms Co-op (5 & 7)
  • Lone Star Milk Producers, LC (5 & 7)
  • Maryland and Virginia Milk Producers Cooperative Assoc., Inc. (5 & 7)
  • Select Milk Producers, Inc. (5 & 7)
  • Southeast Milk, Inc. (5, 6, & 7)

Conservation Programs: USDA Announces Climate Initiatives at COP27
On November 12, 2022, U.S. Department of Agriculture (USDA) Secretary Tom Vilsack announced several USDA initiatives at the 2022 United Nations Climate Change Conference (COP27) in Egypt, including the following:

Food Safety: FDA Updates Manufactured Food Regulatory Program Standards
As of October 27, 2022, the U.S. Food and Drug Administration (FDA) has updated its  Manufactured Food Regulatory Program Standards (MFRPS) webpage to reflect the updated 2022 MFRPS, last updated in 2007.  Additionally, FDA published a summary of the 2022 changes.  Currently, 41 states, including Pennsylvania, are enrolled in the MFRPS Cooperative Agreement Program, which aims to establish “a nationally integrated, risk-based, food safety system focused on protecting public health.” The nine states not enrolled in the program are Delaware, Idaho, Maine, Montana, New Hampshire, North Dakota, Oregon, and South Dakota.

Biofuels: GAO Audit Report Recommends Changes to Renewable Fuel Standard Small Refinery Exemption Process
On November 3, 2022, the Governmental Accountability Office (GAO) released an audit report on the Environmental Protection Agency’s (EPA) and Department of Energy’s (DOE) administration of the Renewable Fuel Standard’s (RFS) small refinery exemptions (SRE) from RFS renewable fuels blending obligations.  The report found that from 2019–2021, EPA based its denial of SREs upon the faulty premise that “all parties pay and receive one price for the tradeable credits used to demonstrate compliance” when in fact “small refineries have paid more on average for compliance credits than large refineries.” Additionally, neither EPA nor DOE have any written policies or procedures to adjudicate SREs.  The report recommends that EPA and DOE identify how small refineries may demonstrate disproportionate economic hardship, develop procedures for evaluating exemption petitions, and increase communication during the decision process.

Food Safety: GAO Audit Report Faults FDA Food Contact Substance Review Process
On November 8, 2022, the U.S. Government Accountability Office (GAO) published an audit report analyzing the U.S. Food and Drug Administration’s (FDA) pre-and post-market review processes for food contact substances used in food manufacturing, packaging, and transportation.  The GAO found that 1) FDA lacks the authority to require companies to provide the agency with substances’ safety and use data and 2) FDA’s food contact substance information system is not sortable or searchable by the substance’s last review date.  The report recommends that FDA 1) request legal authority from Congress to compel companies to provide substance data to the agency and 2) track the dates of FDA’s substance reviews so that the agency can easily identify substances that may need further post-market review.  According to the report, “FDA neither agreed nor disagreed with the first recommendation and agreed with the second recommendation.”

Conservation Programs: American Farmland Trust Announces Carbon Reduction Potential Evaluation (CaRPE) Tool
On November 8, 2022, American Farmland Trust (AFT) announced its updated Carbon Reduction Potential Evaluation Tool (CaRPE Tool), which aggregates cropland and grazing land data from the U.S. Department of Agriculture’s (USDA) 2017 Census of Agriculture into data from USDA’s COMET-Planner.  The CaRPE Tool’s data aggregation allows users to calculate expected reductions in greenhouse gas (GHG) emissions resulting from a producer’s application of various conservation practices.  The updates allow users to

  • View data by county, state, or Farm Resource Region;
  • Select from four Conservation Practice Classes;
  • Visualize and map a conservation plan’s weighted emission reduction coefficient; and
  • Estimate implementation costs from national averages or state-specified data.

Additionally, AFT released state report briefs for Virginia, Illinois, New Hampshire, Oregon, and Michigan, which provide estimations of potential GHG emission reductions and policy recommendations to achieve those reductions.

International Trade: New Zealand Submits Formal Request for Panel Hearing on Canada’s Dairy Tariff Rate Quota Dispute
On November 7, 2022, New Zealand’s Ministry of Foreign Affairs and Trade submitted formal notification to Canada requesting the establishment of a panel to hear New Zealand’s challenge to Canada’s practice of reserving its dairy tariff rate quotas (TRQs) for Canadian dairy processors, which New Zealand claims violates the Comprehensive and Progressive Agreement for TransPacific Partnership (CPTPP).  Previously, on May 12, 2022, New Zealand announced that it had requested formal consultations with Canada, which the countries held in June 2022, but which New Zealand states, “did not resolve matters.”  Also announced by the New Zealand government, New Zealand’s panel request notice described the trade effects of Canada’s dairy TRQ allocation practices, stating that they “encourage chronic underfill of [Canada’s] dairy TRQs, reduce their commercial value for exporting CPTPP Parties, and undermine the market access negotiated under CPTPP.” The United States is also in dispute with Canada over its dairy TRQ practices as violative of the United States-Mexico-Canada Agreement (USMCA), which remains unresolved. See “U.S. Twice Rejects Canada’s USMCA Dairy Tariff-Rate Quota Proposals,” ALWR—May 6, 2022.

___________________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

CENTER PROGRAMS & RESOURCES

Agricultural Law Podcasts:

Events:

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from prior webinars, more information, and registration available here. Next in the series:

Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series.  Register at any time to watch past recordings, attend all future webinars, and access all materials. Next in series:

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge.  Recordings and materials available here.

Resources of Interest:

Webinars & Events 

Academic & Government Resources

Agriculture-Related Legislative Hearings And Reports

Penn State News, Research & Resources:

Top #AgLaw HotLinks Nov. 5–11, 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

Urban Producers, Public Invited to Attend November Meeting of Federal Advisory Committee for Urban Agriculture and Innovative Production (Nov. 10, 2022).

USDA Invests $50 Million for Schools & Food Industry to Work Together to Strengthen School Meals (Nov. 10, 2022).

Stay Food Safe this Thanksgiving Holiday (Nov. 7, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Requests Public Comment on Proposed Cleanup at the Pierson’s Creek Superfund Site in Newark, New Jersey (Nov. 10, 2022).

EPA Announces Settlement for Groundwater Cleanup at Landfill and Resource Recovery, Inc. Superfund Site in N. Smithfield, Rhode Island (Nov. 9, 2022).

City of Elyria, Ohio Agrees to Federal/State Plan to Eliminate Sewage Discharges into the Black River (Nov. 9, 2022).

EPA Takes Action to Address Illegal Destruction of Streams and Wetlands in Missouri and Nebraska (Nov. 7, 2022).

 

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Takes Steps to Support Food Sovereignty with the Tunica Biloxi Tribe of Louisiana (Nov. 10, 2022).

USDA Awards $22.9 Million to Support Dairy Initiatives (Nov. 10, 2022).

USDA Takes Steps to Support Food Sovereignty with the Cowlitz Indian Tribe (Nov. 9, 2022).

USDA Takes Steps to Support Food Sovereignty with the Wyandotte Nation (Nov. 8, 2022).

USDA Takes Steps to Support Food Sovereignty with the Shingle Springs Band of Miwok Indians (Nov. 7, 2022).

 

Farm Service Agency (FSA)

USDA Releases Nationwide Farmer, Rancher and Forest Manager Prospective Customer Survey (Nov. 9, 2022).

2022 Farm Service Agency County Committee Elections Open This Week (Nov. 9, 2022).

 

Food and Nutrition Service (FNS)

USDA Invests $50 Million for Schools & Food Industry to Work Together to Strengthen School Meals (Nov. 10, 2022).

Omaha Tribe of Nebraska WIC Garden Partners with Community for Nutrition Education (Nov. 9, 2022).

 

Foreign Agricultural Service (FAS)

Export Sales to Mexico (Nov. 10, 2022).

Export Sales to China and Unknown Destinations (Nov. 9, 2022).

Export Sales to China, Mexico, and Unknown Destinations (Nov. 8, 2022).

 

FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 7–11, 2022):            

Agricultural Marketing Service

87 FR 67859 Notice: “Mycotoxin Test Kit Design Specifications and Performance Criteria” (Nov. 10, 2022).

87 FR 67855 Notice: “Award of Designations and Designation Amendments to Class X or Class Y Weighing Services Under the United States Grain Standards Act” (Nov. 10, 2022).

87 FR 66960 Proposed Rule—Public Comment: “Harmonized Tariff Schedule Numbers for the Paper and Paper-Based Packaging Products” (Nov. 7, 2022).

87 FR 66958 Proposed Rule—Public Comment: “Dried Prunes Produced in California; Increased Assessment Rate” (Nov. 7, 2022).

 

Animal and Plant Health Inspection Service

87 FR 67861 Notice—Public Comment: “State University of New York College of Environmental Science and Forestry; Availability of a Draft Environmental Impact Statement and Draft Plant Pest Risk Assessment for Determination of Nonregulated Status for Blight-Tolerant Darling 58 American Chestnut (Castanea dentata) Developed Using Genetic Engineering” (Nov. 10, 2022).

87 FR 67007 Notice—Public Comment: “Notice of Request for Approval of an Information Collection; National Animal Health Monitoring System Backyard Animal Keeping 2023 Study” (Nov. 7, 2022).  

 

Environmental Protection Agency

87 FR 67364 Final Rule: “Pesticides; Addition of Chitosan (Including Chitosan Salts) to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products” (Nov. 8, 2022). 87 FR 67371 Final Rule: “Acetic Acid, 2-Ethylhexyl Ester; Exemption from the Requirement of a Tolerance” (Nov. 8, 2022).

87 FR 67375 Final Rule: “Nitric Acid; Exemption from the Requirement of a Tolerance” (Nov. 8, 2022).

International Trade Administration

87 FR 67872 Notice: “Citric Acid and Certain Citrate Salts from Colombia: Final Results of Antidumping Duty Administrative Review; 2020-2021″ (Nov. 10, 2022).

87 FR 67868 Notice: “Certain Pasta from Italy: Final Results of Antidumping Duty Administrative Review; 2020-2021″ (Nov. 10, 2022).

87 FR 67669 Notice: “Certain Frozen Warmwater Shrimp from India: Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review” (Nov. 9, 2022).

National Agricultural Library

87 FR 67439 Notice: “Notice of Intent to Seek Approval to Collect Information” (Nov. 8, 2022).

National Agricultural Statistics Service

87 FR 67862 Notice—Public Comment: “Agency Information Collection Activities: Comment Request” (Nov. 10, 2022).

87 FR 67440 Notice—Public Comment: “Notice of Intent to Request Revision and Extension of a Currently Approved Information Collection” (Nov. 8, 2022).

87 FR 67438 Notice: “Notice of Invitation for Nominations to the Advisory Committee on Agriculture Statistics” (Nov. 8, 2022).

AGRICULTURE-RELATED LEGISLATIVE HEARINGS AND REPORTS

U.S. Senate Ag. Comm., Farm Bill 2023: Rural Development and Energy Programs (Nov. 15, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.9281 “To direct the Secretary of Agriculture to make grants to States to support the establishment and operation of grocery stores in underserved communities, and for other purposes.” Referred to the House Committee on Agriculture. (Nov. 10, 2022).

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

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Agriculture Secretary Thanks Farmer Veterans For Service, Shares Reminder About Grants, Marketing Opportunities (Nov. 11, 2022).

Agriculture Secretary Kicks Off Ag Workforce Tour, Highlights Apprenticeships, Education Preparing Pennsylvanians For Rewarding, In-Demand Ag Careers (Nov. 9, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 46—Nov. 12, 2022): 

Department of Agriculture

52 Pa.B. 7000 Notice: “Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List.”

Department of Environmental Protection 

52 Pa.B. 7002 Notice: “Applications, Actions and Special Notices.”

Milk Marketing Board

52 Pa.B. 7056 Notice: “Hearing and Presubmission Schedule for All Milk Marketing Areas; Over-Order Premium.”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney 
Brook Duer—Staff Attorney