November 21, 2022

Agricultural Law Weekly Review—Week Ending November 18, 2022

Ag Labor: Federal Court Issues Temporary Restraining Order Against Packers Sanitation
On November 10, 2022, the U.S. District Court for the District of Nebraska issued a temporary restraining order (TRO) directing Packers Sanitation Services, Inc. to stop using “oppressive child labor” in its operations. Walsh v. Packers Sanitation Services, Inc., No. 4:22-cv-03246. The TRO was issued in response to a complaint filed by the U.S. Department of Labor (DOL) that cited multiple violations of Fair Labor Standards Act (FLSA) child labor laws in JBS meat packing facilities in Grand Island, Nebraska; Worthington, Minnesota; and in Turkey Valley Farms facilities in Marshall, Minnesota. Also announced by DOL, the DOL’s Wage and Hour Division conducted investigations that determined that Packers had employed 31 children, aged 13 to 17, and placed them in various dangerous positions, including cleaning dangerous equipment during overnight shifts—from which one 13-year-old received caustic chemical burns. The DOL also alleges that Packers intimidated their minor workers and prevented them from speaking with investigators. Under the TRO, Packers must cooperate with the DOL’s investigation and is specifically enjoined from destroying documents, disposing of relevant information, and discouraging its employees from speaking with DOL. The TRO is effective until December 8, 2022, when the court will hold a hearing on a preliminary injunction against Packers Sanitation.

Biosecurity: White House Issues Memorandum on Strengthening U.S. Food and Agriculture Security and Resilience
On November 10, 2022, the White House released a National Security Memorandum (NSM-16) on strengthening the security and resilience of U.S. food and agriculture. The memo focuses on the threats to U.S. food and agriculture security posed by climate change, cybersecurity issues, and chemical, biological, radiological, and nuclear agents. The memo outlines the administration’s commitment to developing policy to counter these threats, under the coordination of the Assistant to the President for National Security Affairs (APNSA). Within one year, the APNSA is to provide the President with an update on the implementation of the NSM-16. Within 60 days, the Attorney General, the Secretary of Homeland Security, and the Secretary of Defense are to provide a threat assessment on the state of U.S. food and agriculture. Within 180 days, the Secretary of Agriculture and the Secretary of Health and Human Services are to provide an assessment of the vulnerability of U.S. food and agriculture to the threats.

Biotechnology: FDA Publishes AquAdvantage Salmon Draft Amended Environmental Assessment
On November 17, 2022, the U.S. Food and Drug Administration (FDA) published in the Federal Register notices announcing the availability of (87 FR 69032) and public meeting on (87 FR 69030) the agency’s Draft Amended Environmental Assessment for AquAdvantage Salmon production, limited to the Bay Fortune and Rollo Bay Facilities on Prince Edward Island, Canada. FDA had previously approved—and issued an Environmental Assessment (EA) and Finding of No Significant Impact for—the genetically altered salmon in November 2015, but was ordered to redo its analysis in November 2020 to account for the salmon’s potential escape from captivity. See Court Remands FDA Decision on Bio-Engineered Salmon for Additional Analysis, ALWR—Nov. 6, 2020. Also announced by the agency, FDA states that the new draft amended EA “include[s] an exhaustive analysis of the likelihood and severity of harms that could occur in the highly unlikely event that [AquAdvantage Salmon] . . . were to escape confinement, migrate from Canada to the U.S., and be present in the U.S. aquatic environment.”  FDA will hold a virtual public meeting on December 15, 2022 from 1:00–5:00pm ET to receive public feedback on the draft amended EA. Both Federal Register notices carry comment periods that close January 17, 2023.

Biotechnology: FDA Completes Pre-Market Consultation for Cell-Cultured Chicken Product, First Cell-Cultured Human Food
On November 16, 2022, the U.S. Food and Drug Administration (FDA) announced that the agency had completed a voluntary, pre-market consultation for UPSIDE Foods Inc.’s cell-cultured chicken food product and related production processes—FDA’s first pre-market consultation for a human food derived from cultured animal cells. FDA’s announcement specifies that the pre-market consultation “is not an approval process” and only means that “after [FDA’s] careful evaluation of [UPSIDE’s] data and information . . . [FDA] ha[s] no further questions at this time about [UPSIDE’s] safety conclusion.” FDA further states that UPSIDE’s cell-cultured food product will be regulated under the U.S. Department of Agriculture (USDA) and FDA’s joint oversight of cell-cultured foods and that before the product can be fully approved and enter the U.S. market, UPSIDE’s manufacturing facilities and the food product itself must pass inspections by USDA’s Food Safety and Inspection Service (FSIS). Additionally, in FDA’s letter to UPSIDE, the agency warns against the use of the term “cultured chicken cell material,” as a possible conflict with FSIS labeling, stating, “Our use of the term ‘cultured chicken cell material’ in this letter is not our recommendation of that term as an appropriate common or usual name for declaring the substance in accordance with the [USDA FSIS] labeling requirements.”

Biosecurity: USDA Announces Joint Agency Strategic Plan with U.S. Customs and Border Protection
On November 9, 2022, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) and the U.S. Customs and Border Protection (CBP) announced their 2022–2026 Joint Agency Strategic Plan for the agencies’ shared Agricultural Quarantine Inspection (AQI) program. The AQI aims to protect U.S. agriculture by preventing the spread of harmful plant and animal pests and diseases. The joint agency strategic plan contains three goals: 1) “apply risk-based approaches to identify and target high-risk pathways and align resources”; 2) “enhance program management and infrastructure”; and 3) “strengthen partnerships and enhance outreach efforts with trade entities to advance compliance.”

Agricultural Antitrust: Workers File Wage-Fixing Complaint Against Multiple Meat Packing Companies
On November 11, 2022, three meat factory workers filed a complaint in the U.S. District Court for the District of Colorado against several meat packing companies, Agri Stats, Inc., and the Pottstown, Pennsylvania-based Webber, Meng, Sahl and Company (WMS) alleging that the companies have conspired since January 2014 to suppress wages in violation of the Sherman Antitrust Act. Brown et al v. JBS USA Food Company et al, Docket No. 1:22-cv-02946. The meat packing defendants include JBS USA Food Company; Cargill Inc.; Hormel Foods Corp.; American Foods Group, LLC; Triumph Foods, LLC; Seaboard Foods, LLC; National Beef Packing Co., LLC; Iowa Premium, LLC; Smithfield Foods Inc.; Agri Beef Co.; Washington Beef, LLC; and Perdue Farms Inc. The plaintiffs allege that these meat producers conspired by using consulting companies, Agri Stats and WMS, to share compensation data. The plaintiffs seek class-action status to represent workers affected by the alleged practices, monetary damages, and “pre- and post-judgment interest . . . at the highest legal rate.”

Invasive Species: Pennsylvania Adds Five Plants to Noxious Weed List
On November 12, 2022, the Pennsylvania Department of Agriculture published a notice in the Pennsylvania Bulletin (52 Pa.B. 7000) announcing the addition of five plants to the noxious weed list:

  • Burning bush (Euonymus alatus)—Class B noxious weed,
  • Chinese privet (Ligustrum alatus) —Class B noxious weed,
  • European privet (Ligustrum vulgare)—Class B noxious weed,
  • Border privet (Ligustrum obtusifolium)—Class B noxious weed, and
  • Japanese privet (Ligustrum japonicum)—Class A noxious weed.

The listings become effective January 11, 2023, 60 days from publication.

 

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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:

Recent webinar recordings available:

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. More events coming soon.

Resources of Interest:

Academic & Government Resources

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports 

Top #AgLaw HotLinks Nov. 12–18, 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. 

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE  

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Proposes Science-Driven Updates to Foods Provided Through WIC (Nov. 17, 2022).

Biden-Harris Administration Announces $20.5 Million in Grants to Protect Water, Increase Wood Processing Capacity (Nov. 17, 2022).

As Thanksgiving Approaches, Americans Who Want a Turkey Will Be Able to Get One (Nov. 16, 2022).

USDA Invests $21.6M in Small Business-Led Innovations (Nov. 16, 2022).

Biden-Harris Administration, Trout Unlimited Invest up to $40 Million to Restore Watersheds on National Forests (Nov. 16, 2022).

USDA Provides Nearly $24M Boost for Beginning Farmers and Ranchers (Nov. 15, 2022).

Biden-Harris Administration Launches Interactive Map Showcasing Wildfire Reduction Projects (Nov. 15, 2022).

USDA Announces New Resources to Empower Indigenous Food Sovereignty (Nov. 14, 2022).

Vilsack Highlights USDA’s Climate Initiatives and Investments at COP27 (Nov. 12, 2022).

USDA Highlights AIM for Climate Accomplishments, Announces 2023 Plans (Nov. 12, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Takes Final Action to Protect Groundwater from Coal Ash Contamination at Ohio Facility (Nov. 18, 2022).

Environmental Study Released for Projects to Mitigate San Diego—Tijuana Transborder Water Pollution (Nov. 18, 2022).

EPA Reestablishes Federal Water Pollution Standards for Washington (Nov. 15, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Issues a Packers and Stockyards Complaint against Scott Alan Sanders, d/b/a S.A.S. Dairy, d/b/a Sanders Family Cattle Sales and Cathryn R. Sanders, d/b/a Fire Lake Jerseys for Packers and Stockyards Act Violations (Nov. 18, 2022).

USDA Settles a Packers and Stockyards Case against Walnut Auction Sales LLC. (Nov. 18, 2022).

USDA Announces Its Local Food Purchase Assistance Cooperative Agreement with Indiana (Nov. 17, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Kentucky (Nov. 16, 2022).

USDA Restricts PACA Violators in California and Nevada From Operating in the Produce Industry (Nov. 15, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Alabama (Nov. 15, 2022).

USDA Denies an Appeal filed by Bruce Camenzind for Violating the Packers and Stockyards Act (Nov. 14, 2022).

USDA Cites H Brooks and Company LLC in Minnesota for PACA Violations (Nov. 14, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Louisiana (Nov. 14, 2022).

Farm Service Agency (FSA)

USDA and Three Tribal Nations to Enter Historic Conservation Reserve Enhancement Program Agreements to Support Working Lands Conservation (Nov. 17, 2022).

USDA Previews Crop and Revenue Loss Assistance for Agricultural Producers (Nov. 15, 2022).

Food and Nutrition Service (FNS)

USDA Proposes Science-Driven Updates to Foods Provided Through WIC (Nov. 17, 2022).

Tribal Food Sovereignty a Focus of NAFDPIR Conference (Nov. 14, 2022).

Food Safety and Inspection Service (FSIS)

FSIS Antimicrobial Resistance Data Sharing (Nov. 8, 2022).

Public Meeting; National Advisory Committee on Microbiological Criteria for Foods (Nov. 15, 2022).

Foreign Agricultural Service (FAS)

Export Sales to Iraq and Mexico (Nov. 16, 2022).

Export Sales to Mexico (Nov. 15, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 14–18, 2022):            

Agricultural Marketing Service

87 FR 69238 Notice—Public Comment: “Pecans Grown in Multiple States; Request for Extension and Revision of a Currently Approved Information Collection” (Nov. 18, 2022).

87 FR 69238 Notice—Public Comment: “Information Collection Renewal for Country of Origin Labeling” (Nov. 18, 2022).

87 FR 69208 Proposed Rule—Public Comment: “Decrease of Assessment Rate for Texas Oranges and Grapefruit” (Nov. 18, 2022).

87 FR 68021 Final Rule: “Amendments to the National List of Allowed and Prohibited Substances per October 2020 and April 2021 NOSB Recommendations (Handling, Crops)” (Nov. 14, 2022).

Agriculture Department

87 FR 69239 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Nov. 18, 2022).

87 FR 69240 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Nov. 18, 2022).

87 FR 69241 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Nov. 18, 2022).

Animal and Plant Health Inspection Service

87 FR 68437 Notice—Public Comment: “Notice of Request for Revision To and Extension of Approval of an Information Collection; Domestic Quarantine Regulations” (Nov. 15, 2022).

Environmental Protection Agency

87 FR 69268 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Uses October 2022” (Nov. 18, 2022).

87 FR 69267 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients October 2022” (Nov. 18, 2022).

87 FR 69183 Final Rule: “Restoring Protective Human Health Criteria in Washington” (Nov. 18, 2022).

87 FR 69201 Final Rule: “Cyclaniliprole; Pesticide Tolerances” (Nov. 18, 2022).

87 FR 68909 Final Rule: “Sulfur Dioxide; Pesticide Tolerance” (Nov. 17, 2022).

87 FR 68959 Proposed Rule—Public Comment: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities October 2022” (Nov. 17, 2022).

87 FR 68060 Rule: “Drinking Water Contaminant Candidate List 5-Final” (Nov. 14, 2022).

Farm Service Agency

87 FR 69242 Notice—Public Comment: “Information Collection Request; Organic Certification Cost Share Program” (Nov. 18, 2022).

Food and Drug Administration

87 FR 68504 Notice—Public Comment: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Threshold of Regulation for Substances Used in Food-Contact Articles” (Nov. 15, 2022).

Food and Nutrition Service

87 FR 68335 Interim Final Rule: “Supplemental Nutrition Assistance Program: Requirement for Interstate Data Matching to Prevent Duplicate Issuances” (Nov. 15, 2022).

Food Safety and Inspection Service

87 FR 69242 Notice: “Expansion of FSIS Shiga Toxin-Producing Escherichia coli (STEC) Testing to Additional Raw Beef Products” (Nov. 18, 2022).

International Trade Administration

87 FR 68999 Notice: “Certain Frozen Warmwater Shrimp from India: Partial Rescission of Antidumping Duty Administrative Review; 2021-2022″ (Nov. 17, 2022).

87 FR 68681 Notice: “Citric Acid and Certain Citrate Salts from Belgium: Final Results of Antidumping Duty Administrative Review; 2020-2021″ (Nov. 16, 2022).

International Trade Commission

87 FR 69338 Notice: “Frozen Warmwater Shrimp from China, India, Thailand, and Vietnam; Scheduling of Full Five-Year Reviews” (Nov. 18, 2022).

Susquehanna River Basin Commission

87 FR 68223 Notice: “Grandfathering (GF) Registration Notice” (Nov. 14, 2022).

87 FR 68223 Notice: “Commission Meeting” (Nov. 14, 2022).

87 FR 68224 Notice: “Projects Approved for Consumptive Uses of Water” (Nov. 14, 2022).

87 FR 68225 Notice: “Projects Approved for Minor Modifications” (Nov. 14, 2022).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.Res.1485 “Expressing support for the designation of November 17, 2022, as ‘National Rural Mental Health Day.’” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Agriculture. (Nov. 17, 2022).

H.R.9319 “To amend the Food and Nutrition Act of 2008 to provide for the reissuance to households supplemental nutrition assistance program benefits to replace benefits stolen by identity theft or typical skimming practices, and for other purposes.” Referred to the House Committee on Agriculture. (Nov. 16, 2022).

H.R.9309 “To amend the Animal Welfare Act to provide for greater protection of roosters, and for other purposes.” Referred to the Committee on Agriculture, among others. (Nov. 16, 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 Dec. 8, 2022. (Nov. 14, 2022).

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

S.5128 “A bill to designate phosphate and potash as critical minerals, to approve the use of phosphogypsum in government road projects, to amend the Food Security Act of 1985 to provide for the certification of certified crop advisors for conservation technical assistance, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 17, 2022).

S.5116 “A bill to amend the Child Nutrition Act of 1966 to require the authorization of frozen fruits and vegetables under the special supplemental nutrition program for women, infants, and children.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 17, 2022).

S.5096 “Senior Nutrition Task Force Act of 2022.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 15, 2022).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Agriculture Secretary Shops Local In York For A PA Preferred® Thanksgiving Celebration (Nov. 17, 2022).

New 2023 PA Farm Show Competition To Highlight Direct Farm-To-Consumer Marketing Campaigns (Nov. 16, 2022).

Governor’s Invasive Species Council Seeks To Quantify Costs Of Invasives To PA Agriculture, Economy (Nov. 14, 2022).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 47—Nov. 19, 2022): 

Department of Environmental Protection 

52 Pa.B. 7143 Notice: “Applications, Actions and Special Notices.”

52 Pa.B. 7206 Notice: “Ohio Regional Water Resources Committee Public Meeting.”

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