National Agricultural Policy: Budget Includes $25 Million in HPAI Poultry Grower Assistance Grants and $220 Million in Chesapeake Bay Nutrient Reduction and Sediment Reduction Program Funds
On July 8, 2022, Pennsylvania Governor Tom Wolf signed into law Act No. 1A of 2022, formerly known as Senate Bill 1100, titled the “General Appropriation Act of 2002” and Act No. 54 of 2022, formerly known as House Bill 1421, commonly referred to as the “2022-2023 Fiscal Code Bill,” both of which together provide the primary state fiscal year 2022-23 budget for the Commonwealth of Pennsylvania government. The most succinct summary of the budget is provided by the Governor’s Office of the Budget via a document titled “2022-23 Enacted Budget Line Item Appropriations,” including line-by-line appropriations to the Pennsylvania Department of Agriculture (PDA) reflecting multiple line item increases of significance and a 10.9% increase in funding for general government operations from the Pennsylvania General Fund. Highlights include:
- The budget provides $34 million to the PDA for “Agricultural Preparedness and Response,” not less than $25 million of which is legislatively mandated to be used for reimbursement grants for costs and financial losses “associated with preparing and responding to an outbreak of highly pathogenic avian influenza” and “not eligible for or covered by Federal funding, insurance, contracts or other funding sources.” This is primarily understood to mean direct producer payments for HPAI losses and expense other than depopulated birds and disinfecting and disposal expenses.
- The budget also creates the Clean Streams Fund, into which will receive $220 million of Pennsylvania’s federal American Rescue Plan funding appropriation and which is made non-lapsing (can be used fiscal year-after-fiscal year until 100% expended). 70% of that amount is to be distributed to the State Conservation Commission (SCC) to implement a newly created statutory program called the Agriculture Conservation Assistance Program. The funds shall be used for the purpose of “preventing nutrient and sediment pollution” generally and are anticipated to be used nearly exclusively by the SCC to help meet Pennsylvania’s 2025 reduction mandates for nitrogen, phosphorus and sediment contributions to the Chesapeake Bay. On July 19, 2022, the Pennsylvania Department of Environmental Protection (DEP) submitted an amended Pennsylvania Phase 3 Chesapeake Bay Watershed Implementation Plan, Final August 2019, AMENDED July 2022 to the U.S. Environmental Protection Agency (EPA) reflecting the new program and funding.
Pesticides/Herbicides: Eleventh Circuit Court Finds No Federal Preemption of Roundup Product Liability Claims; Bayer’s Unsuccessful Again in Reducing Liability
On July 12, 2022, the U.S. Eleventh Circuit Court of Appeals issued an opinion in John D. Carson, Jr. v. Monsanto Company, No. 21-10994, which held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) statute and its pesticide registration and labeling regulatory scheme did not preempt Mr. Carson’s state common law-based products liability tort claim for failure to warn him of the risk of developing non-Hodgkin’s lymphoma from exposure to or use of the Monsanto Roundup product line containing glyphosate. Plaintiff Carson’s failure-to-warn products liability claims were dismissed by the federal trial court on December 21, 2020, on federal preemption grounds. For more background and the significance of the Carson case to Bayer’s strategy to reduce its financial liabilities as owner of and successor to Monsanto’s product liabilities arising from Roundup, see the Agricultural Law Weekly Review—Week Ending June 24, 2022, “U.S. Supreme Court Declines to Hear Bayer Roundup Verdict Appeal” and “U.S. Supreme Court Declines to Hear Second Bayer Roundup Verdict Appeal.” While an attempt to appeal the Carson case decision to the U.S. Supreme Court is possible, the denial by the U.S. Supreme Court of two requests by Bayer to accept appeals based upon the same legal issue less than one month ago make that unlikely to be successful. Bayer has made no public acknowledgment of or statement on the Carson decision on its webpage used for such purposes titled “Five-Point Plan to Close the Roundup Litigation.”
Conservation Programs: 2022 Grassland Conservation Reserve Program Totals Exceed 5.6 Million Acres
On July 12, 2022, the USDA announced it is accepting offers for more than 3.1 million acres for conservation contracts via 2022’s Conservation Reserve Program (CRP) Grassland Signup. A new record high, the 2022 Grassland CRP signup exceeded 2021’s 2.5 million acres by 22%. For 2022, landowners had already enrolled 2 million acres through the General Signup and more than 464,000 acres have been submitted through the Continuous CRP Signup, resulting in approximately 5.6 million acres entering CRP in 2023, surpassing the 3.9 million acres expiring this year.
FSMA: FDA Publishes Final Guidance for FSMA’s Animal Food Preventative Controls Rule
On July 8, 2022, the U.S. Food and Drug Administration (FDA) published in the Federal Register (87 FR 40846) a final guidance document titled “Guidance for Industry #245, Hazard Analysis and Risk-Based Preventive Controls for Food for Animals” to assist animal food facilities comply with requirements of the Food Safety Modernization Act’s (FSMA) Final Rule for Preventative Controls for Animal Food. This finalizes the draft guidance published on January 23, 2018 (81 FR 3163).
Water Quality: Pennsylvania Enacts Turf Fertilizer Law
On July 11, 2022, Pennsylvania Governor Tom Wolf signed into law Act No. 83 of 2022, previously known as Senate Bill 251, amending the Agriculture Title of Pennsylvania Consolidated Statutes (Title 3) to add new Chapter 68, Sections 6801 – 6832 titled “Fertilizer.” It adds for the first time to Pennsylvania law, after over a decade of unsuccessful attempts, a comprehensive regulatory scheme applicable to the use of fertilizer not in connection with the production of crops, livestock or poultry, e.g. fertilizer labeled for turf uses. The enactment of this legislation is one of Pennsylvania’s state programmatic priority initiatives to achieve nutrient reductions contained in the Pennsylvania Phase 3 Chesapeake Bay Watershed Implementation Plan, Final August 2019, AMENDED July 2022 and is described therein as follows: “This bill . . . would limit nitrogen and phosphorus in consumer-level fertilizer as well as nitrogen and phosphorus applications by professional lawn companies, unless they prepare a site-specific nutrient management plan.”
Dairy Policy: Hearing Scheduled on “Existence” Of Pennsylvania’s Over-Order Premium
On July 11, 2022, the Pennsylvania Milk Marketing Board (PMMB) entered an order scheduling a hearing beginning on August 30, 2022, and continuing through and including September 1, 2022, if necessary, to adjudicate the May 27, 2022, petition filed by the Pennsylvania Department of Agriculture. According to the Order, the PMMB will take evidence on “the existence, level and duration” of Pennsylvania’s current Over-Order premium. For more details, see Agricultural Law Weekly Review—Week Ending June 17, 2022, “Pennsylvania Milk Marketing Board Petitioned to Consider Alternatives to Current Over-Order Premium.”
Local Food: Pennsylvania Expands Small Meat Processor Reimbursement Grant Program
On July 7, 2022, Pennsylvania Governor Tom Wolf signed into law Act No. 52 of 2022, formerly known as Senate Bill 1236, amending the Agriculture Title of Pennsylvania Consolidated Statutes (Title 3) to revise a previous statutory grant program initiated in the 2019 Pennsylvania Farm Bill, now bearing the revised title, “Very Small Meat and Poultry Processor Reimbursement Grant Program.” The revisions are intended to promote small and local processing capacity in the state by expanding the grant program’s eligibility beyond only reimbursement for USDA certification expense and also to include poultry processing, as well as clarifying several administrative details.
Organic Agriculture: Minnesota Indicted in $46 Million Organic Grain Fraud Scheme
On July 11, 2022, the U.S. Attorney for the District of Minnesota announced the indictment of James Clayton Wolf, a farmer from Jeffers, Minnesota, on three counts of wire fraud as part of a scheme to defraud grain purchasers by selling conventionally-produced, but non-GMO, corn and soybeans falsely represented as organic over a period of six years from 2014-2020, netting more than $46 million in payment from buyers. Wolf possessed a National Organic Program (NOP) certification and provided it to buyers as part of the fraud, while in fact producing his crops conventionally and buying for resale (without a grain buyer’s license) additional conventionally produced grains from third parties.
Pesticides/Herbicides: CDC Finds Glyphosate in 81% of Human Urine Samples
On June 30, 2022, the Center for Disease Control and Prevention (CDC)’s National Center for Health Statistics, through an update to its National Health and Nutrition Examination Survey (NHANES), released compiled laboratory testing results and data from urine samples taken in 2013-14 which found, among other things, that 87 percent of 650 children tested between the ages of 6 – 18 had detectable levels of the herbicide glyphosate in their urine. In addition, of 2316 urine samples from persons between the ages of 6 – 60, 1885 (or >81%) showed a detectable presence of glyphosate. The presence of glyphosate in food is the result of the herbicide being used as a pre-harvest drying agent, or desiccant, so crops like oats can be harvested sooner.
Agricultural Data: Pork Industry Economic Impact Report Released
On July 11, 2022, The National Pork Producers Council (NPPC) released an economic impact report for the U.S. pork industry titled, The United States Pork Industry 2021: Current Structure and Economic Importance, which, among other things, claims that in 2021: (a) more than 66,000 pork producers; (b) sold more than 140 million hogs; (c) worth over $28 billion; and (d) the production and processor sector supported more than $35 billion in personal income. Additionally, (e) 25% of U.S. pork is exported; (f) equal to 7 billion pounds of pork; (g) valued at $8 billion; (h) with exports adding more than $62 per head.
PROGRAMS & RESOURCES
- Raw Butter, Ammonia Air Emissions & NPDES Permits, and PA’s Biodiesel Mandate (July 15. 2022).
- SCOTUS Declines to Hear Bayer RoundUp Verdict Appeals (July 6, 202).
- SCOTUS Update: Sackett v. EPA (June 28, 2022).
- SCOTUS Update: National Pork Producers Council v. Ross (June 23, 2022).
- New HPAI cases nearly zero and Renewable Fuel Standards volume set (June 15, 2022).
Webinar Series: 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. More info and Registration. Recordings and materials of prior webinars in the series:
- Understanding the Basics of Agricultural Labor Laws (April 29, 2022)
- Understanding the Basics of Leasing Farmland for Energy Development (May 20, 2022).
- Understanding the Basics of Land Use Regulation of Agriculture (June 24, 2022).
- July 22, 2022, noon ET: Understanding the Basics of Statutory Protections for Agricultural Operations. Register.
Webinar Series: Legal Planning for Specialty Crop Producers. A free periodic 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. Prior webinars in the series:
- Legal Liability Risks from Business Invitees on the Farm (Mar. 9, 2022).
- Legal Liabilities in Selling Raw and Processed Specialty Crop Products (Mar. 23, 2022).
- Business Structures for Operational Resilience and Liability Avoidance (Apr. 6, 2022).
Upcoming webinars in the Legal Planning for Specialty Crop Producers series:
- 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.
Webinar Series: Quarterly Dairy 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. 3rdQuarter 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.
Webinar: July 21, 2022, 3:00 ET. The Business of Farming and Ranching presented by USDA and SBA. Free. Presented by the Pennsylvania Small Business Development Center (SBDC) who state, “Learn about online tools available from the USDA and SBA to help you start, grow and succeed in your farming, ranching or related business. Topics covered will include how to access funding, developing business acumen, where to find local assistance & basics of selling to the government. You will have an opportunity to ask questions about federal programs and services during this session.” Register.
Webinar: August 9, 2022, 10 am – 2 pm ET. Why Isn’t Hemp in Animal Feed? A Discussion an Overcoming Challenges & Gaining Approval. Free. Presented by the Association of American Feed Control Officials (AAFCO) and National Industrial Hemp Council of America (NIHC). Fifteen leading experts from feed manufacturing, hemp production, scientific research and regulatory oversight will come together for a three-part panel discussion, Q&A and complex conversation around: Scientific research and data; Ingredient review and approval; Interests and concerns everyone is facing. The goal is to connect with industry peers and share meaningful dialog around overcoming the challenges and moving forward together so hemp can become a safe and beneficial feed ingredient. Register.
In-person workshop: August 16, 2022, 1 – 5 pm ET. Business Planning for Veteran Agribusinesses, Eight Oaks Farm Distillery, New Tripoli, PA. Free. Presented by the PA Veteran Farming Project network, who state “Workshop registration is free and open to eligible veterans, AD, Guard/Reserve and spouses of these. Be prepared to present proof of service.” Register.
Agricultural Law & Policy Resources of Interest:
Nat’l Agric. Law Ctr., Collective Bargaining Rights for Farmworkers, Samantha Mikolajczyk, (July 14, 2022).
Nat’l Agric. Law Ctr., Checking In on Crop Insurance: FCIC Final Rule Amends Common Crop Insurance Policy, Micah Brown (July 12, 2022).
Univ. Md. Risk Mgmt. Educ. Blog, What is Ancillary Probate?, Paul Goeringer (July 12, 2022).
Ohio St. Univ. Ext. Farm Off. Blog, Assessing Long Term Care Risks, Robert Moore (July 14, 2022).
Ohio St. Univ. Ext. Farm Off. Blog, A glimpse at farming and legal issues in Scandinavia, Peggy Kirk Hall (July 12, 2022).
Texas A&M AgriLife Extension, Where’s the Beef? Legal and Economic Considerations for Direct Beef Sales.(July 2022).
Agric. Law & Tax’n Blog, Durango Conference and Recent Developments in the Courts, Roger A. McEowen (July 13, 2022).
Agric. Law & Tax’n Blog, Constitutional Limit on Government Agency Power – The “Major Questions” Doctrine, Roger A. McEowen (July 11, 2022).
Progressive Farmer, Ag Policy Blog, Facing Border and Migrant Politics, Some Lawmakers Push Ag Immigration Reform, Chris Clayton (July 14, 2022).
Progressive Farmer, Ag Policy Blog, House Ag Leaders Set up On-Line Comment Form for Farm Bill, Chris Clayton (July 12. 2022).
National Pork Producers Council, The United States Pork Industry 2021: Current Structure and Economic Importance, Holly Cook and Lee Schulz (July 2022).
Hoard’s Dairyman, Does fluid milk warrant a price premium? Christopher Wolf (July 13, 2022).
Bay Journal, Chesapeake Bay & the case of the missing chickens, Karl Blankenship (July 13, 2022).
Washington Post, Maryland, behind in cleaning up Chesapeake, beefs up restoration efforts, Antonio Olivo (July 12, 2022).
Top #AgLaw HotLinks July 11 – July 15, 2022:
USDA Seeks Comments On Rule To Make Poultry Growing Contracts And Tournaments More Transparent, Maryland Department of Agriculture and Natural Resources
Penn State News, Research & Resources:
PSU Ext., Strategies to Decrease Drought Risk in Crop Production (July 13, 2022).
PSU Ext., Be Aware of Invertebrate Pest Species That Do Well in Hot and Dry Conditions (July 12, 2022).
PSU Ext., Sporecaster Mobile Application for Forecasting White Mold in Soybeans in 2022 (July 12, 2022).
Agriculture-Related Legislative Hearings & Reports:
U.S. House Oversight and Reform Committee, Subcommittee on Environment, Regenerative Agriculture: How Farmers and Ranchers are Essential to Solving Climate Change and Increasing Food Production, July 19, 2022, 2 pm ET. Webcast.
U.S. House Agriculture Committee, Subcommittee on Farm Commodities and Risk Management, A 2022 Review of the Farm Bill: Stakeholder Perspectives on Title XI Crop Insurance, July 20, 2022, 10 am ET. Webcast.
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 [email protected].
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Lifts PACA Reparation Sanctions on Maryland Produce Business (July 12, 2022).
USDA Lifts PACA Reparation Sanctions on New Jersey Produce Business (July 12, 2022).
Agricultural Research Service (ARS)
Animal and Plant Health Inspection Service (APHIS)
USDA Updates Swine Hemorrhagic Fevers Surveillance Plan (July 15, 2022).
Farm Service Agency (FSA)
USDA Accepts More than 3.1 Million Acres in Grassland CRP Signup (July 12, 2022).
Foreign Agricultural Service (FAS)
EXPORT SALE RETRACTION (FAS-ESR-068-22) (July 15, 2022).
FAS Administrator Whitley to Lead Philippines Trade Mission (July 13, 2022).
Fourteen New Agricultural Officers Sworn into Foreign Service (July 11, 2022).
Forest Service (FS)
National Institute of Food and Agriculture (NIFA)
What is a Schedule A? (July 13, 2022).
Technology Transforming Forest Management (July 12, 2022).
National Agricultural Statistics Service (NASS)
Agricultural Statistics Board Briefing (July 12, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register July 11– 15, 2022):
Agricultural Marketing Service
87 FR 41096 Notice—Comment Period: “Process for the Evaluation of Technology for Official Grain Inspection” (July 11, 2022).
87 FR 42138 Notice: “Submission for OMB Review; Comment Request” (July 14, 2022).
87 FR 41656 Notice: “Submission for OMB Review; Comment Request” (July 13, 2022).
87 FR 41077 Proposed Rule—Comment Period: “Privacy Act Regulations” (July 11, 2022).
87 FR 41097 Notice: “Submission for OMB Review; Comment Request [Land Leasing Survey in Oklahoma.]” (July 11, 2022).
Animal and Plant Health Inspection Service
87 FR 41098 Notice—Comment Period: “Privacy Act of 1974; System of Records” (July 11, 2022).
Environmental Protection Agency
87 FR 42327 Rule—Comment Period: “Benoxacor; Pesticide Tolerances” (July 15, 2022).
87 FR 42332 Rule—Comment Period: “Tribenuron Methyl; Pesticide Tolerances” (July 15, 2022).
87 FR 41714 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability” (July 13, 2022).
87 FR 41310 Notice—Comment Period: “Petition To Revoke Tolerances and Cancel Registrations for Certain Organophosphate Uses; Notice of Filing” (July 12, 2022).
87 FR 41312 Notice—Comment Period: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability” (July 12, 2022).
Food and Nutrition Service
87 FR 42138 Notice: “Food Distribution Program: Value of Donated Foods From July 1, 2022 Through June 30, 2023” (July 14, 2022).
87 FR 41101 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-Serving SNAP Applicants and Participants With Limited English Proficiency (LEP)” (July 11, 2022).
Foreign Agriculture Service
87 FR 41275 Notice—Comment Period: “Privacy Act of 1974: New System of Records” (July 12, 2022).
87 FR 41106 Notice: “Fiscal Year 2022 Raw Cane Sugar Tariff-Rate Quota Increase and Extension of the Entry Period” (July 11, 2022).
87 FR 41106 Notice: “Determination of Total Amounts of Fiscal Year 2023 WTO Tariff-Rate Quotas for Raw Cane Sugar” (July 11, 2022).
87 FR 42438 Notice: “Final Record of Decision for the Cibola National Forest Land Management Plan” (July 15, 2022).
87 FR 41278 Notice: “Directive Publication Notice” (July 12, 2022).
87 FR 41347 Notice—Comment Period: “Agency Information Collection Activities; Water Resources Research Act Program-State Water Resources Research Institute Annual Base Grant, National Competitive Grants, and Reporting” (July 12, 2022).
International Trade Administration
87 FR 42156 Notice: “Agreement Suspending the Antidumping Duty Investigation on Sugar From Mexico: Final Results of the 2019-2020 Administrative Review; Correction” (July 14, 2022).
Land Management Bureau
87 FR 42493 Notice—Comment Period: “Request for Information (RFI) on Federal Old-growth and Mature Forests” (July 15, 2022).
National Agriculture Statistics Service
87 FR 42438 Notice—Comment Period: “Notice of Intent to Request Revision and Extension of a Currently Approved Information Collection” (July 15, 2022).
Rural Business-Cooperative Service
87 FR 42141 Notice: “OneRD Annual Notice of Guarantee Fee Rates, Periodic Retention Fee Rates, Loan Guarantee Percentage and Fee for Issuance of the Loan Note Guarantee Prior to Construction Completion for Fiscal Year 2023” (July 14, 2022).
Rural Utilities Service
87 FR 41279 Notice—Comment Period: “60-Day Notice of Proposed Information Collection: Review Rating Summary, RUS Form 300; OMB Control No.: 0572-0025″ (July 12, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.6936 “Stamp Out Invasive Species Act” Ordered to be Reported by Unanimous Consent (July 13, 2022).
H.R.3686 “Ski Hill Resources for Economic Development Act” Ordered to be Reported in the Nature of a Substitute (Amended) by Unanimous Consent (July 13, 2022).
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.Res.712 “A resolution recognizing the need for greater access to rural and agricultural media programming” Referred to the Committee on Agriculture, Nutrition, and Forestry. (text: CR S3311-3312) (July 13, 2022).
S.Res.709 “A resolution expressing the commitment of the Senate to building on the 20 years of success of the George McGovern-Robert Dole Food for Education and Child Nutrition Program” Referred to the Committee on Agriculture, Nutrition, and Forestry. (text: CR S3310) (July 14, 2022).
S.4030 “Cattle Price Discovery and Transparency Act of 2022” Placed on Senate Legislative Calendar under General Orders. Calendar No. 437. (July 11, 2022).
S.3870 “Meat and Poultry Special Investigator Act of 2022” Placed on Senate Legislative Calendar under General Orders. Calendar No. 436 (July 11, 2022).
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 29—July 16, 2022):
Department of Agriculture
52 Pa.B. 3986 “Bureau of Ride and Measurement Standards; Temporary Enforcement Guidance”
Department of Environmental Protection
52 Pa.B. 4042 “Availability of National Pollutant Discharge Elimination System General Permit for Wet Weather Discharges from Combined Sewer Systems (PAG-06)”
52 Pa.B. 4043 “Extension of National Pollutant Discharge Elimination System General Permit for Discharges of Stormwater Associated with Industrial Activity (PAG-03)”
52 Pa.B. 4045 “Statewide Water Resources Committee; Meetings Rescheduled”
Kendal Ashman—Research Assistant
Dillon Lightfoot—Research Assistant
Brook Duer—Staff Attorney