Antitrust: Justice Department Files Complaint and Proposed Consent Decrees in Poultry Plant Worker and Contract Grower Compensation Conspiracy
On July 25, 2022, the United States Justice Department (DOJ) announced that it filed a civil antitrust complaint in the U.S. District Court for the District of Maryland alleging meat producers Cargill Inc., Cargill Meat Solutions Corporation, Sanderson Farms Inc. and Wayne Farms LLC conspired to suppress worker pay, together with data consulting firm Webber, Meng, Sahl and Company (WMS) and its President, G. Jonathan Meng. Additionally, the DOJ proposed ten-year consent decrees as to all defendants and conspirators that include: (a) barring the data firm and its President from “providing surveys or other services that facilitate the sharing of competitively sensitive information in any industry;” (b) prohibiting the defendant processors “from sharing competitively sensitive information about poultry processing plant workers;” (c) providing for a court-appointed compliance monitor and DOJ inspection authority; (d) requiring $84.4 million for payment of restitution to affected poultry processing plant workers, split between Cargill ($15 million), Sanderson ($38.3 million) and Wayne ($31.5 million). Additionally, as part of other DOJ action to approve Cargill and Continental Grain (owner of Wayne) acquiring Sanderson Farms, renaming the new entity Wayne-Sanderson Farms, the proposed consent decrees with Sanderson Farms and Wayne Farms proposes to resolve alleged violations of the Packers and Stockyards Act arising from alleged deceptive practices in the “tournament system” of compensation to contract chicken growers, which DOJ states: (a) will “[p]revent Sanderson Farms and Wayne Farms from penalizing chicken growers by reducing their base payments as a result of relative performance, while still allowing for incentive, bonus and other types of payments to growers;” (b) “[r]equire expanded information disclosures in grower contracts;” and (c) “prohibit retaliation against growers who raise antitrust concerns with the court-appointed compliance monitor or the government,” all to be published in the Federal Register for public comment. The consent decrees have already been agreed to by the named defendants and conspirators but must be approved by the Court in due course.
Antitrust: Koch Poultry Agrees to $15.5M Settlement in Grower Class Action
On June 10, 2022, the U.S. District Court for the Eastern District of Oklahoma, entered an Order preliminarily approving a $15.5 million class action settlement proposal made by Koch Poultry Co. in the multidistrict antitrust civil class action litigation, captioned In Re: Broiler Chicken Grower Antitrust Litigation (No II), MDL NO. 6:20-md-2977-RJS-CMR, in which both Tyson Foods ($21 million) and Perdue Foods ($14.75 million) previously agreed in late 2021 to fund settlements totaling $35.75 million. As with those previous settlements, the class of contract growers eligible to file claims for compensation resulting from an alleged conspiracy to illegally suppress grower payments in violation of federal antitrust laws and the Packers and Stockyards Act are persons or entities paid for chicken growing services by any named defendant or co-conspirator between January 27, 2013, through December 31, 2019. A full list of the Defendants and Co-Conspirators along with information and the administration process for all settlements is available at the website broilergrowersantitrustsettlement.com.
COVID-19: USDA Boosts Pandemic Market Disruption Hog Payments
On July 26, 2022, the U.S. Department of Agriculture announced it would be increasing the amount of funding for the Spot Market Hog Pandemic Program (SMHPP) and beginning to issue estimated payment of $62.8 million to hog producers immediately. The SMHPP is to assist hog producers who sold hogs through the spot market from April 16, 2020, to September 1, 2020, and the applications have been accepted through April 29, 2022. USDA states the increase in funding is to give full payments to the hog producers instead of applying a payment factor as previously planned. The payments will be calculated by paying $54 per hog, not to exceed 10,000 hogs.
Checkoff Programs: USDA Proposes Decrease in Pork Checkoff Rates
On July 20, 2022, the United States Department of Agriculture (USDA) published a proposed rule decreasing the pork checkoff assessment rate from $0.40 to $0.35 per $100 on market value of live domestic hogs and also reducing the assessment per pound due on imported pork and pork products. These assessment rates are proposed annually based on the current market value of pork pursuant to Pork Promotion, Research, and Consumer Information Act of 1985. Funds raised are used by the National Pork Board to promote pork in the marketplace. The public comment period closes August 19, 2022.
Technology: Plant Based Products Council Releases Annual Report
The Plant Based Products Council (PBPC) released its 2021 Annual Report. The Council advocates for “a shift toward a more circular bioeconomy through greater adoption of renewable, plant-based materials supported by appropriate end-of life infrastructure” and its “members come from all links in the plant-based product supply chain, including suppliers of renewable feedstocks, renewable chemical companies, bioplastic resin manufacturers, packaging converters, and consumer-facing companies.” The report lists its advocacy, policy, communication and educational initiatives and accomplishments.
Local Food: USDA Announces State MPI Program Expansion to Oregon
On July 28, 2022, the U.S. Department of Agriculture (USDA), Food Inspection Safety and Inspection Service (FSIS) announced that the state of Oregon became the twenty-eighth state to finalize with USDA a cooperative agreement for a State Meat Inspection Program (MPI) for beef, pork, and lamb slaughter and processing for intrastate sale only.
PROGRAMS & RESOURCES
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. Recordings and materials from prior webinars in this series, more information and registration available here. Next in series:
- Aug. 26, 2022, noon ET: Understanding the Basics of Agricultural Cooperatives.
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, webinars, as well as access the webinar materials here. Next in 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.
Dairy Quarterly 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 focus topic. One hour of substantive CLE credit available for Pennsylvania licensed attorneys at no charge. Recordings and materials from prior webinars in this series, more information and registration available here. Next in series:
- October 25, 2022, 12pm ET. 3rd Quarter 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: August 9, 2022, 12pm – 4 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), who state, “Fifteen leading experts from feed manufacturing, hemp production, scientific research and regulatory oversight will come together for a three-part panel discussion . . . 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., Workers’ Compensation for Agricultural Workers, Samantha Mikolajczyk (July 28, 2022).
Nat’l Agric. Law Ctr., Checking In on Crop Insurance: Overpaid Indemnities and Program Ineligibility, Micah Brown (July 26, 2022).
Agric. Law & Tax’n Blog, Tax Deal Struck? – and Recent Ag-Related Cases, Roger A. McEowen (July 28, 2022).
Ohio St. Univ. Ext. Farm Off. Blog, Avoiding Probate – Not as Hard as You Might Think, Robert Moore (July 28, 2022).
Ohio St. Univ. Ext. Farm Off. Blog, Ohio Farmland Leasing Update is August 11, Peggy Kirk Hall (July 26, 2022).
Tex. A&M Agric. Law Blog, Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial, Tiffany Dowell Lashmet (July 25, 2022).
Top #AgLaw HotLinks July 25 – 29, 2022:
US-Philippine African Swine Fever Project Announced, (Brownfield)
USDA searching for innovations in climate-smart agriculture and soil health, (The High Plains Journal)
McCaul, Smith, Meeks, McCollum Introduce Bipartisan Legislation Reauthorizing the Global Food Security Act, (Foreign Affairs Committee)
Penn State News, Research & Resources:
PSU Ext., Penn State Extension Seeking Agronomy and Animal Science Educators (July 27, 2022).
PSU Ext., Penn State Hemp Research Field Walk: Fiber and Grain Focus (July 27, 2022).
PSU Ext., Corn Leaf Aphid, an Argument Against Tank Mixing Insecticides (July 25, 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, recorded July 19, 2022.
U.S. House Agriculture Committee:
- An Examination of the USDA Hemp Production Program, recorded July 28, 2022.
- A 2022 Review of the Farm Bill: Stakeholder Perspectives on Title XI Crop Insurance, recorded July 20, 2022.
- A 2022 Review of the Farm Bill: The State of Credit for Young, Beginning, and Underserved Producers, recorded July 14, 2022.
- A 2022 Review of the Farm Bill: Forestry, recorded July 13, 2022.
- A 2022 Review of the Farm Bill: Dairy Provisions, recorded June 22, 2022.
- The Role of Climate Research in Supporting Agricultural Resiliency, recorded June 15, 2022.
- A 2022 Review of the Farm Bill: Economic Perspectives on Title 1 Commodities and Title XI Crop Insurance, recorded June 9, 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 [email protected].
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
U.S. Department of Agriculture Announces Key Staff Appointments (July 27, 2022).
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Lifts PACA Reparation Sanctions on New Jersey Produce Business (July 26, 2022).
Animal and Plant Health Inspection Service (APHIS)
Farm Service Agency (FSA)
USDA Begins Issuing Payments for Spot Market Hog Pandemic Program (July 26, 2022).
Food Safety and Inspection Service (FSIS)
Food and Nutrition Service (FNS)
Foreign Agricultural Service (FAS)
Export Sales to Unknown Destinations (July 29, 2022).
National Institute of Food and Agriculture (NIFA)
National Resource Conservation Service (NRCS)
Rural Development (RD)
U.S. Department of Agriculture Announces Key Staff Appointments (July 27, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register July 25 – 29, 2022):
87 FR 45736 Notice: “Submission for OMB Review; Comment Request [Family Day Care Home (FDCH) Participation Study]” (July 29, 2022).
87 FR 45736 Notice: “Submission for OMB Review; Comment Request [Standards for Privately Owned Quarantine Facilities for Ruminants]” (July 29, 2022).
87 FR 45079 Notice: “Submission for OMB Review; Comment Request; Correction [Agricultural Resource Management and Chemical Use Surveys—Substantive Change] (July 27, 2022).
87 FR 44265 Rule: “Delegations of Authority” (July 26, 2022).
87 FR 44081 Notice: “Submission for OMB Review; Comment Request [7 CFR part 215—Special Milk Program for Children]” (July 25, 2022).
87 FR 44081 Notice: “Submission for OMB Review; Comment Request [Cooperative State-Federal Brucellosis Eradication Program]” (July 25, 2022).
87 FR 44082 Notice: “Submission for OMB Review; Comment Request [Technical Assistance for Specialty Crops Program]” (July 25, 2022).
Animal and Plant Health Inspection Service
87 FR 45079 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Plum Pox Compensation” (July 27, 2022).
87 FR 45080 Notice—Comment Period: “Notice of Request for Extension of Approval of an Information Collection; Approval of Laboratories To Conduct Official Testing” (July 27, 2022).
Environmental Protection Agency
87 FR 45665 Rule—Comment Period: “Isofetamid; Pesticide Tolerances” (July 29, 2022).
87 FR 45104 Notice—Comment Period: “Notice of Availability of a Draft Modification to the NPDES Aquaculture General Permit (AQUAGP) for Concentrated Aquatic Animal Production (CAAP) Facilities and Other Related Facilities in Vermont” (July 27, 2022).
87 FR 44278 Rule: “Notification of Submission to the Secretary of Agriculture; Pesticides; Certification of Pesticide Applicators; Further Extension to Expiration Date of Certification Plans; Draft Final Rule” (July 26, 2022).
Food and Drug Administration
87 FR 45112 Notice—Comment Period: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Registration of Food Facilities” (July 27, 2022).
Food and Nutrition Service
87 FR 45737 Notice—Comment Period: “Agency Information Collection Activities: Supplemental Nutrition Assistance Program Waivers Under the Food and Nutrition Act” (July 29, 2022).
87 FR 44326 Notice: “Child and Adult Care Food Program: National Average Payment Rates, Day Care Home Food Service Payment Rates, and Administrative Reimbursement Rates for Sponsoring Organizations of Day Care Homes for the Period July 1, 2022 Through June 30, 2023” (July 26, 2022).
87 FR 44329 Notice: “National School Lunch, Special Milk, and School Breakfast Programs, National Average Payments/Maximum Reimbursement Rates” (July 26, 2022).
International Trade Administration
87 FR 44084 Notice: “Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; 2020-2021; Correction” (July 25, 2022).
87 FR 44085 Notice: “Citric Acid and Certain Citrate Salts From Thailand: Final Results of Antidumping Duty Administrative Review; 2020-2021″ (July 25, 2022).
Land Management Bureau
87 FR 45794 Notice: “Notice of Proposed Filing of Plats of Survey; Montana” (July 29, 2022).
87 FR 45794 Notice: “Notice of Proposed Filing of Plats of Survey; South Dakota” (July 29, 2022).
87 FR 45795 Notice: “Notice of Proposed Filing of Plats of Survey; North Dakota” (July 29, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.8527 “To establish a Good Steward Cover Crop Program, and for other purposes” Referred to the House Committee on Agriculture (July 27, 2022).
H.R.2021 “Environmental Justice For All Act” Ordered to be Reported (Amended) by the Yeas and Nays: 26 – 21 (July 27, 2022).
H.R.8514 “To amend the Marine Mammal Protection Act of 1972 and the Animal Welfare Act to prohibit the taking, importation, exportation, and breeding of certain cetaceans for public display, and for other purposes” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned (July 26, 2022).
H.R.8495 “To amend the Food and Nutrition Act of 2008 to transition the Commonwealth of Puerto Rico to the supplemental nutrition assistance program, and for other purposes” Referred to the House Committee on Agriculture (July 26, 2022).
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.4667 “A bill to amend the Agricultural Foreign Investment Disclosure Act of 1978 to require additional reporting and public disclosure of information” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 28, 2022).
S.4625 “A bill to amend the Richard B. Russell National School Lunch Act to improve nutrition in tribal areas, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 26, 2022).
S.4604 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to authorize grants for eligible institutions to carry out agriculture workforce training programs, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 25, 2022).
S.4602 “A bill to amend the Richard B. Russell National School Lunch Act to prohibit the stigmatization of children who are unable to pay for school meals, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (July 25, 2022).
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 31—July 30, 2022):
Delaware River Basin Commission
52 Pa.B. 4256 “Public Hearing and Public Business Meeting”
Department of Agriculture
52 Pa.B. 4256 “Program Requirements for the Urban Agricultural Infrastructure Grant Program”
Department of Environmental Protection
52 Pa.B. 4259 “Applications, Actions and Special Notices”
52 Pa.B. 4317 “Availability of the Non-Regulatory Agenda”
52 Pa.B. 4317 “Pennsylvania’s 2022 Annual Ambient Air Monitoring Network Plan”
Milk Marketing Board
52 Pa.B. 4381 “Hearing and Presubmission Schedule for All Milk Marketing Areas; Over-Order Premium; Amended Notice”
Kendal Ashman—Research Assistant
Dillon Lightfoot—Research Assistant
Brook Duer—Staff Attorney