Avian Influenza: New Commercial HPAI Detections Plummet Nationally
As of June 13, 2022, the U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS)’s HPAI 2022 Confirmed Detections database confirmed a total of 369 highly pathogenic avian influenza (HPAI) detections in 36 states (186 commercial flocks and 183 backyard flocks), resulting in 40.09 million birds depopulated. Iowa leads the nation with 13.374 million birds depopulated in 15 infected commercial premises, however there have been no new detections in Iowa since May 4th and the Iowa Department of Agriculture has ended a moratorium on live bird exhibitions effective June 3rd.
- New commercial poultry premise detections have decreased nationally from a high of 45 during the first week of April to an average of 10.3 per week over the first three weeks of May, 0 in the final full week of May and 1 detection between May 29 – June 4th.
- On May 27, 2022, USDA Secretary Vilsack authorized the transfer of $400 million from the Commodity Credit Corporation to APHIS to support HPAI response efforts, adding to previous emergency funding of $130 million in March and $263 million in April. USDA has not released information on the totals expended to date for administrative expense and producer indemnity and compensation.
- Between April 15 through June 7, 2022, USDA APHIS has confirmed17 HPAI infected commercial poultry premise/flocks in Pennsylvania, totaling 4,254,700 birds depopulated. There are 8 infected premises in Lancaster County, totaling 3,767,300 layers, 68,400 broilers, and 19,300 ducks. There are 9 infected premises in neighboring Berks County, totaling 162,400 layers, and 207,000 ducks. Control Zone restrictions have been lifted at 8 Pennsylvania infected commercial premises. On June 9, 2022, the Pennsylvania Department of Agriculture confirmed via memorandum to the Pennsylvania State Association of County Fairs the continuation, until formally revised by subsequent order, the General Quarantine Order of April 16, 2022, prohibiting poultry and poultry product exhibition throughout the 2022 fair season.
- In terms of states surrounding Pennsylvania, there have been zero commercial poultry detections in Ohio, West Virginia, Virginia, and New Jersey, while New York suffered one (9502 birds), Delaware three (1.438 million birds) and Maryland four (1.762 million birds).
Food Policy: USDA Announces “Framework to Transform Food Systems”
On June 1, 2022, the U.S. Department of Agriculture announced details of a set of actions collectively called a “Food Systems Transformation” framework, funded by American Rescue Plan Act and other pandemic relief legislation, to serve the purposes announced in Executive Order 14017 (America’s Supply Chains) and “to benefit consumers, producers and rural communities by providing more options, increasing access, and creating new, more, and better markets for small and mid-size producers.” The initial announcement outlined over $3 billion of investment in at least 16 USDA programs to serve those objectives.
Agricultural Antitrust: Federal Right to Repair Litigation Against Deere & Company Consolidated
On June 1, 2022, the United States Judicial Panel on Multidistrict Litigation entered an Order establishing that the United States District Court for the Northern District of Illinois, Judge Iain D. Johnston, shall be the federal district court where all lawsuits filed in federal district courts against Deere & Company making the following allegations shall be consolidated and conducted, regardless of where initially filed: “allegations that, through various anticompetitive practices, Deere has monopolized the market for repair and maintenance services for Deere agricultural equipment equipped with engine control units by restricting access to necessary repair-related software and diagnostic tools.” The Order lists an initial six cases from federal district courts in Alabama, Illinois, Oklahoma, and Tennessee to be consolidated and acknowledges six additional pending cases to be potentially consolidated through future orders. The consolidated litigation shall be captioned In Re: Deere & Company Repair Services Antitrust Litigation, MDL No. 3030 (N.D. Ill.).
COVID-19: JBS Foods Settles with OSHA Over 2020 Plant Violations
On May 27, 2022, the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) announced a settlement with JBS Foods USA (JBS) arising from enforcement actions taken for “failures to protect workers from coronavirus hazards” related to April and May 2020 inspections and ultimate shutdowns of JBS’ plants in Greely, Colorado and Green Bay, Wisconsin. The settlement includes a $14,502 fine and a set of requirements to be implemented at seven JBS plants in Colorado, Illinois, Nebraska, Pennsylvania, Texas and Wisconsin, including engaging third-party expert panels to develop infectious disease preparedness plans.
WOTUS: EPA Science Advisory Board Convenes on Proposed Revised WOTUS Rule
On June 2, 2022, the U.S. Environmental Protection Agency’s Science Advisory Board concluded a three-day meeting deliberating on “the adequacy of the scientific and technical basis” for the December 7, 2021 proposed revised WOTUS rule (86 FR 69372). An advisory report of its findings is not yet issued, however a draft report prepared from preparatory work for this meeting was prepared.
Water Quality: High-Resolution Imagery of Land Use Change in Chesapeake Bay Watershed Released
On May 17, 2022, the Chesapeake Bay Program, the U.S. Geological Survey, the Chesapeake Conservancy and the University of Vermont announced the release of the free, publicly-accessible and interactive “Very High- Resolution Land Use/Land Cover and Change Data,” which reflects land cover and land use change 30 times higher than satellite imagery previously used, across 99,000 square miles and 206 counties of the Chesapeake Bay watershed between the years 2013-14 and 2017-18. The on-line data set and imagery is contained at “CBP Land Use/Land Cover Data Project” website and includes a 61-page overview of the project and a recorded webinar. Four of the seven largest increases in impervious surface were the Pennsylvania counties of Lancaster (#2; 2,424 acres), Chester (#4; 2,002 acres), York (#5; 1,770 acres), and Cumberland (#6; 1,763 acres).
Agricultural Finance: Outdated Federal Flood Insurance Guidance Updated
On May 31, 2022, the Farm Credit Administration, along with four other federal entities involved in administering the mandatory federal flood insurance mandate for mortgage loans made by federally regulated lending institutions, published a revised version of federal guidance titled, “Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding Flood Insurance.” (87 FR 3286). This is the first revision of this primary federal guidance on flood insurance since 2011, reflecting many subsequent statutory and regulation changes.
Food Labeling: Kansas Enacts “Fake Meat Labeling” Law
On May 5, 2022, Kansas Governor Laura Kelly signed into law Kansas SB 261, informally named the “Fake Meat Labeling Bill,” requiring, among other things, that as of July 1, 2022, alternative meat products sold in Kansas using meat terms will be considered misbranded if without a disclaimer that the product does not contain meat in a prominent and conspicuous font size in close proximity to the meat term. Disclaimers can include vegetarian, vegan, meatless, meat-free, plant-based or other terms approved by the Kansas Secretary of Agriculture.
PROGRAMS & RESOURCES
- HPAI Confirmed Throughout the U.S. & USMCA Dispute Continues Over Canadian Dairy Tarif-Rate Quotas (May 23, 2022).
Top #AgLaw HotLinks May 30 – June 3, 2022:
USDA Forecasts Record Farm Exports in FY 2022, Farm Policy News
USDA Investing $5.1M to Address Antimicrobial Resistance, Meat & Poultry
Wyoming Chalks a Win For Federal Lands Grazing, The Fence Post
APHIS Provides $400M For Avian Flu Response, FarmProgress
Dairy Group Seeks Clarification on Milk Pricing Changes, Capital Press
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 of prior webinars in the series: Understanding the Basics of Agricultural Labor Laws (April 29, 2022) and Understanding the Basics of Leasing Farmland for Energy Development (May 20, 2022).
- 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. Register.
Legal Planning for Specialty Crop Producers. A free 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. Webinars 1–3 (recordings and materials 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 are upcoming:
- 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 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. 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.
Agricultural Law & Policy Resources of Interest:
- Process and Procedure
- HPAI Response: Overview of Finance & Administration Procedures (Feb. 2022). This document is the outline of the process to be followed to get paid for birds/eggs and potentially virus elimination if not done 100% by USDA APHIS contractors. This document extensively incorporates contents of an LPAI guidance document, titled: VS Guidance 8603.2 Procedures for Indemnity and Compensation Claims in Cases of H5/H7 Low Pathogenicity Avian Influenza Infection in Poultry.Within this document are mentioned forms that can be found either: (a) directly within VS Guidance 8603.2 discussed above; or (b) on the APHIS webpage titled, Highly Pathogenic Avian Influenza (under the green drop-down menu titled “Response and Policy Information” and then under the heading “Finance and Administration Processes”).
- Producer Indemnity (payment for birds and eggs)
- HPAI Response: Poultry Indemnity Valuation (Apr. 2022) – explains the process and how valuations are set.
- USDA Indemnity Values for 2022: Commercial Table (Mar. 2022) – the actual published amounts for 2022.
- VS Indemnity Values for 2022: Specialty Table (Mar. 2022) – the actual published amounts for 2022
- Producer Compensation (payment for depopulation, disposal, and disinfection, i.e., “virus elimination”)
- HPAI Virus Elimination: Per-Square-Foot Rates for Floor-Raised Poultry (Sept. 2020 – still current as of 4/14/22). – explains the process, how amounts are set and contains the actual published amounts.
- HPAI Virus Elimination: Per-Cubic-Yard Flat Rates for Table Egg-Laying Bird Barns and Table Egg Storage and Processing Facilities (Sept. 2020- still current as of 4/14/22) – explains the process, how amounts are set and contains the actual published amounts.
Nat’l Agric. Law Ctr., Lending for Livestock, Credit for Crops: Strict Foreclosure, Micah Brown (May 31, 2022).
Nat’l Agric. Law Ctr., Procedures: The Routes that a Dispute Can Take, Samantha Mikolajczyk (June 2, 2022).
Agric. Law & Tax’n Blog, Recent Court Decisions Involving Taxes and Real Estate, Roger A. McEowen (May 30, 2022).
Univ. Md. Risk Mgmt. Educ. Blog, Recent Wind Farm Decision Highlights Difference in State Processes, Paul Goeringer (June 1, 2022).
Ohio St. Univ. Ext. Farm Off. Blog, The Perils of Partition – The Forced Sale of Land (Part 1), Robert Moore (May 31, 2022).
Tex. A&M Agric. Law Blog, FREE Direct Beef Sales Programs, Tiffany Dowell (May 30, 2022).
Hemp Benchmarks, Where Does the U.S. Hemp Industry Go From Here? (May 11, 2022)
Courthouse News Service, Biofuels remain heavily subsidized, even as environmentalists turn against them (June 4, 2022).
Chesapeake Bay Program, What we’ve learned from exploring a century of nitrogen pollution (June 6, 2022).
Penn State News, Research & Resources:
PSU Ext., 2022 Pennsylvania Vegetable Disease Update for June 1 (June 1, 2022).
PSU Ext., Hay Herbicide Options After 1st Cutting (June 1, 2022).
PSU Ext., Pokeweed Control in Corn and Soybean (June 1, 2022).
PSU Ext., Re-calibrating the Pre-Sidedress Soil Nitrate Test for Corn (May 31, 2022).
PSU Ext., Potato Leafhoppers Have Arrived in Pennsylvania Alfalfa Fields (May 31, 2022).
PSU Ext., Keep Your Eye on Fusarium Head Blight Risk in Pennsylvania (May 31, 2022).
Agriculture-Related Legislative Hearings & Reports:
U.S. House Ag. Comm., A 2022 Review of the Farm Bill: Economic Perspectives on Title I Commodities and Title XI Crop Insurance (June 9, 2022).
U.S. House Ag. Comm., A 2022 Review of the Farm Bill: Stakeholder Perspectives on SNAP (June 8, 2022).
Senate Comm. On Ag., Nutrition, and Forestry, The Western Water Crisis: Confronting Persistent Drought And Building Resilience On Our Forests And Farmland (June 7, 2022).
Senate Comm. On Ag., Nutrition, and Forestry, Agricultural Trade: Priorities And Issues Facing America’s Farmers (June 9, 2022).
Senate Comm. On Ag., Nutrition, and Forestry, 2023 Farm Bill: Perspectives From The Natural State (June 17, 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
USDA Celebrates National Homeownership Month (June 1, 2022).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Seeks Cotton Board Nominees (June 3, 2022).
USDA Proposes Revising Pecan Standards (June 2, 2022).
USDA Seeks Nominees for the National Potato Promotion Board (June 2, 2022).
USDA Seeks Nominees for the American Egg Board (June 2, 2022).
Animal and Plant Health Inspection Service (APHIS)
APHIS Seeking Stakeholder Insight About Strategic Plan Framework (June 2, 2022).
USDA Confirms Highly Pathogenic Avian Influenza in Georgia (June 1, 2022).
Farm Service Agency (FSA)
Food and Nutrition Service (FNS)
Nutrition Security in Action: A New Blog Series (June 1, 2022).
Foreign Agricultural Service (FAS)
Export Sales to Unknown Destinations (June 3, 2022).
USTR Tai Signs Updated Beef Tariff Agreement with Japan (June 2, 2022).
Export Sales to Pakistan (June 1, 2022).
Export Sales to China (June 1, 2022).
Forest Service (FS)
National Agriculture Statistics Service (NASS)
National Institute of Food and Agriculture (NIFA)
Natural Resource Conservation Service (NRCS)
USDA Celebrates National Homeownership Month (June 1, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register May 16–20, 2022):
Agricultural Marketing Service
87 FR 33064 Notice—Comment Period: “Revising U.S. Grade Standards for Pecans in the Shell and Shelled Pecans” (June 1, 2022).
87 FR 32328 Proposed Rule: “Honey Packers and Importers Research, Promotion, Consumer Education, and Industry Information Order; Continuance Referendum” (May 31, 2022).
Animal and Plant Health Inspection Service
87 FR 33703 Notice: “National Wildlife Services Advisory Committee; Notice of Solicitation for Membership” (June 3, 2022).
Environmental Protection Agency
87 FR 33480 Notice—Comment Period: “National Environmental Justice Advisory Council; Notification for a Virtual Public Meeting.” (June 2, 2022).
87 FR 33151 Notice: “Local Government Advisory Committee (LGAC) and Small Communities Advisory Subcommittee (SCAS) Meeting” (June 1, 2022).
87 FR 32409 Notice—Comment Period: “Proposed Information Collection Request; Comment Request; Recordkeeping for Institutional Dual Use Research of Concern (iDURC) Policy Compliance (Renewal)” (May 31, 2022).
Fish and Wildlife Service
87 FR 33197 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; U.S. Fish and Wildlife Service Agreements With Friends Organizations” (June 1, 2022).
87 FR 33704 Notice—Comment Period: “Notice of Intent To Issue Forest Order Closing Hyalite Canyon on the Custer Gallatin National Forest to Recreational Shooting” (June 3, 2022).
International Trade Commission
87 FR 33831 Notice: “Raw Honey From Argentina, Brazil, India, and Vietnam” (June 3, 2022).
87 FR 33831 Notice: “Certain Electrolyte Containing Beverages and Labeling and Packaging Thereof; Notice of Commission Request for Written Submissions on Remedy, the Public Interest, and Bonding” (June 3, 2022).
National Institute of Food and Agriculture
87 FR 33117 Notice—Comment Period: “Notice of Intent To Reinstate a Previously Approved Information Collection” (June 1, 2022).
Risk Management Agency
86 FR 29553 Notice: “Notice of Funding Availability; Pandemic Cover Crop Program” (June 2, 2022).
Rural Utilities Service
87 FR 33118 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection; Comments Requested” (June 1, 2022).
87 FR 33119 Notice: “Notice of Request for Extension of a Currently Approved Information Collection; Comments Requested” (June 1, 2022).
U.S. Codex Office
87 FR 33467 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Spices and Culinary Herbs” (June 2, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.7933 “Keep Infant Formula Safe and On the Shelves Act of 2022” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Financial Services, Education and Labor, and 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. (June 3, 2022).
H.R.7764 “To direct the Secretary of Agriculture to provide additional payments under the environmental quality incentives program for implementation of a nutrient management practice, and for other purposes.” Placed on the Union Calendar, Calendar No. 257. (June 3, 2022).
H.R.2606 “SUSTAINS Act” Placed on the Union Calendar, Calendar No. 259. (June 3, 2022).
H.R.2518 “PRECISE Act” Placed on the Union Calendar, Calendar No. 258. (June 3, 2022).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
No new actions May 31- June 3, 2022.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
No new updates May 31- June 3, 2022.
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 22—June 4, 2022):
Department of Agriculture
52 Pa.B. 3226 Notice: “Program Requirements for Agricultural Plastic Recycling Pilot Program”
Department of Environmental Protection
52 Pa.B. 3300 Notice: “Clean Water and Drinking Water State Revolving Fund Programs; Federal Fiscal Year 2022 Intended Use Plans; Available for Public Comment”
52 Pa.B. 3279 Notice: “Great Lakes Regional Water Resources Committee Public Meeting”
52 Pa.B. 3279 Notice: “Ohio Regional Water Resources Committee Public Meeting and Hearing”
52 Pa.B. 3278 Notice: “Delaware Regional Water Resources Committee Public Meeting”
House Bill 2520 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in race horse industry reform, further providing for State Horse Racing Commission.” Referred to Agriculture and Rural Affairs [Senate] (June 1, 2022).
Dillon Lightfoot—Research Assistant
Brook Duer—Staff Attorney