Animal Health: Highly Pathogenic Avian Influenza Update
As of November 8, 2022, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service’s (APHIS) HPAI 2022 Confirmed Detections database has confirmed a total of 604 highly pathogenic avian influenza (HPAI) detections in 46 states (259 commercial flocks and 345 backyard flocks), resulting in 50.12 million birds depopulated nationally. Recently, Pennsylvania has suffered six additional commercial turkey premise detections, one in Adams County (October 17—15,500 birds depopulated) and five in Lehigh County in rapid succession (November 3—28,500 birds depopulated; November 4—14,500 birds depopulated; November 8—17,400 birds depopulated; and November 9—two Lehigh County turkey premises of approximately 13,000 and 12,000 birds each are in the confirmation testing process and are not yet reflected in the APHIS database). Additionally, two significant recent commercial premise detections have been confirmed in Wright County, Iowa (October 31 and November 6), each resulting in depopulation of approximately 1 million egg layers each.
Agricultural Labor: Pennsylvania Poultry Processor Found in Contempt of Federal Court’s 2020 Order
On October 19, 2022, the U.S. Court of Appeals for the District of Columbia Circuit issued an order finding the Pennsylvania kosher poultry processor Birdsboro Kosher Farms Corp. in contempt of court for failure to respond to the court’s December 1, 2020, order, which affirmed two citations issued by the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA). Secretary of Labor v. Birdsboro Kosher Farms Corp., No. 20-01028. The OSHA citations listed six safety violations found by OSHA during March and April 2016 inspections of the company’s Berks County poultry processing plant, including noncompliance with lockout/tagout procedures, failure to provide appropriate hearing and personal protective equipment, and noise level violations. Also announced by DOL, the order requires Birdsboro to provide written certification within 20 days of the company’s corrective measures and pay $162,359 in outstanding penalties, plus interest and fees. The order allows for further “coercive sanctions” as necessary against Birdsboro, including shutting down “all operations at Birdsboro’s facility, incarceration of company officers, [and] daily penalties of up to $7,000 per outstanding violation” for “any noncompliance after 20 days” of the contempt order.
Antitrust: Tyson Will Pay $10.5 Million in Washington State Price-Fixing Settlement
On October 25, 2022, the Washington State King County Superior Court entered a stipulated judgment approving a $10.5 million settlement recorded in a Consent Decree between Tyson Foods, Inc. and the State of Washington in an enforcement action brought under the state’s Unfair Business Practices Act alleging anti-competitive and price-fixing activity by and among 19 broiler chicken producers. Washington v. Tyson Foods Inc. et al, No. 21-2-14174-5 SEA. As announced by the Washington State Attorney General (AG), the settlement also requires Tyson to cooperate with the state’s case against the 16 remaining defendants and produce relevant information and documents. The State of Washington has also reached settlements with Mar-Jac Poultry ($725,000) and Fieldale Farms Corp. ($475,000) in the same case. According to the AG’s announcement, Alaska and New Mexico have also filed state antitrust cases against national poultry producers for the same conduct, although Washington is the first state to enter into settlements. These state enforcement actions are separate from and in addition to pending federal litigation in the U.S. District Court for the Northern District of Illinois in In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-06837. For more information on protein industry antitrust litigation, see the Center’s Agricultural Issue Tracker, Agricultural Antitrust Litigation.
Animal Welfare: Court Denies Smithfield’s Motion to Dismiss Suit Alleging Misleading Marketing for Gestation Crate Use
On October 24, 2022, the Superior Court of the District of Columbia issued an order denying Smithfield Foods, Inc.’s motion to dismiss a complaint filed by the Humane Society of the United States (HSUS), which seeks injunctive and other relief against Smithfield under the District of Columbia’s Consumer Protection Procedures Act for false marketing, including denying the use of gestation crates. The Humane Society of the United States v. Smithfield Foods, Inc., No. 2021-CA-003777. See ALWR—Oct. 22, 2022, “Humane Society Files Suit Against Smithfield for Misleading Use of Gestation Crates.” The court found that HSUS had alleged sufficient facts to support its false and misleading advertising claims, including citing Smithfield’s 2020 Sustainability Report—which states that Smithfield “‘maintains group housing for all pregnant sows on company-owned farms globally’ and that its ‘open housing systems allow for social interaction between animals and room for exercise’”—which the court found “arguably inconsistent with [Smithfield’s] admitted continual use of individual crates during portions of the breeding process.” The case will now proceed to discovery and pretrial proceedings.
National Agricultural Policy: USDA Announces $73 Million for Meat and Poultry Processing
On November 2, 2022, the U.S. Department of Agriculture (USDA) announced that it will invest $73 million into 21 projects in the first round of funding for the Meat and Poultry Processing Expansion Program (MPPEP), which aims to assist meat and poultry producers (1) modernize equipment and processes; (2) comply with packing, labeling, and other safety standards; (3) offset the cost of becoming an inspected facility; and (4) support workforce training, recruitment, and retention. First-round funding projects are located in California, Illinois, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Dakota, Ohio, South Dakota, Texas, Vermont, and Washington. These investments are a part of the Biden Administration’s efforts to reduce prices and strengthen the meat and poultry supply chain.
Agricultural Data: USDA Rural Development Publishes Agricultural 2021 Cooperative Statistics Summary
On November 2, 2022, the U.S. Department of Agriculture (USDA) Rural Development Cooperative Services Branch published its Agricultural Cooperative Statistics Summary, 2021. This annual report surveys 1,699 farmer, rancher, and fishery cooperatives (co-ops) across the nation. The summary highlights that co-ops recorded their fourth highest revenue year at $231.4 billion. While the number of co-ops declined from 1,744 in 2020, employment in agricultural co-ops increased by 17,531 jobs to 138,428 full-time employees in 2021 and 46,999 part-time or seasonal employees, for total employment of 202,988 people.
Animal Health: United Kingdom Orders All Birds Housed Indoors
On November 2, 2022, the United Kingdom (UK) Department for Environment, Food & Rural Affairs (DEFRA) and Animal and Plant Health Agency (APHA) announced that all bird keepers must house their birds indoors beginning Monday, November 7, 2022, until further notice. This announcement serves as an update to the UK’s Avian Influenza Prevention Zones (AIPZ), enacted to combat the over 200 confirmed cases of Avian Influenza in the UK since October 2021. On October 28, 2022, DEFRA and APHA also announced a compensation scheme to further address the financial hardships caused by highly pathogenic avian influenza.
CENTER PROGRAMS & RESOURCES
- 228. Farmer Debt Relief and Chesapeake Executive Council Meeting (Oct. 26, 2022).
- 227. Tyson Workers COVID Lawsuit; Plainville Farms Animal Abuse Charges; and USDAs Worker Relief Payments (Oct. 21, 2022).
- 226. PA Milk Marketing Board Signals Potential OOP Change and EPA Withdraws Roundup Decision (Oct. 14, 2022).
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:
- Nov. 18, 2022, noon ET: Understanding the Basics of Federal & State Conservation Programs
- Dec. 16, 2022, noon ET: Understanding the Basics of Licensing & Regulation of Direct Agricultural Product Sales
- Jan. 27, 2022, noon ET: Understanding the Basics of Agricultural Finance
- Recent webinar recordings available:
- Understanding the Basics of Livestock Market Regulation (Sept. 23, 2022)
- Understanding the Basics of Agricultural Cooperatives (Aug. 26. 2022)
- Understanding the Basics of Crop Insurance (Oct. 21, 2022).
Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series. Register at any time to watch past recordings and attend all future webinars and access all materials. Next in series:
- Nov. 16, 2022, noonET: 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 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:
Webinars & Events
- 2nd Annual Solar Law Symposium, Penn State Law’s Center for Energy Law and Policy and Penn State Extension virtual conference, November 16, 2022, 12 noon – 4:30 p.m. ET. 4 hours of substantive CLE credit is available for Pennsylvania-licensed attorneys. $69 w/o CLE credits, $119 w/CLE credits. Registration.
- Farm Tax Planning Strategies 2022, U. of Ill. Farmdoc webinar, Nov. 10, 2022, 12 noon – 1 p.m. ET, free, Registration. Presenters from Illinois Farm Business Farm Management (FBFM).
- Keystone Development Center (KDC)’s 2022 Co-op Academy, various dates Oct. 2022–Feb. 2023. Registration.
- Farmer and Farmland Owner Income Tax Webinar, Ohio State University Extension, Nov. 17, 2022, 6:30–8:30pm ET, $40. Registration. More info.
Academic & Government Resources
- US DOL, Office of Foreign Labor Certification, 2022 H-2A Final Rule FAQs, Round 1: Implementation of 2022 H-2A Final Rule (October 12, 2022).
- US DOL, Office of Foreign Labor Certification, 2022 H-2A Final Rule FAQs, Round 2: Job Order Filing and Processing (October 25, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, Selecting a Business Structure, Robert Moore (Nov. 3, 2022).
- Law & Tax’n Blog, Tax Treatment of Crops and/or Livestock Sold Post-Death, Roger A. McEowen (Nov. 3, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, Ohio Supreme Court allows eminent domain case for bike trail to roll on, Peggy Kirk Hall (Nov. 2, 2022).
- Nat’l Agric. Law Ctr., Congressional Considerations on Restricting Foreign Investments in U.S. Agriculture, Micah Brown (Nov. 1, 2022).
- A&M Agric. Law Blog, Pasture, Range, and Forage (“Rainfall”) Insurance Deadline December 1, Tiffany Dowell Lashmet (Oct. 31, 2022).
- Md. Risk Mgmt. Educ. Blog, USDA 2022 Agricultural Census Begins in November, Megan Todd (Oct. 31, 2022).
- Md. Risk Mgmt. Educ. Blog, New Department of Labor Rule Improves Protection for H-2A Workers, Sima Majnooni (Oct. 31, 2022).
Media & Industry Resources
- AG Presents: Nothing Borrowed, Nothing Gained, podcast series on agricultural lending.
- Ep 1: Forever in Your (Farm) Debt
- Ep 2: Earning Extra Credit
- Ep 3: A Loan Walks into a Bank
- Ep 4: Where Credit is Due
Penn State News, Research & Resources:
PSU Ext., 2022 Holiday Food Trends for Farm Markets (Nov. 3, 2022).
PSU Ext., Crops Conferences and Crops Days: Sponsor and Exhibitor Opportunities (Nov. 2, 2022).
$1.5 million grant awarded to team studying impacts of land abandonment (Nov. 2, 2022).
PSU Ext., Deadline Approaching for Farmer Grants (Nov. 1, 2022).
PSU Ext., Reflecting on Tar Spot in 2022 (Nov. 1, 2022).
PSU Ext., Can Weeds Still Be Controlled in November? (Nov. 1, 2022).
Fighting Fire With Fire: Study Gauges Public Perception of Prescribed Burns (Nov. 1, 2022).
Top #AgLaw HotLinks Oct. 29–Nov. 4, 2022:
Russia Suspends Participation in Black Sea Export Deal, Farm Policy News.
Farmers Fight City Over Right to Operate Farm Store on Their Own Land, Progressive Farmer.
Program encourages more exports through the Great Lakes, Brownfield.
Syngenta pushes back against FTC complaint, Brownfield.
Convicted of crop insurance fraud, farmer says don’t do what he did, Brownfield.
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@example.com.
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)
Animal and Plant Health Inspection Service (APHIS)
Farm Service Agency (FSA)
Foreign Agricultural Service (FAS)
USDA Trade Mission to East Africa Underway (Oct. 31, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 31–Nov. 4, 2022):
Agricultural Marketing Service
87 FR 66535 Final Rule: “Pork Promotion, Research, and Consumer Information Order-Decrease in Assessment Rate and Importer Assessments” (Nov. 4, 2022).
87 FR 65683 Proposed Rule—Public Comment: “Adjustments to Mango Board Representation” (Nov. 1, 2022).
87 FR 65738 Notice—Public Comment: “Information Collection; Improving Customer Experience (OMB Circular A-11, Section 280 Implementation)” (Nov. 1, 2022).
87 FR 65739 Notice: “Submission for OMB Review; Comment Request” (Nov. 1, 2022).
87 FR 65732 Notice: “Submission for OMB Review; Comment Request” (Nov. 1, 2022).
87 FR 65568 Notice: “Submission for OMB Review; Comment Request” (Oct. 31, 2022).
87 FR 65569 Notice: “Submission for OMB Review; Comment Request” (Oct. 31, 2022).
Animal and Plant Health Inspection Service
87 FR 66257 Notice—Public Comment: “Notice of Request for an Extension of Approval of an Information Collection; Tuberculosis” (Nov. 3, 2022).
Environmental Protection Agency
87 FR 66554 Final Rule: “1,3-Benzenedicarboxylic Acid, 5-Sulfo-, Sodium Salt (1:1), Polymer With 1,3-Benzenedicarboxylic Acid, 1,4-Cyclohexanedimethanol and 2,2′-Oxybis[ethanol]; Tolerance Exemption” (Nov. 4, 2022).
Farm Credit Administration
87 FR 66696 Notice: “Sunshine Act Meetings” (Nov. 4, 2022).
Food and Drug Administration
87 FR 65527 Final Rule: “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food and Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals; Supply-Chain Programs and Onsite Audits; Announcement of Effective Date” (Oct. 31, 2022).
Food and Nutrition Service
87 FR 65739 Notice—Public Comment: “Agency Information Collection Activities: Proposed Collection: Comment Request-Supplemental Nutrition Assistance Program’s Quality Control Review Schedule Form FNS-380-1″ (Nov. 1, 2022).
International Trade Administration
87 FR 66273 Notice: “Certain Preserved Mushrooms from Poland: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures” (Nov. 3, 2022).
87 FR 66262 Notice: “Certain Preserved Mushrooms from Spain: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures” (Nov. 3, 2022).
87 FR 66265 Notice: “Certain Preserved Mushrooms from the Netherlands: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures” (Nov. 3, 2022).
87 FR 66269 Notice: “White Grape Juice Concentrate from Argentina: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures” (Nov. 3, 2022).
International Trade Commission
87 FR 66323 Notice: “Sodium Nitrite from Russia” (Nov. 3, 2022).
National Agricultural Statistics Service
87 FR 66258 Notice—Public Comment: “Notice of Intent to Request Revision and Extension of a Currently Approved Information Collection” (Nov. 3, 2022).
Natural Resources Conservation Service
87 FR 66640 Notice: “Determination of the Primary Purpose of Florida’s Save Our Indian River Lagoon (SOIRL) Program” (Nov. 4, 2022).
87 FR 66639 Notice—Public Comment: “Urban Agriculture and Innovative Production Advisory Committee Meeting” (Nov. 4, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
No new actions this week.
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No new actions this week.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 45—Nov. 5, 2022):
Department of Environmental Protection
52 Pa.B. 6876 Notice: “Applications, Actions and Special Notices.”
52 Pa.B. 6932 Notice: “Availability of Technical Guidance.”
52 Pa.B. 6933 Notice: “Citizens Advisory Council and Environmental Justice Advisory Board Joint Meeting.”
52 Pa.B. 6933 Notice: “Draft National Pollutant Discharge Elimination System General Permit for Discharges from Small Flow Treatment Facilities (PAG-04).”
52 Pa.B. 6934 Notice: “Draft Water Quality Management General Permit for Small Flow Treatment Facilities (WQG-01).”
52 Pa.B. 6935 Notice: “Environmental Justice Advisory Board Meeting and Citizens Advisory Council Joint Meeting.”
52 Pa.B. 6935 Notice: “Reclamation Committee Meeting.”
No new actions this week.
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney
Brook Duer—Staff Attorney