Food Labeling: Multidistrict Litigation Panel Consolidates Beyond Meat False Advertising Cases
On February 1, 2023, the U.S. Judicial Panel on Multidistrict Litigation issued a transfer order consolidating in the U.S. District Court for the Northern District of Illinois five cases alleging false advertising claims against Beyond Meat, Inc., which manufactures plant-based meat substitute products. In RE: Beyond Meat, Inc., Protein Content Marketing and Sales Practices Litigation, No. 1:23-cv-00669. According to the transfer order, the plaintiffs claim that Beyond Meat “(1) miscalculates and overstates its products’ protein content; (2) miscalculates and overstates the quality of the products’ protein, which is represented as a percentage of daily value; and (3) misleads consumers into believing that the products provide the same nutritional benefits as traditional meat products.” The consolidated cases are

  • Roberts v. Beyond Meat, Inc., No. 1:22-cv-02861 (N.D. Ill., filed May 31, 2022),
  • Cascio v. Beyond Meat, Inc., No. 2:22-cv-04018 (E.D. NY, filed July 8, 2022),
  • Miller v. Beyond Meat, Inc., No. 1:22-cv-06336 (S.D. NY, filed July 26, 2022),
  • Garcia v. Beyond Meat, Inc., No. 4:22-cv-00297 (S.D. Iowa, filed Sept. 9, 2022),
  • Borovoy v. Beyond Meat, Inc., No. 1:22-cv-06302 (N.D. Ill., filed Nov. 9, 2022).

Agricultural Labor: OSHA Fines Beef Processor for Exposing Workers to Unsafe Carbon Dioxide Levels
On February 3, 2023, the U.S. Department of Labor (DOL) Occupation Safety and Health Administration (OSHA) issued a citation fining beef processor Republic Foods, ZMDR LLC (Republic) $573,913 for exposing its employees to unsafe levels of carbon dioxide, which is released from dry ice used in the packing process. According to the citation, Republic exposed its employees to carbon dioxide levels ranging from 7,100 to 10,000 parts per million, above the standard 5,000 parts per million. Also announced by OSHA, the citation was Republic’s seventh violation for unsafe carbon dioxide exposure since March 2020. Republic has 15 days to comply with the citation, request a meeting with OSHA’s area director, or contest the findings.

Food Safety: Breakfast Cereal Manufacturer Pleads Guilty to Distributing Adulterated Food, Will Pay $19 Million Fine
On February 3, 2023, the U.S. Department of Justice (DOJ) announced that food and ingredient manufacturing company Kerry Inc. pleaded guilty to charges of manufacturing products under insanitary conditions and agreed to pay criminal fines totaling $19.2 million. In December 2022, DOL filed charges against Kerry for selling adulterated foods after discovering insanitary conditions at a facility in Gridley, Illinois, which manufactured Honey Smacks breakfast cereal linked to a 2018 salmonella poising outbreak. United States v. Kerry, Inc., C.D. Illinois, No: 22-10051. Under the plea agreement, Kerry pleaded guilty to a misdemeanor count of distributing adulterated cereal in violation of the Food, Drug, and Cosmetic Act and failing to implement corrective and preventative actions to mitigate salmonella exposure. The agreement is still subject to judicial approval before becoming effective.

Avian Influenza: National Chicken Council Petitions FDA to Allow Sale of Surplus Eggs to Lower Egg Prices
On February 9, 2022, the National Chicken Council (NCC) petitioned the Food and Drug Administration (FDA) to allow surplus eggs produced by broiler chickens to be sold to “egg breakers” for use as ingredients in manufactured food products rather than retailed as shell eggs.  Current regulations require eggs used by breakers to be kept at 45°F within 36 hours after being laid, but broiler chicken producers generally keep laid eggs at 65°F. The NCC claims surplus eggs stored at 65°F are safe for breaker use due to pasteurization efficiency and anticipates that utilization of surplus eggs will help lower shell egg prices during supply shortages caused by highly pathogenic avian influenza (HPAI).

Conservation Programs: Consolidated Appropriations Act Authorizes USDA Carbon Credit Market Oversight
On December 29, 2022, when President Biden signed into law the 2023 Consolidated Appropriations Act (H.R.2617), the law contained carbon credit provisions from the Growing Climate Solutions Act (S.1251)—which the Senate passed by a 92-8 vote in 2021 but was never brought up for a vote in the House of Representatives. As a result, the U.S. Department of Agriculture (USDA) is now authorized to create the “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program” to provide a regulatory framework for contractual production and sale of carbon credits by agricultural operations for re-sale through private markets. A summary of the law’s provisions has been authored by Peggy Kirk Hall, Assoc. Professor, Agricultural & Resource Law, Ohio State University Extension, titled Carbon Credit Market Assistance Program Now in the Hands of USDA.

Agricultural Finance: USDA Simplifies Direct Loan Applications
On February 7, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced a simplified direct loan application. This simplified application is 13 pages long—compared to the previous 29-page application—and can be filed electronically or in person at an FSA farm loan office. FSA anticipates this simplified application, paired with the Loan Assistance Tool released in October 2022, will decrease the number of incomplete applications unfiled due to the application’s length and complexity. The simplified application will be available beginning March 1, 2023. 

Conservation Programs: USDA Announces Strategies to Conserve Water in Western United States
On February 13, 2023, the U.S. Department of Agriculture (USDA) announced the Western Water and Working Lands Framework for Conservation Action (WWWLF) and the WaterSMART Initiative, new strategies to address water supplies in western states. USDA’s Natural Resources Conservation Service (NRCS) will administer both strategies, which were partially funded by the Inflation Reduction Act to help to conserve water, combat climate change, and improve drought resiliency in western states. The WWWLF will implement 13 key strategies in 17 western states and the WaterSMART Initiative will invest $25 million in three new priority areas and 37 existing priority areas to assist western states.

Conservation Programs: USDA Announces More Conservation Program Funding
On February 13, 2023, the U.S. Department of Agriculture announced that it is making available $850 million of the $19.5 billion appropriated by the Inflation Reduction Act for climate-smart initiatives in the following Natural Resources Conservation Service (NRCS) conservation programs which provide payments to agricultural or forest landowners who engage in voluntary conservation programs and adopt defined climate-smart practices:

The NRCS accepts applications to its programs year-round, but those interested in the EQIP or CSP should apply by their state’s ranking dates. Applications for ACEP or Wetland Reserve Easements must be submitted by March 17, 2023. The NRCS plans to roll out funding for the RCPP in the early spring.

Water Quality: Maryland Issues Valley Proteins New NPDES Permit, Effective Through January 2028
On February 1, 2023, Valley Proteins Inc.’s National Pollutant Discharge Elimination System (NPDES) permit became effective, good through January 31, 2028. The Maryland Department of Environment (MDE) recently issued the permit on December 27, 2022, after a final permit review. The permit lets the Linkwood, Maryland-based poultry rendering company discharge an annual average of 150,000 gallons per day of wastewater and allows for an increase up to 575,000 gallons per day. Valley Protein’s new NPDES permit follows the company’s numerous NPDES permit violations and September 2022 consent decree with MDE requiring it to pay $540,000 in civil penalties.  See Valley Protein Enters into Consent Decree for NPDES Violations, ALWR—Oct. 7, 2022.

 

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CENTER PROGRAMS & RESOURCES

Read the latest Agricultural Law in the Spotlight article: “Waters of the United States,” an Overview of the New Rule (Feb. 8, 2023).

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 the series, more information, and registration available here. Next in the series:

  • Feb. 24, 2023, noon–1 pm (EST): Understanding the Basics of Pennsylvania’s “Clean & Green” Preferential Tax Assessment Program
  • March 24, 2023, noon–1 pm (EST): Understanding the Basics of Farm Animal Handling & Confinement Laws

Protecting Your Farm-Based Food Business: Understanding Product Liability. Free seminar conducted live at Horizon Farm Credit, Mt. Joy, PA, with interactive live simulcast at three other Horizon Farm Credit locations (Chambersburg, New Stanton, Shoemakersville), and a virtual attendance option. Co-sponsored with the Pennsylvania Small Business Development Center’s Agriculture Center for Excellence and Horizon Farm Credit.

  • March 15, 2023, 10 am–2 pm (EST). Register. (Rescheduled from February 15, 2023.)

Dairy Quarterly Legal WebinarA 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 from the series, more information, and registration available here.

Legal Planning for Specialty Crop Producers. A free six-webinar series is available for on-demand viewing by registering.

Agricultural Law Podcast:

Resources of Interest:

Academic & Government Resources

Media and Industry Resources

Events of Interest

  • U.S. Dept. of Labor Wage & Hour Division, 2023 Virtual Agricultural Seminar, March 7, 2023, 10 am–5:30 pm (EST). Free live webinar containing 7.5 hours of education on federal labor laws as applied to agriculture, including H-2A visa program rules, filing the H-2A petition, USCIS’s role in the H-2A process, Fair Labor Standards Act requirements, child labor rules, Migrant and Seasonal Agricultural Worker Protection Act requirements, OSHA field sanitation standards and worker’s safety, and farm labor contractors.  Register.

Agriculture-Related Legislative Hearings and Reports:  

Penn State News, Research, and Resources:

Researchers Use Water Treatment Method to Capture Acids from Agricultural Waste (Feb. 9, 2023).

Researcher Gets $2M Grant to Test Feed Additives’ Effect on Methane Emissions (Feb. 9, 2023).

Recalls of Fresh Meat Products May Lower Customer Demand (Feb. 9, 2023).

PSU Ext., Is Biomass Power About to Make a Comeback? (Feb. 9, 2023).

PSU Ext., Penn State Extension Energy Team to Offer Webinars on Large-Scale Solar (Feb. 6, 2023).

Top #AgLaw HotLinks Feb. 4–10, 2023:

New Guide Helps Farmers Navigate Carbon Sequestration Contracts, AgWeek.

Dairy Groups Mostly Optimistic about Proposed Nutrition Standards, FarmProgress.

Lawmakers Looking to Restrict Foreign Investment in Agricultural Lands, FarmProgress.

OPSB Schedules Hearing for Proposed Solar Energy Facility, Farm and Dairy.

Kerry Inc. Pleads Guilty and Agrees to Pay $19.228 Million in Connection with Insanitary Plant Conditions Linked to 2018 Salmonella Poisoning Outbreak, Department of Justice.

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 Announces Renewed Partnership with Tribal Colleges and Historic Realignment (Feb. 10, 2023).

2022 Was Another Record Year for U.S. Farm Exports (Feb. 10, 2023).

U.S. Department of Agriculture Announces Key Staff Appointments (Feb. 8, 2023).

FACT SHEET: Biden-Harris Administration Delivers on its Promises to Invest in Rural Communities, Nutrition Security, Climate-Smart Agriculture, More and Better Markets and Lower Costs for Families (Feb. 6, 2023).

USDA Chief Scientist Applauds Notable Scientific Achievements in 2022 (Feb. 6, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Dorado Groundwater Superfund Site in Dorado, Puerto Rico Will Get Bipartisan Infrastructure Law Funds to Continue Cleanup (Feb. 10, 2023).

EPA Announces New Bipartisan Infrastructure Law (BIL) Superfund Cleanup Projects in Pennsylvania (Feb. 10, 2023).

EPA Seeks Input on Inflation Reduction Act Environmental and Climate Justice Program (Feb. 9, 2023).

EPA Orders Hydro House in Lake Orion, Michigan to Stop Sale of Unregistered Pesticide (Feb. 9, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

California Firm Posts Two $250,000 Employment Bonds (Feb. 9, 2023).

USDA Files Action Against US Fresh Corp. in New York for Alleged PACA Violations (Feb. 9, 2023).

USDA Issues Payments from PACA Employment Bond (Feb. 9, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Connecticut (Feb. 8, 2023).

USDA Agricultural Marketing Service Highlights 2022 Accomplishments in Support of the Biden-Harris Administration’s Efforts to Transform America’s Food System (Feb. 6, 2023).

USDA Settles a Packers and Stockyards Case with SMBL Cattle Company LLC, dba J&J Livestock (Feb. 6, 2023).

USDA Settles Packers and Stockyards Act Case with Robert Lenz, d.b.a. Lenz Livestock (Feb. 6, 2023).

USDA Settles a Packers and Stockyards Case with Equity Cooperative Livestock Sales Association (Feb. 6, 2023).

USDA Settles Packers and Stockyards Case with M&L Farms LLC, Jallaq Farms LLC and Othman Jallaq (Feb. 6, 2023).

USDA Settles Packers and Stockyards Act Case with Miller Livestock Inc. (Feb. 6, 2023).

Agricultural Research Service (ARS)

USDA-ARS Scientists Developing New Tests, New Ways to Track COVID In Wild and Domestic Animals (Feb. 7, 2023).

USDA Names Simon Liu as New ARS Administrator (Feb. 6, 2023).

Animal and Plant Health Inspection Agency (APHIS)

APHIS Protects Animal Health with Purchase of Diagnostic Test Kits and Upcoming Sources-Sought Notice (Feb. 9, 2023).

Farm Service Agency (FAS)

USDA Develops Simplified Direct Loan Application to Improve Customer Service (Feb. 7, 2023).

USDA’s Farm Service Agency Helps Farmers and Ranchers Tackle Challenges (Feb. 6, 2023).

Food and Nutrition Service (FNS)

Come to the Table Southeast Regional Nutrition Security and Healthcare Summit: Continuing the Conversation on Hunger as a Health Issue (Feb. 10, 2023).

SNAP Emergency Allotments are Ending (Feb. 8, 2023).

USDA’s TEFAP Reach and Resiliency Grant Expands Distribution in Rural Nebraska (Feb. 8, 2023).

FNS Strengthens Commitment to Nutrition Security and Equity, Takes Action to Address Supply Chain and Inflation (Feb. 6, 2023).

Foreign Agricultural Service (FAS)

2022 Was Another Record Year for U.S. Farm Exports (Feb. 10, 2023).

FAS Expands Exports, Advances Climate Resilience, Strengthens Food Security in 2022 (Feb. 6, 2023).

Export Sales to Japan and Mexico (Feb. 6, 2023).

National Institute of Food and Agriculture (NIFA)

UMES Awarded NIFA Grant Aimed at Helping Hemp Growers Combat Pests, Diseases and Weeds (Feb. 10, 2023).

NIFA Commemorates 60 Years of the IR-4 Project (Feb. 9, 2023).

NIFA Invests $70M in Sustainable Agricultural Research (Feb. 9, 2023).

NIFA Invests $846K in Response to Extreme Weather Events Across the U.S. (Feb. 8, 2023). NIFA Programs Supporting 1890 Institutions, Their Faculty and Students (Feb. 7, 2023).

Researchers Helping Protect Crops From Pests (Feb. 6, 2023).

OSU Going to Super Bowl LVII with Support from NIFA (Feb. 6, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 6–10, 2022):            

Agriculture

88 FR 8792 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Importation of Table Eggs from Regions Where Newcastle Disease and Highly Pathogenic Avian Influenza is Considered to Exist and Exportation of Poultry and Hatching Eggs].” (Feb. 10, 2023).

88 FR 8254 Notice—Public Comment: “Notice of Request for Extension of a Currently Approved Information Collection” (Feb. 8, 2023).

88 FR 7674 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Permit to Obtain Specimens of Condemned or Other Inedible Materials from Official Establishments]” (Feb. 7, 2023).

88 FR 7674 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Interstate Shipment of Meat and Poultry Products]” (Feb. 7, 2023).

88 FR 7675 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Organic Certification Cost Share Program (OCCSP)]” (Feb. 7, 2023).

Animal and Plant Health Inspection Service

88 FR 8793 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Environmental Monitoring” (Feb. 10, 2023).

88 FR 8794 Notice—Public Comment: “Notice of Availability of a Supplemental Environmental Assessment for Release of Aphalara itadori From Murakami, Japan for the Biological Control of Japanese, Giant, and Bohemian Knotweeds in the Contiguous United States” (Feb. 10, 2023).

88 FR 7675 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Federally Recognized State Managed Phytosanitary Program” (Feb. 7, 2023).

Environmental Protection Agency

88 FR 8233 Rule—Public Comment: “Peptide Derived from Harpin Protein; Exemption from the Requirement of a Tolerance” (Feb. 8, 2023).

88 FR 8281 Notice—Public Comment: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Water Quality Inventory Reports (Renewal)” (Feb. 8, 2023).

Food and Drug Administration

88 FR 7657 Proposed Rule: “Micro-Tracers, Inc.; Filing of Food Additive Petition” (Feb. 7, 2023).  

88 FR 7741 Notice—Public Comment: “Agency Information Collection Activities; Proposed Collection; Comment Request; Current Good Manufacturing Practice Regulations for Medicated Feeds” (Feb. 7, 2023).

Food and Nutrition Service

88 FR 8397 Notice: “Child Nutrition Programs: Income Eligibility Guidelines” (Feb. 9, 2023).

88 FR 8255 Notice—Public Comment: “Agency Information Collection Activities: Supplemental Nutrition Assistance Program (SNAP)-Waiver Requests to Offer Incentives to SNAP Recipients at SNAP Authorized Stores” (Feb. 8, 2023).

88 FR 8050 Proposed Rule—Public Comment: “Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans” (Feb. 7, 2023).

Food Safety and Inspection Service

88 FR 7676 Notice: “National Advisory Committee on Microbiological Criteria for Foods; Membership Nominations” (Feb. 7, 2023).

International Trade Administration

88 FR 7940 Notice: “Fresh Garlic from the People’s Republic of China: Final Results of Expedited Fifth Sunset Review of the Antidumping Duty Order” (Feb. 7, 2023).

International Trade Commission

88 FR 8912 Notice: “Lemon Juice from Brazil and South Africa” (Feb. 10, 2023).

Natural Resources Conservation Service

88 FR 8400 Notice—Public Comment: “Notice of Intent to Prepare an Environmental Impact Statement for the Wood River Watershed, Custer County, Dawson County, Buffalo County, Hall County, and Merrick County, Nebraska” (Feb. 9, 2023).

Rural Utilities Service

88 FR 7557 Final Rule—Public Comment: “Policy on Audits of RUS Awardees” (Feb. 7, 2023).

Susquehanna River Basin Commission

88 FR 8986 Notice: “Commission Meeting” (Feb. 10, 2023).

88 FR 8511 Notice: “Grandfathering (GF) Registration Notice” (Feb. 9, 2023).

88 FR 8510 Notice: “Projects Approved for Consumptive Uses of Water” (Feb. 9, 2023).

U.S. Codex Office

88 FR 8795 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Food Import and Export Inspection and Certification Systems” (Feb. 10, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.922 “To amend the Rural Electrification Act of 1936 to provide requirements on the use of assistance for broadband deployment, and for other purposes.” Referred to the Committee on Agriculture. (Feb. 9, 2023).

H.R.923 “To prohibit the President from issuing moratoria on leasing and permitting energy and minerals on certain Federal land.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Feb. 9, 2023).

H.R.930 “To amend the Omnibus Parks and Public Lands Management Act of 1996 to provide for the establishment of a Ski Area Fee Retention Account, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Natural Resources. (Feb. 9, 2023).

H.R.934 “To require the Secretary of Agriculture to carry out activities to suppress wildfires, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Natural Resources. (Feb. 9, 2023).

H.R.945 “To amend the Poultry Products Inspection Act and the Federal Meat Inspection Act to support small and very small meat and poultry processing establishments, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 9, 2023).

H.R.965 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to provide research and extension grants to combat plant pests and noxious weeds that impact coffee plants, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 9, 2023).

H.R.966 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to modify the macadamia tree health initiative, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 9, 2023).

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

S.322 “A bill to amend the Plant Protection Act to establish a fund for spotted wing drosophila research and mitigation.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 9, 2023).

S.346 “A bill to establish the Office of the Special Investigator for Competition Matters within the Department of Agriculture.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 9, 2023).

S.354 “A bill to amend the Poultry Products Inspection Act and the Federal Meat Inspection Act to support small and very small meat and poultry processing establishments, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry.

S.371 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to provide research and extension grants to combat plant pests and noxious weeds that impact coffee plants, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 9, 2023).

S.372 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to modify the macadamia tree health initiative, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 9, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

No new press releases this week.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 6—Feb. 11, 2023): 

Delaware River Basin Commission

53 Pa.B. 830 Rules and Regulations: “Importations of Water into and Exportations of Water from the Delaware River Basin; Discharges of Wastewater from High Volume Hydraulic Fracturing and Related Activities.”

Department of Agriculture

53 Pa.B. 837 Notice: “A General Permit Standards and Requirements for Hemp.”

Department of Environmental Protection 

53 Pa.B. 849 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 907 Notice: “Availability of Grants through the Abandoned Mine Land and Acid Mine Drainage Grant Program.”

53 Pa.B. 907 Notice: “Public Water System Technical Assistance Center Board Meeting Cancellation.”

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