These Regulatory Updates are brought to you by Michael Best & Friedrich. 

This Regulatory Update includes information from June 24 – July 10, 2020. Please contact Paul Benson, Taylor Fritsch, or Leah Ziemba for additional information on regulatory issues that may affect your business.

For access to articles and resources from our Premium Member law firm, Michael Best & Friedrich, to help navigate this challenging time, please follow these hyperlinks to Michael Best’s COVID-19 Resource Center and CARES Act Relief Resource Center.

 

COVID-19 DEVELOPMENTS

  • USDA Announces Additional Commodities Eligible for Coronavirus Food Assistance Program MUST READ

  • CDC and OSHA Release Interim Guidance on Protecting Seafood Processing Workers During COVID-19 MUST READ

FDA AND USDA UPDATES

  • U.S. House Committee on Appropriations Proposes $3.212 Billion for FDA MUST READ

  • USDA Proposes Mandatory Radio Frequency Identification Tags for Cattle and Bison MUST READ

  • USDA Announces $4 Million in Funding Through Centers of Community Prosperity Initiative

  • FDA Issues Second Letter to Papaya Growers Regarding Salmonella Contamination Prevention

  • USDA Releases Annual Technology Transfer Report

  • Office of Inspector General Releases Report on USDA-FSIS’s Proposed Swine Slaughter Rule

OTHER DEVELOPMENTS OF INTEREST

  • United States-Mexico-Canada Agreement Replaces North American Free Trade Agreement MUST READ

  • Colorado Joins Number of States Dictating Sale of Only Cage-Free Eggs

  • U.S. Representatives Introduce Bipartisan Bill to Expand Meat Processing Capacity

COVID-19 DEVELOPMENTS

USDA Announces Additional Commodities Eligible for Coronavirus Food Assistance Program
July 9: U.S. Secretary of Agriculture Sonny Perdue released a list of additional commodities eligible for the Coronavirus Food Assistance Program (CFAP) and announced USDA’s other changes to CFAP “based on comments received from agricultural producers and organizations and review of market data,” according to USDA’s Press Release.

In addition to expanding the list of CFAP-eligible commodities, USDA expanded CARES Act sales loss funding for apples, blueberries, garlic, potatoes, raspberries, tangerines and taro; determined that peaches and rhubarb no longer qualified for payment under the CARES Act sales loss category; and corrected the payment rates for a variety of commodities.

Beginning July 13, 2020 and until August 28, 2020, producers may submit CFAP applications that include the additional commodities. “USDA expects additional eligible commodities to be announced in the coming weeks.”

Read USDA’s Press Release here and read about CFAP here.

 

CDC and OSHA Release Interim Guidance on Protecting Seafood Processing Workers During COVID-19  
June 24: CDC and the Occupational Safety and Health Administration (OSHA), in consultation with FDA, released an interim guidance on “Protecting Seafood Processing Workers from COVID-19.” The guidance lists the risk factors for COVID-19 exposure among employees at onshore and offshore seafood processing worksites: proximity between workers, prolonged periods of proximity, and “[c]ommunal housing and living quarters onboard vessels for seasonal workers.” It also describes steps for creating a “COVID-19 assessment and control plan” and offers detailed “prevention recommendations…based on an approach known as the hierarchy of controls,” a four-step approach for prevention management. The hierarchy of controls in question consists of (1) Eliminating a hazard or process, (2) Installing engineering controls, (3) Ensuring employees follow established administrative controls, and (4) Using personal protective equipment (PPE).

Read the guidance here.


FDA AND USDA UPDATES

U.S. House Committee on Appropriations Proposes $3.212 Billion for FDA
July 2:The U.S. House Committee on Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration proposed a bill allocating $3.212 billion for FDA for fiscal year 2021. The proposed amount would be a $40.8 million increase from fiscal year 2020’s approximate $3.2 billion budget. The areas receiving targeted increases in funding included influenza vaccine manufacturing technology, medical product and food safety activities, and foodborne illness outbreak response.

During the markup section, Chairwoman of the Committee on Appropriations Nita Lowey (D-N.Y.) said that the budget would provide “a much-needed $31 million boost to continue to review therapies – and one day, vaccines – for COVID-19, sooner rather than later.”

Read the bill here (PDF).

 

USDA Proposes Mandatory Radio Frequency Identification Tags for Cattle and Bison
July 6: USDA’s Animal and Plant Health Inspection Service (APHIS) reopened the debate about electronically tracking cows when it proposed approving only radio frequency identification tags as the official eartag for tracing the interstate movement of cattle and bison by 2023. According to its Federal Register Notice, USDA-APHIS established the Animal Disease Traceability framework to trace animals’ interstate movements and back from slaughter through approved identification methods, including the use of official eartags, for the benefit of “emergency response and ongoing disease control and eradication programs.”

As of the publication of the notice, USDA-APHIS approved both visual (metal) tags and – since 2013 – radio frequency identification (RFID) tags as official identification devices in cattle and bison. Its proposed transition to approving only RFID eartags by 2023 sparked opposition among cattle organizations like R-CALF USA. R-CALF USA objected not only to the expense of RFID tracing, but also to USDA’s plan to distribute foreign-made RFID tags to cattle producers and veterinarians “as a no-cost alternative to the metal clip tags currently available from APHIS free of charge,” according to the notice.

USDA-APHIS invited comments on its proposed RFID tag requirement. To ensure consideration by the agency, comments on the notice must be submitted by October 5, 2020.

Read the Federal Register Notice here.

 

USDA Announces $4 Million in Funding Through Centers of Community Prosperity Initiative
July 10:USDA announced the availability of $4 million through the Centers of Community Prosperity initiative, administered by the USDA Office of Partnerships and Public Engagement (OPPE). U.S. Secretary of Agriculture Sonny Perdue launched the initiative in 2019 “to increase the capacity of rural and underserved communities through extensive collaboration, tailored technical assistance, and a community’s designation as a Community of Faith and Opportunity,” according to USDA’s Press Release.

“Community-based and nonprofit organizations, institutions of higher education, and tribal entities may compete for Community Prosperity funding on projects that provide outreach, education and training in agriculture, conservation, agribusiness, and forestry, with a focus on economic and workforce development, innovation and technology, and quality of life through food and agriculture.” According to USDA’s request for applications, “[t]he eligible entities will provide technical assistance to persistent poverty communities, with emphasis on socially disadvantaged and/or veteran farmers, ranchers and agricultural producers.” The application deadline is August 24, 2020

Read USDA’s Press Release here and its request for applications here.

 

FDA Issues Second Letter to Papaya Growers Regarding Salmonella Contamination Prevention
June 25:FDA followed up on its August 2019 letter to the papaya industry with a second letter urging “papaya growers, harvesters, packers, distributors, exporters, importers and retailers” to take steps to “prevent recurring outbreaks of Salmonella linked to papayas,” according to FDA’s Constituent Update.

The letter referenced eight Salmonella outbreaks associated with imported papayas that occurred between 2011 and 2019, which caused nearly 500 reported cases of illness.

Read FDA’s Constituent Update here and read FDA’s letter here (PDF).

 

USDA Releases Annual Technology Transfer Report
June 29:USDA released its Technology Transfer Report, which annually features agricultural innovations and covers activities within such agencies as USDA-FSIS, Rural Development, and the Agricultural Research Service. According to USDA’s Press Release, the report included such agricultural innovations as the “development of ‘USDA Red,’ the world’s first red-leaf spinach that has 53 percent higher antioxidant capacity, and a new, responsive, web data collection system for the 2017 Census of Agriculture that enhances the web experience for agricultural producers responding to Ag Census surveys.” The report also highlighted the testing of “more than 10,000 pesticide samples,” “[n]ew freezing technology that retains fresh-like fruit quality when thawed,” and the “[d]evelopment of a Conservation Assessment Ranking Tool (CART) that modernizes and streamlines USDA conservation planning and program delivery,” among other updates.

Read USDA’s Press Release here and the report here (PDF).

 

Office of Inspector General Releases Report on USDA-FSIS’s Proposed Swine Slaughter Rule
The Office of the Inspector General (OIG) released its inspection report on USDA-FSIS’s February 2018 proposed rule on the “Modernization of Swine Slaughter Inspection.” The 2018 rulemaking proposed “revok[ing] maximum swine slaughter line speeds for participating establishments and authoriz[ing] them to set their own line speeds based on their ability to maintain quality and performance measures,” according to the report.

Line speed became an increasingly contentious political issue after the February 2018 publication of the proposed rule. In March 2019, 16 Congress members formally requested that OIG review the proposed rule’s worker safety analysis, which “compared worker safety data from the Occupational Safety and Health Administration (OSHA) for large establishments with different allowed line speeds.” OIG’s process audit of the agency’s proposed rulemaking process was still ongoing when the final rule was published on October 1, 2019.

OIG concluded that USDA-FSIS had “generally complied with the public participation requirements under Executive Order 13563 and…communicated to OSHA and the National Institute for Occupational Safety and Health (NIOSH) about the impact of the proposed rule.” However, OIG also found that USDA-FSIS had not “fully disclose[d] its data sources,” “fully adhere[d] to the USDA Information Quality Activities Guidelines data presentation and transparency requirements,” or “take[n] adequate steps to determine whether the worker safety data it used…were reliable” in its worker safety analysis.

Ultimately, OIG offered four recommendations for USDA-FSIS, two of which it retracted after receiving USDA-FSIS’s responses. The two recommendations it maintained were that the agency should (1) “Communicate to the public the actual review period associated with FSIS’ analysis” and (2) “Communicate to the public the known limitations of the OSHA data used for FSIS’ analysis.”

Read OIG’s Inspection Report here (PDF) and the final rule here (PDF).


OTHER DEVELOPMENTS OF INTEREST

United States-Mexico-Canada Agreement Replaces North American Free Trade Agreement
July 1:The United States-Mexico-Canada Agreement (USMCA) officially replacing the North American Free Trade Agreement (NAFTA). President Trump signed the new trade deal into law with bipartisan support on January 29, 2020.

In an op-ed in the North Carolina Fayetteville Observer, U.S. Secretary of Agriculture Sonny Perdue called the USMCA “a better deal for America that will grow our economy and put more money in the pockets of American families.” Perdue lauded, among other aspects of the trade agreement, its “expanded access to Canada’s market…[for] United States poultry and egg producers,” its elimination of “Canada’s unfair Class 7 milk pricing scheme,” its “rules to address all agricultural biotechnology, including gene editing, in support of 21st century innovations in agriculture,” and its maintenance of “the tariff-free access for nearly all U.S. agricultural commodities shipped into Mexico and Canada.

Various U.S. agricultural producers also commended the implementation of USMCA, including the U.S. Grains Council (USGC), the American Soybean Association (ASA), the U.S. Wheat Associates, the National Associates of Wheat Growers (NAWG), and the National Grain and Feed Association (NGFA).

Read USDA’s Press Release here and Secretary Perdue’s op-ed here.

 

Colorado Joins Number of States Dictating Sale of Only Cage-Free Eggs
July 1:Colorado Governor Jared Polis signed a bill setting a 2025 deadline for converting all hen-housing in the state to cage-free housing. Additionally, the law will allow the sale of only cage-free eggs by 2025. Colorado joined other states that have implemented cage-free egg requirements, including Oregon, California, Washington, Rhode Island, and Michigan.

Beginning January 1, 2023, the Colorado bill will prohibit the sale of shell eggs or egg products produced by egg-laying hens confined in enclosures without at least one square foot of usable flor space per hen. By January 1, 2025, farmers will be required to confine hens in a cage-free housing system that meets various spatial and administrative requirements. In other states, such legislation has necessitated the construction of new housing facilities with scratching areas, nest boxes, ventilation, and dust-bathing areas.

Egg producers estimated that compliance with the new law would cost $165 million for the Colorado egg industry and that it would lead to the cage-free housing of about six million hens once the bill was fully phased in.

 

U.S. Representatives Introduce Bipartisan Bill to Expand Meat Processing Capacity
July 2:A bipartisan group of U.S. representatives introduced the Requiring Assistance to Meat Processors for Upgrading Plants (RAMP UP) Act to improve meat processing capacity. The RAMP UP Act would create a program to assist meat and poultry processors with facility upgrades and grants in order to sell their products between states. The bill also would require USDA to help states improve the existing Cooperative Interstate Shipment program.

Introduced by House Agriculture Committee Chairman Colin Peterson (D-MN) and Representatives Frank Lucas (R-OK), Jeff Fortenberry (R-NE), Chellie Pingree (D-ME), Glenn Thompson (R-PA), Sanford Bishop (D-GA), David Rouzer (R-NC), Jim Costa (D-CA), Robert Aderholt (R-AL), and Angie Craig (D-MN), the RAMP UP Act would authorize federal grants of up to $100,000 for meat processors to become federally inspected, facilitating the expensive and difficult process of participating in USDA-FSIS inspections and enabling them to participate in interstate trade. Proponents of the bill, such as the National Farmers Union, hoped that it would help small- and medium-sized meat packing facilities stay afloat amidst crises like the COVID-19 pandemic and in a market in which a handful of plants produce the majority of the country’s meat.

Read about the RAMP UP Act here (PDF).

 

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