Agricultural Law Weekly Review—August 24, 2017

Written by M. Sean High - Staff Attorney

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Soda Tax: Sweetened Beverage Sales Decrease in Philadelphia City while Increasing in its Suburbs

On August 22, 2017, the Food Navigator reported that “[w]hile sales of sweetened beverages dropped by more than half within Philadelphia’s city limits following the imposition of a soda tax, they also substantially increased just outside city limits.” The tax, which imposes on Philadelphia beverage dealers a 1.5% per fluid ounce tax on any sugar-sweetened beverage supplied, acquired, delivered, or transported into the City for retail sale, became effective on January 1, 2017.  The report stated that sales of carbonated soft drinks within the City limits fell by 55% while simultaneously, similar sales just outside the City border increased by 38%.  According to the report, Philadelphia officials had originally projected that the tax would raise $46.2 million during fiscal year 2017 (which ended June 2017).  Instead, the report asserted that the actual amount generated from the tax was $25.6 million.

WOTUS: EPA Extends Comment Period for Definition of “Waters of the United States”

On August 22, 2017, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army published notice in the Federal Register of an extension of “the comment period for the proposed rule ‘Definition of Waters of the United States—Recodification of Pre-existing Rules” (82 FR 39712). According to the notice, “[t]he agencies are extending the comment period for 30 days in response to stakeholder requests for an extension, from August 28, 2017 to September 27, 2017.”

Animal Welfare: USDA Unveils Public Search Tool for Animal Welfare Compliance Records

On August 18, 2017, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced the availability “of the refined public search tool that provides access to Animal Welfare Act compliance records.” According to APHIS, the new search tool is intended to provide the public with “information on APHIS’ performance of its statutory duties under the Animal Welfare Act, in accordance with privacy laws.” The announced availability marks the return of the public search tool component of the Animal Care Information System which had been “taken off-line for review on February 3, 2017.”

International Trade: South Korea Lifts Ban on U.S. Poultry

On August 17, 2017, the U.S. Department of Agriculture (USDA) announced “that the government of South Korea has lifted its ban on imports of U.S. poultry and poultry products, including fresh eggs.” According to USDA, earlier this year South Korea had temporarily reopened its market “for U.S. eggs and egg products, but imports were again restricted after the [highly pathogenic avian influenza] HPAI detection in Tennessee.” USDA stated that “[i]n 2014, the last full year without any HPAI-related trade restrictions in place, South Korea purchased $122 million in U.S. poultry products, including eggs, [which had previously made] it the United States’ tenth-largest market.”

International Trade: Japan Raises Tariffs on Frozen U.S. Beef

On August 14, 2017, the USDA Foreign Agricultural Service Global Agricultural Information Network (GAIN) reported that “the Japanese Ministry of Finance (MOF) raised the duty for U.S. frozen beef from 38.5 percent to 50 percent under Japan’s special safeguard (SSG) for frozen beef.” The increase, which was triggered under Japan’s Temporary Customs Tariff Measures Act, applies to all countries that do not have an Economic Partnership Agreement (EPA) with Japan.  Accordingly, the increased duty on will remain in effect until the end of Japan’s fiscal year on March 31, 2018.

International Trade: Access for U.S. Rice Exports to Columbia Expanded

On August 17, 2017, the “U.S. Department of Agriculture Secretary Sonny Perdue and the U.S. Trade Representative Robert Lighthizer… announced [that] an agreement [has been] reached with the government of Colombia to allow for expanded market access for U.S. exports of paddy rice.” The announcement stated that “[a] previous agreement in 2012 between both countries enabled exports of U.S. paddy rice to Colombia, but under strict and costly requirements related to phytosanitary concerns.” Under the new agreement, these requirements have been lifted.  The new agreement also “expands access beyond the single port of Barranquilla, which was the only port previously open to U.S. exporters.”

Pennsylvania Legislation

Agriculture and Rural Affairs Committee (House)

• HB 1714: Disclosure of Certain Information Regarding Dogs Offered for Sale at Pet Shops (Referred to committee August 16, 2017)
• HB 1463: Public hearing on legislation which will increase dog license fees and authorize a State-wide online license registry (Room 205 Ryan Office, September 27, 2017)
• HB 1727: Legislation Providing for County Humane Officers (Referred to committee August 18, 2017)
• HB 1732: An Act amending the act of December 7, 1982 (P.L.784, No.225), known as the Dog Law, in dangerous dogs, further providing for court proceedings, certificate of registration and disposition (Referred to committee August 18, 2017)

Pennsylvania Actions and Notices

Department of Environmental Protection: Agricultural Advisory Board meeting cancellation

AgLaw HotLinks:

• Opening round of NAFTA recognizes ag’s wins – Feed Stuffs
• Budget Limitations Biggest Obstacle for Timely Farm Bill – Brownfield
• Canada to Protect Dairy During NAFTA Negotiations – Milk Business
• Cattlemen Head to RC Over Country of Origin Labeling, Animal ID, and Check-Off – Food Safety News
• Monsanto strikes back on glyphosate – Politico
• Pruitt Urges Ranchers to Submit WOTUS Comments – Ag Web
• GAO report reveals wild horse population still problematic – Feed Stuffs
• US announces deal to export pork to Argentina – CNBC
• On August Recess, Lawmakers Listen and Comment on Farm Bill – Farm Policy News
• E.P.A. Promised ‘a New Day’ for the Agriculture Industry, Documents Reveal – The New York Times
• Heavily used pesticide linked to breathing problems in farmworkers' children – EurekAlert
• Twenty-nine states make it illegal for counties and cities to pass seed laws – Fern’s Ag Insider
• U.S. farmers confused by Monsanto weed killer's complex instructions – Reuters      

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For a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food, visit The Ag & Food Law Blog.

Agricultural Law Weekly Review—February 16, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Animal Welfare: California Farm Faces Cruelty Charges

On February 7, 2017, the Los Angeles Times reported that a California egg farm has been charged with 39 counts of animal cruelty.  According to the article, the charges in question are for the alleged violation of the state’s Prevention of Farm Animal Cruelty Act.  Known also as California Proposition 2, the law “prohibits the confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.” Passed by voters on November 4, 2008, the Prevention of Farm Animal Cruelty Act became effective on January 1, 2015.

Endangered Species List: Delay in Inclusion of Rusty Patch Bumble Bee

On February 10, 2017, the Fish and Wildlife Service published notice in the Federal Register delaying a final rule classifying the rusty patch bumble bee as an endangered species under the Endangered Species Act of 1973 (82 FR 10285).  According to the notice, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review.  As a result, the effective date of the final rule is delayed from February 10, 2017, to March 21, 2017.

Marketing Orders: USDA Recommends California Milk Marketing Order

On February 14, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a “Recommended Decision propos[ing] the issuance of a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California” (82 FR 10634).  According to AMS, “[t]he proposed FMMO incorporates the entire state of California and would adopt the same dairy product classification and pricing provisions used throughout the current FMMO system.” The comment period for the proposed rule closes April 17, 2017.

GMOs: Extension of Comment Period for Certain Genetically Engineered Organisms

On February 10, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register extending the comment period for the agency’s proposed rule revising regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms (82 FR 10312).  As a result, the comment period has been extended from May 19, 2017 to June 19, 2017.  According to APHIS, the proposed rule is “in response to advances in genetic engineering and understanding of the plant pest and noxious weed risk posed by genetically engineered organisms” and is intended to reduce the “burden for regulated entities whose organisms pose no plant pest or noxious weed risks.”

Plant Pest Regulations: Extension of Comment Period

On February 13, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register extending the comment period regarding regulatory changes to the movement of plant pests (82 FR 10444).  The comment period is extended from March 20, 2017, to April 19, 2017.  According to APHIS, the proposed rule would (1) revise regulations regarding the movement and environmental release of biological control organisms; (2) grant permitting exceptions for certain types of plant pests; and (3) revise regulations regarding the movement of soil.

Disease Control: Notice of Changes to National Poultry Improvement Plan

On February 13, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register regarding the availability of proposed changes to the National Poultry Improvement Plan Program Standards (NPIP) (82 FR 10452).  According to APHIS, NPIP is a voluntary program that “is a cooperative Federal-State-Industry mechanism for controlling certain poultry diseases.” The comment period regarding the proposed changes closes March 15, 2017.

Organic Regulations: Organic Livestock and Poultry Practices Rule Delayed

On February 9, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a 60 day effective date delay regarding the Organic Livestock and Poultry Practices rule (82 FR 9967).  According to the notice, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review.  As a result, “[t]he effective date of the final rule published on January 19, 2017 (82 FR 7042) is delayed from March 20, 2017, to a new effective date of May 19, 2017.”

AgLaw HotLinks:

• The effect of the estate tax on agriculture - Lubbockonline
• Live poultry markets closed in Hunan, China due to bird flu - FoodSafetyNews
• “Employment Law Issues In Pennsylvania’s Medical Marijuana Act” - TheLegalIntel
• State objects to new classification of “critical habitat” in endangered species rule - Brownfield
• “Sanderson shareholder proposal on reducing antibiotic use fails” - Meatingplace
• Cattle feeding margins, profits significantly higher than this time last year - Drovers
• Hain Celestial Group is being investigated by the SEC - Meatingplace
• Animal rights groups sue #USDA for removing animal welfare records from website - TheHill
• CA dairy producers consider joining the Federal Milk Marketing Order - Feedstuffs
• Genetically modified wheat is approved for field trials in Britain - BBC
• Income on Illinois grain farms is projected to be lower in 2017 - Farms.com
• US President and Canadian Prime Minister discuss potential changes to NAFTA - AgriPulse
• Farm Bureau prepares to offer Dairy Revenue Protection as insurance for dairy farmers - Brownfield 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.

Agricultural Law Weekly Review—April 14, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Animal Welfare: USDA Proposes Rule Amending Organic Livestock and Poultry Production Requirements

On April 13, 2016, the United States Department of Agriculture’s Agricultural Marketing Service published a proposed rule in the Federal Register that would amend the organic livestock and poultry production requirements (81 FR 21955).  According to the proposed rule, the proposal would “add new provisions for livestock handling and transport for slaughter and avian living conditions; and expand and clarify existing requirements covering livestock health care practices and mammalian living conditions.” The comment period for the proposed rule closes June 13, 2016.

Pipelines: Proposed Rule on Safety of Transmission and Gathering Lines Published

On April 8, 2016, the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration published notice of a proposed rule in the Federal Register “to revise the Pipeline Safety Regulations applicable to the safety of onshore gas transmission and gathering pipelines” (81 FR 20721).  According to the proposed rule, the proposal is intended to provide “additional safety measures to increase the level of safety for those pipelines that are not in HCAs [High Consequence Areas] as well as clarifications and selected enhancements to integrity management requirements to improve safety in HCAs.” The comment period for the proposed rule closes June 7, 2016.

Animal Classification: USDA Amends Definition of “Roaster” Chickens

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service published notice in the Federal Register of a final rule “amending the definition and standard of identity for the ‘roaster’ or ‘roasting chicken’ poultry class to better reflect the characteristics of ‘roaster’ chickens in the market today” (81 FR 21706). According to the final rule, because “[g]enetic changes and management techniques have continued to reduce the grow-out period and increased the RTC [ready-to-cook] weight for this poultry class,” the new definition of roaster “remove[s] the 8-week minimum age criterion and increase[s] the RTC carcass weight from 5 pounds to 5.5 pounds.” The effective date for the final rule is January 1, 2018. 

Industrial Hemp: Legislation Moves to Senate Committee

On April 12, 2016, Pennsylvania House Bill 967 (HB 967), legislation that would legalize the growth and cultivation of industrial hemp for research purposes, was referred to the Pennsylvania Senate’s Agricultural and Rural Affairs Committee. The action comes as a result of the recent unanimous vote by the Pennsylvania House of Representatives to pass HB 967 (see previous Penn State Agricultural Law Blog article).

Food Safety: USDA Proposes Permitting Honduran Poultry into the U.S.

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a proposed rule for the inclusion of Honduras on the list of countries eligible to export poultry products into the United States (81 FR21758).  According to the proposed rule, “FSIS review of Honduras' laws, regulations, and inspection system demonstrated that its poultry slaughter inspection system is equivalent to the system FSIS has established under the Poultry Products Inspection Act (PPIA) and its implementing regulations.” The comment period for the proposed rule closes June 13, 2016.

Animal Slaughter: Vermont Senate Committee Discusses On-Farm Slaughter Bill

On April 12, 2016, the Vermont Senate Committee on Agriculture held discussion regarding Vermont House Bill 860 (H.860); legislation that would extend an exemption authorizing on-farm animal slaughter activities through July 1, 2019.  The action came as a result of a March 17, 2016 vote by the Vermont House of Representatives to pass H.860.  Currently, Vermont’s law providing exemption for on-farm animal slaughter is scheduled to expire on July 1, 2016.

SNAP: Information Collection Request Approved

On April 8, 2016, the United States Department of Agriculture Food and Nutrition Service published notice in the Federal Register of approval of a Supplemental Nutrition Assistance Program (SNAP) Final Rule Information Collection Request (ICR) (81 FR 20524). The ICR approval was published in connection to a final rule, published on January 19, 2016, amending SNAP operations, reporting, reviews, definitions, and coupons (81 FR2725).    

HPAI Update: New HPAI Indemnity Payment Rule becomes Effective

Written by M. Sean High – Staff Attorney

On February 9, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register an interim rule amending the regulations governing the payment of indemnity claims for highly pathogenic avian influenza (HPAI) (81 FR 6745).  The new regulations became effective upon the interim rule’s February 9, 2016 publication in the Federal Register.

The February 9, 2016 interim rule amends the previous HPAI indemnity regulations in three ways: 1) APHIS is allowed to split indemnity payments between poultry/egg owners and contractors; 2) existing policy is clarified through language providing for indemnity payments for eggs destroyed as a result of HPAI; and 3) poultry/egg owners and contractors of large facilities must each provide statements that prior to the detection of HPAI in their facility, they had in place, and were following, a biosecurity plan.

By way of authority, APHIS administers HPAI indemnity payments under 9 CFR 53.  Prior to the February 9, 2016 interim rule, 9 CFR 53 allowed indemnity payments for the costs of purchase, destruction, and disposal of animals and materials required to be destroyed due to HPAI contamination or exposure, but did not specify that an indemnity payment could be divided between a poultry/egg owner and a contractor.

Relatedly, a similar problem previously existed regarding Low Pathogenic Avian Influenza (LPAI).  In 2002, after an LPAI outbreak in Virginia, 9 CFR 56, which governs APHIS LPAI indemnity payments, was amended to allow indemnity payments to both animal owners and contractors (9 CFR 56.8).

Now, because of the February 9, 2016 interim rule, the formula used in 9 CFR 56.8 for dividing LPAI indemnity payments between animal owners and contractors has been incorporated to apply to HPAI (9 CFR 53.11).  As a result, APHIS may now pay a contractor indemnity for their losses associated with HPAI.  Accordingly, after indemnity is paid to a contractor (based on the 9 CFR 53.11 formula), the poultry/egg owner is then eligible to receive the remaining indemnity balance.

Prior to the February 9, 2016 interim rule, as a matter of policy, APHIS included eggs under the general term “materials” for purposes of indemnity payments.  Seeking to provide clarity on the matter, 9 CFR 53 now specifically makes reference to eggs and provides direction for the appraisal value of eggs destroyed due to HPAI (9 CFR 53.3(e)).

Finally, the February 9, 2016 interim rule now requires that for indemnity payment eligibility, both poultry/egg owners and contractors must provide APHIS with a statement that at the time HPAI was detected in their facility, they had in place, and were following, a biosecurity plan.  As a result, barring an exemption, indemnity claims will be denied without these statements (9 CFR 53.10(g)).

Under 9 CFR 53.10(g), only large poultry operations must comply with the biosecurity requirement.  Accordingly, poultry facilities are exempted from issuing the biosecurity statements if the operation is: 1) a commercial table egg facility with fewer than 75,000 birds; 2) a facility that raises for release upland game birds and has fewer than 25,000 upland game birds annually; 3) a facility that raises for release water fowl and has fewer than 25,000 water fowl birds annually; 4) a broiler facility that raises fewer than 100,000 broilers annually; or 5) a meat turkey facility that raises fewer than 30,000 turkeys annually. 

APHIS has stated that the purpose of the February 9, 2016 interim rule was “to solidify policies surrounding the payment of indemnity and further strengthen biosecurity adherence at poultry operations.” The comment period on the interim rule ends April 11, 2016.  

Food Policy Update: Federal 2015-2020 Dietary Guidelines Endorse Lean Meats, Lean Poultry, and Eggs

Written by M. Sean High - Staff Attorney

On January 7, 2016, the Federal Government released the 2015-2020 Dietary Guidelines for Americans, 8th Edition.  Published every five years for public health officials, the Federal Dietary Guidelines are produced in a joint effort between the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA).  

According to the 2015-202 Dietary Guidelines for Americans:

The main purpose of the Dietary Guidelines is to inform the development of Federal food, nutrition, and health policies and programs. The primary audiences are policymakers, as well as nutrition and health professionals, not the general public. The Dietary Guidelines is a critical tool for professionals to help Americans make healthy choices in their daily lives to help prevent chronic disease and enjoy a healthy diet. It serves as the evidence-based foundation for nutrition education materials that are developed by the Federal Government for the public.

While the Dietary Guidelines are not legally binding regulations, they are extremely influential in determining what food is made available through Federal food programs such as the school lunch program.  Just as important, the Dietary Guidelines can have a significant effect on consumer perceptions and often sway food purchasing decisions.  

Of significance to the agricultural industry, the 2015-2020 Dietary Guidelines for Americans stated that “[f]or those who eat animal products, the recommendation for the protein foods subgroup of meats, poultry, and eggs can be met by consuming a variety of lean meats, lean poultry, and eggs.”

On January 7, 2016, the National Cattleman’s Beef Association issued a press release praising “HHS Secretary Sylvia Burwell and USDA Secretary Tom Vilsack for ensuring the final recommendations were based on the latest nutrition evidence available.”  The press release quoted Texas cattle producer and physician Dr. Richard Thorpe who expressed his appreciation that the guidelines were based on the latest nutrition science.  Dr. Thorpe stated that “[n]umerous studies have shown positive benefits of lean beef in the diet, and I commonly encourage my patients to include beef in their diet to help them maintain a healthy weight and get the nutrients they need to be physically active.”

Regulatory Update: FDA Approves Genetically Engineered Chicken

Written by M. Sean High – Staff Attorney

On December 8, 2015, the U.S. Food and Drug Administration (FDA) approved a genetically engineered (GE) chicken designed to produce eggs to be used in the manufacturing of a drug intended to treat the human enzyme disease lysosomal acid lipase deficiency (LAL-D).

LAL-D is a rare (and potentially fatal) disease that causes the build-up of fats within the tissue cells of multiple organs including the heart, liver, and spleen.  According to the pharmaceutical manufacturer Alexion Pharmaceuticals Inc. (Alexion), when LAL-D is present in infant patients (known as Wolman disease) there is currently a nearly 90% mortality rate; when LAL-D is present in pediatric and adult patients (known as cholesteryl ester storage disease) “with a clinical biopsy assessment, nearly 50% progress to fibrosis, cirrhosis, or liver transplant within 3 years of symptom onset.” Consequently, Alexion sought FDA approval for Kanuma, the company’s enzyme replacement therapy drug designed to combat LAL-D. 

Under Alexion’s manufacturing of Kanuma, GE chickens are raised so as to “produce a recombinant form of human lysosomal acid lipase (rhLAL) protein in their egg whites.” In turn, the rhLAL egg whites are to be purified and refined into the LAL-D fighting drug Kanuma.

FDA stated that the GE chickens and their eggs do not pose a human health risk because neither will be permitted to enter the food supply.  Importantly, FDA noted that their approval will “not cause a significant impact on the environment, because the chickens are raised in highly secure facilities. 

US Urges China to Lift Poultry Import Ban

Written by Tyler R. Etter

U.S. Agriculture Secretary Tom Vilsack attended a United States and China Joint Commission on Commerce and Trade to raise the issue of China’s ongoing ban on imports of US poultry. The ban was enacted in response to the outbreak of highly pathogenic avian influenza. The meeting ran from November 21 to 23.

Since no new cases of HPAI have been detected since June 17, Vilsack hoped for China to lower the restrictions on the importation of poultry. Rather than a nationwide ban, Vilsack hoped for restrictions to only be maintained from states or regions where actual infection had occurred. Vilsack commented on the proposal, saying that “International rules suggest a regional approach would be appropriate.”

Before the Joint Commission took place, Vilsack stated that he did not expect the ban to be lifted during the course of the Commission. At the time of this writing, the Commission meeting has concluded, but no information has been released regarding the status of China’s import ban.

West Virginia Lifts Ban on Poultry Exhibits

Written by Tyler R. Etter

On November 10, 2015, West Virginia Commissioner of Agriculture Walt Helmick announced that he was
lifting the ban on gatherings of live poultry. West Virginia is the first state to lift its ban on these
gatherings.

The ban has been in place since May of 2015 in response to the outbreak of avian influenza. Ohio and
Pennsylvania enacted similar bans, which are still in place. Spokesperson at the Pennsylvania
Department of Agriculture stated that the ban will be re-evaluated next year, and the Ohio Department
of Agriculture has also stated that it will potentially reevaluate the ban at the beginning of the next year.

The West Virginia Ag Director is continuing to urge the exercise of caution and biosecurity habits, due to
the possibility of reappearance due to exposure from wild birds. Poultry is West Virginia’s most valuable
agricultural sector, valued at $355 million.

Poultry Farm Quarantines Lifted in Iowa

Written by Tyler R. Etter

The 72 commercial poultry operations in Iowa with confirmed cases of highly pathogenic avian
influenza (HPAI) are no longer under quarantine. The affected facilities may begin the process
of restocking their bird populations.

To lift the quarantine, all sites had to go through a cleaning and disinfection process, followed by
negative results on environmental tests for traces of infection. After the disinfection period, a
waiting period of 21 days applied before the quarantines could be lifted. There are still five
backyard poultry operations still under quarantine however, due to a 180 day waiting period
following depopulation. The Iowa Department of Agriculture and Land Stewardship expects
these quarantines to be lifted in the next month.

There have been no new reports of HPAI since June 17 in Iowa, but scientists are keeping an
eye on migratory bird populations to detect a recurrence of an outbreak. The migration patterns
have been delayed by a warm fall season and officials will need at least a month to be sure that
infections have not recurred.

Nationwide, all but five of the 219 commercial operations have finished the cleaning and
disinfection process. Turkey farms are expected to recover by mid-December, but egg farms will
continue the process into 2017 according to industry officials.

HPAI Trade Restrictions Still Linger

Written by Tyler R. Etter

Although the United States outbreak of highly pathogenic avian influenza (HPAI) has been controlled,
and clean-up efforts are nearly finished, trade partners are still restricting the imports of U.S. poultry.

Most of the 18 nations that banned all U.S. poultry have maintained these restrictions, causing nearly
$900 million in lost trade. There are yet another 38 nations with regional restrictions, costing a total of
$4.5 billion to the poultry industry, which constituted 69% of trade in 2014.

Dr. Lisa Ferguson of the Animal and Plant Health Inspection Service (APHIS) stated that APHIS is
currently visiting trading partners in Asia, Africa, and the Middle East. APHIS is updating the nations on
the plan to face any potential avian influenza this fall, as well as issues of vaccination. The primary goal is
to emphasize that the outbreak is under control, and to encourage the nations to lift the trade
restrictions.

Initially trading partners were suspicious of the vaccination of birds, as they believed it showed a lack of
control over the outbreak. Dr. Ferguson stated that as the vaccination strategy, of using vaccines only
when the disease is rapidly spreading in high-density areas, such as the impacts in Minnesota and Iowa.

Minnesota and Iowa are reported to be the only states where cleaning and disinfection are still taking
place. The World Organization of Animal Health will require a 90-Day waiting period after these
processes are completed before trade restrictions can be lifted.

First Avian Influenza Vaccine Granted Conditional License

Written by Tyler R. Etter

On September 21, 2015, an Ames, Iowa vaccine producer, Harrisvaccines, announced that the United States Department of Agriculture (USDA) granted a conditional license to the producer’s Avian Influenza vaccine. This vaccine is the first Highly Pathogenic Avian Influenza (HPAI) vaccine to receive a conditional license since the outbreak began last spring.

The vaccine utilizes SirraVax technology, which will allow for rapid updates to current and future strains of HPAI. This technology is a critical step for the implementation of any vaccine strategy. It is important to note that the USDA must first grant its authorization before the vaccine can be distributed to producers. The USDA is currently seeking to create a stockpile of vaccines in the event of an outbreak this fall.

Although many producers will welcome a vaccine if offered, there are concerns by broiler producers about the impacts on export markets if a vaccine is used. However, the CEO of Harrisvaccines, Frank Harris, believes the vaccine will be an essential tool for eradication efforts that may alleviate the concerns of foreign trading partners.

A conditional license is usually granted in the event of an emergency or to address an unmet need. Such a product must show a reasonable expectation of efficacy, safety, and potency. Further testing is ongoing. Harrisvaccines has received USDA licensure in the past for Porcine Epidemic Diarrhea Vaccine, RNA (June 2014), Swine Influenza Vaccine, RNA (September 2012), and Autogenous Vaccine, RNA for Rotavirus C (January 2013).

APHIS Releases HPAI Preparedness and Response Plan

Written by Tyler R. Etter

On September 18, 2015, the Animal and Plant Health Inspection Service (APHIS) released a report
detailing the planning and preparations for highly pathogenic avian influenza (HPAI) in the event that
outbreaks continue this coming fall after flocks migrate south.

The HPAI outbreak that took place in the winter of 2014 and spring of 2015 affected more than 48.8
million birds over 21 states. The last detection of the disease was on June 17. The new response plan is
based on a hypothetical “worst case scenario.”

The plan focuses on four key areas: preventing or reducing outbreaks, enhancing preparedness,
improving and streamlining response capabilities, and preparing for the potential use of AI vaccines.
Updates include improved self-assessments for biosecurity for the poultry industry and a draft strategy
for the use of vaccines.

Of particular note are the planned improvements to indemnity payments for flock depopulation. Flock
plans are now to be submitted later in the process, making the 24 hour depopulation goal more realistic.
Further, there is a planned interim rule that will allow for a split of indemnity payments between the
poultry owner and the contract grower.

APHIS has utilized the information and lessons learned from the previous outbreak in developing this
plan. APHIS is confident in its preparedness for the coming fall, and is ready to respond and aid those
affected by the disease. The full report can be read here.

ALDF Files Complaints Over Tyson Alleged Animal Abuse

Written by Katharine Richter

On September 14, 2015, the Animal Legal Defense Fund (ALDF) released undercover footage revealing animal abuse inside a Tyson Food slaughter plant located in Carthage, Texas.  ALDF alleges this is a system that allows the exploitation of “both workers and animals.”  According to an ALDF news release, Stephen Wells, ALDF Executive Director commented, “Our Investigation proves that the cruel treatment of chickens by Tyson foods are not isolated incidents, but a systematic, companywide problem.”

According to the ALDF news release, ALDF has “filed three complaints against Tyson Foods with three different government agencies.”  First, it has filed with the U.S. Department of Agriculture (USDA).  ALDF is arguing the food safety regulations contained in the Poultry Products Inspection Act which were violated by Tyson by their “inhuman animal handling practices and food safety violations.”  Second, ALDF filed with Occupational Safety and Health Administration (OSHA) stating Tyson’s line speed is unrealistic and is creating unsafe working conditions for employees as well as harming animal welfare and violating food safety regulations.  Finally, ALDF filed with U.S. Securities and Exchange Commission (SEC) for “overstating the priority it puts on animal welfare in corporate and investor materials.”  ALDF has also asked the Attorney General of the State of Delaware, where Tyson was incorporated, to investigate and sanction Tyson.

This is not the first investigation into Tyson Foods alleged mistreatment of animals.  Back in August, 2015, Tyson dropped a Tennessee contract farm where individuals were videotaped beating chickens with a stick and stomping on them in an undercover investigation conducted by the group Mercy For Animals.

According to Food Safety News, Tyson issued a media report stating the employees at the plants are trained to report inappropriate behavior and can report to numerous individuals.  Tyson stated there was no record of any violations reported during the time the video was shot.  This is the extent that Tyson has commented on the video and any alleged abuses reported by ALDF.

Chesapeake Bay Update: Environmental Group Calls for Moratorium on New Eastern Shore Poultry Operations

Written by Tyler R. Etter

On September 8, 2015, the Environmental Integrity Project (EIP) released a new report detailing the
expansion of poultry operations on the Eastern Shore, despite cutbacks to water quality monitoring
made by Maryland. As a result, EIP and its allies are calling for a moratorium on new poultry operations
until at least 2024, concerned with rising phosphorous levels in the Chesapeake Bay.

Of concern to the environmental groups is that of the 16 monitoring stations near the Eastern Shore
rivers only 7 are now operating following the state officials shutting down 9 of the stations two years
ago. The groups call attention to the damage caused to the ecosystem by the “high concentration of
poultry waste” on the Shore. They are also concerned about citizen exposure to antibiotic resistant
bacteria present in the waste. The groups chose 2024 for the moratorium period, as that is the year that
Maryland’s Phosphorous Management Tool will be fully implemented, broadening the protections to
the area.

Julie Oberg, spokeswoman for Maryland’s Department of Agriculture, stated that regulations have
effectively barred the use of manure of soils with high nutrient content, and any regulations apply to
new and old operations alike when concerned with water quality. The executive director of the
Maryland Farm Bureau, Valerie T. Connelly, called the moratorium “ridiculous” without targeting other
sources of pollution.

The executive director of Delmarva Poultry Industry Inc. stated that the expansion in operations is a
response to recent economic hardship and regulatory barriers. He claims the industry is just now
“catching up” from the setbacks, and the new operations will have the latest technology to protect the
environment.

PA Township Corrects Right to Farm Violation

Written by Tyler R. Etter

On August 20, 2015, Pennsylvania’s Mount Joy Township (Adams County) amended a zoning ordinance that was found to be in violation of the state’s Right to Farm Act. Review of the ordinance was first requested in March of 2014, with a finding of violations in September.

The Pennsylvania Right to Farm Act is designed to protect normal agricultural operations from local regulations that exceed the state’s regulations on activities. The ordinance in question forbade farmers from using on-site slaughtering operations. Further, the ordinance required 50 acres minimum for a farm-related business, well in excess of the state’s requirement of 10 acres.

In May of 2015, the Attorney General Kathleen Kane sent a letter of recommendations to the township to correct the violations of the Act, which the township appeared to have taken into consideration for the revisions. The revisions consisted of the township adopting the definition of “normal agricultural operations” as used by the Act. Second, the revisions allowed for the processing and sale of poultry on a farm, originally not permitted, which gave rise to the review of the ordinance.

Everett Ramsburg, the farmer that initially requested the review, stated that he doesn’t believe that the township would have acted without the pressure applied by the attorney general. Susan Smith, the township solicitor, denied that the Attorney General’s letter was in direct relation to the changes made to the ordinance, but stated that the specifics “may have been influenced” by the letter.

APHIS Updates HPAI Response Materials

Written by M. Sean High

On August 31, 2015, the United States Department of Agriculture Animal and Plant Health Inspection Service (APHIS) posted an update to the agency’s Highly Pathogenic Avian Influenza (HPAI) response documents.  Titled ContactPremises, this latest document reflects a concerted effort by APHIS to proactively deal with HPAI issues.

According to APHIS, a location is deemed a Contact Premise when that location is determined to “have susceptible poultry that may have been exposed to the highly pathogenic avian influenza (HPAI) virus, either directly or indirectly, including but not limited to exposure to susceptible poultry, poultry products, fomites, or people from Infected Premises.”

According to the Contract Premises document, a Contact Premises is identified through the tracing-back or tracing-forward of all movements (human, vehicle, animal, etc.) from HPAI Infected Premises.  If a Contract Premise is identified, depopulation may be authorized where HPAI is suspected.  A positive HPAI test not required.

Furthermore, APHIS will provide indemnity for the depopulation of Contact Premises poultry flocks that have been properly authorized for depopulated by APHIS and state officials.  The information necessary for indemnity will be collected from barn records after a Contact Premise is identified through movement tracing, and prior to an epidemiological investigation and any subsequent flock depopulation.

APHIS Updates HPAI Documents

Written by M. Sean High

In an effort to more efficiently respond to possible outbreaks of Highly Pathogenic Avian Influenza (HPAI), the United States Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has recently issued updates to many of the department’s foreign animal disease preparedness and response plan materials (FAD PReP).  Of particular interest to poultry owners will likely be the newly streamlined procedures regarding appraisal and indemnity. 

According to the document titled Appraisal & Indemnity Procedures and dated August 19, 2015, “[t]he best practices to contain and eradicate [HPAI] by ‘stamping-out’ within 24 hours of detection will require rapid depopulation, appraisal, and indemnity procedures.” To accomplish these goals, state animal health officials and APHIS are no longer required to wait for a positive HPAI test result prior to authorizing depopulation.  Instead, these officials may now approve depopulation when HPAI is suspected.
  

Additionally, poultry owners are no longer required to have a signed flock plan prior to receiving indemnity payments.  A flock plan, however, will still be required if a poultry owner will is seeking APHIS disposal assistance or APHIS cleaning and disinfection assistance.

It is important to note that all APHIS FAD PReP materials are subject to change.  As a result, interested individuals should always consult the FAD PReP Materials andReferences webpage for the latest department revisions.

Case Farms Facing Fines From OSHA Inspection

Written by Tyler R. Etter

On August 13, 2015, the Occupational Safety and Health Administration (OSHA) released citations against chicken processor Case Farms facility in Winesburg, Ohio. The inspection occurred in February of 2015, revealing a total of 55 violations, with an assessment of $861,500 in penalties.

The inspection revealed amputation hazard, fall hazards, lack of personal protective equipment, violations of electrical safety standards, improperly stored oxygen cylinders, and a lack of emergency eye wash stations.

The OSHA investigation has characterized Case as an “outrageously dangerous place to work.” Over the past 25 years, Case has had more than 350 violations. According to OSHA, Case Farms has a history of safety violations, with citations issued in 42 out of 66 inspections. Following recent complaints, OSHA is currently investigating Case’s Canton, Ohio operations.

Case Farms has responded to the investigation, stating that it disagrees with the negative characterizations of the company, and that the Winesburg facility had recently passed 900,000 hours without a time-loss injury. According to Case, the last time loss injury occurred was on September, 16, 2014. The company plans on working with OSHA to address the concerns.

U.S. Chicken Import Ban Continues in South Africa

By Katharine Richter

On August 7, 2015, the Office of the United States Trade Representatives (USTR) held a hearing to determine “whether South Africa should be suspended from the recently renewed African Growth and Opportunity Act (AGOA)” because of failure to eliminate specific agricultural trade barriers previously agreed upon.  AGOA, a trade agreement giving South Africa very “liberal access to the U.S. market,” was renewed on June 29, 2015. 

According to a joint statement from USTR, on June 4 and 5, 2015, industry representatives and government officials from the United States and South Africa met in France to discuss agricultural trade issues in relation to renewing AGOA.  South Africa had agreed to allow “renewed market access for U.S. bone-in-chicken.”  Prior to the meeting, South Africa placed anti-dumping duties on American chicken, effectively banning U.S. chicken.  South Africa at the meeting agreed to create the framework allowing U.S. chicken imports.

The President of the National Chicken Council (NCC), Mike Brown, testified at the hearing that South Africa needs to begin to “treat U.S. products fairly… [and] unless South Africa makes significant progress in this regard, the law now requires the president to take action to limit, or even deny, further preferences.” 

This response from NCC is a result of South Africa failing to implement agreements made at the France meeting.  According to the testimony, “South Africa has agreed to open, and the U.S. industry has agreed to accept, an initial annual antidumping duty-free quota of 65,000 MT, with future growth in that quota calculated upon an agreed formula…”  Mike Brown stated in his testimony, “In our view, South Africa will have only made the progress it is required to make under the AGOA renewal legislation when there are actual imports of U.S. poultry moving into South Africa.”

Iowa HPAI Quarantine Zones Reduced to Eight

By Tyler R. Etter

On August 4, 2015, ag officials in the state of Iowa lifted 69 out of 77 quarantine zones in effect in response to avian influenza infection. There are now only 8 quarantine zones remaining across three counties in the state.

The quarantine zones were 10 kilometers in size centered around locations that had confirmed cases of highly pathogenic avian influenza in poultry.  When a quarantine zone is enacted, all movement of poultry and poultry products must be permitted by the state department of agriculture. To reduce risk of further infection, the flocks are depopulated and disposed of, with the premises then entering a period of cleaning and disinfection.

All 77 of the affected premises have gone through depopulation and disposal. Sixteen sites have completed the cleaning and disinfection process, and currently four sites are now able to begin repopulating flocks. A premise can only begin repopulation after a minimum of 21 days have passed since the last day of cleaning and disinfection, to be assessed by state animal health officials. Then state and APHIS officials must agree in writing that the affected premises can be restocked.

A control area is lifted for an area when the last infected premises in the area has been depopulated, and there have been no positive results for 21 days since the initial cleaning and disinfection of the last infected area.

It is worth noting that the quarantine is only being lifted for those premises within the control zone that had no actual HPAI infection. Premises with confirmed HPAI infections are still under quarantine.