Regulatory Register - Fall 2021

REGULATORY REGISTER Volume 23, Issue 4 Fall 2021

In this issue NMPF Advocates for Climate Smart Dairy Priorities, Page 2 U.S. Dairy Sustainability Efforts Recognized at Food Systems Summit, Page 3 NMPF Concerned with EPA’s PFAS Roadmap, Page 4

OSHA Issues Emergency Vaccination Mandate – Litigation Ensues The fate of vaccination mandates for employers with 100 or more workers remains very much in question, with intense legal activity surrounding it that may quickly make its way to the U.S. Supreme Court. NMPF has been engaged with federal officials throughout, protecting dairy interests as controversial measures play out.

The Emergency Temporary Standard (ETS) action is one part of President Biden’s overall multi-prong plan to vaccinate the unvaccinated, potentially affecting more than 80 million people. The ETS released Nov. 4 requires employers with over 100 employees to ensure the workers are vaccinated against COVID-19 or have a negative weekly COVID-19 test. The ETS requires employers that are subject to the OSHA ETS Vaccination Mandate to have a written policy in place by Dec. 5.

Several members of the National Council on Farmer Cooperatives and NMPF met with the White House Office of Management and Budget (OMB) on Oct. 18, over two weeks before the rule was released, to discuss the standard then under development. The coalition that met with OMB raised numerous concerns about the mandate while making it clear it will continue to advocate for vaccinations.

Key questions include whether there will be enough tests to handle the demand. If there are insufficient tests to meet demand, the coalition is concerned the program will fail, further disrupting an already fragile supply chain. NMPF suggested that the White House should consider invoking the Defense Production Act (DPA), as it did several times in the past year to address other COVID related issues, to ensure availability of affordable rapid COVID-19 tests.

The group also raised concerns about record-keeping, time-off requirements, and potential suspension of the ETS if it creates supply chain disruption, particularly for workers deemed essential by DHS-CISA in its Critical Infrastructure Workers v 4.0 NMPF helped develop in 2020. Still, despite the ongoing litigation, NMPF suggests employers complete their written policies to avoid any negative repercussions and to encourage vaccination.

To assist in compliance, OSHA had provided two templates that are available from NMPF. One is for employers that mandate all

employees get vaccinated and one is for employers that give employees the option to get vaccinated or wear a face covering and submit weekly negative COVID-19 test results. OSHA is suggesting that employers incorporate any existing COVID-19 policy into one of these templates.

The blue text in the templates show where they need to be customized. Below are the requirements that need to be in place by the respective compliance dates. OSHA has been clear in stating the ETS preempts any state or local prohibition on mandates. But OSHA also cautions employers to be mindful of conflicts with collective bargaining agreements.

The following details what needs to be achieved by requirement deadlines: Dec. 5, 2021: Employers must: (1) collect each employee’s vaccination status; (2) require unvaccinated employees to wear masks; (3) educate employees on and promote the benefits of the COVID-19 vaccine; and (4) require employees who are COVID-19 positive to quarantine and set protocols for dealing with the same.

Jan. 4, 2022: Employers must begin requiring testing of unvaccinated employees weekly. (Note: employers are not required to pay for testing).

NMPF has shared several documents with its Regulatory Committee to help understand and prepare for compliance with the ETS which we will be happy to share with the broader NMPF membership. NMPF has also shared the CDC’s Key Things to Know About COVID-19 Vaccines, OSHA’s Penalties document about supplying false information and OSHA’s Worker’s Rights Under the ETS document. These documents may collectively be used meet the employee education requirements.

Finally, NMPF provided the link to OSHA’s ETS page: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov). This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

NMPF Advocates for Climate Smart Dairy Priorities to USDA NMPF sent a letter Oct. 21 to USDA Secretary Tom Vilsack highlighting U.S. dairy sustainability initiatives as examples of the many ways U.S. agriculture and the U.S. government are working together to tackle climate change and meet other environmental challenges as potential examples to be showcased at the COP26 meeting in November.

Sec. Vilsack followed by spotlighting the sector at COP26, stating that the U.S. dairy industry is “embracing a 2050 net zero initiative which is designed to help dairy farms of all geographies and sizes continue to implement new technologies and to adopt economically viable practices in feed production, animal care, energy efficiency, and manure management…. [and] many of our dairy farmers in the U.S. are already demonstrating the benefits of regenerative agricultural practices.” .

The NMPF letter focused on three priority areas for further U.S. dairy industry and USDA collaboration: • Expanding and improving USDA conservation programs to better support dairy farmer needs such as including cost share for new feed amendments which can reduce enteric methane.

• Creating and enhancing mechanisms to spur adoption of innovative technologies by better addressing the upfront capital costs of technology investments that reduce carbon emissions and enhance water stewardship.

• Supporting emerging markets for ecosystem services from agriculture by implementing a pilot program to test and refine the role of a carbon bank, rewarding early adopters and evaluating USDA’s role in establishing prices for carbon and greenhouse gas reductions.

NMPF also submitted joint comments with Newtrient on the USDA Request for Information on a Climate-Smart Agriculture and Forestry (CSAF) Partnership Program (Docket Number: USDA-2021-0010) on Nov. 1, in a separate effort to advance dairy’s sustainability priorities.

USDA requested comments on eight questions to reduce and remove barriers currently limiting the development of new market opportunities for CSAF practices. and options for promoting CSAF, including systems for quantification, options, and criteria for proposal evaluation, use of information collected, potential protocols, and options for review and verification.

The joint NMPF-Newtrient comments focused on the U.S. Dairy 2050 sustainability goals and Net Zero Initiative in delivering on climate-smart dairy production. The needs identified for dairy farmers included increasing the ability to access private carbon markets, additional technical and resource support for technology and best practice implementation, with opportunities for dairy farms of all sizes in all regions.

Page 2

U.S. Dairy Sustainability Efforts Recognized at Food Systems Summit Dairy efforts led by NMPF and the U.S. Dairy Export Council (USDEC) capped off months of work Sept. 23-24 by making great strides in positioning dairy as a core part of a sustainable food system in a well-balanced UN Food Systems Summit.

NMPF and other farm organizations have spent much of the year conducting extensive outreach with U.S. officials to help ensure that the U.S. government maximized its ability to shape the summit and the additional efforts it has been spurring to move in a trade-friendly, science-based direction.

NMPF seized multiple opportunities in September to emphasize key dairy priorities to the U.S. interagency team working on finalizing U.S. stances and messages for the summit.

• NMPF delivered remarks at a Sept. 3 State Department summit preparation listening session calling on U.S. government leadership to ensure that future food systems work supports the role of trade, agricultural innovation, and livestock products.

• NMPF and USDEC also submitted more detailed recommendations 8 to the U.S. government underscoring the additional needs to: (1) clearly communicate and promote the positive role of sustainable livestock systems; (2) promote a role for school milk as a key component in school meals; (3) actively work to shape UN leadership comments and reports to align with the U.S. interests; and (4) work to shape future work and steer that process toward being conducted by multilateral organizations that prioritize science-based policy making.

• NMPF also worked with USDEC to play an active role in helping shape an agriculture coalition letter outlining summit priorities that was sent to USDA Secretary Tom Vilsack and Secretary of State Antony Blinken on Sept. 13.

The letter urged enhanced work with like-minded countries to promote the benefits of rules-based international trade; support science, innovation, and technology; recognize

that all production systems should seek to minimize environmental impacts without sacrificing overall diet quality and diversity; and support flexibility in addressing national, cultural, and personal interests without prescriptive or “one-size-fits-all” approaches.

• On Sept. 14, NMPF joined a small group of other agricultural organizations to meet with USDA Deputy Secretary Jewel Bronaugh and emphasize the type of results that U.S. agriculture views as critical to feeding the world sustainably.

Secretary Vilsack and USAID Ambassador Samantha Power announced U.S. commitments near the outset of the summit Sept. 23; those remarks focused on addressing hunger and drawing on a variety of tools to build sustainable food systems.

NMPF President and CEO Jim Mulhern said dairy farmers need to be at the table given the positive role they play on both fronts.

“Some have viewed the summit as an opportunity to issue lengthy lists of dos and don’ts to the farmers worldwide who work hard every day to feed us all,” Mulhern said in a statement released in conjunction with the summit. “We’re proud to promote an approach that recognizes that farmers everywhere advance sustainability in many ways – with America’s dairy farmers at the forefront. Rather than trying to impose a uniform, misguided ideology on how the world eats, farms, and produces food, we all need to do our part to use limited resources wisely and efficiently to feed a growing world population in environmentally sound ways.”

The U.S. dairy industry has a big role to play to sustainably meet the world’s growing demand for dairy. To allow that to flourish, NMPF will continue to promote trade-friendly and evidencebased solutions to support diverse and healthy diets as core to sustainable food systems as U.S. dairy enhances its critical role in sustainably meeting growing global dairy demand.

NMPF, IDFA Objects to FDA’s Revised Sodium Guidance NMPF and the International Dairy Foods Association (IDFA) are planning to comment on Food and Drug Administration (FDA) guidance released Oct. 13 that improperly treats sodium’s role in dairy processing as part of voluntary short-term goals for sodium content in commercially processed, packaged, and prepared foods.

The effort is meant to reduce excess sodium intake over the next 2.5 years while recognizing and supporting the important roles sodium plays in food technology and food safety. In NMPF’s opinion, FDA got it wrong.

NMPF and IDFA in 2016 jointly filed two sets of comments to address issues the organizations saw in the then-proposed guidance.

The organizations informed FDA that sodium plays a complex and multi-faceted role in cheesemaking that goes well beyond flavor.

The comments called for FDA to remove all cheeses and butter from its guidance; other dairy products are not included in the guidance, as they do not contribute a meaningful amount of sodium to the diet.

The final guidance called for sodium reduction in cheese as categorized below: • From 3.6% reduction up to 17% in 14 cheese categories and several cheese related categories (sauces, dips and spreads); • A 3.6% reduction in natural cheese Blue with Swiss topping out at 9%; and • Mozzarella sticks and cheese curds were categorized as appetizers which FDA recommended for a 17% reduction.

The guidance has an open-ended comment period, during which NMPF is collaborating with IDFA to forcefully respond to FDA. In the interim, it is important to note this is voluntary. No cheese manufacturer should do anything that would ruin the quality of its products or jeopardize food safety.

NMPF Concerned with EPA’s PFAS Roadmap NMPF is concerned over the potential treatment of farmland under the U.S. Environmental Protection Agency’s (EPA) comprehensive Strategic Roadmap to confront PFAS contamination nationwide. The strategy, announced Oct. 18, will engage stakeholders as multiple rulemakings related to its plan get underway.

EPA asserts the Roadmap is the result of a thorough analysis conducted by the EPA Council on PFAS that Administrator Michael S. Regan established in April.

The plan is centered on three guiding strategies: increasing investments in research, leveraging authorities to act now to restrict PFAS chemicals from being released into the environment and accelerating the cleanup of PFAS contamination. NMPF has long been an advocate for research in these areas, as so much is unknown about these chemicals and rulemaking should not be made on speculation.

Roadmap key actions include: • Aggressive timelines to set enforceable drinking water limits under the Safe Drinking Water Act to ensure water is safe to drink in every community.

• A hazardous substance designation under CERCLA, to strengthen the ability to hold polluters financially accountable.

• Timelines for action—whether it is data collection or rulemaking—on Effluent Guideline Limitations under the

Clean Water Act for nine industrial categories.

• A review of past actions on PFAS taken under the Toxic Substances Control Act to address those that are insufficiently protective.

• Increased monitoring, data collection and research so that the agency can identify what actions are needed and when to take them.

• A final toxicity assessment for GenX, which can be used to develop health advisories that will help communities make informed decisions to better protect human health and ecological wellness.

• Continued efforts to build the technical foundation needed on PFAS air emissions to inform future actions under the Clean Air Act. The Roadmap was well-received by many environmental groups and some members of Congress. While NMPF has sympathy with some of its goals and provisions, other areas raise serious concerns: In particular, the application of CERCLA to contaminated farmland, to do so can cause that farmland to be a SuperFund site.

EPA will conduct rulemaking under this Roadmap for the next several years. NMPF will continue to engage with EPA during its various and numerous rulemakings related to the plan

Page 4

NMPF’s Jonker Reports on International Dairy Federation Progress Dr. Jamie Jonker, as chair of the IDF Science Program Coordinating Committee, reported on the scientific and technical progress completed by the International Dairy Federation during the past year during the IDF Forum at the Global Dairy Conference held Oct. 13-15.

Dr. Jonker emphasized that the success of IDF “is a direct result of the scientific and technical expertise of more than 1200 global dairy leaders who work on the greater than 150 IDF projects.”

In the last year, IDF published nearly 50 bulletins, standards, factsheets, reports, and comment submissions in addition to about 30 scientific and technical webinars. Among the highlights from the last year: • IDF Virtual Nutrition Symposium highlighting the valuable nutrient density of dairy products as part of a healthy diet • IDF Virtual International Cheese Science & Technology Symposium imparting the latest information on cheese manufacturing • IDF Dairy Sustainability Outlook, coinciding with the UNFSS, highlighting sustainable dairy production systems around the world • IDF Bulletin 507/2020: The Codex General Standard for the Use of Dairy Terms Its nature, intent and implication which reaffirmed that dairy products only come from mammalian milk and not plants or laboratories Despite the challenges during the global pandemic, IDF

continued to deliver on its scientific and technical mandate, including standards, technical specifications, methods of analysis, guidelines and standards development from the farm to the consumer. IDF scientific and technical work is tied to how sustainability can be measured to provide evidence to customers and consumers about dairy as part of a sustainable nutritious food.

During the last year, IDF worked collaboratively with the Global Dairy Platform providing scientific and technical information about dairy production and nutrition for the UN Food Systems Summit. Dr. Jonker ended with emphasizing IDF support for the CODEX definition of milk which is “Milk is the normal mammary secretion of milking animals obtained from one or more milkings without either addition to it or extraction from it, intended for consumption as liquid milk or for further processing.”

IDF is the leading source of scientific and technical expertise for all stakeholders of the dairy chain. Since 1903, IDF has provided a mechanism for the dairy sector to reach global consensus on how to help feed the world with safe and sustainable dairy products. A recognized international authority in the development of science-based standards for the dairy sector, IDF has an important role to play in ensuring the right policies, standards, practices and regulations are in place to ensure the world’s dairy products are safe and sustainable The Raw Milk Study Subcommittee is set to meet again this month to further discuss potential legislation.

NMPF Files Comments Advocating for Continued Use of Pyrethrins NMPF filed joint comments with fellow agricultural organizations including the American Farm Bureau Federation and the National Pork Producers Council on Nov. 3 advocating for the continued use of pyrethrins on agriculture operations, saying that “The pyrethrin + products are fundamentally important to the US livestock and poultry sectors for the control of many airborne and other animal house insect pests, especially house and stable flies. These insects are highly detrimental to the health and welfare of the animals, the persons working in the houses, and lead to risks of spread of food safety pathogens.

Pyrethrins are the most effective and safe product to use for adult fly control on agriculture operations. After initiating a registration review on Dec. 2011, EPA proposed the prohibition of multiple applications of pyrethrins, including the use in animal barns, even after recognizing that this could negatively impact pest control, citing “potential risks of concern for residential handlers and adults and children who are exposed after application.”

The joint comments emphasized the important role pest management plays in biosecurity and disease control, noting and that there is little to no public exposure to pyrethrins when applied properly.

U.S. Dairy 2020 Sustainability Report Now Available Dairy’s sustainability and environmental stewardship is increasing by many measures, a 23 percent increase in U.S. Dairy Stewardship Commitment adopters since 2018, and a 33 percent increase in fresh milk and dairy products (469 million pounds) distributed through Feeding America food bank network, according to the Innovation Center for U.S. Dairy’s 2020 U.S. Dairy Sustainability Report released in September.

The report provides a transparent accounting of progress and impact of the U.S. dairy community from 2019-20 and is the only comprehensive summary of U.S. dairy’s contributions against social responsibility priorities, including environmental stewardship, animal care, food safety, and community contributions. The report can be accessed through an interactive web portal that allows for easy content navigation, search, sharing and printing.

A key feature of the report is the first formal analysis of aggregated data from dairy processors adopting the U.S. Dairy Stewardship Commitment. The data represents approximately 70% of U.S. milk production and provides a baseline for future

U.S. dairy processor sustainability reporting in key areas such as water, energy, GHG emissions, resource recovery, product quality and safety, community contributions, and workforce development.

Additional Report content includes a snapshot characterizing the current status of U.S. dairy, along with highlights of the reporting period. Numerous examples of programs and actions illustrate the priority the dairy community places on making a positive impact on providing the world with responsibly produced dairy foods that nourish people, strengthen communities and foster a sustainable future. For example, in 2019, the Stewardship Commitment’s comprehensive farm-to-processor GHG measurement and reporting guidance received formal endorsement from the World Resources Institute (WRI) with the “Built on GHG Protocol” mark. This recognition signifies alignment with the most globally accepted and utilized GHG accounting framework – a first within the agricultural sector.

NMPF Sends Georgia Legislature Letter Advocating Against Raw Milk NMPF sent the chairman of Georgia’s Agriculture and Consumers Affairs committee, as well as the leader of the state’s Raw Milk Study Subcommittee letters urging them to not pass a bill allowing for the sale of raw milk to consumers on Oct 4.

Currently, raw milk is only allowed to be sold for pet food in Georgia.

NMPF has long advocated against the sale of raw milk, as it is not only a major public health risk but also is a potential liability for dairy farmers. The letters state, “while choice is an important value, it should not pre-empt consumers’ well-being.

To authorize the sale of raw milk and raw milk products is an unnecessary risk to consumer safety and public health. As such, we strongly oppose any legislation which would legalize the sale of raw milk in Georgia.”

NMPF Launches Internship Program; Seeks Intern for Summer 2022 NMPF has launched a new internship program to provide students the opportunity to better understand the intersection of U.S. dairy industry policy, regulations, and trade. Interns will have the opportunity to learn from NMPF’s expert staff, covering areas including government relations, regulatory affairs, trade, communications, membership services and the National Dairy FARM Program.

The internship will take place over the summer for 10-12 weeks and is open to rising junior or seniors, and Masters students with an interest in dairy, agriculture, food science, social responsibility, economics or food policy-related fields. More information is available here. Please email internship@nmpf.org with any questions.

Page 6