Nominations Open for Raisin Administrative Committee

February 1st, 2022

Nominations for independent producer representatives to serve on the Raisin Administrative Committee (RAC) are now being accepted. RAC Independent Producers will serve a two-year term of office beginning May 1, 2022, through April 30, 2024.

The RAC offers the opportunity for all segments of the California Raisin Industry to be represented. To nominate a California raisin producer, attend one of the three RAC nomination meetings:

For more information, visit the RAC website or read the press release. 

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FDA Public Meetings on Proposed Changes to the Ag Water Requirements to be Held Soon

February 8th, 2022

The U.S. Food and Drug Administration (FDA) is hosting two virtual public meetings on the recently released proposed rule “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Relating to Agricultural Water.” We encourage produce stakeholders to attend and voice their views. These public meetings are intended to facilitate and support the public’s evaluation and commenting process on the proposed rule.

Sonia Salas, Assistant Vice President of Science at Western Growers, will be a panelist for the discussions. Salas is responsible for leading and overseeing the development and implementation of diverse food safety efforts, policy development, outreach, education, and training programs for the fresh produce industry.

Registration is required to attend the virtual meetings. We’ve included meeting details and registration links below:

Meeting No. 1

Feb. 14, 2022

8:45 a.m. – 4:45 p.m. PT

Register here

Meeting No. 2

Feb. 25, 2022

5:45 a.m. – 1:45 p.m. PT

Register here

These proposed changes were announced on Dec. 2, 2021, and are open for comments until April 6, 2022. The full rule text is located in Docket Folder FDA-2021-N-0471.

Western Growers hosted a webinar to share experts’ perspectives on the Proposed Ag Water Requirements in late January. Click here to view the recording. Western Growers is also hosting an Industry Ag Water Working Group to facilitate the development of comments to the agency.

Please reach out to the Western Growers Science team if you have any questions or comments at [email protected].

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Interagency Cooperation Could Result in Increased Enforcement

February 4th, 2022

A new Memorandum of Understanding (MOU), between the U. S. Department of Labor Wage and Hour Division (DOL/WHD) and the National Labor Relations Board (NLRB), has been released signaling a new era of interagency cooperation.

The MOU memorializes a voluntary agreement between the two agencies in their efforts to work together to address a mutual need for information sharing, joint investigations and enforcement activity, training, education, and outreach. While the MOU is not legally binding nor is it enforceable by any party, it does signal an intent by the agencies to coordinate investigations of matters arising within both agencies’ jurisdictions.

What does this new era of cooperation mean to employers? A likely surge in investigations[i] and the potential for increased liability. Specifically, the MOU provides that “when, during an investigation DOL/WHD personnel has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the NLRB, they will advise the employee(s) that an opportunity may exist to file a charge with the NLRB.”

Employers can take the following steps to help mitigate their risk of potential violations:

  • Audit all internal wage and hour practices to assure compliance with state and federal wage laws.
  • Train all personnel on proper wage and hour practices (e.g., clocking in/out, meal/rest period, and overtime laws).
  • Provide in-depth training on wage and hour practices for supervisory personnel.
  • Audit existing wage and hour policies to ensure compliance with state and federal wage laws.
  • Hold employees accountable for violations of company wage and hour policies and practices.
  • Review all company policies to ensure they do not conflict with National Labor Relations Act protections.  

Employers with questions concerning wage and hour practices/audits or potential National Labor Relations Act conflicts should contact Western Growers.

[i] On February 1, 2022 the DOL announced its plans to hire 100 investigators to support its WHD compliance efforts.

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A New Standard for Whistleblower Claims

February 4th, 2022

The California Supreme Court has just adjudicated a new standard for proving whistleblower liability under California’s Whistleblower Act (Act).[i] The case Lawson v. PPG Architectural Finishes, Inc. (Jan 2022) settles a long-standing conflict between California’s lower courts on the standard for proving prohibited conduct under the Act.

The Court found the proper framework for such claims is the analysis outlined in California Labor Code section 1102.6. The labor code standard requires employees bringing claims under the Act to show by “a preponderance of the evidence” that the alleged conduct was a “contributing factor in the employer’s prohibited actions” (e.g., termination, demotion, reduction in working hours; action(s) impacting the employee’s terms and conditions of employment). Once met, the burden then shifts to the employer to “demonstrate by clear and convincing evidence” that its actions “would have occurred for legitimate, independent reasons even if the employee had not engaged in” protected activities under the Act.

This statutory standard presents a significantly lower bar than the sometimes-used McDonnell Douglas standard which requires a proven prima facie case[ii] by the employee before the burden shifts to the employer to provide a legitimate, non-discriminatory business reason for their actions, and a subsequent shift back to the employee to rebut that reason as pretext.

In light of the Lawson ruling, employers should consider the following steps to evaluate current Whistleblower policies and reporting procedures:

  • Review existing policies to make sure they: 1) provide employees with adequate notice of Whistleblower protections; and 2) clearly convey the message that employees will not be retaliated against for reporting information to government agencies, refusing to participate in activities that would violate state or federal laws, or exercising their rights under the company’s policy.
  • Include training on Whistleblower protections and company policy during supervisory meetings or training sessions.
  • Make sure all employees are aware of the company’s procedures for reporting any allegedly prohibited conduct.
     

[i] California Labor Code Section 1102.5

[ii] A prima facia case is an action or defense that sufficiently establishes a party’s evidence, subject to rebuttal by the other party.

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New COVID-19 Supplemental Paid Sick Leave Bill (AB 84) Signed by Gov. Newsom

February 10th, 2022

California’s latest COVID-19 Supplemental Paid Sick Leave Bill (AB 84) was signed into law on February 9, 2022 by Governor Newsom. AB 84 requires employers with 26 or more employee to provide up to 80 hours of COVID-19-related supplemental paid sick leave. Details of this new legislation are set out below.  
 

Employee Use of COVID-related Supplemental Paid Sick Leave (SPSL)

SPSL is available for employees unable to work or telework because they are:

  • Subject to a quarantine or isolation period as defined by the California Department of Public Health, Center for Disease Control and Prevention, or local public health officer. This includes caring for a family member[i] subject to the same.
  • Advised by a health care provider to isolate or quarantine due to COVID-19.
  • Experiencing COVID-19 symptoms and seeking medical diagnosis.
  • Caring for a child[ii] whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • Attending a vaccine or vaccine booster appointment for themselves or a family member.
  • Experiencing COVID-19 symptoms themselves – or caring for a family member experiencing COVID-19 symptoms – related to a vaccine or vaccine booster.

NOTE: For each vaccination or vaccine booster appointment, employers may limit the total supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that they or their family member continues to experience symptoms related to the vaccination or vaccine booster. This limit includes time used in getting the vaccine or booster.

 

SPSL Hours Provided

AB 84 provides 40 hours of SPSL for employees who meet either of the following criteria:

  • The employer considers the employee to work full-time.
  • The employee worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took SPSL.

For those employees who do not meet the criteria set out above, SPSL must be provided as follows:

  • If the covered employee has a normal weekly schedule, they are entitled to SPSL equal to:
    • The total number of hours the covered employee is normally scheduled to work for the employer over one week.
       
  • If the covered employee works a variable number of hours, they are entitled to SPSL equal to:
    • Seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took COVID-19 supplemental paid sick leave.
      • If the employee has worked for the employer fewer than six months but more than seven days, this calculation must instead be made over the entire period the employee has worked for the employer.
         
  • If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, they are entitled to SPSL equal to:
    • The total number of hours the employee has worked for that employer.
       

Duty to Provide Additional SPSL

If an employee, or a family member for whom the employee is providing care, tests positive for COVID-19, the employee is entitled to receive additional SPSL in an amount not to exceed that to which they are initially entitled to as outlined above. For example, if a full-time employee tests positive for COVID-19, they would be entitled to receive an additional 40 hours of SPSL as calculated above.

An employer providing additional SPSL hours may require the employee to submit to another COVID test on or after the fifth day after the first positive test and provide documentation of the results of the second test. [iii] If leave is requested to care for a family member who tests positive, the employer may require the employee to provide documentation of the family member’s test result before paying the employee for the additional SPSL.

NOTE: Employers will not be required to provide this additional SPSL if the employee refuses to provide documentation of a test result.

 

Calculating SPSL

SPSL for nonexempt employees is calculated using one of the following:

  • In the same way the employer calculates the regular rate of pay for the workweek in which the employee uses SPSL, whether or not the employee actually works overtime during the workweek.
  • By dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.[iv]
    • For nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, must be divided by all hours, to determine the correct amount SPSL.

SPSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

 

A Few Additional Caveats

As with prior SPSL Bills, COVID-19-related SPSL must be provided in addition to any paid sick leave available to employees under the Healthy Workplaces, Healthy Families Act of 2014. AB 84 creates a new employer requirement to provide COVID-19-related SPSL; there is no credit for compliance with prior COVID SPSL requirements. However, if an employer has already paid an employee a supplemental benefit for leave taken on or after January 1, 2022, for any reason listed above, and has compensated the employee in an amount equal to or greater than the amount of compensation allowable for SPSL, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of SPSL required under AB 84.

Employers are prohibited from requiring employees to use SPSL before using any other paid or unpaid leave benefits. This includes requiring an employee to use SPSL in connection with any Cal/OSHA ETS paid leave requirements.

The total numbers of SPSL is not to exceed 80 hours for the time period January 1, 2022 through September 30, 2022, with maximum payouts capped at no more than $511 dollars per day and $5,110 in the aggregate. Unfortunately, initial talks of tax credits for employers related to the cost of paying supplemental sick leave did not materialize. This means that small and medium employers that must pay for the leave will receive no funding employers and employers with 500 or fewer workers have no federal tax credits to help defray sick leave related costs.

Employers will be required to post a notice of AB 84 once a model notice is made available.[v] Those with remote workers should keep in mind, newly enacted SB 657 requires, “in any instance in which an employer is required to physically post information, [to] also distribute that information to employees by email with the document or documents attached.” NOTE: SB 657 allows electronic distribution, it does not eliminate the employer’s obligation to physically display required postings within its existing workspace. 

The amount of SPSL an employee has used through the pay period in which it was due to be paid must be reflected on the wage statement or in a separate writing provided on the designated pay date with the wage statement. If the employee has not used any SPSL, the wage statement or separate writing must reflect zero hours used. This requirement takes effect the next full pay period following the date AB 84 takes effect. NOTE: An employer may require employees to provide documentation of a positive COVID-19 test during the relevant period if the employee requests retroactive payment of SPSL for time off taken because they tested positive for COVID-19.

AB 84 takes effect February 19, 2022 and is applied retroactively to January 1, 2022. The requirement to provide SPSL under AB 84 ends September 30, 2022.

Members with questions about AB 84 should contact Western Growers.

 

[i] Family member means, a “biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child, a spouse, a registered domestic partner, a grandparent, a grandchild, a sibling. (Cal. Lab. Code section 245.5(c)(2))

[ii] Child means, “a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.” (Cal. Lab. Code section 245.5(c)(1))

[iii] Employers must comply with Cal/OSHA ETS testing requirements.

[iv] This method is usually only preferred if the employer has individuals in sales when selling high volume items.

[v] The statue requires a model notice to be made available to the public within seven days of enactment.

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Best Practices: Conducting Background Checks Using Social Media

February 10th, 2022

It is rare these days to find an applicant or employee that does not have a personal social media account such as a Facebook, LinkedIn, Instagram, or Twitter. And while not all states have specific “social media” laws (e.g., Arizona), federal law, and in many cases state law (e.g., California and Arizona), prohibits an employer from discriminating against applicants and employees based on protected classifications. Employers should also be mindful of limitations on applicant background checks under the Fair Credit and Reporting Act (FCRA), including taking adverse action based on information discovered in a social media search.

Typically, and specifically under California law, social media is broadly defined as social media services and accounts and includes videos, photos, blogs, podcasts, text messages, email and website profiles and locations. Employers wishing to review these types of sites as part of the background check process should understand that reviewing an individual’s social media site is not without risk.

In-house Investigations

Employers are allowed in most circumstances to conduct in-house investigations in connection with the hiring process. Checking a public social media site as part of this type of investigation does not violate employment or privacy laws. However, employers may not use, even public information, in a discriminatory or otherwise illegal manner. In addition, employers should be mindful that there is a difference between viewing an applicant’s public social media site as opposed to using nefarious means to gain access to an applicant’s private social media site (e.g., creating a fake account and asking to “friend” or “link” with the applicant or asking another individual associated with the employer to “friend” or “link” with the applicant). In other words, employers should never use inappropriate means to gather private information from a social media website.

Searching an applicant’s social media site(s) will likely disclose an applicant’s protected characteristics (e.g., age, national origin, race, religion, sexual orientation etc.). These types of disclosures could easily lead to allegations of discriminatory hiring practices based on protected classifications. To lessen this risk, employers should consider using third-party consumer reporting agencies (CRA) to conduct social media searches. Although the employer remains responsible for information it receives from a CRA, a qualified CRA understands what information is obtainable and how the information may be used. Nonetheless, some employers may find that the benefits (e.g., discovery that the applicant engages in or condones violent behavior, sexually explicit activity, or harbors a discriminatory animus toward protected classifications) outweigh the risks associated with social media searches. As a result, employers who review applicant social media sites must use caution regarding what information is obtained and how the information is used.

In addition, California social media laws prohibit an employer from requiring an applicant or employee to:

  • Disclose a username or password for the purpose of accessing personal social media;
  • Access personal social media in the presence of the employer; or
  • Divulge any personal social media except under limited circumstances.[i]

Employers should consult with legal counsel before taking an adverse action against an applicant or employee based on information discovered during a review of the individual’s social media site.

Employers should also consult with legal counsel before taking an adverse action against an applicant or employee based on information discovered during a review of the individual’s social media site.

Keep in mind also that employers taking an adverse action based on information discovered during a review of the individual’s social media site—either as part of an in-house investigation or through a CRA—must comply with Fair Credit Reporting Act notice requirements.

Members with questions about the use of social media during the background check process should contact Western Growers.

 

[i] Employers retain the right and obligation to request an employee divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. This exception does not apply to investigations of job applicants.

 

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Congress Passes Mandatory Arbitration Ban for Sexual Harassment Claims

February 18th, 2022

On February 10, in a continuing effort to ensure employers are enforcing anti-harassment policies, the U.S. Senate passed HR 4445 known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It is expected that President Biden will sign the bill which would amend the Federal Arbitration Act to allow employees to bring allegations of sexual harassment/assault in court instead of being forced into arbitration.

HR 4445 effectively allows plaintiffs to void any arbitration agreement signed before a claim or dispute involving sexual assault or sexual harassment arises. According to Sen. Kirsten Gillibrand, (D-NY), HR 4445’s goal is to change a system “that uses secrecy to protect perpetrators and silence survivors.”

The federal bill follows California, which already bans mandatory arbitration of sexual-harassment claims.

Members with questions about the potential impacts of HR 4445 or how to address uncivil behaviors in the workplace should contact Western Growers.

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COVID-19 Supplemental Paid Sick Leave Model Notice and FAQs Available

February 18th, 2022

The Department of Labor Standards Enforcement (DLSE) has published a model employee notice providing important details of the newly enacted COVID-19 Supplemental Paid Sick Leave Bill (AB 84). The DLSE has also published helpful FAQs interpreting the 2022 Supplemental Paid Sick Leave law.

AB 84 goes into effect on February 19, 2022 and requires employers with 26 or more employees to provide up to 80 hours of COVID-19-related supplemental paid sick leave. Employers must provide notice of AB 84 by distributing the notice to remote employees by email with the notice attached and also physically display the notice within its existing workspace.

The DLSE will be publishing FAQs soon. Employers should continue to monitor the DLSE for notices and updated information.

Members with questions about AB 84 should contact Western Growers.

Click Here to access the SPSL FAQs.
Click Here to access the model notice.

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Privacy Protection Updates: California and Colorado

February 18th, 2022

California Update

Enacted in November of 2020, the California Privacy Rights act of 2020 (CPRA) added new privacy protections to the California Consumer Privacy Act of 2018 (CCPA). To further CPRA legislative mandates, a new governmental agency, the California Privacy Protection Agency (Agency), was formed to implement and enforce CCPA and CPRA laws. Both Privacy Acts impact the way consumer and non-consumer information (including applicant and employee information) is collected, stored and utilized.

In October of 2021, Ashkan Soltani was selected as the Agency’s Executive Director. Since taking up the new position Soltani has held a series of public hearings regarding the Agency’s rulemaking process.  With the CPRA becoming operative on January 1, 2023, the Agency will be considering a significant number of enumerated areas mandated for rulemaking by the CPRA. These final Agency rulemaking efforts signal a huge shift in US Privacy laws and will significantly impact not only consumer contact points such as websites, but also non-consumers, job applicants, employee and business-to-business partners how employers interact with employee data.[i]

 

As goes California, so goes Colorado

Signed into law July of 2021, the Colorado Privacy Act (CPA) takes effect July 1, 2023. To further CPA mandates on rulemaking, Colorado’s Attorney General Phil Weiser has announced his intent to implement the first phase of the CPA’s rulemaking process which involves soliciting public input.

Weiser outlined a two-step process which begins with soliciting public input in a series of high-level conversations at meetings and townhall forums and ends with the drafting of a proposed set of model rules. Colorado is the third state after California and Virginia to legislate in the area of state-wide privacy protection. Those interested in participating in public comment opportunities should visit the Colorado Office of the Attorney General’s website and sign up to receive notifications and information on upcoming events.

For additional information on Agency rulemaking responsibilities and regulations – including a side-by-side comparison of Colorado and California mandated regulations – checkout this informative article by Kyle Fath & Gicel Tominbang of the law firm Squire Patton Boggs.

 

[i] For additional information on Agency rulemaking responsibilities and regulations see this informative article by Kyle Fath & Gicel Tominbang of the law firm Squire Patton Boggs.

 

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CA Pay Data Reports Due April 1, 2022

February 24th, 2022

It’s almost time! California employers with 100 or more employees must file their Pay Data Reports on April 1, 2022. Ahead of the deadline employers should be marshaling data on pay and hours worked according to the following: by company, job category, sex, race and ethnicity. 

Enacted September 30, 2020, SB 973 established Government Code section 12999 authorizing California’s Department of Fair Employment and Housing (DFEH) to receive, investigate, conciliate, mediate, and prosecute complaints alleging unlawful practices under the state’s wage rate provision laws. As a result, California law requires those employers subject to federal Employer Information Reporting (EEO-1) laws to submit an annual pay data report to the DFEH that contains specified wage information.

Reports can be filed through the DFEH’s Pay Reporting Portal using templates provided by the DFEH. Check out the FAQ’s for filing assistance.  

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Litigation Update : California’s Statutory Arbitration Ban (AB 51)

February 24th, 2022

The Issue

California’s controversial arbitration ban (AB 51) [i], signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, prohibits California employers – not subject to the Federal Arbitration Act (FAA) – from requiring employees to sign an arbitration agreement as a condition of employment.

Legal Challenges

Shortly after enactment the law was immediately challenged and an injunction on enforcement granted by the U.S. District Court. However, victory was short-lived as on September 15, 2021, a divided Ninth Circuit Court of Appeals panel reversed (in part) the injunction. [ii] In lifting the injunction, the Court reasoned that the FAA does not preempt AB 51 to the extent it attempts to regulate the employer’s conduct prior to executing an arbitration agreement. However, it did find that the FAA does preempt AB 51 to the extent it attempts to impose penalties on those employers who have already successfully executed arbitration agreements governed by FAA. The case was immediately petitioned for rehearing en banc[iii].  

Current Status

Having granted the petition for rehearing en banc, the Ninth Circuit (as of February 14, 2022) ordered hearings on the matter to be deferred pending a U.S. Supreme Court ruling on the case Viking River Cruises, Inc. v. Moriana. Viking River is a 2020 California Court of Appeal decision reaffirming California’s long-standing ruling that an arbitration agreement cannot include an enforceable waiver of an employee’s right to bring a representative action including those under California’s Private Attorneys General Act of 2004 (PAGA). The deferment is controversial in that the only similarity between the two cases is that they both involve arbitration agreements. In voting against the deferral, Judge Sandra Ikuta voiced her opinion that the issues raised in Viking River are not relevant to the arbitration issues currently before the Court.  Oral argument in the Viking River case is set for March 30, 2022.

 

[i] California Labor Code section 432.6

[ii] Chamber of Commerce of the U.S., et al. v. Bonta, et al., No. 20-15291 (9th Cir. 2021)

[iii] A legal term of art indicating a request for a rehearing before the full court as opposed to a select panel.

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Feb. 24 Virtual Event to Preview Oakland “Pop-Up” Container Yard

February 22nd, 2022

In association with the USDA, CDFA, GO-Biz and CalSTA, the Port of Oakland is hosting a virtual information session on Feb. 24, 2022 at 10 a.m. PT on the new, temporary “pop-up” container yard that will ease congestion and add agricultural export capacity in Oakland.

Shippers, forwarders and truckers can ask operational questions about the yard, which will open on March 1.

The Zoom link for the session is:

https://portoakland.zoom.us/j/97346553375?pwd=eFIxd1RQLyt2Y0xMbVY1bE5tQ3d2QT09

Passcode: 775769

For more information, please contact Andrew Hwang at [email protected].

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Soft Skills a Must for Future AgTech Workforce

February 3rd, 2022

On January 26, 2022, the AgTechX Ed Summit at Imperial Valley College brought together 70 farmers and educators throughout the Imperial Valley and technology companies across the globe to solve one issue: how to cultivate an agricultural workforce equipped with the skills needed to navigate new on-farm technology.

The half-day event featured a series of panel discussions, where the speakers identified several solutions to get more qualified students into agricultural jobs:

  1. Showcase how “ag is sexy” by promoting new tech-based jobs on the farm.

    “We have the opportunity to change the perception of agriculture with all the sexy jobs we now offer with tech and computers,” said Jack Vessey, President of Vessey & Co., during the Chief Executive Officers Panel. “You no longer have to go to Silicon Valley for these sexy jobs. We have those jobs right here on the farm. Ag is sexy.”
     

  2. Break down the perceived barriers of obtaining a college degree, such as access and affordability, by creating joint community college-university level programs.

    For example, during the Education and Workforce Development Strategies Panel, Imperial Valley College and the University of Arizona – Yuma spoke about their streamlined transfer program where ag students can take easily-transferable courses at both colleges at a lower cost.
     

  3. Develop K-12 curriculum that fosters critical thinking skills.

    “We need to invest in the K-12 pipeline and go beyond the basics of STEM and Ag,” said Jairo Diaz, the Director of the UC Desert Research and Extension Center, during the Education and Workforce Development Strategies Panel. “We need to put students in teams where they learn how to solve problems. We need to focus on critical thinking skills.”

The January 26 event wrapped up with a fireside side between Karen Ross, the Secretary of the California Department of Food and Agriculture, and Dennis Donohue, the Director of Western Growers Center for Innovation & Technology, where they covered everything from the importance of soft skills to the economic benefits of an upskilled workforce in California.

Jobs in agriculture “are multidimensional, so we can’t be siloed in skills. Our future workers have to have both technical skills and soft skills,” said Secretary Ross. “We can teach technical skills, so our focus needs to be on hiring people with spark and who are interested in learning.”

To see images from AgTechX Ed at Imperial Valley College, visit the WGCIT Facebook page here.

The workforce development activities continued on January 27, where Secretary Ross spent the day with the Holtville and El Centro FFA chapters. The day started at Holtville High School, where Secretary Ross participated in a Q&A with nearly 30 students. The crew then caravanned to a Vessey & Co romaine field, where FarmWise provided a field demo of their automated weeder and Ag-Bee/Rantizo demonstrated how drones are now being used to apply crop protectants.

The FFA-filled day wrapped up with a Junior AgSharks Competition where FFA students teamed with venture capitalists and farmers to judge up-and-coming technologies of several WGCIT resident start-up companies. Click here to watch the full recording of the Junior AgSharks Competition.

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Port of Oakland – Webinar for USDA “Pop Up” Container Program

February 23rd, 2022

The U.S. Department of Agriculture (USDA) issued some record-breaking export numbers for the month of February, but for many shippers trying to move their ag products through the Ports of Oakland and Los Angeles, frustrations still persist.

According to a Port of Oakland press release, the Port says it’s working with the USDA to clear bottlenecks impeding outbound shipments and provide the industry relief from global supply chain snarls.

The problem
the global shipping logjam created dockside congestion of empty containers that are affecting the transport of Oakland exports.

The solution 
a temporary 22-acre waterfront “pop-up” yard dedicated to export distribution.

The Port said USDA would fund 60 percent of start-up costs for Oakland’s export container depot. Agricultural exporters would have exclusive access to pre-cool refrigerated containers for loading perishable products. Best of all, the Port said, truckers can bypass marine terminals. Agricultural exporters will also receive direct incentives from the USDA to utilize the pop-up yard.

In association with the USDA, CDFA, GO-Biz and CalSTA, the Port of Oakland is hosting a virtual information session on Thursday, February 24, 2022, from 10-11 a.m. PT on the new, temporary “pop-up” container yard that will ease congestion and add agricultural export capacity in Oakland.

Shippers, forwarders and truckers can ask operational questions about the yard, which will open on March 1.

The Zoom link for the session is:
https://portoakland.zoom.us/j/97346553375?pwd=eFIxd1RQLyt2Y0xMbVY1bE5tQ3d2QT09
Passcode: 775769

For any other questions Western Growers members might have, please reach out to Bryan Nickerson at 949.885.2392 or [email protected].

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FDA Resources for Assistance with COVID-19 Supply Chain Disruptions

February 1st, 2022

Last week, the U.S. Food & Drug Administration (FDA) released a host of resources to assist the food and agriculture industry in navigating supply chain disruptions during the COVID-19 pandemic.

Below is a compilation of the resources:

Below are links to additional key government resources:

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Update on Oct. 2021 Onion Salmonella Outbreak Investigation

February 3rd, 2022

The U.S. Food and Drug Administration (FDA), the Centers for Disease Control and state and local partners investigated a multistate outbreak of Salmonella Oranienburg infections linked to whole, fresh onions imported from the State of Chihuahua, Mexico, in cooperation with the Mexican competent authorities. As of February 2, 2022, CDC has declared this outbreak over.

As a result of this outbreak, the FDA initiated onsite domestic investigations as well as Foreign Supplier Verification Program inspections of domestic firms who imported onions from the State of Chihuahua, Mexico.

While the outbreak has ended, FDA continues to work closely with Mexican competent authorities through the established Food Safety Partnership to investigate potential source(s) of contamination within the implicated region and to proactively implement prevention strategies ahead of the next growing season. FDA also intends to consider using additional tools, such as import screening and sampling, for onions grown and harvested in the State of Chihuahua, Mexico during the next growing season.

For more information, read FDA’s outbreak investigation update: https://www.fda.gov/food/outbreaks-foodborne-illness/outbreak-investigation-salmonella-oranienburg-whole-fresh-onions-october-2021

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Update on Dec. 2021 Packaged Salad Listeria Outbreak Investigation

February 3rd, 2022

The U.S. Food and Drug Administration (FDA), along with the Centers for Disease Control (CDC) and state and local partners, is investigating a multistate outbreak of Listeria monocytogenes infections linked to packaged leafy greens.

On January 7, 2022, as a result of continued investigations, the producer issued a voluntary recall of additional products after detecting the presence of Listeria monocytogenes on equipment used in the harvesting of the raw iceberg lettuce also used in finished products processed in its Springfield, OH, and Soledad, CA, facilities. These products were shipped throughout the United States and several provinces in Canada. FDA analyzed the positive sample collected, and the results from FDA’s whole genome sequencing analysis showed that the strain of Listeria monocytogenes found on the harvesting equipment matches the strain causing illnesses in this outbreak.

All recalled products are now past their “Best if Used By” dates of November 30, 2021, to January 9, 2022.

For more information, read FDA’s outbreak investigation update: https://www.fda.gov/food/outbreaks-foodborne-illness/outbreak-investigation-listeria-monocytogenes-dole-packaged-salad-december-2021

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FDA Releases Enforcement Guidance for Human Food with Chlorpyrifos Residues

February 10th, 2022

Yesterday, the U.S. Food and Drug Administration (FDA) released a guidance document titled Questions and Answers Regarding Channels of Trade Policy for Human Food Commodities with Chlorpyrifos Residues: Guidance for Industry. The guidance is intended to help food producers and processors who handle foods that may contain residues of the pesticide chemical chlorpyrifos. The Environmental Protection Agency (EPA) published a final rule on August 30, 2021, revoking all tolerances for chlorpyrifos; these tolerances are set to expire on February 28, 2022.

The FDA is responsible for enforcing the EPA pesticide tolerances for domestic and imported foods, with the exception of meat, poultry, Siluriformes fish and fish products (catfish), and certain egg products that are regulated by the U.S. Department of Agriculture.

According to the FDA, under the channels of trade provision, after the EPA tolerances expire, a food that contains chlorpyrifos residues is not deemed unsafe solely based on the presence of the residue as long as the chlorpyrifos was applied lawfully and before the tolerance expired, and the residue does not exceed the level permitted by the tolerance that was in place at the time of the application.

The FDA has a public docket to receive comments on this guidance. You may submit electronic comments or written comments at any time to Docket ID: FDA-2016-D-4484.

Please reach out to the Western Growers Science team if you have any questions at [email protected].

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March 11 Webinar on Proposed Ag Water Rule

February 10th, 2022

On March 11, 2022, the National Association of State Departments of Agriculture and California Department of Food & Agriculture is co-hosting a webinar to discuss the recently released U.S. Food & Drug Administration (FDA) proposed rule, “Standards for the Growing, Harvesting, Packing and Holding of Produce for Human Consumption Relating to Agricultural Water.” The webinar will feature key FDA officials who will provide an overview of the proposed rule and be available to answer any questions.

No registration is required.

WEBINAR DETAILS:

Background on Agricultural Water Proposed Rule

The FDA is proposing to revise certain pre-harvest agricultural water requirements for covered produce (other than sprouts) in Subpart E of the FDA Food Safety Modernization Act (FSMA) Produce Safety Rule. This proposal, if finalized, would require systems-based pre-harvest agricultural water assessments that covered farms would use for hazard identification and risk management decision-making purposes. As part of the assessment, the farms would be required to evaluate various factors to identify conditions that would be reasonably likely to introduce known or reasonably foreseeable hazards into or onto produce or food contact surfaces. Click here for a summary of key considerations.

These proposed changes were announced on December 2, 2021, and are open for comments until April 6, 2022. The full text of the rule is located in Docket Folder FDA-2021-N-0471. For additional information regarding the rule provisions, public meetings, FDA’s release and WG’s working group to develop comments, click here.

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New Research Advocates for a Data-Based Collaborative Approach to Harvest Equipment Sanitation and Hygienic Design

February 15th, 2022

On February 14, a white paper on harvest equipment sanitation titled “Periodic Deep Cleaning Study of Harvesting Equipment” was made publicly available that advocates for a data-based approach to Periodic Equipment Cleaning (PEC) and hygienic redesign of harvest equipment. The report was coordinated by the Leafy Greens Harvester Sanitation and Hygienic Design Working Group.

PEC includes a protocol to schedule the dissassembling, cleaning and sanitizing of hard-to-clean niche areas in food processing equipment. Currently, PEC activities are well-developed in food processing facilities, but they have not been applied to harvest equipment. The information and microbiological data collected during this study illustrates the need for a combination of PEC cleaning and hygienic design improvement to facilitate effective and efficient cleaning of harvesting equipment.

The study concluded that periodic teardown and deep cleaning at a predetermined frequency are necessary to address identified areas of concern and other niche locations. It acknowledged that although PEC is necessary, it’s quite a burden to execute, given field cleaning of the equipment and out of service time needed. Therefore, moving forward, the strategic solution is to elevate industry focus on hygienic design enhancements.

Additional dialogue, training and partnership is needed with harvesting and equipment manufacturing representatives regarding sanitation, maintenance requirements and improved design opportunities. Further testing and coordination with harvesting operations and manufacturers is planned to enhance hygienic design and sanitation processes.

This effort requires a collaborative approach from harvesters, processers, customers, original equipment manufacturers, trade groups and regulatory agencies to progress the initiative beyond its existing state, according to the report.

If you have any questions or comments, please reach out the Western Growers Science team at [email protected].

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