February 5, 2023

Agricultural Law Weekly Review—February 6, 2023

International Trade: U.S. Requests Second USMCA Arbitration Over Canada’s Dairy Tariff-Rate Quotas 🌾
On January 31, 2023, the Office of the U.S. Trade Representative (USTR) announced that the U.S. has requested—for the second time—that an arbitration panel adjudicate the U.S.’s claim that Canada’s  administration of its dairy tariff-rate quotas (TRQ) violate the United States-Mexico-Canada Agreement (USMCA). A January 2022 arbitration panel decision found Canada’s TRQ eligibility criteria were a USMCA violation. According to the U.S., Canada’s resulting minimal change to TRQ eligibility does not remedy the underlying violation. The new arbitration request reasserts TRQ eligibility and adds TRQ allocation as Canadian USMCA violations. The USTR also published a collection of quotations from U.S. Congress members and dairy industry stakeholders supporting USTR’s arbitration request.

Industrial Hemp: FDA Announces Current Regulatory Framework Not Adequate to Regulate CBD
On January 26, 2023, the U.S. Food and Drug Administration (FDA) announced that the agency has determined that the current food additive and dietary supplement regulatory framework is not adequate to regulate cannabidiol (CBD) products and states that it “is prepared to work with Congress on this matter.” Additionally, FDA denied three petitions requesting the agency promulgate regulations to market CBD as a dietary supplement. FDA states that CBD consumption carries several risks, including liver damage and harm to the male reproductive system, and lists possible regulatory mitigation efforts as part of a “new regulatory pathway,” including “clear labels, prevention of contaminants, CBD content limits . . . [a] minimum purchase age . . . [and] access and oversight for certain CBD-containing products for animals.”

Food Safety: USDA-FSIS Publishes New Strategic Plan for 2023–2026
On January 13, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published its 2023–2026 Strategic Plan (Plan). The Plan addresses both the day-to-day and long-term FSIS operations. FSIS’s desired outcomes are organized around three goals: 1) prevent foodborne illness and protect public health, 2) transform inspection strategies, policies, and scientific approaches to improve public health, and 3) achieve operational excellence. More information on the Plan can be found here.

Environmental Policy: EPA Seeks Comment on Proposed National Enforcement and Compliance Initiatives for FY 2024–2027
On January 12, 2023, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register seeking public comment on National Enforcement and Compliance Initiatives (NECIs) for Fiscal Years 2024–2027. A public comment period is open until March 13, 2023. According to EPA, the agency “aims to align all existing and proposed NECIs with two overarching Strategic Plan goals: ‘Tackle the Climate Crisis’ and ‘Take Decisive Action to Advance Environmental Justice.’”  EPA proposes to replace two of the six previous NECIs with two new initiatives: “Mitigating Climate Changes” and “Addressing PFAS Contamination.”

Water Quality: EPA Releases 2022 Pennsylvania Animal Agriculture Program Assessment
On January 3, 2023, the U.S. Environmental Protection Agency updated its Assessments of Animal Agriculture Programs in the Chesapeake Bay Watershed webpage to add the first of six new 2022 assessments of each state in the watershed, starting with Pennsylvania. According to the assessment, “Pennsylvania could improve reductions in nutrient and sediment loading from regulatory programs by directly requiring implementation of BMPs [best management practices] or by prioritizing funding to projects that implement BMPs, accelerate implementation, increase funding, and/or increase the number of operations that are required to implement BMPs or obtain permits.”

Water Quality: EPA Announces New Effluent Guidelines Program Plan 15
On January 20, 2023, the Environmental Protection Agency (EPA) announced its Effluent Guidelines Program Plan 15 (Plan 15). The plan outlines how EPA will protect waterways and set pollution limits from industrial wastewater discharge under the Clean Water Act. Plan 15 focuses on evaluating and preventing discharges of per- and polyfluoroalkyl substances (PFAS), in line with EPA’s commitment to the PFAS Strategic Roadmap. EPA also announced additional studies, including one into concentrated animal feeding operations (CAFOs) to determine whether CAFOs should be a focus area in the agency’s next effluent limitations guidelines.

Pesticides/Herbicides: California Announces New Sustainable Pest Management Program
On January 26, 2023, the California Department of Pesticide Regulation (CDPR) announced a new Sustainable Pest Management (SPM) Program. According to the accompanying press release, the program “charts a course for the state’s transition to sustainable pest management in agricultural and urban settings.” A public comment period ends on March 13, 2023, and comments can be emailed to alternatives@cdpr.ca.gov.

Pesticides/Herbicides: EPA Proposes Rodenticide Mitigation Measures
On November 29, 2022, the Environmental Protection Agency (EPA) published a notice in the Federal Register announcing EPA’s proposed interim registration review decisions for eleven rodenticides. Also announced by the agency, the proposed interim decision (PID) analyzes three first-generation anticoagulant rodenticides (FGARs), four second-generation anticoagulant rodenticides (SGARs), and four non-anticoagulant rodenticides. According to EPA, this PID furthers the goals of the April 2022 Endangered Species Act (ESA) Workplan and the November 2022 update.

Conservation Programs: Truterra Launches Revised 2023 Carbon Programs
On January 25, 2023, Land O’Lakes-owned carbon credit aggregator Truterra announced revised carbon programs for 2023, which are part of Truterra’s sustainability programs aimed at encouraging producers to adopt regenerative farming practices. Truterra now offers four programs: 1) a soil health assessment and plan (free to farmers), 2) a market access program, 3) a carbon standard program, and 4) a carbon premium program. Interested producers can apply for the programs here.

Conservation Programs: Danone Announces Plan to Reduce Carbon Emissions by 30%
On January 17, 2023, Danone announced plans to reduce methane emissions from the production and processing of milk used in its dairy products by 30% by 2030. Danone is one of the world’s leading dairy products manufacturers and claims that its methane emissions reduction plan will avoid the production of the methane equivalent of 1.2 million tons of carbon dioxide. To achieve these goals, Danone announced a partnership with the Environmental Defense Fund.

 

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CENTER PROGRAMS & RESOURCES

Events:

Understanding Product Liability: Protecting Your Farm-Based Food Business, free live seminar conducted at Horizon Farm Credit, Mt. Joy, PA, with live interactive simulcast to four other Horizon Farm Credit locations in Chambersburg, New Stanton, Shoemakersville and Towanda. PA. Co-sponsored with Pennsylvania’s Small Business Development Center’s Agriculture Center for Excellence and Horizon Farm Credit.

  • Feb. 15, 2023, 10:00 am–2:00 pm (EST). Register.

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Next in the series:

  • Feb. 24, 2023, noon–1:00 pm (EST): Understanding the Basics of Pennsylvania’s “Clean & Green” Preferential Tax Assessment Program

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.

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

Resources of Interest:

Academic & Government Resources

Media and Industry Resources

Events of Interest

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports:  

U.S. Senate Ag. Comm., Farm Bill 2023: Trade and Horticulture, Feb. 1, 2023, 10 am (EST).

  • Also announcedwith hearing details to come:
    • Feb. 9, 2023: Commodity Programs, Crop Insurance and Credit
    • Feb. 16, 2023: Commodity Programs
    • Mar. 1, 2023: Conservation and Forestry Programs

Top #AgLaw HotLinks Jan. 21–27 2022:

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE  

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Statement from Agriculture Secretary Vilsack on Departure of Deputy Secretary Jewel Bronaugh (Jan. 26, 2023).

Statement from Agriculture Deputy Secretary Jewel Bronaugh (Jan. 26, 2023).

USDA Announces Grants for Urban Agriculture and Innovative Production (Jan. 26, 2023).

Biden-Harris Administration Finalizes Protections for Tongass National Forest (Jan. 25, 2023).

Statement by Agriculture Secretary Tom Vilsack on the Intent to Nominate Margo Schlanger to Serve as USDA Assistant Secretary for Civil Rights (Jan. 24, 2023).

Statement by Agriculture Secretary Tom Vilsack on the Intent to Nominate Stacy Dean to Serve as Under Secretary for Food, Nutrition, and Consumer Services (Jan. 24, 2023).

USDA Announces Additional Assistance for Dairy Farmers (Jan. 23, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Bipartisan Infrastructure Law Funds $23 Million of Water Infrastructure Projects in Puerto Rico (Jan. 27, 2023).

EPA Takes Key Step to Stop Unsafe PFAS from Reentering Commerce (Jan. 27, 2023).

EPA reaches proposed $5.4 million settlement with Dow for Tittabawassee River, Saginaw River & Bay Superfund site in Midland, Michigan (Jan. 26, 2023).

EPA Recognizes Suffield, Connecticut Wastewater Facility Operator for Outstanding Service (Jan. 26, 2023).

New Hampshire Wastewater Treatment Entities Recognized by EPA for Excellence in Service to their Communities (Jan. 26, 2023).

EPA awards $26M in Bipartisan Infrastructure Law funds to protect, improve water quality in Idaho (Jan. 26, 2023).

EPA Recognizes Rhode Island Wastewater Treatment Entities for Excellence (Jan. 26, 2023).

EPA Announces Latest Actions to Protect Groundwater and Communities from Coal Ash Contamination (Jan. 25, 2023).

EPA and DOJ Extend Comment Period for Proposed Lower Passaic River Cleanup Agreement in New Jersey (Jan. 25, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Takes Steps to Support Food Sovereignty with the Mississippi Band of Choctaw Indians (Jan. 26, 2023).

USDA Issues First National Hemp Report (Jan. 26, 2023).

USDA Takes Steps to Support Food Sovereignty with the Grand Traverse Band of Ottawa and Chippewa Indians (Jan. 25, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Pennsylvania (Jan. 24, 2023).

USDA Announces Additional Assistance for Dairy Farmers (Jan. 23, 2023).

USDA Announces $72.9 Million in Grant Funding Available through the Specialty Crop Block Grant Program (Jan. 21, 2023).

Animal and Plant Health Inspection Agency (APHIS)

APHIS Associate Administrator Discusses American Rescue Plan Research for SARS-CoV-2 in Animals (Jan. 25, 2023).

Farm Service Agency (FAS)

USDA Announces No Actions Under Feedstock Flexibility Program (Jan. 27, 2023).

USDA Announces Additional Assistance for Dairy Farmers (Jan. 23, 2023).

Food Safety and Inspection Service (FSIS)

Exploratory and Special Program Poultry Sampling (Jan. 27, 2023).

Foreign Agricultural Service (FAS)

Export Sales to China (Jan. 26, 2023).

Export Sales to Unknown Destinations (Jan. 25, 2023).

USDA Identifies 2023 McGovern-Dole Priority Countries (Jan. 24, 2023).

Export Sales to Unknown Destinations (Jan. 24, 2023).

Statement by USDA, USTR Officials Regarding Meetings in Mexico Today (Jan. 23, 2023).

Export Sales to Unknown Destinations (Jan. 23, 2023).

National Institute of Food and Agriculture (NIFA)

State of Success: Florida (Jan. 25, 2023).

New SARE Publication Available to Farmers Seeking Organic Certification (Jan. 24, 2023).

Research Expanding Opportunities for Commercial Seaweed Production (Jan. 23, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 23–27, 2022):            

Agriculture Department

88 FR 5299 Notice: “Submission for OMB Review; Comment Request [Animal Plant and Health Inspection Service: Irradiation Phytosanitary Treatment for Fresh Fruits and Vegetables].” (Jan. 27, 2023).

88 FR 4962 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Local Food Directories and Survey (formerly Farmers Market Directory and Survey)].” (Jan. 26, 2023).

88 FR 4799 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Approval of Laboratories to Conduct Official Testing].” (Jan. 25, 2023).

88 FR 3966 Notice: “Submission for OMB Review; Comment Request [Forest Service: Storage and Use of Explosives and Magazine Security on National Forest System Lands Under a Special Use Authorization].” (Jan. 24, 2023).

Environmental Protection Agency

88 FR 5332 Notice: “Chlorpyrifos; Amendment to Provisions for Disposition of Existing Stocks” (Jan. 27, 2023).

88 FR 5332 Notice—Public Comment: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability” (Jan. 27, 2023).

88 FR 5002 Notice—Public Comment: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Soil and Non-Soil Fumigants Risk Mitigation (Renewal)” (Jan. 26, 2023).

88 FR 4999 Notice—Public Comment: “Proposed CERCLA Administrative Cost Recovery Settlement; Tittabawassee River, Saginaw River and Bay Site, Michigan” (Jan. 26, 2023).

88 FR 4729 Final Rule: “Malic Acid; Tolerance Exemption” (Jan. 25, 2023).

88 FR 4732 Final Rule: “Rimsulfuron; Pesticide Tolerances” (Jan. 25, 2023).

Farm Credit Administration

88 FR 4107 Proposed Rule—Public Comment: “Federal Agricultural Mortgage Corporation Funding and Fiscal Affairs; Risk-Based Capital Requirements” (Jan. 24, 2023).

Food and Drug Administration

88 FR 5005 Notice—Public Comment: “Agency Information Collection Activities; Proposed Collection; Comment Request; Quantitative Research on Front of Package Labeling on Packaged Foods” (Jan. 26, 2023).

88 FR 4797 Proposed Rule—Public Comment: “Action Levels for Lead in Food Intended for Babies and Young Children; Draft Guidance for Industry; Availability” (Jan. 25, 2023).

88 FR 4186 Notice: “Cannabis and Cannabis-Derived Compounds: Quality Considerations for Clinical Research; Guidance for Industry; Availability” (Jan. 24, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.615 “To prohibit the Secretary of the Interior and the Secretary of Agriculture from prohibiting the use of lead ammunition or tackle on certain Federal land or water under the jurisdiction of the Secretary of the Interior and the Secretary of Agriculture, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Jan. 27, 2023).

H.R.598 “To ensure 100 percent renewable electricity, zero emission vehicles, and regenerative agriculture by 2030 to address global warming caused by human activity.” Referred to the Committee on Agriculture, and in addition to the Committees on Ways and Means, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Jan. 27, 2023).

H.R.530 “To direct the Secretary of Agriculture to amend certain regulations to clarify that livestock auction owners may have an interest in small meat packing businesses, and for other purposes.” Sponsor introductory remarks on measure. (Jan. 27, 2023).

H.R.567 “To expedite certain activities related to salvage operations and reforestation activities on National Forest System lands or public lands in response to catastrophic events, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Jan. 26, 2023).

H.R.559 “To make improvements with respect to the pricing of cattle in the United States, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 26, 2023).

H.R.541 “To amend the Agricultural Act of 1961 to modify the limitations applicable to qualified conservation loan guarantees, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 26, 2023).

H.R.513 “To amend the Defense Production Act of 1950 to prevent harm and disruption to the United States agriculture industry by protecting against foreign influence over agriculture production and supply chains, and for other purposes.” Referred to the Committee on Financial Services, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Jan. 25, 2023).

H.R.482 “To improve Federal activities relating to wildfires, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture, Armed Services, Transportation and Infrastructure, and Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (Jan. 24, 2023).

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

S.121 “A bill to amend the Child Nutrition Act of 1966 to require the provision of training and information to certain personnel relating to food allergy identification and response, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 26, 2023).

S.98 “A bill to amend the Food Security Act of 1985 to authorize the Secretary of Agriculture to improve agricultural productivity, profitability, resilience, and ecological outcomes through modernized data infrastructure and analysis, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 26, 2023).

S.96 “A bill to address the history of discrimination against Black farmers and ranchers, to require reforms within the Department of Agriculture to prevent future discrimination, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 26, 2023).

S.52 “A bill to amend the Agricultural Marketing Act of 1946 to establish country of origin labeling requirements for beef, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 24, 2023).

S.39 “A bill to amend the Food and Nutrition Act of 2008 to modify work requirements under the supplemental nutrition assistance program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 24, 2023).

S.21 “Community Wildfire Protection Act of 2023.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Jan. 23, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Shapiro Administration Awards $200,000 To Grow Hemp Industry; Invites Proposals For $392,000 In Grants (Jan. 27, 2023).

Pennsylvania Poultry Owners Should Take Steps Now To Protect Flocks Against Highly Pathogenic Avian Influenza (Jan. 26, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 4—Jan. 28, 2023): 

Delaware River Basin Commission

53 Pa.B. 614 Notice: “Public Hearing and Business Meeting.”

Department of Agriculture

53 Pa.B. 614 Notice: “Agricultural Hemp Promotion, Education and Export Promotion Matching Grant Program; 2022-2023 Application Period.”

53 Pa.B. 616 Notice: “Bureau of Ride and Measurement Standards.”

Department of Environmental Protection 

53 Pa.B. 674 Notice: “2023 Mine Map Grant Program.”

53 Pa.B. 620 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 674 Notice: “Availability of Technical Guidance.”

53 Pa.B. 675 Notice: “Federal Consistency under the Coastal Zone Management Act; 2023 Maintenance Dredging of the Delaware River Federal Navigation Channel.”

53 Pa.B. 676 Notice: “Issuance of General Plan Approval and/or General Operating Permit No. 1 for Gas and No. 2 Oil Fired Small Combustion Units (BAQ-GPA/GP-1).”

State Conservation Commission

53 Pa.B. 690 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney 
Brook Duer—Staff Attorney