April 16, 2023

Agricultural Law Weekly Review—April 17, 2023

Water Quality: North Dakota Federal Court Enjoins WOTUS Final Rule in 24 States 🌾
On April 12, 2023, the U.S. District Court for the District of North Dakota issued a preliminary injunction immediately effective in 24 states against the U.S. Environmental Protection Agency’s (EPA) January 2023 WOTUS Final Rule in West Virginia v. U.S. EPA, No. 3:23-cv-00032. In addition to a previously-issued federal court injunction issued in Texas, effective in Texas and Idaho, the new injunction is effective in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming. In granting the injunction in the 24 states who are parties or intervenors in the case, but not on a nationwide basis, the court’s 44-page order states, “The request for a nationwide injunction or nationwide relief makes little sense when many states have not challenged the 2023 Rule and the United States Supreme Court has yet to decide whether the Rapanos version of the ‘significant nexus’ test is an appropriate exercise of the EPA’s jurisdiction under the Clean Water Act. Suffice it to say there is a dire need for some clarification as to what constitutes ‘navigable water’ under the Clean Water Act. Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance. Hopefully, the Supreme Court decision in Sackett will provide some clarity.”

Water Quality: District Court Vacates Categorical Exemption for CAFO FSA Loan Environmental Review
On April 4, 2023, the U.S. District Court for the District of Columbia issued a memorandum opinion vacating the U.S. Department of Agriculture (USDA) Farm Service Agency’s (FSA) rule that creates a categorical exemption from environmental review for loans issued to medium-sized concentrated animal feeding operations (CAFOs). Dakota Rural Action et al., v. U.S. Department of Agriculture, No. 18-2852 (CKK). Before creating this categorical exemption from environmental review for this rule, FSA did not conduct a required environmental assessment as required by the National Environmental Policy Act (NEPA). The court decided to vacate and remand the rule to the FSA despite the FSA’s request to remand the rule without vacating it.

Antitrust: Three Classes Certified in Multi-District Pork Antitrust Litigation
On March 29, 2023, the U.S. District Court for the District of Minnesota granted a motion for class certification for three groups of purchasers in pending pork antitrust multidistrict litigation. In re: Pork Antitrust Litigation, No. 0:18-cv-01776. The certified classes are direct purchaser plaintiffs, commercial and institutional indirect purchaser plaintiffs, and consumer indirect purchaser plaintiffs. For more, see the Center’s Agricultural Antitrust Litigation Issue Tracker, In re Pork Antitrust Litigation.

Biotechnology: Draft Environmental Assessments for GE Corn Open for Comment Until May 11, 2023
On April 11, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register announcing the availability of a draft Environmental Assessment (EA) and draft Plant Pest Risk Assessment (PPRA) for Pioneer’s genetically engineered, insect resistant and herbicide tolerant maize (corn). Also announced by the agency, the assessments carry a 30-day comment period that ends May 11, 2023.

Conservation Programs: Bureau of Land Management Proposes Rule on Conservation and Landscape Health
On April 3, 2023, the U.S. Department of the Interior (DOI) Bureau of Land Management (BLM) published in the Federal Register a proposed rule titled “Conservation and Landscape Health.” Also announced by BLM, the proposed rule proposes new regulations to the BLM’s management of public lands under the Federal Land Policy and Management Act of 1976 (FLPMA). Comments on the proposed rule will be accepted until June 20, 2023, via the Federal Register.

Food Safety: FSIS Announces Price Limits on Inspection-Exempt Retail Meat Sales to Hotels, Restaurants
On April 6, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published a notice in the Federal Register titled, “Retail Exemptions Adjusted Dollar Limitations.” Also announced by the agency, the notice serves to update the price limitations on the amount of meat and poultry products a retail outlet may sell to restaurants and hotels while remaining exempt from federal meat inspection requirements. For 2023, meat products may not exceed $98,900 and poultry products may not exceed $72,000. The price limits are effective May 8, 2023.

Food Labeling: FSIS Extends Comment Period for ‘Product of USA’ Proposed Rule
On April 7, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced that the agency is extending the comment period for its proposed rule, “Voluntary Labeling of FSIS-Regulated Products with U.S.-Origin Claims,” from May 12, 2023, until June 11, 2023. According to the announcement, FSIS granted the extension in response to industry and international trade requests. The proposed rule was originally published in the Federal Register on March 13, 2023.

Agricultural Finance: Farm Credit Mid-America and Farm Credit Midsouth Announce Merger
On April 1, 2023, Farm Credit Mid-America and Farm Credit Midsouth completed a merger to form Farm Credit Mid-America. This merged association, containing 88 total offices, will cover 391 counties across Arkansas, Indiana, Kentucky, Missouri, Ohio, and Tennessee. The Farm Credit Administration (FCA) granted preliminary approval for the merger on January 31, 2023.

Air Quality: FFAR and NPB Announce Research into Updated Technology for their Improving Swine Production Air Quality Program
On March 28, 2022, the Foundation for Food & Agriculture Research (FFAR) and the National Pork Board (NPB) announced grants awarded to Dr. Jiqin Ni of Purdue University and Dr. Xufei Yang of South Dakota State University as a part of their joint Improving Swine Production Air Quality Program. The grants, totaling $1 million, will fund research into measurement technologies used to assess particulate matter levels near swine farms on a large scale.

 

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CENTER PROGRAMS & RESOURCES

Events:

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.

  • April 18, 2023, noon–1 pm (ET). 1st Quarter 2023—International Dairy Trade: Canada-U.S. USMCA Arbitration Round 2

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:

  • April 28, 2023, noon–1 pm (ET): Understanding the Basics of Agricultural Conservation Easement Programs
  • May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.

  • May 17, 2023, noon–1 pm (ET). Register.

An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.

  • June 21, 2023, noon–1 pm (ET). Register.

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

Podcasts:

Resources of Interest:

Legislative Hearings/Meetings/Reports:

U.S. Sen. Ag. Committee Hearings:

U.S. House Ag. Committee Hearings:

Pennsylvania General Assembly Committee Hearings:

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

USDA, SBA, and FDIC Partner to Foster Economic Growth for Small Businesses, Farmers, and Ranchers in Southern States (Apr. 7, 2023).

USDA Awards Innovations in Climate-Smart Agriculture, Soil Health and Nutrient Management (Apr. 6, 2023).

Biden-Harris Administration Invests Nearly $34M to Strengthen Wood Products Economy, Forest Sector Jobs, Sustainable Forest Management (Apr. 6, 2023).

USDA Asks Americans to Protect Plants by Looking for Invasive Pests in April (Apr. 4, 2023).

USDA Appoints New Members to Food Safety Advisory Committee (Apr. 4, 2023).

Biden-Harris Administration Invests $40 Million to Bring High-Speed Internet to People in Rural New Mexico (Apr. 3, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

The EPA and Seal Shield, LLC reach a settlement for alleged violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Apr. 6, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Kansas (Apr. 6, 2023).

USDA Announces $7.6 Million in Grant Funding Available to Promote Food Security in Alaska, Hawaii, and U.S. Territories (Apr. 5, 2023).

Animal and Plant Health Inspection Service (APHIS)

USDA Asks Americans to Protect Plants by Looking for Invasive Pests in April (Apr. 4, 2023).

APHIS Issues Regulatory Status Review Responses: Donald Danforth Center Teff and Moolec Science Limited Safflower (Apr. 3, 2023).

Economic Research Service (ERS)

Puerto Rico’s Agricultural Economy in the Aftermath of Hurricanes Irma and Maria: A Brief Overview (Apr. 6, 2023).

Wheat Data Visualization (Apr. 3, 2023).

Farm Service Agency (FSA)

USDA Announces April 2023 Lending Rates for Agricultural Producers (Apr. 3, 2023).

Food and Nutrition Service (FNS)

105-Year-Old Fondy Farmers Market Increases Access to Healthy, Local Food and Economic Opportunity in Greater Milwaukee Area (Apr. 6, 2023).

Secretary Tom Vilsack Visits Greeley Evans School District (Apr. 4, 2023).

Food Safety and Inspection Service (FSIS)

USDA Appoints New Members to Food Safety Advisory Committee (Apr. 4, 2023).

Foreign Agricultural Service (FAS)

USDA Under Secretary Taylor to Lead Netherlands Trade Mission (Apr. 6, 2023). Export Sales to Unknown Destinations (Apr. 5, 2023).

Export Sales to Mexico and Unknown Destinations (Apr. 3, 2023).

National Institute of Food and Agriculture (NIFA)

Celebrating World Health Day Extension Program Efforts (Apr. 7, 2023).

Southern Region Land-grant Researchers Finding Feral Hog Solutions (Apr. 5, 2023).

NIFA Invests $300K in Response to Extreme Weather Events Across the U.S. (Apr. 4, 2023). NIFA Invests $5M for Higher Education Challenge (Apr. 4, 2023).

Living the Farm Dream (Apr. 3, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 3 – Apr. 7, 2023):           

Agricultural Marketing Service

88 FR 20780 Proposed Rule: “Pears Grown in Oregon and Washington; Continuance Referendum” (Apr. 7, 2023).

88 FR 19605 Notice—Public Comment: “Opportunity for United States Grain Standards Act (USGSA) Designation in the Texas Central Area” (Apr. 3, 2023).

Agriculture

88 FR 20850 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: Application for Payment of Amounts Due Persons Who Have Died, Disappeared or Declared Incompetent.]” (Apr. 7, 2023).

88 FR 19903 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Interstate Movement of Certain Land Tortoises.]” (Apr. 4, 2023).

Environmental Protection Agency

88 FR 20882 Notice: “Pesticide Registration Review; Decisions and Case Closures for Several Pesticides; Notice of Availability” (Apr. 7, 2023).

88 FR 20517 Notice—Public Comment: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability” (Apr. 6, 2023).

88 FR 20514 Notice—Public Comment: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Peroxy Compounds; Notice of Availability” (Apr. 6, 2023).

88 FR 20515 Notice—Public Comment: “Pesticide Registration Review; Proposed Decisions for Several Pesticides; Notice of Availability” (Apr. 6, 2023).

88 FR 20165 Notice—Public Comment: “Proposed Information Collection Request; Comment Request; Clean Water Act Water Quality Certification” (Apr. 5, 2023).

88 FR 19873 Final Rule—Public Comment: “Deltamethrin; Pesticide Tolerances” (Apr. 4, 2023).

Farm Credit Administration

88 FR 19639 Notice: “Sunshine Act Meetings” (Apr. 3, 2023).

Food and Drug Administration

88 FR 20525 Notice—Public Comment: “Action Levels for Lead in Food Intended for Babies and Young Children; Draft Guidance for Industry; Reopening of the Comment Period” (Apr. 6, 2023).

88 FR 20170 Notice—Public Comment: “Human User Safety in New and Abbreviated New Animal Drug Applications; Draft Guidance for Industry; Availability” (Apr. 5, 2023).

Food and Nutrition Service

88 FR 19903 Notice—Public Comment: “Agency Information Collection Activities: Proposed Collection; Comment Request: Improving Coordination Between SNAP and Medicaid in State Agencies” (Apr. 4, 2023).

Food Safety and Inspection Service

88 FR 20467 Notice—Public Comment: “Retail Exemptions Adjusted Dollar Limitations” (Apr. 6, 2023).

International Trade Administration

88 FR 20856 Notice: “Citric Acid and Certain Citrate Salts from Thailand: Preliminary Results of Antidumping Duty Administrative Review; 2021-2022” (Apr. 7, 2023).

International Trade Commission

88 FR 20187 Notice: “Certain Preserved Mushrooms from the Netherlands, Poland, and Spain; Supplemental Schedule for the Final Phase of Anti-Dumping Duty Investigations” (Apr. 5, 2023).

88 FR 20186 Notice: “Fresh Garlic from China; Scheduling of an Expedited Five-Year Review” (Apr. 5, 2023).

The U.S. Codex Service

88 FR 20466 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Pesticide Residues” (Apr. 6, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.1586 “Forest Protection and Wildland Firefighter Safety Act of 2023.” Referred to the Subcommittee on Forestry. (Apr. 5, 2023).

H.R.1581 “America Works Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 5, 2023).

H.R.1576 “FILM Act.” Referred to the Subcommittee on Forestry. (Apr. 5, 2023).

H.R.1571 “Compact Impact Fairness Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 5, 2023).

H.R.1569 “CLAMP Act of 2023.” Referred to the Subcommittee on Forestry. (Apr. 5, 2023).

H.R.1567 “ACRES Act.” Referred to the Subcommittee on Forestry. (Apr. 5, 2023).

H.R.1550 “Jobs and Opportunities for SNAP Act.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 5, 2023).

H.R.1527 “SOAR Act.” Referred to the Subcommittee on Forestry. (Apr. 5, 2023).

H.R.1509 “Healthy Food Financing Initiative Reauthorization Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 5, 2023).

H.R.1495 “Precision Agriculture Loan Program Act of 2023.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 5, 2023).

H.R.1489 “SNAP Back Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 5, 2023).

H.R.1480 “Beagle Brigade Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 5, 2023).

H.R.1472 “Plant Biostimulant Act.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 5, 2023).

H.R.1465 “Violet’s Law.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 4, 2023).

H.R.1459 “PRECISE Act.” Referred to the Subcommittee on General Farm Commodities, Risk Management, and Credit. (Apr. 4, 2023).

H.R.1455 “Plantain and Banana Plant Health Initiative Act.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 4, 2023).

H.R.1454 “Cacao Tree Health Initiative Act of 2023.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 4, 2023).

H.R.1450 “Treating Tribes and Counties as Good Neighbors Act.” Referred to the Subcommittee on Forestry. (Apr. 4, 2023).

H.R.1436 “To provide additional funding for scholarships for students at 1890 institutions.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 4, 2023).

H.R.1428 “Free to Grow Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 4, 2023).

H.R.1427 “SNAP Second Chance Act of 2023.” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Apr. 4, 2023).

H.R.1426 “Floriculture and Nursery Plant Health Initiative Act of 2023.” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Apr. 4, 2023).

H.R.1380 “Protecting America’s Rock Climbing Act.” Referred to the Subcommittee on Forestry. (Apr. 4, 2023).

H.R.1362 “Saving America’s Energy Future Act.” Referred to the Subcommittee on Forestry. (Apr. 4, 2023).

H.R.1319 “Biking on Long-Distance Trails Act.” Referred to the Subcommittee on Forestry. (Apr. 4, 2023).

H.R.1290 “To amend the Food, Conservation, and Energy Act of 2008 to clarify propane storage as an eligible use for funds provided under the storage facility loan program, and for other purposes.” Referred to the Subcommittee on General Farm Commodities, Risk Management, and Credit. (Apr. 4, 2023).

H.R.1287 “Cattle Price Discovery and Transparency Act of 2023.” Referred to the Subcommittee on Livestock, Dairy, and Poultry. (Apr. 4, 2023).

H.R.1274 “Lake Tahoe Restoration Reauthorization Act.” Referred to the Subcommittee on Forestry. (Apr. 4, 2023).

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

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:          

PennDOT Announces New License Plates To Help Grow And Sustain Plants And Pollinators (Apr. 6, 2023).

Shapiro Administration Invites Applicants For $500,000 In PA Farm Bill Grants To Strengthen Child Nutrition, Hands-On Ag Education (Apr. 3, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 14—Apr. 8, 2023):

Department of Environmental Protection

53 Pa.B. 1950 Notice: “Applications.”

53 Pa.B. 2017 Notice: “Citizens Advisory Council Meeting Cancellation.”

PENNSYLVANIA LEGISLATURE

HB 832 “An Act establishing the Pollinator Task Force and providing for its powers and duties; and imposing duties on the Department of Agriculture.” Referred to Agricultural and Rural Affairs [House]. (Apr. 4, 2023).

 

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