August 13, 2023

Agricultural Law Weekly Review—August 14, 2023

Animal Welfare: Massachusetts to Develop Rule, Will Delay Enforcement for Question 3 ‘Transshipped Pork’ 🌾
On August 7, 2023, the U.S. District Court for the District of Massachusetts entered an electronic order granting a joint stipulation and motion to extend stay for six months in a case filed in August 2022 challenging Massachusetts Question 3, which prohibits the in-state sale of pork not compliant with the state’s animal confinement standards. Massachusetts Restaurant Assoc. v. Healey, No. 4:22-cv-11245. According to the joint stipulation, the Massachusetts Department of Agricultural Resources (MDAR) will propose regulations to address “transshipped whole pork meat,” out-of-state pork “that enters and exits Massachusetts without additional processing or repackaging, exclusively for the purposes of transshipment or export outside of Massachusetts,” and stay enforcement of those regulations for at least 60 days after their publication. For more on animal confinement laws, see Understanding the Basics of Farm Animal Handling & Confinement Laws and the Center’s Animal Confinement Issue Tracker. 

National Agricultural Policy: EPA Letter Affirms Clean Air Act Supports Farmers’ Right to Repair
On August 4, 2023, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan sent a letter to the National Farmers Union (NFU) affirming that the Clean Air Act supports farmers’ right to repair their own equipment. Sent in response to NFU’s June 2023 letter, EPA stated, “The Clean Air Act and [EPA’s] implementing regulations clearly support repair by parties other than manufacturers,” noting that the “Act makes no distinction between repair by a manufacturer versus another party.” EPA further stated, “Moreover, nothing in the Clean Air Act or the EPA’s regulations limits a manufacturer’s ability to provide service tools and information to consumers and independent repair facilities for the purpose of repairing their equipment.” For more on right to repair, see Ross Pifer Presents Right to Repair with National Agricultural Law Center.

Industrial Hemp/Cannabis: Federal Court Denies Cannabis Facility’s Due Process Claim
On July 31, 2023, the U.S. District Court for the Western District of Michigan issued an opinion adopting the magistrate judge’s recommendation and dismissing a marijuana facility’s due process claim against the Michigan Marijuana Regulatory Agency (MRA), which issued a recall against the facility. Viridis Laboratories, LLC v. Kluytman, No. 1:22-cv-00283. The court stated, “Under the federal Controlled Substances Act (CSA), [a] private individual may not possess marijuana,” and quoted the statute, stating “[a]ll controlled substances . . . are subject to forfeiture to the United States and no property right shall exist in them.”

Dairy Policy: Economic Research Service Publishes Dairy Econometric Model
On July 13, 2023, the U.S. Department of Agriculture (USDA) Economic Research Service (ERS) announced the publication of a report titled, “Documentation for the USDA, Economic Research Service Annual U.S. Dairy Sector Econometric Model.” The study uses data from several USDA agencies in addition to the U.S. Department of Labor, Bureau of Labor Statistics and the U.S. Department of Commerce, Bureau of the Census and Bureau of Economic Analysis to provide a ten-year projection for prices, supply, and demand for U.S. dairy products. According to the report, “milk supply is very inelastic with respect to price changes.” For more on dairy, see the Center’s Quarterly Dairy Legal Update Series and Dairy and Dairy Products Law Virtual Resource Room.

Pesticides/Herbicides: EPA Publishes Ten-Year Data Set from Pesticide Incident Data System
On July 27, 2023, the U.S. Environmental Protection Agency (EPA) announced the public availability of a ten-year data set from the agency’s pesticide Incident Data System. According to the announcement, the data set will provide users with raw data on “pesticide exposure incidents such as the . . . date, the reason for the report (e.g., adverse effect, product defect) . . . severity of the incident . . . location of the incident, the pesticide product, and a description of the incident(s).” However, EPA states that the agency “has not verified the raw data for accuracy or completeness, so users should be aware of this limitation before drawing any conclusions from the data.” For more on pesticides and herbicides, see the Center’s Pesticide & Herbicide Non-Target Injury Virtual Resource Room and Issue Trackers on Chlorpyrifos, Dicamba, and Glyphosate.

Food Policy: FDA Publishes Final Rule Removing Partially Hydrogenated Oil Use in Food
On August 9, 2023, the U.S. Food and Drug Administration (FDA) published in the Federal Register a direct final rule (88 FR 53764) titled “Revocation of Uses of Partially Hydrogenated Oils in Foods” (PHOs), along with a companion document (88 FR 53827). Also announced by the agency, the rule removes PHOs as an optional ingredient in the standards of identity for canned tuna and peanut butter, excludes hydrogenated menhaden and rapeseed oils from “generally recognized as safe” (GRAS) categorization, and withdraws the pre-1958 authorization PHO use in “margarine, shortening, and bread, rolls and buns.” The direct final rule becomes effective December 22, 2023, and has a public comment period that closes October 23, 2023.

Disaster Assistance Programs: USDA Increases Emergency Grain Storage Facility Assistance Funding, Will Issue Payments
On August 7, 2023, the U.S. Department of Agriculture’s Farm Service Agency (FSA) published in the Federal Register a notice of funding availability (NOFA) (88 FR 52109) for the Emergency Grain Storage Facility Assistance Program (EGSFP). Also announced by the agency, the NOFA increases EGSFP cost-share funding to $80 million, which FSA says is “quadruple the original funding allocation,” increased in response to numerous applications following disaster events in 2021 and 2022. According to the announcement, the EGSFP will provide 75% or 90% of a producer’s self-certified costs to expand their grain storage; socially disadvantaged, limited resource, beginning, and veteran producers will receive 90% of costs. FSA states that, despite the increased funding, the agency “will not be able to approve and fund all eligible applications that have already been received by FSA,” and to address the increased need, the agency has obtained an additional $40 million in Commodity Credit Corporation funding. FSA says that it will announce more information regarding the additional funding “in the coming weeks.”

Food Policy: New Hampshire Passes Law Restricting Food Waste in Landfills
On June 20, 2023, the Governor of New Hampshire signed into law HB 2, the state’s appropriation bill. The bill contains a provision defining “food waste” and, beginning February 1, 2025, prohibits the disposal of food waste into landfills by someone who generates one ton or more of food waste per week if an “alternative facility authorized to manage food waste” exists within 20 miles of where the food waste was generated. Additionally, the bill appropriates $500,000 to the Solid Waste Management Fund for “projects associated with the reduction and diversion of food, food waste, and other organic wastes.”

Animal Welfare: Sysco and Certified Angus Beef Announce Partnership
On August 3, 2023, foodservice distributor Sysco and Certified Angus Beef (CAB) announced the Sysco and Certified Angus Beef Cattle Care Partnership, a “strategic partnership aimed at promoting animal welfare and beef sustainability.” The collaboration will focus on offering Beef Quality Assurance (BQA) training and certification to 1,000 farmers and ranchers over nine training sessions held between August 2023 and June 2024. BQA Certification provides producers with current information on best practices regarding “animal husbandry, animal handling, and the responsible use of antibiotics.”

 

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CENTER PROGRAMS & RESOURCES

Events:

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. Upcoming:

3rd Annual Penn State Solar Law Symposium

  • Aug. 23, 2023, noon–4:15 pm (ET). Topics to include grid scale solar overview; solar development from the perspectives of the landowner, the developer, and the municipality; Public Utility Commission considerations; and PJM considerations.

Where Will Pennsylvania’s Solar Future Be Located and How Will It Get There?

  • Oct. 25, 2023, 1:00–2:00pm (ET). Staff attorney Brook Duer will present with WeConservePA.

Resources of Interest

NEPA Set for Regulatory Revisions, Brigit Rollins, Nat’l Agric. Law Ctr. (Aug. 3, 2023)

Expanded Federal Protection Allows Farmers To Donate Food Directly To People In Need, Nicole Cook, Univ. Md. Risk Mgmt. Educ. Blog (Aug. 1, 2023)

Not All Trusts Protect Assets, Robert Moore, Ohio St. Univ. Ext. Farm Off. Blog (Aug. 1, 2023).

Ohio May Soon Have New Regulations for Solar Energy Development, Peggy Kirk Hall, Ohio St. Univ. Ext. Farm Off. Blog (Aug. 3, 2023)

Court Reverses Ruling—Sides with Rancher in Adverse Possession by Grazing Case, Tiffany Dowell, Tex. A&M Agric. Law Blog (July 31, 2023)

Brazilian Reais, Chinese Yuan Renminbi, and United States Dollar: Exchange Rates Could Provide Support or Hindrance to U.S. Soybean Exports, Aaron Smith, Southern Ag Today (July 31, 2023)

The Cost of Money and Commercial Poultry Growing, Dennis Brothers & Adam Rabinowitz, Southern Ag Today (Aug. 2, 2023)

Have Payment Yields Kept Up with Actual Crop Yields?, Joe Outlaw, Southern Ag Today (Aug. 3, 2023)

Is Your Operation AGRItourism or AgriTOURISM?, Jesse Richardson, Southern Ag Today (Aug. 4, 2023)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Secretary Vilsack Chairs APEC Food Security Ministerial, Highlights Principles for Achieving Food Security Through Sustainable Agriculture (Aug. 3, 2023)

USDA, Washington State University Break Ground on New State-of-the-Art Agricultural Research Facility (Aug. 1, 2023)

Biden-Harris Administration Announces New Round of Investments in Wildfire Protection through Community Wildfire Defense Grants (July 31, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Settles with World’s Third Largest Shipping Container Company over Claims of Clean Water Act Violations (Aug. 3, 2023)

EPA Awards $1.3M in Research Funding to the University of Wisconsin-Madison to Develop Nanosensors to Detect Pesticides and Mitigate Their Harmful Impacts (July 31, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Research Service (ARS)
USDA Announces Pandemic Assistance for Cotton Merchandisers (Aug. 2, 2023)

USDA issues a Packers and Stockyards Complaint against Lake Odessa Livestock Auction Inc. and Laverne Lettinga (Aug. 1, 2023)

Agricultural Research Service

U.S. Department of Agriculture Holds a Ribbon Cutting Ceremony for the Opening of a New Laboratory Building in Texas (Aug. 3, 2023)

USDA Research Center in Stuttgart Commemorates 25 Years of Contributions to the Rice Industry (Aug. 2, 2023)
USDA, Washington State University Break Ground on New State-of-the-Art Agricultural Research Facility (Aug. 1, 2023)

Animal and Plant Health Inspection Service (APHIS)

USDA Begins 2023 Oral Rabies Vaccine Efforts in Eastern United States (Aug. 2, 2023)

USDA Seeks Comment on Pathway Risk Assessments and Potential Regulatory Options for Tomato Brown Rugose Fruit Virus (ToBRFV) (Aug. 1, 2023)

Farm Services Agency

USDA Announces August 2023 Lending Rates for Agricultural Producers (Aug. 1, 2023)

Food and Nutrition Service

FNCS Supports Food Sovereignty of Tribal Nations (Aug. 1, 2023)

Foreign Agricultural Service (FAS)

Export Sales to China (Aug. 3, 2023)

Export Sales to China and the Philippines (July 31, 2023)

Forest Service

Biden-Harris Administration to Invest Nearly $11 Million in Wildland Fire Science Research and Knowledge Exchange, As Part of Investing in America agenda (July 31, 2023)

National Institute of Food and Agriculture (NIFA)

Land-grant Universities Improve Local Food Security (Aug. 4, 2023)

NIFA Invests $300,000 in Rapid Response to Extreme Weather Events (A1712) (Aug. 2, 2023)

NIFA Invests $7.1 Million in Critical Agricultural Research and Extension (A1701) (Aug. 2, 2023)

Expanded Food and Nutrition Education Program Finding New Ways to Reach Audience (Aug. 1, 2023)

Reimagining Resilient Agri-food Supply Chains (July 31, 2023)

Natural Resources Conservation Service (NRCS)

Maximizing Cover Crop Benefits with Cereal Rye Variety Mixes (Aug. 4, 2023)

Fight Tree-Damaging Insects through Conservation (Aug. 4, 2023)

NRCS and U.S. Forest Service to Host Information Session for Joint Chiefs’ Landscape Restoration Partnership (Aug. 3, 2023)

Cover Crop seeding rates in the Texas Rolling Red Plains (Aug. 2, 2023)

Plant Materials Program 2022 Report of Activities (Aug. 1, 2023)

NRCS-WA announces FY’24 CSP Classic batching deadline (Aug. 1, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register July 24–29, 2023):   

Agricultural Marketing Service

88 FR 51259 Notice: “Notice of Funds Availability” (Aug. 3, 2023)

88 FR 50099 Notice: “Notice of Request for Renewal of a Currently Approved Information Collection” (Aug. 1, 2023)

88 FR 49993 Final Rule: “Redefining Bona Fide Cotton Spot Markets” (Aug. 1, 2023)

88 FR 49356 Proposed Rule: “Adjustments to Mango Board Representation; Withdrawal of Proposed Rule” (July 31, 2023)

Agriculture Department

88 FR 51767 Notice: “Submission for OMB Review; Comment Request” [National Science Laboratories] (Aug. 4, 2023)

88 FR 49434 Notice: “Submission for OMB Review; Comment Request” [FNS–380–1, Supplemental Nutrition Assistance Program’s Quality Control Review Schedule.] (July 31, 2023)

Animal and Plant Health Inspection Service

88 FR 51767 Notice: “Notice of Request for Revision to and Extension of Approval of an Information Collection; U.S. Origin Health Certificate” (Aug. 4, 2023)

88 FR 51768 Notice: “Notice of Request for Extension of Approval of an Information Collection; Bees and Related Articles” (Aug. 4, 2023)

Farm Credit Administration

88 FR 49462 Notice: “Sunshine Act Meetings” (July 31, 2023)

Farm Service Agency

88 FR 51260 Notice: “Application Fast Track Pilot Program” (Aug. 3, 2023)

National Agricultural Statistics Service

88 FR 51265 Notice: “Notice of Intent to Request Revision and Extension of a Currently Approved Information Collection” (Aug. 3, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.5162 “To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to extend education grant programs for Alaska Native serving institutions and Native Hawaiian serving institutions, and for other purposes.” (Aug. 4, 2023)

H.R.5160 “To require the Secretary of Agriculture to conduct research relating to measurement, monitoring, reporting, and verification of greenhouse gas emissions and carbon sequestration, and for other purposes.” (Aug. 4, 2023)

H.R.5157 “To amend the Cooperative Forestry Assistance Act of 1978 to reauthorize and expand State-wide assessment and strategies for forest resources.” (Aug. 4, 2023)

H.R.5153 “To direct the Secretary of Veterans Affairs to carry out a pilot program to employ veterans in certain wildland firefighting activities.” (Aug. 4, 2023)

H.R.5145 “To extend immigration benefits to survivors of domestic violence, sexual assault, human trafficking, and other gender-based violence, and for other purposes.” (Aug. 4, 2023)

H.R.5136 “To address infrastructure needs for food banks serving rural communities and for other purposes.” (Aug. 4, 2023)

H.R.5134 “To amend the Farm Security and Rural Investment Act of 2002 to improve the biobased markets program, and for other purposes.” (Aug. 4, 2023)

H.R.5133 “To provide for the conservation of the Chesapeake Bay, and for other purposes.” (Aug. 1, 2023)

H.R.5113 “To amend the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 to establish a budgetary Tribal Government consultation process at the Department of Agriculture, and for other purposes.” (Aug. 1, 2023)

H.R.5106 “To direct the Secretary of Agriculture to publish criteria for the review of requests by certain meat or poultry establishments to operate at alternate inspection rates, to review and respond to such requests, and for other purposes.” (Aug. 1, 2023)

H.R.5101 “To increase the reference prices for certain commodities, and for other purposes.” (Aug. 1, 2023)

H.R.5099 “To amend the Food and Nutrition Act of 2008 to establish a dairy nutrition incentive program, and for other purposes.” (Aug. 1, 2023)

H.R.5097 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to direct the Secretary of Agriculture to establish research centers of excellence for alternative protein innovation, and for other purposes.” (Aug. 1, 2023)

H.R.5096 “To amend the Animal Health Protection Act to provide compensation for poultry growers and layers in control areas, and for other purposes.” (Aug. 1, 2023)

H.R.5094 “To amend the Food and Nutrition Act of 2008 to allow for blended workforces to carry out the supplemental nutrition assistance program under certain conditions; and for other purposes.” (Aug. 1, 2023)

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

No actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Shapiro Administration Visits Fayette County Farm Providing Low-Income Seniors and Families with Fresh, Local Food Through Farmers Market Nutrition Program (Aug. 4, 2023)

Shapiro Administration Announces $13 Million In Tax Credits Supporting Farmers’ Work Improving Water, Soil Quality (July 31, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 31—Aug. 5, 2023v): 

Department of Environmental Protection

53 Pa.B. 4428 Notice: “Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal Clean Water Act”

53 Pa.B. 4501 Notice: “Availability of Technical Guidance”
53 Pa.B. 4501 Notice: “Environmental Justice Advisory Board Meeting Change”

53 Pa.B. 4502 Notice: “Pennsylvania’s 2023 Annual Ambient Air Monitoring Network Plan—Corrected Dates”

53 Pa.B. 4502 Notice: “Proposed State Implementation Plan Revision; Attainment Demonstration and Base Year Inventory for the Philadelphia, PA Nonattainment Area for the 2015 Ozone National Ambient Air Quality Standard; Public Hearing”

PENNSYLVANIA LEGISLATURE

SB 872 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in fireworks, further providing for rules and regulations by municipality.” (Referred to Agriculture And Rural Affairs, Aug. 1, 2023) [Senate]

 

Contributors: 
Victoria Dutterer—Research Assistant 
Mary Johnson—Research Assistant 
Lonzie Helms—Research Assistant 
Audry Thompson—Staff Attorney