August 21, 2023

Agricultural Law Weekly Review—August 21, 2023

Local Food: PA Department of Agriculture Seeks Comments on Plans for USDA Funding from Resilient Food Systems Infrastructure Program 🌾
On August 15, 2023, the Pennsylvania Department of Agriculture (PDA) released a public request for comment on the agency’s proposed priorities for its cooperative agreement with the U.S. Department of Agriculture’s (USDA) Resilient Food Systems Infrastructure Program, through which PDA anticipates it will receive approximately $26.5 million. PDA issued the following statement: “The Pennsylvania Department of Agriculture is seeking public comments to ensure that the Resilient Food Systems Infrastructure Program best meets the current needs of Pennsylvania’s agricultural supply chain and addresses areas that can lead to a more resilient food system. The priorities will be used to inform a state plan which will be submitted to USDA and will ultimately help guide prospective applicants to submit projects that address the most relevant issues affecting the industry.” Comments may be submitted via email to ra-agbusiness@pa.gov until September 1, 2023.

Invasive Species: Ohio Department of Agriculture Confirms New Spotted Lanternfly Infestations, Quarantined Counties
On August 4, 2023, the Ohio Department of Agriculture (ODA) announced that the agency has identified multiple new spotted lanternfly infestations—including in Columbus and Toledo—and added Franklin, Hamilton, Lucas, Mahoning, and Muskingum counties to its spotted lanternfly quarantine, now totaling eight counties. ODA requests that anyone believing of a spotted lanternfly infestation to report it using the state’s Plant Pest Reporter. For more on spotted lanternfly, see the Center’s Spotted Lanternfly Issue Tracker.

National Agricultural Policy: Federal Court Vacates 2020 Non-Designation of Critical Habitat for Rusty Patch Bumblebee
On August 11, 2023, the U.S. District Court for the District of Columbia issued an opinion granting summary judgment to several environmental groups in a challenge to the U.S. Fish and Wildlife’s (FWS) 2020 decision not to designate critical habitat for the rusty patched bumblebee after listing the species as endangered under the Endangered Species Act (ESA) in 2017. Natural Resources Defense Council v. U.S. Fish & Wildlife Service, No. 1:21-cv-00770. FWS stated that it declined to designate critical habitat because the agency found that the determination “would not confer any additional meaningful benefit to the species” (emphasis in opinion). However, the court determined that the legal standard for FWS to refuse to designate critical habitat under the ESA is when the “designation ‘would not be beneficial to the species,’” which, the court noted is, “according to [FWS] . . . intended to be a rare occurrence” (emphasis in opinion). The court found that FWS “did not set forth a reasoned basis for its decision,” stating, “The record does not demonstrate that critical habitat ‘would not be beneficial’ in any way to the bee.” The court then vacated and remanded the 2020 decision to FWS. 

Water Quality: EPA Denies Petitions to Regulate CAFOs as Clean Water Act Point Source, Announces Animal Agriculture Water Quality Subcommittee
On August 15, 2023, the U.S. Environmental Protection Agency (EPA) sent letters to lead petitioners Food and Water Watch and Earthjustice rejecting the organizations’ respective 2017 and 2020 petitions, which asked the agency to revise Clean Water Act (CWA) regulations to include a refutable presumption that Concentrated Animal Feeding Operations (CAFOs) discharge pollutants as a point source and must either obtain a National Pollutant Discharge Elimination (NPDES) permit or show that they do not discharge pollutants. In the letters, EPA stated that the agency “shares [the petitioners’] concern that CAFOs can be a significant source of pollutants into waters of the United States,” but said that it is denying the petitions because the requested action “is not meaningfully distinguishable” from past regulations, which were vacated on two separate occasions. Additionally, EPA stated that it wanted to further study its CAFO program and announced the Animal Agriculture Water Quality Subcommittee, on which EPA will provide more information “in the coming months.”

Water Quality: Maryland Supreme Court Finds State Actions Sufficient to Regulate Gaseous Ammonia
On August 9, 2023, the Supreme Court of Maryland issued an opinion holding that the Maryland Department of the Environment’s (MDE) animal feeding operation (AFO) “general discharge permit framework is consistent with the authority given to the Department under federal and state law . . . and is not arbitrary or capricious.” Maryland Department of the Environment v. Assateague Coastal Trust, No. 11, September Term 2022. The 6-1 decision concludes that the MDE adequately exercised “its authority to regulate ammonia emissions and air deposition through the 2019 General Permit . . . by requiring best management practices to address ammonia emissions where they are determined to be a resource concern.” This decision overturned the March 2021 order from the Circuit Court for Montgomery County that required the MDE to regulate ammonia air emissions from animal feeding operations as a water pollutant under the state’s Clean Water Act (CWA) expansion. For background, see ALWR June 17, 2022, “Maryland’s Highest Court to Decide if NPDES Discharge Permit Must Control Gaseous Ammonia Emissions” and ALWR March 19, 2021, “Maryland Court Orders MDE to Regulate Ammonia Air Emissions Under State’s Clean Water Act Expansion.”

International Trade: USDA Secretary Sends Letter to Brazil Requesting Animal Disease Testing and Reporting Improvement
On August 7, 2023, U.S. Department of Agriculture (USDA) Secretary Thomas Vilsack sent a letter to Carlos Fávaro, the Brazilian Minister of Agriculture, requesting Brazil “to continue its progress in streamlining timely animal disease reporting” in light of the country’s “recent bovine spongiform encephalopathy (BSE) detections.” Secretary Vilsack noted that “despite . . . improvements, Brazil’s time between BSE initial detection, sampling, and completed test results continues to lag significantly behind the timelines of other major beef exporters.” The Secretary then highlighted the ongoing partnership between the United States and Brazil and the shared “joint responsibility for protecting cattle health” and requested that the Brazilian Ministry of Agriculture “review internal testing processes, consider concurrent rather than consecutive testing strategies for high-suspect samples, and decrease the overall time between sampling and testing even further.”

Antitrust: Triumph and Seaboard Reach Settlement in Wage-Fixing Class Action Lawsuit
On August 7, 2023, the plaintiffs in an antitrust class action lawsuit against several pork and beef companies filed a petition in the U.S. District Court for the District of Colorado to dismiss their case against Seaboard Food and Triumph Foods after reaching a settlement with the companies. Brown v. JBS USA Food Company, No. 1:22-cv-02946. The plaintiffs, several meat processing plant employees, filed a complaint in November 2022 alleging wage-fixing against the companies in violation of the Sherman Antitrust Act. According to the settlement petition, the plaintiffs have reached a $10 million settlement agreement with Seaboard Foods and a cooperation agreement with Triumph Foods. Previously, in December 2022, the plaintiffs reached a settlement of $1.25 million with defendant Perdue Farms. The lawsuit is ongoing for the remaining defendants, which include American Foods, Cargill, Hormel, JBS, National Beef, Smithfield, Tyson, and Agri Stats.

Animal Welfare: U.S. Senate Announces Senate Veterinary Medicine Caucus
On August 3, 2023, Senators Cindy Hyde-Smith (R-Miss.) and Amy Klobuchar (D-Minn.) announced the formation of the bipartisan Senate Veterinary Medicine Caucus. According to the announcement, the caucus aims to “raise awareness” of the veterinary field and “inform public policy that recognizes the crucial roles of veterinarians in all forms of clinical practice and in non-clinical roles, including federal inspection of meat, poultry, and catfish products; comparative medical research benefitting both people and animals; and animal and zoonotic disease prevention, detection and response.”

Disaster Assistance Programs: USDA Authorizes Policy Exceptions for Northeast Producers Affected by Flooding
On August 14, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that the agencies have temporarily “authorized policy exceptions in all flood-impacted counties in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont.” Altered policies include the following:

Additionally, USDA’s Risk Management Agency (RMA) has authorized modified crop insurance reporting requirements for producers in Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.

Agricultural Finance: USDA Announces $530 Million in Automatic Payments for Distressed Farm Loan Borrowers
On August 11, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that the agency will begin distributing $530 million in extra automatic payments for approximately 3,500 eligible distressed Farm Loan Program borrowers, made available through $3.1 billion in Inflation Reduction Act funding. According to the announcement, eligible borrowers “will receive a . . . check that is jointly payable to the borrower and the lender.” USDA states that these additional “payments over $600 are subject to Federal and State Income Taxes and will be reflected on [a borrower’s] annual 1099 form.” Additionally, USDA has sent opportunity letters and letters of eligibility to FSA borrowers and states that borrowers may submit a request for “extraordinary measures or cash flow-based assistance” until December 31, 2023.

Agricultural Finance: Pennsylvania Farm Bill Appropriates $500,000 for Agriculture and Youth Organization Grant Program
On August 12, 2023, the Pennsylvania Department of Agriculture (PDA) published in the Pennsylvania Bulletin a notice (53 Pa.B. 5005) detailing program requirements for $500,000 in available funding, appropriated through the Pennsylvania Farm Bill, for the Agriculture and Youth Organization Grant Program. Also announced by Governor Josh Shapiro, the program will provide eligible youth-run organizations with direct grants up to $7,500 and match applicant funds up to $25,000 to “promote agriculture, community leadership, vocational training, and peer networking.” Grant applications are due September 29, 2023.

Environmental Credit Trading: International Carbon Council Publishes Principles and Assessment Procedures for Label Certification
In July 2023, the Integrity Council for the Voluntary Carbon Market (ICVCM) published its Core Carbon Principles Assessment Framework and Assessment Procedure, intended for use by private market carbon-crediting programs. ICVCM is an international organization comprised of more than 100 board members, experts, advisors, and staff that aims to “set and enforce a definitive global threshold” to develop a “high-integrity voluntary carbon market” that will “efficiently mobilize finance” towards climate change reduction efforts. According to ICVCM, the Core Carbon Principles (CCP) framework and assessment procedures will establish a CCP certification system that will provide a CCP-approved label that eligible carbon crediting programs will be able to use to distinguish their programs.

Environmental Credit Trading: Agoro Carbon Allows Legumes in Cover Crop Carbon Program
On August 1, 2023, Agoro Carbon Alliance announced that its carbon credit program would begin allowing producers to use legumes as a cover crop. According to the announcement, Agoro’s carbon credit program allows producers who adopt certain cover cropping practices to collect payments “upon credit issuance, on ton captured above baseline results, [and] after verification is complete in years 5 and 11.”

 

____________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

CENTER PROGRAMS & RESOURCES

Events:

3rd Annual Penn State Solar Law Symposium

  • THIS WEDNESDAY: 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.

Understanding Agricultural Law Series. 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.

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering 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.

Legal Considerations for Retail Farmers Market

  • Sept. 14, 2023, noon–1 pm (ET). Staff Attorney Brook Duer will present with the Small Business Development Center.

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

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

Resources of Interest:

Senate Votes to PASS a Foreign Ownership Law, Micah Brown, Nat’l Agric. Law Ctr. (Aug. 8, 2023)

NASS Releases Delaware and Maryland Statewide Cash Rental Rate Averages for 2023, Paul Goeringer, Univ. Md. Risk Mgmt. Educ. Blog (Aug. 8, 2023).

Federal Legislation Introduced to Address Farm Estate Taxes, Robert Moore, Ohio St. Univ. Ext. Farm Off. Blog (Aug. 11, 2023).

Lawsuit Claims Delta Airlines’ Claim of Being First Carbon Neutral Airline Misleads Consumers, Tiffany Dowell, Tex. A&M Agric. Law Blog (July 31, 2023).

Peanut Farmers Find Marketing Opportunities Through Agricultural Cooperatives, Adam Rabinowitz & Festus Attah, Southern Ag Today (Aug. 7, 2023)

The Rise of Irrigated Soybeans in Arkansas, Dennis Brothers & Adam Rabinowitz, Southern Ag Today (Aug. 2, 2023)

Have Payment Yields Kept Up with Actual Crop Yields?, Brad Watkins, Southern Ag Today (Aug. 9, 2023)

A Quick Look at Brazil’s Efforts to Outpace the U.S. as Leading Corn Exporter, Yuri Clemets Daglia Calil, Southern Ag Today (Aug. 10, 2023)

Farmers Win Regulatory Takings Case for Managed-Flooding Impacts, Joshua M. Duke & Paul Goeringer, Southern Ag Today (Aug. 11, 2023).

 ________________________________________________________________

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA To Provide Additional Financial Assistance to Qualifying Guaranteed Farm Loan Borrowers Facing Financial Risk (Aug. 11, 2023)

USDA Deputy Secretary Torres Small to Lead Trade Mission to Angola (Aug. 11, 2023)

Secretaries Vilsack and Haaland Applaud President Biden’s Designation of the Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument (Aug. 8, 2023)

USDA Invests Nearly $30 Million to Boost School Nutrition in 264 Small & Rural Communities through Partnership with Action for Healthy Kids (Aug. 7, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Services

AMS Solicits Nominations for USDA Grain Inspection Advisory Committee (Aug. 8, 2023)
Meeting Announcement: Grain Inspection Advisory Committee (Aug. 7, 2023)

Oregon and Washington Pear Producers Vote to Continue the Federal Marketing Order (Aug. 7, 2023)

Agricultural Research Service (ARS)

Rye the Right Crop for “Nabbing” Nitrates, Capturing Carbon and Generating Bioenergy (Aug. 10, 2023)

Animal and Plant Health Inspection Service (APHIS)

APHIS Seeks Comments on Proposal to Strengthen Agricultural Quarantine and Inspection Program (Aug. 10, 2023)

Farm Services Agency

USDA To Provide Additional Financial Assistance to Qualifying Guaranteed Farm Loan Borrowers Facing Financial Risk (Aug. 11, 2023)

USDA to Begin Issuing Cost-Share Payments for the Emergency Grain Storage Facility Assistance Program (Aug. 7, 2023)

Food and Nutrition Service

Modernizing SNAP Transactions with Local Farmers (Aug. 10, 2023)

USDA Invests Nearly $30 Million to Boost School Nutrition in 264 Small & Rural Communities through Partnership with Action for Healthy Kids (Aug. 7, 2023)

Foreign Agricultural Service (FAS)

USDA Deputy Secretary Torres Small to Lead Trade Mission to Angola (Aug. 11, 2023)

Export Sales to Mexico (Aug. 11, 2023)

Export Sales to China (Aug. 9, 2023)

From Sky to Soil: Young Agricultural Leaders Nourish FAS Satellite Data with Grassroots Truth (Aug. 8, 2023)

Export Sales to China and Mexico (Aug. 7, 2023)

Forest Service

Secretaries Vilsack and Haaland Applaud President Biden’s Designation of the Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument (Aug. 8, 2023)

National Agricultural Statistics Service

USDA forecasts US corn up and soybean production down from 2022 (Aug. 11, 2023)

National Institute of Food and Agriculture (NIFA)

Alert: Stakeholders in Hawaii Encouraged to Contact NIFA Staff if Unable to Meet Deadlines (Aug. 11, 2023)

NIFA, National Agricultural Library Partner to Present Transdisciplinary Approaches Webinar Series (Aug. 7, 2023)

Natural Resources Conservation Service (NRCS)

Our Amazing Grasslands – Rasmussen-Lehman 33 Ranch ~ Belvidere, South Dakota (Aug. 11, 2023)

NRCS Texas district conservationist lives to serve, serves to learn (Aug. 11, 2023)

USDA Offers Disaster Assistance to Wisconsin Farmers and Livestock Producers Impacted by Drought (Aug. 11, 2023)

Full circle: (Aug. 9, 2023)

Inflation Reduction Act Section 22007 – Discrimination Financial Assistance Program (Aug. 7, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 7–11, 2023):   

Agricultural Marketing Service

88 FR 53451 Notice: “Solicitation of Nominations for Members of the Grain Inspection Advisory Committee” (Aug. 8, 2023)

88 FR 52108 Notice: “Grain Inspection Advisory Committee Meeting” (Aug. 7, 2023)

Agriculture Department

88 FR 54565 Notice: “Submission for OMB Review; Comment Request” [Export Certification, Accreditation of Non-Government Facilities] (Aug. 11, 2023)

88 FR 54565 Notice: “Submission for OMB Review; Comment Request” [Highly Pathogenic Avian Influenza, All Subtypes, and Newcastle Disease; Additional Restrictions] (Aug. 11, 2023)

88 FR 54289 Notice: “Submission for OMB Review; Comment Request” [7 CFR 4280—Common Forms Package for Financial Assistance Forms for Loans/Grants] (Aug. 10, 2023)

88 FR 53451 Notice: “Submission for OMB Review; Comment Request” [Subpart U-Ineligibility for Programs under the Federal Crop Insurance Act] (Aug. 8, 2023)

88 FR 52108 Notice: “Submission for OMB Review; Comment Request” [Power of Attorney] (Aug. 7, 2023)

88 FR 52109 Notice: “Submission for OMB Review; Comment Request” [Federal Recognized State Managed Phytosanitary Program] (Aug. 7, 2023)

Animal and Plant Health Inspection Service

88 FR 54796 Proposed Rule: “User Fees for Agricultural Quarantine and Inspection Services” (Aug. 11, 2023)

88 FR 54566 Notice: “Notice of Request for Extension of Approval of an Information Collection; Bovine Spongiform Encephalopathy; Importation of Animals and Animal Products” (Aug. 11, 2023)

Environmental Protection Agency

88 FR 54244 Final Rule: “(2S)-5-Oxopyrrolidine-2-carboxylic Acid (L-PCA); Exemption From the Requirement of a Tolerance” (Aug. 10, 2023)

88 FR 53806 Final Rule: “Flg22-Bt Peptide; Exemption From the Requirement of a Tolerance” (Aug. 9, 2023)

88 FR 52040 Final Rule: “Imazapic; Pesticide Tolerances” (Aug. 7, 2023)

Farm Service Agency

88 FR 52109 Notice: “Notice of Funding Availability (NOFA) for the Emergency Grain Storage Facility Assistance Program (EGSFP)” (Aug. 7, 2023)

Foreign-Trade Zones Board

88 FR 52114 Notice: “Foreign-Trade Zone (FTZ) 7; Authorization of Production Activity; FMC Agricultural Caribe Industries, Ltd.; (Agricultural Chemicals); Manati, Puerto Rico” (Aug. 7, 2023)

Department of Labor

88 FR 53928 Notice: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Disclosures to Workers’ Under the Migrant and Seasonal Agricultural Worker Protection Act” (Aug. 9, 2023)

National Institute of Food and Agriculture

88 FR 53860 Notice: “Notice of Intent To Extend and Revise a Previously Approved Information Collection” (Aug. 9, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.5203 “To establish in the Department of Agriculture an Office of Agritourism, and for other purposes.” (Aug. 11, 2023)

H.R.5199 “To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to reauthorize the Specialty Crop Research Initiative, and for other purposes.” (Aug. 11, 2023)

H.R.5191 “To direct the Secretary of Agriculture to establish a renewable energy grant program for territories of the United States, and for other purposes.” (Aug. 11, 2023)

H.R.5186 “To amend the Food Security Act of 1985 to reauthorize the voluntary public access and habitat incentive program.” (Aug. 11, 2023)

H.R.5181 “To amend the Food and Nutrition Act of 2008 to modify the thrifty food plan to apply to the urban and rural parts of the State of Hawaii.” (Aug. 8, 2023)

H.R.5172 “To amend the Consolidated Farm and Rural Development Act to reduce the eligibility requirement for direct farm real estate loans, and for other purposes.” (Aug. 8, 2023)

H.R.5169 “To amend title 5, United States Code, to provide for special base rates of pay for wildland firefighters, and for other purposes.” (Aug. 8, 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 Recognizes Farm Families’ Staying Power, Honoring Two New Bicentennial And Nine New Century Farms (Aug. 10, 2023)

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

Department of Agriculture

53 Pa.B. 5005 Notice: “Program Requirements for the 2023-2024 Agriculture and Youth Organization Grant Program”

Department of Environmental Protection

53 Pa.B. 5009 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. 5066 Notice: “Bid Opportunity”

53 Pa.B. 5066 Notice: “Climate Change Advisory Committee Meeting Location Change”

53 Pa.B. 5066 Notice: “Draft Stream Evaluation Reports; Available for Public Comment”

53 Pa.B. 5067 Notice: “Extension of Erosion and Sediment Control General Permit (ESCGP-3) for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities”

53 Pa.B. 5067 Notice: “Mining and Reclamation Advisory Board Meeting; Date Change for the July 20, 2023 Meeting”

53 Pa.B. 5068 Notice: “Stream Redesignation Evaluation of Brodhead Creek; Water Quality Standards Review; Data Solicitation Period Extension”

PENNSYLVANIA LEGISLATURE

No actions this week.

 

Contributors:
Victoria Dutterer—Research Assistant
Mary Johnson—Research Assistant
Sergio Porras—Research Assistant
Audry Thompson—Staff Attorney