August 27, 2023
Agricultural Law Weekly Review—August 28, 2023
International Trade: Unites States Requests USMCA Dispute Panel Over Mexican GMO Corn Ban 🌾
On August 17, 2023, the Office of the U.S. Trade Representative (USTR) announced that USTR has requested a three-member dispute settlement panel under the United States-Mexico-Canada Agreement (USMCA) regarding Mexico’s actions to phase out biotech corn in food products and animal feed. Agriculture Secretary Tom Vilsack issued a statement on the USTR action, stating, “Mexico’s approach to biotechnology is not based on science,” which USTR said “undermine[s] the market access it agreed to provide in the USMCA.” Under USMCA dispute resolution procedures, the United States and Mexico each must select non-citizen panel members from a predetermined list and each country is entitled to at least one public hearing before the panel, after which the panel must issue its initial report within 150 days after the selection of the final panel member.
For background, see ALWR—June 12, 2023, “U.S. Initiates USMCA Dispute Settlement Consultations with Mexico on GMO Corn Ban.” For more on genetically modified foods, see the Center’s Bioengineered Disclosure Virtual Resource Room and Bioengineered Food Disclosure Issue Tracker.
International Trade: World Trade Organization Finds China’s Tariffs on U.S. Products in Violation of GATT 1994
On August 16, 2023, the World Trade Organization (WTO) published a dispute panel report finding that China’s 2018 “additional duties” on U.S. products, issued after the United States imposed tariffs on steel and aluminum, violated the General Agreement on Tariffs and Trade (GATT) 1994. The panel found that “China failed to accord the advantage of lower tariff rates granted to products imported from other countries immediately and unconditionally to products originating in the United States” and that the additional tariffs produced “ordinary customs duties in excess of those provided in China’s Schedule” and resulted in U.S. imports receiving “treatment less favourable than that provided for in China’s Schedule.” The Office of the U.S. Trade Representative issued a statement commending the panel report’s “recogni[tion] that the U.S. . . . actions on steel and aluminum are security measures, and that [China] illegally retaliated with sham ‘safeguard’ tariffs” and stating that “China’s use of the WTO dispute settlement system to challenge the U.S. . . . actions has caused grave systemic damage to the WTO.”
Antitrust: Federal Court Dismisses Cattle Ranchers’ Price-Fixing Suit Against Beef Companies
On August 17, 2023, the U.S. District Court for the District of Minnesota issued a memorandum opinion and order dismissing antitrust claims filed by a putative class of beef producers. In Re: Cattle and Beef Antitrust Litigation, No. 0:22-md-03031. The plaintiffs, a class of ranchers, alleged that meatpackers Cargill, JBS S.A., Swift Beef Co., National Beef Packing Co., and Tyson Foods Inc. violated the Sherman Antitrust Act and the Packers and Stockyards Act by “conspir[ing] to suppress the price of fed cattle,” leading to a “collapse in fed cattle prices in 2015, which in turn caused the prices of cows and calves to collapse.” The court dismissed the case, stating that the plaintiffs “failed to establish antitrust standing,” because they failed to explain how “manipulating the fed cattle prices impact[ed] the cow-calf prices” or provide a “clear explanation . . . for how exactly Defendants’ scheme proximately caused their injury.” For more on antitrust issues, see the Center’s Agricultural Antitrust Litigation Issue Tracker.
Animal Welfare: USDA Proposes Horse Protection Rule to Authorize All Regulatory Responsibilities Under APHIS
On August 21, 2023, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a proposed rule (88 FR 56924) to amend Horse Protection Act (HPA) regulations. Also announced by the agency, APHIS states that the proposed rule would “reliev[e] horse industry organizations and associations of all of their regulatory responsibilities” and “allow APHIS to screen, train and authorize qualified persons to conduct inspections at horse shows, horse exhibitions, horse sales, and horse auctions to ensure compliance with the HPA.” The proposed rule is available for public comment until October 20, 2023.
Biosecurity: APHIS Seeks Comments on Fee Increases for Agricultural Quarantine and Inspection Program
On August 11, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a proposed rule (88 FR 54796) that would increase user fees for the Agricultural Quarantine and Inspection (AQI) Program beginning in January 2024 and incrementally raise the fees each year through October 2027. According to a corresponding agency announcement, the current AQI fees are based on data from 2010–2012 and were last updated in 2015. The proposed rule is available for public comment until October 10, 2023.
Marketing Orders: Cranberry Producers Vote to Discontinue Market Order
On August 16, 2023, the U.S. Department of Agriculture (USDA) announced that, in a referendum held from June 9–30, 2023, cranberry growers and producers in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and New York voted to discontinue their current federal marketing order program. To remain in place, the program needed approval from at least 50% of eligible voters or 50% of production volume, but only received 26.5% of eligible voters and 20.1% of production volume. USDA stated that it “intends to provide the opportunity for cranberry producers, industry participants, and the public to express their views on terminating the program during an upcoming public notice and comment period.”
Food Policy: USDA Expects No Feedstock Flexibility Sugar Purchases or Sales, Says Sugar Forfeitures ‘Unlikely’
On August 21, 2023, the U.S. Department of Agriculture (USDA) Commodity Credit Corporation (CCC) announced that the agency does not plan to buy or sell sugar pursuant to the Feedstock Flexibility Program (FFP) for the 2022 crop year, October 1, 2022–September 30, 2023. Under the FFP, USDA is required to buy sugar for sale to bioenergy producers when the agency is faced with the likelihood of sugar loan forfeitures. The agency states that it does not expect to engage in sugar purchases or sales because, according to USDA’s August 2023 World Agricultural Supply and Demand Estimates Report, U.S. sugar stocks for the 2022 crop year “are unlikely to lead to forfeitures.”
Food Policy: USDA Report Finds Food Purchase and Distribution Program Commodities Unverified for Domestic Origin
On August 15, 2023, the U.S. Department of Agriculture (USDA) Office of Inspector General (OIG) published a report titled, “Food Purchase and Distribution Program (FPDP),” which states that it was conducted to “determine[] whether [the Agricultural Marketing Service (AMS)] purchased the type and quantity of the commodities necessary to mitigate the impact from retaliatory tariffs” imposed on certain U.S. products in March 2018. According to the report, OIG “found that, for 4 of the 30 purchase orders . . . reviewed, AMS did not verify that the origin of the commodity was domestic, as required,” and that for five orders, OIG “could not readily determine AMS’ verification process.” Additionally, OIG states that “AMS did not adequately monitor its contracting process for FPDP commodity purchases” and that “for all 30 purchase orders . . . reviewed, [OIG] found the contract files were missing at least one piece of key documentation.” OIG issued six recommendations for AMS FPDP purchases, with which “AMS agreed.”
Technology: USDA Announces $667 Million for ReConnect Program Rural Internet Projects
On August 21, 2023, the U.S. Department of Agriculture (USDA) announced $667 million in ReConnect Program funding for rural internet projects in the Marshall Islands and 22 states: Alaska, Arkansas, Arizona, California, Illinois, Iowa, Kansas, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Texas, Virginia, Washington, and Wisconsin. According to the announcement, the ReConnect Program provides funding for internet expansion in “rural area[s] that lack[] access to service at speeds of 100 megabits per second (Mbps) download and 20 Mbps upload.” The announced funding was provided through the 2021 Infrastructure Investment and Jobs Act (P.L. 117-58).
Antitrust: ALDI Acquires Winn-Dixie and Harveys Supermarket
On August 16, 2023, ALDI supermarket chain announced that the company has “entered into a definitive agreement to acquire Winn-Dixie and Harveys Supermarket,” which will consist of “400 Winn-Dixie and Harveys Supermarket locations across Alabama, Florida, Georgia, Louisiana and Mississippi.” According to the announcement, ALDI expects to finalize the acquisition “in the first half of 2024, subject to regulatory approval and other customary closing conditions.” ALDI has not publicly disclosed the financial terms of the transaction.
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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.
- Sept. 22, 2023, noon–1 pm (ET), Understanding the Basics of Pesticides—PDA Pesticide Recertification Credit Available!
- Oct. 27, 2023, noon–1 pm (ET), Understanding the Basics of Federal & State Seed Laws
- Nov. 17, 2023, noon–1 pm (ET), Understanding the Basics of the Fair Labor Standards Act
- Dec. 15, noon–1 pm (ET), Understanding the Basics of the Perishable Agricultural Commodities Act
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.
- Oct. 17, 2023, noon–1 pm (ET), Risk Management/Income & Revenue Protection
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?
- Oct. 25, 2023, 1:00–2:00pm (ET). Staff Attorney Brook Duer will present with WeConservePA.
Resources of Interest:
Nat’l Agric. Law Ctr., States File Suit Over E10 Biofuels, Brigit Rollins (Aug. 17, 2023).
Ohio St. Univ. Ext. Farm Off. Blog, Newly Introduced Legislation Would Affect Program Payments, Robert Moore (Aug. 17, 2023).
Ohio St. Univ. Ext. Farm Off. Blog, Ohio’s Farm Lease Termination Deadline Approaching, Robert Moore (Aug. 15, 2023).
Univ. Md. Risk Mgmt. Educ. Blog, Landowner-Oriented Agricultural Law Online Modules Available To Address Common Concerns, Paul Goeringer (Aug. 15, 2023).
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
Deputy Secretary Torres Small Visits Texas to Highlight Biden-Harris Administration Support for Producers and Communities (Aug. 18, 2023).
Statement by Secretary Vilsack Regarding USMCA Dispute Settlement Panel Request on Mexico’s Agricultural Biotechnology Measures (Aug. 17, 2023).
FACT SHEET: Marking One Year of the Inflation Reduction Act (Aug. 16, 2023).
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
EPA Settlements with Maine Companies Improve Chemical Safety and Impose Over $370,000 in Penalties (Aug. 17, 2023).
EPA Regional Administrator Statement on Montana Court Ruling in Favor of Youth and Their Constitutional Right to a Healthful Environment (Aug. 14, 2023).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Services
USDA Files Action Against Heyvel Produce LLC in Texas for Alleged PACA Violations (Aug. 15, 2023).
Animal and Plant Health Inspection Service (APHIS)
USDA Announces Proposal to Strengthen Enforcement of the Horse Protection Act (Aug. 16, 2023).
Economic Research Service (ERS)
How Mexico’s Horticultural Export Sector Responded to the Food Safety Modernization Act (Aug. 17, 2023).
Feed Outlook: August 2023 (Aug. 15, 2023).
World Agricultural Supply and Demand Estimates at a Glance (Aug. 14, 2023).
Farm Services Agency (FSA)
USDA Offers Disaster Program Flexibilities for Flood-Impacted Producers in the Northeast (Aug. 14, 2023).
Food and Nutrition Service (FNS)
USDA Invests in Advancing Tribal Sovereignty through Eight New Self-Determination Projects for Tribal Food Program (Aug. 14, 2023).
Food Safety and Inspection Service (FSIS)
Constituent Update – August 18, 2023 (Aug. 18, 2023).
Foreign Agricultural Service (FAS)
Export Sales to Mexico (Aug. 18, 2023).
Statement by Sec. Vilsack Regarding USMCA Dispute Settlement Panel Request on Mexico Biotech Measures (Aug. 17, 2023).
Export Sales to Unknown Destinations (Aug. 14, 2023).
National Institute of Food and Agriculture (NIFA)
IR-4 Petition Yields First Conventional Pesticide Tolerance for Hemp (Aug. 18, 2023).
NIFA Invests $12 Million to Advance Research in Agricultural Microbiomes (A1402) (Aug. 16, 2023).
NIFA Invests $11 Million to Improve Food Safety and Defense (A1332) (Aug. 14, 2023).
Natural Resources Conservation Service (NRCS)
NRCS Texas Watershed Program announces quarterly update (Aug. 18, 2023).
NRCS Oregon awards two Conservation Innovation Grants to develop new technologies for agriculture (Aug. 16, 2023).
Risk Management Agency
USDA Offers Disaster Program Flexibilities for Flood-Impacted Producers in the Northeast (Aug. 14, 2023).
FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 14–18, 2023):
Agricultural Marketing Service
88 FR 55426 Proposed Rule – Comment Period: “Plant Records To Include Grade Label Butterfat Testing” (Aug. 15, 2023).
88 FR 55345 Final Rule: “Cotton Board Rules and Regulations: Adjusting Supplemental Assessment on Imports (2023 Amendments)” (Aug. 15, 2023).
Agriculture Department
88 FR 55437 Notice: “Submission for OMB Review; Comment Request [Cooperative Agricultural Pest Survey]” (Aug. 15, 2023).
Environmental Protection Agency
88 FR 56615 Notice: “Environmental Impact Statements; Notice of Availability [Manti-La Sal National Forest Land and Resource Management Plan]” (Aug. 18, 2023).
88 FR 55691 Notice – Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Evaluating End User Satisfaction of EPA’s Research Products (Renewal)” (Aug. 16, 2023).
88 FR 55693 Notice – Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Estuary Program (Renewal)” (Aug. 16, 2023).
88 FR 55578 Final Rule – Comment Period: “Fluxapyroxad; Pesticide Tolerances” (Aug. 16, 2023).
Foreign Agriculture Service
88 FR 55996 Notice – Comment Period: “Request for Approval of an Existing Information Collection in Use Without an OMB Control Number [Grant and Agreement Applications and Reporting for Activities in International Research, Extension, and Teaching]” (Aug. 17, 2023).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.5235 “Farm to Fuselage Act” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Agriculture (Aug. 18, 2023).
H.R.5242 “To amend the Rural Electrification Act of 1936 to reform broadband permitting, and for other purposes” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Agriculture (Aug. 18, 2023).
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Shapiro Administration Invites Proposals For $500,000 In PA Farm Bill Grants To Prepare Next Generation For Success In Ag (Aug. 14, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 32—August 12, 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: “Draft Stream Evaluation Reports; Available for Public Comment”
53 Pa.B. 5068 Notice: “Stream Redesignation Evaluation of Brodhead Creek; Water Quality Standards Review; Data Solicitation Period Extension”
PENNSYLVANIA LEGISLATURE
SB 888 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for issuance of permits in environmental justice areas.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY (Aug. 16, 2023)
Contributors:
Victoria Dutterer—Research Assistant
Avery McLean—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney
