January 22, 2023

Agricultural Law Weekly Review—January 23, 2023

WOTUS: EPA Publishes Final Rule Defining ‘the Waters of the United States’ 🌾
On January 18, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army Corps of Engineers published in the Federal Register a final rule revising the definition of “the Waters of the United States” (WOTUS). This rule defines the range of the waters protected under the Clean Water Act (CWA) and will take effect March 20, 2023. According to EPA, the new definition better represents the intent of the CWA, Supreme Court case law, and scientific expertise. More information on the new rule can be found here.

Water Quality: FDA Announces End of Enforcement Discretion Period for Harvest and Post-Harvest Agricultural Water
On January 13, 2023, the U.S. Food and Drug Administration (FDA) announced the end of the enforcement discretion period for the harvest and post-harvest agricultural water provisions for covered produce other than sprouts in the Produce Safety Rule. The discretion period will end for very small businesses on January 26, 2025, for small businesses on January 26, 2024, and for all other businesses on January 23, 2023. A fact sheet to help producers with the transition can be found here.

National Agricultural Policy: USDA Announces New Programs and Investments for Fertilizer Production, Risk Management, Meat Processing, and Disaster Assistance
On January 9, 2023, the U.S. Department of Agriculture (USDA) announced investments in several programs to assist farmers, ranchers, and producers. First, USDA requests comments on the Fertilizer Production Expansion Program, which seeks to invest in projects to increase fertilizer production in the United States. Additionally, USDA seeks to improve protections under the Noninsured Crop Disaster Assistance Program (NAP). Also, USDA provided more than $12 million through Meat and Poultry Processing Expansion Program grants for projects in Ohio, Michigan, and Minnesota. Finally, USDA announced two new programs to fill gaps in natural disaster and pandemic assistance: the Emergency Relief Program Phase 2 is available to producers who suffered decreases in gross revenue in 2020 or 2021 related to losses of eligible crops from a qualifying natural disaster and the Pandemic Assistance Revenue Program (PARP) is available to producers who suffered a 15% or greater decrease in gross revenue in 2020. The application period for both programs will run from January 23, 2023, through June 2, 2023.

Animal Welfare: New York Department of Agriculture and Markets Issues Order Restricting Enforcement of New York City’s Force-Fed Products Ban
On December 14, 2022, the New York Department of Agriculture and Markets (Department) issued an order directing the City of New York to refrain from enforcing its Local Law 202, which probits the sale and storage of “force-fed” products, like foie gras. The Department issued the order under Section 305-a of New York’s Agricultural Districts Law, which “protects farmers against local laws which unreasonably restrict farm operations located within an agricultural district” and authorizes the Department to “take action to compel compliance” with the law. The order became effective immediately and gave the City of New York ten days to notify the Department of the City’s acceptance of the order.

Agricultural Finance: Agricultural Companies to Pay $600,000 in Settlement for $1.8M in Paycheck Protection Program Loan Violations
On January 9, 2023, the U.S. Department of Justice (DOJ) announced that a settlement had been reached in the case United States ex rel. Bell Hill, LLC v. John Seasholtz, et al., No. 1:20-cv-942. The settlement states that the defendants—the four California-based agricultural companies Mendota Land Co., Sweetwood Farm Co. LLC, Sweetwood Farm Inc., and Seasholtz Co. LLC and their owner, John Seasholtz (Seasholtz)—will pay $400,000 in damages and penalties under the False Claims Act (FCA) and $200,000 in civil penalties under the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA). This lawsuit was filed under the qui tam, or whistleblower, provision of the FCA, which permits private parties to file claims on behalf of the U.S. government. The claims against Seasholtz alleged that he improperly reported employment data in Paycheck Protection Program (PPP) loan applications, which led to approximately $1.8 million in excess PPP loans that Seasholtz has repaid.

Animal Welfare: National Chicken Council Releases Updated Broiler Welfare Guidelines
In December 2022, the National Chicken Council (NCC) updated its Broiler Welfare Guidelines and Audit Checklist (guidelines). These guidelines have been adopted by farmers as a baseline to ensure that all chickens are raised properly and humanely. More information on the guidelines and the NCC can be found here.

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CENTER PROGRAMS & RESOURCES

Events:

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. Recordings and materials from the series, more information, and registration available here. Next in the series:

Understanding Product Liability: Protecting Your Farm-Based Food Business. A joint presentation between the Center for Agricultural and Shale Law, Pennsylvania’s Small Business Development Center’s Agriculture Center of Excellence, and Horizon Farm Credit. Free live and simulcast seminar at five Pennsylvania Horizon Farm Credit locations.

Dairy Quarterly Legal Webinar Series. 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 Series. A free six-webinar series is available by clicking here and registering for on-demand viewing.

Academic & Government Resources

Non-Government, Media, and Industry Resources

Events of Interest

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports 

No new hearings or reports this week.

Top #AgLaw HotLinks Jan. 7– 13, 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

USDA and National Urban League Partner To Promote Equity, Increase Nutrition Security and Expand Services In Underserved Communities Across America (Jan. 11, 2023).

USDA Announces Major Program Improvements, Progress, and Investments to Benefit American Farmers, Ranchers, and Producers (Jan. 9, 2023).

Biden-Harris Administration Invests in Rural Economy and Equitable Access in Puerto Rico (Jan. 9, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Proposes Settlement to Protect Sacramento River Endangered Species (Jan. 13, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Hawaii (Jan. 12, 2023).

USDA Takes Steps to Support Food Sovereignty with the Pascua Yaqui Tribe (Jan. 11, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with West Virginia (Jan. 10, 2023).

USDA Takes Steps to Support Food Sovereignty with the Bishop Paiute Tribe (Jan. 9, 2023).

Animal and Plant Health Inspection Agency (APHIS)

APHIS Extends Deadline to Apply for $25 Million in American Rescue Plan Funding Supporting Research on SARS-CoV-2 in Animals (Jan. 10, 2023).

Farm Service Agency (FAS)

USDA Reminds Producers of Continuous Certification Option for Perennial Forage (Jan. 11, 2023).

El USDA amplía la elegibilidad y mejora los beneficios de los principales programas por desastre (Jan. 10, 2023).

USDA Expands Eligibility, Enhances Benefits for Key Disaster Programs (Jan. 10, 2023).

USDA Announces Major Program Improvements, Progress, and Investments to Benefit American Farmers, Ranchers, and Producers (Jan. 9, 2023).

Food and Nutrition Service (FNS)

Delaware to Participate in School Meals Demonstration Project Enabling Direct Certification Through Medicaid (Jan. 12, 2023).

Pennsylvania to Participate in School Meals Demonstration Project Enabling Direct Certification Through Medicaid (Jan. 12, 2023).

Georgia and Tennessee to Participate in School Meals Demonstration Project Enabling Direct Certification Through Medicaid (Jan. 12, 2023).

Cross-Agency Partnership Explores the Intersection Between Nutrition Security and Behavioral Health and Wellness (Jan. 12, 2023).

Oregon to Participate in School Meals Demonstration Project Enabling Direct Certification Through Medicaid (Jan. 12, 2023).

USDA and National Urban League Partner To Promote Equity, Increase Nutrition Security and Expand Services In Underserved Communities Across America (Jan. 11, 2023).

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations (Jan. 11, 2023).

Export Sales to Mexico (Jan. 10, 2023).

National Agricultural Statistics Service

Corn and soybean production down in 2022, USDA reports Corn stocks down, soybean stocks down from year earlier Winter Wheat Seedings up for 2023 (Jan. 12, 2023).

National Institute of Food and Agriculture (NIFA)

State of Success: Arkansas (Jan. 11, 2023).

AgrAbility: Cultivating Independence for People with Disabilities in Agriculture (Jan. 11, 2023).

Scaling Up Vegetable Farms for Wholesale Markets (Jan. 10, 2023).

Research Improving Dairy Cow Nutrition (Jan. 10, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 9–13, 2022):            

Agriculture Department

88 FR 2395 Proposed Rule—Public Comment: “Partnerships With Faith-Based and Neighborhood Organizations” (Jan. 13, 2023).

88 FR 2316 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Produce Safety University Nomination and Course Evaluation]” (Jan. 13, 2023).

88 FR 2062 Notice—Public Comment: “Request for Applications; National Agricultural Research, Extension, Education, and Economics (NAREEE) Advisory Board, Citrus Disease Subcommittee (CDS), National Genetic Resources Advisory Council (NGRAC), Specialty Crop Committee (SCC), and Pollinator Subcommittee (PS)” (Jan. 12, 2023).

88 FR 2063 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Handling Swine with Potential Vesicular Disease]” (Jan. 12, 2023).

88 FR 2063 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Modernization of Swine Slaughter Inspection]” (Jan. 12, 2023).

88 FR 1862 Final Rule: “Pandemic Assistance Programs and Agricultural Disaster Assistance Programs” (Jan. 11, 2023).

Animal and Plant Health Inspection Service

88 FR 2317 Notice—Public Comment: “Notice of Request for Approval of an Information Collection; National Animal Health Monitoring System; Sheep 2024 Study” (Jan. 13, 2023).

88 FR 1345 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Movement of Organisms Modified or Produced Through Genetic Engineering” (Jan. 10, 2023).

88 FR 1151 Proposed Rule—Public Comment: “Wild and Exotic Animal Handling, Training of Personnel Involved With Public Handling of Wild and Exotic Animals, and Environmental Enrichment for Species” (Jan. 9, 2023).

Commodity Credit Corporation

88 FR 1862 Final Rule: “Pandemic Assistance Programs and Agricultural Disaster Assistance Programs” (Jan. 11, 2023).

Commodity Futures Trading Commission

88 FR 2345 Notice—Public Comment: “Agency Information Collection Activities: Notice of Intent To Extend Collection 3038-0101, Registration of Foreign Boards of Trade” (Jan. 13, 2023).

88 FR 1501 Final Rule: “Annual Adjustment of Civil Monetary Penalties To Reflect Inflation-2023″ (Jan. 11, 2023).

Farm Credit Administration

88 FR 2197 Final Rule: “Rules of Practice and Procedure; Adjusting Civil Money Penalties for Inflation” (Jan. 13, 2023).

Farm Service Agency

88 FR 1862 Final Rule: “Pandemic Assistance Programs and Agricultural Disaster Assistance Programs (Jan. 11, 2023).

Food and Drug Administration

88 FR 1503 Rule: “Foreign Supplier Verification Programs for Importers of Food for Humans and Animals: Guidance for Industry; Availability” (Jan. 11, 2023).

Foreign Agricultural Service

88 FR 2318 Notice—Public Comment: “Notice of Request for Extension of a Currently Approved Information Collection” (Jan. 13, 2023).

Rural Utilities Service

88 FR 2064 Notice: “Inflation Reduction Act Discussion Sessions” (Jan. 12, 2023).

88 FR 1346 Notice: “Notice of Availability of a Record of Decision for Badger State Solar, LLC, Project” (Jan 10, 2023).

Susquehanna River Basin Commission

88 FR 1625 Notice: “Grandfathering (GF) Registration Notice” (Jan. 11, 2023).

88 FR 1625 Notice: “Public Hearing” (Jan. 11, 2023).

88 FR 1623 Notice: “Projects Approved for Consumptive Uses of Water” (Jan. 11, 2023).

88 FR 1624 Notice: “Projects Approved for Minor Modifications” (Jan. 11, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.323 “To establish the People-Centered Assistance Reform Effort Commission, to improve the social safety net and increase social mobility by increasing access to resources which address the underlying causes of poverty.” Referred to the Committee on Ways and Means, and in addition to the Committees on Education and the Workforce, Agriculture, Energy and Commerce, Financial Services, Transportation and Infrastructure, Rules, the Judiciary, and Natural Resources, 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. 12, 2023).

H.R.253 “To amend the Food and Nutrition Act of 2008 to transition the Commonwealth of Puerto Rico to the supplemental nutrition assistance program, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 10, 2023).

H.R.243 “To amend the Agricultural Act of 2014 and the Consolidated Farm and Rural Development Act to require producers to establish disaster preparedness plans to be eligible for certain disaster assistance programs, and for other purposes” Referred to the House Committee on Agriculture. (Jan. 10, 2023).

H.R.210 “To provide for the issuance of a semipostal to benefit programs that combat invasive species.” Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Natural Resources, and 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. 9, 2023).

H.R.209 “To improve the permitting process for mining on Federal land, 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 9, 2023).

H.R.208 “To amend the Animal Welfare Act to ensure that all dogs and cats used by research facilities are obtained legally.” Referred to the House Committee on Agriculture. (Jan. 9, 2023).

H.R.205 “To amend the Food and Nutrition Act of 2008 to provide for the reissuance to households supplemental nutrition assistance program benefits to replace benefits stolen by identity theft or typical skimming practices, and for other purposes.” Referred to the House Committee on Agriculture. (Jan. 9, 2023).

H.R.204 “To require certain welfare programs to deny benefits to persons who fail a drug test, and for other purposes.” Referred to the Committee on Ways and Means, and in addition to the Committees on Agriculture, and Financial Services, 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. 9, 2023).

H.R.200 “To amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and the Federal Land Policy and Management Act of 1976 to provide that the Secretary of Agriculture and the Secretary of the Interior are not required to reinitiate consultation on a land management plan or land use plan under certain circumstances, 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. 9, 2023).

H.R.189 “To require that only two alternatives be considered with respect to certain proposed collaborative forest management activities, 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. 9, 2023).

H.R.188 “To direct the Secretary concerned to coordinate with impacted parties when conducting a forest management activity, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Natural Resources, 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. 9, 2023).

H.R.179 “To promote accountability and transparency in future executive orders.” Referred to the House Committee on Agriculture. (Jan. 9, 2023).

H.R.178 “To promote the development of renewable energy on public lands, 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. 9, 2023).

H.R.172 “To provide for no net increase in the total acreage of certain Federal land under the jurisdiction of the Bureau of Land Management, the National Park Service, the United States Fish and Wildlife Service, or the Forest Service, 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. 9, 2023).

H.R.110 “FUEL Reform Act.” Referred to the Committee on Agriculture, and in addition to the Committees on Oversight and Accountability, 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. 9, 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:           

Agriculture Secretary Honors Deep Agricultural Roots Of Eight ‘Century Farm’ Families At 2023 Farm Show (Jan. 13, 2023).

Agriculture Secretary Announces $1.8 Million To Grow Market Opportunities For Organic, Recognizes Progress In Organic During The Wolf Administration (Jan. 13, 2023).

Agriculture Secretary Announces First Recipients Of Farmer Veteran Grants Through The Wolf Administration’s Historic PA Farm Bill (Jan. 12, 2023).

Agriculture Secretary, Innovators Celebrate Agriculture’s Strong Roots, Remarkable Progress During 2023 Farm Show Public Officials Day (Jan. 11, 2023).

Agriculture Secretary Announces $520,000 To Eliminate Food Deserts And Grow Urban Ag Infrastructure, Highlights Ag Equity Achievements Throughout Wolf Administration (Jan. 10, 2023).

Agriculture Secretary Announces $1.5 Million To Improve Youth Access To Fresh, Healthy Foods And Ag Education (Jan. 9, 2023).

Wolf Administration Celebrates FFA At Annual Mid-Winter Convention During 107th PA Farm Show (Jan. 9, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 2—Jan. 14, 2023): 

Department of Environmental Protection 

53 Pa.B. 386 Notice: “Applications.”

53 Pa.B. 432 Notice: “Availability of Technical Guidance.”

PENNSYLVANIA LEGISLATURE

SB 82 “An Act amending the act of December 7, 1982 (P.L.784, No.225), known as the Dog Law, in licenses, tags and kennels, further providing for transfer of dog licenses or tags and other licensing requirements and for service dogs and dogs used by municipal or State Police departments.” Referred to Agriculture and Rural Affairs [Senate] (Jan. 12, 2023).

 

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