January 29, 2023

Agricultural Law Weekly Review—January 30, 2023

WOTUS: Ag Groups Challenge New WOTUS Rule 🌾
On January 18, 2023, several agricultural advocacy groups and the state of Texas filed complaints in the U.S. District Court for the Southern District of Texas Galveston Division seeking to vacate the recently published final rule defining “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Am. Farm Bureau Federation v. U.S. EPA, No. 3:23-cv-00020. Among these advocacy groups are the American Farm Bureau Federation, the National Cattlemen’s Beef Association, the National Pork Producers Council, and others. The advocacy groups argue that the new final rule is too vague and allows the federal agencies “to exert CWA jurisdiction over a staggering range of dry land and water features . . . no matter how remote from or lacking in a physical connection to actual navigable waters.” The state of Texas argues that the new final rule violates the Administrative Procedure Act (APA), the Fifth and Tenth Amendments, and the Commerce Clause. Additional legal challenges are expected to be filed against the new final rule.

Water Quality: Judge Finds in Favor of Oklahoma in Illinois River Watershed Poultry Litter Case
On January 18, 2023, the U.S. District Court for the Northern District of Oklahoma issued findings of fact and conclusions of law after a 52-day bench trial. The adjudication ruled in favor of the state of Oklahoma and found multiple poultry and egg companies concurrently liable—including Tyson, Cargill, George’s, and Cal-Maine—on claims for a permanent injunction against violations of Oklahoma statutory public nuisance law, common law trespass, federal common law nuisance, and state clean water law violations resulting from the land application of defendants’ poultry waste within the Illinois River watershed. State of Oklahoma v. Tyson Foods, Inc. et. al., No. 4:05-cv-00329. Having found for Oklahoma on liability, the court gave both parties until March 17, 2023, to reach an agreement for court approval on the remedies to be imposed. If the parties fail to reach an agreement, the court will enter judgment in accordance with the adjudication. The Oklahoma Attorney General commenced the case by complaint approximately 16 years ago in 2005.   

Animal Health: USDA Grants Conditional License for First Honeybee Vaccine
On January 10, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) posted Center for Veterinary Biologics (CVB) Notice No. 23-02, issuing a conditional license to Dalan Animal Health, Inc. for a honeybee vaccine to prevent American Foulbrood disease. Also announced by Dalan via Businesswire, the conditional license is valid for two years.  In October 2022, several researchers, along with Dalan researchers, published a study on the efficacy and safety of the vaccine. According to Dalan, the vaccine is “non-GMO and can be used in organic agriculture.” Thanks to Robyn Underwood, Ph.D. (Penn State Extension Educator, Apiculture) and Margarita López-Uribe, Ph.D. (Penn State Associate Professor of Entomology, Lorenzo L. Langstroth Early Career Professor) for providing research and materials on the honeybee vaccine.

Animal Health: USDA Announces New Eartag Rule
On January 19, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a proposed rule amending official eartag identification requirements for cattle and bison. Also announced by APHIS, the proposed rule requires that certain cattle and bison transported interstate be electronically identified using eartags. Eartag tracking is part of APHIS’s Animal Disease Traceability (ADT) standards, which allow the federal government to quickly respond to transmittable disease outbreaks, like foot and mouth disease. Comments to the proposed rule will be accepted until March 20, 2023.

Organic Agriculture: USDA Announces National Organic Program Final Rule
On January 19, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published a final rule in the Federal Register titled, “Strengthening Organic Enforcement (SOE).” Also announced by AMS, the rule amends several sections of the National Organic Program (NOP) to ensure standards consistent with the Organic Foods Production Act of 1990 (OFPA) are in place throughout the production, handling, certification, marketing, and sale of organic agricultural products. The NOP amendments follow industry requests for updates, recommendations of the National Organic Standards Board (NOSB), and mandates from the 2018 Farm Bill.

Dairy Policy: USDA Announces Second Round of Pandemic Market Volatility Assistance and New Organic Dairy Marketing Assistance
On January 23, 2023, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced additional funding for dairy farmers through a second round of Pandemic Market Volatility Assistance Program payments (PMVAP) and the new Organic Dairy Marketing Assistance Program (ODMAP). PMVAP payments are now available to producers with fluid milk sales from 5 to 9 million pounds between July through December 2020, up from the initial 5-million-pound cap. Forthcoming details about ODMAP will be available at farmers.gov following the release of the program’s Notice of Funds Availability.

Water Quality: EPA Requests Small Business Stakeholder Input on Rulemaking for Meat and Poultry Products Effluent Limitations Guidelines
On January 18, 2023, the U.S. Environmental Protection Agency (EPA) announced that the agency seeks stakeholder input on its rulemaking revision of the Meat and Poultry Products Effluent Limitations Guidelines (EPA-HQ-OW-2021-0736).  According to the announcement, EPA wants Small Entity Representatives from small businesses, governments, and not-for-profit organizations to serve on its Small Business Advocacy Review Panel, which will advise EPA’s rulemaking.  EPA states that it expects to propose a rule in December 2023.

International Trade: USDA Issues Statement on U.S.-Mexico Bioengineered Corn Negotiations
On January 23, 2023, the U.S. Department of Agriculture’s (USDA) Foreign Agricultural Service (FAS) issued a statement following meetings with Mexican government officials on Mexico’s plan to eliminate imports of bioengineered corn by January 31, 2024.  According to the statement, USDA says that Mexico’s “proposed modifications” to the plan “are not sufficient” and that “Mexico’s proposed approach, which is not grounded in science, still threatens to disrupt billions of dollars in bilateral agricultural trade.”  Additionally, USDA states, “[I]f [the] issue is not resolved, we will consider all options, including taking formal steps to enforce our rights under the U.S.-Mexico-Canada Agreement.”

International Trade: New U.S.-EU Tariff Rate Quota Agreement
On January 17, 2023, the Office of the U.S. Trade Representative (USTR) announced a new U.S.-EU Tariff Rate Quota (TRQ) Agreement. These new TRQs will allow U.S.-based producers continued access to agricultural markets in EU member states following the United Kingdom’s exit from the European Union. The TRQ allocations were developed in consideration of the historical patterns of agricultural exports to EU member states.

 

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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. Next in the series:

  • Feb. 24, 2023, noon–1:00 ET: Understanding the Basics of Pennsylvania’s “Clean & Green” Preferential Tax Assessment Program (registration available soon)

Understanding Product Liability: Protecting Your Farm-Based Food Business, free live educational seminar conducted at Horizon Farm Credit, Mt. Joy, PA, and live simulcast to four other Horizon locations. Co-sponsored with Pennsylvania’s Small Business Development Center’s Agriculture Center for Excellence.

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.

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

Resources of Interest:

Academic Resources

Media & Industry Resources

Events of Interest

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports 

  • Feb. 1, 2023, 10:00 am: Farm Bill 2023: Trade and Horticulture, U.S. Senate Committee on Agriculture, Nutrition, & Forestry
  • Also announced with hearing details to come:
    • Feb. 9, 2023: Commodity Programs, Crop Insurance and Credit
    • Feb. 16, 2023: Commodity Programs
    • Mar. 1, 2023: Conservation and Forestry Programs

Top #AgLaw HotLinks Jan. 14–20, 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.

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE  

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Names 2023 Agricultural Outlook Forum Future Leaders in Agriculture Program Winners (Jan. 20, 2023).

U.S. Department of Agriculture Announces Key Staff Appointments (Jan. 20, 2023).

Members of the 2025 Dietary Guidelines Advisory Committee Announced (Jan. 19, 2023).

Biden-Harris Administration Launches New Efforts to Address the Wildfire Crisis (Jan. 19, 2023).

USDA Publishes Strengthening Organic Enforcement Final Rule (Jan. 18, 2023).

USDA Introduces an E-Application for the 1890 National Scholars Program (Jan. 17, 2023).

Statement by Secretary Vilsack on Martin Luther King Jr. Day (Jan. 16, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Announces Plans for Wastewater Regulations and Studies, Including Limits for PFAS, New Study for Nutrients (Jan. 20, 2023).

EPA Seeks Input from Small Entities on Meat and Poultry Products Effluent Guidelines Rulemaking Revision (Jan. 18, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Publishes Strengthening Organic Enforcement Final Rule (Jan. 18, 2023).

Agricultural Research Service (ARS)

Metabolic Pathway in Honey Bees Discovered with Strong Connections to Winter Colony Losses (Jan. 19, 2023).

USDA Researchers Develop Naturally Fire-Resistant Cotton Lines (Jan. 18, 2023).

New ARS Food and Nutrition Research Briefs Issued (Jan. 17, 2023).

Animal and Plant Health Inspection Agency (APHIS)

USDA Seeks Public Comment on Proposal to Strengthen Animal Disease Traceability Regulations (Jan. 18, 2023).

USDA Provides more than $70 Million to Protect Crops and Natural Resources from Invasive Pests and Diseases in 2023 (Jan. 18, 2023).

USDA Provides more than $660 Thousand to Projects that Protect Agriculture and Natural Resources in Tribal Communities (Jan. 18, 2023).

USDA Provides more than $4.7 Million to Projects that Protect Florida Agriculture and Natural Resources (Jan. 18, 2023).

USDA Provides more than $3.7 Million to Projects that Protect Washington State Agriculture and Natural Resources (Jan. 18, 2023).

Farm Service Agency (FAS)

USDA Announces Signup for 2023 Assistance for On-Farm Food Safety Expenses for Specialty Crop Growers (Jan. 20, 2023).

Food and Nutrition Service (FNS)

Announcing the 2025 Dietary Guidelines Advisory Committee! (Jan. 19, 2023).

Members of the 2025 Dietary Guidelines Advisory Committee Announced (Jan. 19, 2023).

USDA Invests $25 Million to Expand Healthy Incentives in SNAP (Jan. 19, 2023).

Passionate about Good Nutrition for Kids (Jan. 18, 2023).

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations (Jan. 20, 2023).

U.S. Hot Sauces Bring Heat to Ag Trade (Jan. 20, 2023).

Export Sales to Mexico (Jan. 19, 2023).

Export Sales to Colombia and Unknown Destinations (Jan. 17, 2023).

National Institute of Food and Agriculture (NIFA)

USDA to Create Plan to Expand Recreation Economies and Help People Thrive Across Rural America (Jan. 19, 2023).

UConn Researchers Studying Unintended Effects of Gene Editing in Tomatoes (Jan. 18, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 16–20, 2022):            

Agriculture Marketing Service

88 FR 3548 Final Rule: “National Organic Program (NOP); Strengthening Organic Enforcement” (Jan. 19, 2023).

88 FR 2862 Proposed Rule: “Amendments to the Marketing Order for Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida” (Jan. 18, 2023).

Agriculture Department

88 FR 2600 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Waivers Under Section 6(o) of the Food and Nutrition Act].” (Jan. 17, 2023).

88 FR 2599 Notice: “USDA Equity Commission” (Jan. 17, 2023).

Animal and Plant Health Inspection Service

88 FR 3320 Proposed Rule—Public Comment: “Use of Electronic Identification Eartags as Official Identification in Cattle and Bison” (Jan 19, 2023).

88 FR 2877 Notice—Public Comment: “Notice of Intent to Prepare an Environmental Impact Statement for Highly Pathogenic Avian Influenza Control in the United States” (Jan. 18, 2023).

Delaware River Basin Commission

88 FR 2895 Notice: “Notice of Public Hearing and Business Meeting; February 8 and March 8, 2023” (Jan. 18, 2023).

Environmental Protection Agency

88 FR 3409 Notice—Public Comment: “Proposed Information Collection Request; Clean Water State Revolving Fund and Drinking Water State Revolving Fund Programs” (Jan. 19, 2023).

88 FR 3004 Final Rule: “Revised Definition of ‘Waters of the United States’” (Jan. 18, 2023).

88 FR 2910 Notice—Public Comment: “Pesticides; Evaluating the Efficacy of Antimicrobial Test Substances on Porous Surfaces in Non-Residential Settings; Interim Guidance and Methods; Extension of Comment Period” (Jan. 18, 2023).

Farm Credit System Insurance Corporation

88 FR 2812 Final Rule: “Rules of Practice and Procedure; Adjusting Civil Money Penalties for Inflation” (Jan. 18, 2023).

Food Safety and Inspection Service

88 FR 2798 Final Rule: “Prior Label Approval System: Expansion of Generic Label Approval” (Jan. 18, 2023).

Food and Nutrition Service

88 FR 3376 Notice: “Summer Food Service Program; 2023 Reimbursement Rates; Correction” (Jan. 19, 2023).

International Trade Administration

88 FR 3382 Notice: “Certain Preserved Mushrooms from France: Antidumping Duty Order” (Jan. 19, 2023).

88 FR 3384 Notice: “Ripe Olives from Spain: Implementation of Determination Under Section 129 of the Uruguay Round Agreements Act (Jan. 19, 2023).

88 FR 2971 Notice: “Certain Preserved Mushrooms from France Determination” (Jan. 18, 2023).

International Trade Commission

88 FR 3438 Notice: “Sodium Nitrite from India; Supplemental Schedule for the Final Phase of Countervailing and Antidumping Duty Investigations” (Jan. 19, 2023).

88 FR 2637 Notice: ” Certain Raised Garden Beds and Components Thereof; Notice of a Commission Determination Not to Review an Initial Determination Amending the Complaint and Notice of Investigation” (Jan. 17, 2023).

Rural Business-Cooperative Service

88 FR 3705 Notice—Public Comment: “Notice of Funding Opportunity for the Rural Innovation Stronger Economy (RISE) Grant Program for Fiscal Year 2023” (Jan. 20, 2023).

88 FR 3381 Notice—Public Comment: “Notice of Request for Approval of a New Information Collection” (Jan. 19, 2023).

88 FR 3376 Notice: “Notice of Funding Opportunity for the Rural Business Development Grant Program to Provide Technical Assistance for Rural Transportation Systems for Fiscal Year 2023” (Jan. 19, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.439 “To direct the Secretary of the Interior to establish a grant program to allocate resources for remote search and rescue 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. 20. 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:           

No new press releases this week.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 3—Jan. 21, 2023): 

Department of Conservation and Natural Resources

53 Pa.B. 506 Notice: “Community Conservation Partnerships Program Grants Available.”

53 Pa.B. 506 Notice: “Conservation and Natural Resources Advisory Council Public Meeting.”

Department of Environmental Protection 

53 Pa.B. 507 Notice: “Applications, Actions and Special Notices.”

Susquehanna River Basin Commission

53 Pa.B. 583 Notice: “Grandfathering Registration Notice.”

53 Pa.B. 584 Notice: “Projects Approved for Consumptive Uses of Water.”

53 Pa.B. 586 Notice: “Projects Approved for Minor Modifications.”

53 Pa.B. 586 Notice: “Public Hearing.”

PENNSYLVANIA LEGISLATURE

SB 152 “An Act repealing the act of September 1, 1965 (P.L.420, No.215), known as The Frozen Dessert Law.” Referred to Agriculture and Rural Affairs. [Senate] (Jan 19, 2023).

SB 160 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in retail food facility safety, further providing for license required.” Referred to Agriculture and Rural Affairs. [Senate] (Jan 19, 2023).

SB 176 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in weights and measures, providing for fuel and diesel fuel tax transparency.” Referred to Agriculture and Rural Affairs. [Senate] (Jan 19, 2023).

SB 95 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for use of farm vehicle plates.” Third consideration and final passage (49-0) [Senate] (Jan. 18, 2023).

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