July 16, 2023

Agricultural Law Weekly Review—July 17, 2023

Conservation Programs: USDA Announces $300 Million, Draft Federal Strategy to Improve Greenhouse Gas Measurement and Carbon Sequestration 🌾
On July 12, 2023, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register (88 FR 44251) requesting public comment on an interagency draft report: Federal Strategy to Advance Measurement and Monitoring Greenhouse Gas Measurement and Monitoring for the Agriculture and Forest Sectors.  Additionally, USDA announced $300 million in available funding to “improve measurement, monitoring, reporting and verification of greenhouse gas emissions and carbon sequestration in climate-smart agriculture and forestry.”  According to the announcement, the draft strategy and funding aim to further the administration’s goal to reduce 2005 levels of greenhouse gas emissions by 50–52% by 2030.  The draft strategy is open for public comment until August 11, 2023 (Docket: USDA-2023-0009).

Pesticides/Herbicides: European Food Safety Authority Determines ‘No Critical Areas of Concern’ for Glyphosate
On July 6, 2023, the European Food Safety Authority (EFSA) announced conclusions from its glyphosate risk assessment, stating that the agency determined that glyphosate use posed “no critical areas of concern” on impacts to “the health of humans, animals, and the environment.”  The study was conducted over three years and drew information from “thousands of studies and scientific articles.”  The conclusions have been shared with the European Commission and Member States, who will refer to the findings when deciding whether glyphosate should be reapproved for use in the European Union (EU), and are expected to be formally published by the end of July 2023.  The EU has approved the use of glyphosate through December 15, 2023.

Biofuels: EPA Publishes Renewable Fuels Standard Program Final Rule for 2023–2025
On July 12, 2023, the U.S. Environmental Protection Agency published a final rule in the Federal Register (88 FR 44468) establishing biofuel volumes and percentage standards for the Renewable Fuel Standard (RFS) program from 2023–2025.  The rule becomes effective September 11, 2023, except for amendatory instruction 30 (for independent third-party engineers), which become effective February 1, 2024, and amendatory instructions 41–42 (establishing new bonding provisions), which becomes effective April 1, 2024.

Food Safety: USDA Provides New Instructions for Cell-Cultured Meat and Poultry Products Sampling Program
On June 29, 2023, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published a notice titled “Updated Cell-Cultured Meat and Poultry Products Sampling Program.”  FSIS states that the notice is intended to direct “inspection program personnel on how to collect cell-cultured meat and poultry food products and send samples to the FSIS Eastern Laboratory for microbiological, chemical residue, speciation testing, and pathology.”  The notice expires July 1, 2024.

Food Policy: FDA Announces New List of Guidance Topics for 2023 Foods Program
On July 6, 2023, The U.S. Food and Drug Administration (FDA) announced an updated list of draft and final guidance topics for the FDA Foods Program, prioritized for completion in 2023.  New guidance topics include low-moisture ready-to-eat foods and amended menu labeling guidance, among others.  According to the announcement, comments on the guidance may be submitted at docket No. FDA-2021-N-0553 (See also No. FDA-2022-D-2088-0001).

Food Safety: FDA Updates Proposal for Reorganization of Human Foods Program and Office of Regulatory Affairs
On June 27, 2023, the U.S. Food and Drug Administration (FDA) announced several structural changes to the agency’s January 2023 proposal for a unified Human Foods Program (HFP), including a new model for the Office of Regulatory Affairs (ORA).  Among other changes, the new structure would “[e]stablish[] ORA’s core mission as conducting investigations, inspections and imports for all FDA-regulated products,” and delegate “oversight of all [HFP] budget and resource allocations . . . including ORA resources” to the new Deputy Commissioner for Human Foods.  According to the announcement, FDA is currently recruiting a new Associate Commissioner for Regulatory Affairs and Deputy Commissioner for Human Foods and states that the agency “remains on target to finalize its reorganization proposal, for both ORA and the unified HFP, this fall.”

Antimicrobial Use: Tyson Publishes Position on Antibiotic Stewardship
On June 21, 2023, Tyson Foods posted a statement titled “Position on Antibiotic Stewardship” on its tysonsustainabiliy.com website.  While Tyson states that the company is “focused on reducing the need to use antibiotics in animals within [its] supply chains,” the company also states, “Arbitrary reduction targets for antibiotic use are not in the best interest of animal, human or ecosystem health.”  Additionally, on July 2, 2023, the Wall Street Journal (WSJ) reported that Tyson Foods will begin selling chicken products derived from poultry that have been treated with ionophores antibiotics, which are not currently used to treat humans, according to the World Health Organization, and “aren’t important to human health,” according to a statement made by a Tyson spokesperson to WSJ.  Tyson has been using the “No Antibiotics Ever” tagline since 2017 and will instead use a “no antibiotics important to human medicine” label on their chicken products, per reporting by CNN.  The label change will go into effect by the end of 2023.

Environmental Policy: European Union Proposes Soil Monitoring Law
On July 5, 2023, the European Union’s (EU) European Commission (EC) published a Proposal for a Directive on Soil Monitoring and Resilience.  If passed, the law would be the first of its kind and ask member states to identify and investigate potentially contaminated sites and “take measures to address unacceptable risks.”  EU’s proposal on soil health is part of its Biodiversity strategy for 2030, which EC states, “will contribute to the objectives of the European Green Deal.”

WOTUS: Virginia Says State Law, Water Permit Program Not Affected by Sackett, Will Work to Continue Projects in ‘Timely Manner’
On June 29, 2023, the Virginia Department of Environmental Quality (DEQ) issued a stakeholder memorandum clarifying that neither Virginia’s definition of “state waters”—which DEQ says includes “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands” (emphasis included)—nor the Virginia Water Protection Permit (VWPP) program is affected by the U.S. Supreme Court’s May 2023 decision in Sackett v. EPA.  Also announced by DEQ, the memorandum clarifies that Virginia state law allows DEQ to make its own State Surface Water Determinations (SSWDs), which DEQ states it will do by coordinating with state-certified, private sector Professional Wetland Delineators to “allow projects to move forward in a timely manner.”

Antitrust: Plaintiffs Reach $2.8 Million Settlement Agreement with Harrison Poultry in Class Action Antitrust Litigation
On June 20, 2023, the Commercial and Institutional Indirect Purchaser Plaintiffs (CIIPPS) filed a Notice of Settlement in the U.S. District Court for the Northern District of Illinois, informing the court that the CIIPPS had reached a $2.8 million settlement agreement with Harrison Poultry, Inc., in the consolidated class-action case In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637.  The CIIPS also filed an uncontested motion for preliminary approval of the settlement and a memorandum of support on June 28, 2023.  A telephone hearing for this settlement agreement is scheduled for July 18, 2023, at 11:00 a.m.  For more background on this lawsuit, see the Center’s Agricultural Antitrust Litigation Issue Tracker, In re Broiler Chicken Antitrust Litigation.

National Agriculture Policy: USDA Announces Application Opening for Borrowers Who Have Faced Discrimination
On July 7, 2023, the U.S. Department of Agriculture (USDA) announced the application opening of a new financial assistance program to assist eligible producers “who experienced discrimination in USDA farm lending programs prior to January 2021.”  Section 2207 of the Inflation Reduction Act authorized $2.2 billion for the program, initially announced in March 2023.  Applications are available in both English and Spanish at 2207apply.gov and are due October 31, 2023.  According to the announcement, “applications will be reviewed in November and December, with payments reaching recipients soon thereafter.”  Additionally, USDA states, “Importantly, applicants should know that the application process is not on a first come, first served, basis. All applications received or postmarked before the October 31 deadline will be considered.”

Crop Insurance: USDA Announces Enterprise Units Available for Several Crops in 2024
On July 6, 2023, the U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) announced that the agency will allow enterprise units (all sections and shares combined in a county) for the 2024 crop year for several crops, including some specialty crops: alfalfa seed, cultivated wild rice, forage production, mint, onions, and potatoes.  According to the announcement, enterprise units for potatoes in California will be available for the 2025 crop year.  Additionally, on June 29, 2023, the Federal Crop Insurance Corporation (FCIC) published a final rule in the Federal Register (88 FR 42015) amending regulations to authorize the designation of enterprise units into actuarial documents and incorporate actual production history (APH) and same year production reporting (SYPR) into the policy, in addition to other changes.  FCIC is accepting comments on the final rule, which became effective June 30, 2023.

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CENTER PROGRAMS & RESOURCES

Events:

Dairy Quarterly Legal Webinar. 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. Recordings and materials from the series, more information, and registration available here. Upcoming:

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:

Resources of Interest:

Nat’l Agric. Law Ctr., EPA Faces Treated Seeds Lawsuit, Brigit Rollins (July 6, 2023).

Agric. Law & Tax’n Blog, Buy-Sell Agreements – Part One, Roger A. McEowen (July 3, 2023)

Agric. Law & Tax’n Blog, Coeur d’ Alene, Idaho, Conference – Twin Track, Roger A. McEowen (July 3, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, Ohio EPA Finalizes TMDL for Lake Erie’s Western Basin, Peggy Kirk Hall (July 7, 2023).

Tex. A&M Agric. Law Blog, SCOTUS 2022-23 Term Ag Law Recap, Tiffany Dowell (July 3, 2023).

Southern Ag Today, USDA Acreage Report Results: Price and Crop Insurance Impacts, Grant Gardner and Hunter Biram (July 3, 2023)

Southern Ag Today, How will Proposition 12 Ruling Impact the Farm Bill?, Bart Fischer and Joe Outlaw (July 6, 2023)

Southern Ag Today, Is the Transition from Conventional to Organic Kale Production Profitable?, Samuel Francis, Felipe de Figueiredo Silva, and Michael Vassalos (July 7, 2023)

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 Forest Service Forms Northwest Forest Plan Federal Advisory Committee (July 7, 2023)

Financial Assistance Application Process Opens for USDA Farm Loan Borrowers Who Have Faced Discrimination (July 7, 2023)

Urban Producers, Public Invited to Attend August Meeting of Federal Advisory Committee for Urban Agriculture and Innovative Production (July 6, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Proposes Updates to Greenhouse Gas Emissions Reporting Requirements for the Oil and Gas Sector (July 6, 2023)

EPA Region 7 Extends Call for Abstracts Deadline for Anaerobic Digestion on the Farm Conference (July 5, 2023)

USDA AGENCY PRESS RELEASES:

Farm Service Agency (FSA)

Urban Producers, Public Invited to Attend August Meeting of Federal Advisory Committee for Urban Agriculture and Innovative Production (July 6, 2023)

USDA Announces July 2023 Lending Rates for Agricultural Producers (July 3, 2023)

Food Safety and Inspection Service (FSIS)

Raw Beef Sampling (July 7, 2023)

Foreign Agricultural Service (FAS)

Export Sales to Mexico (July 7, 2023)

National Institute of Food and Agriculture (NIFA)

Texas 4-H Roundup Awards More Than $2 Million in Scholarships (July 6, 2023)

Natural Resources Conservation Service (NRCS)

Florida USDA NRCS Seeks Proposals for Innovative Approaches to Urban Agriculture, Water Conservation, Soil Health, and Carbon Sequestration (July 7, 2023)

Urban Producers, Public Invited to Attend August Meeting of Federal Advisory Committee for Urban Agriculture and Innovative Production  (July 6, 2023)

Rehabilitation of Millsite Dam Leaves Legacy for Area Agriculture (July 5, 2023)

Announcing Application Cutoff Date for the Regional Conservation Partnership Program (July 5, 2023)

NRCS in the Pacific Islands Area Announces Extension of Conservation Stewardship Program Signup (July 3, 2023)

Risk Management Agency (RMA)

USDA Expands Risk Management Options with Greater Enterprise Unit Possibilities  (July 6, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register July 3–7, 2023):     

Animal and Plant Health Inspection

88 FR 43263 Notice: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Black Stem Rust; Identification Requirements for Addition of Rust-Resistant Varieties” (July 7, 2023)

Environmental Protection Agency

88 FR 42935 Notice: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (May 2023)” (July 5, 2023)

88 FR 42716 Notice: “FIFRA Scientific Advisory Panel (SAP); Examination of Microcosm/Mesocosm Studies for Evaluating the Effects of Atrazine on Aquatic Plant Communities; Notice of Availability, and Request for Comment” (July 3, 2023)

Farm Credit System Insurance Corporation

88 FR 42718 Notice: “Board of Directors Meeting” (July 3, 2023)

Fish and Wildlife Service

88 FR 42642 Final Rule: “Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations” (July 3, 2023)

88 FR 42661 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Dunes Sagebrush Lizard” (July 3, 2023)

Food and Nutrition Service

88 FR 43266 Notice: “National School Lunch, Special Milk, and School Breakfast Programs, National Average Payments/Maximum Reimbursement Rates” (July 7, 2023)

Foreign Agricultural Service

88 FR 42909 Notice: “Determination of Total Amount of Fiscal Year 2024 WTO Tariff-Rate Quotas for Raw Cane Sugar and Certain Sugars, Syrups and Molasses” (July 5, 2023)

Land Management Bureau

88 FR 43383 Notice: “Withdrawal Extension, Wisdom Administrative Site, Montana; Opportunity for Public Meeting” (July 7, 2023)

88 FR 43380 Notice: “Amendment to the Resource Management Plan for the Lower Sonoran Field Office, Segregation for the Proposed Vulcan Solar Project, Arizona” (July 7, 2023)

88 FR 43384 Eastern Colorado Resource Management Plan, Colorado, Proposed Resource Management Plan” (July 7, 2023)

88 FR 43380 Application for Withdrawal Extension, and Opportunity for Public Meeting for the Federal Law Enforcement Training Center; New Mexico” (July 7, 2023)

88 FR 42948 Notice: “Notice of Proposed Filing of Plats of Survey, South Dakota” (July 5, 2023)

88 FR 42948 Notice: “Notice of Temporary Closure of Public Lands in Doña Ana County, NM” (July 5, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.4483 “To amend the Richard B. Russell National School Lunch Act to require the Secretary of Agriculture to make loan guarantees and grants to finance certain improvements to school lunch facilities, to train school food service personnel, and for other purposes.” (July 6, 2023)

H.R.4464 “To amend the Agricultural Act of 2014 to authorize emergency assistance for high value crop losses, and for other purposes.” (July 3, 2023)

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

No actions this week

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

None this week

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 27—July 8, 2023): 

Department of Environmental Protection

53 Pa.B. 3581 Notice: “Application 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. 3649 Notice: “Availability of Technical Guidance”

53 Pa.B. 3650 Notice: “Planning Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988”

53 Pa.B. 3650 Notice: “Public Water System Technical Assistance Center Board Meeting Cancellation”

Milk Marketing Board

53 Pa.B. 3679 Notice: “Sunshine Meetings for Fiscal Year 2023-2024″

PENNSYLVANIA LEGISLATURE

No actions this week

 

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