July 23, 2023
Agricultural Law Weekly Review—July 24, 2023
Water Quality: States and EPA Jointly Move to Dismiss Chesapeake Bay Water Pollution Suit 🌾
On July 12, 2023, all parties involved in Chesapeake Bay Foundation v. Environmental Protection Agency filed in the U.S. District Court for the District of Columbia a joint stipulation notifying the court of the parties’ voluntary dismissal, without prejudice, of all claims. Chesapeake Bay Foundation v. EPA, No. 1:20-cv-02529. The case was initially filed in September 2020 by Maryland, Virginia, Delaware, the District of Columbia, and several environmental groups against EPA seeking to compel the agency to enforce Pennsylvania’s Chesapeake Bay nutrient and sediment reduction obligations under the Clean Water Act. On April 20, 2023, the parties reached a proposed settlement agreement.
For background, see Agricultural Law in the Spotlight: EPA Settlement Agreement of Chesapeake Bay TMDL Compliance Litigation Discloses New Pennsylvania Enforcement Policies and ALWR—May 8, 2023, “EPA Publishes Chesapeake Bay Settlement Agreement for Public Comment.”
Dairy Policy: USDA Publishes Proposed Rule Amending Appalachian, Southeast, Florida Milk Marketing Orders
On July 18, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a proposed rule (88 FR 46016) that would amend federal milk marketing orders in the Appalachian, Southeast, and Florida areas. Also announced by AMS, the proposed rule would amend the transportation credit balancing fund language for the Appalachian and Southeast areas to revise the mileage rate calculation, months of mandatory and discretionary payment, and the non-reimbursed mileage factor as well as increase the Class I milk maximum rate. Additionally, the proposed rule would allow for distributing plant delivery credits in all three areas. The proposed rule follows hearings held February and March 2023 and has a comment period that closes September 18, 2023.
Animal Welfare: Massachusetts District Court Grants Stay on Implementation of Pork Rules
On July 10, 2023, the U.S. District Court for the District of Massachusetts entered an electronic order granting a joint motion to extend a stay until August 23, 2023, in a case challenging Massachusetts’s enforcement of Question 3, which prohibits the in-state sale of pork derived from animals “confined in a cruel manner.” Massachusetts Restaurant Association et al v. Healey et al., No. 4:22-cv-11245. The case, initially filed in August 2022, had previously been stayed pending the U.S. Supreme Court’s opinion in NPPC v. Ross, issued May 2023. According to the motion, “[t]he Parties agree that the Supreme Court’s decision . . . resolved many of the[ir] disputed issues” but requested to stay the case to “determine what, if any, issues remain unresolved by that decision and whether [they] can reach a negotiated resolution of those issues.”
Water Quality: Eighth Circuit Court of Appeals Affirms Missouri River Diversion
On July 10, 2023, the U.S. Court of Appeals for the Eighth Circuit affirmed the U.S. District Court for the Western District of Missouri’s August 2021 dismissal of the State of Missouri’s challenge to the Central North Dakota Water Supply Project’s environmental review. Missouri v. U.S. Department of Interior, No. 2:20-cv-04018. The Eighth Circuit Court held that the Bureau of Reclamation had the authority to approve the project under the Garrison Diversion Act and that consideration of the downstream impacts was sufficient and appropriate. The water project will divert Missouri River water to central North Dakota.
Conservation Programs: Agricultural Groups Seek Retraction of Proposed Public Lands Rule
On July 5, 2023, sixty-two western livestock grower and associated industry groups, including National Cattlemen’s Beef Association (NCBA) and American Farm Bureau Federation (AFBF), submitted a letter to the U.S. Department of the Interior (DOI) Bureau of Land Management (BLM) requesting that the agency rescind the proposed Conservation and Landscape Health rule, published in the Federal Register on April 3, 2023. The organizations argue that the proposed rule’s “definition of ‘conservation’ . . . exceeds the common understanding of conservation and BLM’s authority,” and that it “set[s] the stage for incremental reductions in grazing and access to federal lands.” Although BLM accepted public comments through July 5, 2023, the organizations stated that they were not adequately consulted before the proposed rule’s publication.
For background, see ALWR—Apr. 17, 2023, “Bureau of Land Management Proposes Rule on Conservation and Landscape Health.”
National Agricultural Policy: USDA Removes ‘Soybeans of Other Colors’ as Grading Factor for Soybean Quality
On July 14, 2023, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a final rule (88 FR 45055) updating the standards for soybeans. Also announced by AMS, the final rule eliminates “Soybeans of Other Colors” (SBOC) as an official factor in grading soybean quality, although the rule retains SBOC for yellow soybeans. The final rule becomes effective September 1, 2023.
Food Safety: FDA Releases Public Inventory of Food Ingredients Not Generally Recognized as Safe
On July 12, 2023, the Food and Drug Administration (FDA) announced a searchable public inventory of substances FDA has determined post-market are not generally recognized as safe (GRAS) for use in food. Additionally, FDA released several lists of chemicals in the food supply that are currently under agency review. According to the announcement, the publicly available “inventory is not intended to be a complete list of food ingredients that may be unlawful if used in food and may not include all post-market activities the agency has taken with respect to unsafe food additives.”
National Agricultural Policy: Agencies Publish Food and Agriculture Risk Review
On July 13, 2023, the U.S. Food and Drug Administration (FDA), along with the U.S. Department of Agriculture (USDA) and the Department of Homeland Security (DHS), announced the availability of a memorandum subtitled 120-Day Food and Agriculture Interim Risk Review. The memorandum identified several risks to U.S. agriculture and provided mitigating actions for each, including industry consolidation; labor, energy, and input shortages; deficient transportation infrastructure; trade disruption; insufficient preparation; and foreign acquisition. The memorandum was created under a directive from the National Security Memorandum on Strengthening the Security and Resilience of United States Food and Agriculture.
National Agricultural Policy: Animal and Plant Health Inspection Service Releases 2022 Impact Report
On July 12, 2023, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Services (APHIS) announced the release of its 2022 Impact Report, which highlights the agency’s achievements in safeguarding agriculture, protecting animals, and promoting global food security in 2022. Some notable accomplishments include inspecting 2.82 billion pounds of fresh produce, performing more than 1.8 million tests on commercial poultry as part of APHIS’s highly pathogenic avian influenza (HPAI) emergency program, collecting 72,500 SARS-CoV-2 testing samples across 36 states and Washington D.C., and issuing two Regulatory Status Review decisions.
Air Quality: CDFA Accepting Pre-Proposals for Methane Emission Reduction Research
On July 6, 2023, the California Department of Food and Agriculture (CDFA) announced that the agency is accepting pre-proposals for the Livestock Enteric Methane Emission Reduction Research Program (LEMER-RP), a new program funded by the California Budget Act of 2022. The program will award a total of $10 million to “demonstration trials evaluating additives and dietary modifications that have the potential to reduce enteric methane emissions in the dairy and livestock sectors.” Pre-proposals will be accepted until August 7, 2023.
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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.
- July 28, 2023, noon–1 pm (ET). Understanding the Basics of USDA Commodity Programs
- Aug. 25, 2023, noon–1 pm (ET). Understanding the Basics of Milk Pricing. Registration available soon
- Sept. 22, 2023, noon–1 pm (ET). Understanding the Basics of Pesticides
Penn State College of Agricultural Sciences Ag Progress Days: Aug. 8–10, 2023
Pennsylvania’s largest outdoor agricultural exposition with over 400 exhibitors from the United States and Canada. The show features educational programs, current research, and the latest innovations in agricultural equipment and technology. Parking and admission are free. Come visit the Center for Agricultural and Shale Law booth in the exhibits!
Resources of Interest:
Nat’l Agric. Law Ctr., Plaintiffs Challenging Florida’s Foreign Ownership Law Seek to Halt Enforcement, Micah Brown (July 11, 2023).
Agric. Law & Tax’n Blog, Recent Happening in Ag Law and the Courts, Roger A. McEowen (July 12, 2023).
Agric. Law & Tax’n Blog, Minnesota Farmer Protection Law – Update, Roger A. McEowen (July 10, 2023).
Univ. Md. Risk Mgmt. Educ. Blog A Group of Southern University Extension Economists Launch Southern Ag Today, (July 13, 2023).
Univ. Md. Risk Mgmt. Educ. Blog Update: USDA Accepting Applications for Farm Borrowers Who Experienced Discrimination, Nicole Cook (July 14, 2023).
Ohio St. Univ. Ext. Farm Off. Blog, Is a Handwritten Will Valid?, Robert Moore (July 14, 2023).
Ohio St. Univ. Ext. Farm Off. Blog, Budget Bill Includes Many Non-Budget Changes for Ag, Peggy Kirk Hall (July 11, 2023).
Tex. A&M Agric. Law Blog, Significant Changes Coming to Texas Right to Farm Statute, Tiffany Dowell (July 10, 2023).
Southern Ag Today, Why is Our Cooperative Struggling?, John Park (July 14, 2023).
Southern Ag Today, U.S. Agricultural Exports to China Soar and Market Share Returns to Pre-Trade War Levels, Jason H Grant, (July 13, 2023).
Southern Ag Today, More Dairy Cow Culling, David Anderson (July 11, 2023).
Subscribe to the Pennsylvania Farm/Food Employers’ Listserv (PFEL)—a human resources networking group for farm and food employers. Send an 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
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
EPA Seeks Public Input on Re-evaluation of the Cleanup Plan for Woodbrook Road Dump Superfund Site (July 14, 2023)
$10 million grant opportunity to support Environmental Justice in Mountains and Plains communities (July 12, 2023)
EPA Regional Administrator Adam Ortiz Statement on Bay Settlement (July 12, 2023)
Join EPA in Rochester to Share Your Views on Great Lakes Restoration and Protection (July 11, 2023)
United States Announces Settlement with J.R. Simplot to Improve Hazardous Waste Management and Reduce Emissions at Idaho Facility (July 11, 2023)
EPA Fines Wichita-Based La Palm Spa Products for Violating Federal Pesticide Law (July 11, 2023)
Biden-Harris Administration Takes Latest Step in National Phasedown of Climate-damaging Hydrofluorocarbons (July 11, 2023)
EPA Settles with Polypeptide Labs over Air Emissions, Hazardous Waste Claims (July 11, 2023)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Restricts PACA Violators in California, Colorado and New York from Operating in the Produce Industry (July 12, 2023)
USDA Files Action Against GoGreen Farms Inc. in Virginia for Alleged PACA Violations (July 12, 2023)
USDA Files Action Against VIP Marketing Inc. in California for Alleged PACA Violations (July 12, 2023)
USDA Announces Funding Available to Support U.S. Sheep Industry (July 11, 2023)
Agricultural Research Service (ARS)
Scientists Build a Healthy Dietary Pattern Using Ultra-Processed Foods (July 11, 2023)
Animal and Plant Health Inspection Service (APHIS)
APHIS Releases 2022 Impact Report (July 12, 2023)
APHIS Releases Research on Sars-Cov-2 Transmission in White-Tailed Deer Throughout the U.S. (July 11, 2023)
APHIS Announces Listening Sessions on Chronic Wasting Disease Herd Certification Program Standards (July 11, 2023)
Foreign Agricultural Service (FAS)
Export Sales to Mexico (July 13, 2023)
Private Exporters Report Sales Activity for Unknown Destinations (July 12, 2023)
Eleven New Agricultural Officers Sworn into Foreign Service (July 10, 2023)
Forest Service
USDA Forest Service invests $20M to restore forests, reduce wildfire risk, and create jobs in 18 states (July 13, 2023)
National Institute of Food and Agriculture (NIFA)
1890 Extension Efforts Supporting Nutrition, Health and Wellness of Individuals, Families and Communities (July 10, 2023)
Natural Resources Conservation Service (NRCS)
NRCS Issues Call for Proposals for New EQIP-WaterSMART Initiative Priority Areas (July 14, 2023)
Cover Crop seeding rates in the Texas Rolling Red Plains (July 10, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register July 10–14, 2023):
Agricultural Marketing Service
88 FR 45055 Final Rule: “United States Standards for Soybeans” (July 14, 2023)
Agriculture Department
88 FR 45238 Notice: “Adoption of Energy Efficiency Standards for New Construction of HUD- and USDA-Financed Housing: Preliminary Determination and Solicitation of Comment; Extension of Comment Period”
88 FR 44775 Notice: “Submission for OMB Review; Comment Request” (July 13, 2023)
88 FR 44251 Notice: “Federal Strategy to Advance Measurement and Monitoring Greenhouse Gas Measurement and Monitoring for the Agriculture and Forest Sectors” (July 12, 2023)
88 FR 44250 Notice: “Submission for OMB Review; Comment Request; Request” (July 12, 2023)
88 FR 44101 Notice: “Submission for OMB Review; Comment Request; Reinstatement” (July 11, 2023)
88 FR 44102 Notice: “Submission for OMB Review; Comment Request; Reinstatement” (July 11, 2023)
88 FR 44102 Notice: “Submission for OMB Review; Comment Request” (July 11, 2023)
88 FR 44101 Notice: “Notice of Request for Public Comment on 2023 Update to Technical Guidelines for Quantifying Greenhouse Gas (GHG) Emissions and Carbon Sequestration at the Entity-Scale for Agriculture and Forestry”
Animal and Plant Health Inspection
88 FR 44252 Notice: “Chronic Wasting Disease Herd Certification Program Standards; Virtual Public Meetings” (July 12, 2023)
Environmental Protection Agency
88 FR 45089 Final Rule: “Addition of Diisononyl Phthalate Category; Community Right-to-Know Toxic Chemical Release Reporting” (July 14, 2023)
88 FR 44237 Proposed Rule: “Air Plan Approval; Pennsylvania; Liberty Borough Area Second 10-Year PM10 Limited Maintenance Plan” (July 12, 2023)
88 FR 44126 Notice: “Pesticide Program Dialogue Committee; Request for Nominations to the Pesticide Program Dialogue Committee” (July 11, 2023)
88 FR 43442 Final Rule: “Benzpyrimoxan; Pesticide Tolerances” (July 10, 2023)
Foreign Agricultural Service
88 FR 43544 Notice: “Fiscal Year 2023 Raw Cane Sugar Tariff-Rate Quota Increase” (July 10, 2023)
International Trade Administration
88 FR 43546 Notice: “Agreement Suspending the Antidumping Duty Investigation on Sugar from Mexico: Final Results of the 2020-2021 Administrative Review” (July 10, 2023)
88 FR 43552 Notice: “Agreement Suspending the Countervailing Duty Investigation on Sugar from Mexico: Final Results of the 2021 Administrative Review” (July 10, 2023)
National Institute of Food and Agriculture
88 FR 44776 Notice: “Notice of Intent to Extend and Revise a Previously Approved Information Collection” (July 13, 2023)
Susquehanna River Basin Commission
88 FR 44435 Notice: “Projects Approved for Consumptive Uses of Water” (July 12, 2023)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.4617 “To direct the Secretary of Agriculture to carry out a program to award grants to eligible entities to carry out projects with the potential to reduce or sequester greenhouse emissions that convert and valorize tree nut harvest by-products into multiple higher value biocarbon products, and for other purposes.” (July 13, 2023)
H.R.4612 “To provide technical assistance to improve infrastructure in foreign markets for United States agricultural commodities.” (July 13, 2023)
H.R.4603 “To provide for the prioritization of projects that provide behavioral and mental health treatment services in selecting grantees under certain rural development programs and extend the substance abuse disorder set-aside and priority under the programs.” (July 12, 2023)
H.R.4593 “To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to increase agricultural representation for United States territories, and for other purposes.” (July 12, 2023)
H.R.4586 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to modify and extend grants for assistive technology programs for farmers with disabilities.” (July 12, 2023)
H.R.4576 “To amend the Clean Air Act to require the Administrator of the Environmental Protection Agency to make available for sale renewable fuel credits, and for other purposes.” (July 12, 2023)
H.R.4559 “To require fair pay for workers employed by companies who provide meat, meat food products, poultry, poultry food products, and processed food to the Federal Government.” (July 11, 2023)
H.R.4547 “To establish a fund to promote the inspection and consumption of shrimp and products containing shrimp or shrimp parts.” (July 11, 2023)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.2326 “A bill to amend the Food and Nutrition Act of 2008 to improve diet quality and nutrition security, and for other purposes.” (July 13, 2023)
S.2322 “A bill to provide additional funds to States for administration of certain nutrition programs, and for other purposes.” (July 13, 2023)
S.2317 “A bill to amend the Agricultural Research, Extension, and Education Reform Act of 1998 and the Food, Agriculture, Conservation, and Trade Act of 1990 to direct the Agricultural Research Service to expand organic research, and for other purposes.” (July 13, 2023)
S.2316 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to establish research and extension grant priorities, and for other purposes.” (July 13, 2023)
S.2301 “A bill to amend the Richard B. Russell National School Lunch Act to require a school food authority to make publicly available any waiver of the Buy American requirement, and for other purposes.” (July 13, 2023)
S.2287 “A bill to amend the Food and Nutrition Act of 2008 to expand the operation of State employment and training programs under that Act, and for other purposes.” (July 13, 2023)
S.2269 “A bill to authorize the Secretary of Agriculture to permit removal of trees around electrical lines on National Forest System land without conducting a timber sale, and for other purposes.” (July 12, 2023)
S.2267 “A bill to amend the Agriculture Improvement Act of 2018 to reauthorize the dairy business innovation initiatives.” (July 12, 2023)
S.2258 “A bill to amend the Food and Nutrition Act of 2008 to permit supplemental nutrition assistance program benefits to be used to purchase additional types of food items.” (July 12, 2023)
S.2250 “A bill to amend the Food Security Act of 1985 to establish a groundwater conservation easement program, and for other purposes.” (July 11, 2023)
S.2244 “A bill to amend the Commodity Credit Corporation Charter Act to require specific congressional authorization for use of the Commodity Credit Corporation, and for other purposes.” (July 11, 2023)
S.2241 “A bill to require the Secretary of Agriculture to conduct research relating to measurement, monitoring, reporting, and verification of greenhouse gas emissions and carbon sequestration, and for other purposes.” (July 11, 2023)
S.2235 “A bill to amend the Animal Health Protection Act to provide compensation for poultry growers and layers in control areas, and for other purposes. (July 11, 2023)
S.2223 “A bill to amend the Food, Conservation, and Energy Act of 2008 to provide families year-round access to nutrition incentives under the Gus Schumacher Nutrition Incentive Program, and for other purposes.” (July 10, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Shapiro Administration Urban Ag Tour Wraps: Feeding Community Strength Through Agriculture (July 14, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 28—July 14, 2023):
Department of Environmental Protection
53 Pa.B. 3705 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Agricultural Commodities Marketing Act Funding”
53 Pa.B. 3706 Notice: “Program Requirements for the Urban Agricultural Infrastructure Grant Program”
Department of Environmental Protection
53 Pa.B. 3769 Notice: “Agricultural Advisory Board Special Meeting Scheduled”
53 Pa.B. 3710 Notice: “Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal”
53 Pa.B. 3769 Notice: “Draft National Pollutant Discharge Elimination System General Permit for Discharges from Small Flow Treatment Facilities (PAG-04)”
Pennsylvania Game Commission
53 Pa.B. 3793 Notice: “Chronic Wasting Disease—Designation of Disease Management Areas and Endemic States and Canadian Provinces Order # 13”
PENNSYLVANIA LEGISLATURE
No actions this week
Contributors:
Victoria Dutterer, Research Assistant
Mary Johnson, Research Assistant
Joshua Narey, Research Assistant
Lonzie Helms, Research Assistant
Audry Thompson, Staff Attorney
