June 20, 2023

Agricultural Law Weekly Review—June 19, 2023

Pesticides/Herbicides: Environmental Groups Challenge EPA’s Registration of Enlist One and Enlist Duo 🌾
On June 6, 2023, the Center for Food Safety and two other advocacy groups filed a complaint in the U.S. District Court for the District of Columbia seeking injunctive and declaratory relief against the U.S. Environmental Protection Agency’s (EPA) registration decision for Enlist One and Enlist Duo. Ctr. for Food Safety v. U.S. Envtl. Prot. Agency, No. 1:23-cv-01633. In January 2022, EPA granted an extended seven-year registration for the two herbicides in 34 states, which may be expanded to six other states pending a 60-day public comment period on a draft biological opinion. The complaint claims that EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act and the Endangered Species Act by extending the registration.

Pesticides/Herbicides: New York Legislature Passes Neonic-Coated Seed Ban, Sent to Governor for Approval
On June 9, 2023, the New York legislature passed the “Birds and the Bees Protection Act” (A.7640/S.1856A) and sent the bill to Governor Kathy Hochul for approval. The bill, once enacted, would be the first in the United States to prohibit the use of neonicotinoid pesticides (“neonics”). According to Texas A&M, neonics are “new nicotine-like insecticides” and “are much more toxic to invertebrates, like insects, than . . . to mammals, birds and other higher organisms.” Additionally, according to recent EPA analyses, neonics threaten approximately 11% of the federally recognized endangered species. The bill would prohibit the sale or distribution of “any corn, soybean, or wheat seeds coated or treated with” neonics, beginning January 1, 2027.

National Agricultural Policy: USDA Issues Waiver of 60-Day Ownership Requirement for Livestock Risk Protection Program
On June 9, 2023, the U.S. Department of Agriculture’s (USDA) Risk Management Agency (RMA) published a bulletin suspending the 60-day ownership requirement for the Livestock Risk Protection (LRP) program. Under the LRP, producers must own their livestock within the last 60 days of their insurance coverage. According to the bulletin, USDA will allow producers to apply to waive the 60-day requirement due to harsh drought conditions, which has caused feed shortages and prompted producers to sell their livestock sooner than normal. Producers will be able to apply for a waiver until December 31, 2024.

Checkoff Programs: Plant-Based Food Advocacy Group Files Complaint Over ‘Wood Milk’ Check-Off Advertisement
On May 25, 2023, the Physicians Committee for Responsible Medicine (PCRM) filed a complaint with the U.S. Department of Agriculture’s (USDA) Office of Inspector General  claiming that the “Wood Milk” advertising campaign created by the National Fluid Milk Processor Promotion Program (MilkPEP), a USDA checkoff program, violates U.S. commodity marketing laws by criticizing plant-based milks. PCRM, an organization “dedicated to saving and improving human and animal lives through plant-based diets,” alleges that the campaign uses a fictional “Wood Milk” to represent all plant-based milks, which the campaign says are “fake” and have “zero nutritional value.” PCRM claims that these statements violate several laws, including 7 U.S.C. § 7414(d)(3), which prohibits advertising that “may be false or misleading or disparaging to another agricultural commodity.” PCRM requests an investigation and a retraction of the campaign.

Air Quality: Tully Environmental to Pay $50K for Biosolids Smells in DEP Consent Agreement
On May 25, 2023, Tully Environmental Inc. (Tully), operator of the Schuylkill County, Pennsylvania-based biosolid composting facility Natural Soil Products, agreed to a consent order with the Pennsylvania Department of Environmental Protection (DEP) for recurring odor violations. Between September 2022 and May 2023, DEP’s Emergency Response Team investigated odor complaints over 15 times. After issuing two separate Notices of Violation, DEP determined that Tully had violated both the Air Pollution Control Act and the Solid Waste Management Act and had “failed to control and minimize conditions . . . harmful to the environment or public health . . . in violation of 25 Pa. Code §§ 281.201(b) and 281.218(b).”  Under the consent order, Tully will pay a $50,000 civil penalty, submit weekly reports to DEP, and take actions to reduce odors from its facility. 

Food Labeling: Rhode Island Beef Processor Pleads Guilty to Violating Federal Meat Inspection Act
On June 8, 2023, the U.S. Department of Justice announced that Rhode Island Beef and Veal and owner Michael Quattrucci entered guilty pleas for falsely representing meat as approved by the U.S. Department of Agriculture (USDA) under the Federal Meat Inspection Act. United States v. Rhode Island Beef and Veal Inc., No. 1:20-cr-00093. According to the DOJ, “a USDA supervisor visited the plant and found employees packing various cuts of meat and applying USDA marks of inspections to the meat” when “[n]o inspector was present, as is required by law for the[] marks to be applied.” Quattrucci is scheduled to be sentenced on July 26, 2023 and Rhode Island Beef and Veal is scheduled to be sentenced on September 7, 2023.

Food Safety: FDA Updates Equivalence Processes, Will Determine Grade A Dairy Equivalences from Canada, EU, New Zealand
On June 5, 2023, the U.S. Food and Drug Administration (FDA) updated its Equivalence and Food Safety webpage to include its general process for an equivalence determination, which can involve a general assessment of the food control system, an on-site evaluation of the system, and rules finalizing the determination when applicable. According to the update, FDA is currently determining the equivalence of Grade A dairy from Canada, the European Union, and New Zealand.

Production Contracts: USDA Announces Procurement Forecast Tool
On June 9, 2023, the U.S. Department of Agriculture (USDA) announced a new tool to connect small and disadvantaged industry members with various contracting opportunities. USDA’s Procurement Forecast catalogs these contracting opportunities and provides relevant contact information and prospective price ranges. According to the announcement, the eleven USDA agencies that issue purchase solicitations, including the Agricultural Marketing Service (AMS) and the Food and Nutrition Service (FNS), have and will continue to post opportunities to the Procurement Forecast.

Agribusiness: Cargill to Sell Chinese Poultry Business to DCP Capital
On June 1, 2023, Paul, Weiss Mergers & Acquisitions confirmed Cargill Inc.’s sale of Cargill Protein China to DCP Capital later this year through an announcement that Paul, Weiss is advising DCP Capital in the acquisition process. According to the announcement, the “acquisition includes all of Cargill’s chicken farms in China and related processing sites.” Although the sale is subject to regulatory approvals, the parties expect it to close later this year. Neither party has disclosed the transaction price.

Water Quality: 2022 Chesapeake Bay and Watershed Report Card Released
On June 6, 2023, the University of Maryland Center for Environmental Science (UMCES) released its 2022 Chesapeake Bay and Watershed Report Card. In its announcement, UMCES noted that the health of the Chesapeake Bay is improving overall, but some regions, mainly tributaries, received poor scores. Previous report cards are compiled on the UMCES Eco Health Report Cards Website.

 

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CENTER PROGRAMS & RESOURCES

Events:

An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.

June 21, 2023, noon–1 pm (ET). Register.

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:

June 23, 2023, noon–1 pm (ET). Understanding the Basics of the Farm Credit System

July 28, 2023, noon–1 pm (ET). Understanding the Basics of USDA Commodity Programs. Registration available soon.

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef), free webinar presented in partnership with the National Agricultural Law Center available for on-demand viewing, recorded May 17, 2023

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. Recent in the series:

1st Quarter 2023—Int’l Dairy Trade: Canada-U.S. USMCA Arbitration Round 2, recorded April 18, 2023: Part 1—Industry Round Up; Part 2—International Dairy Trade: USMCA Dispute Resolution Arbitration

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

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

Biden-Harris Administration Announces $43 Million Investment to Advance Innovation in Wood Products and Wood Energy Economies through Investing in America Agenda  (June 9, 2023)

USDA Announces Tool to Assist Small Businesses and Individuals in Identifying Procurement Opportunities (June 9, 2023)

U.S. Department of Agriculture Announces Key Staff Appointments (June 7, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Announces $52 Million WIFIA loan to Pittsburgh Water and Sewer Authority (June 9, 2023)

EPA Proposes Ban on All Consumer and Many Commercial Uses of Perchloroethylene to Protect Public Health (June 8, 2023)

Biden-Harris Administration Invests $115 million in Funding to Respond to the Drinking Water Emergency in Jackson, Mississippi (June 6, 2023)

Anheuser-Busch, LLC Required to Improve Safety at Eleven Breweries (June 5, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Announces $23 Million in Grant Funding Available to Support the U.S. Dairy Industry (June 8, 2023)

Animal and Plant Health Inspection Service (APHIS)

APHIS Issues Regulatory Status Review Response: Bayer CropScience Corn (June 7, 2023)

Farm Service Agency (FSA)

USDA Celebrates SNAP Online Purchasing Now Available in All 50 States  (June 9, 2023)

Food Safety and Inspection Service (FSIS)

Food Safety Is Everyone’s Business (June 7, 2023)

Foreign Agricultural Service (FAS)

Export Sales to Unknown Destinations  (June 9, 2023)

Export Sales to Spain (June 6, 2023)

USDA Under Secretary Kicks Off Agribusiness Trade Mission to Japan (June 5, 2023)

Forest Service (FS)

USDA Announces $43 Million Investment to Advance Innovation in Wood Products and Wood Energy Economies through Investing in America Agenda (June 9, 2023)

National Institute of Food and Agriculture (NIFA)

NIFA Invests $9.5 Million to Promote Innovation in Animal Reproduction (A1211) (June 7, 2023)

NIFA Invests $6.7 Million to Advance the Sustainable Bioeconomy through Biobased Products (A1414) (June 7, 2023)

NIFA Invests $16.2 Million in Innovative Plant Breeding Research (AFRI A1141) (June 7, 2023)

State of Success: National Oklahoma Day (June 7, 2023)

USDA’s Gus Schumacher Nutrition Incentive Program (GusNIP) Creates $85m Economic Impact, Increases Fruit and Vegetable Intake, and Decreases Food Insecurity in Year 3 (June 6, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register May 29–June 2, 2023):            

Department of Agriculture

88 FR 37846 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” (June 9, 2023).

88 FR 37846 Notice: “Submission for OMB Review; Comment Request” (June 9, 2023).

88 FR 37506 Notice: “Submission for OMB Review; Comment Request” (June 8, 2023).

88 FR 37505 Notice: “Submission for OMB Review; Comment Request” (June 8, 2023).

88 FR 37006 Notice: “Submission for OMB Review; Comment Request” (June 6, 2023).

88 FR 37005 Notice: “Submission for OMB Review; Comment Request” (June 6, 2023).

88 FR 36526 Notice: “Submission for OMB Review; Comment Request” (June 5, 2023).

88 FR 37505 Notice: “Meeting of the National Organic Standards Board” (June 8, 2023).

Animal and Plant Health Inspection Service

88 FR 37506 Notice: “Notice of Decision To Authorize the Importation of Phalaenopsis spp. Orchid Plants for Planting in Approved Growing Media From the Republic of Costa Rica Into the United States” (June 8, 2023).

Environmental Protection Agency

88 FR 37875 Notice: “Chlorpyrifos; Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses” (June 9, 2023).

88 FR 37878 Notice: “Notice of Draft National Pollutant Discharge Elimination System (NPDES) General Permit for the Eastern Portion of the Outer Continental Shelf (OCS) of the Gulf of Mexico (GEG460000); Availability of Draft National Environmental Policy (NEPA) Categorial Exclusion (CatX)” (June 9, 2023).

88 FR 37841 Proposed Rule: “Addressing PFAS in the Environment; Extension of Comment Period” (June 9, 2023).

88 FR 37769 Final Rule: “Sedaxane; Pesticide Tolerances” (June 9, 2023).

88 FR 37534 Notice: “Proposed Agency Information Collection Request; Comment Request; Responsible Appliance Disposal Program (Renewal)” (June 8, 2023).

88 FR 37155 Final Rule: “Confidential Business Information Claims Under the Toxic Substances Control Act (TSCA)” (June 7, 2023).

88 FR 37064 Notice: “Public Meeting of the Science Advisory Board Environmental Justice Screen (EJScreen) Review Panel” (June 6, 2023).

88 FR 36524 Notice: “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units Review; Withdrawal of Proposed Provision Removing Pyrolysis/Combustion Units” (June 5, 2023).

Fish and Wildlife Service

88 FR 37899 Notice: “Receipt of Incidental Take Permit Application for Participation in the General Conservation Plan for Oil and Gas Activities; Draft Categorical Exclusion for the Conoco Philips Soil Remediation Project; Santa Barbara County, CA” (June 9, 2023).

88 FR 37556 Notice: “Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization for Southcentral Alaska Stock of Northern Sea Otters in Whittier, Alaska” (June 8, 2023).

88 FR 37490 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush” (June 8, 2023).

88 FR 36610 Notice: “Endangered and Threatened Wildlife and Plants; Draft Habitat Conservation Plan and Draft Categorical Exclusion; Monterey County Water Resources Agency Salinas River Lagoon and Sandbar Management Project, Monterey County, CA” (June 5, 2023).

Foreign Agricultural Service

88 FR 37507 Notice: “Notice of Intent To Renew Agricultural Policy Advisory Committee (APAC) and the Related Agricultural Technical Advisory Committees (ATACs) for Trade and Continuation of Requests for Nominations for the Agricultural Trade Advisory Committees” (June 8, 2023).

88 FR 37485 Proposed Rule: “Organization, Functions, and Procedures; Functions and Procedures; Forest Service Functions” (June 8, 2023).

International Trade Administration

88 FR 37510 Notice: “Fresh Garlic From the People’s Republic of China: Initiation of Circumvention Inquiry on the Antidumping Duty Order” (June 8, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.3990 “To amend the Forest and Rangeland Renewable Resources Research Act of 1978 to modify the forest inventory and analysis program.” (June 9, 2023).

H.R.3984 “To amend the Agriculture Improvement Act of 2018 to reauthorize the feral swine eradication and control pilot program, and for other purposes.” (June 9, 2023).

H.R.3973 “To establish judicial ethics.” (June 9, 2023).

H.R.3972 “To amend the Food Security Act of 1985 to add flood prevention and mitigation measures to purposes of the Regional Conservation Partnership Program, and for other purposes.” (June 9, 2023).

H.R.3964 “To increase access to broadband telecommunications services in rural areas, to increase minimum broadband speeds in rural areas, and to provide grants, loans, and loan guarantees to finance the costs of the construction, improvement, and acquisition of facilities and equipment for broadband service in rural areas, and other purposes.” (June 9, 2023)

H.R.3957 “To authorize the Secretary of Agriculture to make grants to modify and upgrade structures to serve as interim and permanent housing to accommodate unhoused individuals with pets, and for other purposes.” (June 9, 2023).

H.R.3955 “To establish the Increasing Land, Capital, and Market Access Program within the Farm Service Agency Office of Outreach and Education.” (June 9, 2023).

H.R.3951 “To establish in the Department of Agriculture an Office of Aquaculture, and for other purposes.” (June 9, 2023).

H.R.3922 “To authorize the Secretary of Agriculture to carry out an initiative to develop, expand, and improve rural childcare, and for other purposes.” (June 7, 2023).

H.R.3905 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to reauthorize the Genome to Phenome Initiative, and for other purposes.” (June 7, 2023).

H.R.3904 “To amend the Federal Crop Insurance Act to promote crop insurance support for beginning farmers and ranchers, and for other purposes.” (June 7, 2023).

H.R.3903 “To amend the Food and Nutrition Act of 2008 to enhance the administrative and judiciary process for SNAP retailers.” (June 7, 2023).

H.R.3902 “To amend the Department of Agriculture Reorganization Act of 1994 to provide for a set-aside for socially disadvantaged farmers and ranchers for grants to support urban agriculture and innovative production, and for other purposes.” (June 7, 2023).

H.R.3894 “To amend the Animal Welfare Act to prohibit commercial greyhound racing, live lure training, and open field coursing, and for other purposes.” (June 7, 2023).

H.R.3877 “To amend the Department of Agriculture Reorganization Act of 1994 to establish an Office of Small Farms, and for other purposes.” (June 6, 2023).

H.R.3871 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to include as a high-priority research and extension area research on microplastics in land-applied biosolids on farmland.” (June 6, 2023).

H.R.3867 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to include spotted lanternfly control research and development as high-priority research and extension initiative, and for other purposes.” (June 6, 2023).

H.R.3859 “To amend the Animal Welfare Act to increase protections for animals, and for other purposes.” (June 6, 2023).

H.R.3856 “To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to include in the high-priority research and extension initiatives research on mango plant health, and for other purposes.” (June 6, 2023).

H.R.3853 “To provide lasting protection for inventoried roadless areas within the National Forest System.” (June 6, 2023).

H.R.3849 “To amend the Farm Security and Rural Investment Act of 2002 to modify provisions relating to the rural energy savings program.” (June 6, 2023).

H.R.3847 “To Improve nutrition assistance for people experiencing homelessness, and for other purposes.” (June 6, 2023).

H.R.3844 “To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to provide for an additional goal of the Agriculture Advanced Research and Development Authority (AGARDA) to enhance the role of agriculture in innovative sustainability solutions.” (June 6, 2023).

H.R.3829 “To streamline the process for institutions of higher education to research marijuana.” (June 5, 2023).

H.R.3815 “To amend the Federal Crop Insurance Act to require the research and development of a policy to insure the production of mushrooms.” (June 5, 2023).

H.R.3814 “To direct the Secretary of Agriculture to carry out a program to award grants to eligible entities to carry out projects that further agricultural resiliency and modernization, and for other purposes.” (June 5, 2023).

H.R.3809 “To include cybersecurity technical assistance in the national rural water and wastewater circuit rider program of Department of Agriculture.” (June 5, 2023).

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

S.1870 “A bill to amend the Commodity Exchange Act to prohibit interference in United States digital commodity markets by entities organized or established in a foreign adversary, and for other purposes.” (June 7, 2023).

S.1867 “A bill to authorize the Secretary of Agriculture to carry out an initiative to develop, expand, and improve rural childcare, and for other purposes.” (June 7, 2023).

S.1853 “A bill to amend the Healthy Forests Restoration Act of 2003 to reauthorize and improve the Water Source Protection Program, and for other purposes.” (June 7, 2023).

S.1850 “A bill to amend the Commodity Exchange Act to extend the jurisdiction of the Commodity Futures Trading Commission to include the oversight of markets that set or report reference prices for aluminum premiums, and for other purposes.” (June 7, 2023).

S.1846 “A bill to amend the Agricultural Act of 2014 to reauthorize and rename the Acer Access and Development Program.” (June 7, 2023).

S.1842 “A bill to amend the Federal Food, Drug, and Cosmetic Act with respect to the regulation of zootechnical animal food substances.” (June 7, 2023).

S.1837 “A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to include spotted lanternfly control research and development as a high-priority research and extension initiative, and for other purposes.” (June 7, 2023).

S.1836 “A bill to direct the Secretary of Agriculture to review the Cattle Fever Tick Eradication Program, and for other purposes.” (June 6, 2023).

S.1821 “A bill to amend the Farm Security and Rural Investment Act of 2002 to modify provisions relating to the rural energy savings program.” (June 6, 2023).

S.1816 “A bill to amend the Federal Crop Insurance Act to require research and development regarding a policy to insure the production of mushrooms.” (June 6, 2023).

S.1809 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to establish an Office of Small Farms, and for other purposes.” (June 6, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Shapiro Administration Celebrates The Senate Agriculture Committee’s Unanimous Vote To Protect Pennsylvanians And Their Pets With The Dog Law Modernization Bill (June 6, 2023).

PA Ice Cream Trail Sweetens Summer With Record Number Of Stops (June 6, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 123—June 10, 2023): 

Department of Environmental Protection

53 Pa.B. 3115 Applications: “The Pennsylvania Clean Streams Law and The Federal Clean Water Act”

53 Pa.B. 3170 Notices: “Environmental Assessment Approval for PENNVEST Funding Consideration”
53 Pa.B. 3166 Notices: “Suspension of Enforcement of the Pennsylvania Heavy-Duty Diesel Emissions Control Program”

Fish and Boat Commission

53 Pa.B. 3168 Notices: “Special Regulation Designations”

53 Pa.B. 3169 Notices: “Temporary Change to Fishing Regulations; Kahle Lake, Clarion and Venango Counties”

PENNSYLVANIA LEGISLATURE

HB 1345 “An Act amending the act of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, in other pollutions and potential pollution, further providing for potential pollution.” Referred to Environmental Resources and Energy, June 9, 2023 [House] (June 10, 2023).

 

Written by:
Victoria Dutterer—Research Assistant 
Mary Johnson—Research Assistant 
Josh Narey—Research Assistant 
Lonzie Helms—Research Assistant 
Sergio Porras—Research Assistant 
Audry Thompson—Staff Attorney