May 14, 2023

Agricultural Law Weekly Review—May 15, 2023

Animal Welfare: U.S. Supreme Court Finds California’s Proposition 12 Swine Confinement Standards Constitutional as Applied to All California-Retailed Pork Regardless of State of Origin 🌾
On May 11, 2023, the U.S. Supreme Court issued a decision in the case of National Pork Producers Council, et al. v. Ross, et al., No. 21-468, affirming the decision of the Ninth Circuit Court of Appeals (No. 20-55631) and dismissing all claims that California’s Proposition 12 swine production confinement standards made applicable to all pork products sold in California, regardless of state-of-origin, violated the U.S. Constitution’s Commerce Clause.

Dairy Policy: NMPF Files FMMO Reform Request
On May 1, 2023, the National Milk Producers Federation (NMPF) submitted a request to the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) for a hearing on a series of federal milk marketing order (FMMO) reform proposals to be applicable nationally to all FMMOs. The reform proposals were approved by the NMPF board and publicly announced on March 7, 2023. The request divides the reforms into five separate proposals and totals fifty-one pages with detailed explanations of each. For background on IDFA’s March 28, 2023, FMMO reform proposal hearing request, see ALWR—Apr. 10, 2023, “Dairy Policy: IDFA Files Petition to Amend Federal Milk Marketing Orders.”

Biotechnology: FDA Grants Investigational Authorization to Washington State University for Gene-Edited Swine
On May 1, 2023, Washington State University (WSU) announced that the U.S. Food and Drug Administration (FDA) granted investigational authorization for five gene-edited pigs to enter the food chain for human consumption. Using the gene-editing tool CRISPR, the five pigs were rendered “surrogate sires,” sterile themselves but capable of being implanted with another male pig’s stem cells. That process creates sperm with the implanting male’s desired traits, which are successfully passed on to offspring. The objective is to quickly produce desirable traits for improved food production. Such offspring have not yet been reviewed by FDA for potential human consumption. FDA has not yet listed WSU’s investigational authorization on its Intentional Genomic Alterations (IGAs) in Animals webpage.

Biotechnology: USDA-Backed Study Produces First Gene-Edited Calf Resistant to Bovine Virus
On May 9, 2023, the U.S. Department of Agriculture (USDA) Agricultural Research Service (ARS) announced that a collaboration between ARS, the Universities of Nebraska-Lincoln and Kentucky, and industry scientists published a study documenting the first gene-edited calf, named Ginger, born resistant to bovine viral diarrhea virus (BVDV), a highly-contagious disease that causes respiratory and intestinal damage and “costs the U.S. cattle sector billions of dollars annually.” According to the announcement, “[t]his promising trait is still in the research phase and no associated beef is entering the U.S. food supply at this time.”

Farm Bill: U.S. House and Senate Agriculture Committees Soliciting Farm Bill Feedback
As of May 9, 2023, the U.S. House Committee on Agriculture has made available a 2023 Farm Bill Feedback form to solicit stakeholder comments on the 2023 Farm Bill. According to media accounts, the form will be available until June 9, 2023. Additionally, the U.S. Senate Committee on Agriculture, Nutrition, and Forestry maintains a Farm Bill input form on its Farm Bill page.

Municipal Regulation: Opportunity Opened for Public Comment on Uniform Construction Code Including the Restrictive Agricultural Building Exemption
On April 29, 2023, the Pennsylvania Department of Labor and Industry published notice in the Pennsylvania Bulletin soliciting public comment until August 29, 2023, on the 2021 International Code Council codes, which includes the Uniform Construction Code applicable statewide in Pennsylvania through the 2004 Pennsylvania Construction Code Act. The review is being conducted after an October 26, 2022, court order permanently enjoining certain provisions on accessibility. However, this public comment opportunity allows agricultural operations to submit comment requesting revision of the agricultural building exemption from the UCC, including allowing entry by the public to an agricultural building. Instructions for commenting are located at the Uniform Construction Code Review and Advisory Council’s website.

Conservation Programs: European Commission Approves Dutch Farm Buyback Schemes to Reduce Nitrogen Emissions
On May 2, 2023, the European Commission approved two Dutch plans to buyout livestock farmers in an effort to reduce nitrogen deposition on “nature conservation areas.” These plans, totaling €1.47 billion, run until February 26, 2028, and will be available to small and medium-sized livestock farmers in the Netherlands who voluntarily close their operations. Additionally, these plans contribute to the European Union’s strategic objectives under the European Green Deal.

Food Labeling: AAFCO Seeks Comments on its Common Food Index
On May 2, 2023, the Association of American Feed Control Officials (AAFCO) announced the establishment of a Common Food Index (CFI) “to aggregate historically safe items, with a broad consensus” that can be used in animal food and during review of ingredients on an animal food label. AAFCO is soliciting comments via their website through June 2, 2023.

 

____________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

 CENTER PROGRAMS & RESOURCES

Events:

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.

  • May 17, 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. Recent in the series:

  • May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes
  • June 23, 2023, noon–1 pm (ET): Understanding the Basics of the Farm Credit System

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.

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. Recent in the series:

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

Podcasts:

Resources of Interest:

Legislative Hearings/Meetings/Reports:

U.S. Sen. Ag. Committee:

U.S. House Ag. Committee Hearings:

Pennsylvania General Assembly Committee Hearings:

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

United States and Philippines Cooperation Highlighted at U.S.-Philippines Food Security Dialogue (May 5, 2023).

USDA Announces Approval of D-SNAP for Tennessee Disaster Areas (May 4, 2023).

Biden-Harris Administration Invests $63M for Fuel Breaks to Protect Communities, Increase Firefighter Safety, as Part of Investing in America Agenda (May 4, 2023).

USDA Announces Approval of D-SNAP for Oklahoma Disaster Areas (May 4, 2023).

Fact Sheet: USDA Is Fighting for Fair, Competitive, and Transparent Markets (May 4, 2023).

USDA Announces Finalists for Twelve New USDA Regional Food Business Centers and $420 Million in Funding to Strengthen Food Supply Chain Infrastructure (May 3, 2023).

USDA Is Providing $130 Million in Assistance to Help Farmers Facing Financial Risk (May 1, 2023).

Biden-Harris Administration Announces $36M to Improve Roads, Trails, Water Quality as part of Investing in America Agenda (May 1, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA orders Florida Garden Supplies, Inc. in Livonia, Michigan to stop sale of unregistered pesticides (May 1, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Settles a Packers and Stockyards Case with Nebraska Beef LTD (May 3, 2023).

USDA Settles a Packers and Stockyards Case with Double Creek Livestock LLC (May 3, 2023).

USDA Announces Finalists for Twelve New USDA Regional Food Business Centers and $420 Million in Funding to Strengthen Food Supply Chain Infrastructure (May 3, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Nebraska (May 2, 2023).

USDA Settles a Packers and Stockyards Case with Geary Livestock Market LLC (May 1, 2023).

USDA Settles a Packers and Stockyards Case with Jarrod Williams LLC (May 1, 2023).

USDA Issues a Packers and Stockyards Complaint against Adam Smith Livestock (May 1, 2023).

USDA Lifts PACA Reparation Sanctions on Florida Produce Business (May 1, 2023).

Animal and Plant Health Inspection Service (APHIS)

APHIS Partners With Greenville Zoo on Zoo and Aquarium Serology Study (May 2, 2023).

Farm Service Agency (FSA)

USDA Announces Signup for New Rice Production Program (May 5, 2023).

USDA is Providing $130 Million in Assistance to Help Farmers Facing Financial Risk (May 1, 2023).

USDA Announces May 2023 Lending Rates for Agricultural Producers (May 1, 2023).

Food and Nutrition Service (FNS)

USDA Announces Approval of D-SNAP for Oklahoma Disaster Areas (May 4, 2023).

USDA Announces Approval of D-SNAP for Tennessee Disaster Areas (May 4, 2023).

SNAP E&T Program Creates Opportunities and Incentivizes Work (May 1, 2023).

Foreign Agricultural Service (FAS)

United States and Philippines Cooperation Highlighted at U.S.-Philippines Food Security Dialogue (May 5, 2023).

Celebrating World Trade Month (May 1, 2023).

National Institute of Food and Agriculture (NIFA)

State of Success: National Montana Day (May 3, 2023).

1890 Scholarship Rekindles Mother of Four’s Dream of Finishing College (May 1, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register May 1–5, 2023):            

Agricultural Marketing Service

88 FR 27685 Final Rule: “Exceptions to Geographic Boundaries” (May 3, 2023).

88 FR 27415 Proposed Rule—Public Comment: “Beef Promotion and Research Order; Reapportionment and Technical Amendment” (May 2, 2023).

88 FR 27431 Notice: “Advisory Committee on Universal Cotton Standards” (May 2, 2023).

Agriculture

88 FR 29077 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Aquaculture Survey.]” (May 5, 2023).

88 FR 28381 Final Rule: “Review and Issuance of Agency Guidance Documents; Removal of Regulations” (May 4, 2023).

88 FR 27857 Notice: “Submission for OMB Review; Comment Request [National Institute of Food and Agriculture: Small Business Innovation Research (SBIR) Program.]” (May 3, 2023).

88 FR 27431 Notice: “Submission for OMB Review; Comment Request [Economic Research Service: Data Security Requirements for Accessing Confidential Data.]” (May 2, 2023).

88 FR 26516 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Plum Pox Compensation.]” (May 1, 2023).

Animal and Plant Health Inspection Service

88 FR 26518 Notice—Public Comment: “Notice of Request for Revision to and Extension of Approval of an Information Collection; National Veterinary Services Laboratories; Bovine Spongiform Encephalopathy Surveillance Program” (May 1, 2023).

88 FR 26517 Notice—Public Comment: “Notice of Availability of a Pest Risk Analysis for the Importation of Fresh Ginseng Roots (Panax ginseng C.A. Mey.) From the Republic of Korea Into the United States” (May 1, 2023).

Environmental Protection Agency

88 FR 29010 Proposed Rule—Public Comment: “O-Benzyl-P-Chlorophenol (OBPCP); Exemption from the Requirement of a Pesticide Tolerance” (May 5, 2023).

88 FR 28427 Final Rule: “Ledprona (CAS# 2433753-68-3) for Use in or on Potato; Temporary Exemption from the Requirement of a Tolerance” (May 4, 2023).

88 FR 28541 Notice: “Cancellation Order for Certain Chlorpyrifos Registrations and Uses” (May 4, 2023).

88 FR 28545 Notice: “Certain New Chemicals or Significant New Uses; Statements of Findings for February 2023” (May 4, 2023).

88 FR 27882 Notice: “Chlorpyrifos; Notice of Intent to Cancel Certain Pesticide Registrations and Amend Registrations to Terminate Certain Uses” (May 3, 2023).

88 FR 26498 Final Rule—Public Comment: “Starch, 1-Octenylbutanedioate, Aluminum Salt; Dextrin, Hydrogen 1-Octenylbutanedioate; and Amylopectin, 2-Hydroxypropyl Ether, Acid-; Exemption from the Requirement of a Tolerance” (May 1, 2023).

88 FR 26495 Final Rule—Public Comment: “Poly (oxy-1,2-ethanediyl), α,α′-[[[4-[2-(4-methyl-2-benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[ω-hydroxy- in Pesticide Formulations; Tolerance Exemption” (May 1, 2023).

Farm Service Agency

88 FR 27432 Notice—Public Comment: “Information Collection Request; Power of Attorney” (May 2, 2023).

Federal Crop Insurance Corporation

88 FR 27509 Notice—Public Comment: “Privacy Act of 1974; System of Records” (May 2, 2023).

Food and Drug Administration

88 FR 27693 Final Rule: “New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications” (May 3, 2023).

88 FR 27818 Proposed Rule—Public Comment: “Filing of Color Additive Petition From Environmental Defense Fund, et al.; Request To Revoke Color Additive Listing for Use of Titanium Dioxide in Food” (May 3, 2023).

88 FR 26561 Notice: “Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements; Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request; Reopening of the Comment Period” (May 1, 2023).

Food and Nutrition Service

88 FR 27857 Notice—Public Comment: “Agency Information Collection Activities: Proposed Collection; Comment Request-The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) Breastfeeding Award of Excellence” (May 3, 2023).

Food Safety and Inspection Service

88 FR 29077 Notice—Public Comment: “Availability of FSIS Ready-To-Eat Fermented, Salt-Cured, and Dried Products Guideline” (May 5, 2023).

88 FR 26518 Notice: “National Advisory Committee on Microbiological Criteria for Foods; Notice of Public Meeting” (May 1, 2023).

International Trade Administration

88 FR 29089 Notice: “Phosphate Fertilizers From the Kingdom of Morocco: Preliminary Results of the Countervailing Duty Administrative Review, 2020-2021″ (May 5, 2023).

88 FR 28491 Notice: “Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results and Final Determination of No Shipments of Antidumping Duty Administrative Review; 2021-2022″ (May 4, 2023).

88 FR 28505 Notice: “Phosphate Fertilizers From the Russian Federation: Preliminary Results and Partial Rescission of the Countervailing Duty Administrative Review; 2020-2021″ (May 4, 2023).

Rural Business-Cooperative Service

88 FR 27434 Notice—Public Comment: “Notice of Funding Opportunity for the Delta Health Care Services Grant Program for Fiscal Year 2023” (May 2, 2023).

Rural Housing Service

88 FR 28483 Notice: “Community Facilities Technical Assistance and Training Grant Program for Fiscal Year 2023; Correction” (May 4, 2023).

88 FR 28469 Notice: “Consolidated Multifamily Housing Technical Assistance Grant Program Notice of Funding Availability (NOFA) FY 2023” (May 4, 2023).

88 FR 28459 Notice: “Rural Community Development Initiative (RCDI) for Fiscal Year 2023”
(May 4, 2023).

88 FR 27441 Notice—Public Comment: “Notice of Request for Approval of a New Information Collection” (May 2, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.3126 “To amend the Food and Nutrition Act of 2008 to exclude from income certain funds received under the Social Security Act.” Referred to the House Committee on Agriculture. (May 5, 2023).

H.R.3108 “To reform and enhance the pay and benefits of Federal wildland firefighters, and for other purposes.” Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Natural Resources, and Agriculture. (May 5, 2023).

H.R.3107 “To direct the Secretary of the Interior to establish the Federal Interagency Council on Outdoor Recreation.” Referred to the Committee on Natural Resources, in addition to the Committee on Agriculture. (May 5, 2023).

H.R.3087 “To amend the Food and Nutrition Act of 2008 to exempt workforce training dollars as income for supplemental nutrition assistance program beneficiaries.” Referred to the House Committee on Agriculture. (May 5, 2023).

H.R.2811 “Limit, Save, Grow Act of 2023.” Senate – 05/04/2023 Committee on the Budget. Hearings held. (May 4, 2023).

H.R.3037 “Closing the Meal Gap Act of 2023.” Referred to the House Committee on Agriculture. (May 2, 2023).

H.R.3036 “To amend the Food Security Act of 1985 to modify the delivery of technical assistance, and for other purposes.” Referred to the House Committee on Agriculture. (May 2, 2023).

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

S.1474 “A bill to amend the Food and Nutrition Act of 2008 to establish a dairy nutrition incentive program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 4, 2023).

S.1400 “A bill to amend the Food Security Act of 1985 to modify the delivery of technical assistance, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 2, 2023).

S.1389 “A bill to reform rural housing programs, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 1, 2023).

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

Agriculture Department Warns Consumers To Discard ‘A Joy’ Brand Contaminated Raw Milk Products Sold In Susquehanna County (May 5, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 18—May 6, 2023): 

Department of Conservation and Natural Resources

53 Pa.B. 2420 Notice: “Snowmobile and ATV Advisory Committee Public Meeting.”

Department of Environmental Protection 

53 Pa.B. 2421 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 2484 Notice: “Availability of Technical Guidance.”

53 Pa.B. 2485 Notice: “Bid Opportunity.”

53 Pa.B. 2485 Notice: “Planning Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988.”

53 Pa.B. 2485 Notice: “Stream Redesignation Evaluation of Brodhead Creek; Water Quality Standards Review.”

PENNSYLVANIA LEGISLATURE

HB 1122 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, further providing for penalties and prohibiting certain food packaging.” Referred to Agriculture and Rural Affairs [House]. (May 5, 2023).

HB 1114 “An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in offenses against public order and decency, further providing for the offense of transporting animals in cruel manner.” Referred to Agriculture and Rural Affairs [House]. (May 5, 2023).

HB 295 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in soil and plant amendment, further providing for registration, for inspection fees, for tonnage reports and for disposition of funds.” Removed from table [House]. (May 3, 2023).

HB 156 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in fertilizer, further providing for definitions and for application of fertilizer to turf.” Third consideration and final passage (201-0) [House]. (May 3, 2023).

HB 157 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in Pennsylvania Preferred® Trademark, further providing for definitions, for Pennsylvania Preferred® trademark, for licensee qualification, for duties and authority of department, for trademark license agreement, application and licensure process, for costs, for Pennsylvania Preferred® Trademark Licensing Fund, for injunctive relief, for rules and regulations and for purpose, repealing provisions relating to definitions and further providing for qualified veterans and qualified veteran business entities.” Third consideration and final passage (201-0) [House]. (May 2, 2023).

 

Written by:     
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Brook Duer—Staff Attorney