May 17, 2024

Agricultural Law Weekly Review—May 17, 2024

Upcoming Webinar!

New Podcast Episodes!

Food Safety: FDA Publishes Final Rule for Pre-Harvest Agricultural Water
On May 6, 2024, the U.S. Food and Drug Administration (FDA) published in the Federal Register a final rule (89 FR 37448), which amends the requirements and procedures for assessing “pre-harvest agricultural water” used on covered produce, other than sprouts. Under the final rule, producers must prepare a written agricultural water assessment for each agricultural water system used for “growing activities” on covered produce “at the beginning of the growing season, as appropriate, but at least once annually.” As part of the assessment, producers must inspect and maintain their water systems and consider several factors—including “the location and nature of the water source,” “type of water distribution system,” “crop characteristics,” and “degree of protection from possible sources of contamination”—to “identify conditions . . . reasonably likely to introduce known or reasonably foreseeable hazards into or onto covered produce,” unless the water meets specified exemptions. Initially proposed in December 2021 (86 FR 69120), the final rule no longer “require[s] farms to establish a Microbial Water Quality Profile (MWQP) for each water source used for non-sprout covered produce” from “water samples . . . representative of the particular use of the water and collected as close in time as practicable, but prior to, harvest”—which was deemed “[d]ifficult to implement because covered farms with multiple pre-harvest agricultural water sources [we]re required to establish individual [MWQPs] for each . . . source.” Also announced by FDA, the final rule phases in three compliance dates based on farm size: April 7, 2025—large farms; April 6, 2026—small farms; and April 5, 2027—very small farms.

Avian Influenza: USDA Announces Additional Funding to Address H5N1
On May 10, 2024, the U.S. Department of Agriculture (USDA), announced that the agency will provide additional funding and resources to address and prevent the spread of H5N1 (Highly Pathogenic Avian Influenza A) in dairy cattle, including payments up to

  • “$2,000 per affected premises per month for producers who supply PPE to employees and/or provide outerwear uniform laundering” if they participate in the agency’s workplace and farmworker study,
  • “$1,500 per affected premises for producers to develop biosecurity plans based on existing secure milk supply plans,”
  • “$2,000 per affected premises per month for producers who “establish[] a system to heat treat all waste milk before disposal,” and
  • “$10,000 per affected premises” for associated H5N1 veterinary costs.

USDA also states that it will make available $98 million in existing funding to the agency’s Animal and Plant Health Inspection Service (APHIS) to “work with and support the actions of States with affected herds as they consider movement restrictions within their borders” and notes that, “[i]f needed, USDA has the authority, with Congressional notification, to make additional funds available.” Additionally, USDA states that it will compensate producers for lost milk production through the Emergency Assistance for Livestock, Honey Bees, and Farm-raised Fish (ELAP) program, which the agency states is a “compensation program . . . distinct from the strategy to contain the spread.” According to the announcement, “[a]dditional details on how producers can access and apply for the financial tools [are]forthcoming.”

Avian Influenza: PDA Amends Cattle Movement Guidelines, Requires Nasal Swabs for Cattle Over 18 Months Old
On May 9, 2024, the Pennsylvania Department of Agriculture (PDA) updated its Summary Guidelines for cattle import into Pennsylvania to require influenza A nasal swab testing within seven days of movement only for non-lactating animals “over 18 months of age for states with a current positive case,” previously required for such animals over one year of age. More information can be found on PDA’s Avian Influenza webpage. For background, see ALWR—Apr. 10, 2024, “Pennsylvania Department of Agriculture Issues HPAI Quarantine Order for Dairy Cattle.”

Biosecurity: Pennsylvania Passes Law, Allows PDA to Require Biosecurity Information Posting
On May 8, 2024, Pennsylvania Governor Josh Shapiro signed into law SB 979 (2024 Act 15), which grants the Pennsylvania Department of Agriculture (PDA) “authority to specifically require the posting of dangerous transmittable disease information at domestic animal and feed locations where animals and feed are offered for public sale.” According to the legislation’s accompanying memorandum, although PDA “has broad authority to issue quarantines and regulate the keeping of domestic animals to exclude or contain a dangerous transmissible disease there [we]re no provisions in law to provide information to the public on how to manage domestic animals to prevent or mitigate disease” and, as such, “it [was] a retailer’s choice to provide such information, even if . . . encouraged and provided by a regulatory authority.” The new law became effective upon the governor’s approval.

Conservation Programs: Sustainable Aviation Fuel Tax Credit Includes ‘Climate Smart Agriculture’ Practices
On April 30, 2024, the U.S. Department of the Treasury and Internal Revenue Service (IRS) published guidance on the Sustainable Aviation Fuel (SAF) Credit, which “incorporates a USDA pilot program to encourage the use of certain Climate Smart Agriculture (CSA) practices for SAF feedstocks.” Also announced by the agency, the guidance provides a “greenhouse gas reduction credit” for jet fuel made from corn and soybeans if the crops were produced using “certain CSA practices,” including no-till and cover crop practices and, for corn, if produced using “enhanced efficiency fertilizer” practices. The IRS states that the CSA “pilot program [is] specific to the 40B credit, which is in effect for 2023 and 2024.” According to the IRS, “[t]o credit CSA practices in the Clean Fuel Production Credit (45Z) . . . available in 2025, the agencies will do further work on modeling, data . . . assumptions . . . [and] verification” to develop a new standard for the 45Z tax credit.

Ag Transportation: Surface Transportation Board Finalizes ‘Reciprocal Switching for Inadequate Service’ Rule
On May 7, 2024, the Surface Transportation Board (STB) published in the Federal Register a final rule (89 FR 38646) titled “Reciprocal Switching for Inadequate Service,” also announced by the STB on April 30, 2024. The new regulations “set[] forth a path for shippers and receivers to petition the Board for the prescription of a reciprocal switching agreement.” STB states that “reciprocal switching agreements will allow shippers or receivers to gain access to an additional line haul carrier, while still allowing the incumbent carrier to compete for the customer’s traffic.” Additionally, “reciprocal switching orders by the Board will be for a minimum of three years and a maximum of five years.” STB states that the rule focuses on service issues reform, but this does “not foreclose[] further consideration of additional reforms geared toward increasing competitive options.” The final rule is effective September 4, 2024. For background, see ALWR—Sept. 18, 2023 “Surface Transportation Board Publishes ‘Reciprocal Switching for Inadequate Service’ Notice of Proposed Rulemaking.”

Pesticide/Herbicides: EPA Opens Public Comment Period for Bayer’s Proposed Dicamba Label New Use
On May 3, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (89 FR 36816) making available a 30-day comment period, as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for Bayer CropScience LP’s proposed label and endangered species use limitations allowing a new use pattern for its dicamba-based KHNP0090 on dicamba-tolerant soybeans and cotton (EPA-HQ-OPP-2024-0154). Also announced by EPA, the proposed label would not allow “over the top” application for dicamba-tolerant soybeans, but “would allow application . . . before, during, or immediately after planting until emergence of the seedling, but no later than June 12 of each year.” For dicamba-tolerant cotton, the label would allow the same application—and “over the top” application—until July 30 each year. The label is available for public comment until June 3, 2024.

Pesticides/Herbicides: EPA Publishes Proposed Acephate Interim Decision, ‘Cancels All but One Use’
On April 30, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (89 FR 34241) announcing the availability of the agency’s proposed interim decisions for several pesticides, including acephate—commonly used on cotton and soybeans (EPA-HQ-OPP-2008-0915). Also announced by EPA, the agency’s proposed acephate interim decision would “cancel all but one use of the pesticide,” only allowing “the use of acephate for tree injection . . . on trees that do not produce food for human consumption.” EPA states that its “decision is based on [its] updated human health draft risk assessment and drinking water assessment . . . which showed significant dietary risks from drinking water for currently registered uses of acephate” and that the pesticide’s use for tree injection “does not contribute to drinking water exposure . . . [poses] no risks for workers, and, with label changes, would not pose risks to the environment.” The proposed interim decision is available for public comment until July 1, 2024.

Pesticides/Herbicides: EPA Publishes Herbicide Strategy Update
On April 16, 2024, the U.S. Environmental Protection Agency (EPA) announced the publication of an update to its draft Herbicide Strategy (EPA-HQ-OPP-2023-0365) to fulfill the agency’s Endangered Species Act (ESA) obligations, which “EPA would apply . . . when issuing new active ingredient registrations or registration review decisions under [the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)].” According to the announcement, the updates comprise three categories:

  • “Making the strategy easier to understand,” including condensing the nine points of mitigation into “four tiers—none, low, medium, high—to describe the amount of mitigation that may be needed for each herbicide,”
  • “Increasing flexibility for growers . . . [by] expand[ing] . . . mitigation measures, especially for specialty crops such as cherries and mint, to include new measures such as erosion barriers, reservoir tillage, and soil carbon amendments,” and
  • “Reducing the amount of mitigation that may be needed when growers have already adopted voluntary practices to reduce pesticide runoff or where runoff potential is lower due to geography” including potential elimination of additional measures “in areas of the country with flat lands or minimal precipitation.”

Additionally, EPA states that “the maps used in the draft strategy . . . are often too broad, covering areas not needed to conserve the species” and that the agency “is working with [the U.S. Fish and Wildlife Service] and others to develop a process for refining maps for hundreds of species.” EPA states that it “expects to publish the final strategy by August 30, 2024.” For background, see ALWR—Aug. 7, 2023, “EPA Releases Draft Herbicide Strategy for Federally Listed Species.” 

 

_________________________________________________

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

CENTER PROGRAMS & RESOURCES

Understanding Agricultural Law Series. A free monthly Zoom webinar series for agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Fridays, noon–1 pm (ET). Upcoming:

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:

Podcasts:

Agricultural Law Podcast

USDA Takes First Regulatory Steps on Carbon Credit Production (May 14, 2024)

USDA Takes New Approach in HPAI Outbreak in Dairy Cattle (Apr. 26, 2024)

Farmland Legal Energy Podcast

Agrivoltaics & Large-Scale Solar Energy in Pennsylvania Update (May 15, 2024)

Artificial Intelligence in Agriculture (Apr. 29, 2024)

More Center Publications

Resources of Interest:

Nat’l Agric. Law Ctr. “Hazardous Substances”: EPA Takes Action on PFAS, Brigit Rollins (May 2, 2024)

Southern Ag Today, The Importance of Rented Cropland to Mid-South Agriculture, Brad Watkins (May 1, 2024)

Southern Ag Today, Butterfat Continues to be a Major Driver of Milk Value, Kenny Burdine (Apr. 29, 2024)

Tex. A&M Agric. Law Blog, Texas Farmers Sue USDA for Alleged Discrimination, Tiffany Dowell Lashmet (Apr. 29, 2024)

Agric. Law & Tax’n Blog, What’s Going on with Swampbuster?, Roger McEowen (Apr. 28, 2024)

________________________________________________________

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

U.S. Department of Agriculture Announces Key Staff Appointments and Promotions (May 1, 2024)

USDA Reminds Producers of Climate-Smart Opportunities Using Farm Loan Programs (Apr. 30, 2024)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

Biden-Harris Administration Finalizes Ban on Most Uses of Methylene Chloride, Protecting Workers and Communities from Fatal Exposure (Apr. 30, 2024)

USDA AGENCY PRESS RELEASES:

Farm Service Agency

USDA Announces May 2024 Lending Rates for Agricultural Producers (May 1, 2024)

USDA Reminds Producers of Climate-Smart Opportunities Using Farm Loan Programs (Apr. 30, 2024)

Forest Service

USDA celebrates President Biden’s 105,919-acre Expansion of the San Gabriel Mountains National Monument (May 2, 2024)

Natural Resources Conservation Service (NRCS)

NRCS Partners with Soil and Water Conservation Society to Fund Equitable Conservation Guidebook (Apr. 30, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 29–May 2, 2024):   

Agricultural Marketing Service

89 FR 33288 Proposed Rule—Comment Period: “Pears Grown in Oregon and Washington; Amendment to the Marketing Order” (Apr. 29, 2024)

Agriculture Department

89 FR 35775 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Consumer Labeling Research: Web-Based Experimental Survey]” (May 2, 2024)

89 FR 34197 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: County Committee Election]” (Apr. 29, 2024)

89 FR 33314 Notice: “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Salmonella Control Strategies Pilot Projects]” (Apr. 29, 2024)

Environmental Protection Agency

89 FR 33235 Rule: “Flonicamid; Pesticide Tolerances” (Apr. 29, 2024)

Food and Nutrition Service

89 FR 34340 Proposed Rule—Comment Period: “Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023” (Apr. 30, 2024)

Food Safety and Inspection Service

89 FR 35033 Notice: “Salmonella Not Ready-To-Eat Breaded Stuffed Chicken Products” (May 1, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.8198 “To amend the Agricultural Act of 2014 to establish additional payments for unborn livestock under the livestock indemnity payment program.” Referred to the House Committee on Agriculture. (May 1, 2024)

H.R.8210 “To amend the Consolidated Farm and Rural Development Act to eliminate a requirement that certain individuals be related by blood or marriage to be eligible for farm loans as a qualified beginning farmer or rancher, and for other purposes.” Referred to the House Committee on Agriculture. (May 1, 2024)

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

S.4251 “A bill to establish a payment program for unexpected loss of markets and revenues to timber harvesting and timber hauling businesses due to major disasters, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Sponsor introductory remarks on measure: CR S3319). (May 2, 2024)

S.4203 “A bill to direct the Secretary of Agriculture to establish a program to provide emergency relief to producers that experienced losses as a result of disasters occurring in 2023, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 30, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

DEP Launches New Pilot Program to Reduce Errors, Speed Up Processing Time for Key Construction Permit (Apr. 29, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 18—May 4, 2024): 

Department of Environmental Protection

54 Pa.B. 2354 Notice: “Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal Clean Water Act”

54 Pa.B. 2427 Notice: “Proposed General Plan Approval and/or General Operating Permit for Human or Animal Crematory Incinerators (BAQ-GPA/GP-14); Public Comment Opportunity (2700-PM-BAQ0024)”

EXECUTIVE BOARD

54 Pa.B. 2350 Rule: “Reorganization of the Fish and Boat Commission”

PENNSYLVANIA LEGISLATURE

HB 997 “An Act authorizing the provision or sale of Pennsylvania milk in Pennsylvania schools.” Laid on the table. (Apr. 30, 2024)

HB 2225 “An Act amending the act of June 30, 1987 (P.L.163, No.16), known as the Rural Pennsylvania Revitalization Act, establishing the Rural Population Revitalization Commission and providing for duties of the commission; and establishing the Rural Population Revitalization Fund.” Laid on the table. (Apr. 30, 2024)

HB 1661 “An Act amending the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, further providing for schedules of controlled substances; and providing for secure storage of xylazine.” Amended on third consideration. (Apr. 30, 2024)

SB 979 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in domestic animals, providing for posted notice with information on dangerous transmissible diseases.”

Presented to the Governor. (Apr. 29, 2024)

Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney