Thursday, January 25, 2018

Agricultural Law Weekly Review—January 25, 2018

Written by M. Sean High—Staff Attorney
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

WOTUS: U.S. Supreme Court Decides Jurisdiction for WOTUS Challenges
On January 22, 2018, the U.S. Supreme Court (SCOTUS) determined that legal challenges to the “waters of the United States” (WOTUS) rule are to be brought first at the federal district court level (National Assn. of Mfrs. v. Department of Defense No. 16-299).  After the WOTUS rule was promulgated in November 2015, several parties brought actions challenging the rule simultaneously in both federal district courts and federal courts of appeals.  Ultimately, numerous federal court appeals actions were consolidated and transferred to the Court of Appeals for the Sixth Circuit.  According to SCOTUS, challenges to the WOTUS rule do not fall under the scope of those Clean Water Act challenges afforded direct and exclusive review in federal courts of appeals.  As a result, SCOTUS held that the Sixth Circuit lacked jurisdiction because challenges to the WOTUS rule must be reviewed initially in the federal district courts.

Food Safety: USDA-FSIS Announces Proposed Swine Inspection Rule
On January 19, 2018, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced a proposed amendment to the federal meat inspection regulations for hog slaughter establishments.  Specifically, USDA-FSIS is seeking “to establish a new voluntary inspection system for market hog slaughter establishments called the New Swine Slaughter Inspection System (NSIS), while also requiring additional pathogen sampling for all swine slaughter establishments.” Following future publication in the Federal Register, USDA-FSIS will receive public comment on the proposed rule for 60 days.

FSMA: FDA Releases Draft Guidance on Hazard Analysis and Risk-Based Preventive Controls for Animal Food
On January 23, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of the availability of draft guidance entitled: Hazard Analysis and Risk-Based Preventive Controls for Food for Animals (83 FR 3163).  Promulgated under the Food Safety Modernization Act, the draft guidance “is intended to explain how to comply with the requirements for hazard analysis and risk-based preventive controls for food for animals.”  According to FDA, the draft guidance addresses the following areas: (1) food safety plans; (2) conducting a hazard analysis; (3) hazards associated with the manufacturing, processing, packing, and holding of animal food; (4) preventive controls; and (5) preventive control management components.

FSMA: FDA Releases Five New FSMA Guidance Documents for Importers and Food Producers
On January 24, 2018, the U.S. Food and Drug Administration (FDA) announced the availability of five guidance documents intended to assist importers and food producers comply with the Food Safety Modernization Act.  According to FDA, the guidance documents include the following: (1) draft guidance on the Foreign Supplier Verification Program (FSVP) rule; (2) a FSVP rule small entity compliance guide; (3) draft guidance on the term “Same Level of Public Health Protection” used in both the FSVP and Produce Safety regulations; (4) Chapter 15 of the draft Preventive Controls for Human Food guidance regarding supply-chain requirements; and (5) enforcement discretion guidance regarding the application of FSVP to certain importers of grain raw agricultural commodities.

National Organic Program: USDA Proposes Changes to the National List of Allowed and Prohibited Substances
On January 17, 2018 the U.S. Department of Agriculture (USDA) Agriculture Marketing Service (AMS) published notice in the Federal Register of a proposed rule to amend USDA’s organic regulations through changes to the National List of Allowed and Prohibited Substances (National List) (83 FR 2498).  First, the proposed rule would alter use restrictions for seventeen substances currently allowed for organic production or handling on the National List.  Second the proposed rule would add sixteen new substances on the National List to be allowed in organic production or handling.  Third, the proposed rule would list the botanical pesticide, rotenone, as a prohibited substance in organic crop production.  Finally, the proposed rule would remove ivermectin as an allowed parasiticide for use in organic livestock production.

International Trade: U.S. Wins WTO Broiler Chicken Dispute with China
On January 18, 2018, Reuters reported that the World Trade Organization (WTO) ruled in favor of the United States regarding China’s failure to adequately lower tariffs on U.S. broiler chicken products.  According to Reuters, in 2011, the WTO issued a ruling that China had improperly imposed anti-dumping duties on U.S. broiler chicken products.  Though China subsequently lowered these tariffs, in 2016, U.S. officials returned to the WTO asserting that China “had not done enough to comply” with the WTO ruling.  According to Reuters, the U.S. alleged that through China’s noncompliance, “U.S. poultry producers such as Tyson Foods Inc and Pilgrim’s Pride Corp had lost sales of over $1 billion.” Under the latest WTO ruling, unless an appeal is filed, China will have 20 days to lower its tariffs on U.S. broiler chicken products.

Pennsylvania Actions and Notices:
Department of Environmental Protection

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