Thursday, September 20, 2018

Agricultural Law Weekly Review - September 20, 2018

Written by:
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

International Trade: USDA Releases Report Addressing International Trade Program Payments
On August 31, 2018, the U.S. Department of Agriculture (USDA) released a report explaining the methodology used to calculate payment rates to agricultural producers.  In July 2018, USDA announced compensation programs for producers and farmers who have experienced losses as a result of trade complications with China.  These programs include the Market Facilitation Program (MFP) and Food Purchase and Distribution Program (FPDP).  Under MFP, the Farm Service Agency will provide payments to corn, cotton, dairy, sorghum, soybean, hog, and wheat producers.  Under FPDP, the Agricultural Marketing Service will purchase up to $1.2 billion in commodities for distribution to nutrition assistance programs.  To see how USDA calculated costs and payments, see the report Trade Damage Estimation for the Market Facilitation Program and Food Purchase and Distribution Program.

Antimicrobial Use: FDA Reveals Five Year Plan for Antimicrobial Stewardship
On September 14, 2018, the U.S. Food & Drug Administration (FDA) Center for Veterinary Medicine (CVM) released its five year plan, Supporting Antimicrobial Stewardship in Veterinary Settings.  In the initial announcement of this plan on July 31, 2018, FDA explained that overuse of antimicrobial drugs can promote development of antimicrobial-resistant bacteria.  The plan involves pre-approval review where the drug sponsor must show that the drug is safe and effective for treating animals. In addition, for drugs used in food-producing animals, CVM will evaluate the safety of any drug residue that may remain in the food. The plan also includes post-approval surveillance and monitoring, where CVM will review event reports, monitor resistance trends, and update animal drug product labeling.

WOTUS: Court Enjoins WOTUS Rule in Iowa
On September 18, 2018, the U.S. District Court for North Dakota issued a court order enjoining the Waters of the United States rule (WOTUS) in Iowa (State of North Dakota, et al, v. EPA, et al, Case No. 3:15-cv-59). The WOTUS rule has now been suspended in more than half of the fifty states.  On August 16, 2018, a federal district court in South Carolina enjoined the WOTUS rule in twenty-four states. A month later, on September 12, 2018, the U.S. District Court for the Southern District of Texas enjoined WOTUS in Texas, Louisiana, and Mississippi (State of Texas, et al. v. EPA, et al, 3:15-CV-00162).  

Food Safety: Court Allows Lawsuit to Move Forward Regarding Generally Recognized as Safe Rule
On September 12, 2108, the U.S. District Court for the Southern District of New York issued an opinion allowing a lawsuit to go forward with respect to the final rule Substances Generally Recognized as Safe (GRAS rule)  (21 CFR Parts 20, 25, 170, 184, 186, and 570).  Several food safety organizations filed suit against the U.S. Food and Drug Administration (FDA) alleging that the GRAS rule is an abuse of discretion, violates fundamental principles of separation of powers, and exceeds FDA’s authority. Under the GRAS rule, manufacturers independently determine whether a chemical additive is generally recognized as safe.  As such, FDA approval is optional and GRAS substances may be added to food without FDA review or approval.  In the most recent order, the court declared that the plaintiffs plausibly allege harm and, therefore, have standing to bring the case. (Center for Food Safety, et al, v. Department of Health and Human Services, et al., 2018 WL 4356730)  

Water Quality: USDA Announces Funding for Rural Water Infrastructure Projects
On September 17, 2018, the U.S. Department of Agriculture (USDA) announced $392 million in funding for rural water and wastewater infrastructure.  The money will be used to support 120 infrastructure projects through the Water and Waste Disposal Loan and Grant program.  State and local governmental entities and private nonprofits can apply for long-term loans or grants.  Funding may be used for infrastructure costs relating to drinking water, sewer, solid waste, stormwater, and drainage.  

Water Quality: Penn State Publishes Research on Conservation Dairy Farming
On September 13, 2018, Penn State University researchers published a study the impacts of conservation dairy farming.  The study examined a conservation dairy farming system that “produces the majority of the dairy feed and forage crops, with no-till, continuous diversified plant cover, and manure injection.”  The researchers showed that conservation dairy farming has the potential for soil fertility balance as well as decreased emissions of nitrous oxide.  The researchers also found conservation dairy farming could improve overall water quality and reduce sediment concentrations in streams.  The study, Conservation Dairy Farming Impact on Water Quality in a Karst Watershed in Northeastern US, was published in ScienceDirect.

From National Ag Law Experts:
Ag & Food Law Update, The National Agricultural Law Center (September 18, 2018)

Sharon Anglin Treat, More Than 300 State Legislators Urge Removing Corporate-Friendly ISDS Provisions from NAFTA, Institute for Agriculture & Trade Policy (September 14, 2018).

Pennsylvania Regulations 
HB 2647 referred to Environmental Resources and Energy (September 17, 2018) bill would allow construction sites on small acreage to apply for a waiver of the National Pollutant Elimination System Permit.

HB 2648 referred to Game and Fisheries (September 17, 2018) bill would remove restrictions on thermal and night vision equipment for hunting

Pennsylvania Notices
Public hearing: Milk Marketing Board to conduct hearing on September 26, 2018 (to solicit comments for changes to Milk Marketing Law)
Public hearing: Senate Agriculture and Rural Affairs meeting on invasive and native species (October 2, 2018)

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