In the regulatory picture for 2019, the top issue for aggies is probably the “waters of the United States” proposal that seeks to reduce and clarify the federal government’s jurisdiction over streams and wetlands in the country. If it’s anything like the rule it’s meant to replace, the Obama Administration’s 2015 WOTUS rule, the proposal will likely engender hundreds of thousands of comments before a final rule is published sometime before the end of 2019.
But the timeline is merely a prediction, and with the federal shutdown delaying publication of the proposed rule, one that may have to be reconsidered. The impasse has already resulted in indefinite postponement of a public hearing on the proposal set for Jan. 23 in Kansas City.
Environmentalists have called the 60-day comment period insufficient, but EPA has said it’s plenty of time, even for such a significant regulatory proposal. With the shutdown allowing interested parties to read the document even before its appearance in the Federal Register, however, EPA may feel more justified in denying requests for extension.
“People with any stake in the 2015 rule can go right to the proposal and know what’s in it,” said Don Parrish, senior regulatory affairs director at the American Farm Bureau Federation. Parrish pointed to the fact that EPA already received about 6,000 comments on a “pre-proposal.”
Parrish said AFBF is generally pleased with the proposal, but would like to see more clarity on how EPA and the Army Corps of Engineers intend to distinguish between intermittent and ephemeral streams. The former, which run seasonally, would be regulated if they contribute flow to traditional navigable waters, while the latter, which run in response to rain or snowfall, would not.
One important issue to be addressed in the coming debate is whether states are up to the task of assuming whatever jurisdiction over waters left unclaimed by EPA and the Corps.
For Parrish, the answer is obvious: The states can do the job. “People are crying foul, but the way our system works is under a federalist system. I’m of the opinion that people protect resources close to home.” At the state level, he said there are bills and regulations covering waters “every which way from Sunday.”
Former Justice Department Clean Water Act attorney Stephen Samuels, however, said some states will fill in the gaps, but “I’m afraid that most would not. There’s not much incentive to do that politically.”
Other regulatory matters on the ag agenda for 2019 include the following:
FDA and USDA agreed in November they would share oversight of cell-cultured meat. FDA initially said in June that it had jurisdiction over the new cell-grown meats being developed by various companies, which set off a turf battle resulting in an announcement by both agencies that they would share regulatory oversight. The agencies do not plan to issue a proposal, however, opting instead for regulatory guidance, which means stakeholders will be working behind the scenes to make their voices heard throughout the year.
The shutdown could delay EPA’s issuance of a proposed rule that would allow gasoline blended with up to 15 percent ethanol (E15) to take advantage of the Reid Vapor Pressure waiver that currently applies to E10 in summer. EPA also plans to propose “regulatory changes to modify certain elements of the renewable identification number compliance system under the Renewable Fuel Standard program, in order to improve RIN market functioning.” The agency estimated it would have a proposal out by February with a final rule to follow in May, but the schedule is up in the air with the government shutdown. EPA also is preparing a “reset” proposal modifying the applicable volumes targets for cellulosic biofuel, advanced biofuel, and total renewable fuel for the years 2020-2022. The agency had hoped to have a proposal out in January and a final rule by December.
A day before the government shutdown, USDA announced the first of two steps to overhaul the Supplemental Nutrition Assistance Program in ways that Republicans have been unable to do in Congress. A proposed rule announced Dec. 20 would make it harder for states to get waivers from work requirements for able-bodied adults without dependents (ABAWDs). But because of the government shutdown, USDA has yet to publish the rule in the Federal Register, which would trigger the start of a 60-day comment period.
A second rule, the details of which aren’t known, could roll back SNAP enrollment by tightening a process known as broad-based categorical eligibility that allows people to qualify for SNAP in some states with incomes above the federal cutoff. One or both of the rules is likely to be challenged in court; over the objections of former House Agriculture Chairman Mike Conaway, R-Texas, the Democratic-controlled House adopted a rules package that authorizes Speaker Nancy Pelosi to initiate legal action.
Certified pesticide applicators and farmworker protection requirements
EPA had planned before the shutdown to issue a proposal in January to defer to state minimum age requirements for certified applicators “and to establish a federal minimum age of 16 years for all three types of applicators if states or tribes do not establish enforceable minimum age requirements.” EPA estimated in its most recent semiannual regulatory agenda that it would have a final rule by September.
The agency placed the same time estimates on its planned proposal to revise the minimum age in the farmworker protection rule, alter the way the rule would allow workers to designate representatives to receive information on pesticide use, and clarify the definition of “application exclusion zones.” Farmworker groups are opposed to any changes. EPA originally thought it would have proposals in both matters by the end of 2018.
EPA plans to propose its next revision of crop groupings in February, but that may slip because of the shutdown. Grouping of crops, EPA noted, allows the agency “to establish pesticide tolerances for multiple related crops based upon data for a representative set” of those crops. EPA expects the revisions will "promote greater use of crop grouping for tolerance-setting purposes and to facilitate the availability of pesticides for minor crop uses.” Another bunch of crop groupings is expected to be proposed by June.
FDA is proposing to clarify when certain requirements of the Produce Safety Rule do not apply. In delaying certain aspects of the Food Safety Modernization Act a year ago, FDA said “produce is eligible for an exemption from many of the requirements in the (rule) if it will receive commercial processing that adequately reduces the presence of microorganisms of public health significance, and certain other conditions are met.” FDA had planned to issue a proposed rule in December.
FDA said its proposed rule, which it hopes to have out by March, “would update the definition for the implied nutrient content claim ‘healthy’ to be consistent with current nutrition science and federal dietary guidelines." The proposed rule would change the requirements for when the "healthy" claim can voluntarily be used in labeling human food products "so that the claim reflects current science and dietary guidelines and help consumers maintain healthy dietary practices.” FDA held a public meeting on the issue in 2017 and discussed it again at another meeting in 2018 that focused on its Nutrition Innovation Strategy.
FDA has extended until Jan. 28 its deadline for comments on how to identify plant-based milk products, long a bane of the dairy industry, which says “milk” should only be used to refer to what comes from a lactating animal. FDA Commissioner Scott Gottlieb famously said last year that almonds do not lactate, giving hope to the dairy folks that change was coming at FDA.
Livestock groups are continuing to press for flexibility from the Federal Motor Carrier Safety Administration’s “hours of service” rule that limits haulers to 11 hours of driving per day, followed by 10 hours off, as well as no more than 14 consecutive hours on duty. Three groups representing livestock, fish and bee haulers have petitioned FMCSA to allow up to 15 hours with a 16-hour on-duty period, following a 10-hour consecutive rest period. FMCSA had planned to issue an Advance Notice of Proposed Rulemaking – not a proposed rule – by March. FMCSA gave the industry a win in December when it continued a waiver for livestock haulers from the requirement that they use Electronic Logging Devices. That language was authorized through spending bills that expired Dec. 21 but will continue "until further notice."
Conservation Reserve Program
The Farm Service Agency is revising CRP regulations to add a “limited exception” that would allow land to be enrolled that otherwise would have been ineligible because of conditions specified in certain state, tribal, or local ordinances requiring the landowner “to implement a certain resource-conserving measure.” Land enrolled in CRP through the limited exception will be enrolled at a lower payment rate than other CRP land. FSA is shooting for an interim final rule by February.
The Food Safety and Inspection Service had planned to have a final rule out by April implementing new swine slaughter rules allowing producers to opt into a New Swine Slaughter Inspection System that would have USDA inspectors implementing more offline tasks. The industry is backing the idea, which USDA insists would still continue “100 percent FSIS carcass-by-carcass inspection.” But the Center for Science in the Public Interest, one the most prominent critics of the proposal, says it “would shift inspection duties from USDA inspectors to slaughter establishment employees and would eliminate national testing requirements for Salmonella and generic E. coli.”
The Animal and Plant Health Inspection Service is working on an overhaul of the way it regulates genetically engineered plants and insects under regulations known as Part 340. Release of the new proposal was targeted for early this year, which would allow the agency to stay on track for getting it finalized before the 2020 election, but the shutdown may slow the agency’s work. Biotechnology Regulatory Services Administrator Mike Firko said last fall that “It would be great if we could accomplish that (a proposed rule) in the first calendar quarter of 2019.”
Farm groups have generally reacted positively to a Labor Department proposal to restrict advertising for H-2A agricultural workers to the internet. The National Council of Agricultural Employers, for example, said in its comments that its members “report cumulatively spending millions of dollars annually for each round of H-2A newspaper advertisements . … Time and again, they report (to us informally and on their recruitment reports to DOL) that these costly print advertisements simply do not yield U.S. applicants for the farmworker positions advertised.”
Western Growers said print advertising should still be an option, but not required, while AFBF questioned the value of Web ads, saying growers often get hundreds of unqualified applicants. “In such a scenario, DOL would most likely require an employer to contact ALL job applicants, keeping a record of such contacts in case of an audit. The proposal by DOL does not take into account in any manner the potential increased costs to employers in such situations.” The Labor Department has not estimated when it will issue a final rule.
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Philip Brasher contributed to this report.