EPA Releases Proposed “Waters of the U. S.” Rule

On April 21, the federal Environmental Protection Agency (EPA) published its draft “Waters of the U.S.” proposed rule, which reflects the agency’s latest interpretation of the 1972 Clean Water Act. While EPA claims that the rule is merely intended to “clarify” the federal government’s regulatory jurisdiction over the nation’s water bodies, it could ultimately lead to the unlawful expansion of federal regulation to cover routine farming and ranching practices as well as other common private land uses.

The proposed rule would expand federal control over land features such as ditches and areas of agricultural land that are wet only during storms, and under the rule federal permits could be needed for ordinary field work, fence construction or even planting. EPA contends that exemptions in the new rule will shield farmers from many of its effects; however, the exemptions apply only to farms in operation since 1977, and are so narrowly defined that they may not cover common farming practices, such as weed control and fertilizer use.

Farm Bureau is at work developing comments on the proposed rule and is coordinating its efforts with those of AFBF, which has developed a “toolkit” for members’ use in responding to the proposal. Farm Bureau member Tommy Nagle, president of the Cambria County Farm Bureau, testified in opposition to the prposed rule at an April 28 Congressional committee hearing in Blair County chaired by Rep. Bill Shuster (R-Bedford).

EPA Releases Proposed Rule Revising Agricultural Worker Protection Standards
for Pesticides

On March 19, EPA proposed an update and revision to its existing agricultural worker protection regulation for pesticides. EPA believes that these regulations need to be updated to reflect current research on how to mitigate the risks to workers associated with pesticide use. However, the text of the proposed rule does not support that assertion, as there is actually relatively little substantive support in the document itself for taking that approach. At the same time, EPA makes statements in the proposed rule’s preamble that either fail to quantify benefits or provide very thin justifications for their benefit assessments when contrasted with the costs—meaning that the rule appears to impose new costs and legal obligations without any concurrent increase in benefits for workers.

Farm Bureau is working with AFBF and other state farm bureaus to develop a response to proposal, and as part of that response, will engage members to get as much insight as possible into how the proposed rule will affect them by hosting a webinar in early June to provide background to interested members on the proposal and seek their input.

Comments Submitted on Proposed FSMA Risk-Based Preventive Controls
for Animal Food Rule

Farm Bureau submitted comments on another proposed Food & Drug Administration (FDA) rule, related to the Food Safety Modernization Act (FSMA), addressing animal and pet food safety. In those comments, Farm Bureau argues that a second comment period is needed in order to respond to the changes likely to be made after FDA receives this initial round of comments, and for any second comment period to coincide with similar additional comment periods offered for other proposed food safety regulations. Read Comments

With regard to the details of the proposed rule, Farm Bureau noted that the underlying law (the Food Safety Management Act) called for proposed food safety rules for animal feed & pet food and human food to be separate. While FDA has drafted two separate proposed rules, both seem to be based largely on the language, mechanisms and practices of the human food industry--practices which may differ from those appropriate for the animal food industry. Farm Bureau also argued that given the scope and complexity of the proposed rule, and the likelihood that the cost to producers and consumers will be substantial, a thorough cost-benefit analysis is needed to make sure that scarce private and public resources are being used in the most efficient and effective manner.

Farm Bureau is currently developing comments on the remaining proposed rules FDA is promulgating related to FSMA, which govern the sanitary transportation of human and animal food and focused mitigation strategies to protect food against intentional adulteration.

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Comments Submitted on OSHA Proposed Rule to Improve Tracking
of Workplace Injuries and Illnesses

In early March, Farm Bureau submitted comments to the federal Occupational Health & Safety Administration (OSHA) on its proposed rule to improve the tracking of workplace injuries and illnesses. Farm Bureau expressed its concern that if the rule were to be enacted as proposed, it will:

  • Force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized, and misused for reasons wholly unrelated to safety, and therefore potentially subject employers to illegitimate attacks and employees to violations of their privacy.
  • Reverse the long-standing “no-fault” approach to recordkeeping and reduce employers’ incentive to record questionable injuries.
  • Fail to account for the total costs the rule will impose on businesses—in particular electronic record-keeping requirements that many small farmers will be hard-pressed to comply with—while citing vast benefits without proper support for such claims.
  • Fail to address how a seasonal or temporary workforce, which comprises a significant portion of farm labor, would be treated for reporting purposes.

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Comments Submitted on FDA Proposed Veterinary Feed Directive

In early March, Farm Bureau submitted comments to FDA on its proposed Veterinary Feed Directive (VFD) rule, which would amend its animal drug regulations regarding VFD drugs. Farm Bureau’s comments focused on the need for flexibility for states like Pennsylvania, in which the availability of large-animal veterinarians is a present or future concern, to determine what constitutes acceptable professional conduct in this area, as well as an alignment of recordkeeping requirements at one year for all involved parties. Farm Bureau continues, however, to question whether or not further limiting or eliminating animal antibiotic use for livestock is the best way to protect against the negative economic, animal and human health consequences FDA is concerned about.

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