FDA releases the Proposed Rule on Sanitary Transportation of Human and Animal Food that would require certain shippers, receivers, and carriers who transport food by motor or rail vehicles to take steps to prevent the contamination of human and animal food during transportation.

For more information:

• Federal Register Notice for the Proposed Rule  
• Fact Sheet on the Proposed Rule  

On Monday, Governor Jerry Brown appointed his long time energy advisor and current SMUD board member Michael Picker to the CPUC.   Picker has been Senior Advisor for Renewable Energy in the Office of the Governor since 2009 and a SMUD board member since 2012.  He will need to resign these positions prior to taking the oath as a new commissioner. He was principal at Lincoln Crow Strategic Communications from 2000 to 2009 and a consultant at Kaufman Campaign Consultants from 2000 to 2002. Picker was deputy treasurer in the Office of the California State Treasurer from 1998 to 1999 and chief of staff to Sacramento Mayor Joe Serna Jr. from 1992 to 1999.

On Wednesday, January 29th, the House finally passed a new farm bill-the Agricultural Act of 2014--with a 251 to 166 vote (text of conference report here). A total of 162 Republicans and 89 Democrats voted 'yes' while 63 Republicans and 103 Democrats voted 'no.' Earlier in the week, after a failed attempt by Democrats to use a portion of the $23 billion in savings generated by the Agricultural Act of 2014 to extend unemployment benefits, many were concerned that the political spillover would contaminate the Agricultural Act of 2014 and jeopardize passage.  Fortunately that did not occur.  Indeed, the vote indicates that the four principals finally reached an agreement that both parties and both Houses can support despite any partisan wrangling.

Keenly aware immigrant voters abandoned most GOP candidates in the 2012 election - starting with Mitt Romney's presidential bid - this week House Speaker John Boehner (R, OH) took the House GOP to a hotel in rural Maryland to hear the six "standards" for House action on immigration reform legislation. These standards, he said, are "as far as we're willing to go."

The draft one-page "standards" outline - referred in the document as "guiding principles" - was "leaked" to most news outlets before the meeting ended. Its preamble begins with a list of what's wrong with the current federal immigration system, pledges to work in a bipartisan manner, but then restates why a "single, massive piece of legislation that few have read and even fewer understand" - as passed by the Senate last year - is not the way to proceed.  The House GOP restates its focus on "a step-by-step, common sense approach that starts with securing our country's borders, enforcing our laws and implementing robust enforcement measures."

"There will be no special path to citizenship for those who broke our nation's immigration laws," and no action on legal status until specific border enforcement targets are met, according to the standards document.  However, this week House Minority Leader Nancy Pelosi (D, CA), after praising the GOP effort as "acting in good faith," said for her fellow Democrats, a pathway to citizenship "is an all or nothing position."

GOP members are skeptical the House can get its legislation completed, passed, conferenced with the Senate's 1,200-page bill and through Congress before it adjourns in October, just before the November election.

The six principles are as follows:  Securing the border and verifying enforcement, with "zero tolerance" for those who enter the U.S. illegally or overstay their visas; implement a "fully functioning" entry-exit visa tracking system, one that is biometric to prevent fraud; a "workable" electronic employment verification system; reforming the legal employment-based immigration system - including temporary workers - saying visa and green card systems need to reflect workplace needs and let talented individuals stay in the U.S.; the temporary visa system, with special emphasis on agricultural needs, must reflect economic needs and national security; the children of illegal immigrants should be treated differently if born in the U.S. or if they entered as minors, and how to handle "individuals living outside the law."

On how to handle those undocumented workers, the GOP document says they need to come forward and "get right with the law."  

The GOP standards discuss how undocumented workers should be able to "live legally and without fear in the U.S."  Eligibility for this legal status includes admitting to breaking the law, passing a "rigorous" background check; paying "significant" fines and back taxes; learning to speak English, studying American civics, and demonstrating they're able to support themselves and their families without government benefits. Gang members, sex offenders and other "criminal aliens" would not be eligible.

Based on the growing number of congressional letters sent to EPA Administrator Gina McCarthy this week either praising her agency for effectively freezing the 2014 Renewable Fuel Standard (RFS) for biofuels or condemning her for the same action, it appears just about every House and Senate member has signed at least one of them.

Public comments on the EPA RFS proposal were due to the agency by close of business on Tuesday this week.  EPA proposes to cut the RFS from 18.5 billion collective gallons to 15.21 billion gallons; of that, the corn ethanol RFS would be dropped from 14.4 billion gallons to just over 13 billion, much less than called for in the 2007 law creating the RFS.

In a related development, 30 industry groups led by the National Council of Chain Restaurants (NCCR) wrote to the chair and ranking member of the House Energy & Commerce Committee asking for a stronger push to reform the RFS.

The latest congressional action is a letter from 13 House members supporting the food/ag/petroleum industry position saying the lower RFS proposal is a "good first step" and "advanced biofuels" should be refined from non-food feedstocks only.  A separate communication from 10 Senators agreed with their House colleagues, while 30 Senators signed on to a letter telling McCarthy the RFS must be increased, not reduced.

On January 28, four Senators - Sens. Ben Cardin (D, MD), Susan Collins (R, ME), Dianne Feinstein (D, CA) and Bill Nelson (D, FL) - told McCarthy she needs to rethink her RFS reduction proposal to ensure continued growth and investment in the broad biofuels sector.  "Maintaining a robust target for advanced biofuels will help protect a collective $14-billion investment in the development of advanced and cellulosic biofuels," they wrote.  

The NCCR letter to Reps. Fred Upton (R, MI) and Henry Waxman (D, CA) said the EPA proposed RFS action is only a 6% reduction in the corn ethanol RFS, insufficient to lower ethanol's demand on the available U.S. corn supply, estimated by USDA in 2013 at more than 40% of corn production, calling it a "perverse incentive" to overplant corn.

FDA's ongoing cooperative effort with industry to curb use of human-use antibiotics in livestock and poultry feed, particularly the way it treats penicillin and tetracycline use, doesn't meet agency safety standards, the Natural Resources Defense Council (NRDC) said this week in a report based on a review of agency records.  FDA said it's confident that's not the case.

NRDC, based on FDA internal information obtained under the Freedom of Information Act (FOIA), says none of 30 antibiotic products reviewed by the agency in 2001-2010 would be approved for nontherapeutic use in feed if submitted under today's FDA safety guidelines.  Of those 30 drugs, 18 were called "high risk" for exposing humans to antibiotic resistant bacteria, and 12 were approved without sufficient safety data from drug sponsors.  Twenty-six would have failed 1973 FDA safety standards, the activist group said.

For itself, FDA said it began its review of older penicillin and tetracycline drugs in 2001, and sent letters to drug companies asking for additional safety data, part of an overall effort to assess available information on antimicrobial resistance associated with the feed use of the two human-use antibiotics. 

This review, and additional information it did not disclose, was the reason FDA opted to follow a broader regulatory strategy on on-farm antibiotic use.  The current FDA strategy - removal of growth promotion/feed efficiency label approvals and increased veterinary involvement through an expanded use of the Veterinary Feed Directive (VFD) - is the "most efficient and effective way to change the use of these products in animal agriculture."  FDA added nothing in its current effort precludes regulatory action in the future.

The American Farm Bureau Federation (AFBF) this week filed with U.S. Court of Appeals for the Third District seeking a reversal of a federal court ruling upholding EPA's total maximum daily load (TMDL) for the Chesapeake Bay watershed.  AFBF is asking the court to decide whether EPA exceeded its legal authority under the Clean Water Act (CWA) by mandating how nitrogen, phosphorus and sediment are to be allocated among farms, construction sites, homes and towns in the 64,000-square-mile watershed.

AFBF says the authority cited by EPA is specifically reserved by law to state and local authorities.  Such decisions, the nation's largest farm organization said, are unique and this is why Congress withheld the authority from EPA.

The goal of this litigation, says AFBF, is to maintain the "balance of power" under the CWA that leaves states "in charge of the land and water resources within their borders."  The action is being watched closely as it sets precedent for how EPA may act in other major watersheds around the country.

EPA this week said it's looking for more public comment on the paperwork and "regulatory burden" associated with a proposed rule on annual registration maintenance fees collected under its FIFRA authority.  The law was amended in 2004 to create the fee system for applications on pesticide registrations, amended registrations and tolerance actions. It also wants to know how the system and paperwork affect the ability to seek a waiver from the system.  The notice was published in the January 29, 2014 Federal Register and the notice can be found at www.epa.gov.

A "clean truck" law enacted in 1990, for which rules were never written, was rolled into the Food Safety Modernization Act (FSMA), updated to include rail transport, with FDA publishing the implementing proposed rule January 31.  The publication completes FDA's rollout of the seven major proposed FSMA implementation regulations.

The proposed rule covers truck and rail transport of both livestock, poultry and pet foods/ingredients, as well as human foods and ingredients. It covers certain shippers and receivers, and carriers who transport food within the U.S.  That transport is covered whether or not the food or ingredients is offered in or enters interstate commerce, meaning even if a shipper moves covered food articles from cross-country, county to county or just a few blocks away, the transport must meet the new sanitation standards.  On the other end of the transport spectrum, the proposed rule also applies to exporters who ship food or ingredients to the U.S. in cargo containers by ship or airplane and arrange for the transfer of that food to rail or motor carrier, if the food is consumed or distributed in the U.S. 

The rule contemplates requirements for vehicles and transport equipment, including proposing new requirements for the design and maintenance of vehicles/transport equipment to ensure "it does not cause the food...it transports to become contaminated;" measures to be taken to ensure food is not contaminated, including temperature controls and separation of food from non-food goods in the same load; sharing/exchanging information on prior cargoes, cleaning of equipment and temperature controls among the shipper, carrier and receiver to ensure the vehicles that have previously hauled milk will not introduce allergens into non-dairy foods through cross-contact; training of personnel in sanitary transportation practices and documentation of the training; maintenance of written procedures and records by carriers and shippers on equipment cleaning, prior cargoes and temperature control, and how and when FDA will waive the requirements if it decides the waiver won't create a situation that could lead to food contamination.  

Exempt from the proposed clean truck/rail rule are shippers, receivers or carriers with less than $500,000 in total annual sales; raw ag commodity transport done by a farm; food transshipped through the U.S. to another country; food imported for future export, but is not distributed or consumed in the U.S.; transport of shelf-stable food that is completely enclosed in a container; transport of compressed food gases, and transport of live food animals. 

Comments are due by May 31, 2014.  Following publication of a final rule, small businesses - "businesses other than motor carriers who are not also shippers and/or receivers employing fewer than 500 persons and motor carriers with less than $25.5 million in annual receipts" - will have two years to comply; all other businesses not defined as "small" or not exempted from the rule, would have one year to comply.

DWR Drops State Water Project Allocation to Zero, Seeks to Preserve Remaining Supplies

Severe Drought Leads to Worst-Ever Water Supply Outlook

SACRAMENTO - To protect Californians' health and safety from more severe water shortages in the months ahead, the California Department of Water Resources (DWR) today took actions to conserve the state's precious resources.  As a result, everyone -- farmers, fish, and people in our cities and towns -- will get less water.  DWR's actions are in direct response to Governor Edmund G. Brown Jr.'s drought State of Emergency. In the declaration, the Governor directed DWR and the State Water Resources Control Board (SWRCB) to act to modify requirements that hinder conservation of currently stored water and allow flexibility within the state's water system to maintain operations and meet environmental needs.

"The harsh weather leaves us little choice," said DWR Director Mark Cowin.  "If we are to have any hope of coping with continued dry weather and balancing multiple needs, we must act now to preserve what water remains in our reservoirs."

Except for a small amount of carryover water from 2013, customers of the State Water Project (SWP) will get no deliveries in 2014 if current dry conditions persist and deliveries to agricultural districts with long-standing water rights in the Sacramento Valley may be cut 50 percent -- the maximum permitted by contract -- depending upon future snow survey results. It is important to note that almost all areas served by the SWP have other sources of water, such as groundwater, local reservoirs, and other supplies.

"It is our duty to give State Water Project customers a realistic understanding of how much water they will receive from the Project," said Director Cowin.  "Simply put, there's not enough water in the system right now for customers to expect any water this season from the project."

DWR also has asked the SWRCB to adjust water permit terms that control State Water Project and federal Central Valley Project operations in order to preserve dwindling supplies in upstream reservoirs for farms, fisheries, and cities and towns as the drought continues.

While additional winter storms may provide a limited boost to reservoir storage and water deliveries, it would need to rain and snow heavily every other day from now until May to get us back to average annual rain and snowfall.  Even then, California still would be in a drought, because normally wet December and January have been critically dry - and follow a record dry 2013 and a dry 2012.

This historic announcement reflects the severity of California's drought.  After two previous dry years, 2014 is shaping up as the driest in state history.  Storage in key reservoirs now is lower than at this time in 1977, one of the two previous driest water years on record. Yesterday's Sierra snow survey found the snowpack's statewide water content at only 12 percent of average for this time of year.

Lake Oroville in Butte County, the principal SWP reservoir, is at 36 percent of its 3.5 million acre-foot capacity (55 percent of its historical average for the date).  Shasta Lake north of Redding, California's and the federal Central Valley Project's (CVP) largest reservoir, is at 36 percent of its 4.5 million acre-foot capacity (54 percent of average for the date).  San Luis Reservoir, a critical south-of-Delta reservoir for both the SWP and CVP, is at a mere 30 percent of its 2 million acre-foot capacity (39 percent of average for the date).

Key facts on water deliveries and impacts:

• Never before in the 54-year history of the State Water Project has DWR announced a zero allocation to all 29 public water agencies that buy from the SWP. These deliveries help supply water to 25 million Californians and roughly 750,000 acres of irrigated farmland. 
• Deliveries to senior water rights holders in the Sacramento Valley -- all agricultural irrigation districts - were last cut in 1992.
• The only previous State Water Project zero percent allocation was in 1991 for agriculture, but cities that year received 30 percent of requested allocations.
• "Carryover" water stored by local agencies and water transferred from willing sellers to buyers in critically short areas still will be delivered, as will emergency supplies for drinking, sanitation, and fire protection.

Regulatory Actions Sought

In a formal petition delivered earlier this week, DWR and the U.S. Bureau of Reclamation (Reclamation) asked the SWRCB to adjust requirements for freshwater outflow in the Sacramento-San Joaquin Delta in order to preserve stored water that may be needed later in the year for health and safety needs and to provide cold water upstream for protection of salmon and other species.  The existing Delta water quality standards, contained in Water Rights Decision 1641, were not written with these extraordinarily dry conditions in mind.  The DWR and Reclamation petition seeks adjustment to the water quality and flow requirements for February, along with a request to establish a framework to make further requests and adjustments as the drought evolves.

The petition also seeks flexibility in management of a water quality regulation that requires closure of the Cross-Channel Gates along the Sacramento River near Walnut Grove from February 1 through May 20.  Under the current extremely low flow conditions, open gates can help ameliorate salty conditions in the Delta.  DWR and Reclamation propose to close the gates should storm runoff boost flows or if fish monitoring indicates closure is needed to protect threatened species.

Water rights permits require the SWP, operated by DWR, and the CVP, operated by Reclamation, to ensure that outflow from the Delta meets an average of 7,100 cubic feet per second (cfs) beginning February 1.  Outflow is composed of flows from all tributaries to the Delta, some of which are directly controlled by DWR and Reclamation.

Under the petition, DWR and Reclamation project that outflows will be able to meet an average of 4,500 cfs during February, which is the level currently being achieved in January.  To help meet this level of outflow, DWR and Reclamation will export from the Delta a maximum of 1,500 cfs, which will be used to serve health and safety needs.

The petitioners note that they do not believe there is an adequate water supply to meet all obligations under the SWRCB's Water Rights Decision 1641.  Without adjustment, "there exists a substantial risk that by late spring 2014 and into 2015 the Projects' major reservoirs will be drafted to dead pool or near dead pool levels at which point reservoir release capacities will be substantially diminished."  Dead pool level refers to the condition when water can no longer be released from a reservoir using gravity.

The petition seeks to minimize adverse impacts to the cold water stored in reservoirs for downstream fisheries and to allow for some level of salinity control later in the season.  Otherwise, water project operators risk losing entirely the ability to control salinity in the Delta.

"As Governor Brown has directed, we will work closely with our state, federal and local partners to meet health and safety needs and deliver what water is available to critically dry areas," said Director Cowin. "Even though it's dry everywhere, California agencies have traditionally been willing to transfer any water they can spare to more needy areas.  Today is a stark reminder that we all have to save every drop we can in our homes and places of work.  Conservation is always important, but today it's an absolute necessity."

In addition to the actions announced today, Reclamation yesterday decided to preserve rescheduled water supplies that CVP farmers had banked as a hedge against dry conditions. Director Cowin praised the decision, saying: "In an increasingly complex situation, affirming the ability of water districts to preserve water supplies as a hedge against drought is good water management."

Authority for Changes

California law authorizes the SWRCB to grant temporary changes in permits when it finds an urgent need for the change and the change can be made without injury to other lawful users of water or without unreasonably affecting fish, wildlife, or other instream beneficial uses.  The law requires consultation with representatives of the California Department of Fish and Wildlife. The change must also be found to be in the public interest. 

Water Allocation History

In December, DWR estimated it would be able to deliver 5 percent of the slightly more than 4 million acre-feet of State Water Project water requested this year by the 29 public water agencies that purchase water from the project.  They are located in Northern California, the Bay Area, San Joaquin Valley, Central Coast, and Southern California.

The 5 percent projected allocation- now reduced to zero - tied with calendar year 2010 for the lowest initial allocation ever.   The initial 2010 delivery estimate, made on the heels of the 2007-2009 drought, was eventually increased to 50 percent as winter storms developed.

The final SWP allocation for calendar year 2013 was 35 percent of requested water amounts.  In 2012, the final allocation was 65 percent.  It was 80 percent in 2011, up dramatically from an initial allocation of 25 percent.  The final allocation was 50 percent in 2010, 40 percent in 2009, 35 percent in 2008, and 60 percent in 2007.  The last 100 percent allocation - difficult to achieve even in wet years because of Delta pumping restrictions to protect threatened and endangered fish - was in 2006.

The federal CVP, which supplies much of the state's agricultural water, is expected to announce its initial allocation next month.  It also will be dismal, especially for irrigation-dependent farms on the west side of the San Joaquin Valley.

Water-short Valley farmers are expected to fallow thousands of acres, sending negative economic ripples through communities dependent on the agricultural economy.  

Farmers also will pump increasing amounts of groundwater, further depleting overtapped aquifers.  Governor Brown directed DWR to monitor groundwater levels, land subsidence and land fallowing as the drought persists.

Conservation Key

"We need everyone in every part of the state to conserve water," said Governor Brown in his January 22 State of the State address.

When Governor Brown declared a drought State of Emergency earlier this month, he directed state officials to take all necessary actions to prepare for water shortages. This week, CAL FIRE announced it hired 125 additional firefighters to help address the increased fire threat due to drought conditions, the California Department of Public Health identified and offered assistance to communities at risk of severe drinking water shortages and the California Department of Fish and Wildlife restricted fishing on some waterways due to low water flows worsened by the drought. Also this week, the California Natural Resources Agency, the California Environmental Protection Agency and the California Department of Food and Agriculture also released the California Water Action Plan, which will guide state efforts to enhance water supply reliability, restore damaged and destroyed ecosystems and improve the resilience of our infrastructure.

Governor Brown has called on all Californians to voluntarily reduce their water usage by 20 percent and the Save Our Water campaign has announced four new public service announcements that encourage residents to conserve. Last December, the Governor formed a Drought Task Force to review expected water allocations and California's preparedness for water scarcity. In May 2013, Governor Brown issued an Executive Order to direct state water officials to expedite the review and processing of voluntary transfers of water.