By Lynn L. Bergeson and Margaret R. Graham
On May 18, 2017, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register announcing the dates it would be hosting three public meetings to provide the public with an opportunity to offer comments on the proposed revisions to its regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered (GE) organisms. 82 Fed. Reg. 22802. USDA has stated that it is updating its regulations “in response to advances in genetic engineering and [its] accumulated experience in implementing the current regulations, as well as [to] reduce the burden on regulated entities.” The dates and locations for the public meetings are:
- June 6, 2017, at the APHIS Center for Animal Welfare in Kansas City, Missouri;
- June 13, 2017, at the University of California, Davis Conference Center, Davis, California; and
- June 16, 2017, at the USDA Center at Riverside, Riverdale, Maryland.
APHIS will be accepting comments on the proposed revisions until June 19, 2017, in Docket ID No. APHIS-2015-0057-0001. Registration is available online. The meetings will be webcast for those unable to attend in person.
By Kathleen M. Roberts
On May 1, 2017, DOE’s Office of Energy Efficiency and Renewable Energy (EERE) published a notice in the Federal Register regarding its intent to extend its use of the EERE Environmental Questionnaire, with changes, for three years. The questionnaire allows EERE to collect project-specific information from federal financial assistance awardees to evaluate the potential environmental impact of projects that it is considering for funding, pursuant to the National Environmental Policy Act (NEPA) of 1969.
EERE is also requesting comments on the questionnaire, specifically on:
- Whether the proposed collection of information is necessary for the proper performance of the functions of DOE, including whether the information shall have practical utility;
- The accuracy of DOE's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
- Ways to enhance the quality, utility, and clarity of the information to be collected; and
- Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments are due by June 30, 2017.
By Lauren M. Graham, Ph.D.
On April 19, 2017, DOE announced an open teleconference of the State Energy Advisory Board (STEAB) in the Federal Register. STEAB advises DOE and EERE on the operation of its energy efficiency programs, renewable energy programs, and grant programs for research and deployment in energy efficiency and renewable energy fields. The tentative agenda includes:
- STEAB Task Force updates and objectives for fiscal year (FY) 2017;
- Follow-up opportunities and engagement with EERE and other DOE staff as needed to keep Task Force work moving forward;
- Continued engagement with DOE, EERE, and DOE’s Office of Energy Policy and Systems Analysis (EPSA) staff regarding energy efficiency and renewable energy projects and initiatives; and
- Updates on member activities within their states.
On July 29, 2016, President Obama signed into law Senate Bill 764 (S. 764), creating a national bioengineered food disclosure standard. This law requires companies to provide information on food packaging directing customers to a website or phone line for more information about genetically modified organisms (GMO) that are present in the food product. S. 764 also contains specific language preempting State regulations on "labeling of whether a food (including food served in a restaurant or similar establishment) or seed [in interstate commerce] is genetically engineered ... or was developed or produced using genetic engineering."
In addition to requiring companies to disclose the presence of bioengineered ingredients, S. 764 creates an official definition of bioengineering as "a food -- (A) that contains genetic material that has been modified through in vitro recombinant [DNA] techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature." The law also creates a "non-GMO" label that can be displayed on products that are U.S. Department of Agriculture (USDA) "certified organic." While harmful effects of GMOs have not been proven, this law allows consumers to educate themselves on the ingredients in their food while creating consistent national language and requirements for bioengineered foods. More information about this bill is available in the Biobased and Renewable Products Advocacy Group's (BRAG®) article "Senate Passes GMO Bill Creating A National Bioengineered Food Disclosure Standard With Federal Preemption And Exclusion Information."
On July 7, 2016, the Senate passed a bill, An Act to Reauthorize and Amend the National Sea Grant College Program Act, and for Other Purposes (S. 764), through agreement to the House's amendment to S. 764, with further amendment. While the bill is being referred to as a genetically modified organism (GMO) labeling bill, there is no actual requirement to print GMO ingredients on labels. Instead, companies would be required to print information on the packaging (through text, a symbol such as a QR code, or an electronic link) directing consumers to a website or phone line for more information. The national bioengineered food disclosure standard includes a definition for "bioengineering": "a food - (A) that contains genetic material that has been modified through in vitro recombinant [DNA] techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature," as well as specifics on how the new standard will be established through requirements and procedures. The new requirements and procedures include the following:
- Prohibition of a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance;
- Determination of the amounts of a bioengineered substance that may be present in food for the food to be a bioengineered food;
- Establishment of a process for requesting and granting a determination by the Secretary regarding other factors and conditions under which a food is considered a bioengineered food;
- Provision of alternative reasonable disclosure options for food contained in small or very small packages; and
- Requirements and procedures specific to small food manufacturers.
Subtitle F includes a section on federal preemption, which states that any state regulations on "labeling of whether a food (including food served in a restaurant or similar establishment) or seed [in interstate commerce] is genetically engineered ... or was developed or produced using genetic engineering," and also a section on exclusion from federal preemption -- that nothing in the subtitle, or in Subtitle E, "shall be construed to preempt any remedy created by a State or Federal statutory or common law right." The bill will allow producers with a U.S. Department of Agriculture "certified organic" designation to display an additional "non-GMO" label on their products. S. 764 is now back in the House and is expected to be taken up before Congress's seven week recess beginning July 15, 2016.
On April 15, 2016, DOE's Office of Energy Efficiency and Renewable Energy (EERE) announced a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) entitled "Project Definition for Pilot and Demonstration Scale Manufacturing of Biofuels, Bioproducts, and Biopower (PD2B3)." The FOA would be managed by the Bioenergy Technologies Office, and will support technology development plans for drop-in hydrocarbon biofuels, bioproducts, or biopower manufacturing. Applicants should address a topic within the following priority areas:
- Pilot-scale production of biofuels from high impact cellulosic, algal, or biogas feedstocks;
- Demonstration-scale production of biofuels from high impact cellulosic, algal, or biogas feedstocks; and
- Production of biopower, bioproducts, and biofuels from biosolids and other waste streams.
The full FOA is expected to be posted on the EERE Exchange on May 2, 2016, with the full NOI currently available.
On March 10, 2016, the U.S. Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy's (EERE) Bioenergy Technologies Office (BETO) announced a Request for Information (RFI) on integrated biorefinery optimization. The RFI covers information on the technical and financial challenges that biorefineries run into in order to run continuously and reliably. BETO is primarily interested in stakeholder input on systems that use between one and 1,000 dry tonnes per day of feedstock in order to:
- Understand scale-up and mitigate operational risks and challenges;
- Develop robust handling of variable solid materials;
- Improve pre-processing methodologies;
- Advance process intensification focused on simplification; reduce cost through innovative fabrication and construction methods; and/or develop efficient water management techniques;
- Address unique process issues and pathways; and
- Develop strategies to lower capital expense costs by reducing technical risks and ensuring minimum modifications.
The full RFI is available on the EERE Exchange website and responses are due by 5:00 p.m. (EDT) on April 6, 2016.
According to a Federal Register notice published on February 5, 2016, 81 Fed. Reg. 6225, the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) announced its intent to "prepare a programmatic environmental impact statement (EIS) in connection with potential changes to the regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered [(GE)] organisms." The notice identifies "reasonable alternatives and potential issues" to be evaluated in the EIS and requests public comments to define further the scope of the alternatives and environmental impacts and issues for APHIS to consider. Comments will be due March 7, 2016.
Under the Plant Protection Act (PPA), APHIS currently regulates the introduction (movement into the U.S. or interstate, or release into the environment) of GE organisms that may present a plant pest risk through its regulations in 7 C.F.R. Part 340, "Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests." The notice notes that APHIS' regulation of certain GE organisms to protect plant health is aligned with the Coordinated Framework for the Regulation of Biotechnology (CF). While APHIS, the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) are in the process of working to modernize a number of CF issues and activities, the Federal Register notice states "that effort is distinct from and entirely compatible with APHIS' effort to revise its biotechnology regulations" at 7 C.F.R. Part 340. The notice addresses only proposed changes to the APHIS regulations. More information on the efforts to modernize the CF, including two public engagement sessions that will be held in March 2016, is available on our website.
APHIS states that during the past 28 years of its regulation of certain GE organisms, advances in biotechnology and new issues raised by a range of stakeholders have emerged, and APHIS is considering amending the 7 C.F.R. Part 340 regulations pertaining to introductions of certain GE organisms to address the advances in biotechnology and the new issues raised by stakeholders. According to APHIS, this update would increase the "efficiency and precision" of its regulations. The proposed revisions would align the range of potential risks that APHIS may consider under Part 340 with both the plant pest and noxious weed authorities of the PPA, "to ensure a high level of environmental protection pursuant to APHIS' PPA authorities to regulate plant pest and noxious weeds, improve regulatory processes so that they are more transparent to stakeholders and the public, and provide regulatory relief to the extent possible so that unnecessary regulatory burdens are eliminated." APHIS states that the changes would ensure that it "can continue to effectively regulate the products of biotechnology that may pose plant pest or noxious weed risks to U.S. agriculture and the environment."
APHIS states that it is planning to prepare a programmatic EIS in connection with the proposed revisions and amendments that it is considering. The notice states that aspects of the human environment that may be potentially affected by such proposed regulatory revisions and amendments that APHIS has preliminarily identified for evaluation in the EIS will include:
- Potential impacts on U.S. agriculture and forestry production (e.g., conventional, biotechnology-based, and organic);
- Potential impacts on current and potential future uses of products of biotechnology in agriculture and forestry;
- Agronomic practices employed in biotechnology crop production that may have environmental consequences or impacts (i.e., tillage, crop rotation, and agronomic inputs);
- Potential impacts on aspects of the physical environment that include soil quality, water resources, air quality, and climate change;
- Potential impacts on aspects of the biological environment such as animal and plant communities, weed and insect resistance to herbicides and insecticides (respectively), the potential gene flow and weediness of regulated GE crop plants, and biodiversity;
- Potential impacts on consumer health and agricultural worker safety;
- Animal feed and health; and
- Socioeconomic considerations, to include potential impacts of regulated GE crop plants on the domestic economic environment, international trade, and coexistence among all forms of U.S. agriculture, conventional, biotechnology-based, and organic, in providing market demand for food, feed, fiber, and fuel.
Importantly, APHIS has preliminarily identified possible new definitions to be used in its proposed Part 340 biotechnology regulations for consideration and analysis in the EIS:
- Biotechnology -- Laboratory-based techniques to create or modify a genome that result in a viable organism with intended altered phenotypes. Such techniques include, but are not limited to, deleting specific segments of the genome, adding segments to the genome, directed altering of the genome, creating additional genomes, or direct injection and cell fusion beyond the taxonomic family that overcomes natural physiological reproductive or recombination barriers. This definition does not include and is intended not to include traditional breeding, marker assisted breeding, or chemical or radiation-based mutagenesis.
- Product of biotechnology -- An organism developed using biotechnology.
- Regulated organism -- An organism developed using biotechnology that poses plant pest or noxious weed risks as documented in an APHIS risk analysis that APHIS has determined to regulate.
APHIS states that it is considering, and invites public input on, these proposed definitions. Such input should address APHIS' regulatory objectives to safeguard agricultural plants and agriculturally important natural resources from plant pest or noxious weed damage (biological, chemical, or physical) caused by a "product of biotechnology," including its potential, or lack of potential to pose plant pest or noxious weed risks. APHIS will use these proposed definitions in the four proposed alternatives that it proposes to examine in the EIS. These proposed alternatives are:
- First Alternative: Take no action. Under this "no action" alternative, APHIS would make no changes to the existing 7 C.F.R. Part 340 regulations for certain GE organisms that pose a potential plant pest risk, and APHIS would continue to regulate certain GE organisms as it does today. APHIS would not revise its current regulations to add the definitions listed above. The No Action alternative represents the baseline against which the proposed revisions to the regulations will be compared.
- Second Alternative: Revise the current APHIS regulations concerning the introduction of certain GE organisms to provide for a process to review and regulate certain products of biotechnology to protect plant health; analyze potential plant pest and/or noxious weed risks first; and thereafter regulate only when appropriate and necessary. Under this alternative, APHIS would revise its current regulations to implement a two-step process that would ensure a thorough review of a product of biotechnology's potential to pose plant health risks (plant pest and/or noxious weed). According to APHIS, such a two-step process would enable it to consider and place risk-appropriate regulatory controls on the importation, movement, or "outdoor" use of those products that are determined to pose actual plant pest or noxious weed risks (regulate only when APHIS has determined that certain plant health risks are appropriate and necessary to require some regulatory action to be taken and implemented).
- Third Alternative: Revise the current APHIS regulations concerning the introduction of certain GE organisms to provide for the regulation of "products of biotechnology" as either plant pests or noxious weeds using the existing plant pest "analysis trigger" or a noxious weed "analysis trigger" that might classify plants produced through biotechnology as potential plant pests or noxious weeds. The notice states that under this third alternative, APHIS' proposed regulations would substantially increase oversight and resources over those currently used to regulate GE organisms. APHIS would not exempt certain "products of biotechnology" from APHIS regulatory oversight if a "product of biotechnology" was developed using a plant pest; or, if it posed a risk as a noxious weed pursuant to the PPA definition of a noxious weed. Introductions of products of biotechnology that posed a plant pest risk or noxious weed risk would require a permit and conditions would be applied for import, interstate movement, or "outdoor" use. APHIS states that its proposed regulatory scheme would include the range of actions and processes that would enable it to become, to the extent permitted by its PPA authorities, an "all-encompassing, wide-scale regulatory permitting authority," but still fully comply with the CF and support the continued development of products of biotechnology.
- Fourth Alternative: Withdraw the current 7 C.F.R. Part 340 regulations completely and implement a voluntary, non-regulatory consultative process for certain products of biotechnology whereby APHIS would document plant pest or noxious weed risks, if any, of certain products of biotechnology as defined above. Under this fourth alternative, developers would be responsible for ensuring that their respective products of biotechnology do not pose risks as a plant pest or noxious weed pursuant to their respective PPA definitions, and that their activities related to the importation, interstate movement, or release into the environment of their respective products of biotechnology are not in violation of any existing statutes or federal regulations that relate to plant pests or noxious weeds. Under this alternative, APHIS would not have a dedicated regulatory scheme to regulate specifically any products of biotechnology that may pose plant pest or noxious weed risks and therefore would not require consultation nor prescribe methods or practices related to any products of biotechnology. APHIS would manage any products of biotechnology that pose plant pests or noxious weed risks using its other existing regulations pursuant to the PPA; e.g., 7 C.F.R. Parts 330 and 360.
APHIS requests comments and information related to the topics and issues presented in the Federal Register notice so that the scope of the analysis in the draft EIS, including the types and range of reasonable alternatives, is "reasonable and appropriate," and proposed revisions to 7 C.F.R. Part 340 are well-evaluated. APHIS states that public input will be helpful in further defining the scope of the issues and reasonable alternatives under consideration. APHIS will publish a notice in the Federal Register to announce the availability of a draft EIS when it is issued and to invites the public to provide comments on it.
APHIS' efforts to solicit comment and consider potentially radical changes to its regulation of products of biotechnology are commendable. The notice reflects an awareness of the changing nature of the regulatory, commercial, and societal implications of the federal regulation of genetically modified organisms (GMO). The range of options under consideration cover the gamut -- from doing nothing, to regulating nothing and relying on voluntary efforts. As the public's attention has been focused in recent days on the Zika virus and the role genetically modified mosquitoes may play in fighting the explosive spread of the virus, the notice is likely to generate significant comment.
The invitation for comment on a wholesale set of options for how USDA should regulate GMO's is separate from the Administration-wide review of the CF. Whether EPA might invite similar public consideration of regulatory options on the merits of more, less, or the same level of review and regulation is unclear, and certainly has not been discussed publicly when EPA staff have described its actions under the Administration-wide review. Under the guise of reviewing the effectiveness of the current CF, some options for change to the EPA roles as they relate to USDA efforts might be part of what some stakeholders will want to comment on. As some of the USDA decisions to de-regulate traits then go to EPA for review under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), some observers may leverage the USDA review process as a means to prompt changes to the EPA process. Whether EPA would incorporate or even consider changes under the guise of its relationship to the USDA role would itself be a separate question.