Tuesday, April 14, 2020

Agricultural Law Weekly Review—April 2, 2020

Written by:  
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant

The Agricultural Law Weekly Review provides an update of recent agricultural law developments from the local, state, national, and international levels.  Subscribe to the ALWR at pennstateaglaw.com

COVID-19 Pandemic:  Congress Enacts Three Laws Providing Pandemic Assistance
Over the last few weeks, the U.S. Congress has enacted three new federal laws providing COVID-19 pandemic assistance benefits and programs to individuals and businesses, including agricultural stakeholders. 
On March 5 and 6, 2020, respectively, Congress enacted and the President signed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, H.R. 6074 (P.L. 116-123), providing $8.3 billion in emergency funding, which includes appropriations for several Small Business Administration (SBA) financial assistance and loan programs for which agricultural producers are eligible. 
On March 18, 2020, Congress enacted and the President signed the Families First Coronavirus Response Act, H.R. 6201 (P.L. 116-127), providing, among other things, appropriations to USDA for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); and the Emergency Food Assistance Program (TEFAP), and multiple changes to employment laws impacting agricultural employers and employees.  
On March 27, 2020, Congress passed and the President signed the Coronavirus Aid, Relief, and Economic Security Act, (CARES Act), H.R. 748 (P.L. 116-136), providing, among other things, a second batch of additional changes to employment laws impacting agricultural employers and employees.  

Dairy Policy: Dean Foods Announces Results of Bankruptcy Auction and Sale Order
On March 31, 2020, bankruptcy debtor Dean Foods announced that following the court-approved auction and sale process conducted that day, dairy producer cooperative Dairy Farmers of America (DFA) has been named as the winning bidder to acquire 44 of Dean Foods’ processing and manufacturing facilities for $433 million.  The sale/purchase agreement remains subject to Bankruptcy Court approval and anti-trust review by the U.S. Department of Justice.  Three other sets of assets were purchased by three other parties, as outlined in the announcement.  The Bankruptcy Court Sale Hearing seeking approval of the sales occurred on April 3, 2020, and the sale to DFA was approved by Order entered April 5, 2020, containing the purchase agreement as an exhibit.   

Checkoff Programs: First Amendment Challenge to Beef Checkoff Program Dismissed 
On March 27, 2020, the U.S. District Court for the District of Montana issued an Order in the case of R-CALF, et al. v. USDA, CV-16-41-GF-BMM, entering summary judgment in favor of USDA and dismissing all claims that the federal Beef Checkoff Program pursuant to 7 U.S.C. 2901 et. seq, violated the U.S. Constitution’s First Amendment.  The four-year old litigation followed a complex path, which included mid-litigation entry into memorandums of understanding (MOUs) between USDA and the Qualified State Beef Councils (QSBCs) granting USDA control over QSBC promotional activities.  This ultimately led to the court’s legal conclusion that the federally-authorized and mandatory collection and use of beef checkoff dollars for QSBC beef promotion constituted “government speech” immune from First Amendment challenge. 
Agricultural Labor: H-2A and H-2B Visa Processing Will Continue in Mexico
On March 26, 2020, the U.S. State Department announced that, despite a earlier directive to the contrary re: Mexico, U.S. Embassies and Consulates generally could in fact continue to process and issue H-2A and H-2B visa applications.  Consular officers are authorized to waive the in-person interview requirement under specified conditions.  In addition, a Q&A document accompanying the latest announcement also outlined a new ability for U.S. employers to substitute, under certain conditions, one guest worker for another who is no longer available.  According to the announcement, Mexico issued 88.2 % of H-2A and 74.1% of H-2B visas in federal fiscal year 2019.  For more background, see Agricultural Law Weekly Review: (a) dated March 26, 2020, titled, “Entry Restrictions From Mexico Inapplicable to H-2A Visa Holders,” and (b) dated March 19, 2020, titled: “U.S. Embassy and Consulates in Mexico Suspend Visa Services.” 
Agricultural Transportation:  Hours of Service Trucking Rules Exemption Includes Feed and Fertilizer as well as Food and Livestock 
On March 25, 2020, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) updated the frequently asked questions for its COVID-19 emergency declaration to clarify that transport of feed and fertilizer are currently exempt from federally mandated hours-of-service (HOS) rules, supplementing an earlier March 18, 2020, clarification that the transport of food and livestock were also covered.  For more background, see Agricultural Law Weekly Review of March 19, 2020“Ag Transportation: Expanded Emergency Declaration Relaxes Hours of Service Trucking Rules For Food and Other Cargo until April 12, 2020.”
International Trade: U.S. Importer Declarations List Opened for Comment 
On March 31, 2020, USDA’s Animal and Plant Health Inspection Service (APHIS) published Notice at 85 FR 17849 of the opening of a public comment period, to run from March 31, 2020 through June 1, 2020, on the list of plant and animal products under the Lacey Act, 16 U.S.C. 3371 et seq., requiring importer declarations at the time of importation.  The Lacey Act combats trafficking in illegally taken wildlife, fish, or plants and was amended in 2008 to include a phased-in list of items requiring import declarations containing the scientific name of the plant, value of the importation, quantity of the item, and name of the country from which the item was harvested.  

From National Ag Law Authorities & Sources: 
Roger A. McEowen, Conflicting Interests in Stored Grain (Mar. 27, 2020). 

Penn State Research & News:
A'ndrea Elyse Messer, Engineers model mutations causing drug resistance (Mar. 30, 2020). 

Pennsylvania Department of Agriculture Press Releases:

U.S. Department of Agriculture Press Releases:

Pennsylvania Executive Agencies—Actions and Notices: 
Department of Agriculture 
50 Pa.B. 1842 “Pennsylvania Malt and Brewed Beverage Industry Promotion Board; Grant Solicitation and Application Procedures,” Notice (Mar. 25, 2020).
50 Pa.B. 1852 “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures,” Notice (Mar. 25, 2020).

Milk Marketing Board
50 Pa.B. 1836 “7 PA. CODE CH. 150 Milk Marketing Fees,” Rules and Regulations (Mar. 25, 2020).

Susquehanna River Basin Commission
50 Pa.B. 1918 “Actions Taken at March Meeting,” Notice (Mar. 25, 2020).
50 Pa.B. 1919 “Grandfathering Registration Notice,” Notice (Mar. 25, 2020).
50 Pa.B. 1919 “Projects Approved for Consumptive Uses of Water,” Notice (Mar. 25, 2020).
50 Pa.B. 1920 “Projects Approved for Consumptive Uses of Water,” Notice (Mar. 25, 2020).
50 Pa.B. 1921 “Projects Approved for Minor Modifications,” Notice (Mar. 25, 2020).
50 Pa.B. 1922 “Revocation of Approvals [XPR Resources, LLC; Seneca Resources Company, LLC; Chief Oil & Gas, LLC],” Notice (Mar. 25, 2020).  

Pennsylvania Legislature
H.B. 752 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in property and buildings, further providing for price paid for acquisitions and improvements.” Re-referred to Appropriations [Senate] (Mar. 25, 2020). 
H.B. 716 “An Act amending . . . The Administrative Code of 1929, in powers and duties of the Department of Labor and Industry, its departmental administrative and advisory boards and departmental administrative officers, providing for joint task force on misclassification of employees.” Removed from table [Senate] (Mar. 25, 2020). 
S. Res. 179 “A Resolution petitioning the Congress of the United States to extend daylight saving time throughout the year across the country.” Laid on table [Senate] (Mar. 25, 2020).
S.B. 352 “An Act authorizing local taxing authorities to provide for tax exemption incentives for certain deteriorated industrial, commercial, business and residential property and for new construction in deteriorated areas of communities; providing for an exemption schedule; and establishing standards and qualifications.” Re-referred to Appropriations [House] (Mar. 25, 2020).
H.B. 1106 “An Act amending . . . The Administrative Code of 1929, providing for environmental permits and plan approvals; making related repeals; and abrogating regulations.” Removed from table [House] (Mar. 25, 2020).
H.B. 68 “An Act amending . . . the Unemployment Compensation Law, in administration of act, providing for unemployment compensation benefit notification by employers, in contributions by employers and employees, further providing for relief from charges; and providing for emergency provisions related to COVID-19.” Signed by Governor (Mar. 27, 2020). 
H.B. 1232 “An Act amending . . . The Fiscal Code, providing for emergency finance and tax provisions; in additional special funds, providing for COVID-19 response transfers and for the Enhanced Revenue Collection Account; in 2018-2019 budget implementation, further providing for Department of Revenue; and making an editorial change.” Signed by Governor (Mar. 27, 2020)
H.B. 1100 “An Act amending . . . the Tax Reform Code of 1971, providing for energy and fertilizer manufacturing tax credit.” Vetoed by Governor (Mar. 27, 2020). 

Federal Executive Agencies—Actions and Notices: 
Agricultural Department
85 FR 17041 “Submission for OMB Review; Comment Request [Review of Major Changes in the Supplemental Nutrition Assistance Program],” Notice (Mar. 26, 2020). 
85 FR 17304 “Notice of Request for Approval for Generic Clearance To Conduct Multiple Crop and Pesticide Use Surveys,” Notice—Comment Period (Mar. 27, 2020). 
85 FR 17304 “Submission for OMB Review; Comment Request [Reporting and Recordkeeping Requirements for 7 CFR, Part 29—Tobacco Inspection],” Notice (Mar. 27, 2020). 
85 FR 17528 “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Scrapie in Sheep and Goats; Interstate Movement Restrictions and Indemnity Program],” Notice (Mar. 30, 2020). 
85 FR 17528 “Submission for OMB Review; Comment Request [Determining Eligibility for Free and Reduced Price Meals and Free Milk in Schools],” Notice (Mar. 30, 2020).
85 FR 18185 “Solicitation of Input From Stakeholders on Agricultural Innovations,” Notice—Comment Period (Apr. 1, 2020).

Agricultural Marketing Service
85 FR 17768 “Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon; Increased Assessment Rate,” Proposed Rule—Comment Period (Mar. 31, 2020).
85 FR 17848 “National Organic Standards Board (NOSB): Call for Nominations,” Notice (Mar. 31, 2020).
85 FR 18155 “Exceptions to Geographic Boundaries [Grain Inspection Services],” Proposed Rule—Comment Period (Apr. 1, 2020).

Animal and Plant Health Inspection Service
85 FR 17306 “Import Requirements for the Importation of Fresh Fragrant Pears From China Into the United States,” Notice (Mar. 27, 2020). 
85 FR 17850 “Import Requirements for the Importation of Fresh Blueberries From Chile Into the United States,” Notice—Comment Period (Mar. 31, 2020).
85 FR 17849 “Implementation of Revised Lacey Act Provisions,” Notice—Comment Period (Mar. 31, 2020).
85 FR 18185 “Notice of Proposed Revision to Import Requirements for the Importation of Fresh Citrus From South Africa Into the United States,” Notice—Comment Period (Apr. 1, 2020). 

Environmental Protection Agency
85 FR 17328 “Pesticide Product Registration; Receipt of Applications for New Active Ingredients,” Notice—Comment Period (Mar. 27, 2020). 

Executive Office of the President
85 FR 16999 “National Agriculture Day, 2020,” Presidential Document (Mar. 26, 2020). 

Federal Emergency Management Agency
85 FR 17339 “National Flood Insurance Program (NFIP); Assistance to Private Sector Property Insurers, Notice of FY 2021 Arrangement,” Notice—Comment Period (Mar. 27, 2020).
85 FR 17337 “Proposed Flood Hazard Determinations [Iowa, Kansas],” Notice—Comment Period (Mar. 27, 2020).
85 FR 17345 “Final Flood Hazard Determinations [IA, ID, MA, OK, PA, VA],” Notice (Mar. 27, 2020).

Fish and Wildlife Service
85 FR 17093 “Endangered and Threatened Species; Receipt of Incidental Take Permit Application and Habitat Conservation Plan; Availability of Environmental Assessment; Extension of Public Comment Period,” Notice (Mar. 26, 2020). 
85 FR 17351 “Endangered and Threatened Species; Receipt of Recovery Permit Applications,” Notice—Comment Period (Mar. 27, 2020). 
85 FR 17350 “Endangered and Threatened Species; Receipt of Recovery Permit Applications,” Notice—Comment Period (Mar. 27, 2020).
85 FR 17347 “Endangered and Threatened Wildlife and Plants; Draft Revised Recovery Plan for Kearney's Blue Star,” Notice—Comment Period (Mar. 27, 2020).
85 FR 18054 “Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rules To List the Bi-State Distinct Population Segment of Greater Sage-Grouse With Section 4(d) Rule and To Designate Critical Habitat,” Proposed Rule (Mar. 31, 2020). 

Food and Drug Administration
85 FR 17008 “Temporary Policy Regarding Preventive Controls and Foreign Supplier Verification Programs Food Supplier Verification Onsite Audit Requirements During the COVID-19 Public Health Emergency: Guidance for Industry; Availability,” Rule (Mar. 26, 2020). 
85 FR 18125 “New Animal Drugs; Withdrawal of Approval of New Animal Drug Applications,” Rule (Apr. 1, 2020).
85 FR 18114 “New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Change of Sponsor; Change of Sponsors' Name and Addresses,” Rule (Apr. 1, 2020). 

Labor Department 
85 FR 17099 “Comment Request; Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration,” Notice—Comment Request (Mar. 26, 2020). 

National Agricultural Statistics Service
85 FR 17851 “Notice of Intent to Reinstate an Information Collection [Census of Agriculture Content Test],” Notice—Comment Period (Mar. 31, 2020). 

Office of the U.S. Trade Representative
85 FR 17158 “Adjustment to Specialty Sugar Tariff-Rate Quota Tranches and Opening Dates,” Notice (Mar. 26, 2020). 
85 FR 17938 “Postponement of Field Hearings Regarding Trade Distorting Policies That May Be Affecting Seasonal and Perishable Products in U.S. Commerce,” Notice (Mar. 31, 2020). 

Rural Business-Cooperative Service
85 FR 17721 “Notification of Guarantee Loan Payment Deferrals for Business and Industry Loan Guarantees, Rural Energy for America Program Loan Guarantees, Community Facilities Loan Guarantees, and Water and Waste Loan Guarantees,” Rule (Mar. 31, 2020). 

Rural Utilities Service
85 FR 17308 “Information Collection Activity; Comment Request [Electric System Emergency Restoration Plan],” Notice—Comment Period (Mar. 27, 2020). 
85 FR 17309 “Notice of Request for Revision of a Currently Approved Information Collection; Comments Requested [Servicing of Water Programs Loans and Grants],” Notice—Comment Period (Mar. 27, 2020). 
85 FR 17308 “Notice of Request for Extension of a Currently Approved Information Collection [RUS Specification for Quality Control and Inspection of Timber Products],” Notice—Comment Period (Mar. 27, 2020). 
85 FR 17530 “Broadband Pilot (ReConnect) Program,” Notice (Mar. 30, 2020). 

U.S. House Agriculture Committee Actions: 
H.R.6384 “To provide community-based nonprofit feeding and anti-hunger groups with funding to partner with small and mid-sized restaurants to expand meal access and delivery for low-income and vulnerable populations during a pandemic or public health emergency.” Referred to House Committee on Agriculture (Mar. 24, 2020). 
H.R.6385 “To provide temporary relief from troubled debt restructuring disclosures, to delay the implementation of certain accounting standards for depository institutions substantially affected by COVID-19, and for other purposes.” Referred to the Committees on Financial Services and Agriculture (Mar. 25, 2020). 
H.R.6401 “To prohibit Members of Congress from purchasing or selling certain investments, and for other purposes.”  Referred to the Committees on Financial Services, Agriculture, and House Administration (Mar. 26, 2020). 
H.R.6415 “To build on America's spirit of service to nurture, promote, and expand a culture of service to secure the Nation's future, address critical needs of the Nation, and strengthen the civic fabric of American society.” Referred to the Committees on Education and Labor, Armed Services, Foreign Affairs, Agriculture, Natural Resources, Ways and Means, Oversight and Reform, Veterans' Affairs, Homeland Security, Intelligence, House Administration, the Judiciary, and Energy and Commerce (Mar. 27, 2020). 

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 
No new actions Mar. 25–Apr.1, 2020

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