Penn State Agricultural Law Blog: Agricultural Law Weekly Review

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: USDA Announces Coronavirus Food Assistance Program:

On April 17, 2020, USDA announced the administrative creation of the Coronavirus Food Assistance Program, utilizing $19 billion of Coronavirus Aid, Relief, and Economic Security Act (CARES) and Families First Coronavirus Response Act (FFCRA) authority and appropriations. The program’s primary initiatives are titled (1) Direct Support to Farmers and Ranchers; and (2) USDA Purchase and Distribution. The Direct Support program will use $16 million for producer compensation for 2020 marketing year actual losses resulting from price, supply chain, demand, and over-supply impacts of COVID-19. The USDA Purchase program will use $3 billion to purchase three categories of food from producers (fresh produce, dairy, and meat) to distribute through the existing charitable food system via a “food box” composed of all three commodities. In addition, two additional funding allocations of $874 million and $859 million will be used for traditional charitable food system commodity distribution. No regulatory information about the program has been published in the Federal Register or elsewhere at this time. USDA Secretary Perdue conducted a 30 minute media call on the program on April 17, 2020, which is available on USDA’s website. A press release from Senator John Hoeven, Chairman of the Senate Agriculture Appropriations Committee, includes further details of the Direct Support program.

COVID-19: USDA Takes First Steps on Food Box Distribution Program:

On April 17, 2020, as part of the Coronavirus Food Assistance Program, USDA’s Agricultural Marketing Service (AMS) created a webpage exclusively devoted to the Food Box Distribution Program with links to existing procurement and solicitation information for food producers seeking to become vendors for the program. On April 22, 2020, Penn State Extension also published a webpage, titled How to Bid for the USDA Food Box Distribution Program, detailing what is known about the procurement process to date, including notification that an initial solicitation for bids is slated to be issued April 24, 2020, with a May 1, 2020, submission deadline.

WOTUS: Navigable Waters Protection Rule Published in Federal Register: On April 21, 2020, the Environmental Protection Agency and Army Corps of Engineers published in the Federal Register the final rule titled, Navigable Waters Protection Rule: Definition of ‘Waters of the United States.’ 85 FR 22250. This publication now establishes the effective date of the final rule as June 22, 2020. The text of the final rule had been publicly released on January 23, 2020. For more, see the Agricultural Law Weekly Review of January 30, 2020, titled “EPA Releases New Navigable Waters Protection Rule to Replace 2015 WOTUS Rule.”

Agricultural Labor: H-2A Worker Rules Temporarily Changed for 2020 Growing Season: On April 20, 2020, The Department of Homeland Security published a Temporary Final Rule titled, “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency,’ effective from April 20, 2020, through August 18, 2020, which makes two material temporary changes to current H-2A program administration. The first is that an H-2A employer with a valid temporary labor certification may begin employing H-2A workers currently in the United States with valid H-2A visa status, starting on the date the employer files an extension-of-stay petition. This means employers may obtain workers more expediently and H-2A workers already in the country may more easily change employers and stay in the United States for the 2020 growing season. The second change is that the three-year maximum stay for H-2A is workers temporarily extended, in order to enable extension-of-stay petitions to be granted during this period.

Nutrition Programs: Federal Court Invalidates 2018 School Lunch Nutrition Rule: On April 13, 2020, the U.S. District Court for the District of Maryland vacated and remanded the 2018 USDA final rule titled, “Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements.” Center for Science in the Public Interest, et al., v. Perdue, et al., Case No. GJH-19-1004. The court’s basis was that in proposing to amend a 2012 rule, titled “Nutrition Standards in the National School Lunch and School Breakfast Programs,” USDA’s initial 2017 interim rule, upon which public comment was solicited, proposed to extend previous sodium and whole grain content targets, while USDA’s 2018 final rule effectively eliminated the previous targets by rewriting them. The court stated that “there is a fundamental difference between delaying compliance standards—which indicates that school meals will still eventually meet those standards—and eliminating those standards altogether” and held that the interim rule “did not provide sufficient notice of the Final Rule.”

Industrial Hemp: USDA Updates State Hemp Production Plan Data:

On April 26, 2020, USDA’s Agricultural Marketing Service (AMS) updated its official web-based listing of the status of state and tribal hemp production plans submitted for approval pursuant to the 2018 Farm Bill provisions and the October 31, 2019, Interim Final Rule on Domestic Hemp Production Programs. As of April 16, 2020, a total of 35 states are able to legally produce hemp in the 2020 growing season as follows: (a) 16 states have approved production plans under the 2018 Farm Bill authority; (b) 18 states will produce under the 2014 Farm Bill Pilot Program authority; (c) 1 state will have production licensed and regulated by USDA. Of the remaining 15 states: (a) 4 state production plans remain under review; (b) 4 state production plans are still being drafted for submission to USDA; (c) 2 state plans are pending resubmission after USDA provided feedback on the states’ first submissions; and (d) 5 states treat hemp production as a violation of state law (Idaho, Michigan, Mississippi, New York, and Rhode Island). The Center for Agricultural and Shale Law maintains a spreadsheet of all data, with links to all approved state plans, here.

Water Quality: Toledo Appeals Order Declaring Lake Erie Bill of Rights Unconstitutional: On March 27, 2020, the City of Toledo filed an appeal to the U.S. Court of Appeals for the Sixth Circuit from the February 27, 2020, decision of the U.S. District Court for the Northern District of Ohio that the amendment to the City of Toledo’s municipal code enacted by referendum and known as the “Lake Erie Bill of Rights” (LEBOR) is unconstitutionally under the U.S. Constitution’s Fourteenth Amendment. For more background, see the Agricultural Law Weekly Review of March 28, 2019, titled “Ohio Federal Court Finds Lake Erie Bill of Rights to be Unconstitutional.”

From National Ag Law Authorities & Sources:

Roger McEowen, Disrupted Economic Activity and Force Majeure–Avoiding Contractual Obligations in Time of Pandemic (April 17, 2020).

Paul Goeringer, Federal District Court Dismisses Claims that USDA Agency Violated Federal Law In Granting A Loan Guarantee To Maryland Poultry Farm (April 21, 2020).

Peggy Kirk Hall, A “Primary” Education: Ohio Supreme Court Rules on Wedding Barn Dispute (April 21, 2020).

Tiffany Dowell Lashmet, Texas Department of Agriculture ADOPTED Hemp Regulations (April 20, 2020).

Penn State Research & News:

A'ndrea Elyse Messer, Amazonian Crops Domesticated 10,000 Years Ago (April 8, 2020).

Penn State Researchers Find Significant Economic Losses Due to Soybean Diseases (April 16, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Wolf Administration Offers Guidance to Food Processing Facilities to Ensure Safety of Workforce, Food Supply (April 17, 2020).

Department of Agriculture Provides Guidance for Community Gardens to Continue Amid COVID-19 (April 17, 2020).

Department of Agriculture Confirms Pennsylvania’s First Spotted Lanternfly Hatch, Encourages Residents to be Vigilant (April 21, 2020).

Secretary of Agriculture: Pennsylvania’s Milk Supply is Strong, Choose PA Dairy (April 21, 2020).

Department of Agriculture Outlines Updated Farm Labor Requirements, Advocates for Skilled Labor to Ensure Food Supply (April 21, 2020).

U.S. Department of Agriculture Press Releases:

USDA Offers Resources for New Backyard Poultry Keepers (April 16, 2020).

APHIS Authorizes Importation of Fresh Sand Pears from Japan into the United States (April 16, 2020).

DC and North Carolina Added to Innovative SNAP Online Pilot Program (April 17, 2020).

USDA Approves Program to Feed Kids in North Carolina and Massachusetts (April 17, 2020).

USDA Announces Coronavirus Food Assistance Program (April 17, 2020).

West Virginia Added to Innovative SNAP Online Pilot Program (April. 18, 2020).

APHIS Adds Indonesia to the List of Regions Affected by African Swine Fever (April 20, 2020).

USDA Approves Program to Feed Kids in Arizona and Illinois (April. 20, 2020).

Kentucky, Missouri, and Texas Added to Innovative SNAP Online Pilot Program (April 21, 2020).

USDA Confirms Ralstonia solanacearum race 3 biovar 2 in Geranium Plants in Greenhouse (April. 21, 2020).

USDA Holds Virtual Career Expo for Kansas City Jobs (April 21, 2020).

USDA Increases Monthly SNAP Benefits by 40% (April 22, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:

Department of Community and Economic Development

50 Pa.B. 2080 “Availability of the Draft 2020 Annual Action Plan; Public Hearing,” Notice (April 18, 2020).

Pennsylvania Legislature

H.B. 2326 “An Act providing for duties of original equipment manufacturers relating to diagnosis, maintenance and repair of digital electronic equipment and for enforcement by Attorney General.” Referred to Commerce [House] (April 20, 2020).

H.B. 827 “An Act designating certain activity by the Delaware River Basin Commission as the exercise of the power of eminent domain that entitles the owners of the property in question to appropriate and just compensation.” Removed from Table [House] (April 21, 2020).

H.B. 1403 “An Act repealing the act . . . entitled "An act to encourage the planting of trees along the roadsides of this Commonwealth, and providing a penalty for killing, removing or injuring the same. . . ." Third consideration and final passage [House] (April 21, 2020).

H.B. 2369 “An Act amending the act . . . known as the Job Enhancement Act, in Community Development Bank Grant and Loan Program, further providing for definitions and providing for COVID-19 grant and loan programs.” Laid on the table [House] (April 21, 2020).

S.B. 679 “An Act amending the act . . . known as the Dam Safety and Encroachments Act, further providing for definitions; and providing for programs for removing obstructions and flood-related hazards on streams.” Removed from table [Senate] (April 21, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Agricultural Department

85 FR 21166 “Submission for OMB Review; Comment Request [Farm Service Agency: Farm Loan Program—Inventory Property Management],” Notice (April 16, 2020).

85 FR 21386 “Submission for OMB Review; Comment Request [USDA PIV Request for Credential],” Notice (April 17, 2020).

85 FR 22123 “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Phytosanitary Export Certification],” Notice (April 21, 2020).

85 FR 22123 “Notice of Request for Public Comment on Updates to Technical Guidelines for Quantifying Greenhouse Gas (GHG) Emissions and Carbon Sequestration at the Entity-scale for Agriculture and Forestry,” Notice—Comment Period (April 21, 2020).

85 FR 22393 “Submission for OMB Review; Comment Request [Forest Service: Generic Information Collection to Conduct Survey Improvement Projects],” Notice—Comments Requested (April 22, 2020).

Agricultural Marketing Service

85 FR 21162 “2020/2021 Rates Charged for AMS Services,” Notice (April 16, 2020).

85 FR 21822 “Grain Inspection Advisory Committee Meeting; Postponed” Notice (April 20, 2020).

Animal and Plant Health Inspection Service

85 FR 21167 “Decision To Authorize the Importation of Fresh Sand Pears From Japan Into the United States,” Notice (April 16, 2020).

85 FR 21170 “Agrivida, Inc.; Availability of a Petition for Determination of Nonregulated Status for Maize Genetically Engineered for the Production of Phytase Enzyme,” Notice—Comment Period (April 16, 2020).

85 FR 21386 “Addition of Indonesia to the List of Regions Affected With African Swine Fever,” Notice (April 17, 2020).

85 FR 22124 “Notice of Request for Extension of Approval of an Information Collection; Importation of Live Fish, Fertilized Eggs, and Gametes From Tilapia Lake Virus-Susceptible Species,” Notice—Comment Period (April 21, 2020).

Engineers Corps and Environmental Protection Agency

85 FR 22250 “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States’” Rule (April 21, 2020).

Environmental Protection Agency

85 FR 21428 “Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses,” Notice (April 17, 2020).

85 FR 22065 “Banda de Lupinus Albus Doce (BLAD); Proposal To Revoke Exemption and Establish Pesticide Tolerances; Reopening of Comment Period,” Proposed Rule—Comment Period (April 21, 2020).

Federal Deposit Insurance Corporation

85 FR 22009 “Regulatory Capital Rule: Paycheck Protection Program Lending Facility and Paycheck Protection Program Loans; Correction,” Rule (April 21, 2020).

Federal Emergency Management Agency

85 FR 21783 “Suspension of Community Eligibility [New Jersey, Iowa],” Rule (April 20, 2020).

85 FR 22438 “Final Flood Hazard Determinations [Colorado, Florida],” Notice (April 22, 2020).

85 FR 22432 “Changes in Flood Hazard Determinations [AL, AZ, CA, IL, MI, NV, NY],” Notice (April 22, 2020).

85 FR 22434 “Proposed Flood Hazard Determinations [AZ, IN, IA],” Notice—Comment Period (April 22, 2020).

85 FR 22435 “Proposed Flood Hazard Determinations [Florida],” Notice—Comment Period (April 22, 2020).

85 FR 22436 “Proposed Flood Hazard Determinations [IL, IN, IA, MI, MN, WI],” Notice—Comment Period (April 22, 2020).

Federal Reserve System

85 FR 22345 “Loans to Executive Officers, Directors, and Principal Shareholders of Member Banks,” Rule—Comment Period (April 22, 2020).

Fish and Wildlife Service

85 FR 21282 “General Provisions; Revised List of Migratory Birds,” Rule (April 16, 2020).

Food and Drug Administration

85 FR 21242 “Agency Information Collection Activities; Proposed Collection; Comment Request; Establishing and Maintaining a List of U.S. Manufacturers/Processors of Feed Additives, Premixes, Compound Feed, Distillers' Dried Grains, and Distillers' Dried Grains With Solubles for Use With Animals With Interest in Exporting to The People's Republic of China,” Notice—Comment Period (April 16, 2020).

85 FR 21795 “Food Standards; General Principles and Food Standards Modernization; Extension of Comment Period,” Proposed Rule—Comment Period (April 20, 2020).

85 FR 22429 “Nonbinding Feedback After Certain Food and Drug Administration Inspections of Device Establishments; Guidance for Industry and Food and Drug Administration Staff; Availability,” Notice (April 22, 2020).

Food and Nutrition Service

85 FR 21172 “Request for Information: WIC National Universal Product Code Database Next Steps,” Notice—Comment Period (April 16, 2020).

Food and Safety Inspection Service

85 FR 21171 “Notice of Request for Renewal of an Approved Information Collection (Modernization of Poultry Slaughter Inspection),” Notice—Comment Period (April 16, 2020).

Homeland Security Department

85 FR 21739 “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency,” Rule (April 20, 2020).

National Agricultural Statistics Service

85 FR 21176 “Notice of Intent To Request To Reinstate an Information Collection [Local Foods Survey],” Notice—Comment Period (April 16, 2020).

National Institute of Food and Agriculture

85 FR 22124 “Solicitation of Stakeholder Input for Urban, Indoor, and Other Emerging Agricultural Production Research, Education, and Extension Initiative,” Notice—Comment Period (April 21, 2020).

Rural Utilities Service

85 FR 21387 “Information Collection Activity; Comment Request [Technical Assistance Programs],” Notice—Comment Period (April 17, 2020).

Small Business Administration

85 FR 21747 “Business Loan Program Temporary Changes; Paycheck Protection Program-Additional Eligibility Criteria and Requirements for Certain Pledges of Loans,” Rule—Comment Period (April 20, 2020).

Susquehanna River Basin Commission

85 FR 21914 “Public Hearing [Projects Scheduled for Action, Commission-Initiated Project Approval Modifications],” Notice—Comment Period (April 20, 2020).

U.S. House Agriculture Committee Actions:

H.R.6546 “To require the Secretary of Agriculture and the Secretary of the Interior to jointly report to Congress on certain efforts to address the COVID-19 pandemic, and for other purposes.” Referred to the Committee on Natural Resources and the Committee on Agriculture (April 17, 2020).

H.R.6565 “To ensure that low-income college students are eligible for emergency supplemental nutrition assistance program benefits.” Referred to the House Committee on Agriculture (April 21, 2020).

H.R.6582 “To exclude from income and resources certain Federal pandemic unemployment compensation for the purpose of determining income under the supplemental nutrition assistance program.” Referred to the House Committee on Agriculture (April 21, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:

No new actions April 16–22, 2020

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

April 16–22, 2020 Top #AgLaw links:

The Paycheck Protection Program (PPP) of the CARES Act, FarmDoc Daily (April 14, 2020).

Coronavirus-Related Cattle Losses Estimated at $13.6 Billion, Brownfield (April 16, 2020).

Trump Administration Aims to Buy Milk, Meat to Help Farmers Hit by Coronavirus: Perdue, Reuters (April 15, 2020).

Unconstitutional: Virginia Governor Vetoes Bill Targeting Plant-Based ‘Milk’, Food Navigator-USA (April 14, 2020).

Florida Hemp Plan Wins USDA Approval in Time for 2020 Applications, Hemp Industry Daily (April 16, 2020).

One Year of Coronavirus Relief Could Match Two Years of Trade War Aid, Successful Farming (April 17, 2020).

Trump Administration to Unveil $15.5 Billion First Phase of Coronavirus Farm Aid: Sources, Reuters (April 13, 2020).

USDA Approves Hemp Plans for Florida, Kansas and Three Indian Tribes, Marijuana Moment (April 16, 2020).