Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
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).
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).
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).
USDA Approves Program to Feed Kids in Arizona
and Illinois (April. 20, 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).
Connect with us on Facebook. Every
week we post the CASL Ledger detailing all of our publications and activities
from the week.
Want to get updates,
but prefer to listen?
Check out the Agricultural Law Podcast. Subscribe at iTunes, Spotify, or Stitcher.
Want a monthly recap
of some of the biggest legal developments in agriculture?
Check out our February 2020 Agricultural Law Brief.
To receive this
monthly update via email, subscribe here.
