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.
Dairy Policy: Dean Foods
Bankruptcy Asset Sale Proceeds Without DFA as Pre-Negotiated Opening Bidder
On March 19, 2020, a
hearing was conducted in the Dean Foods Chapter 11 bankruptcy, pending in the
U.S. Bankruptcy Court for the Southern District of Texas, Case
#19-36313, on a motion filed by Debtor
Southern Foods Group, LLC and forty-two affiliated companies (Dean Foods) to
amend the February 17, 2020, “Bidding Procedures for Sale of Debtors’ Assets”
Order. That Order established dairy
producer cooperative Dairy Farmers of America, Inc. (DFA) as what is referred
to in bankruptcy terminology as a “Stalking Horse Bidder” whose bid terms are pre-negotiated
with Debtor Dean Foods and serve as the opening bid. As a result of the motion and hearing, the court
entered a new March 19, 2020, “Bidding Procedures for Sale of Debtors’
Assets” Order which strikes any
reference to an agreement with DFA or a pre-negotiated Stalking Horse Bid. The bid deadline is March 30, 2020, and a sale
hearing before the court is set for April 3, 2020. The hearing was the first public disclosure
that the $425 million asset sales agreement announced in February 2020 between Dean Foods and DFA has been terminated.
Pesticides: Maryland Bill Enacting Chlorpyrifos
Ban Awaits Governor’s Action
On March 18, 2020, the Maryland
General Assembly passed, and transmitted to Maryland Governor Larry Hogan, Maryland
Senate Bill 300. This legislation creates a phased-in state-wide prohibition on use of the pesticide chlorpyrifos, beginning with an October
1, 2020, aerial application ban and concluding with a total prohibition of its
use by January 1, 2022. Unless vetoed by
Governor Hogan, the bill will become law on April 17, 2020. Under the bill, beginning January 1, 2021, the
use of chlorpyrifos or seeds treated with it is prohibited, except for specified
applications to fruit trees or snap bean seeds.
Those exceptions will end on July 1, 2021, unless the Department of
Agriculture finds that no effective alternative exists in which case an
extension can be granted until December 31, 2021. All exceptions will end on January 1,
2022. Barring a veto, Maryland will join
California, New York and Hawaii as states prohibiting chlorpyrifos use and/or
sales.
Biofuels: EPA Elects Not to Appeal Adverse
Ruling on Legality of Renewable Fuel Standard Small Refinery Exemptions
On March 24, 2020, the appeal period
expired, and U.S. Environmental Protection Agency (EPA) elected not to challenge
the decision of the U.S.
Court of Appeals for the Tenth Circuit (Tenth Circuit) invalidating EPA’s process
for granting small refinery exemptions from the Renewable Fuel Standard (RFS) biofuel percentage blending requirements.
Renewable Fuel Association et al. v. U.S. Environmental Protection Agency,
et al., Case No. 18-9533. EPA received a two-week extension of
the filing deadline because the decision has wide-ranging implications for dozens
of exemptions granted that do not comply with the Tenth Circuit’s decision. Because
other parties filed by the deadline, the case may continue without EPA
defending its exemptions. For more
background, see the March 12, 2020, and the January 30, 2020, Agricultural
Law Weekly Review items titled, “EPA Receives Extension for Appealing Adverse Ruling on
Renewable Fuel Standard Exemptions”
and “Court of Appeals Invalidates EPA Grant of Renewable Fuel
Standard Waivers,” respectively.
Agricultural Labor: Entry Restrictions
from Mexico Inapplicable to H-2A Visa Holders
On March 24, 2020, the Secretary of
Homeland Security published an announcement that entry of individuals from
Mexico to the U.S. through land ports of entry is limited to “essential travel,”
which is defined to include “Individuals traveling to work in the United States
(e.g., individuals working in the farming or agriculture industry
who must travel between the United States and Mexico in furtherance of such
work).” 85 FR 16547.
Therefore, holders of H-2A visas may
enter. However, on March 18, 2020, the
U.S. Embassy in Mexico City and all U.S. consulates in Mexico announced the immediate suspension of routine
immigrant and nonimmigrant visa services until further notice. In a conference
call, USDA Secretary Sonny Perdue
addressed the potential inability to obtain an H-2A visa by stating the U.S.
State Department informed him a sub-set of Mexican H-2A visa applicants, i.e.
“returning workers,” who do not require an in-person interview at a U.S.
Consulate Office will have visa applications processed. He did not address H-2A visa applicants who do require an
in-person interview. Secretary Purdue
stated inquiries should be made to Aglabor@USDA.gov
and at the webpage: https://www.farmers.gov/manage/h2a.
Dairy Policy: Pennsylvania
Over-Order Premium Remains Level for Next Six Months
On March 19, 2020, the Pennsylvania
Milk Marketing Board (PMMB) convened to issue Official General Order No. A-1005 establishing the Pennsylvania Over-Order Premium for the
period of April 1, 2020 through September 30, 2020 at $1.00 per
hundredweight. This is the same amount
established for the preceding six months. At the same meeting, it was announced that board member Carol Hardbarger would resign and be
appointed PMMB Secretary, both effective March 20, 2020. PMMB Secretary is a full-time position and is
the administrative supervisor of the Board’s day-to-day operations and staff.
From National Ag Law
Authorities & Sources:
Kristine A. Tidgren, New Law Grants Paid Leave and Employer Credits
for COVID-19 Absences
(Mar. 20, 2020).
Roger A. McEowen, Clean Water Act – Compliance Orders and
“Normal Farming Activities” (Mar. 23, 2020).
Penn State Research
& News:
Sara LaJeunesse, Pesticide seed coatings are widespread but
underreported (Mar. 17, 2020).
AGENCY PRESS
RELEASES—STATE/FEDERAL
Pennsylvania
Department of Agriculture Press Releases:
Department of Agriculture Issues Guidance to
Ensure Continuity for Animal Shelters and Boarding Facilities, Offers Advice
for Pet Owners (Mar. 20, 2020).
U.S.
Department of Agriculture Press Releases:
USDA and DOL Announce Information Sharing to
Assist H-2A Employers
(Mar. 19, 2020).
USDA Announces 2020 Plans for Asian Longhorned
Beetle Eradication Efforts in New York, Massachusetts, and Ohio (Mar. 19, 2020).
Secretary Perdue Announces New USDA
Administration Leadership (Mar. 20, 2020).
APHIS Leadership Signs Poultry Regionalization
Agreement with China
(Mar. 23, 2020).
Secretary Perdue’s Statement on National Ag
Day (Mar. 24, 2020).
USDA and USTR Announce Continued Progress on
Implementation of U.S.-China Phase One Agreement (Mar. 24, 2020).
USDA Closes Public Access to U.S. National
Arboretum (Mar. 24, 2020).
APHIS Administrator Shares 2019 Impact Report (Mar. 24, 2020).
STATE
ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania
Executive Agencies—Actions and Notices:
Governor’s
Office
50 Pa.B. 1644 “Proclamation of Disaster Emergency” (Mar. 21,
2020).
Pennsylvania
Legislature
H.B. 1100 “An Act amending . . .
the Tax Reform Code of 1971, providing for energy and fertilizer manufacturing
tax credit.” Presented to the Governor (Mar. 18, 2020).
S.B. 1096 “An Act providing for
fund transfers during the novel coronavirus as identified in the Governor's
Proclamation of Disaster Emergency issued on March 6, 2020.” Referred to
Community, Economic and Recreational Development [Senate] (Mar. 20, 2020).
H.B. 2369 “An Act amending . . . the Job Enhancement Act, in Community
Development Bank Grant and Loan Program, further providing for authority loans;
and making appropriations.” Referred to Commerce [House] (Mar. 23,
2020).
H.B. 1316 “A Joint Resolution proposing an amendment to the Constitution of
the Commonwealth of Pennsylvania, in taxation and finance, providing for
spending limitations on the Commonwealth.” Removed from table [House]
(Mar. 24, 2020).
FEDERAL
ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive
Agencies—Actions and Notices:
Agricultural Department
85 FR 15759 “Submission for OMB Review; Comment Request [Farm Service Agency:
Wildfires and Hurricanes Indemnity Program Pluses,” Notice (Mar. 19,
2020).
85 FR 16313 “Submission for OMB Review; Comment Request [Agricultural
Marketing Service: Cotton Classing, Testing, and Standards, Cotton
Classification and Market News Service],” Notice (Mar. 23, 2020).
85 FR 16606 “Submission for OMB Review; Comment Request [National
Agricultural Statistics Service: Aquaculture Survey],” Notice (Mar. 24,
2020).
Agricultural Marketing
Service
85 FR 15758 “Notice of Request for Extension of a Currently Approved
Information Collection: Assessment Exemption for Organic Commodities Under
Federal Marketing Orders,” Notice—Comment Period (Mar. 19, 2020).
85 FR 15743 “Onions Grown in South Texas; Decreased Assessment Rate,” Proposed
Rule—Comment Period (Mar. 19, 2020).
85 FR 16273 “Tart Cherries Grown in the States of Michigan, et al.; Free and
Restricted Percentages for the 2019-20 Crop Year,” Proposed Rule—Comment
Period (Mar. 23, 2020).
85 FR 16229 “Peanut Promotion, Research, and Information Order; Amendment to
Primary Peanut-Producing States and Adjustment of Membership,” Rule
(Mar. 23, 2020).
Agricultural Research
Service
85 FR 16606 “Notice of Intent To Grant Exclusive License [Washington State
Crop Improvement Association, Inc.—chickpea variety],” Notice—Comment Period
(Mar. 24, 2020).
Animal and Plant Health
Inspection Service
85 FR 16047 “Notice of Request for Revision to and Extension of Approval of
an Information Collection; Importation of Live Swine, Pork, and Pork Products
From Certain Regions,” Notice—Comment Period (Mar. 20, 2020).
Commodity Credit
Corporation
85 FR 16231 “Agriculture Risk Coverage and Price Loss Coverage Programs and
Noninsured Crop Assistance Program; Correction,” Rule (Mar. 23,
2020).
Drug Enforcement
Administration
85 FR 16292 “Controls To Enhance the Cultivation of Marihuana for Research in
the United States,” Proposed Rule—Comment Period (Mar. 23, 2020).
Employment and Training
Administration
85 FR 16133 “Labor Certification Process for the Temporary Employment of H-2A
and H-2B Foreign Workers in the United States: Annual Update to Allowable
Charges for Agricultural Workers' Meals and for Travel Subsistence
Reimbursement, Including Lodging,” Notice (Mar. 20, 2020).
Executive Office of the
President
85 FR 16227 “Prioritizing and Allocating Health and Medical Resources to
Respond to the Spread of COVID-19,” Presidential Document (Mar. 23,
2020).
85 FR 16995 “Delegation of Functions Under 31 U.S.C. 5302 [to the Secretary
of the Treasury for use of the Exchange Stabilization Fund in an aggregate
amount of up to $50 billion],” Presidential Document (Mar. 25,
2020).
Federal Communications
Commission
85 FR 16098 “Federal Advisory Committee Act; Task Force for Reviewing the
Connectivity and Technology Needs of Precision Agriculture in the United
States,” Notice (Mar. 20, 2020).
Federal Emergency
Management Agency
85 FR 16116 “Changes in Flood Hazard Determinations [AL, CO, CT, FL, GA, MT,
ND, PA, SC, TX, VA],” Notice (Mar. 20, 2020).
85 FR 16270 “Final Flood Elevation Determinations [Washington],” Rule
(Mar. 23, 2020).
Fish and Wildlife
Service
85 FR 15870 “Migratory Bird Hunting; Proposed 2020-21 Frameworks for
Migratory Bird Hunting Regulations,” Proposed Rule—Comment Period (Mar.
19, 2020).
85 FR 15795 “Endangered and Threatened Wildlife and Plants; Initiation of
5-Year Status Reviews of 10 Species in Arizona, Arkansas, Kansas, Missouri, New
Mexico, Oklahoma, Texas, and Mexico,” Notice (Mar. 19, 2020).
85 FR 16951 “Endangered and Threatened Wildlife and Plants; Initiation of
5-Year Status Reviews for 25 Southeastern Species,” Notice—Comment Period
(Mar. 25, 2020).
Food and Drug
Administration
85 FR 15789 “March 10 Through April 30, 2020, Public Meetings; Postponement,
Cancellation, or Remote Only,” Notice (Mar. 19, 2020).
85 FR 16949 “Process for Making Available Guidance Documents Related to
Coronavirus Disease 2019,” Notice (Mar. 25, 2020).
Food and Nutrition
Service.
85 FR 16050 “Child Nutrition Programs: Income Eligibility Guidelines,” Notice
(Mar. 20, 2020).
85 FR 16273 “Simplifying Meal Service and Monitoring Requirements in the
National School Lunch and School Breakfast Programs; Extension of Comment
Period,” Proposed Rule—Comment Period (Mar. 23, 2020).
85 FR 16572 “Streamlining Program Requirements and Improving Integrity in the
Summer Food Service Program,” Proposed Rule—Comment Period (Mar. 24,
2020).
Food Safety and
Inspection Service
85 FR 15759 “Expansion of Use of the Term ‘Healthy,’” Notice—Comment Period
(Mar. 19, 2020).
85 FR 16048 “Notice of Request for Renewal of an Approved Information
Collection (State Meat and Poultry Programs),” Notice—Comment Period
(Mar. 20, 2020).
Natural Conservation
Service
85 FR 16607 “Notice of Proposed Revisions to the National Handbook of Conservation
Practices for the Natural Resources Conservation Service,” Notice—Comment
Period (Mar. 24, 2020).
Office of the U.S. Trade
Representative
85 FR 15847 “Invitation for Applications for Inclusion on the Dispute
Settlement Rosters for the United States-Mexico-Canada Agreement,” Notice
(Mar. 19, 2020).
Rural
Business-Cooperative Service
85 FR 16519 “Rural Business Investment Company (RBIC) Program,” Rule
(Mar. 24, 2020).
85 FR 16925 “Notice of Solicitation of Applications (NOSA) for the Rural
Energy for America Program for Fiscal Year (FY) 2020; Amendment,” Notice
(Mar. 25, 2020).
Susquehanna River Basin
Commission
85 FR 16177 “Revocation of Approvals,” Notice (Mar. 20, 2020).
85 FR 16180 “Projects Approved for Minor Modifications [New York State Canal
Corporation, Lancaster County Solid Waste Management Authority],” Notice
(Mar. 20, 2020).
85 FR 16179 “Projects Approved for Consumptive Uses of Water [December 1-31,
2019],” Notice (Mar. 20, 2020).
85 FR 16179 “Projects Approved for Consumptive Uses of Water [January 1-31,
2020.],” Notice (Mar. 20, 2020).
85 FR 16178 “Actions Taken at March 13, 2020, Meeting,” Notice (Mar.
20, 2020).
85 FR 16177 “Grandfathering (GF) Registration Notice,” Notice (Mar.
20, 2020).
85 FR 16546 “Review and Approval of Projects,” Rule (Mar. 24,
2020).
U.S. Customs and Border
Protection
85 FR 16547 “Notification of Temporary Travel Restrictions Applicable to Land
Ports of Entry and Ferries Service Between the United States and Mexico,” Rule
(Mar. 24, 2020).
85 FR 16548 “Notification of Temporary Travel Restrictions Applicable to Land
Ports of Entry and Ferries Service Between the United States and Canada,” Rule
(Mar. 24, 2020).
U.S. House Agriculture
Committee Actions:
H.R.6318 “To expand economic opportunities, improve community policing,
and promote common-sense gun violence prevention in underserved communities,
and for other purposes.” Referred to Committees on the Judiciary, Education
and Labor, Financial Services, Ways and Means, Small Business, Oversight and
Reform, Agriculture, Rules, and Energy and Commerce (Mar. 23,
2020).
H.R.6321 “To provide financial protections and assistance for America's
consumers, States, businesses, and vulnerable populations during the COVID-19
emergency and to recover from the emergency.” Referred to Committees on
Financial Services, Ways and Means, Education and Labor, Small Business, the
Judiciary, and Agriculture (Mar. 23, 2020).
H.R.6378 “To require the Federal financial regulators to issue interagency
regulatory guidance in order to provide forms of relief to borrowers and
customers during pandemics and major disasters, to continue to operate and
provide services and lending, and to require such regulators to conduct testing
with financial institutions to assess pandemic or disaster preparedness, and
for other purposes.” Referred to the Committee on Financial Services, and
the Committee on Agriculture (Mar. 23, 2020).
U.S. Senate Agriculture,
Nutrition, And Forestry Committee Actions:
S.3552 “A bill to require the Secretary of Agriculture to provide
payments to cattle producers to offset losses due to the Coronavirus Disease
2019 (COVID-19), and for other purposes.” Read twice and referred to the
Committee on Agriculture, Nutrition, and Forestry (Mar. 20, 2020).
S.3563 “A bill to modify nutrition programs to address the Coronavirus
Disease 2019, and for other purposes.” Read twice and referred to the
Committee on Agriculture, Nutrition, and Forestry (Mar. 22, 2020).
Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
Mar. 18–25, 2020 Top
#AgLaw links:
Grocers ‘have a viable supply chain’ &
‘are not shutting down,’ but product mix may change, FMI says, Food Navigator-USA
Pa. Governor: agriculture is an essential
business, Farm and Dairy
Maryland legislators partially ban
chlorpyrifos, Feedstuffs
The ripple effects of COVID-19: A look into
global dairy, Dairy Reporter
Bayer Advances Toward Resolving Roundup
Litigation, The Wall Street
Journal
MEAT+POULTRY “Food and retail leaders reassure stability of US food supply
chain”
Food Safety News “Approval of genetically engineered soy protein
for ‘Impossible Burger’ challenged”
Food Navigator-USA“Grocers ‘have a viable supply chain’ & ‘are
not shutting down,’ but product mix may change, FMI says”
Farm and Dairy “Pa. Governor: agriculture is an essential
business”
Feedstuffs “Maryland legislators partially ban chlorpyrifos”
Feedstuffs “USDA ensuring no food safety disruptions amid coronavirus”
Dairy Reporter “The ripple effects of COVID-19: A look into
global dairy”
Brownfield “U.S. Senator Says MFP Could be Part of Coronavirus Economic
Relief for Farmers”
Brownfield “First Settlement Payments from Syngenta Lawsuit are Being
Mailed”
The Wall Street Journal “Bayer Advances Toward Resolving Roundup
Litigation”
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