Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
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: President Delegates Defense Production Act Authority to
USDA Secretary to Ensure Continued Supply of Meat and Poultry
On April 28, 2020, President Donald Trump issued an Executive
Order, titled “Delegating Authority Under the DPA with Respect to
Food Supply Chain Resources During the National Emergency Caused by the
Outbreak of COVID-19.” This
Executive Order delegates authority to USDA Secretary Sonny Perdue “to ensure
the continued supply of meat and poultry” by taking “all appropriate action”
under the The
Defense Production Act of 1950, as amended (50 U.S.C.
App. 2061 et seq.) (DPA), “to ensure that meat and poultry processors continue
operations consistent with the guidance for their operation” issued on April
26, 2020 by the Centers for Disease Control and Prevention (CDC) and the
Occupational Safety and Health Administration (OSHA). The joint
CDC/OSHA guidance referenced is titled “Meat and Poultry Processing Workers and
Employers - Interim Guidance from CDC and the Occupational Safety and Health
Administration (OSHA)” and provides operational guidance for meat and
poultry processing workers and employers “in the setting of COVID-19 occurring
among workers or in the surrounding community.” Also on April 28, 2020, the U.S. Department of
Labor (DOL) issued a “Statement of Enforcement Policy” clarifying that OSHA
enforcement of the joint CDC/OSHA guidance would be conducted in accordance
with DOL’s April 13, 2020, enforcement
guidance, titled “Interim Enforcement Response Plan for Coronavirus
Disease 2019 (COVID-19),” which provides detailed instructions to OSHA
employees about using enforcement discretion in “handling COVID-19-related
complaints, referrals and severe illness reports.”
COVID-19: Congress Enacts Paycheck Protection Program and Health
Care Enhancement Act
On April 23 and 24, 2020, respectively, Congress passed and the
President signed the Paycheck
Protection Program and Health Care Enhancement Act, H.R.
266, P.L. No. 116-139, (Enhancement Act).
This legislation provides, among other things, an additional
appropriation of $310 billion, with $60 billion set aside for smaller lending
institutions (less than $50 billion in assets), for the Paycheck Protection
Program (PPP), and an appropriation of $60 billion for the Economic Injury
Disaster Advance Loan (EIDL) and grant programs. The legislation grants new EIDL eligibility
for agricultural businesses. The PPP appropriation replenishes the
initial funding of $349 billion in the March 27, 2020 Coronavirus Aid, Relief, and Economic Security Act, (CARES
Act) which was exhausted by
April 15, 2020, closing the application process. The PPP application
period officially re-opened on April
27, 2020.
Dairy Policy: Pennsylvania Milk Marketing Board Orders 60-Day Market
Relief Surcharge Added to State’s Over-Order Premium
On April 23, 2020, after an emergency hearing on April 20, 2020, the
Pennsylvania Milk Marketing Board (PMMB) ordered
that the producer price for milk on which Pennsylvania’s current Over-Order
Premium (OOP) is paid shall be supplemented, from May 1, 2020 through June 30,
2020, by a “market relief surcharge,” calculated by subtracting the Class I “mover”
(as that term is defined for purposes of its inclusion in the Federal Order Price
calculations) from $15. The May
2020 PMMB price announcement includes the new market relief surcharge and results
in the OOP increasing from $1.00 per hundredweight to $3.11 per hundredweight.
COVID-19: Treasury and Small Business Administration Provide
Paycheck Protection Program Clarifications on Seasonal and H-2A Workers Payroll
On April 28, 2020, the U.S. Treasury published on its Paycheck
Protection Program (PPP) webpage the text
of an Interim Final Rule to be published in the Federal Register, titled Interim
Final Rule on Additional Criterion for Seasonal Employers. This
Final Rule provides alternative payroll expense calculation periods for
seasonal employers applying for PPP loans. In addition, on April 24,
2020, the Small Business Administration published on its Paycheck Protection
Program webpage an
updated Frequently
Asked Questions document that addresses how to determine if H-2A worker payroll
expenses can be included in the loan amount calculation and for reimbursement
from the loan. Because payroll expenses are excluded if paid to an
employee whose principal place of residence is outside of the United States,
the IRS regulation at 26 CFR 1.121(b)(2) defining “principal residence” may be
used by the applicant to make that determination.
COVID-19: Pennsylvania Permits Temporary Land Application of
Excess Milk
On April 17, 2020, the Pennsylvania Department of Environmental
Protection (DEP) issued a “Memorandum Of Guidelines,” titled “Emergency
Land Application Of Milk Under COVID-19 - Temporary Suspension,”
effective April 17, 2020 through June 1, 2020.
This memorandum temporarily permits the land application of milk not
authorized as part of an existing Manure Management Plan (MMP) or Nutrient
Management Plan (NMP). The temporary
allowance carries multiple conditions and requirements, including a list of
alternatives to be considered, best practices to be followed, significant
safety measures to be taken, recordkeeping requirements and reporting should
milk or a manure/milk mixture enter any waters of the Commonwealth, including
road ditches. Before June 1, 2020, DEP will announce whether the
temporary allowance will in fact terminate or be extended.
COVID-19: Pennsylvania Adjusts Feed and Food Regulatory
Functioning due to COVID-19 Impacts.
On April 24, 2020, the Pennsylvania Department of Agriculture
(PDA) publicly
issued a notice
(dated April 13, 2020) that temporary exemptions may be sought from PDA on a
case-by-case basis to the licensing, labeling, and inspection fee provisions of
the Pennsylvania’s Commercial
Feed Act, 3 Pa.C.S.A. §5101 et al), to allow farmers and food producers to
distribute whole food products for animal feed under enumerated conditions “to help
alleviate excess supply during the COVID-19 pandemic.” In addition, on April 29, 2020, PDA also publicly
issued notice that its inspectors would be conforming their state inspections
to the temporarily relaxed enforcement standards recently announced by the U.S.
Food and Drug Administration (FDA) via two March 2020 “Guidance for Industry” documents
on nutritional labeling of
standard menu items and on nutritional labeling on
certain packaged food during the COVID-19 Public Health Emergency.
Animal Welfare: Federal Court Upholds California Proposition
12
On April 27, 2020, the U.S. District Court for the Southern
District of California, in National
Pork Producers Council, et. al v. Ross, et. al, Case
No. 19-cv-02324 W (AHG), ruled that
California’s Proposition 12 does not violate the U.S. Constitution’s Commerce
Clause and dismissed a suit brought by the National Pork Producers Council and
American Farm Bureau Federation seeking to invalidate Proposition 12. Fifteen states and the U.S. Chamber of
Commerce filed amicus briefs in support of the challenge. Proposition 12
was passed in November 2018 and amends California’s Health and Safety Code by
prohibiting, effective December 21, 2021, the sale of pork in California from
hogs born of a sow that cannot lie down, stand up, fully extend its limbs, or
turn around without touching the side of its stall or another animal and raised
in a pen at least 24 square feet. The court
found that Proposition 12’s requirements do not target solely interstate
commerce because they regulate in-state and out-of-state conduct equally and
that Proposition 12 does not place a substantial burden on interstate commerce
simply because it precludes a less expensive production process. Another
substantially similar Commerce Clause challenge to California’s Proposition 12
remains pending in the U.S. District Court for the Southern District of
California in North
American Meat Institute v. Ross, et. al, Case No.
2-19-cv-8569.
Water Quality: U.S. Supreme Court
Decides Clean Water Act Permitting Case
On April 23, 2020, the U.S. Supreme Court held in a 6-3 decision
that the Clean Water Act (CWA) requires a discharge permit when there is a
direct discharge from a point source into navigable waters or when there is the
“functional equivalent of a direct discharge.” County
of Maui, Hawaii v. Hawaii Wildlife Fund, et al., No.
18-260. The decision sought to bring clarity to circumstances where a
discharge passes through groundwater before entering navigable waters.
The decision rejected the Ninth Circuit Court of Appeal’s establishment of a
broader permitting standard based upon whether a discharge was “fairly
traceable” to a point source. For more background, see the Agricultural
Law Weekly Review of November 14, 2019, titled “U.S.
Supreme Court Hears Major Clean Water Act Case.”
From National Ag Law Authorities & Sources:
Peggy Kirk Hall, Latest
COVID-19 Legislation to Provide More Funds for Farm Businesses (April
27, 2020).
Penn State Research & News:
Jeff Mulhollem, Common
Soil Fungus Could Be Ally in Organic Corn Growers' Fight Against Pests (April
22, 2020).
Sara LaJeunesse, Study
Reveals Important Flowering Plants for City-Dwelling Honey Bees (April
28, 2020).
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture
Press Releases:
Secretary
of Agriculture Outlines Steps Taken to Secure Food Supply, Address Food
Insecurity in Pennsylvania (April 22, 2020).
Department
of Agriculture Waives Commercial Feed Requirements to Provide Farm Income,
Options for Excess Food (April 24, 2020).
Wolf
Administration: Regionalized Priority COVID-19 Testing Available to Workforce
Supporting Pennsylvania’s Food Supply (April 25, 2020).
PA
Department of Agriculture Adopts Temporary FDA Food Labeling Policy, New
Products Debut in Grocers, Restaurant Delivery (April
29, 2020).
U.S. Department of Agriculture Press
Releases:
USDA To
Implement President Trump’s Executive Order On Meat and Poultry Processors (April
28, 2020).
USDA Animal and Plant Health Inspection
Service Press Releases:
USDA
APHIS Establishing Coordination Center to Assist Producers Affected by Meat
Processing Plant Closures (April 25, 2020).
National
Poultry Improvement Plan Announces Biennial Conference and General Conference
Committee Meeting (April 27, 2020).
National
Poultry Improvement Plan Seeks Nominations for General Conference Committee
Members (April 27, 2020).
APHIS
Announces Availability of Final Environmental Assessment and Finding of No
Significant Impact for Releasing an Insect to Biologically Control Gorse (April
28, 2020).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions
and Notices:
Fish and Boat Commission
50
Pa.B. 2237 “Temporary Change to Fishing Regulations; Fishing in Stocked
Trout Waters, Opening Day of Trout Season and Creel Limits,” Notice
(April 25, 2020).
Department of Environmental Protection
50
Pa.B. 2179 “The Clean Streams Law and The Federal Clean Water Act:
Applications for National Pollutant Discharge Elimination System (NPDES) Permits
and Water Quality Management (WQM) Permits,” Notice (April 25,
2020).
50
Pa.B. 2234 “Aggregate Advisory Board Virtual Meeting [Wednesday, May 6,
2020],” Notice (April 25, 2020).
50
Pa.B. 2235 “Citizens Advisory Council Virtual Meeting [Tuesday, May 19,
2020],” Notice (April 25, 2020).
Pennsylvania Legislature
H.B.2438
“An Act amending Title 68 (Real and Personal Property) of the
Pennsylvania Consolidated Statutes, providing for broadband services.” Referred
to Consumer Affairs [House] (April 27, 2020).
H.B.2450 “An Act
amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in special
licenses and permits, further providing for definitions, for exotic wildlife
possession permits and for menagerie permits.” Referred to Game and
Fisheries [House] (April 27, 2020).
H.B.188 “An Act
providing for property owner's bill of rights statement.” Removed from table
[House] (April 28, 2020).
S.B.377 “An Act
amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in
enforcement, further providing for jurisdiction and penalties; and, in game or
wildlife protection, further providing for the offense of unlawful taking and
possession of protected birds and for endangered or threatened species.” Re-reported
as committed [Senate] (April 28, 2020).
S.B.915 “An Act
amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes,
repealing provisions relating to fertilizer; providing for fertilizer; in soil
and plant amendment, further providing for disposition of funds; in seed,
further providing for disposition of funds; establishing the Agronomic
Regulatory Account within the General Fund; imposing duties on the Department
of Agriculture; and making conforming amendments.” Re-reported as committed
[Senate] (April 28, 2020).
S.B.995 “An Act
amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in
general provisions, further providing for definitions [Increasing the Width of
Multipurpose Agricultural Vehicles].” Re-referred to Appropriations
(April 28, 2020).
H.B.1037 “An Act
amending the act . . . known as the Pennsylvania Construction Code Act, in
preliminary provisions, further providing for definitions and for application;
and, in exemptions, applicability and penalties, further providing for
penalties [Wedding Barns].” Removed from table [House] (April 27,
2020).
H.B.1983 “An Act
amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in
race horse industry reform, further providing for costs of enforcement of
medication rules or regulations.” Removed from table [House] (April 28,
2020).
H.B.2435 “An Act
amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes,
providing for Food Establishment Personal Protective Equipment Reimbursement
Grant Program.” Removed from table [House] (April 28, 2020).
H.B.2386 “An Act
providing for COVID-19 disaster emergency business interruption grants.” Re-committed
to Finance [House] (April 28, 2020).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Department
85 FR
22993 “Submission for OMB Review; Comment Request [National Agriculture
Statistics Service: Agricultural Surveys Program],” Notice (April 24,
2020).
85 FR
22994 “Submission for OMB Review; Comment Request [Farm Service Agency:
Farm Loan Program—Inventory Property Management],” Notice (April 24,
2020).
85 FR
22993 “Submission for OMB Review; Comment Request [Office of the Chief
Information Officer: USDA eAuthentication Service Customer Registration],” Notice
(April 24, 2020).
Agricultural Marketing Service
85 FR
22664 “National Organic Program (NOP); Request for Comment on Organic
Livestock and Poultry Practices Economic Analysis Report,” Proposed
Rule—Comment Period (April 23, 2020).
85 FR
23246 “Administrative Procedures Governing Formulation of a Research
and Promotion Order,” Proposed Rule—Comment Period (April 27,
2020).
85 FR
23243 “Marketing Order Regulating the Handling of Spearmint Oil
Produced in the Far West; Increased Assessment Rate,” Proposed Rule—Comment
Period (April 27, 2020).
85 FR
23248 “Watermelon Research and Promotion Plan; Realignment,” Proposed
Rule—Comment Period (April 27, 2020).
85 FR
23325 “Notice of Funds Availability (NOFA); Purchase of Fruit,
Vegetable, Dairy, and Meat Products Due to COVID-19 National Emergency-USDA
Food Box Distribution Program,” Notice (April 27, 2020).
Animal and Plant Health Inspection Service
85 FR
23326 “General Conference Committee of the National Poultry Improvement
Plan and 45th Biennial Conference,” Notice (April 27, 2020).
85 FR
23326 “General Conference Committee of the National Poultry Improvement
Plan; Solicitation for Membership,” Notice (April 27, 2020).
85 FR
23754 “Notice of Availability of a Final Environmental Assessment and
Finding of No Significant Impact for the Release of Sericothrips staphylinus
for Biological Control of Gorse,” Notice (April 29, 2020).
Delaware River Basin Commission
85 FR
23342 “Notice of Public Hearing and Business Meeting [Wednesday, May
13, 2020],” Notice (April 27, 2020).
Environmental Protection Agency
85 FR
22593 “Air Plan Approval; Pennsylvania; Attainment Plan for the
Allegheny Pennsylvania Nonattainment Area for the 2010 Sulfur Dioxide Primary
National Ambient Air Quality Standard,” Rule (April 23, 2020).
Fish and Wildlife Service
85 FR
22653 “Endangered and Threatened Wildlife and Plants; Reclassifying the
Golden Conure From Endangered to Threatened With a Section 4(d) Rule,” Rule
(April 23, 2020).
85 FR
22744 “Endangered and Threatened Wildlife and Plants; Recovery Permit
Applications,” Notice—Comment Period (April 23, 2020).
85 FR
23302 “Endangered and Threatened Wildlife and Plants; Removing Arenaria
cumberlandensis (Cumberland Sandwort) From the Federal List of Endangered and
Threatened Plants,” Proposed Rule—Comment Period (April 27, 2020).
Food and Drug Administration
85 FR
23367 “Agency Information Collection Activities; Proposed Collection;
Comment Request; Infant Formula Recall Regulations,” Notice—Comment Period
(April 27, 2020).
85 FR
23369 “Standardized Medicated Feed Assay Limits; Draft Guidance for
Industry; Availability; Extension of Comment Period,” Notice—Comment Period (April
27, 2020).
85 FR
23832 “Modernizing the Food and Drug Administration's Data Strategy;
Public Meeting; Extension of Comment Period,” Notice (April 29, 2020).
National Agricultural Statistics Service
85 FR
23327 “Notice of Intent To Request Revision and Extension of a
Currently Approved Information Collection [Agricultural Prices],” Notice—Comment
Period (April 27, 2020).
Rural Utilities Service
85 FR
23208 “Implementation of Water and Environmental Provisions of the
Agricultural Improvement Act of 2018,” Rule (April 27, 2020).
Small Business Administration
85 FR
22782 “Presidential Declaration of a Major Disaster for the State of
Mississippi,” Notice (April 23, 2020).
85 FR
23450 “Business Loan Program Temporary Changes; Paycheck Protection
Program-Requirements-Promissory Notes, Authorizations, Affiliation, and
Eligibility,” Rule—Comment Period (April 28, 2020).
U.S. House Agriculture Committee Actions:
H.Res.937
“Recognizing the important role Victory Gardens played in America's World War
efforts and reaffirming their purpose as essential to strengthening food
security, health education, and community morale during the 2020 Coronavirus
disease (COVID-19) crisis.” Referred to House Committee on Agriculture
(April 22, 2020).
H.R.6637 “To
improve the health of minority individuals, and for other purposes.” Referred
to the Committees on Energy and Commerce, Agriculture, Oversight and Reform,
Ways and Means, Education and Labor, the Judiciary, the Budget, Veteran’s
Affairs, Natural Resources, Armed Services, and Homeland Security (April
28, 2020).
U.S. Senate Agriculture, Nutrition, And
Forestry Committee Actions:
No new actions April 23–29,
2020
April 23–29, 2020 Top #AgLaw links:
Justice
Department Set to Approve Dairy Cooperative’s Purchase of Dean Foods Plants, The
Wall Street Journal (April 20, 2020).
FARMER
CO-OPS ASK USDA TO FOCUS ON FARMER MENTAL HEALTH DURING COVID-19,
Brownfield (April 23, 2020).
COVID19
at Meat-Processing Plants Highlights Key Link, and Vulnerabilities, In Food
Supply Chain, FarmDoc Daily (April 21, 2020).
Updated
farm labor requirements, advocates for skilled labor to ensure food supply,
Morning Ag Clips (April 21, 2020).
Meat
Shortages “Dangerously Close,” as COVID-19 Induced Supply Chain Bottlenecks
Persist, FarmDoc Daily (April 26, 2020).
USDA
Reports Record Enrollment in Key Farm Safety-Net Programs, USDA
Farm Service Agency (April 21, 2020).
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