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.

Dairy Policy: Justice Department Concludes Investigation of Dean Foods Asset Sale

On May 1, 2020, the U.S. Department of Justice Antitrust Division (DOJ) announced that it had concluded its investigation into Dairy Farmers of America, Inc.’s (DFA) bankruptcy auction purchase of the substantial majority of dairy processing assets of Chapter 11 bankruptcy debtor Dean Foods (Dean). Its conclusion is embodied in the civil antitrust lawsuit filed that same day in the U.S. District Court for the Northern District of Illinois stating its opposition to the bankruptcy sale agreement unless DFA excluded from the purchase three specific Dean fluid milk processing plants (in Harvard, Illinois; De Pere, Wisconsin; and Franklin, Massachusetts). At the time of the suit filing, DFA and Dean Foods had already agreed to that modification to the bankruptcy sale agreement and had signed an attached stipulation and proposed final judgment/order to that effect. The suit seeks court approval of the bankruptcy court purchase agreement revision to exclude those three plants as well as court supervision of the revision as required by the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h). The stipulation, proposed final judgment, and a narrative explanation will be published in the Federal Register with a public comment period.

COVID-19: Secretary Perdue Issues Letters to Processors and Governors in Lieu of Formal Defense Production Act Order

On May 5, 2020, USDA Secretary Sonny Perdue issued two letters, in lieu of formal action under May 1, 2020’s Executive Order (EO) 13917, on the issue of continued meat processing plant operations in light of COVID-19 transmission risks. The first letter was to meat and poultry processing plants and the second was to all fifty state Governors. The letter to meat processing plants stated, in pertinent part: (a) Effective immediately, plants should utilize the joint CDC/OSHA guidance referenced in EO 13917 to implement practices and protocols for safeguarding workers and the community “while staying operational or resuming operations;” (b) Plants “contemplating reductions of operations or recently closed since Friday May 1,” and “without a clear timetable for resuming near-term operations,” “should submit written documentation to USDA of their operations and health and safety protocols;” (c) Plants “should resume operations as soon as they are able;” and (d) “[F]urther action under the Executive Order and the Defense Production Act is under consideration and will be taken if necessary.” The letter to Governors, in pertinent part, stated: (a) “I understand that State and local leaders are working diligently to protect and maintain the wellbeing of their citizens;” (b) “It is essential that we work together to ensure the health and safety” of plant workers; (c) USDA “will continue to work with State and local officials to ensure that facilities are implementing best practices;” and (d) “Further action under the Executive Order and Defense Production Act is under consideration and will be taken if necessary.” Thus far, USDA Secretary Perdue has not issued any publicly-disclosed mandatory directives to meat processing plants utilizing the EO 13917 Defense Production Act delegation of legal authority from the President. Therefore, there has also been no known occasions of conflict between such actions and the legal authority over the health and well-being of their populations reserved to state and/or local governments under the Tenth Amendment to the United States Constitution.

COVID-19: Federal Court Dismisses Workers’ Suit Against Meat Processing Plant For Inadequate COVID-19 Controls

On May 5, 2020, the U.S. District Court for the Western District of Missouri granted a motion to dismiss a federal lawsuit suit filed on April 23, 2020, by the Rural Community Workers Alliance against Smithfield Foods, Inc., alleging that its Milan, Missouri meat processing plant was not following CDC guidelines to prevent transmission of COVID-19, thereby endangering workers and the community. RCWA, et al. v. Smithfield Foods, Inc., et al., No. 5:20-CV-06063-DGK. The suit sought no damages but simply a declaration under state law that the plant was a public nuisance and that Smithfield had breached its duty to provide a safe workplace. The suit was filed after initiation of an OSHA investigation of the plant but before the issuance of the joint CDC and OSHA Guidance titled “Meat and Poultry Processing Workers and Employers - Interim Guidance from CDC and the Occupational Safety and Health Administration (OSHA)” and before the issuance of Executive Order (EO) 13917 by President Trump. As a result of the vastly changed circumstances resulting from those two federal actions and the need for coordination between judicial and administrative decision making, the court exercised its discretion to defer future action to OSHA and dismiss the case in its entirety under a legal principle of deference called “primary jurisdiction.” This was based upon OSHA’s expertise in the field, the need for uniformity and consistency in regulating meat processing facilities nationally and because administrative recourse is available under the Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq, should workers be dissatisfied with OSHA’s actions. The decision did not address the interests of the community at large in being protected from disease spread.

COVID-19: Wrongful Death Suit Filed Against JBS by Ex-Employee’s Estate for Alleged Contraction of COVID-19 in Pennsylvania Processing Plant

On May 7, 2020, attorneys representing the estate of Ferdinand Benjamin filed a wrongful death and fraudulent misrepresentation lawsuit in the Philadelphia County Court of Common Pleas against the various corporate entities that own and operate the JBS meat processing plant in Souderton, Pennsylvania, claiming damages as a result of Benjamin’s April 4, 2020, death from COVID-19. The case is believed to be the first lawsuit in the nation filed by a meat processing plant employee against his/her employer for COVID-19 personal injuries, despite the well-established legal immunity employers enjoy from such lawsuits as a result of the universal enactment of Workers’ Compensation statutes in all 50 states. Pennsylvania law recognizes an extremely limited “fraudulent misrepresentation” exception to an employer’s workers’ compensation-derived immunity from claims by employees for legal compensation beyond workers’ compensation for personal injuries. However, to date there has been no known Pennsylvania court determination confirming that the workplace contraction of COVID-19, if proven, is a compensable injury for workers’ compensation purposes. In that regard, the Benjamin case will be important to monitor for future developments. No defense has yet been entered for JBS nor has a judge been assigned.

COVID-19: Centers for Disease Control and Prevention Issues Meat and Poultry Processing Facilities Tabulation of April 2020 COVID-19 Case Data

On May 8, 2020, the Centers for Disease Control and Prevention (CDC) published an article in its Morbidity and Mortality Weekly Report (MMWR) titled, “COVID-19 Among Workers in Meat and Poultry Processing Facilities ― 19 States, April 2020.” By way of summary, from April 9 through April 27, aggregate data was reported to CDC on COVID-19 cases from 115 meat or poultry processing facilities in nineteen (19) states. Among these facilities, COVID-19 was diagnosed in 4,913 workers (approximately 3%), and twenty (20) COVID-19–related deaths were reported. The percentage of workers with diagnosed COVID-19 per facility ranged from 0.6% to 18.2%. Pennsylvania had the highest number of plants affected (22) and the highest number of confirmed cases (858) reported in that period. The article analyzes four categories of challenges (structural, operational, sociocultural and economic) and identifies recommended changes in facility practices.

From National Ag Law Authorities & Sources:

Roger A. McEowen, Groundwater Discharges of “Pollutants” and “Functional Equivalency” (April 30, 2020).

Kristine A. Tidgren, Some PPP Borrowers Taking a Closer Look at Good Faith Certification (May 5, 2020).

Barry Ward, Paid sick leave and COVID-19: requirements and tax credits under the Families First Coronavirus Response Act (May 5, 2020).

Penn State Research & News:

Jeff Mulhollem, Warming Midwest conditions may result in corn, soybean production moving north (May 4, 2020).

Jeff Mulhollem, Plants pass on 'memory' of stress to some progeny, making them more resilient (May 5, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Secretary of Agriculture: Farmers Market Season is Here, Markets Prepared to Safely Serve Pennsylvanians Amid COVID-19 (April 30, 2020).

U.S. Department of Agriculture Press Releases:

USDA Approves Program to Feed Kids in Delaware and Oregon (May 1, 2020).

USDA Approves Minnesota to Accept SNAP Benefits Online (May 1, 2020).

USDA Announces $100 Million for American Biofuels Infrastructure (May 4, 2020).

USDA Approves Nevada to Accept SNAP Benefits Online (May 4, 2020).

Secretary Perdue Statement on Economic Injury Disaster Loans Being Available to U.S. Agricultural Businesses Impacted by COVID-19 Pandemic (May 4, 2020).

Meals to You to Serve 5 Million Meals a Week to Rural Children (May 5, 2020).

USDA Invests $23 Million in High-Speed Broadband in Rural New Mexico (May 5, 2020).

USDA Approves Program to Feed Kids in Maine, North Dakota, West Virginia, and Vermont (May 5, 2020).

USDA Animal and Plant Health Inspection Service Press Releases:

APHIS Accepts Comments on Environmental Assessment for Release of a Parasitoid Wasp to Control Russian Wheat Aphid (May 5, 2020).

USDA Posts Animal Disease Traceability General Program Standards Document (May 5, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:

Delaware River Basin Commission

50 Pa.B. 2280 “Public Hearing and Business Meeting [Wednesday, May 13, 2020],” Notice (May 2, 2020).

Department of Agriculture

50 Pa.B. 2282 “Standards and Requirements for the Conservation Excellence Grant Program,” Notice (May 2, 2020).

Game Commission

50 Pa.B. 2264 “Hunting and Trapping; Big Game,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2265 “Hunting and Trapping; Big Game,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2268 “Hunting and Trapping; Furbearers,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2269 “Hunting and Trapping; Hunting Hours,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2272 “Hunting and Trapping; Small Game,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2257 “Lands and Buildings; State Game Lands,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2279 “Lands and Buildings; State Game Lands,” Proposed Rulemaking (May 2, 2020).

50 Pa.B. 2258 “Seasons and Bag Limits,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2273 “Special Permits; Deer Control,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2274 “Special Permits; Guiding Permit,” Rules and Regulations (May 2, 2020).

50 Pa.B. 2276 “Special Permits; Mentored Hunting Program Permit,” Rules and Regulations (May 2, 2020).

Susquehanna River Basin Commission

50 Pa.B. 2376 “Public Hearing [Thursday, May 14, 2020],” Notice (May 2, 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.” Approved by Governor—Act No. 16 (April 29, 2020).

H.B. 2429 “An Act amending the act . . . known as The Administrative Code of 1929, providing for emergency COVID-19 provisions [lawn and garden equipment and supplies stores.” Third consideration and final passage [House] (April 30, 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.” Third consideration and final passage [House] (April 30, 2020).

H.B. 2436 “An Act amending the act . . . known as The Administrative Code of 1929, providing for emergency COVID-19 provisions [animal grooming services].” Re-reported as committed [House] (April 30, 2020).

H.B. 2477 “An Act amending the act . . . known as the Donated Food Limited Liability Act, further providing for donor immunity.” Laid on the table [House] (May 4, 2020).

H.B. 2149 “An Act amending the act . . . known as the Hardwoods Development Council Act, further providing for Hardwoods Development Council.” Laid on the table [House] (May 4, 2020).

H.B. 881 “An Act amending the act . . . entitled "An act providing for the administration of certain Commonwealth farmland within the Department of Agriculture," further providing for agricultural land conservation assistance grant program.” Third consideration and final passage [House] (May 5, 2020).

H.B. 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park.” Third consideration and final passage [House] (May 5, 2020).

H.B. 2490 “An Act amending Title 35 (Health and Safety) of the Pennsylvania Consolidated Statutes, in Commonwealth services, providing for critical infrastructure during declaration of disaster emergency [Banning the shutdown of Manufacturing during a Declaration of Disaster Emergency].” Referred to State Government [House] (May 5, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Agricultural Department

85 FR 23942 “Submission for OMB Review; Comment Request [Food and Nutrition Service: Modernizing Channels of Communication with SNAP Participants],” Notice—Comment Requested (April 30, 2020).

85 FR 23942 “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Certificate for Quota Eligibility],” Notice—Comment Requested (April 30, 2020).

85 FR 25384 “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Sanitation SOP's Pathogen Reduction/Hazard Analysis and Critical Control Point],” Notice—Request for Comments (May 1, 2020).

85 FR 26440 “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Discharge and Delivery Survey Summary and Rate Schedule Forms],” Notice (May 4, 2020).

85 FR 26440 “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Plum Pox Compensation],” Notice (May 4, 2020).

Agricultural Marketing Service

85 FR 25383 “Request for Extension and Revision of a Currently Approved Information Collection [Regulations for Voluntary Grading, Certification, and Standards],” Notice—Comment Period (May 1, 2020).

Animal and Plant Health Inspection Service

85 FR 26656 “Notice of Availability of an Environmental Assessment for Release of Aphelinus hordei for Biological Control of Russian Wheat Aphid,” Notice—Comment Period (May 5, 2020).

Commodity Credit Corporation and the Rural Business-Cooperative Service

85 FR 26656 “Notice of Funds Availability for the Higher Blends Infrastructure Incentive Program (HBIIP) for Fiscal Year 2020,” Notice (May 5, 2020).

Engineers Corps

85 FR 25409 “Proposals by Non-Federal Interests, for Feasibility Studies, Proposed Modifications to Authorized Water Resources Development Projects and Feasibility Studies, and Proposed Modifications for an Environmental Infrastructure Program for Inclusion in the Annual Report to Congress on Future Water Resources Development,” Notice—Comment Period (May 1, 2020).

Environmental Protection Agency

85 FR 26457 “Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate Uses,” Notice (May 4, 2020).

85 FR 26461 “Pesticide Program Dialogue Committee; Notice of Virtual Public Meeting [May 20-21, 2020],” Notice (May 4, 2020).

85 FR 26462 “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability,” Notice—Comment Period (May 4, 2020).

85 FR 26456 “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Rodenticides; Notice of Availability,” Notice—Comment Period (May 4, 2020).

85 FR 26684 “Pesticide Product Registration; Receipt of Applications for New Uses,” Notice—Comment Period (May 5, 2020).

85 FR 26685 “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability,” Notice—Comment Period (May 5, 2020).

85 FR 26682 “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability,” Notice—Comment Period (May 5, 2020).

Executive Office of the President

85 FR 26315 “Establishment of the Interagency Labor Committee for Monitoring and Enforcement Under Section 711 of the United States-Mexico-Canada Agreement Implementation Act,” Presidential Document (May 1, 2020).

85 FR 26313 “Delegating Authority Under the Defense Production Act With Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19,” Presidential Document (May 1, 2020).

Federal Crop Insurance Corporation

85 FR 23893 “Common Crop Insurance Regulations; Forage Production Crop Insurance Provisions and Forage Seeding Crop Insurance Provisions,” Rule—Comment Period (April 30, 2020).

Federal Emergency Management Agency

85 FR 23921 “Suspension of Community Eligibility [Mo., Neb.],” Rule (April 30, 2020).

85 FR 25458 “Final Flood Hazard Determinations [Ala., Ariz., Iowa, Ky., Mo., Va., Wash.],” Notice (May 1, 2020).

85 FR 25461 “Proposed Flood Hazard Determinations [Ill.],” Notice—Comment Period (May 1, 2020).

85 FR 25459 “Proposed Flood Hazard Determinations [Ala., Va.],” Notice—Comment Period (May 1, 2020).

85 FR 25459 “Proposed Flood Hazard Determinations for Fremont County, Iowa and Incorporated Areas,” Notice (May 1, 2020).

85 FR 26705 “Alaska; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26706 “Arizona; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26701 “Arkansas; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26703 “Commonwealth of the Northern Mariana Islands; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26698 “Delaware; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26700 “Hawaii; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26699 “Idaho; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26706 “Indiana; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26702 “Maine; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26703 “Minnesota; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26704 “Mississippi; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26699 “Montana; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26707 “Nebraska; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26705 “New Hampshire; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26701 “New Mexico; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26698 “North Dakota; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26702 “Ohio; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26708 “Virginia; Major Disaster and Related Determinations,” Notice (May 5, 2020).

85 FR 26704 “Mississippi; Amendment No. 2 to Notice of a Major Disaster Declaration,” Notice (May 5, 2020).

85 FR 26707 “North Dakota; Amendment No. 1 to Notice of a Major Disaster Declaration,” Notice (May 5, 2020).

85 FR 26700 “South Carolina; Major Disaster and Related Determinations,” Notice (May 5, 2020).

Food and Drug Administration

85 FR 23969 “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Index of Legally Marketed Unapproved New Animal Drugs for Minor Species,” Notice—Comment Period (April 30, 2020).

85 FR 26902 “Biomin GmbH; Filing of Food Additive Petition (Animal Use),” Proposed Rule (May 6, 2020).

Labor Department

85 FR 26499 “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Agricultural Recruitment System Forms Affecting Migratory Farm Workers,” Notice—Comment Period (May 4, 2020).

National Agricultural Statistics Service

85 FR 25385 “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection [Honey and Honey Bee Surveys],” Notice—Comment Period (May 1, 2020).

Partnerships and Public Engagement Office

85 FR 25386 “Advisory Committee on Beginning Farmers and Ranchers,” Notice—Comment Period (May 1, 2020).

Small Business Administration

85 FR 24072 “Presidential Declaration of a Major Disaster for the State of Tennessee,” Notice (April 30, 2020).

85 FR 24073 “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Tennessee,” Notice (April 30, 2020).

85 FR 24073 “Presidential Declaration of a Major Disaster for Public Assistance Only for the Commonwealth of Kentucky,” Notice (April 30, 2020).

85 FR 24074 “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Washington,” Notice (April 30, 2020).

85 FR 24074 “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Mississippi,” Notice (April 30, 2020).

85 FR 26324 “Business Loan Program Temporary Changes; Paycheck Protection Program-Requirements-Corporate Groups and Non-Bank and Non-Insured Depository Institution Lenders,” Rule—Comment Period (May 4, 2020).

85 FR 26321 “Business Loan Program Temporary Changes; Paycheck Protection Program-Requirements-Disbursements,” Rule—Comment Period (May 4, 2020).

Treasury Department

85 FR 23917 “Small Business Administration Business Loan Program Temporary Changes; Paycheck Protection Program-Additional Criterion for Seasonal Employers,” Rule—Comments Accepted (April 30, 2020).

U.S. House Agriculture Committee Actions:

H.R.6688 “To modify the Restaurant Meals Program under the supplemental nutrition assistance program in response to COVID-19, and for other purposes.” Referred to House Committee on Agriculture (May 1, 2020).

H.R.6683 “To provide loan forgiveness for certain borrowers of Department of Agriculture direct farm loans, and for other purposes.” Referred to the Committee on Agriculture and the Committee on Ways and Means (May 1, 2020).

H.R.6682 “To provide for a waiver of the matching funds requirement for the farmers market and local food promotion program and value added producer grant program.” Referred to House Committee on Agriculture (May 1, 2020).

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

No new actions April 30–May 6, 2020

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks

April 30–May 6, 2020 Top #AgLaw links:

Trump order opening food processing plants receives mixed reactions in the Midwest, AgWeek (April 28, 2020).

Legal challenges continue in WOTUS rule update, Feedstuffs (April 28, 2020).

Dairy Economist Warns Changing the Federal Milk Marketing Orders for Coronavirus is a Bad Idea, Brownfield (April 28, 2020).

Bayer takes tough stance in glyphosate settlement talks due to downturn, Reuters (April 27, 2020).

Connecting Producers and Consumers to the Local Food Economy During COVID-19, Successful Farming (April 29, 2020).

Coronavirus’s next victim: Big Meat, grist (April 30, 2020).

USDA to implement executive order on processors, Morning Ag Clips (April 29, 2020).

Trump orders meat plants to stay open as worker deaths rise, Politico (April 28, 2020).