Written by:

Brook Duer—Staff Attorney
Audry Thompson—Research Assistant

The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels. Subscribe at pennstateaglaw.com.

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COVID-19: USDA and FDA Execute MOU Anticipating Expansion of Defense Production Act Delegation Beyond Meat and Poultry Processing to Additional Food Supply Chain Resources

On May 18, 2020, the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) entered into an Memorandum of Understanding (MOU), MOU 225-20-011, which outlines how the agencies shall cooperate in the event that USDA exercises the Presidential authority delegated to it in Executive Order 13917 to utilize Defense Production Act powers beyond meat and poultry production and processing. Executive Order 13917 contains language that permits USDA to identify “specific additional food supply chain resources,” deem them “essential to national defense” and utilize delegated Defense Production Act powers with regard to those industries also. Meat and poultry production and processing are solely under the jurisdiction of USDA, but should other food production and processing sectors become subject to Defense Production Act authority, FDA may have primary or exclusive regulatory jurisdiction over involved facilities. Accordingly, USDA and FDA created the MOU for collaboration regarding such facilities.

COVID-19: USDA Funds and Revises Loan Guarantee Program for Rural Businesses and Agricultural Producers

On May 22, 2020, the U.S. Department of Agriculture’s (USDA) Rural Business-Cooperative Service announced the publication in the Federal Register of: (a) an interim final rule, titled “Guaranteed Loanmaking and Servicing Regulations,” (85 FR 31035); and (b) a Notice of Funding Availability, titled “The Business and Industry Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Guaranteed Loan Program” (85 FR 31139). Combined, these actions provide new CARES Act funding and rechristen the existing Business and Industry (B&I) Guaranteed Loan Program as the Business and Industry (B&I) CARES Act Program. The program will provide up to $1 billion in loan guarantees to rural businesses and agricultural producers ineligible for USDA Farm Service Agency (FSA) loans to “prevent, prepare for and respond to the effects of the COVID-19 pandemic.” The application period is immediately open and closes on September 15, 2021, or until program funds are exhausted. All B&I CARES Act Program funds expire September 30, 2021.

Food Labeling: Oklahoma Enacts Meat Labeling Law

On May 19, 2020, Oklahoma Governor Kevin Stitt approved H.B. 3806, titled the “Oklahoma Meat Consumer Protection Act” and passed by both chambers of the Oklahoma State Legislature on May 13, 2020. The act defines meat as “any edible portion of livestock or part thereof,” and simply declares it to be misrepresentation to represent “a product as meat that is not derived from harvested production livestock.” However, packaging shall not be in violation if the “packaging displays that the product is derived from plant-based sources in type that is uniform in size and prominence to the name of the product.” The law becomes effective November 1, 2020.

Food Labeling: U.S. Patent Office Issues Guide on Common Cheese and Processed Meat Names

Effective May 2020, the U.S. Patent and Trademark Office (USPTO) issued an examination guide, titled Marks Including Geographic Wording that Does Not Indicate Geographic Origin of Cheeses and Processed Meats. The guide supplements the Trademark Manual of Examining Procedure, which is a manual providing USPTO trademark examining attorneys and trademark applicants with a reference work on registering marks in the USPTO. The new guide establishes procedures for mark registration for cheeses and processed meats whose putative mark includes “geo-significant wording,” i.e. wording that does not indicate geographic origin, but may have once been associated with a particular geographic location. For example, brie cheese which is not made in Brie, France, nevertheless has a standard of identity under the name “brie” adopted by the U.S. Food and Drug Administration (FDA).

Marketing Orders: Cherry Growers and Processors Vote to Continue Marketing Order

On May 21, 2020 the U.S. Department of Agriculture (USDA) announced that, in a referendum held from March 9 through March 30, 2020, tart cherry growers and processors in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin voted to continue their current marketing order program. Votes favoring continuation represented 53% of eligible producers and 57% of eligible processors, and 68% of production volume and 69% of processing volume.

Note: A partial Commonwealth Budget appropriations bill, (HB 2387, Act No. 1A), and accompanying Fiscal Code bill (HB 1083, Act No. 23), for state fiscal year 2020-2021 were enacted by the Pennsylvania General Assembly on May 28, 2020, and signed by the Governor on May 29, 2020.

From National Ag Law Authorities & Sources:

Brigit Rollins, Assistance Available for Producers Facing Depopulation (May 28, 2020).

Peggy Kirk Hall, Meat Processing Laws in Ohio and the U.S. (May 28, 2020).

Peggy Kirk Hall, Ohio House Passes Bill to Limit Liability for COVID-19 Transmissions (May 29, 2020).

Roger A. McEowen, Dicamba, Peaches and a Defective Ferrari; What’s the Connection? (May 29, 2020).

Penn State Research & News:

Jeff Mulhollem, Changes in Cropping Methods, Climate Decoy Pintail Ducks into an Ecological Trap (May 26, 2020).

Amy Duke, Researchers Examine Climate Change Perception Among Specialty-Crop Producers (May 26, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

$280,000 Available to Animal Ag Producers for Reimbursement of PPE through PA Farm Bill Center for Poultry & Livestock Excellence (May 23, 2020).

Department of Agriculture Warns Consumers to Discard Pot O’ Gold Dairy Products Sold in Crawford, Erie, Forest, Venango Counties (May 27, 2020).

Wolf Administration, Federal Delegation: Pennsylvania Farmers Eligible for $16 Billion in Direct Relief Payments (May 27, 2020).

U.S. Department of Agriculture Press Releases:

USDA Approves Program to Feed Kids in Washington (May 26, 2020).

USDA Invests $281 Million in Rural Water and Wastewater Infrastructure Improvements in 36 States and Puerto Rico (May 27, 2020).

USDA Approves Program to Feed Kids in Florida and Minnesota (May 28, 2020).

USDA Approves Program to Feed Kids in Hawaii (May 28, 2020).

USDA Animal and Plant Health Inspection Service & Farm Service Agency Press Releases:

Availability of Petition for Deregulation of Genetically Engineered Soybean (May 27, 2020).

USDA Issues Decision and Finding of No Significant Impact Relative to Oral Rabies Vaccine Distribution in Nine States (May 27, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:

Department of Environmental Protection

50 Pa.B. 2748 “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,” (May 30, 2020).

Department of Transportation

50 Pa.B. 2746 “Registration Class Stickers [Elimination],” (May 30, 2020).

Susquehanna River Basin Commission

50 Pa.B. 2821 “Commission Meeting [Friday, June 19, 2020, at 9 a.m.],” (May 30, 2020).

50 Pa.B. 2821 “Grandfathering Registration Notice,” (May 30, 2020).

50 Pa.B. 2822 “Projects Approved for Consumptive Uses of Water,” (May 30, 2020).

50 Pa.B. 2822 “Grandfathering Registration Notice,” (May 30, 2020).

50 Pa.B. 2825 “Projects Approved for Consumptive Uses of Water,” (May 30, 2020).

Pennsylvania Legislature

S.B. 1162 “An Act amending the act . . . known as the Unemployment Compensation Law, in contributions from employers and employees, further providing for relief from charges.” Referred to Labor and Industry [Senate] (May 25, 2020).

S.Res. 328 “A Resolution urging the Department of Human Services to submit a request to the United States Department of Agriculture to participate in the Supplemental Nutrition Assistance Program Online Purchasing Pilot.” Referred to Health and Human Services [Senate] (May 25, 2020).

H.B. 2553 “An Act amending the act . . . known as the Human Services Code, in public assistance, establishing the SNAP Healthy Bucks Incentive Program.” Referred to Human Services [House] (May 26, 2020).

H.B. 2547 “An Act amending the act . . . known as the Liquor Code [Privatize the Sale of Wine and Spirits],” Referred to Liquor Control [House] (May 26, 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-reported as committed [Senate] (May 26, 2020).

H.B. 1003 “An Act amending Title 30 (Fish) of the Pennsylvania Consolidated Statutes, in dams, bar racks and migration devices, further providing for marking of dams.” First consideration [Senate] (May 27, 2020).

S.B. 1030 “An Act amending the act . . . known as the Pennsylvania Sewage Facilities Act, further providing for official plans.” Presented to the Governor (May 28, 2020).

S.B. 1176 “An Act amending the act . . . known as the Liquor Code, in licenses and regulations and liquor, alcohol and malt and brewed beverages, further providing for sale of malt or brewed beverages by liquor licensees, for wine expanded permits and for retail dispensers' restrictions on purchases and sales.” Referred to Law and Justice [Senate] (May 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 [Increased Penalty for Killing Bald or Golden Eagles].” Referred to Game and Fisheries [House] (May 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.” Referred to Agriculture and Rural Affairs [House] (May 28, 2020).

H.B. 2441 “A Supplement to the act . . . entitled ‘An act to accept the grant of Public Lands, by the United States, to the several states, for the endowment of Agricultural Colleges’ . . . .” Signed by the Governor—Act No. 3A (May 29, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Agricultural Department

85 FR 31736 “Submission for OMB Review; Comment Request [Specified Commodities Imported into the United States Exempt from Import Requirements],” Notice (May 27, 2020).

85 FR 31937 “Department of Agriculture Regulations for Grants and Agreements; Update of Citations,” Rule (May 28, 2020).

Agricultural Marketing Service

85 FR 31432 “Notice of Request for Extension and Revision of a Currently Approved Information Collection [Laboratory Approval Programs],” Notice—Comment Period (May 26, 2020).

85 FR 31431 “Micro-Grants for Food Security Program; Request for Emergency Approval of a New Information Collection,” Notice—Comment Period (May 26, 2020).

85 FR 32003 “USDA Farmers Market Application; Notice of Request for Extension and Revision of a Currently Approved Information Collection,” Notice—Comment Period (May 28, 2020).

Animal and Plant Health Inspection Service

85 FR 32004 “BASF Corporation; Petition for a Determination of Nonregulated Status for Plant-Parasitic Nematode-Protected and Herbicide Resistant Soybean,” Notice—Comment Period (May 28, 2020).

Environmental Protection Agency

85 FR 31383 “Chlormequat Chloride; Pesticide Tolerances,” Rule—Comment Period (May 26, 2020).

85 FR 31386 “Indoxacarb; Pesticide Tolerances,” Rule—Comment Period (May 26, 2020).

85 FR 31774 “Pesticide Product Registration; Receipt of Applications for New Active Ingredients [Ipflufenoquin—Fungicide, Almond and Pome Fruit],” Notice—Comment Period (May 27, 2020).

85 FR 31776 “Dinotefuran; Receipt of Applications for Emergency Exemptions [from Maryland, Pennsylvania, and Virginia], Solicitation of Public Comment,” Notice—Comment Period (May 27, 2020).

85 FR 31983 “Flonicamid; Pesticide Tolerances,” Rule—Comment Period (May 28, 2020).

85 FR 32390 “Pesticide Product Registrations; Receipt of Applications for New Uses [Aspergillus flavus—fungicide, Bacillus licheniformis/Bacillus subtilis—fungicide and nematicide] ,” Notice—Comment Period (May 29, 2020).

85 FR 32338 “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities,” Proposed Rule—Comment Period (May 29, 2020).

85 FR 32389 “Pesticide Product Registration; Receipt of Applications for New Uses [Multiple],” Notice—Comment Period (May 29, 2020).

Federal Communications Commission

85 FR 31616 “Establishing a 5G Fund for Rural America,” Proposed Rule—Comment Period (May 26, 2020).

Federal Crop Insurance Corporation

85 FR 31939 “Common Crop Insurance Regulations; Canola and Rapeseed Crop Insurance Provisions,” Rule—Comment Period (May 28, 2020).

Food and Drug Administration

85 FR 31513 “Guidance Documents Related to Coronavirus Disease 2019 (COVID-19); Availability,” Notice (May 26, 2020).

85 FR 32040 “Mitigation Strategies to Protect Food Against Intentional Adulteration; Draft Guidance for Industry; Extension of the Comment Period,” Notices—Comment Period (May 28, 2020).

Food and Nutrition Service

85 FR 31437 “Emergency Food Assistance Program; Availability of Foods for Fiscal Year 2020,” Notice (May 26, 2020).

85 FR 31433 “Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): 2020/2021 Income Eligibility Guidelines,” Notice (May 26, 2020).

Food Safety and Inspection Service

85 FR 31737 “Notice of Request for Renewal of an Approved Information Collection (In-Home Food Safety Behaviors and Consumer Education: Web-Based Survey),” Notice—Comment Period (May 27, 2020).

National Telecommunications and Information Administration

85 FR 32016 “The National Strategy to Secure 5G Implementation Plan,” Notice—Comment Period (May 28, 2020).

Small Business Administration

85 FR 31357 “Business Loan Program Temporary Changes; Paycheck Protection Program-Second Extension of Limited Safe Harbor With Respect to Certification Concerning Need for PPP Loan and Lender Reporting,” Rule—Comment Period (May 26, 2020).

U.S. House Agriculture Committee Actions:

H.R. 6977 “To provide overtime and holiday fee relief for small meat, poultry, and egg processing plants, and for other purposes.” Referred to the House Committee on Agriculture (May 22, 2020).

H.R.7035 “To amend the Agricultural Marketing Act of 1946 to provide for emergency supplemental funding under local agriculture market program for COVID-19 losses, and for other purposes.” Referred to the House Committee on Agriculture (May 27, 2020).

H.R.7030 “To provide emergency assistance to covered producers for market-ready swine losses due to the COVID-19 pandemic, and for other purposes.” Sponsor introductory remarks on measure (May 28, 2020).

H.R.7047 “To provide for expedited additional support under the farm and ranch stress assistance network, and for other purposes.” Referred to the Committee on Agriculture and the Committee on the Budget (May 28, 2020).

H.R.7051 “To provide Federal relief to hog producers, especially family farmers and independent producers, who have been forced to euthanize hogs due to the COVID-19 pandemic, and for other purposes.” Referred to the House Committee on Agriculture (May 28, 2020).

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

No new actions May 25–29, 2020

May 25–29, 2020 Top #AgLaw links:

Map: COVID-19 Meat Plant Closures, Meat+Poultry (May 28, 2020).

‘Cattle on Feed’ Shows COVID-19 Impact, Feedstuffs (May 26, 2020).

Colorado’s Ballot Measure Similar to Prop 12 Under Fire, Feedstuffs (May 22, 2020).

USDEC’S Vilsack Says Q-1 Dairy Exports Up, Despite COVID-19, Brownfield (May 27, 2020).

CFAP Program Now Open, Offering Farmers COVID-19 Aid, Feedstuffs (May 26, 2020).

CDC Tours Perdue Farms Maryland Poultry Facility Meat+Poultry (May 22, 2020).

Bayer Reaches Deals on Big Share of 125,000 Roundup Weedkiller Suits, Bloomberg (May 25, 2020).

A Deadly ‘Checkerboard’: Covid-19's New Surge Across Rural America, The Washington Post (May 24, 2020).

Tyson Reports 277 Positive COVID-19 Cases at Pasco, Wash., Beef Plant, Meat+Poultry (May 18, 2020).