Agricultural Law Weekly Review—April 30, 2020

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:
Roger A. McEowen, Abandoned Railways and Issues for Adjacent Landowners (April 21, 2020).
Brigit Rollins, Supreme Court Issues Opinion in “County of Maui” (April 23, 2020).
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).
Administración Wolf: Pruebas prioritarias de COVID-19 de acuerdo a la región a disposición de la fuerza laboral que apoya el suministro de alimentos de Pennsylvania (April 27, 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 Approves Program to Feed Kids in Alabama (April 22, 2020).
USDA Approves Program to Feed Kids in Wisconsin (April 23, 2020).
USDA Approves Program to Feed Kids in California and Connecticut (April 24, 2020).
Vermont Added to Innovative SNAP Online Pilot Program (April 24, 2020).
USDA Approves Program to Feed Kids in Kansas and Virginia (April 27, 2020).
USDA Approves Program to Feed Kids in Maryland and New Mexico (April 28, 2020).
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:
Confirmation of COVID-19 in Two Pet Cats in New York (April. 22, 2020).
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).
85 FR 23840 “Endangered Species; Receipt of Recovery Permit Applications

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

Follow us on Twitter @AgShaleLaw to receive #AgLaw HotLinks
April 23–29, 2020 Top #AgLaw links:
Lawmakers and cattle producers ask for beef market investigation, AgWeek (April 27, 2020).
Justice Department Set to Approve Dairy Cooperative’s Purchase of Dean Foods Plants, The Wall Street Journal (April 20, 2020).
COVID-19 aid payment limits raise flags for livestock groups, Feedstuffs (April 23, 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).
Farm workers to be exempt from Trump’s immigration ban, Politico (April 21, 2020).
Coronavirus forces Tyson Foods to shutter two major U.S. pork plants, Reuters (April 22, 2020).
Group proposes moratorium on farm foreclosures, Morning Ag Clips (April 22, 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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Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant