Agricultural Law Weekly Review—March 26, 2020

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:
Ask CIDD (Penn State’s Center for Infectious Disease Dynamics)
High oleic acid soybeans offer benefits to dairy cows, farmers, research shows (Mar. 17, 2020).
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).
Wolf Administration Reminds Pennsylvanians of Food Assistance Programs and Resources, Encourages Volunteerism to Keep Life-Sustaining Food Services Available (Mar. 24, 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).
APHIS Posts Investigative and Enforcement Services Annual Enforcement Data Report (Mar. 20, 2020).
USDA Rural Development Now in Enterprise-Wide Remote Operational Status (Mar. 20, 2020).
Secretary Perdue Announces New USDA Administration Leadership (Mar. 20, 2020).
Dr. Mark Jekanowski Appointed World Agricultural Outlook Board Chairman (Mar. 23, 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:
Food and retail leaders reassure stability of US food supply chain, MEAT+POULTRY
Approval of genetically engineered soy protein for ‘Impossible Burger’ challenged, Food Safety News
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
USDA ensuring no food safety disruptions amid coronavirus, Feedstuffs
The ripple effects of COVID-19: A look into global dairy, Dairy Reporter
U.S. Senator Says MFP Could be Part of Coronavirus Economic Relief for Farmers, Brownfield
First Settlement Payments from Syngenta Lawsuit are Being Mailed, Brownfield
Bayer Advances Toward Resolving Roundup Litigation, The Wall Street Journal

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Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant