Agricultural Law Weekly Review—week ending January 29, 2021  

Executive Branch Transition: White House Executive Order Directs Review of Previous Administration Actions, Cancels and Revokes Others
On January 25, 2021, President Biden published in the Federal Register Executive Order (EO) 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037  Among other things, the EO directs agency heads to immediately review all agency actions taken between January 20, 2017 and January 20, 2021 that “are or may be inconsistent with, or present obstacles to” the administration’s voluminous policies articulated in the EO.  The agency heads shall consider suspending, revising or rescinding those actions as well as proposing rulemaking to do the same.  A list of considered actions in response to the review is due to the Office of Management and Budget (OMB) within 30 days for actions that can be completed by December 31, 2021 and within 90 days for actions to be completed by December 31, 2025.  The order also takes multiple immediate actions, such as revoking, specific EOs and permits and reversing other executive actions by the preceding Presidential administration and its executive agencies.  No USDA actions have yet been impacted by the executive order.

COVID-19: USDA Suspends FSA Loan Collections and Foreclosures
On January 26, 2021, the U.S. Department of Agriculture (USDA) announced that it will suspend, until further notice, collections and foreclosures on Farm Service Agency (FSA)-administered Direct Farm Loans and Farm Storage Facility Loans.  According to the announcement, USDA will suspend wage garnishments and non-judicial foreclosures.  The agency will also refrain from referring foreclosures to the Department of Justice (DOJ) and will cooperate with the U.S. Attorney’s Office to halt evictions and judicial foreclosures on previously referred accounts.  Additionally, USDA has extended the deadlines for borrowers to apply for loan deferrals and respond to loan servicing actions.  USDA states that it expects to continue this action, which applies to about 10% of all FSA borrowers, throughout the COVID-19 disaster declaration.

Nutrition Programs: USDA Increases P-EBT Benefits
On January 22, 2021, the U.S. Department of Agriculture (USDA) announced several measures it will take to address food insecurity across the country, among which is a 15% increase to the Pandemic Electronic Benefits Transfer (P-EBT), which provides EBT cards for school children eligible for free or reduced-price meals under the National School Lunch Act whose schools have closed or reduced operating hours due to the COVID-19 pandemic.  Consistent with a concurrent Executive Order (No. 14002 of January 22, 2021), calling on executive agencies to “promptly identify actions . . . within existing authorities” that can be taken to address economic need resulting from the pandemic, USDA’s announcement draws on Sec. 702(a), Div. N (“Supplemental Nutrition Assistance Program”) and the 2021 Consolidated Appropriations Act (H.R. 133), which increased Supplemental Nutrition Assistance Program (SNAP) benefits by 15%.  According to guidance issued by USDA’s Food and Nutrition Service on January 29, 2021, the daily rate for P-EBT benefits is now $6.82 per child per school day, a 16% increase from the previous $5.86.  Additionally, USDA states that it will begin revising its Thrifty Food Plan, last revised in 2007, and work with the Department of Justice to provide more SNAP benefits for the lowest-income households.

COVID-19: CFAP Additional Assistance Payments Halted Pending Further Review
On January 27, 2021, the U.S. Department of Agriculture (USDA) updated its Coronavirus Food Assistance Program (CFAP) webpage with a message stating that the agency has temporarily halted, until further notice, implementation of its January 19, 2021 rule, “Coronavirus Food Assistance Program; Additional Assistance” (86 FR 4877).  For more on the rule, see ALWR—week ending January 22, 2021, “USDA Announces Additional Eligible CFAP Commodities, Updated Payment Calculations and Reopens Applications.”  According to the webpage, the agency has suspended CFAP payments under the rule in accordance with the January 20, 2021 White House memo Regulatory Freeze Pending Review, which calls for the suspension or postponement of substantive agency actions submitted to Federal Register until further review and approval by a designated presidential appointee or representative, including those actions “undertaken before noon on January 20, 2021” which may “frustrate the purpose” of the memorandum.  Producers may continue to submit CFAP applications to their local Farm Service Agency (FSA) offices during the review period.

Ag Labor: FSIS Withdraws Poultry Line Speed Proposed Rule
On January 22, 2021, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) withdrew from the Office of Information and Regulatory Affairs a notice of proposed rulemaking issued November 6, 2020 titled “Maximum Line Speed Under the New Poultry Inspection System.”  The proposed rule would allow poultry lines to operate at speeds up to 175 birds per minute.

International Trade: European Commission Initiates Public Consultation on Geographic Indicators Scheme
On January 15, 2021, the European Commission initiated a public consultation titled “EU Geographical Indications Scheme (revision),” which aims to gather stakeholder feedback on how to strengthen its geographical indications (GI) scheme as a part of its Farm to Fork Strategy.  According to the public consultation posting, the European Union (EU) protects nearly 3,400 specific food names, including many agricultural products, under several EU quality schemes.  According to a report (No. E42021-0011) by the U.S. Department of Agriculture (USDA) Foreign Agricultural Service (FAS), the Commission is currently devising an impact assessment to inform its GI legislation revision, which will analyze, among other things, how to “improve protection and enforcement of GIs in the Member States, notably on the internet.”  The report also states that the Commission is considering GI protection measures for non-agricultural products.  U.S. stakeholders may submit comment by April 9, 2021.

Dairy Pricing: California to Hold Referendum on State Quota Premium System
On January 25, 2021, California Department of Food and Agriculture (CDFA) issued an Order adopting an administrative hearing recommendation approving a petition requesting a producer referendum to implement a flat quota rate of $1.43 per hundredweight (cwt) for all counties in the state and thereafter eliminate the current California state Quota Implementation Plan (QIP) as of March 1, 2025, via a proposed Sunset Plan.  Under the current state QIP program, California dairy farmers receive a premium, funded through California “milk pool” deductions, for quota-covered raw milk (which is unavailable for non-quota milk). “Quota” in California is a transferable contractual entitlement to share in premiums generated by the market pool.  According to CDFA, the referendum voting period is March 4, 2021 through June 1, 2021.

Dairy Policy: Pennsylvania Government-supplied Farm Bulk Tank Calibration Services Phased Out
On January 27, 2021, the Pennsylvania Milk Marketing Board (PMMB) issued a bulletin (No. 1591) declaring that for cooperative members it will phase out farm bulk tank calibration services beginning April 1, 2021 and will no longer perform such services by May 1, 2021.  The PMMB will continue to provide this service for independent producers until the board permanently ends the farm bulk tank calibration program on December 31, 2021.

Upcoming Webinars from Penn State Extension

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Attorney, March 23, 2021 at 9:00 am ET.

Conversations with the Professionals: Ag Succession and Transition Planning with an Ag Accountant, April 27, 2021 at 9:00 am ET.  

Agricultural Law/Policy Resources of Interest: 

Pennsylvania Farm Bureau, Farm Focus (Podcast): Beginning Farmer Tax Credit (Jan. 22, 2021).

Tiffany Lashmet, Case Addresses Solar Lease, Mineral Owner, and the Accommodation Doctrine (Jan. 25, 2021).

Jeffrey K. Lewis, Mineral Rights: The Underlying Legacy – Part II (Jan. 26, 2021).

Harrison Pittman, Legal Checkup on Checkoffs: Beef Checkoff Basics (Jan. 27, 2021).

Roger A. McEowen, Deducting Start-Up Costs – When Does the Business Activity Begin? (Jan. 27, 2021).

Peggy Kirk Hall, Congress Passes Bill Extending the Great Lakes Restoration Initiative (Jan. 29, 2021).

Penn State Research & News:

Satellite Data Reveals Bonds Between Emissions, Pollution and Economy (Jan. 26, 2021).

Toxin-Antitoxin Function Fuels Antibiotic-Resistance Research (Jan. 28, 2021).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, January 18 – January 24 (Jan. 26, 2021).

Department Of Agriculture Offers Free Virtual Organic Field Day Series Through Pennsylvania Farm Bill Organic Program (Jan. 27, 2021).

Wolf Administration Awards $1.3 Million To Fund Research To Grow PA Agriculture Industry (Jan. 29, 2021).

U.S. Department of Agriculture (USDA) Press Releases:

U.S. Department of Agriculture Announces Heather Dawn Thompson as Director, Office of Tribal Relations (Jan. 25, 2021).

USDA Temporarily Suspends Debt Collections, Foreclosures and Other Activities on Farm Loans for Several Thousand Distressed Borrowers Due to Coronavirus (Jan. 27, 2021).

U.S. Department of Agriculture Announces Key Staff Appointments (Jan. 27, 2021).

USDA Agency Press Releases:

Micronutrient-Packed Bar Improving Metabolic Health Goes Commercial, ARS (Jan. 27, 2021).

Corralling Carrots’ Microbial Allies Could Stymie Disease, ARS (Jan. 28, 2021).

Agricultural Market Access Under Tariff-Rate Quotas, ERS (Jan. 2021).

Webinar: Farm Income and Financial Forecasts, February 2021 Update—Feb. 5, 2021, 1:00pm EST, ERS

USDA Forest Service Announces 2021 Grazing Fee, Forest Service (Jan. 29, 2021).

USDA’s 2022 Census of Agriculture Content Test is Underway, NASS (Jan. 27, 2021).

United States Cattle Inventory Down Slightly, NASS (Jan. 29, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 5—Jan. 30, 2021): 

Delaware River Basin Commission

51 Pa.B. 571 Notice: “Virtual Public Hearing and Virtual Business Meeting [February 10 and March 10, 2021].”

Fish and Boat Commission

51 Pa.B. 658 Notice: “Additions to List of Class A Wild Trout Waters; October 2020.”

51 Pa.B. 658 Notice: “Classification of Wild Trout Streams; Additions; October 2020.”

State Conservation Commission

51 Pa.B. 675 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

Pennsylvania Legislature

HB 101 “An Act providing for limited civil liability for agritourism activity providers, for notice of limited civil liability and for acknowledgment of limited civil liability.” Laid on the table [House] (Jan. 27, 2021).

HB 110 “An Act amending . . . the Hardwoods Development Council Act, further providing for Hardwoods Development Council.” Laid on the table [House] (Jan. 27, 2021).

HB 179 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for Food Establishment Pandemic Disease Remediation Cost Reimbursement Grant Program.” Laid on the table [House] (Jan. 27, 2021).

HB 187 “An Act amending . . . the Donated Food Limited Liability Act, further providing for donor immunity.” Laid on the table [House] (Jan. 27, 2021).

HB 186 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in size, weight and load, further providing for permit for movement during course of manufacture; and, in powers of department and local authorities, further providing for power of Governor during emergency [‘Milk Hauling Legislation’].”  Removed from table [House] (Jan. 28, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Jan. 25–29, 2021): 

Agricultural Department

86 FR 6862 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Laboratory Approval Programs]” (Jan. 25, 2021).

86 FR 7243 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: School Meals Operations Study: State Agency COVID-19 Child Nutrition Waivers Evaluation]” (Jan. 27, 2021).

86 FR 7243 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: CCC’s Export Credit Guarantee Program]” (Jan. 27, 2021).

86 FR 7244 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Child Nutrition Database]” (Jan. 27, 2021).

86 FR 7245 Notice: “Submission for OMB Review; Comment Request [Forest Service: Collaborative Forest Landscape Restoration Program]” (Jan. 27, 2021).

86 FR 7353 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Plan for Estimating Daily Livestock Slaughter under Federal Inspection]” (Jan. 28, 2021).

86 FR 7353 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: County Committee Election]”

86 FR 7526 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: Annual Survey of Farmer Cooperatives]” (Jan. 29, 2021).

86 FR 7526 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Recordkeeping for Employment and Training Program Activity Report and Requests for Additional 100 Percent Funding]” (Jan. 29, 2021).

Delaware River Basin Commission

86 FR 7372 Notice: “Notice of Public Hearing and Business Meeting; February 10 and March 10, 2021” (Jan. 28, 2021).

Federal Emergency Management Agency

86 FR 6899 Notice: “Final Flood Hazard Determinations [Colo., Iowa, Okla., Pa.]” (Jan. 25, 2021).

86 FR 6902 Notice: “Changes in Flood Hazard Determinations [Ala., Del., Fla., Okla., Pa., S.C., Tex., Va.]” (Jan. 25, 2021).

86 FR 6896 Notice—Comment Period: “Proposed Flood Hazard Determinations [Fla., N.C., Pa., Wyo.]” (Jan. 25, 2021).

86 FR 6904 Notice—Comment Period: “Proposed Flood Hazard Determinations [Cal., Ind., Mich.]” (Jan. 25, 2021).

86 FR 7509 Final Rule: “Suspension of Community Eligibility [Cal., Ind., Iowa, Kan., Ky., Mo., N.H., S.C., Tex. Va.]” (Jan. 29, 2021).

Small Business Administration

86 FR 7329 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Oklahoma” (Jan. 27, 2021).

86 FR 7329 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Connecticut” (Jan. 27, 2021).

86 FR 7330 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Alabama” (Jan. 27, 2021).

86 FR 7330 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Louisiana” (Jan. 27, 2021).

86 FR 7330 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of New Jersey” (Jan. 27, 2021).

86 FR 7331 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of North Carolina” (Jan. 27, 2021).

86 FR 7331 Notice: “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Colorado” (Jan. 27, 2021).

86 FR 7610 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of Oregon” (Jan. 29, 2021).

U.S. House Agriculture Committee

H.R.487 “To amend the Food and Nutrition Act of 2008 to expand the operation of the State employment and training programs under such Act, and for other purposes.” Referred to the House Committee on Agriculture (Jan. 25, 2021).

H.R.488 “To prohibit a moratorium on mineral development on Bureau of Land Management and National Forest System land, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Jan. 25, 2021).

H.R.498 “To authorize the Secretary of Agriculture to subsidize payments on loans made under certain rural development loan programs, and for other purposes.” Referred to the House Committee on Agriculture (Jan. 28, 2021).

H.R.543 “To prohibit the President from issuing moratoria on leasing and permitting energy and minerals on certain Federal land, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Jan. 28, 2021).

H.R.547 “To amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to allow for the interstate internet sales of certain State-inspected meat and poultry, and for other purposes.” Referred to the House Committee on Agriculture (Jan. 28, 2021).

H.R.633 “To authorize States to select and acquire certain National Forest System lands to be managed and operated by the State for timber production and for other purposes under the laws of the State, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (Jan. 28, 2021).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:

S.107 “A bill to amend the Federal Meat Inspection Act and the Poultry Products Inspection Act to allow the interstate sale of State-inspected meat and poultry, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Jan. 28, 2021).

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Top #AgLaw HotLinks Jan. 25–29, 2021

Ethanol Production Profits in 2020: A Year Like No Other, FarmDoc Daily

Farmers are Worried About Climate Change but Skeptical of Carbon Markets—Survey, FERN’s Ag Insider

Biden Administration: Tide Shifting on Climate Change Discussion, Farm Progress

Biden Administration: Will Farmers See Another WOTUS Redo?, Feedstuffs

Biden Immigration Plan: Undocumented Farmworkers Could Apply for Green Cards Immediately, Desert Sun

Agriculture Concerned WOTUS Could Reappear, Brownfield

Family Farms Still Rule US but Non-Family Farms Growing, Farm and Dairy

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