Biden Administration’s First 100 Days on Food and Agricultural Policy

This issue tracker focuses on actions that may impact agricultural or food policy taken by the administration of U.S. President Joe Biden during the first 100 days following his inauguration on January 20, 2021. The goal is to provide a broad overview of legislation, executive orders, and actions on regulations in the promulgation process between January 21, 2021, and April 30, 2021. Descriptions are not intended to be comprehensive and may simply reference a small portion of a particular item or action, concentrating on the agricultural-related substance. Related litigation is not included, although it may certainly reflect or impact agricultural and food policy. Where relevant, some developments after April 30, 2021, may be included.   

3.30.21 – President Joe Biden signed into law H.R. 1799, known as the Paycheck Protection Program Extension Act of 2021. The PPP Extension Act amends the Small Business Act and the CARES Act extending the period during which small business can participate in the Paycheck Protection Program until June 30, 2021. The legislation specifies that the Small Business Administration will only accept new PPP loan applications submitted prior to June 1, 2021.

3.11.21 – President Joe Biden signed into law H.R. 1319, known as the American Rescue Plan Act of 2021, which appropriates approximately $1.9 trillion for various COVID-19 relief funding and authorizes multiple statutory initiatives and programs, including approximately $10.4 billion in aid and assistance to agriculture in various forms. The U.S. Department of Agriculture (USDA) published a factsheet on the law and its highlights, including allocation of $4 billion for debt relief for socially disadvantaged farmers and approximately $1 billion to create a racial equity commission, address longstanding discrimination across USDA programs and for other assistance to socially disadvantaged farmers.

A. Executive Orders

2.24.21 – President Joe Biden signed an Executive Order titled America’s Supply Chains (EO 14017 in the Federal Register), calling for stronger American supply chains to enhance the Nation’s economy and attempt to remedy adverse effects of climate change. In this regard, and among other things, the EO invites the Secretary of Agriculture to prepare and submit a report on supply chains for the production of agricultural commodities and food products within one year from date of this order.

1.27.21 – President Joe Biden signed an Executive Order titled Tackling the Climate Crisis at Home and Abroad (EO 14008 in the Federal Register). In this EO, President Joe Biden calls on the Secretary of Agriculture to gather input from key stakeholders, including farmers and ranchers, on how to best use the U.S. Department of Agriculture (USDA) programs, and funding and financing resources and how to promote climate-smart agriculture and forestry practices, including carbon sequestration. The EO also directs USDA to prepare and submit recommendations for an agricultural and forestry climate strategy within 90 days of the date of this order.

1.22.21 – President Joe Biden signed an Executive Order titled Economic Relief Related to the COVID-19 Pandemic (EO 14002 in the Federal Register). The EO directs, among other things, all executive departments and agencies to act promptly in addressing the economic crisis due to the COVID-19 pandemic. Executive departments and agencies must prioritize actions, particularly to alleviate food insecurity.

1.21.21 – President Joe Biden signed an Executive Order titled Protecting Worker Health and Safety (EO 13999 in the Federal Register). The EO directs, among other things, the Secretary of Agriculture along with the Secretaries of Labor, Health and Human Services, Transportation and Energy to “explore” the implementation of mechanisms for those workers who are not protected, during the COVID-19 pandemic, under the Occupational Safety and Health Act.

1.20.21 – President Joe Biden signed an Executive Order titled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (EO 13990 in the Federal Register). The EO directs agency heads to immediately review all agency actions taken between January 20, 2017, and January 20, 2021, that could be contrary to the new administration’s key policy objectives. The EO specifies that agency heads must determine whether to suspend, revise or rescind prior agency actions and further directs the relevant agencies to initiate a notice-and-comment rulemaking for a multitude of rules with set deadlines. 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 EO also takes multiple immediate actions, such as revoking specific EOs and permits and reversing other executive actions by the preceding administration and its executive agencies.

B. Other Actions

3.5.21 – In a joint statement, the European Union (EU) and the United States announced that they reached an agreement suspending for four months the retaliatory tariffs imposed on EU and U.S. exports following the World Trade Organization (WTO) aircraft disputes. The four-month suspension applies to all tariffs on aircraft products but also on non-aircraft products, including cheese, spirits, and apparel products. As stated in the joint statement, this four-month suspension “will allow the EU and the US to ease the burden on their industries and workers and focus efforts towards resolving these long running disputes at the WTO.”

1.20.21 – President Joe Biden issued a Memorandum titled Regulatory Freeze Pending Review to all the heads of executive departments and agencies. In this Memorandum, President Joe Biden provided that rules that have been sent to the Federal Register, but not yet published, must be immediately withdrawn following the applicable procedures. In addition, rules that have been published in the Federal Register or issued in any manner, but have not already taken effect, must be postponed for 60 days from the date of the Memorandum and must be reviewed in accordance with the applicable law and procedures.

1.20.21 – President Joe Biden announced that the United States rejoined as a member of the Paris Climate Agreement.

A. U.S. Department of Agriculture (USDA)

6.14.21 – USDA Farm Service Agency set a deadline of July 23, 2021, to apply for the Conservation Reserve Program (CRP) General Signup. This follows a prior announcement made on February 5, 2021, that USDA was extending the CRP General Signup period, which was scheduled to expire on February 12, 2021. The announcement states that USDA Farm Service Agency “opened the General Signup in January 2021 and extended the original deadline to July 23, 2021, to enable producers to consider FSA’s new improvements to the program.”

5.20.21 – USDA issued a 90-Day Progress Report on Climate-Smart Agriculture and Forestry as previously directed in the Executive Order 14008 on Tackling the Climate Crisis at Home and Abroad. The report includes a series of seven recommendations to help guide improvements to the U.S. agricultural and forestry climate strategy.

5.12.21 – USDA Agricultural Marketing Service (AMS) published in the Federal Register a Proposed Rule titled National Organic Program; Origin of Livestock; Reopening of Comment Period. The Proposed Rule reopened the comment period for the April 2015 Proposed Rule requiring that organic milk products be derived from animals under “contiguous organic management from the last third of gestation onward.” Newly certified organic dairy producers, however, may transition livestock into organic production if the animal has been “under continuous organic management” for at least 12 months. According to the Proposed Rule, once an animal has been transitioned, it is treated as one that was under continuous organic management from the last third of gestation onward, and the rule does not distinguish between the two. AMS stated that it was seeking comments regarding the prohibition of transitioned animals in organic operations and whether the term “operation” or “producer” should be used to describe the regulated entity. The 60-day comment period ended on July 12, 2021.

4.29.21 – USDA Federal Crop Insurance Corporation published in the Federal Register a Final Rule titled Common Crop Insurance Regulations; Forage Seeding Crop Insurance Provisions. The Final Rule amended the Common Crop Insurance regulations and Forage Seeding Crop Insurance provisions allowing agricultural producers to either purchase or modify their crop insurance coverage on spring forage seeding “until the spring sales closing date if they did not plant any insurable fall seeded forage in the same crop year.” The changes are due to take effect in the year 2022 and succeeding crop years. The effective date is April 29, 2021.

4.27.21 – USDA Rural Business-Cooperative Service published in the Federal Register a Final Rule titled Rural Energy for America Program. The Final Rule amended the existing Rural Energy for America Program (REAP) regulations by repealing the provisions relating to guaranteed loans and making revisions to enhance program delivery and customer service for the REAP program. The Final Rule became effective on July 26, 2021.

4.23.21 – USDA announced its commitment to participate in the Agriculture Innovation Mission for Climate (AIM for Climate) following the 2021 virtual Leaders’ Summit on Climate. This initiative brought together 40 world leaders, including the United States, who agreed to accelerate the research and development (R&D) of global agricultural innovation to address the impact of climate change on agriculture and food systems. The AIM for Climate will be officially launched at the U.N. Climate Change Conference (COP26) in November 2021.

4.22.21 – USDA Deputy Under Secretary for Rural Development announced that the Department is providing $487 million in funding for several states to enhance rural water, energy, and biofuel infrastructure. This funding includes $374 million through the Water and Waste Disposal Loan and Grant Program; $78 million in renewable energy infrastructure through the Rural Energy for America Program (REAP); $17.4 million through the Electric Loan Program; and $18.4 million through the Higher Blends Infrastructure Incentive Program (HBIIP).

4.21.21 – USDA announced that the Department will expand enrollment in the Conservation Reserve Program (CRP), up to 4 million new acres, and promote higher payment rates and new incentives. In addition, USDA will invest approximately $330 million in 85 Regional Conservation Partnership Program (RCPP) projects and $25 million for On-Farm Conservation Innovation Trials.

4.21.21 – USDA Agricultural Marketing Service (AMS) published in the Federal Register a notice of request for public comment on Executive Order 14017 on America’s Supply Chains. Comments should help USDA to prepare the report required by the EO on supply chains for the production of agricultural commodities and food products.

4.21.21 – USDA announced that the National Institute of Food and Agriculture (NIFA) will invest approximately $21.7 million in various agricultural programs to address climate change and its impacts on agricultural producers, including $11.7 million through its Agricultural and Food Research Initiative (AFRI) and $10 million in a new AFRI program area priority, called “Extension, Education and USDA Climate Hub Partnerships.”

4.13.21 – USDA announced that the Department is providing approximately $330 million in pandemic assistance for agricultural producers and organizations that have been financially strained due to the impact of COVID-19 on the food supply chain. This funding includes $169.9 million for the Specialty Crop Block Grant Program (SCBGP); $75 million for Gus Schumacher Nutrition Incentive Program; and $80 million in payments to cotton producers.

3.24.21 – USDA announced its new $6 billion financial assistance initiative, called USDA Pandemic Assistance for Producers. Combining existing programs with new spending, the initiative aims to resolve disparities in previous assistance distribution through a four-part agenda: $6 billion in Consolidated Appropriations Act and unspent coronavirus funds for new program spending, including assistance for the Dairy Donation Program, biofuels, specialty crops, and farmworker personal protective equipment; $500 million in additional existing program spending, including the Specialty Crop Block Grant Program and the Local Agricultural Marketing Program; continuation of the Coronavirus Food Assistance Program (CFAP) payments, including rate increases and automatic payments for cattle producers, price trigger crop producers, and flat-rate crop producers with eligible CFAP 1 and CFAP 2 applications; and enhancing the CFAP 2 program through $2.5 million in outreach and promotional spending and reopening the CFAP 2 application window for at least 60 days, beginning April 5, 2021.

3.22.21 – USDA announced it is increasing Supplemental Nutrition Assistance Program (SNAP) benefits by 15% through September 2021. This increase will provide approximately $3.5 billion to food-insecure households during the COVID-19 pandemic, which translates into up to $100 per household.

3.16.21 – USDA Office of the Chief Economist published in the Federal Register a notice of request for public comment on Executive Order 14008 on Tackling the Climate Crisis at Home and Abroad. According to a corresponding announcement, USDA sought to develop a climate-smart agriculture and forestry strategy consistent with the EO and requested public input on four topics: 1) climate-smart agriculture and forestry; 2) biofuels, bioproducts, and renewable energy; 3) catastrophic wildfire; and 4) meeting the needs of disadvantaged communities through USDA climate strategy.

3.9.21 – USDA Natural Resources Conservation Service (NRCS) published in the Federal Register a notice titled Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service upon which the agency is seeking comments. The proposed revisions include a new conservation practice for milking equipment graywater treatment, modifications to encourage the installment of dry hydrants, and shifting the terminology ‘Farmstead Energy Improvement” to “Energy Efficient Agricultural Operation” by focusing on fire and electrical safety and manufacturer’s requirements.

3.8.21 – USDA Agricultural Marketing Service (AMS) announced that it is seeking public comment on the development, coordination, and implementation of grant programs authorized by the $1.5 billion appropriation contained in the 2021 Consolidated Appropriations Act: (a) to purchase food and agricultural products to distribute to individuals in need; (b) for grants and loans to small or midsized food processors or distributors, farmers market, producers, or other organizations to respond to coronavirus; and (c) for measures to protect workers against COVID-19.

3.8.21 – USDA Agricultural Marketing Service (AMS) announced that the Final Rule titled Establishment of a Domestic Hemp Production Program will move forward and become effective on March 22, 2021, as initially planned after USDA completed its final review. The Final Rule was published in the Federal Register on January 19, 2021.

3.8.21 – USDA Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a notice reopening the comment period of its December 28, 2020, Proposed Rule titled Regulation of the Movement of Animals Modified or Developed by Genetic Engineering. APHIS proposed to transfer regulatory oversight of animal biotechnology from the Food and Drug Administration (FDA) to USDA, specifically those animals regulated under the Federal Meat Inspection Act and Poultry Products Inspection Act. The 60-day comment period closed on May 7, 2021.

3.2.21 – USDA Food Safety and Inspection Service (FSIS) published in the Federal Register a Proposed Rule titled Internet Access at Official Establishments and Plants, which proposed to connect FSIS to the Internet network of those official meat, poultry, and egg product establishments receiving voluntary inspection services allowing the agency to access their documents. The Proposed Rule stated that “FSIS views internet service as a necessary utility, like lightning, heating, and laundry services, that should be provided by establishments as a regulatory condition of receiving inspection.”

2.26.21 – USDA Rural Utilities Service published in the Federal Register a Final Rule titled Rural eConnectivity Program, establishing the Rural eConnectivity Program. This program will offer loans, grants and loan/grant combinations to expand broadband services in rural America and allow, among other things, to boost smart farming technology innovations. This rule became effective on April 27, 2021.

2.5.21 – USDA Farm Service Agency announced that it extended the Conservation Reserve Program (CRP) General Signup Period, which was scheduled to expire on February 12, 2021. USDA declared, “USDA will continue to accept offers as it takes this opportunity for the incoming Administration to evacuate ways to increase enrollment.”

2.4.21 – USDA Commodity Credit Corporation published in the Federal Register a Final Rule adopting the Agricultural Conservation Easement Program interim rule issued on January 6, 2020, with minor changes. The Final Rule made changes to the Agricultural Conservation Easement Program (ACEP) consistent with the 2018 Farm Bill. The rule became effective on February 4, 2021.

1.27.21 – USDA announced on its Coronavirus Food Assistance Program (CFAP) webpage that the agency temporarily halted until further notice implementation of its January 19, 2021, Final Rule titled Coronavirus Food Assistance Program; Additional Assistance. The agency suspended CFAP payments under the rule in accordance with the White House Memo, Regulatory Freeze Pending Review, which called 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.

1.27.21 – USDA announced that it suspended 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 also will refrain from referring foreclosures to the Department of Justice (DOJ) and will cooperate with the U.S. Attorney 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 stated that it expected to continue this action, which applied to about 10% of all FSA borrowers, throughout the COVID-19 disaster declaration.

1.22.21 – USDA announced several measures it took or will take to address food insecurity across the country, among which is a 15% increase to the Pandemic Electronic Benefits Transfer (P-EBT). The P-EBT 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 Executive Order 14002 on Economic Relief Related to the COVID-19 Pandemic, USDA announcement drew on Section 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 a guidance issued on January 29, 2021, by USDA Food and Nutrition Service, 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 stated that it will begin revising its Thrifty Food Plan, last revised in 2007, and work to provide more SNAP benefits for the lowest-income households.

1.22.21 – USDA Food Safety and Inspection Service (FSIS) withdrew a Proposed Rule from the Office of Information and Regulatory Affairs (OIGA), which had been published on November 6, 2020, titled Maximum Line Speed under the New Poultry Inspection System. The Proposed Rule would have allowed poultry lines to operate at speeds up to 175 birds per minute.

B. U.S. Department of Labor (DOL)

4.26.21 – U.S. DOL Occupational Safety and Health Administration (OSHA) submitted to the White House an Emergency Temporary Standard (ETS) for the prevention of workplace COVID-19 transmission. President Joe Biden’s Executive Order 13999 on Protecting Worker Health and Safety directed DOL OSHA to decide upon the necessity of an ETS and submit it to the White House by March 15, 2021, but that action was long delayed without official explanation. An ETS on this topic would represent the first mandatory federal government workplace requirements specifically addressing COVID-19 transmission since the onset of the pandemic in 2020. The draft standard is under review by the Office of Management and Budget Office of Information and Regulatory Affairs. OSHA emergency temporary standards are only authorized by law to be effective for six months and, if and when issued, this will be the first ETS issued since 1983. The legal authority for OSHA to dispense with the formal regulation promulgation process requires a showing that “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.” Note: The OSHA Emergency Temporary Standard was issued on June 10, 2021 and only applied to employees in healthcare services. 

3.12.21 – U.S. DOL Occupational Safety and Health Administration (OSHA) issued a Memorandum for regional OSHA administrators and state OSHA plan designees titled Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). The updated plan outlined the agency’s new National Emphasis Program (NEP), established by DIR 2021-01 (CPL-03), also issued the same day. The NEP provided guidance to compliance officers and area officers for addressing COVID-19 reports and prioritized on-site inspection and enforcement in high-risk settings where employees work in close contact, including “meat, poultry, and other food processing,” and high-volume retail settings. Effective upon publication, the NEP specified that targeted inspections begin on March 26, 2021. The NEP is in response to Executive Order 13999 on Protecting Worker Health and Safety.

2.23.21 – U.S. DOL Employment and Training Administration (ETA) published in the Federal Register a notice titled Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations. The Adverse Effect Wage Rates (AEWR), i.e. the minimum wage rates for H-2A workers, vary by state and are based upon the recently released 2020 Farm Labor Report.  The rates are retroactive back to January 1. 2021.

2.22.21 – U.S. DOL Office of Inspector General (OIG) issued a Memorandum to the Occupational Safety and Health Administration (OSHA) announcing its intention to conduct an audit of OSHA’s actions related to protecting workers from COVID-19 exposure. According to the Memorandum, the OIG shall contact OSHA’s audit liaison to schedule an entrance conference to discuss the audit’s objective, scope, and methodology.

1.29.21 – U.S. DOL Occupational Safety and Health Administration (OSHA) issued new guidance titled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, consistent with the Executive Order 13999 on Protecting Worker Health and Safety. The EO directed DOL to, among other things, issue revised COVID-19 workplace safety guidance within two weeks and consider the necessity of mandatory emergency temporary standards on COVID-19 and, if necessary, issue them by March 15, 2021.

C. U.S. Environmental Protection Agency (EPA) 

4.21.21 – EPA Administrator Michael Regan testified about EPA’s approach to the presently applicable Navigable Waters Protection Rule (NWPR) before the House Committee on Appropriations, Subcommittee on Interior, Environment and Related Agencies. He stated, “What I’m pledging to do is begin a stakeholder-engagement process involving our ag community – farm bureau, ag CEOs, our environmental community – to look at the lessons learned and how we can move forward … that we can provide some certainty to the ag industry where we don’t overburden the small farmer, but we also balance.” He later testified, “We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim and we don’t necessarily agree with everything that was in the Trump administration’s version as well.”

4.1.21 – U.S. EPA published in the Federal Register a Final Rule titled Extension of 2019 and 2020 Renewable Fuel Standard Compliance and Attest Engagement Reporting Deadlines. The rule, published as proposed on January 15, 2021, by the prior administration, extended the deadline for submission of 2020 RFS compliance materials until January 31, 2022, and extended the associated attest engagement report submission deadline until June 1, 2022. While the deadline for 2021 compliance materials remained March 31, 2022, the rule extended the 2021 attest engagement report deadline until September 1, 2022. Additionally, the rule extended the 2019 submission deadlines for small refineries until November 30, 2021, for compliance documents and until June 1, 2022, for attest engagement reports.

2.22.21 – U.S. EPA issued a Press Release announcing its support for the Tenth Circuit Court’s decision in the case Renewable Fuels Ass’n, et al. v. EPA, reversing EPA’s prior interpretation of eligibility for the Renewable Fuel Standard (RFS) Small Refinery Exemptions (SREs). As a result, in the appeal of the Tenth Circuit’s decision to the U.S. Supreme Court in HollyFrontier Cheyenne Refining, LLC, et al. v. Renewable Fuels Ass’n, et al., No. 20-472, EPA declined to file a brief defending the EPA’s prior position by the February 22, 2021, deadline.

2.16.21 – U.S. EPA announced that it was committed to strengthening its Toxic Substances Control Act (TSCA) systematic review approach to ensure that future decision-making is based on the best available scientific data.

D. U.S. Department of the Interior (DOI)

2.11.21 – U.S. DOI announced that it was taking actions to further improve the Land and Water Conservation Fund (LWCF) through the rescinding of prior Trump administration policies that could have jeopardized the landmark conservation program. The Department also announced that Secretarial Order 3396 revoked Secretarial Order 3388 dated November 9, 2020, that “unilaterally imposed new restrictions to inhibit the availability of LWCF funding for federal land and water acquisitions.”

E. U.S. Small Business Administration (SBA)

3.22.21 – U.S. Small Business Administration (SBA) published in the Federal Register an interim final rule titled Business Loan Program Temporary Changes: Paycheck Protection Program as Amended by American Rescue Plan. This interim final rule introduced changes to loans made under the Paycheck Protection Program (PPP) in order to provide economic relief to small businesses impacted by the COVID-19 pandemic.

3.12.21 – Together with U.S. Department of Treasury, U.S. Small Business Administration (SBA) issued an updated guidance on how businesses can calculate maximum loan amounts for first and second draw Paycheck Protection Program (PPP) loans and what documentation was required. In this guidance, U.S. SBA reiterated its position that only self-employed farmers and ranchers who report their income on an IRS Form 1040 Schedule F may use gross income to determine the PPP loan amount.