A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: 

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes bankruptcy and USDA issues.

In re: ERIK SAMUEL DE JONG and DARYL LYNN DE JONG, Debtors. ERIK SAMUEL DE JONG; DARYL LYNN DE JONG, Appellants/Cross-Appellees, v. JLE-04 PARKER, L.L.C., Appellee/Cross-Appellant, BAP Nos. AZ-17-1280-FSBa, AZ-17-1292-FSBa, Bk. No. 2:14-bk-00886-PS, 2018 WL 3740673 (Bankr. 9th Cir. August 3, 2018) concerned a Chapter 11 bankruptcy wherein debtors (dairy farmers) were ordered to leave their property for violating their lease. Debtors remained on the property as trespassers, and here, disputed the damages awarded creditor. The bankruptcy court awarded damages “based on disgorgement of the relevant portion of the Debtors’ net profits plus the value of silage (cow feed), which the Debtors’ cows consumed after the lease terminated.” Appellate considered whether the bankruptcy court “should have removed the silage costs from the prepetition damages award.” Court found that the bankruptcy court “misunderstood its powers under the rule of mandate,” and concluded that “striking the prepetition silage award is appropriate.” Reversed and remanded.

In ORLANDO KILCREASE PLAINTIFF v. UNITED STATES DEPARTMENT OF AGRICULTURE, SONNY PERDUE, and STEVEN PETERSON DEFENDANTS, NO. 5:18-CV-34-DCB-MTP, 2018 WL 3732718 (S.D. Miss. August 6, 2018), plaintiff applied for a loan specialist position with Farm Service Agency (FSA) and alleged race and age-based discrimination against defendants after he was not hired. Defendants moved to dismiss and argued that plaintiff’s complaint “lacks factual allegations linking [plaintiff’s] race or age to the United States Department of Agriculture’s decision not to hire him.” Court observed that plaintiff was rated “best qualified” for the position and concluded that his allegations “allow the Court to reasonably infer that the reason the all-white interview panel recommended four white applicants of equal or inferior qualifications was ‘based on’ [plaintiff’s] race.” Motion to dismiss denied.


REGULATORY: Includes AMS, EPA, FDA, FS, ITA, NOAA, and RUS rules and notices.

AGRICULTURAL MARKETING SERVICERule USDA is announcing a meeting of the National Organic Standards Board (NOSB) to assist the USDA in the development of standards for substances to be used in organic production and to advise the Secretary of Agriculture on any other aspects of the implementation of the Organic Foods Production Act. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is establishing initial air quality designations for the 2012 primary annual fine particle National Ambient Air Quality Standard (NAAQS) for the remaining undesignated areas in the state of Florida. Info here.

Rule EPA is approving a state implementation plan (SIP) revision for the 2011 base year inventory for the Baltimore, Maryland moderate nonattainment area for the 2008 8-hour ozone national ambient air quality standard. Details here.

Rule establishes an exemption from the requirement of a tolerance for cerevisane in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

Rule EPA is proposing to approve portions of State Implementation Plan (SIP) submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee addressing the Clean Air Act (CAA or Act) interstate transport infrastructure SIP requirements. Details here.

FOOD AND DRUG ADMINISTRATIONNotice solicits comments on the information collection associated with the guidance to assist manufacturers who wish to voluntarily label their foods as being made with or without bioengineering, or the use of bioengineered ingredients, to ensure that labeling is truthful and not misleading. Info here.

FOREST SERVICE: Notice FS will prepare an Environmental Impact Statement (EIS) to analyze a variety of resource management actions to implement over the course of 15 years. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is rescinding the administrative review, in part, of the antidumping duty order on certain frozen warmwater shrimp from Vietnam for the period February 1, 2017, through January 31, 2018. Info here.

Notice ITA is conducting an administrative review of the countervailing duty (CVD) order on certain pasta from Italy. The period of review (POR) is January 1, 2016, through December 31, 2016. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes modifications to the commercial summer flounder, scup, and black sea bass accountability measures, as recommended by the Mid-Atlantic Fishery Management Council. Info here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products. Details here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: International Dolphin Conservation Program. Details here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Pacific Island Pelagic Longline Fisheries; Short-tailed Albatross-Fisheries Interaction Recovery Reporting. Info here.

Notice NOAA is seeking expression of interest from private firms interested in entering into a Cooperative Research and Development Agreement (CRADA) with NOAA to conduct collaborative research and development (R&D) on new and innovative approaches that could lead to new and better ways of processing, exploiting and disseminating space-based Earth and space weather observations. Details here.

RURAL UTILITIES SERVICE: Notice RUS announces an additional application window for Fiscal Year (FY) 2018 for the Technical Assistance and Training Grant Program (TAT). Info here.