A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes PACA, CWA, and USDA issues.

In John the Greek Co., Inc., Plaintiff, v. Eaternity LLC d/b/a Local Thyme and Stefan Hilderbrandt, Defendants, 16–cv–919 (ADS)(AYS), 2017 WL 563981 (E.D. N.Y. Feb. 10, 2017), plaintiff sued corporation and its alleged principal alleging violation of the Perishable Agricultural Commodities Act (PACA). Defendant (Hilderbrandt) argued his role in the company “is too remote from any financial decision-making to hold him personally liable for any PACA violations.” Court noted that “[t]he case law is clear … that individual shareholders, officers and/or directors of a corporation that is subject to PACA can face individual liability for breach of their fiduciary duty to PACA Claimants.” Specifically, “an individual who is in a position to control the assets of a PACA trust and fails to preserve those assets may be held personally liable to the trust beneficiaries for breach of fiduciary duty.” Issue of whether named officer “may properly be held individually liable for the corporation’s conceded PACA violations will turn on facts decided by a jury after a trial.” Plaintiff’s motion for summary judgment denied.

In Ohio Valley Environmental Coalition, Inc., Sierra Club, West Virginia Highlands Conservancy, Inc. and Virginia Rivers Coalition, Plaintiffs, v. Gina McCarthy, Administrator, United States Environmental Protection Agency and Shawn M. Garvin, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants, NO. 3:15-0271, 2017 WL 600102 (S.D.W. Va. Feb. 14, 2017), plaintiffs challenged Environmental Protection Agency’s (EPA) “failure to disapprove actual or constructive submissions by the West Virginia Department of Environmental Protection (WVDEP) that lacked total maximum daily loads (TMDLs) for waterbodies previously identified by WVDEP and EPA as ‘biologically impaired.’” Court observed that the Clean Water Act (CWA) allows for EPA’s discretion in approving or disapproving submissions. Notably, “Where it disapproves a submission, it then inherits a nondiscretionary duty to produce the TMDLs that were disapproved.”  Court concluded that it can “only order the EPA to perform the nondiscretionary duty which it has failed to assume—approve or disapprove WVDEP’s constructive submission.”

In UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BENITA DINKINS-ROBINSON, Defendant – Appellant, No. 15-4519, 2017 WL 624163 (4th Cir. Feb. 15, 2017), defendant, director of a charter school, was convicted of embezzling federal funds, and on appeal, argued government failed to show the funds taken belonged to the federal government or that she took more than $1,000 of federal funds. Plaintiff maintained that because the money the school received from state and federal sources was “commingled in one undifferentiated account, the government could not show that the money she took was federal, as opposed to purely state, money.” Court noted that, “Federal funds do not lose their federal character just because a recipient commingles them with other money in a single account.” Here, USDA and Department of Education (DOE) funds comprised one third of the money in the commingled account and court ruled the jury “only needed to infer that more than $1,000 — less than one tenth of one percent of the total — was federal money.” Appeal denied.


LEGISLATIVE:

H.R. 428: Red River Gradient Boundary Survey Act. Bill’s text for status Passed the House and is now available.

H.Con.Res. 27: Expressing the sense of Congress that America’s Federal public lands are national treasures that belong to all Americans. Resolution referred to the House Committee on Natural Resources which will consider it. Sponsor: Rep. Alan Lowenthal [D-CA47].

H.R. 1084: To address slow economic growth and spur investment and development in underserved communities across America. Bill referred to the House Committee on Agriculture, House Committee on Education and the Workforce, and 6 other committees. Sponsor: Rep. Robin Kelly [D-IL2].

H.R. 1078: To amend title 37, United States Code, to exclude the receipt of basic allowance for housing for members of the Armed Forces in determining eligibility for certain Federal benefits. Bill referred to the House Committee on Agriculture and House Committee on Armed Services. Sponsor: Rep. Susan Davis [D-CA53].

H.R. 1099: To extend the authorization of appropriations for allocation to carry out approved wetlands conservation projects under the North American Wetlands Conservation Act through fiscal year 2022. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Robert Wittman [R-VA1].

H.R. 1085: To withdraw certain Bureau of Land Management land from mineral development. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Michelle Lujan Grisham [D-NM1].


REGULATORY: Includes AMS and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule the comment period for the interim rule on revisions to inspection application requirements is extended until March 23, 2017. The rule invited comments on amendments to the inspection requirements for fresh and processed fruits, and vegetables. Info here.

Rule the comment period for the proposed rule published in the Federal Register on January 13, 2017 (82 FR 4203), is extended until April 13, 2017. The proposed rule invited comments on proposed adjustments to representation on the Cattlemen’s Beef Promotion and Research Board to reflect recent changes in domestic cattle inventories and levels of imported cattle, beef, and beef products. Info here.

Rule the comment period for the proposed rule published in the Federal Register on January 13, 2017 (82 FR 4198), is extended until April 13, 2017. The proposed rule invited comments on proposed amendments to the Country of Origin Labeling regulation to add muscle cuts of venison and ground venison to mandatory COOL requirements. Info here.

Rule the comment period for the proposed rule published in the Federal Register on January 18, 2017, is extended until April 19, 2017. The rule invited comments on recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board following their October 2015 meeting. Details here.

Rule the comment period for the proposed rule published in the Federal Register on December 14, 2016 (81 FR 90255), is extended until March 15, 2017. The rule invited comments on proposed amendments to the regulations under the Perishable Agricultural Commodities Act that would clarify how growers and other principals may preserve their PACA trust rights. Details here.

Notice AMS is extending the comment period for the notice of availability of draft guidance that appeared in the Federal Register on December 6, 2016 (81 FR 87902). The draft guidance document is entitled: Calculating the Percentage of Organic Ingredients in Multi-Ingredient Products. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNISTRATION:

Rule NMFS is reallocating the projected unused amounts of the Aleut Corporation pollock directed fishing allowance from the Aleutian Islands subarea to the Bering Sea subarea. Info here.

Notice NMFS will submit to OMB for clearance a proposal for collection of information. Title: Applications and Reporting Requirements for the Incidental Take of Marine Mammals by Specified Activities under the Marine Mammal Protection Act. Info here.

Notice the New England Fishery Management Council announces its intention to prepare an environmental impact statement in accordance with the National Environmental Policy Act. Details here.