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, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.


JUDICIAL: Includes bankruptcy, environmental. checkoff, and pesticide issues.

In re: KENNETH R. PIERCE, Debtor. KENNETH R. PIERCE, Movant, v. FARM BUREAU BANK, Respondent, Number 17-60154-EJC (February 01, 2018) involved a Chapter 12 bankruptcy proceeding wherein bank loaned money to debtor to finance purchase of a fertilizer spreader. Parties entered into a security agreement granting bank a “security interest in the fertilizer spreader.” Bank then filed a UCC-1 financing statement. Debtor argued bank failed to provide his correct name on the statement and therefore, bank’s claim is “wholly unsecured.” Court observed that per Georgia law, a financing statement must provide the debtor’s name because “[f]inancing statements are indexed under the name of the debtor, and those who wish to find financing statements search for them under the debtor’s name.” Debtor’s objection sustained.

COLORADO ENVIRONMENTAL COALITION, INFORMATION NETWORK FOR RESPONSIBLE MINING, CENTER FOR NATIVE ECOSYSTEMS, CENTER FOR BIOLOGICAL DIVERSITY, and SHEEP MOUNTAIN ALLIANCE, Plaintiffs, v. OFFICE OF LEGACY MANAGEMENT, and UNITED STATES DEPARTMENT OF ENERGY, Defendants, No. 08-cv-1624-WJM-MJW, 2018 WL 684761 (D. Colo. February 2, 2018) involved a uranium mining program overseen by the United States Department of Energy (DOE). In 2007 and 2008, DOE approved additional uranium mining and plaintiffs then sued under the Administrative Procedure Act (APA), “to have DOE’s actions declared unlawful under the National Environmental Policy Act (NEPA), and the Endangered Species Act (“ESA).” Court enjoined DOE from approving additional leases and here, DOE moved to “dissolve the injunction.” The agency argued that its new environmental review documents “remedy the violations the Court previously found.” Court generally found the agency’s new documents corrected previous errors. However, court ordered a limited remand regarding “estimates of potential water depletion as they relate to DOE’s duty to ensure that its actions do not jeopardize endangered species or their critical habitat.”

In THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. SONNY PERDUE,1 Secretary of the U.S. Department of Agriculture, Defendant, No. 12-1582 (ABJ), 2018 WL 702934 (D.C.C. February 1, 2018), plaintiffs challenged USDA’s approval of the National Pork Board’s purchase of the trademarks associated with “The Other White Meat” campaign. In 2016, USDA reviewed annual checkoff payments under a Purchase Agreement and reapproved annual payments. Here, plaintiffs argued USDA’s use of pork checkoff dollars to influence legislation is prohibited by the Pork Act. Court agreed with defendants that plaintiffs’ challenge to the approval of a 2006 Purchase Agreement itself was “untimely.” However, the court sided with plaintiffs regarding decision to approve more recent annual payments, concluding that the “review of the Purchase Agreement that was undertaken in 2016 was arbitrary and capricious.”

IN RE: DICAMBA HERBICIDES LITIGATION, MDL No. 2820, MDL No. 2820, 2018 WL 663293 (February 1, 2018) concerned nine similar lawsuits regarding dicamba litigation. United States Judicial Panel on Multidistrict Litigation considered the appropriate transferee district for the ensuing litigation. Plaintiffs sought a variety of transferee districts and defendants opposed centralization. Panel found the actions at issue “involve common questions of fact, and that centralization in the Eastern District of Missouri will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” Panel selected the Eastern District of Missouri as the transferee district.


REGULATORY: Includes USDA, EPA, FDA, FNS, FAS,  and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA is soliciting public comment on a proposed realignment of the Departmental Administration organization that will improve customer service, better align functions within the organization, and ensure improved strategic decision-making. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is issuing amendments to the Non-Hazardous Secondary Materials regulations, which generally established standards and procedures for identifying whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. Info here.

Rule establishes tolerances for residues of fomesafen in or on the tuberous and corm vegetable subgroup 1C, the legume vegetable group 6, and the low growing berry subgroup 13-07G. Details here.

Rule establishes tolerances for residues of isoxaben in or on apple, the bushberry subgroup 13-07B, the tree nut group 14-12, and the small vine climbing fruit subgroup 13-07F. Details here.

Rule EPA is publishing this final rule to revise the formaldehyde standards for composite wood products regulations. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Title: Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Institutional Foodservice and Retail Food Stores Facility Types. Info here.

Notice FDA is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Title: Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Retail and Foodservice Facility Types. Details here.

FOOD AND NUTRITION SERVICE: Notice seeks comment on a proposed information collection. The primary purpose of this study is to provide FNS with information about the effectiveness of the Independent Review of Applications (IRA) requirement that is conducted by local educational agencies in school meal programs. Details here.

FOREIGN AGRICULTURAL SERVICE:

Notice announces FAS intends to request a revision for a currently approved information collection procedure for entry of specialty sugars into the United States. Info here.

Notice announces FAS intends to request a revision for a currently approved information collection procedure for Sugar Import Licensing Programs. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS publishes its final List of Fisheries (LOF) for 2018, as required by the Marine Mammal Protection Act. The LOF for 2018 reflects new information on interactions between commercial fisheries and marine mammals. Details here.