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


JUDICIAL: Includes administrative law, international trade, pesticides, food labeling, urb & ag, and labor issues.

In PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff – Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY PERDUE, in his official capacity as Secretary of the United States Department of Agriculture, Defendants – Appellees, THE FUND FOR ANIMALS; THE HUMANE SOCIETY OF THE UNITED STATES; DELCIANNA J. WINDERS, Academic Fellow, Animal Law & Policy Program, Harvard Law School, Amici Supporting Appellant, No. 16-2029, 2017 WL 2782620 (4th Cir. June 28, 2017), People for the Ethical Treatment of Animals (PETA) challenged the license renewal process for animal exhibitors through which the USDA may renew such a license despite a licensee’s noncompliance with the Animal Welfare Act (AWA). PETA argued the renewal process “undermines a key purpose of the Act, that is, ensuring the humane treatment of animals.” District court granted USDA’s motion for judgment on the pleadings, reasoning USDA’s interpretation was owed deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Appellate court concluded that, “Because the AWA does not directly address license renewal but does expressly authorize the USDA to promulgate and implement its own renewal standards, we affirm.”

In PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. v. DEPARTMENT OF AGRICULTURAL RESOURCES& another, SJC-12207, 77 Mass. 280 (Mass. June 14, 2017), PETA sought injunctive relief and challenged redactions by USDA on health certificates for “non-human primates” produced in response to PETA’s public records request. The Superior Court ruled the information was protected from disclosure for public safety and privacy reasons. PETA appealed and appellate court found “remand was warranted for trial court to apply case-specific relevant factors to determine whether privacy exemption to definition of public records applied.” Case vacated and remanded.

In NACHURS ALPINE SOLUTIONS, CORP., Plaintiff, v. Brian K. BANKS and Nutra-Flo Company, Defendants, No. 15-CV-4015-LTS, 2017 WL 2695301 (N.D. Iowa June 22, 2017), plaintiff and defendant are competitors that manufacture and sell fertilizer and plaintiff alleged its former employee took “confidential, proprietary, and trade secret information” from plaintiff and gave the information to his new employer, defendant Nutra-Flo. Plaintiff filed motion to compel after defendant submitted deficient answers to interrogatories. Court found defendants’ answers to the interrogatories were “misleading regarding his involvement in the research and development of fertilizer containing potassium acetate,” and granted plaintiff’s motion to compel.

In Jason SCHOLDER, on behalf of himself and all others similarly situated, Plaintiff, v. RIVIANA FOODS INC., Defendant, 16-cv-6002(ADS)(AKT), 2017 WL 2773586 (E.D.N.Y. June 23, 2017), plaintiff sued defendant under New York’s consumer protection statute for labeling as “All Natural” and “100% Whole Grain” pasta that allegedly contains trace amounts of glyphosate. Court considered “whether the presence of certain objectionable substances renders an ‘all natural’ food label misleading,” and concluded that “a stay of this matter is justified pending the outcome of the FDA’s rulemaking process regarding the permissible uses of the term ‘natural’ in food labeling.” Defendant’s motion to dismiss denied.

SCENIC PIT LLC, PLAINTIFF-APPELLANT, v. VILLAGE OF RICHFIELD AND JIM HEALY, DEFENDANTS-RESPONDENTS, No. 2015AP2291, 2017 WL 2791575 (Wis. Ct. App. June 28, 2017) involved Wisconsin’s statewide landfill regulatory scheme. At issue was the scope of the scheme for solid waste facilities exempt from regulation “vis-à -vis a municipality’s zoning powers” and “local construction permitting requirements.” Plaintiff sought to open a clean fill facility and defendant claimed that a facility could not be opened because the proposed site is not zoned for such activities, and because plaintiff “must, as a prerequisite, comply with local construction storm water and erosion permitting requirements.” On appeal, plaintiffs argued the Wisconsin Department of Natural Resources (DNR) has ”exempted clean fill facilities from the local approvals identified by the [defendant], namely, zoning and certain construction storm water and erosion permitting requirements.” Summary judgment for defendant reversed.

In Larry WILLIAMS, Respondent, v. TYSON FOODS INC. and Tyson Poultry, Inc., Appellants, WD 80267, 2017 WL 2775037 (Mo. Ct. App. JUNE 27, 2017), plaintiff suffered foot injuries while working at Tyson as a “jack driver.” Plaintiff reported his injuries and filed a claim for compensation two months later. An administrative law judge awarded plaintiff “temporary total disability benefits and medical treatment as needed.” Defendant appealed the award. Appellate court considered whether it had jurisdiction to review the case and observed that, “Because temporary or partial awards are not final, courts consistently have held they lack appellate authority to review them.” Court dismissed Tyson’s appeal after concluding that “the Commission’s award is not final and thus not subject to appellate review.”


REGULATORY: Includes USDA, APHIS, EPA, FWS, FDA, ITA, and NOAA rules and notices. 

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Disaster Assistance—General (7 CFR part 1945-A). Details here.

Notice USDA announces the establishment of the Fiscal Year (FY) 2018 in-quota aggregate quantity of raw cane sugar at 1,117,195 metric tons raw value, and the establishment of the FY 2018 in-quota aggregate quantity of certain sugars, syrups, and molasses at 182,000 MTRV. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice announcing APHIS’s intention to request a revision to and extension of approval of an information collection associated with the importation of animals and poultry, animal and poultry products, certain animal embryos, semen, and zoological animals. Info here.

Notice APHIS is proposing to recognize Japan as being free of highly pathogenic avian influenza and Newcastle disease. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve revisions to the Great Basin Unified Air Pollution Control District and the Town of Mammoth Lakes portion of the California State Implementation Plan. Details here.

Rule EPA is revising the format for materials that are made part of the Illinois State Implementation Plan through the process of incorporation by reference. Details here.

Rule Region 8 is publishing a direct final notice of Partial Deletion of the property currently owned by Tallgrass Energy Partners, LP, on the Mystery Bridge Road/U.S. Highway 20 Site (Site) from the National Priorities List. Details here.

FISH AND WILDLIFE SERVICE:

Rule detailing availability of final Grizzly Bear Recovery Plan Supplement: Revised Demographic Criteria. Info here.

Notice FWS is initiating 5-year status reviews of 23 species under the Endangered Species Act. Info here.

Notice FWS announces the availability of our Mexican Wolf Draft Recovery Plan, First Revision. Details here.

Notice FWS received an application from Betteravia Farms, LLC, for an incidental take permit under the Endangered Species Act. Details here.

Notice FWS received an application from the Louisiana Department of Wildlife and Fisheries for an enhancement of survival permit pursuant to the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the issuance of an Emergency Use Authorization for an injectable treatment for nerve agent or certain insecticide poisoning. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice petitioners allege that imports of citric acid from Thailand received countervailable subsidies from Thai government authorities and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Details here.

Notice ITA initiated an administrative review of the antidumping duty order on honey from the PRC covering the period February 10, 2001, through November 30, 2002. Details here.

Notice ITA preliminarily determines that certain softwood lumber products (softwood lumber) from Canada is being, or is likely to be, sold in the United States at less than fair value. Info here.

Notice ITA received antidumping duty petitions concerning imports of citric acid and certain citrate salts from Belgium, Colombia, and Thailand, filed in proper form on behalf of Archer Daniels Midland Company; Cargill Incorporated; and Tate & Lyle Ingredients America LLC. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule implementing annual management measures and harvest specifications to establish the allowable catch levels for the northern subpopulation of Pacific sardine in the U.S. exclusive economic zone off the Pacific coast for the fishing season of July 1, 2017, through June 30, 2018. Details here.

Rule NMFS specifies an annual catch limit of 306,000 lb for Deep 7 bottomfish in the main Hawaiian Islands for the 2017-18 fishing year, which will begin on September 1, 2017, and end on August 31, 2018. Info here.

Notice NMFS announces a 5-year review of the North Pacific right whale (Eubalaena japonica) under the Endangered Species Act. Info here.

Notice of change of schedule for SEDAR 56 South Atlantic Black Sea Bass Assessment Webinars. Info here.

Notice NMFS published a notice of availability to revise the Recovery Plan Preparation and Implementation Priorities and Recovery Plans contained in the 1990 Listing and Recovery Priority Guidelines. Details here.