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 FSA, bankruptcy, environmental, and FIFRA issues.

In United States v. Lane, No. 5:16-CV-64-BO, 2016 WL 6779438, (E.D.N.C. Nov. 15, 2016), U.S. government filed suit on behalf of Farm Service Agency (FSA) seeking judgment on defendants’ default on three rescheduling loans. Plaintiff argued its claim that defendants are in default on three FSA loans should be analyzed as a “breach of contract claim,” requiring “a showing of first the existence of a valid contract and second breach of the terms of the contract.” Court found that defendants breached their loan agreements and concluded that judgment should be entered against them for “the amount of the unpaid loans and protective advances.” Court ruled that “review of defendants’ filing offers no basis upon which to deny the government’s properly supported motion.”

In re: John Milton Arledge Debtor; Trudy M. Edwards, Tr., Plaintiff, v. John Milton Arledge, Robert R. Hattaway, et al. Defendants., No. 4:15-BK-14347-SDR, 2016 WL 6832845, (Bankr. E.D. Tenn. Nov. 18, 2016) concerned a bankruptcy involving farm land and equipment. Plaintiff, a Chapter 7 trustee, sought summary judgment declaring that transfers from defendants “are null and void as fraudulent transfers, and that those assets be placed back in the Chapter 7 Bankruptcy Estate.” Court found defendant intended to “hinder his creditors when he transferred his assets into a trust and, therefore, those transfers were fraudulent.” Court granted motion for summary judgment voiding any interest transferred to defendant.

Coastal Conservation League v. United States Army Corps of Engineers, No. 4:16-CV-03008-RBH, 2016 WL 6823375, (D.S.C. Nov. 18, 2016) involved construction of a road. Plaintiffs, two environmental organizations, challenged a permit issued by the U.S. Army Corps of Engineers and sought to enjoin further construction work, alleging National Environmental Policy Act (NEPA) and Clean Water Act (CWA) violations. Critically, the court stated that it “cannot ignore the need for the road and the project’s purpose to relieve significant traffic congestion, provide an alternate route for emergency responders, and create an additional evacuation route.” The court further reasoned that defendants “took a hard look under NEPA and their preparation of an environmental assessment (EA) and issuance of a finding of no significant impact (FONSI) . . . was not arbitrary, capricious, or an abuse of discretion.” Plaintiffs’ motion denied.

In Anderson v. McCarthy, No. C 16-00068 WHA, 2016 WL 6834215, (N.D. Cal. Nov. 21, 2016), plaintiffs, a group of beekeepers and farmers, sued the Environmental Protection Agency (EPA) claiming the practice of coating seeds with neonicotinoids has had a “systematic and catastrophic impact on bees and the beekeeping industry throughout the United States.” Plaintiffs argued EPA failed to enforce the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Addressing the EPA’s failure to act, the court observed that “the 2013 Guidance specifically informed investigators ‘plantings of… treated seed may…be investigated’ if the pesticide-treated seed ‘is subject to registration.’” The court further reasoned that “This language indicated that the EPA in issuing the 2013 Guidance expressly contemplated potential enforcement of FIFRA requirements as to pesticide-treated seeds, which directly contradicts plaintiffs’ allegations of a “policy of non-enforcement” and “abdication of duties.” Accordingly, the court determined that “there is no basis for finding the EPA ‘consciously and expressly adopted a general policy’ abdicating its statutory responsibilities.” Defendants’ motion for summary judgment granted.


REGULATORY: Includes USDA, AMS, EPA, FWS, FDA, ITA, NASS, NOAA, PTO, and RBCS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Review of Child Nutrition Data & Analysis for Program Management. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Application for Payment of Amounts Due Persons Who Have Died, Disappeared or Declared Incompetent. Info here.

AGRICULTURAL MARKETING SERVICE:

Rule implementing a recommendation from the Colorado Potato Administrative Committee to revise the grade requirement currently prescribed for 11/2-inch minimum to 21/4-inch maximum diameter potatoes under the Colorado potato marketing order. Details here.

Rule USDA adopts an interim rule that suspended the incoming size-grade authority under the California olive marketing order. Details here.

Rule directing that a referendum be conducted among eligible Oregon and Washington pear growers to determine whether they favor continuance of the marketing order regulating the handling of pears grown in Oregon and Washington. Info here.

Rule AMS proposes to revise the U.S. Standards for Grades of Shelled Walnuts and the U.S. Standards for Grades of Walnuts in the Shell. Info here.

Notice USDA announces a meeting of the National Organic Standards Board 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 aspects of the implementation of Organic Foods Production Act. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing a final rule extending the implementation date for certain facilities subject to the EPA’s final rule establishing pretreatment standards under the Clean Water Act (CWA) for discharges of pollutants into publicly-owned treatment works from unconventional oil and gas extraction. Info here.

Rule that on September 14, 2015, EPA proposed revisions to the federal Clean Water Act (CWA) human health criteria applicable to waters under the State of Washington’s jurisdiction to ensure that the criteria are set at levels that will protect Washington residents from exposure to toxic pollutants. Info here.

Rule EPA is taking direct final action to approve state implementation plan revisions submitted by the State of Alaska Department of Environmental Conservation on February 1, 2016. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS will change its July 6, 2012, proposed rule to list the hyacinth macaw as an endangered species under the Endangered Species Act of 1973. Details here.

Notice FWS received an application from the Thunder Basin Grasslands Prairie Ecosystem Association for an Enhancement of Survival permit under the Endangered Species Act of 1973. Info here.

Notice FWS seeks comment on applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.

Notice FWS will prepare a draft environmental impact statement for proposed issuance of an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act for the draft Oil & Gas Coalition Multi-State Habitat Conservation Plan. Details here.

Notice FWS seeks any objections to the public release of possibly confidential information regarding import and export activities tracked via the Service’s Law Enforcement Management Information System. Details here.

FOOD AND DRUG ADMINISTRATIONRule FDA is establishing January 1, 2020, as the uniform compliance date for food labeling regulations that are issued between January 1, 2017, and December 31, 2018. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce is conducting an administrative review of the antidumping duty order on monosodium glutamate (MSG) from Indonesia. Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will request revision and extension of a currently approved information collection, the Aquaculture Surveys. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for the recreational sector of greater amberjack in the exclusive economic zone of the South Atlantic for the current fishing year. Info here.

Rule NMFS implements an accountability measure for the hogfish recreational sector in the exclusive economic zone of the South Atlantic for the 2016 fishing year. Info here.

Rule NMFS announces a valid specified fishing agreement that allocates 1,000 mt of the 2016 bigeye tuna limit for the Territory of Guam to U.S. longline fishing vessels. Details here.

Notice NMFS publishes standard prices and fee percentages for cost recovery for the Amendment 80 Program, the American Fisheries Act Program, the Aleutian Islands Pollock Program, and the Western Alaska Community Development Quota groundfish and halibut Programs. Details here.

Notice NMFS has issued an incidental harassment authorization to the Navy to incidentally harass marine mammals during construction activities associated with a waterfront improvement project at the Portsmouth Naval Shipyard in Kittery, Maine. Details here.

PATENT AND TRADEMARK OFFICENotice USPTO will submit to the Office of Management and Budget for clearance a proposal for collection of information. Title: Deposit of Biological Materials. Info here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBCS seeks Community Development Financial Institutions to apply for the position of National Fund Manager for the Healthy Food Financing Initiative. Info here.