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


JUDICIAL: Includes APA, labor, and CAA issues.

In CENTER FOR FOOD SAFETY; Center for Biological Diversity; Sierra Club; Humane Society of the United States; Animal Legal Defense Fund; United Farm Workers of America, Plaintiffs-Appellants, v. Margaret A. HAMBURG, Commissioner, United States Food and Drug Administration; U.S. Food & Drug Administration, Defendants-Appellees, Elanco US Inc., Intervenor-Defendant-Appellee, No. 15-17510, 2017 WL 3601726 (9th Cir. August 22, 2017), Center for Food Safety (CFS) appealed dismissal of its complaint alleging Food and Drug Administration (FDA) approval of the use of animal drugs violated the National Environmental Policy Act (NEPA). CFS argued district court erred in dismissing its complaint “based on CFS’s failure to satisfy the Administrative Procedure Act’s exhaustion requirements.” District court held FDA “should be afforded an opportunity to apply its expertise to assess CFS’s claims in the first instance ‘prior to possible judicial intervention.’” Appellate court vacated and remanded back to district court with order to stay “to allow CFS to comply with the FDA’s citizen petition requirement.”

Genoveva RUEDA, Appellee, v. UTAH LABOR COMMISSION, JBS USA LLC, American Zurich Insurance Co., and Zurich American Insurance Co., Appellants, No. 20140043, 2017 WL 3821789 (Utah August 31, 2017) concerned “the effect of the 1991 amendments to the Occupational Disease Act . . . on the Workers’ Compensation Act.” Appellee was injured working at a meat processing plant and began receiving workers’ compensation benefits from her employer (JBS). Employer stopped paying benefits after determining that employee’s injury “did not constitute a compensable ‘accident’ under the Workers’ Compensation Act, but was instead an occupational disease under the Occupational Disease Act.” Appellate court considered definitions of “accident” and “occupational disease” and observed that the “’cumulative trauma’ theory of injury by accident is established by longstanding precedent.” Court concluded employee’s condition was an “occupational disease” and reversed Labor Commission’s finding that appellee’s injury was compensable under the Workers’ Compensation Act.

IN RE: VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2672 CRB (JSC), 2017 WL 3816738 (N.D. Cal. August 31, 2017) concerned Volkswagen’s attempt to defraud the Environmental Protection Agency (EPA) by installing software in its “clean diesel” vehicles that masked nitrogen oxide emission levels. Department of Justice filed civil and criminal actions against Volkswagen to enforce the Clean Air Act (CAA), and Volkswagen ultimately pled guilty to criminal felony counts. Here, Wyoming sued Volkswagen based on the operation of the “clean diesel” vehicles within the State and court considered whether Wyoming’s action is permitted by the Clean Air Act. Court concluded that Wyoming sought to “enforce [a] standard relating to the control of emissions from new motor vehicles,” which is prohibited by states under the CAA. Case dismissed.


LEGISLATIVE:

S. 1767: A bill to reauthorize the farm to school program, and for other purposes. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate floor for consideration.

H.R. 3686: Making supplemental appropriations for the fiscal year ending September 30, 2017, to improve and streamline disaster assistance for Hurricane Harvey. Bill referred to the House Committee on Appropriations and House Committee on the Budget which will consider it before sending it to the House floor for consideration.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving state implementation plan (SIP) revisions submitted by the State of Alaska (Alaska or the State) to address Clean Air Act (CAA or Act) requirements for the 2006 24-hour fine particulate matter (PM2.5) national ambient air quality standards (NAAQS) in the Fairbanks North Star Borough Moderate PM2.5 nonattainment area. Info here.

Rule EPA is granting two one-year extensions to the Moderate attainment date for the 2006 24-hour fine particulate matter (PM2.5) Logan, Utah (UT)-Idaho (ID) nonattainment area. Details here.

Rule EPA is approving under the Clean Air Act (CAA), a November 18, 2015, State Implementation Plan (SIP) submittal from the Ohio Environmental Protection Agency consisting of adjustments and additions to volatile organic compound (VOC) rules in the Ohio Administrative Code. Details here.

Rule EPA is approving the required second carbon monoxide (CO) maintenance plan as a revision to the Texas State Implementation Plan. Info here.

Rule EPA is proposing to revoke certain tolerances for aluminum tris, carbon disulfide, cyromazine, dichlobenil, isoxaben, oxydemeton-methyl, propachlor, sulfentrazone, and thiodicarb, and a tolerance exemption for d-limonene. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS is reopening the comment period for the public to review the draft Habitat Conservation Plan for the R-Project Transmission Line in Nebraska (HCP), draft Environment Impact Statement of the R-Project HCP (DEIS), draft Migratory Bird Conservation Plan (MBCP); and draft Restoration Management Plan. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA seeks comments and information from interested parties to help FDA identify existing regulations and related paperwork requirements that could be modified, repealed, or replaced, consistent with the law, to achieve meaningful burden reduction while allowing us to achieve our public health mission and fulfill statutory obligations. This document relates to the products regulated by the Center for Food Safety and Applied Nutrition. Info here.

Rule FDA seeks comments and information from interested parties to help FDA identify existing regulations and related paperwork requirements that could be modified, repealed, or replaced, consistent with the law, to achieve meaningful burden reduction while allowing us to achieve our public health mission and fulfill statutory obligations. This document relates to the products regulated by the Center for Tobacco Products. Details here.

Rule FDA is seeking comments and information from interested parties to help FDA identify existing regulations and related paperwork requirements that could be modified, repealed, or replaced, consistent with the law, to achieve meaningful burden reduction while allowing us to achieve our public health mission and fulfill statutory obligations. This document relates to the products regulated by the Center for Veterinary Medicine. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice the SEDAR Steering Committee will meet to discuss the SEDAR process and assessment schedule. Info here.

Notice the South Atlantic Fishery Management Council will hold a meeting of its Citizen Science Advisory Panel Communication/Outreach/Education Action Team via webinar. Details here.

Notice the New England Fishery Management Council will hold a three-day meeting to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

Notice the North Pacific Fishery Management Council Ecosystem Committee will meet in Seatte, WA. Info here.