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


ANNOUNCEMENT: Join us for the next Agricultural & Food Law Consortium webinar, Wednesday, September 19th, at 12 noon (ET): Understanding USDA’s New Dairy Revenue Insurance Program. Details here.


JUDICIAL: Includes FWS, PACA, and biotech issues.

CENTER FOR BIOLOGICAL DIVERSITY; Western Watersheds Project; George Wuerthner; Pat Munday, Plaintiffs-Appellants, v. Ryan K. ZINKE, Secretary, U.S. Department of the Interior, in his official capacity; Dan Ashe, Director, U.S. Fish and Wildlife Service, in his official capacity; U.S. Fish & Wildlife Service, Defendants-Appellees, and State Of Montana; Montana Department Of Fish, Wildlife And Parks, Intervenor-Defendants-Appellees, No. 16-35866, 2018 WL 3945543 (9TH Cir. August 17, 2018) involved a challenge to the Fish and Wildlife Service’s (FWS) decision “not to list arctic grayling as an endangered or threatened species” under the Endangered Species Act (ESA). Lower court ruled for FWS and on appeal, plaintiffs maintained the agency used an incorrect definition of “range” in determining “whether the arctic grayling is extinct or in threat of becoming extinct ‘in a significant portion of its range.’” Appellate court considered whether the meaning of the term “range” was  “ambiguous,” per the statute at issue. The court further noted that per Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, “[i]f the term “range” is ambiguous, then we must defer to the SPR policy unless it is an unreasonable interpretation of the statute.” Court concluded the agency’s interpretation of the term “’range,’ to mean current range of a species,” was reasonable and affirmed in part.

In CENTRAL PRODUCE CORP., Plaintiff, v. 34-18 M&M CORP. t/a MET FRESH SUPERMARKET, FRANK’S CABALLITO #2 MARKET PLACE, INC. t/a SUPER PIONEER MARKET PLACE and FRANK RODRIGUEZ, Defendants, 17-cv-3841 (LDH) (RLM), 2018 WL 4326925 (E.D.N.Y. September 10, 2018), plaintiff was not paid for produce sold to defendant and alleged violations of the Perishable Agricultural Commodities Act, (PACA). Magistrate judge issued a Report and Recommendation (R&R) recommending the Court “enter default judgment against Defendants for violation of PACA’s trust provision . . . and hold the Corporate Defendants jointly and severally liable for a total of $212,096.86.” Regarding the magistrate’s R&R, the court observed that “when no objections are filed, ‘the district court need only satisfy itself that there is no clear error on the face of the record.’” Court adopted the R&R “in its entirety.”

In Megan HOLVE, individually and on behalf of all others similarly situated, Plaintiff, v. MCCORMICK & COMPANY, INC., Defendant, Case # 16-CV-6702-FPG, 2018 WL 3861406 (W.D.N.Y. August 14, 2018), plaintiff claimed defendant deceptively marketed its spice products as “natural,” despite containing “genetically modified” ingredients. Defendant argued plaintiff’s claims “are expressly preempted by the National Bioengineered Food Disclosure Standard (NBFDS).” Court conducted a preemption analysis and considered defendant’s argument that plaintiff is seeking to impose a “de facto labeling requirement” under state law. Court disagreed with defendant’s argument and found plaintiff’s unjust enrichment claim “does not establish a labeling requirement and, therefore, is not preempted by the NBFDS.”


LEGISLATIVE:

H.R. 6759: To amend title 54, United States Code, to provide consistent and reliable authority for, and for the funding of, the Land and Water Conservation Fund to maximize the effectiveness of the Fund for future generations. Referred to the House Committee on Natural Resources and House Committee on the Budget.

H.R. 6763: To amend the Gulf of Mexico Energy Security Act of 2006. Referred to the House Committee on Natural Resources.

H.R. 6768: To re-establish certain hydraulic fracturing chemical disclosure rules, standards for well construction, and waste management rules. Referred to the House Committee on Energy and Commerce, House Committee on Natural Resources, and one other committee.

H.R. 5895: Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019. Added to the House’s schedule for the coming week.

2857: National Nordic Museum Act. This bill has been added to the House’s schedule for the coming week, according to the House Majority Leader. See the week ahead. Passed in the Senate on June 6, 2018 and goes to the House next for consideration.

H.R. 1109: To amend section 203 of the Federal Power Act. Added to the House’s schedule for the coming week.

H.R. 6720: To prohibit the slaugher of dogs and cats for human consumption. Amends the Animal Welfare Act to prohibit the transportation, delivery, possession, and slaughter of dogs and cats for human consumption.


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

AGRICULTURE DEPARTMENTNotice USDA is extending the period for interested parties to submit an expression of interest for a proposed new headquarters location for the National Institute of Food and Agriculture (NIFA) and the Economic Research Service (ERS). The Department is extending the period to submit an expression of interest for 30 days. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to amend the EPA Acquisition Regulation. Info here.

Rule CERCLA requires that the National Oil and Hazardous Substances Pollution Contingency Plan include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. Details here.

Rule establishes tolerances for residues of afidopyropen, [(3S,4R,4aR,6S,6aS,12R,12aS,12bS)-3- [(cyclopropylcarbonyl)oxy]-1,3,4,4a,5,6,6a,12,12a,12b-decahydro- 6,12-dihydroxy-4,6a,12b-trimethyl-11-oxo-9-(3-pyridinyl)-2H,11H- naphtho[2,1-b]pyrano[3,4-e]pyran-4-yl]methyl cyclopropanecarboxylate, including its metabolites and degradates, in or on multiple commodities which are identified and discussed later in this document. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of lytic bacteriophage active against Xanthomonas citri subsp. citri that are produced in Xanthomonas citri subsp. citri in or on food commodities included in the fruit, citrus groups 10 and 10-10, when used in accordance with label directions and good agricultural practices. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of Pepino mosaic virus, strain CH2, isolate 1906 in or on tomato when this pesticide chemical is used in accordance with label directions and good agricultural practices. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of lytic bacteriophage active against Erwinia amylovora that are produced in Erwinia amylovora in or on apple and pear, when used in accordance with label directions and good agricultural practices. Details here.

FOOD AND DRUG ADMINISTRATIONNotice FSIS and the Food and Drug Administration (FDA) are hosting a joint public meeting to discuss the potential hazards, oversight considerations, and labeling of cell cultured food products derived from livestock and poultry tissue. Info here.

FOREST SERVICE:

Rule FS is requesting comments from the public regarding the need to clarify or to otherwise enhance its regulations that minimize adverse environmental impacts on National Forest System surface resources in connection with operations authorized by the United States mining laws. Details here.

Rule FS is preparing to revise the contents of its Oil and Gas Resources regulations. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Commerce preliminarily determines that certain frozen fish fillets from the Socialist Republic of Vietnam (Vietnam) are being, or are likely to be, sold in the United States at less than normal value (NV) during the period of review (POR), August 1, 2016, through July 31, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes to reclassify certain management unit species in the Pacific Islands as ecosystem component species. The proposed rule would also update the scientific and local names of certain species. Info here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Details here.