A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
ANNOUNCEMENT: Join us Wednesday, November 16 at 12 noon (ET) for a free webinar: The Veterinary Feed Directive Rules and How They Will Affect You. Details and sign-in information here.
JUDICIAL: Includes environmental, tax, PACA, and contract issues.
In Conservation Cong. v. United States Forest Serv., No. 213CV01922TLNCMK, 2016 WL 6524860 (E.D. Cal. Nov. 3, 2016), plaintiffs sought temporary restraining order and/or preliminary injunction against defendant’s forestry project. Plaintiff claimed defendants unlawfully approved a project violating federal environmental laws. Plaintiff argued that defendant did not comply with NEPA, logging of old growth trees is an irreparable injury, and the project will harm the northern spotted owl. The court observed that, “Injunctive relief is an equitable remedy, requiring the court to engage in the traditional balance of harms analysis, even in the context of environmental litigation.” The court balanced environmental injury versus safety concerns and ruled the “safety risks posed by hazard trees along the NFS roads outweigh the potential for environmental harm.” Plaintiff’s motion denied.
Stephen Acerbo v. Town of Columbia, No. HHBCV146026155S, 2016 WL 6499098, (Conn. Super. Ct. Oct. 11, 2016) involved whether plaintiff’s farm equipment qualified for a tax exemption. For tax years 2013 – 2015, plaintiff sought a personal property exemption for some property under a statute exempting “farm machinery, horses or ponies.” Town’s assessor denied each request, finding plaintiff’s business consisted of “harvesting or clear cutting trees but not ‘sustainable forestry.’” Plaintiff appealed and court considered a variety of definitions, including “farming,” “forestry,” and “forest land.” Court ruled plaintiff’s property was exempt and granted plaintiff’s summary judgment motion.
In S. KATZMAN PRODUCE INC. & ISSAM KANAWI, CORP., Plaintiffs, v. KATO FOOD CORP., SULY PRODUCE CORP., ARGYRIOS FOTIOU, RICHARD SIERRA, & ANASTASIO FOTIOU, Defendants., No. 16 CIV. 8116 (CM), 2016 WL 6561414 (S.D.N.Y. Oct. 26, 2016), plaintiffs alleged violations of Perishable Agricultural Commodities Act (PACA), after they delivered goods to defendant and were not paid. Court found there was no question defendant had not paid and that plaintiffs are licensed dealers under PACA and would suffer “irreparable harm” without an injunction. Plaintiff’s motion for preliminary injunction granted.
Mann v. Gullickson, No. 15-CV-03630-MEJ, 2016 WL 6473215 (N.D. Cal. Nov. 2, 2016) involved a contract breach. Court considered conflict created “by the prohibition of medical marijuana under federal law and the legalization of medical marijuana under California law.” Defendant asked court to invalidate the parties’ agreement under the federal Controlled Substances Act (CSA) and the court considered whether a remedy exists that would “not require it to order a violation of the CSA.” The court observed that “the federal government is currently proscribed from enforcing the CSA in . . . jurisdictions, which have independently determined that marijuana has a medical benefit for their citizens.” Court concluded that “even where contracts concern illegal objects, where it is possible for a court to enforce a contract in a way that does not require illegal conduct, the court is not barred from according such relief.” Defendant’s motion denied.
REGULATORY: Includes USDA, APHIS, EPA, FWS, FDA, and NOAA rules and notices.
AGRICULTURAL DEPARTMENT:
Notice USDA submitted information collection requirement(s) to OMB for review. Title: Child and Adult Care Food Program (CACFP) Family Day Care Homes Meal Claims Feasibility Study. Details here.
Notice announcing members of the Senior Executive Service and Senior Level and Scientific or Professional Performance Review Boards (PRB), as required by 5 U.S.C. 4314(c)(4). Info here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Rule incorporating a requirement for an indications statement that should appear on final container labels, carton labels, and enclosures. This corrects the Virus-Serum-Toxin Act regulations published in the Federal Register on August 30, 2016. Details here.
Notice APHIS will request approval of an information collection associated with the regulations for the importation of fresh citrus fruit from Uruguay, including Citrus hybrids and Fortunella spp., into the continental United States. Info here.
Notice APHIS prepared a draft environmental assessment regarding control of giant reed. Details here.
Notice APHIS withdraws an environmental assessment prepared by the agency concerning permitted environmental release of diamondback moths genetically engineered for repressible female lethality and to express red fluorescence as a marker. Info here.
ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of fluxapyroxad in or on banana, coffee green bean, mango, and papaya. Details here.
FISH AND WILDLIFE SERVICE: Rule FWS is authorized to issue regulations for implementation of the sustainable harvest management obligations under the Agreement between the US and the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA amends regulations relating to citizen petitions, petitions for stay of action, and the submission of documents to the Agency. Info here.
Rule FDA announces that Novus International, Inc., has filed a petition proposing food additive regulations be amended to provide for safe use of poly as a nutrient protectant for methionine hydroxy analog in animal food for beef cattle, dairy cattle, and replacement dairy heifers. Info here.
Rule FDA announces availability of a draft guidance for industry entitled “Questions and Answers Regarding Food Facility Registration: Guidance for Industry.” Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NOAA proposes to revise the Coastal Zone Management Act program change regulations and associated guidance within its regulations. Info here.