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

ANNOUNCEMENT:  Join us tomorrow at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.

JUDICIAL: Includes food labeling, environmental law, labor,and renewable energy issues.

In ASSOCIATION DES ÉLEVEURS DE CANARDS ET D’OIES DU QUÉBEC, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hot’s Restaurant Group. Inc., a California corporation, Plaintiffs-Appellees, v. Xavier BECERRA, Attorney General, Defendant-Appellant, No. 15-55192, 2017 WL 4080472 (9^th Cir. September 15, 2017), plaintiffs sued state of California challenging state law banning the sale of products made from force-fed birds. Plaintiffs alleged the federal Poultry Products Inspection Act (PPIA) preempts the state provision. District court concluded state law is “expressly preempted by the PPIA” and granted plaintiffs summary judgment. In considering plaintiffs’ preemption argument, appellate court observed that, “[t]he PPIA most directly regulates ‘official establishments,’ where the ‘inspection of the slaughter of poultry, or the processing of poultry products,’ occurs.” Regarding California law, the court noted that the statute at issue “prohibits what California finds to be a cruel feeding practice that occurs far away from the official establishments that the PPIA regulates.” Reversed and remanded.

In WILDEARTH GUARDIANS; Sierra Club, Petitioners–Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Respondent–Appellee, and Wyoming Mining Association; BTU Western Resources, Inc.; State Of Wyoming; National Mining Association, Respondents–Intervenors–Appellees, No. 15–8109, 2017 WL 4079137 (10^th Cir. September 15, 2017), plaintiffs challenged Bureau of Land Management’s (BLM) approval of four coal leases in Wyoming. Plaintiffs filed an Administrative Procedure Act (APA) claim arguing BLM “failed to comply with the National Environmental Policy Act (NEPA) when it concluded that issuing the leases would not result in higher national carbon dioxide emissions than would declining to issue them.” District court upheld the leases. Appellate court reversed and remanded, instructing BLM to “revise its Environmental Impact Statements (EISs) and Records of Decision (RODs).”

YUDID HERNANDEZ, Appellant, v. NATIONAL BEEF PACKING COMPANY, and ZURICH AMERICAN INSURANCE COMPANY, Appellees, No. 117, 351, 2017 WL 4081392 (Kan. Ct. App. September 15, 2017) concerned whether there was sufficient evidence to support a workers’ compensation board’s finding that an employee was fired for cause. Plaintiff suffered a back injury working at defendant’s beef packing facility. Court observed that “[w]ork disability benefits are not available when an employee is fired for cause.” Court observed that in making their ruling, the board considered “inconsistencies in the witnesses’ statements, [plaintiff’s] lengthy prior disciplinary history, the length of time between [plaintiff’s] injury and the termination of her employment . . . and National Beef’s workplace rules of conduct.” Court found “no improper motive” in defendant’s dismissal of plaintiff and affirmed board’s ruling.

In IN RE Petition of NEW HAVEN GLC SOLAR, LLC, for a Certificate of Public Good, Pursuant to 30 V.S.A. §§ 219a and 248, to Install and Operate a 500kW Group Net–Metered Solar Electric Generation Facility in New Haven, Vermont (Town of New Haven, Appellant), No. 2016–125, 2017 WL 3668583 (Vt. August 25, 2017), town appealed issuance by board of a “certificate of public good” (CPG) to a solar company to construct a “net-metered solar array” within town limits. Town argued board “acted arbitrarily and in excess of its lawful authority” by issuing the CPG without holding a hearing and without giving “due consideration” to town’s recommendations. On appeal, court reversed board’s issuance of the CPG and remanded case requiring board to consider the town’s arguments and to hold a technical hearing.

LEGISLATIVE:

S. 1805: A bill to require the Secretary of Agriculture to establish a program to recognize farms that have been in continuous operation for 100 years. This bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 3786: To require the Under Secretary for Oceans and Atmosphere to update periodically the environmental sensitivity index products of the National Oceanic and Atmospheric Administration for each coastal area of the Great Lakes. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 3777: To direct the Secretary of Agriculture to convey certain National Forest System land containing the Nephi Work Center in Juab County, Utah, to Juab County. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 3792: To amend the Animal Welfare Act to require that covered persons develop and implement emergency contingency plans. This bill was referred to the House Committee on Agriculture.

H.R. 3354: Department of the Interior, Environment, and Related Agencies Appropriations Act, 2018. This bill passed in the House on September 14, 2017 and goes to the Senate next for consideration.

REGULATORY: Includes AMS, USDA, EPA, FDA, ITA, NOAA, PPMO, and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the American Pecan Council to establish the initial assessment rates for the 2016-17 and subsequent fiscal years at $0.03 per pound for improved varieties, $0.02 per pound for native and seedling varieties, and $0.02 per pound for substandard pecans handled under the pecan marketing order. Info here.

Rule would implement a recommendation from the South Texas Onion Committee to increase the assessment rate established for the 2017-18 and subsequent fiscal periods from $0.05 to $0.065 per 50-pound equivalent of onions handled under the marketing order. Details here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Emerging Markets Program. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine on February 23, 2016. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice solicits comments on the information collection provisions found in the guidance entitled “Establishing and Maintaining a List of U.S. Milk and Milk Product, Seafood, Infant Formula, and Formula for Young Children Manufacturers/Processors with Interest in Exporting to China: Guidance for Industry.” Info here.

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Experimental Study on Warning Statements for Cigarette Graphic Health Warnings. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on September 5, 2017, the Department of Commerce issued the final results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from India for the period of review February 1, 2015, through January 31, 2016. However, that document contained an incorrect list of companies covered by the review. This notice provides the correct list of company names. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the General category fishery for large medium and giant (i.e., measuring 73 inches curved fork length or greater) Atlantic bluefin tuna (BFT) until the General category reopens on October 1, 2017. Details here.

Rule NMFS announces that the 25-mt quota available for Atlantic bluefin tuna bycatch (including landings and dead discards) by the Longline category in the Northeast Distant gear restricted area (NED) was filled on September 12, 2017. Details here.

Rule NMFS, issue a final rule to list the Maui dolphin as endangered and the South Island (SI) Hector’s dolphin as threatened under the Endangered Species Act. Info here.

Rule NMFS proposes to implement the measures described in Regulatory Amendment 6 to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands, as prepared and submitted by the Caribbean Fishery Management Council. Details here.

Notice requesting revision and extension of a currently approved information collection. Title: Individual Fishing Quotas for Pacific Halibut and Sablefish in the Alaska Fisheries. Info here.

Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit (EFP) renewal application from the Commercial Fisheries Research Foundation (CFRF) contains all of the required information and warrants further consideration. Details here.

Notice that permits or permit amendments have been issued to entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act. Details here.

PROCUREMENT AND PROPERTY MANAGEMENT OFFICE: Notice announces the Department of Agriculture, Departmental Management, Office of Procurement and Property Management’s intention to request an extension of a currently approved information collection, Guidelines for Designating Biobased Products for Federal Procurement. Info here.

RURAL UTILITIES SERVICE: Rule is revising the regulation used to process water and waste disposal loans and grants to remove the reference to the 11-GO Bond Buyer Index. Details here.