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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.

JUDICIAL: Includes CWA, environmental, PACA, and 

In COASTAL ENVIRONMENTAL RIGHTS FOUNDATION, Plaintiff, v. AMERICAN RECYCLING INTERNATIONAL, INC. dba LKQ PICK YOUR PART OCEANSIDE, Defendant, No. 17-cv-00425-BAS-JMA, 2017 WL 6270395 (S.D. Cal. December 8, 2017), plaintiff sued defendant for violations of the Federal Water Pollution Control Act. Plaintiff’s organization uses a river for recreational activities and claimed defendant’s “storm water discharges from its industrial facility . . . pose a continuous threat to Plaintiff’s members’ interests.” Defendant argued for dismissal because “Plaintiff’s sixty-day pre-suit notice does not meet the Clean Water Act’s requirements and . . . [p]laintiff’s legal theories rely on a misinterpretation of the permit that governs Defendant’s storm water discharges.” Court denied motion to dismiss, reasoning that “because Plaintiff alleges a continuous and ongoing pattern of noncompliance with Permit requirements, and because Defendant does not meet its burden to demonstrate the claims are now moot.”

In WASHOE MEADOWS COMMUNITY, Plaintiff and Respondent, v. DEPARTMENT OF PARKS AND RECREATION et al., Defendants and Appellants, A145576, 225 Cal.Rptr.3d 238 (Cal Ct. App. November 15, 2017), plaintiffs claimed defendants violated California Environmental Quality Act (CEQA) and were granted a writ setting aside approvals by defendants regarding a state recreational area. Defendants appealed. Appellate court affirmed after first recognizing the Environmental Impact Report (EIR) at issue “failed to describe stable project on which public could comment, and thus violated informational requirements of CEQA.” The court also concluded that the “failure of draft EIR to comply with informational requirements of CEQA was prejudicial.”

In EPIC FRESH PRODUCE, LLC, Plaintiff, v. OLYMPIC WHOLESALE PRODUCE, INC., and NICHOLAS DOUMOURAS, Defendants, No. 17-cv-8381, 2017 WL 6059971 (N.D. Ill. December 7, 2017), plaintiff, a produce wholesaler, alleged defendant, a produce dealer, violated the Perishable Agricultural Commodities Act (PACA) and requested a temporary restraining order. Defendants argued plaintiff was not a beneficiary of the possible PACA trust between the parties because “all of the sales Plaintiff made to [defendant] are subject to contractual terms, completely separate and apart from anything listed on Plaintiff’s invoices.” Defendant stressed that “none of the e-mails between the parties include payment terms because the parties previously agreed that Plaintiff would be paid as payments from Defendant Olympic’s customers were collected.” The court reasoned that “[t]he failure of [the parties] to specifically reference the PACA in the e-mails that Defendants have presented to the Court does not mean that PACA does not govern these transactions.” TRO granted for plaintiff.

LEGISLATIVE:

S. 2215: A bill to amend the Food Security Act of 1985 to better assist producers desiring to voluntarily transition into organic production systems. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 1399: American Soda Ash Competitiveness Act. This bill’s text for status Reported by House Committee is now available.

H.R. 4609: To provide for the conveyance of a Forest Service site in Dolores County, Colorado, to be used for a fire station. Bill referred to the House Committee on Natural Resources.

REGULATORY: Includes USDA, APHIS, EPA, FWS, IRS, and NOAA rules and notices. 

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Fire and Rescue Loans—7 CFR 1942, Subpart C, “Fire and Rescue Loans and Other Small Community Facilities Projects.” Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the commercial transportation of equines to slaughtering facilities. Info here.

Notice the Secretary of Agriculture is soliciting nominations for the election of a member at-large and regional members and their alternates for the General Conference Committee of the National Poultry Improvement Plan. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the direct final rule published on Tuesday, October 24, 2017 to approve revisions to the Pennsylvania state implementation plan (SIP) pertaining to the addition of new regulations to address the requirement to adopt reasonably available control technology (RACT) for sources covered by EPA’s control techniques guidelines (CTG) for automobile and light-duty truck assembly coatings. Info here.

Rule EPA is withdrawing the October 16, 2017 direct final rule (DFR) that approved a revision to the Commonwealth of Pennsylvania’s state implementation plan. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS received an application for an incidental take permit (ITP) under the Endangered Species Act of 1973. Orange County Utilities (Applicant) is requesting a 10-year ITP. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is announcing the termination of the Food Advisory Committee. Details here.

Rule FDA is amending the animal drug regulations to reflect application-related actions for a new animal drug application (NADA) and abbreviated new animal drug applications during May and June 2017. Info here.

Notice solicits comments on the information collection provisions of FDA’s consultation procedures for foods derived from new plant varieties, including the information collection provisions in the guidance entitled, “Guidance on Consultation Procedures: Foods Derived From New Plant Varieties,” and in Form FDA 3665 entitled, “Final Consultation For Food Derived From a New Plant Variety.” Info here.

Notice FDA is announcing the availability of a draft guidance for industry entitled “Gluten in Drug Products and Associated Labeling Recommendations.” Details here.

INTERNAL REVENUE SERVICE: Notice re: Publication 225 FARMER’S TAX GUIDE. This publication explains how the federal tax laws apply to farming. Use this publication as a guide to figure your taxes and complete your farm tax return. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that U.S. purse seine vessels will be prohibited from fishing on fish aggregating devices (FADs) in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention) in the area between the latitudes of 20[deg] N. and 20[deg] S. Info here.

Rule NMFS proposes revised longfin squid, Illex squid, and butterfish specifications for the 2018 fishing year and projected specifications for fishing years 2019 and 2020. Details here.