A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
In Texas v. Biden, No. 21-10806, 2021 WL 5882670 (5th Cir. Dec. 13, 2021), the circuit court affirmed an order issued by the U.S. District Court for the Northern District of Texas, enjoining the Biden administration’s June 1 termination of the Migrant Protection Protocols (MPP). The circuit court found that the states had standing to bring the case, largely due to increased fiscal costs that would be incurred by Texas due to an influx of illegal migrants resulting from MPP’s termination. Next, the circuit court concluded that the termination decision was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) and contrary to section 235 of the Immigration and Nationality Act (“INA”).
The circuit court stated, “The Termination Decision … violated the INA”, based on the detention mandates in section 235 of the INA and the limitations on parole in section 212(d)(5) of the INA. The court found that release under section 236(a) of the INA on bond or conditional parole (distinct from parole under section 212(d)(5) of the INA) does not apply to aliens seeking admission who are detained under section 235(b) of the INA.
The circuit court rejected the government’s contention that “DHS can ignore Congress’s limits on immigration parole and that Supreme Court precedent makes everyone powerless to say anything about it.” The circuit court distinguished that precedent (Town of Castle Rock v. Gonzales) from the instant case. Castle Rock involved the discretion of local police not to take enforcement action. The circuit court held that the termination decision was not “nonenforcement” but rather “misenforcement” or suspension of the mandates and limitations in the INA — or both.
The circuit court ultimately denied the government’s motion to vacate the judgment remand for further proceedings.
REGULATORY: APHIS, EPA, FCIC, NOAA
ANIMAL AND PLANT HEALTH INSPECTION SERVICE
Notice advising the public that APHIS has prepared an environmental assessment relative to permitting the release of Lophodiplosis indentata (Diptera: Cecidomyiidae) for the biological control of Melaleuca quinquenervia (Myrtaceae) in the contiguous United States. Info here.
ENVIRONMENTAL PROTECTION AGENCY
Final rule establishing an exemption from the requirement of a tolerance for residues of α-terpineol when used as a solvent inert ingredient in pesticide formulations at rates of 5% of the formulation in pre-harvest applications to crops. Info here.
Notice inviting public comment on allowing modern electronic alternatives for public notification in implementing Subtitle C of the Resource Conservation and Recovery Act. Info here.
FEDERAL CROP INSURANCE CORPORATION
Proposed rule proposing to amend the Common Crop Insurance Regulations, Apple Crop Insurance Provisions. The intended effect of this action is to provide policy changes to better meet the needs of the apple producers, to address program vulnerabilities that have caused increased loss ratios and rising premium costs, and to provide safeguards against fraud, waste, and abuse. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Final rule establishing the annual harvest guideline for the commercial lobster fishery in the Northwestern Hawaiian Islands for calendar year 2022 at zero lobsters. Info here.
Temporary rule adjusting the Atlantic bluefin tuna General category December 2021 subquota by adding 15.5 metric tons (mt) of quota remaining from the September and October through November subquotas resulting in a total adjusted December subquota of 54.6 mt and simultaneously closes the General category fishery for large medium and giant bluefin tuna for the December subquota time period, and thus for the remainder of 2021. Info here.
Temporary rule withholding a portion of the red grouper commercial allocation for the 2022 fishing year in anticipation of an upcoming rulemaking that would, among other measures, reduce the commercial annual catch limit and annual catch target. Info here.