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

ANNOUNCEMENT: Join us Wednesday, April 18th at 12 noon (ET) for a FREE webinar: Examining the Landscape of Agricultural Certainty Programs in the United States. Details available here.

JUDICIAL: Includes finance & credit, ESA, CWA, and food labeling issues.

In UNITED STATES OF AMERICA, Plaintiff, v. SCOTT DAVID MCQUARRIE, Defendant, No. 16-cr-20499, 2018 WL 1695554 (E.D. Mich. April 6, 2018), defendant was charged with making false statements and “converting or concealing” a TW 35 tractor pledged as collateral for a loan he received from Farm Service Agency (FSA). Defendant argued the charge should be dismissed because it fell beyond the statute of limitations for crime of conversion. Court considered the “continuing offense” of defendant’s acts and noted that “a crime is not necessarily a continuing offense simply because the defendants concealed something they had an obligation to disclose.” Issue for court was “whether the concealment inflicted additional harm the longer it continued.” Court concluded that “unless the FSA was thwarted in an attempt to seize the collateral, then concealment of the collateral does not appear to harm the FSA.” Court directed government to file a supplemental brief.

In Tracey K. KUEHL, an individual; Lisa K. Kuehl, an individual; Kris A. Bell; Nancy A. Harvey, an individual; John T. Braumann, an individual; Animal Legal Defense Fund, a non-profit corporation, Plaintiffs-Appellees v. Pamela SELLNER, an individual; Tom Sellner, an individual; Cricket Hollow Zoo, a non-profit corporation, Defendants-Appellants, The Fund for Animals; Delcianna J. Winders, an Academic Fellow; Animal Rescue League of Iowa, Inc.; Center for Biological Diversity; Endangered Primate Foundation; Public Citizen, Inc.; Humane Society of the United States, Amici on Behalf of Appellee(s), Tracey K. Kuehl, an individual; Lisa K. Kuehl, an individual; Kris A. Bell; Nancy A. Harvey, an individual; John T. Braumann, an individual; Animal Legal Defense Fund, a non-profit corporation, Plaintiffs-Appellants v. Pamela Sellner, an individual; Tom Sellner, an individual; Cricket Hollow Zoo, a non-profit corporation, Defendants-Appellees, Public Citizen, Inc.; Humane Society of the United States; The Fund for Animals; Delcianna J. Winders, an Academic Fellow; Animal Rescue League of Iowa, Inc.; Center for Biological Diversity; Endangered Primate Foundation, Amici on Behalf of Appellant(s), No. 16-1624, No. 16-3147, 2018 WL 1733841 (8^th Cir. April 11, 2018), an animal rights group and zoo patrons sued zoo under Endangered Species Act (ESA) to halt alleged mistreatment of endangered species. Plaintiffs alleged excessive feces were in animal cages and that the lemurs at the zoo were isolated from each other. Plaintiffs’ expert witness testified that lemurs are “highly developed animals,” and are a “very social species.” Lower court found that defendants “harassed the lemurs by keeping them in social isolation; by not developing, documenting, and following an appropriate plan for environmental enhancement; and by not providing clean water and sanitary conditions,” and ordered their transfer to another facility. Appellate court found defendants’ “housing and care of endangered lemurs constituted ‘harassment’ under [the] ESA.” Affirmed.

In Environmental Law and Policy Center, et al., Plaintiffs, v. United States Environmental Protection Agency, et al. Defendants, No. 3:17CV01514, 2018 WL 1740146 (N.D. Ohio April 11, 2018), plaintiffs challenged EPA’s approval of Ohio’s 2016 “impaired waters list” under the Administrative Procedure Act (APA), arguing the Ohio EPA and the U.S. EPA failed to perform duties under the Clean Water Act (CWA). Ohio EPA declared water from Lake Erie as “impaired for ‘public drinking water supply,’” due to presence of phosphorus runoff from fertilizer and farmland manure. Court observed that [a]lthough the CWA requires the U.S. EPA to approve or disapprove a state’s § 303(d) list within thirty days. . . the U.S. EPA, in response to Ohio’s 2016 impaired waters list, did neither.” Court noted, however, there was no “final action” for the EPA to review and concluded plaintiffs “cannot sue the U.S. EPA for failing to discharge a nondiscretionary duty without first giving sixty days’ notice of the alleged violation to ‘the [EPA] Administrator.’’” Remanded to EPA for further proceedings.

In SAMELINE ALCE and DESIRÉ NUGENT, on behalf of themselves and others similarly situated, Plaintiffs, v. WISE FOODS, INC., Defendant, 17 Civ. 2402 (NRB), 2018 WL 1737750 (S.D.N.Y. March 27, 2018), plaintiffs sued potato chip maker alleging violations of the Federal Food Drug & Cosmetic Act (FDCA). Plaintiffs argued the company’s potato chip bags contain “non-functional slack-fill,” and that purchasers “receive fewer chips than defendant represents that they are getting, such that Plaintiffs and Class members pay more money for each quantity of chips than had been bargained for.” Court observed that “slack-fill is only misleading if (1) consumers are unable to fully view the contents of the package, and (2) the slack-fill is non-functional.” With respect to functionality of the slack-fill, plaintiffs did not demonstrate that empty space in the chip bags “is unnecessary to protect the chips, or does not reflect the requirements of the machines used for enclosing the packages, or is not the result of unavoidable product settling.” Defendant’s motion to dismiss granted.

LEGISLATIVE:

H.R. 1404: Pascua Yaqui Tribe Land Conveyance Act. Text for status Reported by Senate Committee (Apr 10, 2018) is now available.

H.R. 1500: Robert Emmet Park Act of 2017. Text for status Reported by Senate Committee (Apr 10, 2018) is now available.

S. 2641: A bill to amend the Richard B. Russell National School Lunch Act to improve the requirement to purchase domestic commodities or products. Text is now available.

H.R. 401: To designate the mountain at the Devils Tower National Monument, Wyoming, as Devils Tower. Text for status Reported by House Committee (Apr 11, 2018) is now available.

H.R. 520: National Strategic and Critical Minerals Production Act. Text for status Reported by House Committee (Apr 11, 2018) is now available.

S. 1250: Restoring Accountability in the Indian Health Service Act of 2017. Ordered to be reported with an amendment in the nature of a substitute favorably.

H.R. 3144: To provide for operations of the Federal Columbia River Power System pursuant to a certain operation plan for a specified period of time. Ordered to be Reported by the Yeas and Nays: 23 – 17.

H.R. 3392: Lake Bistineau Land Title Stability Act. Ordered to be Reported (Amended) by Voice Vote.

H.R. 3997: Free Veterans from Fees Act. Ordered to be Reported by Unanimous Consent.

H.R. 4257: Advancing Conservation and Education Act. Ordered to be Reported by Unanimous Consent.

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

AGRICULTURAL MARKETING SERVICE: Rule AMS published a proposed rule in the Federal Register on January 18, 2018, which describes 35 amendments to the National List of Allowed and Prohibited Substances. The public comment period closed on March 19, 2018. This document reopens the comment period on the proposed rule for an additional 30 days. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule the New Mexico Environment Department (NMED) has submitted updated regulations for receiving delegation and approval of a program for the implementation and enforcement of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources. Details here.

Rule establishes tolerances for residues of fluensulfone in or on multiple commodities that are identified and discussed later in this document. Info here.

Rule establishes tolerances for residues of sulfentrazone in or on multiple commodities which are identified and discussed later in this document. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Louisiana on January 31, 2018, revising the 2008 8-hour ozone maintenance plan and requesting a relaxation of the Federal Reid Vapor Pressure (RVP) requirements for the five-parish Baton Rouge area. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet length overall using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area of the Bering Sea and Aleutian Islands management area. Info here.

Rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. Details here.

Rule NMFS has received a request from the U.S. Navy for authorization to take marine mammals incidental to the pier construction activities conducted at the Naval Submarine Base New London in Groton, Connecticut, over the course of five years (2018- 2023). Info here.

Notice NMFS has made a preliminary determination that an Exempted Fishing Permit application from the Commercial Fisheries Research Foundation and Rhode Island Department of Environmental Management contains all of the required information and warrants further consideration. Details here.

RURAL UTILITIES SERVICE: Notice RUS announces the application window and requirements for Fiscal Year (FY) 2018 under the Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Program. Details here.