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

ANNOUNCEMENT: 

Join us Wednesday, July 25^th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes food labeling and FTCA issues.

In Larry LITTLEJOHN, Plaintiff and Appellant, v. COSTCO WHOLESALE CORPORATION et al., Defendants and Respondents, A144440, 2018 WL 3407996 (Cal. Ct. App. July 13, 2018), plaintiff sued to recover amounts he paid in sales tax reimbursement on purchases of defendant’s “Ensure” product and alleged that “because Ensure is properly categorized as a food product no sales tax was actually due on his purchases.” On appeal, plaintiff further alleged Costco “should not have charged him sales tax reimbursement.” Plaintiff based his claims on a case (Javor v. State Board of Equalization) that held a customer could sue “to compel defendant retailers to make refund applications to the Board and in turn require the Board to respond to these applications by paying into court all sums, if any, due defendant retailers.” Appellate court did not recognize any “special circumstances” per plaintiff’s claims and affirmed for defendant.

Steven MORALES, Co-Personal Representative of the Estate of: deceased Raymond Perry; Nicole Perry, Co-Personal Representative of the Estate of: deceased Raymond Perry; Chopper II LLC, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, No. 17-15215, 2018 WL 3400603 (9^th Cir. July 13, 2018) involved government’s waiver of sovereign immunity. Here, the United States Geological Survey (USGS) decided not to mark a cable suspended over a river and a helicopter, piloted by plaintiff, struck the umarked cable. Plaintiff was killed and his estate sued for negligence for failing to mark the cable. USGS placed no markers “because the agency adopted the Federal Aviation Administration’s (“FAA”) obstruction regulations.” Court observed that per the Federal Tort Claims Act (FTCA), “the court has no jurisdiction over claims ‘based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency. Lower court dismissed the suit after concluding the defendant’s decision not to mark the cable “was driven by policy considerations and fell within the discretionary function exception to the FTCA.” Appellate court affirmed.

LEGISLATIVE:

H.R. 3281: Reclamation Title Transfer and Non-Federal Infrastructure Incentivization Act. This bill’s text for status Passed the House (Jul 12, 2018) is now available.

H.R. 6345: To provide for greater county and State consultation with regard to petitions under the Endangered Species Act of 1973. This bill’s text is now available.

H.R. 6346: To amend the Endangered Species Act of 1973 to provide for consideration of the totality of conservation measures in determining the impact of proposed Federal agency action. This bill’s text is now available.

H.R. 6362: To establish an improved regulatory process to prevent the introduction and establishment in the United States of injurious wildlife. This bill’s text is now available.

H.R. 6356: To amend the Endangered Species Act of 1973 to provide for improved precision in the listing, delisting, and downlisting of endangered species and potentially endangered species. This bill’s text is now available.

H.R. 6364: To amend the Endangered Species Act of 1973 to increase State and local involvement in management plans. This bill’s text is now available.

H.R. 6344: To amend the Endangered Species Act of 1973 to encourage voluntary conservation efforts. This bill’s text is now available.

H.R. 6355: To amend the Endangered Species Act of 1973 to define petition backlogs and provide expedited means for discharging petitions during such a backlog. This bill’s text is now available.

H.R. 4032: Gila River Indian Community Federal Rights-of-Way, Easements and Boundary Clarification Act. This bill’s text for status Reported by House Committee (Jul 13, 2018) is now available.

H.R. 6373: To make supplemental appropriations to provide additional funds to Americorps for the fiscal year ending September 30, 2018. This bill was referred to the House Committee on Appropriations which will consider it before sending it to the House floor for consideration.

H.R. 6365: To establish the Treaty of Guadalupe Hidalgo Land Grant-Merced Claims Commission and other Federal policies for the restoration of land for hardships resulting from the incomplete and inequitable implementation of the Treaty of Guadalupe Hidal. 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.Con.Res. 128: Establishing the congressional budget for the United States Government for fiscal year 2019 and setting forth the appropriate budgetary levels for fiscal years 2020 through 2028. This resolution was referred to the House Committee on the Budget which will consider it before sending it to the House floor for consideration.

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

AGRICULTURE DEPARTMENT:

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Field Crops Production. Info here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Study of School Food Authority (SFA) Procurement Practices. Info here.

ANIMAL AND PLANT HEALTH INPSECTION SERVICE: Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of fruits and vegetables into the United States. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to Kentucky’s State Implementation Plan (SIP) pertaining to the “good neighbor” provision of the Clean Air Act (CAA or Act) for the 2008 8-hour ozone National Ambient Air Quality Standard. Info here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation (TDEC) on November 11, 2017, for the purpose of establishing minor changes to the gasoline dispensing regulations, including adding clarifying language and effective and compliance dates and specifying the counties subject to the reporting requirement rule. Details here.

Rule EPA Region 5 is publishing a direct final Notice of Deletion of Operable Unit 3 (OU3) of the Naval Industrial Reserve Ordnance Plant (NIROP) Superfund Site (Site), located in Fridley, Minnesota, from the National Priorities List (NPL). Info here.

Rule EPA Environmental Protection Agency (EPA) is proposing to approve SIP revisions, which modify the State’s air quality regulations as incorporated into the SIP. Details here.

Rule EPA Region 4 is issuing a Notice of Intent to Delete the Davis Timber Company Superfund Site (Site) located in Hattiesburg, Lamar County, Mississippi, from the National Priorities List (NPL). Info here.

Rule EPA Region III is issuing a Notice of Intent to Delete the Recticon/Allied Steel Superfund Site (Site) located in East Coventry Township, Chester County, Pennsylvania, from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

Rule EPA Region 4 is issuing a Notice of Intent to Delete the Whitehouse Oil Pits Superfund Site (Site) located in Whitehouse, Florida, from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

Rule EPA Region 5 is issuing a Notice of Intent to Delete Operable Unit 3 (OU3) of the Naval Industrial Reserve Ordnance Plant (NIROP) Superfund Site (Site), located in Fridley, Minnesota, from the National Priorities List (NPL) and requests public comments on this proposed action. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS will make available the final environmental impact statement and draft record of decision analyzing the impacts of issuance of an incidental take permit for implementation of the Barton Springs/Edwards Aquifer Conservation District Habitat Conservation Plan. Details here.

FOREST SERVICE: Notice FS is seeking comments from all interested individuals and organizations on the renewal of a currently approved information collection, Forest Industries and Logging Operations Data Collection Systems, with a revision for a new sampling approach. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule makes editorial corrections amending the regulations for Atlantic highly migratory species (HMS). Info here.

Notice invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Title: Economic Expenditure Survey of Golden Crab Fishermen in the U.S. South Atlantic Region. Details here.

Notice invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Title: Environmental Compliance Questionnaire for National Oceanic and Atmospheric Administration Federal Financial Assistance Applicants. Info here.