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


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JUDICIAL: Includes crop insurance, CWA, and environmental law issues.

In BOTTOMS FARM PARTNERSHIP; Bell Family Partnership; Bell Planting Co.; Nez Farms, Inc., Plaintiffs–Appellants v. Sonny PERDUE, Secretary, United States Department of Agriculture; Risk Management Agency; Federal Crop Insurance Corporation Defendants–Appellees, No. 17-2164, 2018 WL 3433803 (8th Cir. July 17, 2018), rice farmers sued United States Department of Agriculture (USDA), Risk Management Agency (RMA), and Federal Crop Insurance Corporation (FCIC) “challenging denial of their claims under federally-reinsured multi-peril crop insurance policies.” Lower court granted summary judgment for defendants and farmers appealed. Appellate court found the “FCIC’s interpretation of special provision of federally-reinsured multi-peril crop insurance policies was entitled to substantial deference.” Court also concluded FCIC’s determination that farmers’ fields were uninsurable was not “plainly erroneous.” Affirmed.

ACE AMERICAN INSURANCE COMPANY, et al., Appellees, American Agri-Business Insurance Company, Appellant v. FEDERAL CROP INSURANCE CORPORATION, a Corporation within the United States Department of Agriculture and Risk Management Agency, an Agency within the United States Department of Agriculture, Appellees, No. 16-5348, 2018 WL 3532905 (D.C. July 13, 2018) involved negotiations concerning a Standard Reinsurance Agreement (SRA) between the Federal Crop Insurance Corporation (FCIC) and a group of private crop insurers. The SRA at issue detailed how FCIC would “take a share of the premiums collected from insured farmers in exchange for reimbursing the private crop insurers for certain administrative expenses and providing them with reinsurance against the risk of loss.” Here, on appeal, plaintiffs raised a host of issues, including that the FCIC had unjustly enriched itself and had failed to “tak[e] into consideration the financial condition of the reinsured companies” when making SRA decisions. Appellate court disagreed, reasoning that the “ratemaking methodology” and subsequent premiums “were repeatedly discussed during negotiations as they closely relate to the standard agreement.” Dismissal affirmed.

COOLING WATER INTAKE STRUCTURE COALITION, Petitioner, American Petroleum Institute, Utility Water Act Group, Entergy Corporation, American Littoral Society, Environment America, Environment Massachusetts, Riverkeeper, Inc., Natural Resources Defense Council, Incorporated, Delaware Riverkeeper Network, Raritan Baykeeper, Inc., Dba NY/NJ Baykeeper, Hackensack Riverkeeper, Casco Baykeeper, Save The Bay–Narragansett Bay, Scenic Hudson, Inc., Sierra Club, Waterkeeper Alliance, Inc., Soundkeeper, Inc., Surfrider Foundation, Intervenors-Petitioners, Center For Biological Diversity, Louisiana Environmental Action Network, California Coastkeeper Alliance, Humboldt Baykeeper, Suncoast Waterkeeper, Inc., Puget Soundkeeper Alliance, Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Andrew R. Wheeler, in his official capacity as Acting Administrator of the United States Environmental Protection Agency,* National Marine Fisheries Service, United States Fish and Wildlife Service, Respondents, Docket Nos. 14-4645(L) 14-4657(CON), 14-4659(CON), 14-4664(CON), 14-4667(CON), 14-4670(CON), 2018 WL 3520398 (2d Cir. July 23, 2018) involved a number of consolidated cases wherein conservation groups sought review of a final rule by the United States Environmental Protection Agency (EPA) regarding the Clean Water Act (CWA) “establishing requirements for cooling water intake structures (CWISs) at existing regulated facilities.” The groups also sought review of a 2014 “biological opinion” jointly issued by the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). Court found both the Rule and the biological opinion “are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record.” The court denied the petitions seeking review because the EPA “gave adequate notice of its rulemaking.”

DEFENDERS OF WILDLIFE, and NATURAL RESOURCE DEFENSE COUNCIL Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION; and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants And LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL, SAVAGE IRRIGATION DISTRICT, and INTAKE IRRIGATION DISTRICT Defendant-Intervenors, CV-15-14-GF-BMM, 2018 WL 3510534 (D. Mont. July 20, 2018) involved the impact of a dam project on the pallid sturgeon population near the Yellowstone and Missouri Rivers. On appeal, plaintiffs challenged the biological opinion (BiOP) issued by the US Fish and Wildlife Service (FWS) that concluded the dam project “would represent an improvement to the likelihood of survival and recovery of the pallid sturgeon.”  Plaintiffs specifically challenged the BiOp’s “arbitrary comparison of the pallid sturgeon’s larval survival during downstream drift to the shovelnose sturgeon population.” The court found FWS evaluation methods “reasonable” and concluded it “must defer to FWS’s scientific judgment in choosing to use the shovelnose sturgeon as a surrogate.” Plaintiff’s motion for summary judgment denied.


LEGISLATIVE:

H.R. 589: Department of Energy Research and Innovation Act. Passed Senate with an amendment by Voice Vote.

S. 2503: Department of Energy Research and Innovation Act. Passed Senate with an amendment by Voice Vote.

H.R. 5613: Quindaro Townsite National Historic Landmark Act. This bill’s text for status Reported by House Committee (Jul 23, 2018) is now available.

H.R. 5979: Mill Springs Battlefield National Monument Act. This bill’s text for status Reported by House Committee (Jul 23, 2018) is now available.

H.R. 6077: National Comedy Center Recognition Act. This bill’s text for status Reported by House Committee (Jul 23, 2018) is now available.

H.R. 6477: To include lead poisoning prevention and mitigation education as a purpose of the education and obesity prevention program carried out under the Food and Nutrition Act of 2008. Referred to the House Committee on Agriculture.

H.R. 6470: Making appropriations for the Departments of Labor, Health and Human Services, and Education, and related agencies for the fiscal year ending September 30, 2019. Referred to the House Committee on Appropriations.

H.R. 6463: To amend the Internal Revenue Code of 1986 to eliminate certain fuel excise taxes and impose a tax on greenhouse gas emissions to provide revenue for maintaining and building American infrastructure. Referred to the House Committee on Agriculture, House Committee on Education and the Workforce.

H.R. 6474: To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to address deferred maintenance at agricultural research facilities. Referred to the House Committee on Agriculture.

H.R. 2630: La Paz County Land Conveyance Act. Passed in the House on July 23, 2018.

H.R. 1220: To establish the Adams Memorial Commission to carry out the provisions of Public Law 107-62. This bill passed in the House on July 23, 2018.

H.R. 3045: Eastern Legacy Extension Act. This bill passed in the House on July 23, 2018.

H.R. 5875: To amend the Pittman-Robertson Wildlife Restoration Act and the Dingell-Johnson Federal Aid in Sport Fish Restoration Act, to provide parity for United States territories and the District of Columbia. On motion to suspend the rules and pass the bill, as amended Agreed to by voice vote.


REGULATORY: Includes AMS, APHIS, EPA, FWS, FDA, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule will make technical amendments to the Sorghum Promotion, Research, and Information Order (Sorghum Order) and the Lamb Promotion, Research, and Information Order (Lamb Order) to remove obsolete and unnecessary provisions and to make conforming changes affected by the amendatory language revisions. Info here.

Rule invites comments on the termination of the Federal marketing order regulating the handling of Irish potatoes grown in Southeastern states (Order). Details here.

Rule directs that a referendum be conducted among eligible producers of raspberries for processing and importers of processed raspberries to determine whether they favor continuance of the Agricultural Marketing Service’s (AMS) regulations regarding a national processed raspberry research and promotion program. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with regulations for the importation of peppers from certain Central American countries. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of peppers from the Republic of Korea. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the interstate movement of plants and plant products from Hawaii and the Territories. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving Ohio’s request for withdrawal of the previously approved Hospital/Medical/ Infectious Waste Incinerator (HMIWI) State Plan. Info here.

Rule amends an exemption from the requirement of a tolerance to allow for residues of 1,1-difluoroethane when used as an inert ingredient in bird repellent pesticide products applied to growing crops and raw agricultural commodities after harvest and to animals. Details here.

Rule EPA is proposing to approve revisions to the Iowa State Implementation Plan (SIP), and the Operating Permits Program. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of North Carolina on November 17, 2017, through the North Carolina Department of Environmental Quality. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS and NMFS propose to amend portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended. Info here.

Rule FWS will revise portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). Info here.

Rule FWS will revise regulations extending most of the prohibitions for activities involving endangered species to threatened species. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of a draft guidance for industry entitled “Use of Liquids and/or Soft Foods as Vehicles for Drug Administration: General Considerations for Selection and In Vitro Methods for Product Quality Assessments.” Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is rescinding its administrative review of the antidumping duty order on certain preserved mushrooms from the People’s Republic of China (China) for the period of review (POR) February 1, 2017, through January 31, 2018. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations to implement management measures described in Abbreviated Framework Amendment 1 (Abbreviated Framework 1) to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region, as prepared and submitted by the South Atlantic Fishery Management Council. Details here.

Rule NMFS hereby issues regulations to implement management measures described in Amendment 43 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council. Details here.