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


ANNOUNCEMENTS:

Join us TODAY for an Agricultural & Food Law Consortium webinar: Cottage Food Laws: Adequately Addressing Food Safety and Economic Opportunity? 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 agritourism, SNAP, and urb & ag issues.

ESTATE OF Ubong DAVID, Appellant v. Darren POUNDS and Rick Pounds, Appellees, Estate of Ubong David, Appellant v. Samuel Boone, Appellee, NO. 2016-CA-000793-MR & NO. 2016-CA-001689-MR, 2018 WL 2992401 (Ky. Ct. App. June 15, 2018) concerned a challenge to Kentucky’s recreational use statutes. Plaintiff’s estate sued after plaintiff drowned while fishing on a pond on defendant’s property. Defendant had invited plaintiff and others to fish on the property. Lower court found defendant immune from suit. On appeal, plaintiff claimed facts about the boat used in the accident and facts “concerning whether [defendant’s] actions fit within the ‘willful and malicious’ exception” were wrongfully excluded from the record. Court observed the recreational use statute at issue specifically stated that the owner “shall owe no duty to keep the premises safe for entry or use by the person or to give warning of any hazardous conditions on the premises[.]” Affirmed, in part, for landowner.

In FAMOUS INTERNATIONAL MARKET, et al v. UNITED STATES OF AMERICA, NO. 17-4897, 2018 WL 3015249 (E.D. Penn. June 15, 2018), a grocery retailer was disqualified from participating in the Supplemental Nutrition Assistance Program (SNAP) after allegedly engaging in “hundreds of questionable large sum and repetitive transactions atypical of its store size, inventory and operational capacity.” Retailer had to demonstrate to court “the propriety of the challenged transactions.” Retailer argued its record of transactions demonstrated  “customers who shop at medium grocery stores do so more frequently and negates an inference of trafficking.” Court considered comparison evidence of transactions at similar retailers and concluded that  “when the data point is read in context with the entire data set, [retailer’s evidence] loses its persuasive effect.” Court concluded the retailer failed to overcome government’s evidence of trafficking.

In UNITED STATES OF AMERICA, v. JACOB ZACHARIAH, SA-16-CR-694-XR, 2018 WL 3017362 (W.D. Tex. June 15, 2018), defendant was charged with conspiracy to distribute and possess marijuana. He moved to dismiss, arguing the federal government has refused to preempt state laws “creat[ing] a state of affairs where a person faces no prosecution in the state courts, but faces prosecution in the federal courts, creating a violation of the Due Process Clause of the Fifth Amendment.” Court observed that “Local decriminalization notwithstanding, the unambiguous federal prohibitions on medical marijuana use set forth in the CSA continue to apply.” Citing case law, the court also observed that “even if the [Missouri] Right to Farm Amendment did decriminalize the manufacture of marijuana . . . the Right to Farm Amendment would have no effect on the validity and enforceability of federal statutes such as the Controlled Substances Act.” Court found no deprivation of due process and denied motion to dismiss indictment.


LEGISLATIVE:

S. 3080: A bill to reauthorize certain agricultural programs through 2023, and for other purposes. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.


REGULATORY:  Includes AMS, USDA, EPA, FWS, FDA, FS, NOAA, RHS, and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the Almond Board of California (Board) to revise the adjusted kernel weight computation currently prescribed under the Marketing Order for almonds grown in California. Details here.

Rule implements a recommendation from the California Olive Committee (Committee) to decrease the assessment rate established for the 2018 fiscal period for olives grown in California. Details here.

Rule contains corrections to the proposed rule published on May 4, 2018, regarding a new national mandatory bioengineered food disclosure standard. Info here.

AGRICULTURE DEPARTMENT: Notice USDA is extending the comment period for our request for information on how we can provide better customer service and remove unintended barriers to participation in our regulatory programs published in the Federal Register on July 17, 2017. This action will allow interested persons additional time to prepare and submit comments. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule that the State of Alabama submitted a request for the Environmental Protection Agency (EPA) to redesignate the Troy 2008 lead Nonattainment Area to attainment for the 2008 lead National Ambient Air Quality Standards and to approve an associated State Implementation Plan revision containing a maintenance plan. Info here.

Rule EPA is proposing to approve several Tennessee State Implementation Plan (SIP) revisions submitted by the Tennessee Department of Environment & Conservation (TDEC), on behalf of Knox County’s Air Quality Management Division, on March 7, 2017, and April 17, 2017. Info here.

Rule EPA is proposing to take the following four actions regarding the Tennessee State Implementation Plan (SIP): approve Tennessee’s November 22, 2017, SIP submittal seeking to change reliance from the Clean Air Interstate Rule (CAIR) to Cross-State Air Pollution Rule (CSAPR) for certain regional haze requirements. Details here.

Rule EPA is proposing to approve changes to the Tennessee State Implementation Plan (SIP) to revise New Source Review (NSR) regulations. Info here.

Rule EPA Region 3, is issuing a Notice of Intent to Delete the Ordnance Works Disposal Areas Superfund Site (Site) located in Morgantown, West Virginia, from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS issued permits to conduct activities with endangered and threatened species under the authority of the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the availability of a draft guidance for industry entitled “Mitigation Strategies to Protect Food Against Intentional Adulteration: Guidance for Industry.” Details here.

FOREST SERVICE:

Notice FS is seeking comments from all interested individuals and organizations on the extension with no revision of a currently approved information collection; Community Forest and Open Space Program. Info here.

Notice solicits public comments on a greater sage-grouse land management proposed action that could warrant land management plan amendments. Details here.

Notice James Melonas, the Forest Supervisor for the Santa Fe National Forest, Southwest Region, signed the final Record of Decision (ROD) for the amendment to the Santa Fe National Forest Land and Resource Management Plan. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule adjusting the 2018 management area annual catch limits for the herring fishery published in the Federal Register on February 15, 2018. Details here.

Rule NMFS is correcting a proposed rule that published on June 6, 2018, that would limit access to the Bering Sea and Aleutian Islands (BSAI) Trawl Limited Access Sector (TLAS) yellowfin sole directed fishery by vessels that deliver their catch of yellowfin sole to motherships for processing. Two paragraphs in the preamble and two tables in the proposed regulatory text contained errors. Info here.

RURAL HOUSING SERVICERule RHS proposes to amend the current regulation for the Single Family Housing Guaranteed Loan Program (SFHGLP) on the subject of Single Close Combination Construction to Permanent Loans. Info here.

RURAL UTILITIES SERVICE:

Notice RUS announces its Revolving Fund Program (RFP) application window and funds availability for Fiscal Year (FY) 2018. Details here.

Notice RUS announces its Household Water Well System (HWWS) Grant Program funds availability and solicitation of applications application window for fiscal year (FY) 2018. Info here.