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 taxation, SNAP, and agritourism issues.

In JAMES HOWARD, and VANESSA HOWARD, Plaintiffs, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant, TC-MD 160377R, 2018 WL 1363322 (Or.Tax Magistrate Div. March 16, 2018), plaintiffs appealed notice of deficiency form defendant and issue was whether plaintiffs’ farm was a “business,” for which deductions are allowed, or an activity “not engaged in for profit.” Court looked at a number of factors in deciding whether plaintiff’s activities were performed to make a profit. Court noted plaintiff did not have a business plan or “complete and accurate books and records for farm income and expenses for the tax years in issue.” Court ruled plaintiffs did not operate farm “with the requisite intent to make a profit during the 2012, 2013, and 2014 tax years,” and disallowed farm deductions “to the extent their losses exceed their net farm income.”

YENNES FOOD MART PLAINTIFF v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE DEFENDANT, NO. 3:16CV-624-CRS, 2018 WL 1354446 (W.D. Ky. March 15, 2018) involved a review of a charge of trafficking in Supplemental Nutrition Assistance Program (SNAP) benefits by plaintiff, owner of a neighborhood market. Defendant (USDA) recorded multiple transactions “made from individual benefit accounts within unusually short time frames,” and “excessively large purchase transactions made from recipient accounts.” Court observed that “the burden rests upon the aggrieved owner, the showing of invalidity of the administrative decision must be by a preponderance of the evidence, and the evidence must raise material issues of fact as to each alleged violation.” Plaintiff failed to “assert any ground to challenge the authenticity of the data or the system employed by the USDA to analyze it and identify likely trafficking activity.” Affirmed for USDA.

In Michael L. ROBERTS; Jessica E. Waybright, Husband & Wife, Plaintiffs–Appellants, v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming corporation, Defendant–Appellee, No. 17-8018, 2018 WL 1178416 (10th Cir. March 5, 2018), a skier sued ski resort alleging premises liability and negligence after being injured skiing into a pile of boulders “on an untamed and un-groomed run inside the resort’s boundaries.” Lower court granted summary judgment to resort and skier appealed. Appellate court considered applicability of the Wyoming Recreation Safety Act (WRSA), which provides that “[a] provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.” Appellate court found resort was not negligent as “encountering boulders was an inherent risk of alpine skiing under the WRSA.” Affirmed.


LEGISLATIVE:

H.R. 4851: Kennedy-King Establishment Act of 2018. Text for status Reported by House Committee (Mar 19, 2018) is now available.

S. 2569: A bill to amend the Consolidated Farm and Rural Development Act to authorize the Secretary of Agriculture to award grants to benefit the Appalachia region. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2570: A bill to repeal the funding authorization sunset and the total funding cap for the Essex National Heritage Area. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 5328: To authorize the return of surplus property, including Federal land, to the government of Guam. Referred to the House Committee on Armed Services, House Committee on Natural Resources, and one other committee.

H.R. 5334: To repeal the funding authorization sunset and the total funding cap for the Essex National Heritage Area. Referred to the House Committee on Natural Resources.


REGULATORY: Includes EPA, FWS, FNS, FSIS, FS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of flutianil in or on multiple commodities that are identified and discussed later in this document and an exemption for indirect or inadvertent residues of flutianil on other crops rotated into fields previously treated with flutianil. Details here.

Rule establishes tolerances for residues of S- metolachlor in or on sugarcane, cane and sugarcane molasses. Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS is revising regulations governing the annual Federal Migratory Bird Hunting and Conservation Stamp Contest. Info here.

FOOD AND NUTRITION SERVICE: Notice the purpose of the TIP Data Collection is to provide FNS and WIC State agencies with an annual data set that can be used to assess State agencies’ compliance with WIC vendor management requirements and estimate State agencies’ progress in eliminating fraud, waste, and abuse. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS is announcing its intention to revise the approved information collection for the FSIS Public Health Information System (PHIS) to include the FSIS standard export certificate forms 9060-5, 9060-5S, 9060-5A, and 9060-5B. Details here.

FOREST SERVICE: Notice the Collaborative Forest Restoration Program Technical Advisory Panel will meet in Albuquerque, New Mexico. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure for the commercial longline component for golden tilefish in the exclusive economic zone (EEZ) of the South Atlantic. Details here.

Rule NMFS announces that the length of the recreational fishing season for black sea bass in the exclusive economic zone (EEZ) of the South Atlantic will extend throughout the species’ 2018-2019 fishing year. Info here.

Rule NMFS is prohibiting directed fishing for Pacific cod by hook- and-line catcher/processors in the Western Regulatory Area of the Gulf of Alaska. Details here.

Rule NMFS proposes to implement management measures described in Amendment 36A to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Gulf) (Amendment 36A), as prepared by the Gulf of Mexico Fishery Management Council. Info here.