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

ANNOUNCEMENT: Join us TOMORROW, November 15th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Estate Planning: Preparing to Plan.”  Details available here.

JUDICIAL: Includes bus orgs, renewable energy, FDA, and climate change issues.

In FABICK, INC., Plaintiff, v. FABCO EQUIPMENT, INC. and JFTCO, INC., Defendants, 16-cv-172-wmc, 2017 WL 5186470 (W.D. Wisc. November 8, 2017), plaintiff, a seller of construction materials, claimed trademark infringement against defendant based on defendants’ use of the name “Fabick CAT.” Defendant sold and repaired Caterpillar-branded heavy equipment and the company was comprised of siblings that eventually had a falling out. Both parties moved for summary judgment. Court concluded that questions remain as to prior use of the name by defendants and whether co-defendant JFTCO and the John Fabick Tractor Company “are viewed by the consuming public as one entity for purposes of JFTCO relying on the John Fabick Tractor Company’s prior use.” Both motions for summary judgment denied.

SOLARWORLD AMERICAS, INC. ET AL., Plaintiff and Consolidated Plaintiffs, and CANADIAN SOLAR INC. ET AL., Plaintiff-Intervenors and Consolidated Plaintiff-Intervenors, v. UNITED STATES, Defendant, and CHANGZHOU TRINA SOLAR ENERGY CO., LTD. ET AL., Defendant-Intervenors and Consolidated Defendant-Intervenor, No. 16-00134, Slip Op. 17-143, 2017 WL 4844276 (Ct. Intl. Trade October 18, 2017) involved Department of Commerce’s final determination of an antidumping duty order covering “crystalline silicon photovoltaic cells” from China. Court sustained the agency’s “surrogate value selections for valuing respondents’ aluminum frames, semi-finished polysilicon ingots and blocks, solar backsheet, and nitrogen inputs.” The court also sustained the agency’s selection of financial statements “for calculating financial ratios for respondents’ overhead, selling, general, and administrative (SG&A) expenses, and profit, and Commerce’s application of adverse facts available (AFA) to respondent’s unreported, purchased solar cells.”

CIGAR ASSOCIATION OF AMERICA, et al., Plaintiffs, v. U.S. FOOD AND DRUG ADMINISTRATION, et al., Defendants, No. 1:16–cv–1460 (APM), 2017 WL 4675735 (D.C.C. October 16, 2017) involved public health organizations moving to intervene in a case to defend ruled issued by the Food and Drug Administration (FDA) subjecting cigars and pipe tobacco products to the Tobacco Control Act. Plaintiffs challenged FDA’s “adoption of warning label requirements for cigar and pipe tobacco products.” Proposed intervenors argued that, “if Plaintiffs are successful, then they will be forced to spend resources educating the public about the risks of tobacco use that otherwise would be conveyed by the warnings themselves.” Court found proposed intervenors failed to show they would suffer “a legally sufficient injury-in-fact if Plaintiffs were to prevail in this litigation.” Motion to intervene denied.

In In re LA PALOMA GENERATING., COMPANY, et al., Debtors, No. 16-12700 (CSS), 2017 WL 5197116 (Bankr. D. Del. November 9, 2017), debtors owned an electricity generation facility and issue concerned interpretation of California Air Resources Board rules implementing a “cap and trade” program for carbon emissions. Debtors bankruptcy plan stated that the Court “will specifically determine the extent, if any, to which the purchaser of the Acquired Assets will be liable to satisfy the Debtor Emission Surrender Obligations.” Creditor argued that the debtors in this case “cannot transfer substantially all of their assets. . . to a purchaser free and clear of any obligation to surrender compliance instruments under the California cap and trade program for emissions generated by such facility during the pre-transfer period.” Court determined that “Debtor Emission Surrender Obligations” are an interest under the statute and the rule “does not impose successor liability.”


MEETING: Senate Committee on Energy and Natural Resources Meeting. Business meeting to consider, pursuant to H.Con.Res.71, the Concurrent Resolution on the Budget for Fiscal Year 2018, reconciliation legislation to authorize the Secretary of the Interior to establish and administer a competitive oil and gas program in the non-wilderness portion of the Arctic National Wildlife Refuge. Nov. 15 @ 9 a.m. (Location: SD-366).

MEETING: Senate Committee on Environment and Public Works Meeting. Hearings to examine promoting American leadership in reducing air emissions through innovation. Nov. 15 @ 10 a.m. (Location: SD-406).

MEETING: House Committee on Appropriations: Subcommittee on Military Construction, Veterans Affairs and Related Agencies Meeting. Veterans Affairs Electronic Health Record Oversight. Nov 15 @ 10 a.m. (Location: RHOB 2362-A).

MEETING: Senate Committee on Appropriations: Subcommittee on Military Construction and Veterans Affairs, and Related Agencies Meeting. Hearings to examine Department of Veterans Affairs efforts to prevent and combat opioid over medication. Nov. 15 @ 2:30 p.m. (Location: SD-124).

REGULATORY: Includes AMS, USDA, EPA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule AMS is delaying the effective date of the Organic Livestock and Poultry Practices final rule published in the Federal Register on January 19, 2017 (OLPP final rule), until May 14, 2018. Info here.


Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Application of Laboratories, Transactions, and Exemptions. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Importation of Live Swine, Pork and Pork Products, and Swine Semen from the European Union. Details here.


Rule EPA is making a final determination that the Washington, DC-MD-VA marginal ozone nonattainment area (the Washington Area) attained the 2008 ozone national ambient air quality standard (NAAQS) by the July 20, 2016 attainment date. Info here.

Rule EPA is withdrawing the direct final rule for “State of Iowa; Approval and Promulgation of the State Implementation Plan, the 111(d) Plan, and the Operating Permits Program,” published in the Federal Register on September 15, 2017. Info here.

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. Details here.

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Rhode Island. Details here.

Rule that the Connecticut Department of Energy and Environmental Protection (CT DEEP) has voluntarily and partially withdrawn from the delegation of authority to implement and enforce the federal asbestos program provisions at 40 CFR part 61, subpart M. Info here.

Rule establishes tolerances for residues of benzovindiflupyr in or on the bulb onion subgroup 3-07A, the green onion subgroup 3-07B, and increases an existing tolerance on sugarcane. Interregional Research Project Number 4 (IR-4) and Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info here.


Rule NMFS announces that the State of New Jersey is transferring a portion of its 2017 commercial bluefish quota to the State of Rhode Island. Details here.
Rule NMFS proposes regulations under the Tuna Conventions Act to implement provisions included in Resolution C-17-02, which was adopted at the 92nd Meeting of the Inter-American Tropical Tuna Commission in July 2017. Details here.

Notice advises the public that one direct take permit has been issued pursuant to Section 10(a)(1)(A) of the Endangered Species Act of 1973 (ESA) for continued operation, monitoring, and evaluation of hatchery programs rearing and releasing Sacramento River winter-run Chinook salmon into the Upper Sacramento River Basin. Info here.