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

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

JUDICIAL: Includes CWA, NEPA, and administrative law issues.

In Mountain Peak Special Utility District, Appellant v. Public Utility Commission of Texas and The City of Midlothian, Appellees, NO. 03-16-00796-CV, 2017 WL 5078034 (Tex. App. November 2, 2017), a public utility commission granted City’s petition for “expedited release” of a portion of property it owned from the “certificated service area of a utility district.” District court affirmed the Commission’s order granting the City’s petition for decertification. On appeal, plaintiff, a utility district, argued that the property the City sought to have decertified was in fact “receiving water service” from plaintiff and “was not eligible for expedited release” per statute. Plaintiff also argued the decertification petition should not have been approved because City “excluded from its request for expedited release a 6.7-acre piece of property that it owned within plaintiff’s certificated service area.” Appellate court found that “substantial evidence” supported Commission’s findings and affirmed.

Timothy MAYO, Appellee, Kent Nelson, Appellant v. Michael T. REYNOLDS, in his official capacity as Acting Director of the U.S. National Park Service, et al., Appellees, No. 16-5282, 2017 WL 5146111 (D.C.C. November 7, 2017) concerned a dispute regarding decisions made by the National Park Service allowing recreational hunting of elk in a National Park. Appellant argued Park Service violated the National Environmental Policy Act (NEPA) by authorizing recreational hunts each year without first conducting a NEPA review to assess “whether and to what extent hunting was in fact necessary for the proper management and protection of the elk.” Plaintiffs maintained the Park Service was required to prepare a new NEPA analysis “every year that it implemented the fifteen-year elk-reduction program.” District court granted summary judgment to defendants and plaintiffs appealed. Appellate court observed that “[t]he statute does not . . . require the agency to take a new look every time it takes a step that implements a previously-studied action, so long as the impacts of that step were contemplated and analyzed by the earlier analysis.” District court ruling affirmed.

In LOOMACRES, INC., Plaintiff, v. The UNITED STATES, Defendant, No. 17–824C, 2017 WL 4937752 (Fed. Cl. October 31, 2017), plaintiff sued challenging decision by U.S. Air Force to “insource Bird Aircraft Strike Hazard (BASH) program-related services” for an Air Force base. Plaintiff claimed that by insourcing the services, the Air Force violated the Competition in Contracting Act, the Federal Acquisition Regulation (FAR), and the Economy Act, “by failing to publish its Determinations and Findings necessary to authorize the use of non-competitive procedures.” Plaintiff sought to terminate the contract between the Air Force and the United States Department of Agriculture (USDA), Animal & Plant Health Inspection Service (APHIS), Wildlife Services (WS) for BASH program-related services. Defendant argued plaintiff, a provider of wildlife hazard management, “has no direct economic interest in the outcome of the case, and thus lacks standing.” Court concluded, however, that plaintiff “is a prospective bidder with a direct economic interest in the agency’s failure to compete this requirement,” and denied defendant’s motion to dismiss.

LEGISLATIVE:

S. 2086: A bill to amend the Federal Agriculture Improvement and Reform Act of 1996 to extend and modernize the sugar program, to extend and subsequently repeal the feedstock flexibility program for bioenergy producers. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2085: A bill to amend the Agriculture and Consumer Protection Act of 1973 to streamline application processes and reduce the administrative burden for the commodity supplemental food program, and for other purposes. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 4291: To utilize loans and loan guarantees under the rural broadband access program to provide broadband service for agricultural producers and to provide universal service support for installation charges for broadband service. Bill referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

H.R. 4265: To modernize the sugar program under the Federal Agriculture Improvement and Reform Act of 1996, to provide for the repeal of the feedstock flexibility program for bioenergy producers under the Farm Security and Rural Investment Act of 2002. Bill referred to the House Committee on Agriculture and House Committee on Ways and Means.

H.R. 4260: To amend the Internal Revenue Code of 1986 to establish a new tax credit and grant program to stimulate investment and healthy nutrition options in food deserts, and for other purposes. Bill referred to the House Committee on Agriculture and House Committee on Ways and Means.

H.R. 4257: To maximize land management efficiencies, promote land conservation, generate education funding, and for other purposes. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 4266: To clarify the boundary of Acadia National Park, and for other purposes. Bill referred to the House Committee on Natural Resources.

H.R. 4264: To direct the Secretary of the Interior to convey certain Bureau of Land Management land in Cache County, Utah, to the City of Hyde Park for public purposes. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

REGULATORY: Includes FWS, FDA, and NOAA rules and notices.

FISH AND WILDLIFE SERVICE: Rule that the “Non- subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska” (non-subsistence take of wildlife rule) shall be treated as if it had never taken effect. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA filed a petition, submitted by Colorcon, Inc., proposing that the color additive regulations be amended by expanding the permitted uses of synthetic iron oxide as a color additive to include use in dietary supplement tablets and capsules. Info here.

Rule FDA announces the availability of a draft guidance for industry entitled “Menu Labeling: Supplemental Guidance for Industry.” Details here.

Notice FDA seeks to renew OMB approval of the Health and Diet Survey, which is a voluntary consumer survey intended to gauge and to track consumer attitudes, awareness, knowledge, and behavior regarding various topics related to health, nutrition, physical activity, and product labeling. Info here.

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Infant Formula Recall Regulations. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations to implement Amendment 48 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) and to revise regulations implementing the American Fisheries Act (AFA) Program and the Crab Rationalization (CR) Program. Info here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: West Coast Region Highly Migratory Species Vessel Identification Requirements. Info here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Atlantic Highly Migratory Species Individual Bluefin Quota (IBQ) Tracking. Details here.

Notice requesting extension of a currently approved information collection. Title: West Coast Region Groundfish Trawl Fishery Monitoring and Catch Accounting Program. Details here.

Notice NMFS solicits public comments on Oregon’s application, other relevant information related to pinniped predation on salmonids in the Willamette River, and nominations for potential members of a Task Force. Info here.