A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes PACA, bankruptcy, OFPA and H-2A issues.

In PACIFIC COAST FRUIT COMPANY, an Oregon Corp., Plaintiff, v. RON SQUIRES dba FOUR SEASONS FARMERS MARKET, Defendant., No. 3:16-CV-00463-BR, 2016 WL 4443166 (D. Or. Aug. 19, 2016) plaintiff, a produce dealer subject to the Perishable Agricultural Commodities Act (PACA), sold produce to defendant at a cost of $32,758.91 and defendant failed to pay. Plaintiff sued pursuant to PACA, claiming rights to interest and attorney fees. The court reasoned that “The Supreme Court has stated under federal fee-shifting statutes that ‘the lodestar approach’ is ‘the guiding light’ when determining a reasonable fee.” Court considered “the time expended in connection with plaintiff’s action and the requested hourly rates for plaintiff’s attorney and paralegal” and granted plaintiff’s motion for attorney fees.

In Bankruptcy In Matter of Ferguson, No. 15-3093, 2016 WL 4440508 (7th Cir. Aug. 23, 2016) debtors proposed a plan to repay debts on their family farm under Chapter 12 of the Bankruptcy Code. Their appeal concerned a loan secured by a mortgage on the farm, and another loan secured by a junior lien on equipment and crops. Appellate court considered whether it had jurisdiction over a bankruptcy case, noting that “in bankruptcy cases this court has jurisdiction over appeals from “final decisions, judgments, orders, and decrees” of the district court. The appellate court reasoned that it had jurisdiction “when the district court affirms a final order of the bankruptcy court; not so when the district court remands a case.” The court dismissed debtor’s appeal, concluding that “remand is not final, and therefore is not appealable, unless only ministerial acts remain for the bankruptcy court.”

In IN RE: Vance Marion Bair & Debra Collier Bair, Debtors., No. CV 15-03488-DD, 2016 WL 4467859 (Bankr. D.S.C. Aug. 22, 2016), a Chapter 7 trustee obtained court order to sell debtor’s farm equipment “free and clear of liens.” Debtor sought to prevent trustee’s sale of the equipment under Federal Rule of Civil Procedure 60(b). Court found “numerous inconsistencies in the record regarding the ownership of the various items of farm equipment,” and ruled debtor did not establish a basis for relief under FRCP 60(b). Court granted trustee’s motion to sell the equipment free and clear of liens.

Food Labeling Marentette v. Abbott Labs., Inc., No. 15CV2837PKCRLM, 2016 WL 4444787 (E.D.N.Y. Aug. 23, 2016) concerned a class action claiming defendant misled consumers about ingredients of their baby formula. Plaintiffs alleged defendant claimed their products were “organic,” but also contained many ingredients prohibited by USDA in organic products. Defendant moved to dismiss claiming plaintiffs’ suit was preempted by the Organic Foods Production Act of 1990 (OFPA). Court observed that “the question before the Court is whether Plaintiffs’ State law claims, which seek to impose liability on Defendant for an allegedly misleading representation that is permitted by a USDA-accredited agent, are preempted by the OFPA.” The court noted that “OFPA defines the precise term ‘Organic’ and does not simply set minimum standards for that label, such that any product that meets all of the criteria set by the USDA for that term cannot be challenged as mislabeled or as violating any State law regarding truth in labeling with respect to that term.”  Court found that plaintiffs’ claim that the organic-certified Products are falsely labeled “amounts to a challenge to the USDA certification itself, and is therefore preempted.” Defendant’s motion to dismiss granted.

In Labor Espinoza v. W. Coast Tomato Growers, LLC, No. 14-CV-2984 W (KSC), 2016 WL 4468175 (S.D. Cal. Aug. 24, 2016), defendant employed plaintiffs as tomato packers, sorters, and field workers and plaintiffs’ claimed defendant did not pay overtime wages due, among other allegations. Defendant moved for summary judgment and attempted to distinguish between tomato packers and tomato sorters, claiming it had “no obligation to pay the AEWR (Adverse Effect Wage Rates) for one type of worker so long as it did not hire H-2A workers of that particular type during the relevant time frame.” Court reasoned there was “a genuine dispute as to whether tomato packers and tomato sorters are similarly employed,” and noted that “If tomato sorters and tomato packers are interchangeable from a practical standpoint, an employer could save money simply by dividing its unskilled agricultural workforce.” Court concluded this would “circumvent the AEWR and the purpose of the H-2A program.” Defendant’s motion for summary judgment denied on this issue.


LEGISLATIVE:

H.R. 767: Fair Beer Act. Bill would eliminate excise tax for over 90 percent of beer distributors.


REGULATORY: Includes OAO, APHIS, FSA, FDA, FSIS, FAS, FS, NIFA, and NOAA rules and notices.

ADVOCACY AND OUTREACH OFFICE: Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: USDA/1994 Tribal Scholars Program. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS wants to amend regulations concerning the importation of fruits and vegetables to allow importation of fresh persimmons from New Zealand into the United States. Details here.

Rule APHIS wants to amend the regulations concerning the importation of fruits and vegetables to allow importation of fresh raspberry fruit from Morocco into the United States. Info here.

Rule APHIS is reopening comment period for proposed rule amending the fruits and vegetables regulations to list lemon from Chile as eligible for importation into the United States subject to a systems approach. Details here.

FARM SERVICE AGENCY: Notice USDA has submitted the following information collection requirement(s) to OMB for review and clearance. Title: On-line Registration for FSA-Hosted Events and Conferences. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS announces its intention to renew the approved information collection regarding the voluntary cooperative interstate shipment program. Details here.

FOREIGN AGRICULTURAL SERVICE: Notice announcing the revised appendices for Dairy Tariff- Rate Import Quota Licensing for the 2016 quota year reflecting the cumulative annual transfers from Appendix 1 to Appendix 2 for certain dairy product import licenses permanently surrendered by licensees or revoked by the Licensing Authority. Info here.

FOREST SERVICE:

Notice The Willamette National Forest is proposing recreation fees at six recreation sites. Details here.

Notice the Inyo, Plumas, and Stanislaus National Forests intend to prepare an Environmental Impact Statement to evaluate a proposed land exchange pursuant to section 206 of FLPMA, 43 U.S.C. 1716, and by this notice, announce the beginning of the scoping process to solicit comments and identify issues. Info here.

Notice FS will prepare a Supplemental Environmental Impact Statement to update the Pack and Saddle Stock Outfitter-Guide Special Use Permit Issuance Final Environmental Impact Statement. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Rule NIFA is publishing as a final rule a revision to the general administrative guidelines applicable to the Agriculture and Food Research Initiative competitive grant program. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NOAA partially approves Framework Adjustment 9 to the Monkfish Fishery Management Plan. Info here.

Rule announcing a 90-day finding on a petition to list the chambered nautilus as a threatened species or an endangered species under the Endangered Species Act. Info here.