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 food safety, workers’ compensation, and landowner liability issues.

In DA’SHAWN S. VERRETT v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA AND STRATEGIC RESTAURANTS ACQUISITION COMPANY, L.L.C. D/B/A BURGER KING RESTAURANT NO. 11614, NO. 16-CA-229, 2016 WL 7132201 (La. Ct. App. Dec. 7, 2016), plaintiff found a bug in her Sprite drink from Burger King and became nauseous. She grew sick, missed school and eventually lost her financial aid due to bad grades. Court found “no proof that the food was deleterious” and ruled for defendant. On appeal, plaintiff argued three facts “remained in dispute: (1) whether the insect rendered the food deleterious; (2) the cause of her injuries; and (3) the incubation period for food-borne illness.” The court reasoned that “duty-risk analysis in negligence claims governs deleterious food cases,” and noted that “in proving that deleterious food caused injuries, Louisiana courts have generally required actual consumption.” Plaintiff could not prove “cause-in-fact” and court affirmed summary judgement for defendant.

In JUSTIN JOLIBOIX v. CAJUN COMFORT, INC. AND STONETRUST COMMERCIAL INSURANCE COMPANY, NO. 16-CA-414, 2016 WL 7132293 (La. Ct. App. Dec. 7, 2016), plaintiff filed workers’ compensation claim against his employer seeking benefits for injury sustained during alleged company sponsored fishing trip. Defendants claimed plaintiff was not in the “course and scope of his employment” at time of the accident and were granted motion for summary judgment. Appellate court observed three situations where employer-sponsored recreational activities will be considered as being “within the course of employment: (1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.” Court noted there was “conflicting evidence regarding the extent to which Claimant’s participation in the fishing trip was expected,” and that “company vehicles were used to travel to the event and the company paid for the gas and related insurance.” Summary judgment for defendant reversed.

Sean SCHMIT, Plaintiff–Appellant, v. Marcy METCALF and Michelle R. Schnabel, d/b/a/ A Walk in the Park Pet Sitters; Lance R. Smalarz; and Jacquelyn E. Smalarz, Defendants–Appellees (Lance R. Smalarz and Jacquelyn E. Smalarz, Defendants–Third–Party Plaintiffs, The Pooper Scoopers Inc., Third–Party Defendant), No. 2–15–1040, 2016 IL App (2d) 151040-U (Ill. App. Ct. Dec. 2, 2016) involved Illinois’ Animal Control Act. Plaintiff was injured when a dog walker hired by defendants let defendants’ dogs outside. Lower court ruled for defendants and found that plaintiff assumed the risk and that the homeowner defendants were not “owners” of the dog for purposes of the Animal Control Act. Court found there were questions of fact as to “whether plaintiff assumed the risk, whether the defendant homeowners exercised control of the dogs such that they could be liable under the Act, and whether defendants knew of the dogs’ dangerous propensities for purposes of negligence.” Summary judgment for defendant reversed.


LEGISLATIVE:

S. Res. 632: A resolution supporting a transition to 100 percent clean, renewable energy to help consumers, support the economy and national security of the United States, and avoid the worst impacts of climate change. Resolution referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. Edward “Ed” Markey [D-MA].

S. 3533: A bill to amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and the Federal Land Policy and Management Act of 1976 to discourage litigation against the Forest Service and the Bureau of Land Management.  Bill referred to the Senate Committee on Environment and Public Works. Sponsor: Sen. Steve Daines [R-MT].

H.R. 6448: To establish the National Wildlife Corridors System to provide for the protection and restoration of native fish, wildlife, and plant species and their habitats in the United States that have been diminished by habitat loss. Bill referred to the House Committee on Agriculture, House Committee on Armed Services, and 2 other committees. Sponsor: Rep. Donald Beyer [D-VA8].

H.R. 6475: To remove reversionary clauses on property owned by the municipality of Anchorage, Alaska. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Don Young [R-AK0]

H.R. 6452: Ensuring Access to Pacific Fisheries Act. Bill referred to the House Committee on Natural Resources and House Committee on Science, Space, and Technology. Sponsor: Rep. Aumua Amata [R-AS0].

H.R. 2028: Energy and Water Development and Related Agencies Appropriations Act, 2017. Bill’s text for status passed the House with an Amendment (Dec 8, 2016) and is now available.

H.R. 3094: Gulf States Red Snapper Management Authority Act. Bill’s text for status reported by House Committee (Dec 8, 2016) and is now available.

H.Res. 949: Providing for consideration of the Senate amendment to the bill (H.R. 2028) making appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2016. Passed 235/180

H.R. 2028: Energy and Water Development and Related Agencies Appropriations Act, 2017. Passed 326/96


REGULATORY: Includes USDA, CCC, EPA, FSA, FWS, FDA, FS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Feral Swine Survey. Details here.

COMMODITY CREDIT CORPORATION: Notice FSA and CCC request comments on a revision and extension of a currently approved information collection request. FSA and CCC issue invitations to purchase or sell and transport commodities. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule amends provisions in the Greenhouse Gas Reporting Rule to streamline and improve implementation of the rule. Details here.

Rule EPA revises regulations governing regulated small municipal separate storm sewer system permits to respond to a remand from the United States Court of Appeals for the Ninth Circuit. Info here.

Rule EPA proposes amendments to the National Emission Standards for Hazardous Air Pollutants for the Phosphoric Acid Manufacturing and Phosphate Fertilizer Production source categories. Details here.

FARM SERVICE AGENCY: Notice FSA and CCC request comments on a revision and extension of a currently approved information collection request. FSA and CCC issue invitations to purchase or sell and transport commodities. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS has developed a draft environmental impact statement addressing an amendment to the 1997 WDNR Habitat Conservation Plan covering implementation of a conservation strategy for the marbled murrelet. Info here.

Notice FWS prepared a final environmental impact statement in response to an application from Power Company of Wyoming for eagle take permits. Details here.

Notice FWS announces availability of a final comprehensive conservation plan and environmental impact statement for Lower Klamath, Clear Lake, Tule Lake, Upper Klamath, and Bear Valley National Wildlife Refuges. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces availability of a draft guidance for industry entitled “Preparation of Food Contact Notifications for Food Contact Substances in Contact with Infant Formula and/or Human Milk.” Details here.

FOREST SERVICE: Notice the Tahoe National Forest proposes a new recreation fee for the Sardine Lookout, made available as an overnight rental. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is conducting the 21st administrative review of the antidumping duty order on fresh garlic from China, covering the period of review November 1, 2014, through October 31, 2015. Info here.

Notice that on August 5, 2016, the Department of Commerce published results of the administrative review of the antidumping duty order on monosodium glutamate (MSG) from China. Details here.

NATIONAL OCEANIC AND ATMOSPHEREIC ADMINISTRATION:

Rule NMFS announces that New Jersey is transferring a portion of its 2016 commercial summer flounder quota to the Commonwealth of Virginia. Info here.

Rule establishes permitting, reporting and recordkeeping procedures relating to the importation of certain fish and fish products, identified as being at particular risk of illegal, unreported, and unregulated fishing or seafood fraud. Details here.

Notice NMFS has approved five companies to provide at-sea monitoring services to Northeast multispecies sectors in fishing years 2017 and 2018. Details here.