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, PACA, FDA, CWA, SNAP, and environmental issues.

In MEYER NATURAL FOODS, LLC and CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Plaintiffs, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant, 8:15-CV-3116, 2016 WL 6902488 (D. Neb. Nov. 22, 2016), plaintiff entered into a processing agreement with Greater Omaha Packing for purchase of beef. Omaha Packing supplied plaintiff with beef contaminated with E. coli. Plaintiff sued for damages and Omaha Packing had insurance policy with defendant. Plaintiff maintained beef was contaminated while in Omaha Packing’s possession and was covered under the “personal property of others” provision of insurance policy. Defendant argued insurance policy did not cover damage from E. coli. Court considered various definitions of “contamination” and eventually found “it is the ‘contamination exclusion’—not the ‘pollution exclusion’—which governs the outcome of this dispute. And under the plain and ordinary meaning of the contamination exclusion, it clearly applies to these facts.” Defendant’s motion for judgment on the pleadings granted.

In Baker Packing Co., Plaintiff, v. Andrews Farming, Inc., et al., Defendants, No. 7:16CV00149, 2016 WL 6915289 (W.D. Virginia Nov. 23, 2016), plaintiff sued defendant under Perishable Agricultural Commodities Act (PACA). Third party alleged defendant’s CEO was liable for payment and moved to intervene. Critical issue was “whether PACA imposes personal liability on corporate officers, principals, or directors, to the extent that they control the trust assets.” Court found common question of law that third party shared with original action and granted their motion to intervene.

Seaside Farm, Inc., Plaintiff-Appellant, v. United States of America, Defendant-Appellee, No. 15-2562, 2016 WL 7030629 (4th Cir. Dec. 2, 2016) involved a Federal Tort Claims Act (FTCA) suit by a tomato farmer. Plaintiff claimed FDA negligently issued a contamination warning after a salmonella outbreak that devalued plaintiff’s crop by $15M. District court held FDA “exercised a discretionary function” with the contamination warning and dismissed the case. Appellate court affirmed for FDA, noting that lower court ruling “was essential to protect FDA’s vital role in safeguarding the public food supply.”

In In the Matter of the Decision to Deny the Petitions for a Contested Case Hearing and to Submit the Draft LITTLE ROCK CREEK Dissolved Oxygen, Nitrate, Temperature, and Fish Bioassessment Total Maximum Daily Load Study to the U.S. Environmental Protection Agency for Approval, No. A16–0123, 2016 WL 6923602 (D. Minn. Nov. 28, 2016), landowners appealed ruling by the Minnesota Pollution Control Agency (MPCA) to submit a Total Maximum Daily Load (TMDL) study of a watershed area to the EPA for approval under the Clean Water Act (CWA). Landowners claimed they were denied a proper hearing and MPCA argued landowners lacked standing and that their ruling was supported by the record. Appellate court affirmed, agreeing with MPCA’s reasoning that “hearings were unnecessary because [landowners’] petitions asserted questions of law or policy, as opposed to questions of fact.”

In ARGUS LEADER MEDIA, d/b/a Argus Leader Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, 4:11-CV-04121-KES, 2016 WL 6998623 (D.S.D. Nov. 11, 2016), plaintiff sued under the Freedom of Information Act (FOIA) seeking data on the Supplemental Nutrition Assistance Program (SNAP). USDA opposed releasing the data based on FOIA Exemption 4, arguing disclosure “would cause substantial competitive harm to grocery stores participating in SNAP.” Court agreed with plaintiff and found the “data should be disclosed under FOIA.”

In Delaware Riverkeeper Network, et al., Plaintiffs, v. Soil Safe, Inc., Defendant, Civil No. 14-1349, 2016 WL 7013457 (D.N.J. Nov. 30, 2016), defendant claims to recycle soil for structural fill. Plaintiff sued under Resource Conservation and Recovery Act (RCRA) claiming defendant does not “recycle soil it receives” and “disposes of contaminated soil . . . in the name of remediation only.” Court considered definitions of “solid waste” and found that “recycled, petroleum-laced soil that has undergone proper review and testing . . . is not solid waste when applied for purposes of remediation.” Despite this finding, court acknowledged that “an inference arises that Soil Safe does nothing to the soil to remediate it and that its true purpose in placing it on the County Park Site is simply to abandon polluted soil and not remediate.” Defendant’s motion for summary judgement denied.


REGULATORY: Includes AMS, EPA, FWS, FDA, FS, OIG, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule updates reporting requirements associated with the fruit, vegetable, and specialty crop import regulations for commodities regulated under section 608(e) of the Agricultural Marketing Agreement Act of 1937. Info here.

Rule would change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act. Info here.

Notice announces availability of final guidance intended for use by accredited certifying agents and other organic industry stakeholders. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of oxathiapiprolin in or on multiple commodities which are identified and discussed later in this document. Details here.

Rule establishes a tolerance for residues of tau-fluvalinate in or on wine grapes. Info here.

Rule notifying public per FIFRA that the EPA Administrator has forwarded to the USDA a draft regulatory document concerning removal of obsolete information. Details here.

FISH AND WILDLIFE SERVICE:

Rule correcting an earlier document in the Federal Register announcing 90-day findings on three petitions to list or reclassify wildlife or plants under the Endangered Species Act of 1973. Info here.

Notice seeking comment on applications to conduct activities with endangered species. Details here.

FOOD AND DRUG ADMINISTRATIONNotice announcing availability of a revised Compliance Policy Guide entitled “Extralabel Use of Medicated Feeds for Minor Species.” Details here.

FOREST SERVICE: Notice the Lyon-Mineral Resource Advisory Committee will meet in Yerington, Nevada. Details here.

INSPECTOR GENERAL OFFICE: Notice that on November 9, 2016, USDA Inspector General Phyllis K. Fong issued IG-1313, Change 8, Succession, Delegations of Authority, and Signature Authorities. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce is conducting an administrative review of the Agreement Suspending the Antidumping Duty Investigation of Sugar from Mexico for the period December 19, 2014, through November 30, 2015. Details here.

Notice Department of Commerce is conducting an administrative review of the Agreement Suspending the Countervailing Duty Investigation of Sugar from Mexico for the period December 19, 2014, through December 31, 2015. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice of decision and availability of decision documents on the issuance of six ESA section 10(a)(1)(A) research/enhancement permits for take of threatened species. Details here.

Notice of determination and availability of analysis documents on ten hatchery programs rearing salmon and steelhead in Hood Canal, Puget Sound, Washington State. Info here.