A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
JUDICIAL: Includes food safety, CWA, and crop insurance issues.
SUSIE ONG, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., M. STEVEN ELLS, MONTGOMERY F. MORAN, and JOHN R. HARTUNG, Defendants, 16 Civ. 141 (KPF), 2018 WL 1441373 (S.D. N.Y. March 22, 2018) concerned a class-action suit against Chipotle after the company’s stock price declined following food-borne illness outbreaks linked to its restaurants. Plaintiffs brought securities fraud claims and argued Chipotle’s “failure to disclose certain granular details and attendant risks of its produce-processing and food-safety procedures” resulted in the stock price decline. Court reasoned that the defendants “made no statements triggering a duty to disclose Chipotle’s inability to trace an item of produce to its supplier, and such information would not have struck a reasonable investor as particularly important given the information that Chipotle did provide regarding its produce supply chain.” Court concluded plaintiffs failed to “adequately” plead securities fraud.
In David BENHAM, Plaintiff–Appellee, v. OZARK MATERIALS RIVER ROCK, LLC, Defendant–Appellant, No. 17-5069, 2018 WL 1414897 (10th Cir. March 22, 2018), plaintiff filed citizen suit against a mining company for violation of Clean Water Act (CWA) based on the company’s “discharge, without permit, of dredge or fill material into navigable waters that disturbed more than one-half acre of wetland.” Lower court found that company violated CWA and approved citizen’s proposed restoration plan and Company appealed. Company arguied plaintiff cannot bring a citizen suit “because the Army Corps of Engineers is primarily responsible for the enforcement of the CWA.” Appellate court concluded because the Corps “was not diligently prosecuting an enforcement action . . . [plaintiff] was entitled to bring his citizen suit.” Affirmed.
DERWOOD STEWART v. ARMTECH INSURANCE SERVICE, INC., No. M2017-01299-COA-R3-CV, 2018 WL 1410739 (Tenn. Ct. App. March 21, 2018) involved a farmer’s claim for losses under the federal crop insurance program. An arbitrator found the contract between the farmer and his insurance company was void, per the Federal Crop Insurance Act, and the insurance company recovered the amount paid on the claim. Trial court confirmed arbitration award after plaintiff “was retroactively determined to be ineligible to participate in the program for failure to pay the premium.” Plaintiff appealed, arguing that “the arbitrator exceeded his power by awarding defendant a judgment under federal law where federal law did not confer defendant the right to a judgment.” Appellate court concluded arbitrator’s ruling “was in accordance with the regulations applicable to the crop insurance program and the insurance contract.” Affirmed.
LEGISLATIVE:
H.R. 835: To update the map of, and modify the maximum acreage available for inclusion in, the Florissant Fossil Beds National Monument. Text for status Passed the House (Mar 19, 2018) is now available.
S. 2573: A bill to amend the Consolidated Farm and Rural Development Act to reauthorize the appropriate technology transfer for rural areas program. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
H.R. 5338: To amend the Food and Nutrition Act of 2008 to repeal authority to make bonus payments to States based on performance. Referred to the House Committee on Agriculture.
H.R. 5350: To amend the Consolidated Farm and Rural Development Act to authorize the Secretary of Agriculture to award grants to benefit the Appalachia region. Referred to the House Committee on Agriculture and House Committee on Education and the Workforce.
H.R. 5347: To facilitate resolution of environmental remediation and reclamation, resolve potential liability of the United States, and promote economic development in Lyon County, Nevada. Referred to the House Committee on Natural Resources.
REGULATORY: Includes USDA, EPA, FDA, FS, and NOAA rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Waivers Under Section 6(o) of the Food and Nutrition Act. Info here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is approving a new state plan submitted by the Colorado Department of Public Health and Environment (CDPHE) for the regulation of existing commercial and industrial solid waste incineration (CISWI) units within the jurisdiction of the State of Colorado. Info here.
Rule EPA s taking final action to approve certain elements of Iowa’s 2013 State Implementation Plan (SIP) submission, and a 2017 amendment to that submission, for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard. Info here.
Rule EPA is taking final action to approve certain elements of a 2013 State Implementation Plan (SIP) submission from the State of Iowa for the 2010 Sulfur Dioxide National Ambient Air Quality Standard. Info here.
Rule EPA is taking final action to approve certain elements of a 2015 State Implementation Plan (SIP) submission from the State of Iowa for the 2012 Particulate Matter National Ambient Air Quality Standard. Details here.
Rule EPA is taking final action to approve elements of a State Implementation Plan (SIP) submission from the State of Missouri for the 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide, and 2012 Fine Particulate Matter National Ambient Air Quality Standards. Details here.
Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of New Mexico to address the requirements of section 110(a)(1) and (2) of the Clean Air Act for the 2012 fine particulate matter National Ambient Air Quality Standard (NAAQS). Details here.
Rule EPA Region 9 announces the deletion of the surface soil portion of the Pacific Coast Pipe Lines (PCPL) Superfund Site (Site) located in Fillmore, California, from the National Priorities List (NPL). Details here.
Rule EPA is proposing to approve revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma designee with a letter dated February 14, 2017. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA is announcing the availability of a guidance for industry entitled “Application of the Foreign Supplier Verification Program Regulations to the Importation of Live Animals: Guidance for Industry.” The purpose of this document is to state FDA’s intent to exercise enforcement discretion regarding application of the regulation on foreign supplier verification programs (FSVPs) to importers of certain live animals. Info here.
Notice FDA is announcing the availability of a draft guidance for industry (GFI) #255 entitled “Elemental Impurities in Animal Drug Products–Questions and Answers.” Info here.
FOREST SERVICE:
Notice the Eastern Region Recreation Resource Advisory Committee (Recreation RAC) will meet in Baltimore, Maryland. Details here.
Notice the Rogue-Umpqua Resource Advisory Committee (RAC) will meet in Roseburg, Oregon. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska (GOA). Info here.
Rule the North Pacific Fishery Management Council submitted Amendment 117 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 106 to the Fishery Management Plan for Groundfish of the Gulf of Alaska to the Secretary of Commerce for review. Info here.
Rule transfers unused quota of Southern New England/ Mid-Atlantic yellowtail flounder from the Atlantic sea scallop fishery to the Northeast multispecies fishery for the remainder of the 2017 fishing year. Details here.
Rule NMFS proposes to set 2018 recreational management measures for Gulf of Maine cod and haddock and Georges Bank cod. Details here.
Rule proposes approval of, and regulations to implement, Framework Adjustment 57 to the Northeast Multispecies Fishery Management Plan. Info here.