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


ANNOUNCEMENT: 

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes insurance, labor, PACA, and secured transactions issues.

MONTEREY INSURANCE COMPANY, Plaintiff and Appellant, v. PEERLESS INDEMNITY INSURANCE COMPANY, Defendant and Respondent, D072539, 2018 WL 3598848 (Cal. Ct. App. July 27, 2018) involved an insurance policy dispute after third party was injured in a tractor-trailer mishap. Third party’s (Deleon) auto was covered by plaintiff’s insurance policy and tractor-trailor was covered by defendant’s policy. Here, the tractor-trailer was fully loaded and third party was injured while retarping a haystack. Lower court ruled for defendant after finding the third party was not covered by defendant’s policy. On appeal, court considered the “use” of a vehicle and observed that the tractor-trailer “played no role in Deleon’s injuries,” as the trailer was “completely loaded without Deleon suffering his injury.” Court affirmed lower court ruling after finding defendant had no duty to indemnify.

In JUAN CARLOS LOPEZ, CARLOS VILLEGAS, HECTOR LUCIANO RODRIGUEZ, FRANCO MONROUREAU, JUAN MIGUEL CAMARERO, JOEL ALMESTICA, EFRAIN GARCIA, ANGEL RODRIGUEZ, EDWIN BAEZ-TORRES, ORLANDO ACETTY-BERMUDEZ, WILSON TORRES RIVERA, JUAN ALBERTO VARGAS, JOSE MORALES-DIAZ, LUIS ALBERTO AYALA-DIAZ, and BETHZAIDA SIERRA GONZALEZ, as Successor-in-interest of the Estate of GABRIEL COTTO, Plaintiffs, v. MANZANA LLC, LAWRENCE WILLIAMS, and RONALD RASCH FARMS, LLC, Defendants, NO. 3:17-01154-WGY, 2018 WL 3602382 (D.P.R. July 25, 2018), a group of migrant agricultural workers from Puerto Rica alleged violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA). Defendants moved for dismissal based on lack of personal jurisdiction. Issue was whether defendant Manzana acted as an agent for defendant Rasch Farms in recruiting the plaintiffs. Plaintiffs claimed Rasch Farms owned the apple orchards at issue and “’utilized’ Manzana as a farm labor contractor and ‘compensated [Manzana] to perform farm labor activities.’” Court considered evidence relative to the H2-A program and concluded that “[t]he mere provision of an address, or letter of commitment, to be included in a clearance order containing myriad other addresses . . . does not suffice to subject Rasch Farms to this Court’s personal jurisdiction.” Defendant’s motion granted.

BRIGHT HARVEST SWEET POTATO CO., Plaintiff v. IDAHO-FRANK ASSOCIATES, INC. and Mark Lyons, Defendants, No. 2:18-CV-2072, 2018 WL 3594995 (W.D. Ark. July 26, 2018) involved a Perishable Agricultural Commodities Act (PACA) dispute wherein plaintiff claimed it sold wholesale produce to Defendant and defendant “failed to pay for the produce.”  Defendant moved to dismiss and argued that plaintiff failed to “state any factual basis for its conclusion that Defendant IFA is a ‘dealer.’ ” Issue was whether defendant could be considered a “dealer” per PACA. Court observed plaintiff’s complaint stated that “[b]etween on or about September 8, 2017 and September 25, 2017 plaintiff, Bright Harvest, sold and delivered to the defendant, IFA, wholesale quantities of produce in the aggregate principal amount of $349,675.00.” Court concluded plaintiff “has pleaded factual content that allows the Court to draw the reasonable inference that Defendant IFA is a dealer under PACA.” Defendant’s motion to dismiss denied.

In NORTHWEST BANK, AKA Northwest Savings Bank, a Pennsylvania state-charted savings association, Plaintiff-Appellant, v. MCKEE FAMILY FARMS, LLC, an Oregon limited liability company; et al., Defendants-Appellees, No. 16-35879, 2018 WL 3598828 (9th Cir. July 27, 2018), Bank appealed after court declared it had no security interest in some radish and ryegrass seed crops. Bank contended its security interest was due to a third party’s (CCS) ownership of the crops in question. Bank maintained a license agreement between the CCS and defendants established “ownership” by CCS. Court observed that when the security agreement was executed by the parties, “the seed crops were still in the ground,” and that CCS “never acquired the harvested crop, either directly or through an agent.” Affirmed.


LEGISLATIVE:

H.R. 6545: To reauthorize the Violence Against Women Act of 1994. Referred to the House Committee on Education and the Workforce, House Committee on Energy and Commerce, and 4 other committees.

H.R. 6599: To modify the application of temporary limited appointment regulations to the National Park Service. Referred to the House Committee on Natural Resources.

H.R. 6583: To authorize the Secretary of the Interior to convey certain lands and facilities of the Big Sand Wash Project, Utah. Referred to the House Committee on Natural Resources.

H.R. 4645: East Rosebud Wild and Scenic Rivers Act. Text for status Passed Congress (Jul 27, 2018).

S. 3287: A bill to establish the Camp Nelson Heritage National Monument in the State of Kentucky as a unit of the National Park System. Referred to the Senate Committee on Energy and Natural Resources.

S. 3292: A bill to amend the Forest and Rangeland Renewable Resources Planning Act of 1974 to modify a provision relating to certain consultation requirements. Referred to the Senate Committee on Environment and Public Works.


REGULATORY: Includes USDA, EPA, FWS, FSIS, FS, ITA, NIFA, and NOAA rules and notices. 

AGRICULTURE DEPARTMENT:

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Pale Cyst Nematode. Info here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Request for Administrative Review. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a September 7, 2017, request by the Indiana Department of Environmental Management (IDEM) to revise the Indiana state implementation plan (SIP) for ozone. Info here.

Rule EPA is approving elements of a state implementation plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) relating to Prevention of Significant Deterioration (PSD) for the 1997 ozone, 1997 fine particulate. Details here.

Rule is approving a revision to the regional haze State Implementation Plan (SIP) submitted by Washington on November 6, 2017. Details here.

Rule EPA is proposing to approve several State Implementation Plan (SIP) revisions submitted by the State of New Jersey for purposes of implementing Reasonably Available Control Technology (RACT) for the 2008 8-hour ozone National Ambient Air Quality Standard. Info here.

Rule EPA proposes to approve, and incorporate by reference, specific changes to the Oregon State Implementation Plan as it applies in Lane County, Oregon. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS determines endangered species status under the Endangered Species Act of 1973, as amended, for the following five tarantula species from Sri Lanka: Poecilotheria fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata. Info here.

Notice FWS received applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened species under the Endangered Species Act of 1973, as amended. Details here.

Notice FWS seeks comment on the following applications for a permit to conduct activities intended to recover and enhance endangered species survival. Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Rule FSIS is proposing to amend the Federal meat inspection regulations to eliminate the requirement that livestock carcasses be marked with the official inspection legend at the time of inspection in a slaughter establishment, if the carcasses are to be further processed in the same establishment. Info here.

Rule FSIS is proposing to amend the Federal meat and poultry products inspection regulations to eliminate prescriptive requirements governing the manufacture of uninspected products, such as pet food, in edible product areas of official establishments and to allow official establishments to manufacture such products outside the hours of inspection. Details here.

FOREST SERVICE: Notice that on September 26, 2017 the Under Secretary of Natural Resources and the Environment created the Divided Mountain Unit. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice that on May 24, 2018, the United States Court of International Trade (Court) issued final judgments in An Giang Fisheries Import and Export Joint Stock Company et al. v. United States, Consol. Court No. 14-00109, sustaining the Department of Commerce’s remand results for the ninth administrative review of the antidumping duty order on certain frozen fish fillets from Vietnam. Info here.

Notice that on May 24, 2018, the United States Court of International Trade issued final judgments in Vinh Hoan Corporation et al. v. United States, Consol. Court No. 13-00156, sustaining the Department of Commerce’s remand results for the eighth administrative review of the antidumping duty order on certain frozen fish fillets from Vietnam. Details here.

Notice the Department of Commerce is rescinding the administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand for the period February 1, 2017, through January 31, 2018. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA request approval for an extension of the currently approved information collection for the NIFA proposal review process. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is issuing regulations under the Marine Mammal Protection Act for the taking of marine mammals incidental to the pier construction activities conducted at the Naval Submarine Base New London in Groton, Connecticut, over the course of five years (2020-2025). Info here.

Notice NOAA announces the release of the Lower Duwamish River Injury Assessment Plan. Details here.