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 contract, OSHA and water rights issues.

In Cooperativa Agraria Indus. Naranjillo Ltda. v. Transmar Commodity Grp. Ltd., No. 16 CIV. 3356 (LLS), 2016 WL 5334984 (S.D.N.Y. Sept. 22, 2016), plaintiff and defendant entered into contracts under which plaintiff was to deliver some Peruvian cocoa butter to defendant, a member of the Cocoa Merchants Association of America (CMAA). Plaintiff never delivered cocoa butter and defendant was awarded damages, per a CMAA contract arbitration clause. Plaintiff claimed they never consented to arbitration agreement. Court observed that, “No copy of the CMAA Standard Contract 2-A was furnished to [plaintiff] at or before the time of execution of the cocoa butter contracts,” and concluded that “the incorporation of the arbitration clauses was never effectively accomplished. There was no knowing or implied agreement to arbitrate.” Defendant’s award vacated.

AGRICULTURAL RETAILERS ASSOCIATION AND THE FERTILIZER INSTITUTE, PETITIONERS v. UNITED STATES DEPARTMENT OF LABOR AND OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, RESPONDENTS, No. 15-1326, 2016 WL 5315200 (D.C. Cir. Sept. 23, 2016) concerned OSHA’s 1992 Process Safety Management Standard protecting the safety of persons working “with or near highly hazardous chemicals.” The standard has exempted retail facilities from its requirements on belief that retail settings involve “diminished risks of a substantial release of toxic chemicals.” After a chemical explosion at a Texas fertilizer company (an “exempt retail facility”), OSHA narrowed the scope of the retail-facility exemption and at issue was whether, “when OSHA narrowed the scope of the exemption for retail facilities, the agency issued a safety ‘standard’ within the meaning of the Occupational Safety and Health Act (OSH Act).” Court concluded that OSHA’s “narrowing of the substantive scope of the exemption for retail facilities qualified as issuance of a ‘standard.’” The court further determined that “OSHA was required to adhere to notice-and-comment procedures” and vacated OSHA’s action.

State Eng’r of New Mexico, v. Diamond K Bar Ranch, LLC, No. S-1-SC-35446, 2016 WL 5266657 (N.M. Sept. 22, 2016) involved an appeal addressing the New Mexico State Engineer’s regulatory authority over use of surface water in New Mexico. In this case, water was diverted from the Animas River into an acequia in Colorado and accessed by defendants. Defendants claimed State Engineer lacked statutory authority over waters “initially diverted outside of New Mexico” and had no jurisdiction to enjoin them from “irrigating an area of farmland not subject to an existing adjudicated water right or a permit from the State Engineer.” Court held State Engineer is authorized by New Mexico law to “require a permit for new, expanded, or modified use of this water and to enjoin any unlawful diversion.”

LEGISLATIVE: 

H.R. 564: Endangered Salmon and Fisheries Predation Prevention Act. Ordered to be Reported (Amended) by the Yeas and Nays: 17 – 13.

H.R. 5303: Water Resources Development Act of 2016. Bill’s text for status Reported by House Committee (Sep 22, 2016) is now available.

H.R. 5780: Utah Public Lands Initiative Act. Ordered to be Reported (Amended) by the Yeas and Nays: 21 – 13.

H.R. 6155: To amend the Wilderness Act to ensure access to wilderness areas by Federal, State, and local emergency response personnel during an emergency. Bill referred to the House Committee on Agriculture and House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Mark Meadows [R-NC11]

H.R. 6129: To designate the Frank Moore Wild Steelhead Sanctuary in the State of Oregon. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to House. Sponsor: Rep. Peter DeFazio [D-OR4].

H.Res. 882: Encouraging the observance of the week beginning on October 9, 2016, as “National Wildlife Refuge Week”. Resolution referred to the House Committee on Natural Resources which will consider it before sending it to House. Sponsor: Rep. Mike Thompson [D-CA5].

H.R. 6156: To amend the Wilderness Act and the Federal Land Policy and Management Act of 1976 to require the management of a wilderness study area, not designated by statute, under the jurisdiction of the Forest Service or the Bureau of Land Management. Bill referred to the House Committee on Agriculture and House Committee on Natural Resources which will consider it before sending it to House. Sponsor: Rep. Mark Meadows [R-NC11]

H.R. 2494: Eliminate, Neutralize, and Disrupt Wildlife Trafficking Act of 2016. Bill’s text for status Passed Congress/Enrolled Bill (Sep 23, 2016) now available.

REGULATORY: Includes EPA, FNS and FS rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule ameding tolerances for residues of fluopicolide in or on potato, processed potato waste and vegetable, tuberous and corm, subgroup 1C and establishes a tolerance for residues of fluopicolide in or on potato, granules/flakes. Valent U.S.A. Corporation requested these tolerances under the FFDCA. Info here.

Rule in section 518(e) of the Clean Water Act, Congress authorized EPA to treat eligible federally recognized Indian tribes in a similar manner as a state for purposes of administering section 303 and certain other provisions of the CWA. Details here.

FOOD AND NUTRITION SERVICE: Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Child and Adult Care Food Program. Info here.

FOREST SERVICE:

Rule FS is implementing regulations under the Food, Conservation, and Energy Act of 2008. Details here.

Notice FS is withdrawing the Notice of Intent to prepare an Environmental Impact Statement for the Warm Spring Habitat Enhancement project on the Helena-Lewis and Clark National Forest. Info here.

Notice Deschutes Provincial Advisory Committee will meet in Prineville, Oregon. Info here.

Notice USDA seeks nominations for the Forest Resource Coordinating Committee pursuant to Section 8005 of the Food, Conservation, and Energy Act of 2008, and the Federal Advisory Committee Act. Info here.