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Ohio State University Extension’s Agricultural & Resource Law Program will host the Sixth Annual Ohio Agricultural Law Conference on Friday May 16, 2014 at the Ohio 4-H Center. This year’s program features OSU’s Dr. Carl Zulauf discussing the new Farm Bill. Also on the schedule is a legislative update from Ohio Farm Bureau Federation’s Tony Seegers. Craig Vandervoort of Sitterly & Vandervoort Ltd. will present on Medicaid and nursing home planning for family farms. Robert Moore of Wright & Moore Law Co. will moderate a session featuring an OSU Extension Educator and an insurance agent on agri-tourism and direct marketing trends and liability. A roundtable discussion on guiding clients in today’s agricultural climate, moderated by Troy Callicoat of Barrett, Easterday, Cunningham and Eselgroth LLP, will wrap up the day.
A special highlight of this year’s conference is a bus tour of OSU’s Waterman Farm. The bus will then take conference attendees to the North Market in downtown Columbus for lunch and a discussion with North Market Farmers on legal issues and challenges they face. Law students interested in attending the conference may apply for student scholarships provided by the Paul L. Wright Agricultural Law Endowment Fund. Contact Caty Daniels at firstname.lastname@example.org for scholarship information. For more information and to register for the conference, visit www.regonline.com/OhioAgLaw.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.
The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR). ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.” The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.
How does the registry work?
ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop. The ODA defines sensitive crops as follows:
Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops. ODA will then verify the producer's information before it is available on the registry. Private and commercial pesticide applicators may also voluntarily register on the site. If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries. The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.
It is important to note that the information provided in the registry is not available to the general public. It is only available to those who have registered on OSCR and have been verified by ODA.
Implications for crop producers and pesticide applicators
The registry offers a good risk management tool to sensitive crop producers. By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts. One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.
Reduced drift impacts will also benefit pesticide applicators who use OSCR. However, the voluntary nature of the registry raises potential implications for pesticide applicators. What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool? Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered? Does the availability of the information create a new legal duty for pesticide applicators--a duty to take the additional step to identify nearby sensitive crops? Could an insurer refuse to cover an applicator who failed to consult the registry? Until Ohio courts receive and answer these legal questions, we don't have clear answers.
The caution to pesticide applicators, then, is to take the OSCR seriously. Don't overlook the registry because participation is "voluntary" rather than mandatory. The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.
To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.
The federal Occupational Safety & Health Administration (OSHA) generated controversy recently when several of its enforcement actions against farms with grain bin storage hit the news headlines. The enforcement actions are contrary to a general understanding in the agricultural community that OSHA does not have authority to enforce its regulations against farms with ten or fewer employees, referred to as the “small farms rider.” While claiming that it does not intend to enforce beyond its authority, OSHA justifies its actions in an internal agency memorandum that interprets the small farms rider. Is OSHA’s justification reasonable or contrary to law? Here’s the language of the small farms rider and OSHA’s explanation of its authority:
- The Small Farms Rider. The 2014 Consolidated Appropriations Act passed by Congress, like every previous appropriations bill since 1976, states that none of the funds appropriated by Congress to OSHA “shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees.” (emphasis added)
- OSHA's Memorandum. In its standard interpretation memorandum titled “Authority to Perform Enforcement Activities at Small Farms with Grain Storage Structures Involved in Postharvest Crop Activities” dated June 28, 2011, OSHA begins by acknowledging the small farms rider but then lays out several reasons why grain storage facilities, even if located on farms, do not fall under the rider and are not exempt from OSHA enforcement:
- The agency focuses on the small farm rider’s use of the term “farming operation” which, according to the agency’s prior interpretation, means “any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations.”
- Not included in the definition of “farming operations,” according to the agency, are those establishments engaged in performing services on crops subsequent to their harvest with the intent of preparing them for market or further processing, including activities such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling, corn drying and shelling, grain drying, cleaning, and fumigating. Why are these not considered farming operations? Because the North American Industrial Classification System (NAICS) and Standard Industrial Codes (SIC) differentiate agricultural businesses that conduct crop and livestock production from those that conduct post-production activities. Small farms with grain storage structures where grain is fumigated, dried, or processed subsequent to harvest and sold into the market would fall under the post-harvest NAICS codes rather than the agricultural production codes and therefore are not “farming operations” exempted by the small farms rider, states OSHA.
- The agency also notes that grain handling operations are not “core agricultural operations” according to OSHA’s federal regulations. These regulations state that “core agricultural operations” include activities such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock, poultry, fish and livestock products.
Ohio farms that complement their agritourism activities with inflatable "bounce houses" and slides for kids to play on will soon be subject to new safety standards proposed by the Ohio Department of Agriculture (ODA). Based on its authority to inspect "amusement rides," ODA is proposing the regulations to ensure public safety through minimum standards for the operation and use of inflatable devices.
Inflatables haven't always been subject to ODA's "amusement ride" oversight. The Ohio legislature amended the definition of "amusement rides" in 2011 to include "inflatable devices," which gave ODA the added responsibility of inspecting and permitting the bounce houses. The regulations now proposed by ODA will provide safety standards that operators must meet before receiving a permit to operate an inflatable.
According to the proposal, owners or operators of inflatable amusement devices:
- Shall have the manufacturer's specifications on hand and available for ODA at the time of an inspection.
- Shall not inflate a device with flammable gases.
- May vary from the manufacturer's operating instructions or make alterations to the inflatable's design, only by doing the following:
1) Obtaining written permission for the variance or alteration from the manufacturer;
2) Submitting the written permission from the manufacturer to the department for approval; and
3) Being reinspected by ODA to ensure compliance with the revised manufacturing instructions or specifications.
ODA seeks comments on the proposed safety standards by February 18, 2014; learn more by visiting here.
The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio. The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie. According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.
Here are answers to a few basic questions farmers might have about the proposed program:
When would the program begin? If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.
Who would have to be certified? Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator.
Would there be any exemptions from the program? Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement. The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”
What fertilizers would the program cover? Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers. The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.
What would the certification program involve? The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place). The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."
Would there be a certification fee? The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program. Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.
Other important provisions in Senate Bill 150 include:
Recordkeeping requirements. Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application. The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer. Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.
Emergency revocation and suspension powers. The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."
Voluntary Nutrient Management Plans. The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District. A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.
Legal Defense against Civil Actions. Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:
- The person is a certified fertilizer applicator or under the control of a certified applicator;
- The person properly maintained fertilizer application records as required by the certification program;
- The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.
Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval. More information about S.B. 150 is available here.
Author: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law