The first hearing for a bill that would limit legal liability for Ohio beekeepers took place this week before the House Economic Development, Commerce and Labor Committee. The bill’s sponsor, Rep. Dick Stein (R-Norwalk), offered several reasons for the proposal, including that beekeeping has recently grown in popularity along with increased demand for honey products, bees play an important role in pollinating plants and contribute to the agricultural economy, and beekeepers have incurred expenses defending themselves against lawsuits that are typically unsuccessful.

House Bill 392 aims to provide immunity from liability for any personal injury or property damage that occurs in connection with keeping and maintaining bees, bee equipment, queen breeding equipment, apiaries, and appliances, as long as the beekeeper does all of the following:

1. Registers the apiary with the Ohio Department of Agriculture, as is currently required by Ohio law;
2. Operates according to Ohio Revised Code Chapter 909, which contains provisions for apiaries;
3. Implements and complies with the best management practices for beekeeping as established by the Ohio State Beekeepers Association; and
4. Complies with local zoning ordinance provisions for apiaries. Note that zoning ordinances for apiaries would likely exist only in incorporated areas, as Ohio’s “agricultural exemption from zoning” prohibits townships and counties from using zoning to regulate agricultural activities like beekeeping in most situations.

A beekeeper would not have immunity from liability resulting from intentional tortious conduct or gross negligence, however.

The second hearing for the bill will take place on December 5, 2017. Information about the proposal is available here.

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

The Grain Inspection, Packers and Stockyards Administration (GIPSA) is delaying the implementation of the Farmer Fair Practices rules. GIPSA is a USDA agency that facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products. One purpose of GIPSA is to promote fair and competitive trading practices for the benefit of consumers and agriculture.

On April 11, 2017, the USDA announced that GIPSA delayed the implementation of the Farmer Fair Practices rules until October 19, 2017. The delayed Farmer Fair Practices rules were originally set to be effective on December 20, 2016. According to the USDA, the delayed rules would protect chicken growers from retaliation by processors when growers explore opportunities with other processors, discuss quality concerns with processors, or when refusing to make expensive upgrades to facilities. GIPSA concludes that the Farmer Fair Practices rules alleviates these issues. However, several livestock groups argue that the delayed rules would have adverse economic effects on the livestock industry.

Opportunity for Public Comment

During the delay, the USDA is seeking public comment on the Farmer Fair Practices rules. The comment period offers the agricultural community an opportunity to suggest what action the USDA should take in regard to the Farmer Fair Practices rules. The USDA asked the public to suggest one of four actions that the USDA should take:

1. Let the delayed rules become effective
2. Suspend the delayed rules indefinitely
3. Delay the effective date of the delayed rules further, or
4. Withdraw the delayed rules

After receiving public comments, the USDA will consider the comments and make an informed decision regarding the delayed Farmer Fair Practices rules. According to Drovers, Secretary of Agriculture Sonny Perdue recently visited Kansas City, Missouri to speak with farmers, ranchers, and industry members. During the event, Secretary Perdue responded to a question about the GIPSA rule. “We’re going to look at it very closely,” said Perdue. The full Drovers article is here.

More information on the delayed GISPA rules is here. Leave a public comment on the delayed rules here by clicking “Comment Now.”

Written by:  Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program

Part Two

Below is the second of our two-part series regarding bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session.

Animal Welfare

Requirements for Humane Society Agents and House Bill 45

House Bill 45 was introduced February 10, 2015 and would have amended existing law to impose additional requirements upon those people hoping to be appointed as humane society agents.  A number of changes and additions would have been implemented through the passage of HB 45.  The bulk of the proposed legislation concerned training for humane society agents and filing evidence of completing that training with the county recorder.  HB 45 would have required county recorders to record “[p]roof of successful completion of training by humane society agents,” as well as “notices of revocation of agents’ appointment” in the official records (emphasis added).  According to the bill, proof of completion of training would have had to been signed by the CEO of the organization that provided training, the chief officer of the county humane society, and either the mayor or probate judge in the county.

House Bill 45 was referred to the Local Government Committee on February 11, 2015.  No further action was taken, rendering the proposed legislation dead when the 131^st General Assembly ended.  

To read HB 45, visit this page. The Ohio Legislative Service Commission’s analysis of HB 45 is available here.

Tethering Animals and House Bill 94

House Bill 94 was introduced March 2, 2015 and would have enacted language that would have made it illegal to negligently tether an animal outside in certain situations. The bill would have imposed time limits on tethering and a prohibition on tethering animals in certain weather conditions.  Furthermore, a prohibition on tethering would have been imposed if the tethers were unsafe, under a certain length, allowed the animal to touch fences or cross property lines, or were inappropriate for the animal’s size.  HB 94 also would have prohibited tethering if the surrounding area was unsanitary, or if the owner of the premises was not present.  Finally, the bill would have amended the current law to include punishment for violating the proposed tethering language.  The bill, however, was referred to the House Agriculture and Rural Development Committee and afterwards, no action was taken on it. 

To read HB 94, visit this page. The Ohio Legislative Service Commission’s analysis of HB 94 is available here.

Animal Abusers and House Bill 177

 House Bill 177 was introduced on April 28, 2015.  HB 177 would have required people who either were “convicted of or pleaded guilty to” a number of animal abuse violations to submit certain information, along with a fee, to the Attorney General within 30 days of “being convicted or pleading guilty.” HB 177 also tasked the Attorney General with creating and keeping a registry of animal abuse violators.

Law enforcement officers, humane society agents, and dog wardens would have been responsible for notifying the Attorney General of animal abuse violations. Animal shelters would have been prohibited from allowing a person on the registry from adopting a dog, cat, or any animal kept in a home. 

The bill was referred to the Agriculture and Rural Development Committee on May 5, 2015, where no further action was taken.

To read HB 177, visit this page.

Sale of Dogs and House Bill 573

House Bill 573 was introduced on May 17, 2016.  This bill focused on the sale of dogs both from pet stores and from other entities.   The bill would have added or changed a number of definitions in the Ohio Revised Code.  Most notably, the law would have made it illegal for a pet store to “negligently…offer for sale” or otherwise “transfer” a dog unless it came from an animal rescue, an animal shelter, a humane society, a dog retailer, or a qualified breeder, all of which were defined elsewhere in the bill. 

Additionally, according to HB 573, both dog retailers and pet stores would have been forbidden from selling or otherwise transferring a dog under a number of conditions.  Under the bill, they could not have sold dogs less than eight weeks old, dogs that had not been inspected by a veterinarian, and dogs without a microchip, among other conditions. However, none of these requirements would have been applicable to a dog sold or otherwise “transferred from the premises where the dog was bred and reared.” Finally, the bill included language stating that it would preempt local laws regulating the sale of dogs.  House Bill 573 was referred to the Finance Committee on May 23, 2016 and no further action was taken. 

To read HB 573, visit this page. The Ohio Legislative Service Commission’s analysis of HB 573 is available here.

Natural Resources

Invasive Species and House Bill 396

House Bill 396 was introduced on November 16, 2015.  This bill dealt with restricting and prohibiting certain species in Ohio.  HB 396 would have added a number of definitions to the Ohio Revised Code, including a lengthy list of “prohibited species.”  Species of birds, crayfish, fish, insects, and mollusks were included in the list.  Additionally, “restricted species” was defined as including the quagga mussel, the zebra mussel, and their eggs.  In addition, HB 396 would have given the Chief of the Division of Wildlife, with advice from Ohio Director of Agriculture, the power to designate other restricted and prohibited species subject to a number of considerations.  One of these considerations would have been whether or not the species could cause severe harm to agricultural resources. The bill would have made it illegal to possess, introduce, sell, or offer to sell restricted and prohibited species.

The bill was referred to the Agricultural and Rural Development Committee on January 20, 2016 and ultimately did not leave the Committee.

To read HB 396, visit this page. The Ohio Legislative Service Commission’s analysis of HB 396 is available here.

Deer Rehabilitation and House Bill 267

House Bill 267 was introduced on June 22, 2015 and would have changed the Ohio Revised Code to allow licenses to run deer sanctuaries, permits to rehabilitate deer, and training for law enforcement.  During the training, law enforcement officers were supposed to learn how to determine whether they needed to humanely euthanize injured deer or transfer them to someone permitted to rehabilitate the deer.

The bill was referred to the House Committee on Energy and Natural Resources on October 1, 2015, and was ultimately stranded there. 

To read HB 267, visit this page. The Ohio Legislative Service Commission’s analysis of HB 267 is available here.

Labeling Nursery Stock and House Bill 566

 House Bill 566 was introduced on May 12, 2016 and would have made it illegal for a person to “recklessly label or advertise nursery stock as beneficial to pollinators” if the nursery stock had been “treated with a systemic insecticide.”  It would also have been illegal for a person to “recklessly label” stock as beneficial if the stock included the U.S. EPA warnings of “pollinator protection box[es]” and “pollinator, bee, or honey bee precautionary statement[s] in the environmental hazard section of an insecticide product label” on its packaging. 

The bill was referred to the Agriculture and Rural Development Committee on November 11, 2016 and never made it any further.

To read HB 566, visit this page. The Ohio Legislative Service Commission’s analysis of HB 566 is available here.

Taxation

Adjusting Current Agricultural Use Value formulas: Senate Bill 246 and House Bill 398

During the 131^st General Assembly, the Senate considered Senate Bill 246. SB 246 addressed how current agricultural use value, otherwise known as CAUV, is calculated. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. SB 246 was a companion bill. That means that a version of the bill was introduced in both the Ohio House and the Ohio Senate. The companion house bill to SB 246 was House Bill 398.

Both bills were intended to alter the current formula used to calculate CAUV values across Ohio. According to the Ohio Legislative Service Commission, the changes proposed by the bill would “have a uniformly downward effect on the taxable value of CAUV farmland.” Thus, the likely effect would have been a lower tax bill for farmers who are taxed on a CAUV basis.

The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and HB 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee acted on its bill. Therefore, neither bill was passed into law during the 131^st General Assembly.

To read SB 246, visit this page. The Ohio Legislative Service Commission’s analysis of SB 246 is available here. To read HB 398, visit this page. The Ohio Legislative Service Commission’s analysis of HB 398 is available here.

Nonrefundable Tax Credits for Rural Businesses and Senate Bill 209

The 131^st General Assembly considered a nonrefundable tax credit for insurance companies that invest in certain rural business growth funds. According to the Ohio Legislative Service Commission, qualifying rural business growth funds include special purpose rural businesses that contribute capital to certain kinds of businesses with substantial operations in rural areas of Ohio.

SB 209 passed in the Ohio Senate. But, the bill did not pass the Ohio House. Therefore, the bill was not passed into law during the 131^st General Assembly.

To read SB 209, visit this page. The Ohio Legislative Service Commission’s analysis of SB 209 is available here.

Update:  For a full explanation of the rule, refer to our new Law Bulletin, The New FAA Rule for Using Drones on the Farm  

Part 2:  Rules for Operating Drones

The FAA’s long awaited rule for drones or “small unmanned aircraft systems” (sUAS) weighing less than 55 pounds will be effective on August 29, 2016.  Our previous post explained the rule’s process for obtaining certification as a Remote Pilot in Command (Remote PIC) that will apply to those who operate a sUAS for commercial uses or incidental to a business, such as for farming purposes.  In this post, we focus on the new rule's operational requirements and limitations.   Farmers who want to use a drone in the farm operation need to understand and comply with these provisions.

Pre-flight requirements

• Registration.  A person may not operate a sUAS over 0.55 pounds unless it is registered with FAA.  An online registration is available at https://registermyuas.faa.gov/
• Pre-flight inspection.  The Remote PIC must inspect the sUAS prior to a flight to ensure that it is in a condition for safe operation, which includes inspecting for equipment damage or malfunctions.  The FAA advises operators to conduct the pre-flight inspection in accordance with the sUAS manufacturer’s inspection procedures and provides a list of the elements to address in a pre-flight inspection in section 7.3.4 of this guideline.
• Pre-flight information.  The Remote PIC must make sure that all persons directly involved in the flight are informed about roles and responsibilities, operating conditions, emergency and contingency procedures and potential hazards.
• Flight operators.  Only a Remote PIC may fly the sUAS, or someone under the direct supervision of a Remote PIC if the PIC is easily able to gain control of the sUAS.  A Remote PIC may only operate or observe one drone at a time.
• Airspace.  Flights of sUAS are allowed in Class G airspace, the airspace that is not controlled by Air Traffic Control (ATC) communications, which encompasses a majority of agricultural lands.  A flight in Class, B, C, D and E controlled airspace requires permission from the appropriate ATC prior to flight.  The FAA will establish a web portal that will allow an operator to apply for ATC permission online.
• Waiver process.  The operator may apply for a “certificate of waiver” that allows deviation from some of the operational requirements if the FAA determines that the flight would be safe.  The operator must receive the waiver prior to the flight, so should file the request about 90 days in advance of the proposed flight.   The FAA will post the waiver applications, which are not yet available, at http://www.faa.gov/uas/.

Operating rules during flight

• Weather visibility.  There must be a minimum visibility of three miles from the sUAS control station.
• Visual line of sight.  The Remote PIC or the authorized person operating the drone must maintain a constant visual line of sight with the sUAS, without the aid of a device other than glasses or contact lenses.   The operator may use a visual observer to help maintain the line of sight, but using an observer cannot extend the line of sight.
• See and avoid.  The operator must yield the right of way and avoid collision with another use of the national air space.
• Height.  The sUAS may not fly more than 400 feet above ground level.
• Time of day.  Flights may occur only during daylight hours or no more than 30 minutes before official sunrise or after official sunset if the sUAS has anti-collision lighting.
• Speed.  The sUAS speed may not exceed 100 miles per hour.
• People.  A flight may not occur over persons who are not involved in the flight or are not under a covered structure or inside a covered stationary vehicle.
• Base of operation.  Operation of the sUAs may not occur from a moving aircraft.  Operation from a moving land or water vehicle is permissible if in a sparsely populated area and not transporting property for hire.
• External load and towing.  A sUAS may carry or tow an external load if the load is securely attached, does not affect control of the aircraft, is not a hazardous substance and the combined weight of the sUAS and its load does not exceed the 55 pound weight limit.
• Aerial applications.  Use of a sUAS for dispensing herbicides, pesticides and similar substances must also comply with the “agricultural aircraft operation” regulations in 14 CFR 137.3.
• Dropping objects.   An operator may not create an undue hazard that poses a risk of injury to persons or property when dropping an object from a sUAS.
• Careless or reckless operation.  A person must not operate a sUAS carelessly or recklessly.  The FAA provides the example of failing to consider weather conditions when flying near structures, trees or rolling terrain in a densely populated area as an example of careless or reckless operation.

After-flight requirements

• Production of records and vehicle.  If requested by FAA, a person must make the sUAS or its records available for testing or inspection.
• Accident reporting.   Within 10 days of occurrence, a Remote PIC must report to the FAA a flight operation that results in loss of consciousness or serious injury to a person or creates property damage of at least $500.  Reporting can occur online at www.faa.gov/uas or by telephone to the appropriate FAA field office or regional center.

Penalties for noncompliance with the rule

The FAA will have enforcement authority over the new regulations.  Depending upon the type and violation, civil penalties could be up to $27,500.  An operator could also be subject to criminal penalties for violations that are reckless, destroy property or threaten public safety; those penalties could be up to $250,000.

Learn more about the sUAS rule at http://www.faa.gov/uas/