Crop Issues

By: Peggy Kirk Hall, Thursday, January 18th, 2018

Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program

We often receive questions about the status of industrial hemp as an agricultural crop in Ohio. Historically, growing industrial hemp has been controversial in the United States because of its close relationship to the marijuana plant—both are members of the same species. Plants used for industrial hemp, however, have a much lower amount of tetrahydrocannabinol (THC) than marijuana and do not have the intoxicating qualities of marijuana plants. Uses for industrial hemp are numerous; ranging from fabrics, to car parts, to bedding for animals. Because of potential usefulness, Congress authorized the growing of industrial hemp in individual states for “purposes of research” in the 2014 Farm Bill.

The 2014 Farm Bill and industrial hemp

The 2014 Farm Bill included a section codified at 7 U.S.C. § 5940 that allows industrial hemp to be grown under certain circumstances. Specifically, industrial hemp can be grown in a state if:

  • It is grown for research purposes;
  • The research is conducted under an agricultural pilot program or other agricultural or academic research; and
  • State law permits the growth of industrial hemp.

The federal law only permits hemp to be grown, cultivated, studied, and marketed under the guidance of institutions of higher education located in the state or the state department of agriculture. Furthermore, the state must certify and register the sites permitted to grow industrial hemp because any substance containing THC is a Schedule I controlled substance under 21 U.S.C. § 812 (c). This means that without a license issued by a state that allows industrial hemp to be grown for research, someone in possession of the plant would be violating federal drug law.

It is also important to note that under the federal law, “industrial hemp” is defined as the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis. Any concentration over that amount is not legal. Even those plants with a THC concentration less than or equal to 0.3 percent are illegal unless the grower has a state license.

State action on industrial hemp research

Since the passage of the 2014 Farm Bill, 26 states have implemented legislation allowing industrial hemp research or pilot programs.  Ohio is not one of these states, but all of the states bordering Ohio have passed laws allowing industrial hemp research. The National Conference of State Legislatures provides a compilation of the state laws here.

Kentucky is an example of a state that is carrying out an industrial hemp pilot program. The program, codified in the Kentucky Revised Statutes §§ 260.850-260.869, allows universities, the state department of agriculture, and those who hold a license from the department of agriculture “to study methods of cultivating, processing, or marketing industrial hemp.” In order to obtain a license, a person must give the Kentucky Department of Agriculture both the legal description and the GPS coordinates of the area where they will grow industrial hemp. Furthermore, applicants for licenses must agree in writing to allow the State to enter the premises for inspection, and receive a yearly background check. Any convicted felon or person with a “drug-related misdemeanor” is barred from becoming licensed.

By implementing this industrial hemp program under state law, Kentucky has stated that it intends to be at the “forefront” of the industry. The state hopes to be in a position to profit from industrial hemp if and when the federal government removes the restrictions on growing and selling industrial hemp.  Information from the Kentucky Department of Agriculture is here and here.

Looking forward

Will the U.S. soon allow hemp to be legally grown as a crop? A bill introduced in the U.S. House of Representatives last July, H.R. 3530, calls for industrial hemp to be removed from the federal definition of marijuana, which would in turn remove it from the list of illegal controlled substances.  A quick search on Congress’ website reveals that similar bills have been introduced many times in the past but have not garnered sufficient support. The possibility that the current proposal will gain enough traction to pass is therefore slim.  But it is possible that continued research could prove the value of industrial hemp as an agricultural crop, which could eventually lead to less regulation in the future. Given Ohio’s lack of legislative interest in allowing industrial hemp research, Ohio farmers may be at a disadvantage if that day arrives.

For more information

Our colleague Harrison Pittman, Director of the National Agricultural Law Center, presented a webinar on industrial hemp and it's recorded here.  A Congressional Research Service report on "Hemp as an Agricultural Commodity" is available here.   A recent article on hemp by Farm and Dairy is available here.  

Posted In: Crop Issues
Tags: industrial hemp, hemp
Comments: 0
By: Peggy Kirk Hall, Tuesday, October 24th, 2017

Last week, the Environmental Protection Agency (EPA) announced an agreement with Monsanto, BASF and DuPont to change dicamba registration and labeling beginning with the 2018 growing season. EPA reports that the agreement was a voluntary measure taken by the manufacturers to minimize the potential of dicamba drift from “over the top” applications on genetically engineered soybeans and cotton, a recurring problem that has led to a host of regulatory and litigation issues across the Midwest and South. The upcoming changes might alleviate dicamba drift issues, but they also raise new concerns for farmers who will have more responsibility for dicamba applications.

The following registration and labeling changes for dicamba use on GE soybeans and cotton will occur in 2018 as a result of the agreement:

  • Dicamba products will be classified as “restricted use” products for over the top applications. Only those who are certified through the state pesticide certification program or operating under the supervision of a certified applicator may apply the product. Training for pesticide certification will now include information specific to dicamba use and application, and applicators will be required to maintain records on the use of dicamba products.
  • The maximum wind speed for applications will reduce from 15 mph to 10 mph.
  • There will also be greater restrictions on the times during the day when applications can occur, but details are not yet available on those restrictions.
  • Tank clean-out instructions for the prevention of cross contamination will be on the label.
  • The label will also include language that will heighten the awareness of application risk to sensitive crops.

Farmers should note that the additional restrictions and information on dicamba labels shifts more responsibility for the product onto the applicator.  An applicator must take special care to follow the additional label instructions, as going “off label” subjects an applicator to higher risk. If drift occurs because of the failure to follow the label, the applicator is likely to be liable to the injured party for resulting harm and may also face civil penalties. Producers should take care to assess the new dicamba labels closely when the manufacturers issue the revised labels for 2018.

To learn more about legal issues with pesticide use, be sure to sit in on the Agricultural & Food Law Consortium’s upcoming webinar, “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” The webinar will take place on Wednesday, November 1 at Noon EST and will feature an examination of regulatory issues and litigation surrounding pesticide use around the country by attorneys Rusty Rumley and Tiffany Dowell Lashmet. To view the free webinar, visit http://nationalaglawcenter.org/consortium/webinars/pesticide/

By: Peggy Kirk Hall, Monday, July 17th, 2017

Noxious weed law questions are common in the midst of the growing season and this year is no different.  Below is a sampling of frequently asked questions we've received about noxious weed law.  Learn more about the laws in our new law bulletin, Ohio's Noxious Weed Laws, available here.

My neighbor doesn’t keep his fence row clear of noxious weeds.  What can I do about it?
First, talk to the neighbor.  If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds.  Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work.  Your neighbor will be legally obligated to pay for the costs on his property tax bill.

I’ve been notified by my township trustees that I have noxious weeds on my property.  What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy.  Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action.  For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.

Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.  

Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs? 
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action.  Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue.  If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting.  If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing.  Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964. 

How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed.  The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01

By: Peggy Kirk Hall, Tuesday, June 27th, 2017

Congress has enacted legislation to address security threats to the country’s food and agricultural systems. The “Securing our Agriculture and Food Act” enrolled on June 22, 2017, authorizes the government to coordinate efforts to defend U.S. food, agriculture, and veterinary systems against terrorism and other high-consequence events to create risks to homeland security. The bill has been forwarded to President Trump for approval.

The bi-partisan bill, sponsored by Rep. Young (R-Iowa) with co-sponsors Rep. Payne (D-NJ) and Rep. Donovan (R-NY), amends the Homeland Security Act of 2002.  House Bill 1238 requires the Assistant Secretary for Health Affairs in the Department of Homeland Security (DHS) to coordinate an agriculture and food security program with federal departments and agencies that includes:

  • Managing DHS responsibilities established by President George W. Bush in his 2004 Presidential Directive 9, which created a national policy for defending food and agricultural systems against terrorist attacks, major disasters, and other emergencies.
  • Overseeing and integrating DHS activities related to veterinary public health, food dense, and agricultural security.
  • Leading policy initiatives relating to domestic preparedness for and response to agricultural terrorism.
  • Coordinating activities on food and agriculture security and screening procedures for domestic and imported products with other departments, including U.S. Customs and Border Protection.

Rep. Young drafted the bill following Iowa’s 2015 avian influenza outbreak, which resulted in the loss of millions of chickens and turkeys in his home state. According to Rep. Young, the event raised concerns about the federal government’s ability to quickly react to animal disease outbreaks and whether the nation would be able to respond capably to agro-terrorism threats.

“We don’t always think of a terrorist attack as a deliberate, mass food contamination, or the danger a major disease outbreak could pose,” stated Sen. McCaskill (D-MO), when the bill was introduced in the Senate Agriculture Committee. “Congress needs to think forward about the wide array of threats we face and take action before there’s a tragedy, not afterwards.”

The “Securing our Agriculture and Food Act,” H.B. 1238, is available here.

By: Peggy Kirk Hall, Wednesday, March 01st, 2017

Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more.  The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta.  Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta.  With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.

The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas.  It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn.  The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.

Class Certification

Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members.  Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta.  The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims).  The nationwide class is for producers bringing claims under federal law.  The court also certified eight state classes for producers bringing claims under state laws, including Ohio.  Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.

Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes.  This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation.  However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta.  The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation.   A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.

Pros and Cons of Staying in the Class

A major benefit of remaining in the class action lawsuit is convenience.  Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class.  However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions.  Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees.  Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.

What’s Next?

The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June.  Bellwether cases are chosen to be representative of the class.  Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation.   Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.

The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/

By: Peggy Kirk Hall, Wednesday, July 20th, 2016

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/

Posted In: Business and Financial, Crop Issues, Drones
Tags: drones, sUAS, FAA, part 107
Comments: 0
By: Peggy Kirk Hall, Thursday, June 30th, 2016

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 1:  Drone Pilots Must Obtain FAA Certification

The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS).  The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace.  Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016.  An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.

The Remote Pilot Certification Requirement

The Remote Pilot in Command (Remote PIC) is the person who is directly responsible for the operation of the sUAS.  The new rule requires the Remote PIC to obtain a remote pilot certificate with a small UAS rating.  To do so, an applicant must meet eligibility requirements, pass a knowledge test and complete the application process. 

1.      Eligibility requirements.   An applicant for a Remote PIC must be at least 16 years old, proficient in the English language, and in a physical and mental condition that would not interfere with safe operation of a sUAS.

2.      Knowledge test.    An applicant must pass the unmanned aircraft general (UAG) knowledge test before applying for the remote pilot certificate.  The knowledge test, which will be available beginning August 29, 2016, will contain 60 multiple choice questions on:

  • Federal regulations for sUAS.
  • Airspace classification and operating requirements.
  • Weather sources and effects of weather on sUAS.
  • Loading and performance of sUAS.
  • Emergency procedures.
  • Crew resource management.
  • Radio communication procedures.
  • Determining performance of sUAS.
  • Effects of drugs and alcohol.
  • Aeronautical decision-making.
  • Airport operations and maintenance.
  • Preflight inspection procedures.

The FAA provides a free online learning course for knowledge test preparation, available through www.faasafety.gov or here.   The FAA also presents a sample exam on its website, available here.   Applicants must take the knowledge test at an FAA-approved Knowledge Testing Center.  A list of Ohio’s 23 test centers is available at www.faa.gov/training_testing/testing/media/test_centers.pdf .   Passing the test requires a score over 70%; an applicant who fails the test may retake the test after 14 days.

Applicants already holding a pilot certificate, other than a student pilot, must follow a different process that includes completing a two-hour online course.  The course, which includes an exam, is available through www.faasafety.gov or here

3.      Application.  An applicant who passes the UAG knowledge test must complete the application for a remote pilot certificate, FAA Form 8710-13.   The form will be available as a paper application or online through the FAA’s Integrated Airmen Certificate Rating Application System at https://iacra.faa.gov.   The Transportation Security Administration (TSA) will then conduct a background security screening of the applicant to determine if the applicant represents a security threat.  If the screening is successful, an applicant will receive the remote pilot certificate.  An unsuccessful security screening will disqualify the applicant, who would have a right to appeal the security screening decision.  Note that an applicant who uses the online application can obtain a temporary certificate online upon successful completion of the security screening, while an applicant who submits a paper application must wait to receive the permanent remote pilot certificate through U.S. mail.  The FAA has announced that it hopes to issue a temporary remote pilot certificate within 10 business days after submission of an online application.

What Happens After Certification?

A certified Remote PIC may legally fly a sUAS and may also directly supervise persons who do not hold a remote pilot certificate, as long as the Remote PIC maintains the ability to take control of the sUAS.  This provision will allow Remote PICs to teach, demonstrate and train uncertified operators.  The Remote PIC has several responsibilities:

  • Register the sUAS with the FAA.
  • Conduct pre-flight inspections.
  • Abide by operational limitations in the new sUAS rule.
  • Maintain records on the sUAS and its flights.
  • Upon request, make the sUAS and records available to the FAA for inspection or testing.
  • Report any operation that results in injury, loss of consciousness or property damage of at least $500 to the FAA within 10 days of occurrence.

Recurrent knowledge test.  A person who receives the remote pilot certificate must take a recurrent knowledge test within 24 months to retain the certification. 

Part 2 of this Series

In our next post in this series on implications of the new rule for sUAS in agriculture, we’ll explain the operational limitations and requirements for sUAS.  To read the new rule or access up-to-date information on sUAS, go to www.faa.gov/uas.  

By: Peggy Kirk Hall, Monday, July 06th, 2015

Ohio's newest legislation addressing water quality concerns became effective on July 3, 2015.  The new law, enacted by the Ohio legislature earlier this year as Senate Bill 1, affects Ohio agriculture with the following provisions:

1.  Fertilizer application restrictions in the western basin.  In the western basin of Lake Erie, a person may not apply fertilizer (defined as nitrogen or phosphorous) under these conditions:

  1. On snow-covered or frozen soil
  2. When the top two inches of soil are saturated from precipitation
  3. In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period

Exceptions—the above restrictions do not apply if the fertilizer is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop

2.  Manure application restrictions in the western basin.  In the western basin of Lake Erie, a person may not surface apply manure (defined as animal excreta) under these conditions:

  1. On snow-covered or frozen soil
  2. When the top two inches of soil are saturated from precipitation
  3. When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding 1/2 inch in a 24 hour period

Exceptions—the above restrictions do not apply if the manure is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop
  4. Or if, in the event of an emergency, the chief of the division of soil and water resources provides written consent and the application is in accordance with NRCS practice standard code 590.

3.  Exemptions for small and medium operations.  Small and medium agricultural operations in the western basin, defined by number of species using the same criteria as Ohio Department of Agriculture's (ODA's) livesock environmental permitting program, may apply to the chief of the division of soil and water resources for a temporary exemption from the restrictions on manure applications. 

  1. A medium agricultural operation may be exempt for one year, up to July 3, 2016.
  2. A small operation may be exempt for two years, up to July 3, 2017.
  3. An exempt operation will not be subject to civil penalties for violations if working toward compliance and may request technical assistance to reach compliance standards.

4.  Certification requirements for any persons using manure from CAFFs anywhere in Ohio.  On 50 acres or more used in agricultural production anywhere in Ohio, no person may apply manure from a concentrated animal feeding facility regulated under a permit from ODA's Division of Livestock Environmental Permitting unless:

  1. The person has obtain Certified Livestock Manager (CLM) certification by ODA.
  2. The person has been certified by ODA through Ohio's fertilizer applicator certification program.

Complying with the new law

To ensure compliance with Senate Bill 1's fertilizer and manure restrictions that are now effective in Ohio, producers should consider these questions before making an application of manure or fertilizer:

1.  Will the application of fertilizer or manure occur in the western basin of Lake Erie?  If so, the new restrictions may apply to the application.  A map that outlines the 11 watersheds and all or parts of 25 counties that comprise the western basin is available here.

  • Does the application involve a restricted nutrient?  The new restrictions apply to any application that involves nitrogen, phosphorous or any type of animal manure.
  • Will the restricted nutrient be injected into the ground, incorporated within 24 hours, applied onto a growing crop or made with permission of the chief of soil and water resources due to an emergency involving manure applications?  If so, the application is permissible as an exception to the restrictions.
  • If one of the above exceptions does not apply to the application, do weather conditions prohibit the application?  
    • Is the ground frozen, snow covered or saturated two inches deep or more?  If so, the application is prohibited. 
    • Is there a greater than 50% chance that precipitation will exceed one inch in the next 12 hours for the area where the application will occur?  If so, an application of granular fertilizer is prohibited.
    • Is there a greater than 50% chance that precipitation will exceed one-half inch in the next 24 hours for the area where the application will occur?  If so, an application of manure is prohibited.
    • Refer to OSU Extension's C.O.R.N. newsletter for guidance on how to obtain important precipitation information prior to an application.

2.  Is a temporary exemption from the manure restrictions available?  If manure applications will be made by a "small" or "medium" animal feeding facility in the western basin, the facility may request the temporary exemption from the restrictions.  Refer to ODA's explanation of what qualifies as a small or medium animal feeding facility on its website, here.

3.  Is the manure or fertilizer obtained from a confined animal feeding facility regulated by ODA's Division of Livestock Environmental Permitting and to be applied on more than 50 acres of land in agricultural production anywhere in Ohio?  If so, the person applying the manure or fertilizer must be certified by ODA as a Certified Livestock Manager or agricultural fertilizer applicator.  A tool to search for concentrated animal feeding facilities operating under permit is available on ODA's website, here, as is information about CLM certification and the agricultural fertilizer certification program.

Non-compliance risk

ODA has authority to investigate potential violations of the new fertilizer application restrictions and the Division of Soil and Water Resources has similar authority over potential violations of manure application restrictions.  The agencies may investigate upon receiving a complaint from any person or receiving any information that suggests a potential violation.  If a violation has occurred or is occurring, the law grants the agencies rulemaking authority to establish penalty amounts for violations, which may not exceed $10,000 per separate violation.  To date, the agencies have not yet initiated proposed rules for the penalty amounts.  The agencies may not assess penalties until after providing an alleged violator opportunity for a hearing.

Due to the risk of non-compliance with the new law, producers should review insurance policies and determine whether insurance coverage exists or is available for a mishap under the new law. 

 

By: Peggy Kirk Hall, Tuesday, March 31st, 2015

Ohio’s Senate and House of Representatives have agreed upon a final bill intended to control algae production in Lake Erie and its western basin.  Senate Bill 1, as amended by the House, passed both chambers on March 25 and now awaits Governor Kasich’s signature. (Post note:  Governor signed the bill on April 2, 2015; its effective date is July 3, 2015).

The law will regulate manure and fertilizer applications in the western basin of Lake Erie, require monitoring of phosphorous for certain publicly owned treatment works, regulate the placement of dredged materials in Lake Erie and its tributaries, change how the Healthy Lake Erie Fund may be used and establish agency coordination and research on harmful algae management and response.

In regards to fertilizer and manure applications, the legislation includes two new amendments that were not part of the original bills passed earlier by the Senate and House:

  • Certification requirements for persons using manure from CAFFs.  To utilize manure from a concentrated animal feeding facility that is regulated under ODA’s Division of Livestock Environmental Permitting, a person must hold either a Certified Livestock Manager license or certification under Ohio’s new fertilizer applicator certification program.  The provision pertains only if applying the manure for agricultural production on more than 50 acres.  This language closes the proclaimed “loophole” that allowed persons to receive and apply manure from a livestock facility without being subject to the same regulations as the facility.   ORC 903.40.
  • Exemptions for small and medium operations.  Small and medium agricultural operations may apply for a temporary exemption from the law’s restrictions on manure applications.  The chief of the division of soil and water resources may grant an exemption of up to one year for a medium agricultural operation and up to two years for a small operation, if the operation is working toward compliance.  An exempted operation may request technical assistance to reach compliance, and will not be subject to civil penalties for violations.  The law defines small and medium agricultural operations in the same way as the Livestock Environmental Permitting program, based on the number of livestock according to species.  ORC 1511(D). 

Other changes to the final bill include a removal of a five-year sunset provision and attempts to address lead contamination.  The final bill contains the following provisions:

Fertilizer application restrictions in the western basin

For applications of fertilizer in the western basin, a person may not apply fertilizer, defined as nitrogen or phosphorous, under these conditions:

(1) On snow-covered or frozen soil, or

(2) When the top two inches of soil are saturated from precipitation, or

(3) In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period,

unless the fertilizer is injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Manure application restrictions in the western basin

A person may not surface apply manure in the western basin under any of the following circumstances:

(1) On snow-covered or frozen soil;

(2) When the top two inches of soil are saturated from precipitation;

(3) When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one-half inch in a 24 hour period.

unless the manure is injected into the ground, incorporated within 24 hours of surface application, applied onto a growing crop, or if in the event of an emergency, the chief of the division of soil and water resources or the chief's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Applications of sewage sludge

In issuing sewage sludge management permits, the director of Ohio EPA may not allow the placement of sludge on frozen ground.

Agency responsibilities for harmful algal management and response

  • The law appoints the director of the Ohio EPA or his/her designee to serve as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Healthy Lake Erie Fund

The fund shall now be used in support of conservation measures in the western basin as determined by the director of ODNR; for funding assistance for soil testing, winter cover crops, edge of field testing, tributary monitoring and animal waste abatement; and for any additional efforts to reduce nutrient runoff as the director may decide. The director must give priority to recommendations that encourage farmers to adopt agricultural production guidelines commonly known as 4R nutrient stewardship

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Implementation review

The final version of the legislation requires a review three years after the law’s effective date by the appropriate House and Senate committees, who must assess the results of implementing the new measures and issue a report of their findings and recommendations for revisions of repeal to the Governor.

Transfer of Agricultural Pollution Abatement Program

The law declares that the legislature intends to enact legislation to transfer the Ohio Agricultural Pollution Abatement Program from ODNR to ODA by July 1, 2015. 

The bill is now awaiting action by Governor Kasich.  The final version of the legislation and accompanying documents are available here.

By: Peggy Kirk Hall, Sunday, February 22nd, 2015

After much anticipation, the Federal Aviation Administration (FAA) has published proposed regulations that would govern the operation of drones used for agricultural and other activities.  The proposal would allow farmers and ranchers to operate drones, referred to in the rule as “unmanned aircraft” and “unmanned aircraft systems” (UAS), subject to requirements intended to address public safety and national security concerns.  

Under the proposed small UAS rule, operators must comply with a certification process, register and maintain aircraft, and follow limitations on aircraft operation. Of the proposed limitations, agricultural operators might have concerns about a “visual line-of-sight” rule requiring that operators have visual contact with aircraft, a flight ceiling of 500 feet above ground level and prohibitions against night flights.  Additionally, the proposal fails to address privacy issues and the potential use of drones for surveillance activities on another person’s property.

The following provisions are the major components of the proposed rule, which would apply to unmanned aircraft weighing less than 55 pounds that are used for non-hobby and non-recreational purposes:

Operator Certification and Reporting

Certification.  An operator of a UAS must have an “unmanned aircraft operator certificate with a small UAS rating,” which requires:

  • Meeting eligibility requirements:  the applicant is at least 17 years old, speaks English, has no state or federal drug offenses, has no physical or mental condition to prevent safe UAS operation, and the applicant’s identity is verified by the FAA.
  • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center, which covers: (1) applicable regulations relating to small UAS rating privileges, limitations, and flight operation; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small UAS operation; (3) official sources of weather and effects of weather on small UAS performance; (4) small UAS loading and performance; (5) emergency procedures; (6) crew resource management; (7) radio communication procedures; (8) determining the performance of small UAS; (9) physiological effects of drugs and alcohol; (10) aeronautical decision-making and judgment; and (11) airport operations.
  • Passing a recurrent aeronautical knowledge test every 24 months.

Reporting. An operator must report an accident to the FAA within 10 days of any operation that results in injury or property damage.

Aircraft Requirements

  • Aircraft registration.   A small unmanned aircraft must be registered with the FAA.
  • Markings.   A small unmanned aircraft must display nationality and registration markings.
  • Aircraft condition.  An operator must maintain a small unmanned aircraft in a condition for safe operation.

Operation Requirements

Pre-flight requirements.  Before a flight, an operator must conduct a pre-flight inspection and assessment that includes:

  • Inspection of the links between the unmanned aircraft and its control station.
  • Verification of sufficient power to operate the aircraft at least 5 minutes beyond the intended operational time period.
  • Assessment of the operating environment, including local weather conditions, local airspace and flight restrictions, locations of persons and property on the ground and other ground hazards.
  • A briefing to all persons involved in the aircraft operation that addresses operating conditions, emergency procedures, contingency procedures, roles and responsibilities and potential hazards.

Visual line of sight requirement.  An operator must maintain a “visual line-of-sight” with the unmanned aircraft, using only human vision that is unaided by any device other than glasses or contact lenses.

Use of visual observer.   An operator may use “visual observers” to assist with the visual line-of-sight requirement.

  • An operator and visual observer must maintain constant communication, which may be made through communication-assisted devices.
  • The aircraft must still remain close enough to the operator for the operator to be capable of maintaining the visual line-of-sight.

Operating limitations.  An operator must not operate an unmanned aircraft:

  • More than 500 feet above ground level.
  • More than 100 mph.
  • After daylight, which is the time between official sunrise and sunset.
  • When there is not minimum weather visibility of 3 miles from the aircraft’s control station.
  • No closer than 500 feet below and 2,000 feet horizontally away from any clouds.
  • Over any persons not directly involved in the operation and not under a covered structure that would protect them from a falling UAS.
  • From a moving aircraft or vehicle, unless the moving vehicle is on water.
  • Within Class A airspace; or within Class B, C, or D airspace or certain Class E airspace designated for an airport, without prior authorization from the appropriate Air Traffic Control facility.
  • Carelessly or recklessly, including by allowing an object to be dropped from the aircraft in a way that would endanger life or property.

“Micro” UAS

In the proposed rule, the FAA also presents the possibility of including regulations in the final rule for “micro-UAS,” or unmanned aircraft weighing no more than 4.4 pounds that are composed of  “frangible” materials that yield on impact and present minimal safety hazards.  The micro-UAS category would require operators to self-certify their familiarity with the aeronautical knowledge testing areas; would limit operation to:  1,500 feet within the visual line-of-sight of the operator, no more than 400 feet above ground, only in Class G (uncontrolled) airspace and at least 5 miles from an airport; and would allow flight over people not involved in the operation.  The agency invites comments on whether to include a micro-UAS category in the final rule.

What’s not in the Proposed Rule?

Privacy concerns.  Many in the agricultural community worry about the potential use of drones for surveillance activities that violate a property owner’s privacy.  The FAA states that privacy concerns about unmanned aircraft operations are beyond the scope of this rulemaking and that “state law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.” 

The agency also notes the recent Presidential Memorandum issued by President Obama, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015), which requires the FAA to participate in a multi-stakeholder engagement process led by the National Telecommunications and Information Administration to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private use of UAS in the NAS.   The memorandum also requires agencies to “ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, in violation of law.”  Read the Presidential Memorandum here.

External loads and towing operations.   The FAA declined to propose new regulations for small unmanned aircraft with towing and external load capabilities. Instead, the agency invites comments, with supporting documentation, on whether external load and towing UAS operations should be permitted and whether their use should require airworthiness certification, higher levels of airman certification or additional operational limitations.

What’s Next?

The FAA will accept public comments on the proposed small UAS rule until April 24, 2015.   Issuing a final rule could take at least another year after the comment period closes.  In the interim, FAA encourages operators to visit http://knowbeforeyoufly.org/ to understand current regulations for the use of small UAS, which remain in place until the FAA issues its final rule.

The proposed small UAS rule is available in the Federal Register online here.  To submit comments for the rule, Docket No. FAA–2015–0150, visit www.regulations.gov.

Posted In: Crop Issues, Drones, Property, Uncategorized
Tags: UAVs, UAS, drones, FAA
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