In Ohio, we are no strangers to the dreaded “black ice.” You probably know someone that has fallen victim to this invisible nuisance. We see it time and time again. Someone hits a patch of black ice and inevitably swerves off the road. Sometimes, a motorist may hit a mailbox, a tree, or a telephone pole and suffer serious injury. A common question that arises after such an incident is whether the owner or the party responsible for that tree or pole can be held liable for the motorist’s injuries. After all, had they removed the off-road object the motorist may have just slid into a ditch without any serious injury, right?
Well, in a recent decision, the Ohio Supreme Court clarified the duty owed to motorists by landowners or occupiers of land adjacent to a public roadway with respect to off-road objects. The case arises after a motorist hit a patch of black ice causing him to veer off the road and hit a mailbox, which then caused his truck to roll. The central issue of the case revolved around the landowner’s potential liability for the mailbox being within the right-of-way and causing the motorist’s truck to flip. Below we review the Ohio Supreme Court’s decision in Snay v. Burr and the duty owed to motorists by landowners or occupiers of land.
Background. On December 19, 2016, Cletus Snay was driving from his home in Norwalk, Ohio to his place of work in Bellevue, Ohio. Mr. Snay was traveling along a two-lane country road when he hit a patch of black ice that caused him to veer off the road. Ohio Highway Patrol found Mr. Snay’s truck rolled over. The state trooper had concluded that Mr. Snay’s truck went off the right side of the road, struck the first mailbox, owned by Matthew and Diane Burr, and began to flip, hitting the second mailbox and eventually ending up overturned further down the road. As a result of the accident, Mr. Snay suffered damage to his spine, rendering him quadriplegic.
After the accident, it was discovered that the Burrs’ mailbox post remained in the ground, while the second mailbox post that Mr. Snay’s truck hit was destroyed. Mr. Burr installed his mailbox approximately 20 years before Mr. Snay’s accident. Before installing the mailbox, Mr. Burr obtained guidelines for mailbox installation published by the United States Postal Service. The guidelines recommended, but did not require, that a metal mailbox support be two-inch-diameter standard-steel or aluminum pipe and be buried no more than 24 inches deep. Mr. Burr, however, used an eight-inch-diameter metal pipe that he buried 36 inches deep.
Mr. Snay and his wife hired an accident reconstructionist that agreed with the state trooper that Mr. Snay’s truck began to roll over after hitting the Burrs’ mailbox. However, the accident reconstructionist was of the opinion that the Burrs’ unyielding mailbox post was the mechanism that caused Mr. Snay’s truck to overturn. The accident reconstructionist characterized the Burrs’ mailbox support as a “dangerous hazard to motorists.”
The Snays filed suit alleging that the Burrs were negligent in constructing their mailbox because “it was supported by a thick, non-breakaway metal pipe.” The Burrs moved for summary judgment, arguing that they owed no duty of care to Mr. Snay and that Mr. Snay’s failure to control his vehicle was the cause of Mr. Snay’s injuries, not the mailbox. Both the trial court and the appellate court agreed with the Burrs. The Snays then brought the case before the Ohio Supreme Court.
What is the duty that a landowner owes to motorists traveling on a roadway with respect to off-road objects and obstructions? The Snays asked the Ohio Supreme Court to hold the Burrs liable for breaching the duty of care owed to motorists traveling on the road adjacent to their property. The Snays argued that the Burrs negligently misused the right-of-way by creating an unreasonable hazard that a motorist might encounter when they veer off the road. The Court disagreed.
The Court went through a historical analysis of Ohio’s law as it relates to off-road objects and the duty owed to motorists by landowners or occupiers. The Court found that under Ohio law “the effect that an object or obstruction in a right-of-way has on the ordinary use of the roadway” controls when determining the existence of a duty owed to motorists. The Court reasoned that if any duty is owed to a motorist by a landowner, it is the duty to ensure that any off-road hazard does not make “the roadway unsafe for the usual and ordinary course of travel.” Examples of off-road objects that may make the roadway unsafe for the usual course of travel include corn growing in the right-of-way that obstructs a motorist’s view of cross traffic or a large sign that obstructs a motorist’s view of the road.
The Court also found that there is no precedent to impose a duty on a landowner to remove an off-road hazard that makes only off-road travel unsafe, unless the off-road travel is shown to be an aspect of the ordinary and usual course of travel on that particular roadway. Here the Court held that the Burrs’ mailbox did not make ordinary travel on the road adjacent to the Burrs’ property unsafe. The Court found that the motorists traveling on the roadway usually drove on the paved area of the road. The Court recognized that motorists are not free to drive on a right-of-way as they please and found that the Burrs’ mailbox only presented a hazard to a motorist once the motorist errantly left the road.
So, if a landowner has an off-road object in the right-of-way, the Ohio Supreme Court has now ruled that the landowner’s duty is to ensure that the off-road object does not make the ordinary or usual travel of the roadway unsafe for motorists, otherwise all fixed objects like mailboxes or trees could impose liability on a landowner.
Do landowners owe a duty of care to motorists that leave the roadway? The Snays also argued that the Burrs’ “unreasonably dangerous construction” of the mailbox and deviation from the nonbinding guidelines of the United States Postal Service, gave rise to a duty of care to motorists that might leave the road and hit the mailbox. Again, the Ohio Supreme Court disagreed.
The Court again reiterated the fact that in order for a landowner or occupier to be liable there must first “be a condition or obstruction that jeopardizes the safety of traffic on the ordinarily traveled portion of the road.” The Court reasoned that the right-of-way beyond the paved portion of the road adjacent to the Burrs’ property was not used for ordinary travel. Therefore, the Court stated that a “vehicle traveling ordinarily and with due care on the road would not come in contact with the Burrs’ mailbox.” The Court also reasoned that adjacent landowners are entitled to presume that motorists will observe the law and exercise ordinary care while driving on a roadway and that a motorist hitting a patch of black ice is neither normal or expected.
The Court concluded that Mr. Burr’s construction of the mailbox, even though inconsistent with the United States Postal Service guidelines, “does not warrant a departure from the general rule that the duty to motorists owed by an adjacent landowner or an occupier of land adjacent to the road extends only to conditions in the right-of-way that render ordinary travel on the regularly traveled portion of the road unsafe.” Therefore, a landowner owes no duty to a motorist that errantly veers off the road and hits an off-road hazard.
Conclusion. As a landowner, or an occupier of land adjacent to a public roadway, it is your duty to ensure that any off-road object or obstruction does not make the ordinary and usual travel of the roadway unsafe. Only then can a landowner, or occupier of land, be liable for injuries caused by an off-road object or obstruction. Ohio does not impose a duty on landowners or occupiers of land to keep a right-of-way free of objects that may pose a danger to wayward vehicles. To read the Ohio Supreme Court’s decision, visit the Ohio Supreme Court’s website.
Tags: Right-of-way, Negligence, landowner liability, Duty of Care, Roadways, Travel, Motorists
Following a flurry of activity before its break, the Ohio General Assembly can now enjoy a few lazy days of summer. While the legislature spent much of its energy passing the state budget, it also moved several bills affecting agriculture. Here’s the latest update on legislation that's moving down at the capitol.
Solar and wind facilities. We wrote earlier about S.B. 52, the wind and solar facility siting bill the legislature passed in late June. Despite pressure to veto the bill, Governor DeWine signed the legislation on July 12; its effective date is October 9, 2021. The new law requires developers to hold a public meeting in a community at least 90 days prior to applying for project approval, allows counties to designate restricted areas where wind and solar projects may not locate, sets up a referendum process for county residents to have a voice in restricted area designations, adds two community officials to the project review process at the Power Siting Board, and establishes rules for decommissioning of projects, including performance bonds.
Natural gas services. While communities will have a say in siting wind and solar facilities after S.B. 52’s passage, the opposite will be true for natural gas services. H.B. 201 guarantees that persons have a right to obtain natural gas and propane services, subject to municipal home rule authority and regulatory oversight. The bill prohibits political subdivisions from limiting or preventing gas and propane services within its boundaries. Governor DeWine signed the bill on July 1 and it becomes effective on September 28, 2021.
State budget. It took a good while, but the governor signed the state budget bill, H.B. 110, on June 30 and it took effect on July 1. Highlights of agricultural provisions in the bill include:
- H2Ohio. Requires state agencies that prepare the already mandated annual report on the H2Ohio fund to present the report to the Senate and House finance committees each year. ORC 126.60(D).
- Ohio Proud. Allows the Ohio Department of Agriculture (ODA) to sell merchandise that promotes the Ohio Proud program, and to use proceeds for the Ohio proud, international, and domestic market development fund. ORC 901.171(B) and (C).
- Liming inspections. Allows the ODA director to enter into agreements with private parties for the inspection, sampling, and analysis of liming material and allows those parties to enter onto private and public land for inspections. ORC 905.59.
- OSU Extension. Establishes a farm production, policy, and financial management institute in OSU Extension to address the integration of farm production practices, agricultural marketing, farm policy, and financial management challenges for farm owners and managers, lending agencies, ag teachers, and OSU professionals and provides the institute $250,000 each year for two years. ORC 3335.38.
- Farmers market inspections. Removes the option for a farmers market to register and be inspected as a farm market with ODA. ORC 3717.221(A) and (B).
- Wine taxes. Makes the 2 cents per gallon wine tax revenue credited to the Ohio Grape Industries Fund permanent. R.C. 4301.43.
- Southern Ohio Agricultural and Community Development Foundation. At the end of 2021, abolishes the foundation and its board, which was established in 1998 through the Tobacco Master Settlement Agreement with tobacco manufacturers. Any remaining funds will transfer to the Ohio Proud Marketing Fund.
- H2Ohio. Appropriates $49.3 million each year to the H2Ohio program for 2022 and 2023.
- Farmland preservation. Allocates $500,000 for the purchase of agricultural easements in 2022 and 2023.
- Soil and water phosphorus program. Allocates $10.7 million in 2022 and 2023 for programs to assist in reducing phosphorus in the Western Lake Erie Basin.
- SWCDs in Western Lake Erie Basin. Allocates $3.85 million to support Soil and Water Districts in the Western Lake Erie Basin in complying with former S.B. 1 and assisting with soil testing, nutrient management plan development, manure management technologies, filter strips and water management.
Bills on the move
Beginning farmers. H.B. 95 finally passed the House on June 28, 2021—it was introduced in February and lagged in the last legislative session. The proposal allows individuals to be certified as beginning farmers either through USDA or a certification program by ODA, Ohio State or Central State. Certification criteria includes: farming in Ohio less than 10 years, having a net worth of less than $800,000, providing a majority of labor and management for the farm, demonstrating adequate knowledge of farming, submitting projected earning and profits, demonstrating that farming will be a significant source of income, and participation in an approved financial management program. The bill would establish two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and another for beginning farmers that attend a financial management program. The bill now requires Senate approval.
Slow-moving vehicles. H.B. 30 had its first hearing before the Senate Transportation committee on June 23. The proposal passed the House in April. The bill aims to increase visibility of animal-drawn vehicles by changing marking and lighting requirements. The vehicles would have to display either an SMV emblem or reflective micro prism tape rather than reflective tape on the rear, a flashing yellow lamp at the top and rear, in addition to current lighting requirements.
Earning statements. A bill passed by the House on June 16 has been referred to the Senate Small Business and Economic Opportunity Committee. H.B. 187 would require all employers to provide employee with a written or electronic statement of the employee’s earnings and deductions for each pay period, to include total hours worked and hourly rate, total gross wages, amounts and purposes of addition or deductions from wages, and total net wages. The bill also establishes a request and violation reporting system for employers who fail to provide the statements.
Moratorium on animal feeding facilities. A bill introduced by two representatives from northwestern Ohio would affect new and expanding animal feeding facilities in the Maumee watershed. H.B. 349 would not allow the Ohio Department of Agriculture to approve a permit for a new construction or expansion of a “regulated animal feeding facility” if it is in the Maumee watershed and the director of ODA has determined that the spring load of total phosphorus for the Maumee River exceeded 860 metric tons and total dissolved reactive phosphorus exceeded 186 metric tons in the preceding calendar year. Regulated animal feeding facilities are those housing over 250 dairy cattle; 300 beef cattle; 3,000 piglets; 750 hogs; 25,000 egg layers; 37,500 meat chickens; 9,000 egg layers and meat chickens if on liquid manure handling system; 16,500 turkeys; 3,000 sheep and 150 horses. H.B. 349 was referred to the House Agriculture and Conservation committee on June 16, 2021.
Tags: Ohio legislation
"Farm Office Live" returns this summer as an opportunity for you to get the latest outlook and updates on ag law, farm management, ag economics, farm business analysis, and other related issues. Targeted to farmers and agri-business stakeholders, our specialists digest the latest news and issues and present it in an easy-to-understand format.
The live broadcast is presented monthly. In months where two shows are scheduled, one will be held in the morning and one in the evening. Each session is recorded and posted on the OSU Extension Farm Office YouTube channel for later viewing.
|July 23, 2021||10:00 - 11:30 am||December 17, 2021||10:00 - 11:30 am|
|August 27, 2021||10:00 - 11:30 am||January 19, 2022||7:00 - 8:30 pm|
|September 23, 2021||10:00 - 11:30 am||January 21, 2022||10:00 - 11:30 am|
|October 13, 2021||7:00 - 8:30 pm||Februrary 16, 2022||7:00 - 8:30 pm|
|October 15, 2021||10:00 - 11:30 am||February 18, 2022||10:00 - 11:30 am|
|November 17, 2021||7:00 - 8:30 pm||March 16, 2022||7:00 - 8:30 pm|
|November 19, 2021||10:00 - 11:30 am||March 18, 2022||10:00 - 11:30 am|
|December 15, 2021||7:00 - 8:30 pm||April 20, 2022||7:00 - 8:30 pm|
Topics we will discuss in upcoming webinars include:
- Coronavirus Food Assitance Program (CFAP)
- Legislative Proposals and Accompanying Tax Provisions
- Outlook on Crop Input Costs and Profit Margins
- Outlook on Cropland Values and Cash Rents
- Tax Issues That May Impact Farm Businesses
- Legal Trends
- Legislative Updates
- Farm Business Management and Analysis
- Farm Succession & Estate Planning
To register or to view a previous "Farm Office Live," please visit https://go.osu.edu/farmofficelive. You will receive a reminder with your personal link to join each month.
The Farm Office is a one-stop shop for navigating the legal and economic challenges of agricultural production. For more information visit https://farmoffice.osu.edu or contact Julie Strawser at firstname.lastname@example.org or call 614.292.2433
Tags: Farm Office Live, farm management, Farm Succession, Estate Planning, Farm Business, Dairy Production, Farm Tax, Agricultural Law, Resource Law
Poison hemlock and Canada thistle are making unwelcome appearances across Ohio, and that raises the need to talk about Ohio’s noxious weeds law. The law provides mechanisms for dealing with noxious weeds—those weeds that can cause harm to humans, animals, and ecosystems. Location matters when we talk about noxious weeds. That’s because Ohio law provides different procedures for dealing with noxious weeds depending upon where we find the weeds. The law addresses the weeds on Ohio's noxious weeds list in these four locations:
- Along roadways and railroads
- Along partition fence rows
- On private land beyond the fence row
- On park lands
Along roadways and railroads. The first window just closed for mandatory mowing of noxious weeds along county and township roads. Ohio law requires counties, townships, and municipalities to destroy all noxious weeds, brush, briers, burrs, and vines growing along roads and streets. There are two mandated time windows for doing so: between June 1 and 20 and between August 1 and 20. If necessary, a cutting must also occur between September 1 and 20, or at any other time when necessary to prevent or eliminate a safety hazard. Railroad and toll road operators have the same legal duty, and if they fail to do so, a township may cause the removal and bring a civil action to recover for removal costs.
Along partition fence rows. Landowners in unincorporated areas of the state have a duty to cut or destroy noxious weeds and brush within four feet of a partition fence, and the law allows a neighbor to request a clearing of the fence row if a landowner hasn’t done so. If a landowner doesn’t clear the fence row within ten days of receiving a request to clear from the neighbor, the neighbor may present a complaint to the township trustees. The trustees must visit the property and determine whether there is a need to remove noxious weeds and if so, may order the removal and charge removal costs against the landowner’s property tax bill.
On private land beyond the fence row. A written notice to the township trustees that noxious weeds are growing on private land beyond the fence row will trigger another township trustee process. The trustees must notify the landowner to destroy the weeds or show why there is no reason to do so. If the landowner doesn’t comply within five days of receiving the notice, the trustees may arrange for destruction of the weeds. The township may assess the costs against the landowner’s property tax bill.
On park lands. If the township receives notice that noxious weeds are growing on park land or land owned by the Ohio Department of Natural Resources, the trustees must notify the OSU Extension Educator in the county. Within five days, the Educator must meet with a representative of the ODNR or park land, consider ways to deal with the noxious weed issue, and share findings and recommendations with the trustees.
Even with noxious laws in place, we recommend talking before taking legal action. If you’re worried about a noxious weed problem in your area, have a talk with the responsible party first. Maybe the party isn’t aware of the noxious weeds, will take steps to address the problem, or has already done so. But if talking doesn’t work, Ohio law offers a way to ensure removal of the noxious weeds before they become a bigger problem.
We explain the noxious weed laws in more detail in our law bulletin, Ohio’s Noxious Weed Laws. We’ve also recently illustrated the procedures in a new law bulletin, Legal Procedures for Dealing with Noxious Weeds in Ohio’s Rural Areas. Also see the OSU Agronomy Team’s recent article about poison hemlock in the latest edition of C.O.R.N, available through this link.
Tags: noxious weeds, Ohio noxious weed law, poison hemlock
Here’s our latest gathering of agricultural law news that you may want to know:
Congress considers bankruptcy code changes with Family Farmer Relief Act of 2019. Senator Grassley and Representative Delgado introduced companion bills in their respective chambers of Congress that would modify the definition of “family farmer” in the federal bankruptcy code. The change would raise the operating debt limit for a family farmer from $3.2 million as listed in the U.S. Code to $10 million. Sometimes a small change can make a big difference. In chapter 12 of the bankruptcy code, a “family farmer” has special options that other chapters do not offer, such as the power to determine a long-term payment schedule and pay the present market value of the asset instead of the amount due on the loan. Many farmers had not been able to take advantage of the special bankruptcy provisions because of the low debt limit, but that may change. For more information on the bills, click HERE for S.897 and HERE for H.R. 2336.
Congress also considers changing the number of daily hours a driver may transport livestock. The Transporting Livestock Across America Safely Act would instruct the Secretary of Transportation to amend the rules governing drivers who transport certain animals. The changes would loosen restrictions on the number of hours that drivers may drive, and increase the types of activities that are exempt from counting toward the maximum time. Travel under 300 miles would be exempt from the hours of service (HOS) and electronic logging (ELD) requirements. Both chambers of Congress are considering this bill, and both companion bills are currently in committee. For more information on the bills and to learn about the changes proposed, click HERE for S.1255 and HERE for H.R. 487.
It’s not too late to submit comments to the FDA about its potential cannabidiol rulemaking. Electronic or written comments can be sent to the FDA until July 2nd, although the deadline to request to make an oral presentation or comment at tomorrow’s hearing has passed. Click HERE for more information from the Federal Register about the May 31st hearing and submitting comments.
Meatpackers face second class-action lawsuit, and R-CALF refiles. In our last edition of The Harvest, we talked about a new class-action lawsuit filed in Illinois federal court by a number of cattle ranchers, including R-CALF, against the nation’s largest meatpacking companies. Now, another lawsuit has been filed in Minnesota federal court also alleging a price fixing conspiracy by the meatpackers. The second lawsuit is being brought by a cattle futures trader, rather than a rancher. After the second suit was filed, R-CALF voluntarily dismissed its case in Illinois to refile it in Minnesota. This refiling allows the lawsuits to be heard by the same court.
Tyson sues the USDA’s Food Safety and Inspection Service. Tyson, which is named as a defendant in the class action suits we just mentioned, is a plaintiff in a case against the USDA’s Food Safety and Inspection Service. The company alleges that a FSIS inspector falsified an inspection of 4,622 hogs, which were intermingled with another 8,000 carcasses, at one of its Iowa facilities in 2018. The company claims that the false inspection required it to destroy all of the carcasses, and cost nearly $2.5 million in total losses and expenses. The complaint, which is available HERE, alleges four counts: negligence, negligent inspection, negligent retention, and negligent supervision. The lawsuit is based on the legal principle that an employer is liable for the actions of its employee.
Ohio Case Law Update
Plaintiff must prove that a defendant wedding barn operator’s breach of a duty caused her harm. Conrad Botzum Farmstead is a privately operated wedding and event barn located in the Cuyahoga Valley National Recreation Area and on lease from the National Park Service. The plaintiff in the case was attending a wedding at the barn, where she broke her ankle while dancing on a wooden deck. The jury trial found that the barn operator was 51% at fault for her injuries, and awarded the plaintiff compensation. However, the barn operator appealed the decision and won. The Ohio Ninth District Court of Appeals found that the plaintiff did not introduce sufficient evidence to prove that any act or breach of duty by the barn operator actually or proximately caused the plaintiff to fall and break her ankle. The case raises standard questions of negligence, but it is worth noting in the Ag Law Blog because the court did not base its decision on Ohio’s agritourism immunity statute. The case is cited as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874 (9th Dist.), and the decision is available HERE.
Ohio History Connection can use eminent domain to cancel Moundbuilders Country Club’s lease. A Licking County judge ruled in early May that the Ohio History Connection, formerly the Ohio Historical Society, can reclaim full ownership of land that it had leased to a country club. The Moundbuilders County Club has operated a golf course around prehistoric Native American earthworks for decades under a long-term lease with the state. The Ohio History Connection sought to have the lease terminated in order to give the public full access to the earthworks as part of a World Heritage List nomination. The judge viewed the request as sufficiently in the public interest to apply Ohio’s eminent domain laws.
Tags: bankruptcy, roadway law, CBD, wedding barn, eminent domain
Not only have you read it in the almanac, but you also feel it when you walk outside. Spring is finally arriving, and your field awaits. As the weather improves, farm machinery and equipment will head back on the roads for planting season. We wanted to take a moment to look at Ohio’s roadway laws and how they apply to farm machinery.
State law includes both special requirements and special exceptions for farm machinery operating on Ohio roadways. “Farm machinery” broadly means all machines and tools used in agriculture, whether for planting, harvesting, or transporting agricultural products. The special rules that apply to farm machinery are primarily safety driven, and impose additional and different requirements on farmers when compared to other drivers.
Fortunately, we have a law bulletin, available HERE, that explains these special requirements and exceptions. The law bulletin, titled “Rules of the Road: Navigating Ohio Roadway Laws for Farm Machinery,” sifts through the statutes and regulations to boil down topics like:
- How does Ohio law define farm machinery?
- What are the marking requirements for farm machinery traveling on roads? Specifically, when are slow moving vehicle (SMV) emblems, speed identification symbols (SIS), lighting, and reflectors required?
- How do vehicle weight and dimension limits apply to farm machinery?
- When is it okay to operate left of center when the road’s lane is too narrow?
- When must traffic control devices like signs, signals, and flaggers be followed?
- When may farm machinery enter a freeway?
Additionally, you can also learn more about Ohio’s laws regarding Speed Identification Symbols HERE, and Ohio’s laws regarding All-Purpose Vehicles (APVs) HERE. It can be a lot of information to keep in mind, especially given how busy a farmer’s life gets this time of year. That is why we do our best to explain the law in simple, to-the-point law bulletins and blog posts.
Tags: roadway law, equipment on the road, machinery on the road
Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:
- Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
- Field bindweed (Convolvulus arvensis)
- Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
- Perennial sowthistle (Sonchus arvensis)
- Russian knapweed (Acroptilon repens)
- Leafy spurge (Euphorbia esula)
- Hedge bindweed (Calystegia sepium)
- Serrated tussock (Nassella trichotoma)
- Columbus grass (Sorghum x almum)
- Musk thistle (Carduus nutans)
- Forage Kochia (Bassia prostrata)
- Water Hemp (Amaranthus tuberculatus)
The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property. The current noxious weeds list also contains the following plants, which will remain on the list:
- Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
- Canada thistle (Cirsium arvense L. (Scop.))
- Poison hemlock (Conium maculatum)
- Cressleaf groundsel (Senecio glabellus)
- Musk thistle (Carduus nutans)
- Purple loosestrife (Lythrum salicaria)
- Mile-A-Minute Weed (Polygonum perfoliatum)
- Giant Hogweed (Heracleum mantegazzianum).
- Apple of Peru (Nicandra physalodes)
- Marestail (Conyza canadensis)
- Kochia (Bassia scoparia)
- Palmer amaranth (Amaranthus palmeri)
- Kudzu (Pueraria montana var. lobata)
- Japanese knotweed (Polygonum cuspidatum)
ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018. E-mail comments to email@example.com or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068. Learn more about noxious weed laws in our bulletin, here.
Tags: Ohio noxious weeds, noxious weed law, Ohio department of agriculture
The Federal Motor Carrier Safety Administration (FMCSA) has issued a second 90-day waiver from the Electronic Logging Device (ELD) rule for agricultural transportation. The agency had previously issued a waiver that was set to expire on March 18, 2018. The ELD rule requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data. Read our previous post on the ELD rule here.
The reason for delaying the ELD rule for agriculture, according to the agency, is to provide more time for the agency to address agriculture’s unique needs. Agriculture has argued that HOS provisions that mandate a ten hour off-duty period for drivers put agricultural commodities like livestock, fish, bees, and plants at risk by extending the transportation period. Although the HOS rule contains several exemptions for agriculture, such as for personal conveyances and for transport of commodities within a 150-air mile radius of the source, many argue that the exemptions need further clarification and that electronic logging device technology does not recognize the agricultural exemptions. In addition to delaying the ELD compliance date for agriculture, FMCSA also promises to provide further guidance on the Hours-of-Service exemptions and their relationship to the ELD rule. guidance should help drivers understand if and how the ELD rule applies to their transportation of agricultural goods.
FMCSA’s announcement of the new waiver is available here. More information about the ELD rule and agriculture is here and the HOS exemptions for agriculture are here.
Tags: ELD rule, electronic logging device rule, FMCSA
Ohio Agricultural Law Blog--March 18 might be new date for complying with Electronic Logging Device rule
Late last year, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a 90-day waiver to the Electronic Logging Device (ELD) rule for livestock and agricultural commodity haulers in response to a multi-party petition by agricultural groups. The waiver is set to expire on March 18, 2018. Agricultural groups are now awaiting the agency’s response to a second petition they’ve filed, which seeks another waiver and limited exemption from the ELD rule for agriculture before the March 18 waiver expiration date. There is also talk that Congress will delay the ELD rule for agriculture, as proposed by H.R. 3282, but time is running out for a legislative fix.
The ELD rule, which became effective last December 18, requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data rather than using the current practice of recording data on paper logs. Congress directed the Secretary of Transportation to adopt regulations requiring ELD use in commercial motor vehicles that are involved in interstate commerce and operated by drivers who are required to keep records of duty status (RODS). The purpose of the rule is to create a safer work environment for drivers by making it easier and faster to accurately track, manage, and share the data.
The intent of the 90-day waiver for agriculture was to provide the agency more time to clarify the rule’s applicability to agriculture, which included considering agricultural exemptions from the rule. Agricultural groups also asked the agency to review and clarify the HOS, RODS and Commercial Driver’s License (CDL) exemptions for agriculture. While it hasn’t yet responded to the second petition to extend the ELD waiver, the FMSCA did recently provide additional explanations of the ELD rule’s application to agriculture, along with clarifications of HOS and CDL requirements. That information is available on the agency’s website.
How does the ELD rule apply to agriculture?
Here’s a summary of the FMSCA’s explanation of how the ELD rule applies to agricultural situations:
- The following are “agricultural exemptions” from HOS regulations, which would also remove the vehicle or driver from the ELD rule:
- “Covered farm vehicles,” which means vehicles that are:
- Registered in a state with a license plate or other designation that allows law enforcement to identify it as a farm vehicle;
- Operated by the owner or operator of a farm, or an employee or family member of the owner or operator;
- Used to transport agricultural commodities, livestock, machinery, or supplies to or from a farm;
- Not used in for-hire motor carrier operations;
- 26,000 pounds or less and operating anywhere in the country, or 26,001 pounds or more and operated anywhere in the state of registration or operated across state lines within a 150-air mile radius of the farm.
- Drivers who transport agricultural commodities, including livestock, live fish and bees, within a 150-air mile radius of the farm.
- Once a driver operates beyond the 150-air mile radius, HOS regulations apply and the driver must use an ELD for movement beyond the 150-air mile mark.
- Note that FMCSA has recently published proposed guidance on this exemption for vehicles traveling to pick up an agricultural commodity or returning from a delivery point and for trips beyond 150 air-miles from the source of the agricultural commodity. The proposed guidance is here.
- Also note that drivers transporting commercial bees or livestock in interstate commerce are exempt from the HOS 30-minute break requirement when bees or livestock are on the vehicle.
- If a vehicle or a combination of vehicles (truck and trailer) has a gross vehicle weight rating (GVWR), a gross combination weight rating (GCWR), a gross vehicle weight (GVW), or a gross combination weight (GCW) of 10,001 pounds or more and the operation is not otherwise excepted as described above, FMCSA regulations generally apply to the driver but the driver is not subject to the ELD rule in the following situations:
- A driver operates within a 100-air mile radius of the normal work reporting location and works no longer than 12 hours per day. This is the same exception that applies to preparation of a logbook.
- A driver uses paper RODS no more than 8 days in any 30-day period.
- A vehicle is older than model year 2000.
- Non-business related transportation of horses and other animals:
- The ELD rule does not apply to the transportation of horses and other animals to shows and events, as long as the transportation is not business related or for-hire (even if prize and scholarship money is offered).
- Note that FMCSA has recently updated its guidance for non-business related transportation of horses, available here.
What if the ELD rule applies to an agricultural situation?
Drivers who are subject to the new ELD rule must understand and be able to use ELDs by the required deadline, which FMCSA states includes knowing how to annotate and edit RODS, certify RODS, and collect required supporting documents. Drivers must also know how to display and transfer data to safety officials when requested. For information about meeting the ELD requirements, visit the FMSCA’s ELD page.
For more information on FMCSA regulations and agriculture
Learn more about the ELD rule and other FMCSA regulations that might apply to agriculture in this excellent publication by our colleagues, Tiffany Dowell Lashmet at Texas A&M and Beth Rumley at the National Agricultural Law Center: Outline for Analyzing Federal Motor Carrier Safety Administration Regulation: Applicability for Agriculture.
Tags: ELD rule, electronic logging device, FMSCA regulations
Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
A new Ohio law affects farmers that plan to use certain utility vehicles for farm work, including Gators, Mules and other utility vehicles with a bed designed to transport cargo. The new law is part of the 2018-2019 transportation budget, formally known as House Bill 26. HB 26, which goes into effect on June 30, 2017, permits utility vehicles to travel on any public road or right of way other than a freeway when travelling from one farm field to another for agricultural purposes.
Under HB 26, utility vehicles are now expressly required to display a triangular Slow-Moving Vehicle (SMV) emblem. Previously, it was up to local law enforcement to interpret the law and decide whether a utility vehicle should have a SMV. The new law also clearly allows utility vehicles to travel on public roads between farm fields, whereas the old law required farmers to know whether the county or township allowed utility vehicles on the road. Utility vehicle operators can read more about the old law in our previous blog post on APVs, ATVs, and four-wheelers here.
What Qualifies as a “Utility Vehicle?”
Farmers should be aware that this law only covers what it defines as “utility vehicles.” This means that the law only applies to vehicles designed with a bed for transporting material or cargo related to agricultural activities. Not all ATVs and APVs will be included in this definition.
The law is good news for farmers. Those who plan to use a utility vehicle on the farm should know the following before taking the vehicle out:
- In order to legally use a utility vehicle on a public road, a driver must be traveling from one farm field to another farm field for agricultural purposes.
- Utility vehicle drivers must display a SMV on any utility vehicle used on a public road as it travels between farm fields.
- Ohio Revised Code Section 5589.10 prohibits the placement of earth, mud, manure, or other injurious materials on a public highway. Therefore, farmers should avoid leaving such debris in the roadway or should clean up the roadway if a utility vehicle leaves mud behind.
More information on HB 26 is here, under Sec. 4511.216 on page 328 of the bill.
Tags: ATV, SMV