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Here’s our gathering of recent agricultural law news you may want to know:
- The Ohio Department of Agriculture will hold a hearing on April 5, 2018 at 9 a.m. to receive testimony on proposed amendments to the Agricultural Pollution Abatement Program. The amendments are largely alterations of the format and structure of the rule to allow for easier reading, and do not impact the substance of the rule in many situations. Two changes to the substance of the rules is the addition of a duty to prevent pollution from “residual farm products,” which means bedding, wash waters, waste feed, silage drainage and some mortality composting, and clarification of the investigation and enforcement process. Read the ODA’s summary of the changes here. Hearing information is here.
- Considering solar leasing on your farm? If so, sit in on the Solar Leasing for Agricultural Landowners webinar on April 4 at Noon. The free webinar features our colleague Prof. Shannon Ferrell of Oklahoma State, who will remove some of the mystery of solar leasing for landowners. More information is here.
- Several groups have filed a lawsuit against the USDA for its March 12 withdrawal of the Organic Livestock and Poultry Practices rule finalized during President Obama’s tenure. The rule would have established animal welfare standards for organic producers. Read more about the organizations’ claims in this post by our Ag & Food Law Consortium partner, the National Sea Grant Law Center.
- Another Consortium partner of ours, Penn State Law, has prepared a comprehensive summary of the current status and legal developments for the problematic Rover Pipeline that is affecting many landowners in Ohio and other states. The summary is here.
- Ohio legislative activity:
- The Apiary Immunity bill, H.B. 392, passed the Ohio House on March 21 and was introduced in the Ohio Senate on March 26. The bill proposes limited liability for registered apiary owners.
- Rep. Fedor (D-Toledo) and Rep. Sheehy (D-Toledo) introduced HCR 25, a resolution encouraging the U.S. EPA Administrator to declare the open waters of Western Lake Erie as impaired, consistent with the Ohio EPA’s recent water quality report we reported on earlier this week.
Written by Ellen Essman, Sr. Research Associate, OSU Agricultural & Resource Law Program
The Ohio EPA has released its draft water quality report for 2018 and the report proposes to list the open waters of the Western Basin of Lake Erie as “impaired.” Readers of the Ag Law Blog will remember that the road to this listing has been long and complicated. The numerous posts we’ve written on this subject can be found by searching “impaired waters” on our blog website.
The controversy began in the fall of 2016, when Michigan and Ohio submitted their respective impaired waters lists to the U.S. EPA. Every two years, a regulation promulgated under the Clean Water Act requires states to turn in a list of their impaired waters. Michigan listed the waters of Lake Erie under its jurisdiction as impaired, while Ohio did not list the open waters in the Western Basin of Lake Erie as impaired. The waters described by Michigan as impaired and those not listed by Ohio are basically one in the same, hence the problem. The U.S. EPA approved Michigan’s list in early 2017, but made no decisions about Ohio’s list.
As a result of the discrepancy over Lake Erie, environmental and other groups sued the U.S. EPA to make a decision about Ohio’s impaired waters list. On May 18, 2017, the U.S. EPA approved Ohio’s list. However, on January 12, 2018, the U.S. EPA withdrew its earlier approval and asked Ohio to compile additional data for a new evaluation of the status of the Western Basin of Lake Erie.
With all of this back and forth and litigation, it is now long past the due date for the 2016 impaired waters list. As a result, the draft water quality report submitted by the Ohio EPA on March 22 contains the 2018 list.
Ohio EPA’s 2018 Draft Water Quality Report
In its draft water quality report, the Ohio EPA outlines the general condition of Ohio’s waters and lists “impaired waters” that are not meeting federal or state water quality goals and waters that have improved to meet water quality standards. For the first time, the EPA includes the open waters in the Western Basin of Lake Erie on its impaired list. The impaired designation is for recreational uses “due to harmful algae” and for drinking water “due to occurrences of microcystin.” (Microcystin are harmful toxins created by blue-green algae. More information about these toxins is here.) Other new areas listed as impaired for drinking water due to harmful algae are Sims Run, parts of the Maumee River, the headwaters to Grand River and the headwaters of Cowan Creek in the Little Miami River watershed.
Next steps and public comments
While an impaired listing may not create immediate change in the Western Basin, it will require Ohio to create total maximum daily loads, which are the amounts of different pollutants allowed to be discharged each day in the open waters. This could eventually mean increased regulation of certain pollutants in the area, which may include agricultural nutrients such as phosphorous and nitrogen. Only time will tell.
The EPA is accepting written comments on its proposed list of impaired waters. Submit comments by May 4, 2018, to email@example.com, or to Ohio EPA Division of Surface Water, P.O. Box 1049, Columbus, Ohio 43216-1049, attn: 303(d) comments. Following public review and comments, the agency will submit a final report to the U.S. EPA. The agency published a news release on the draft water quality report and is hosting an upcoming webinar on the report on April 25, 2018.
Read the EPA's draft water quality report here.
Amidst a great deal of controversy, President Trump signed the “Consolidated Appropriations Act, 2018” on March 23. The omnibus $1.3 trillion spending package includes a number of provisions that affect agriculture, not all spending related. One glaring omission from the bill that agriculture wanted, however, was language allowing the EPA to withdraw the Waters of the United States (WOTUS) rule. Otherwise, the new law contains fixes and clarifications for several key legal issues agriculture has faced in the past year and funding for important agricultural programs.
Section 199A tax deduction revised
Sellers of grain who were hoping to capitalize on the IRC § 199A 20% gross sales deduction when selling grain to their cooperative will be disappointed that the spending bill has removed the deduction and that the removal is retroactive to January 1, 2018. Congress enacted new provisions that will address sales to cooperatives. According to my colleague and tax expert Kristine Tidgren at Iowa State, “the cooperative patron is subject to a new bifurcated calculation and a hybrid 199A deduction. Essentially, the fix gives the cooperative patron a deduction that blends the new 199A deduction with the old 199 DPAD deduction (all within the new 199A). Depending upon their individual situations, cooperative patrons may be advantaged, disadvantaged, or essentially treated the same by selling to a cooperative rather than selling to a non-cooperative.” Read more of Kristine’s analysis here.
CERCLA emissions reporting for livestock goes away
The spending bill incorporates provisions of the “Fair Agricultural Reporting Methods Act” proposed earlier by a bi-partisan group of Senators concerned about a court ruling that subjected farms to air emissions reporting under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (explained in our previous post). The EPA had delayed the reporting requirement to May 1, 2018. The reporting mandate is removed under the new law, however, which states that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides. A “farm” is an area used to produce crops or livestock that have a total value of $1,000 or more.
Electronic logging device rule further delayed
We’ve reported several times on the Electronic Logging Device (ELD) rule that would require commercial agricultural haulers to utilize electronic technology that automatically records hours-of-service data. The Federal Motor Carrier Safety Administration (FMCSA) issued several waivers that delayed the requirement. The new spending bill effectively voids the ELD rule until September 30, 2018, by prohibiting the FMCSA from using its funds during that time to implement, administer, or enforce provisions regarding the use of electronic logging devices by operators of commercial motor vehicles transporting livestock or insects.
County-level ACRE pilot program to be established
The spending bill directs USDA to create a 2018 pilot program for county-level agriculture risk coverage (ARC) payments for the 2017 crop year. Farm Service Agency offices in each State will have the opportunity to provide agricultural producers a supplemental payment to ensure that there are not significant yield calculation disparities between comparable counties in the State.
Rural broadband grant program funded
The law allocates $600,000,000 for the USDA to conduct a new broadband loan and grant pilot program under the Rural Electrification Act. At least 90 percent of the households to be served by the project receiving a loan or grant under the pilot program must be in a rural area currently without sufficient access to broadband.
Conservation funding maintained
The spending bill maintains full funding levels for farm bill conservation programs and exempts farms participating in conservation programs from obtaining System for Award Management (SAM) and Data Universal Numbering System (DUNS) numbers. The Great Lakes Restoration Initiative received $300 million to carry out activities that would support the Initiative and the Great Lakes Water Quality Agreement, including grants for research, monitoring, outreach, and implementation.
Research funding increased
In stark contrast to significant cuts proposed by the White House, the spending bill contains the largest increase in research funding in over a decade. Research programs at the USDA would grow by $33 million, to $1.2 billion. The funding includes a $25 million increase to a $400 million budget for the Agriculture and Food Research Initiative (AFRI) established by the 2008 Farm Bill, surprisingly still $300 million shy of the 2008 Farm Bill’s proposed funding level.
Readers can dig into the 878 pages of the Consolidated Appropriations Act of 2018 here.
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.
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.