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Update: The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below. On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017. The Federal Register entry is available here.
Will the bee's ESA listing stand, and how might it affect agriculture?
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status. The rule was originally slated to go into effect on February 10, 2017. If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.
The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee. The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name. Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.” Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces. The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.
Possible reversal of the rule
Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days. In the meantime, the Congressional Review Act (CRA) may also affect the final rule. The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule. A signature by the President is the final step required to invalidate the rule. What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:
- There is a new presidential administration;
- Congress and the President are members of the same party;
- The previous President was a member of the opposing party; and
- The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.
The text of the CRA is available here. With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.
Importance of the rusty patched bumble bee
The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses. According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.
The Endangered Species Act
What exactly is the process for listing a species as “endangered?” The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.” Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:
- (A) The present or threatened destruction, modification or curtailment of its habitat or range;
- (B) Overutilization for commercial, recreational, scientific, or educational purposes;
- (C) Disease or predation;
- (D) The inadequacy of existing regulatory mechanisms; or
- (E) Other natural or manmade factors affecting its continued existence. 16 USC 1533.
In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied. For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development. Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees. What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.
Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee. Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species. Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.
Significance of ESA listing
After a species is labeled “endangered,” what happens next? In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species. The term “critical habitat” does not apply to everywhere the species is found. Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.
Implications for agriculture
Under the ESA, federal agencies and private entities have different responsibilities. Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.
Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce. What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added). It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat. The FWS rule defining “harm” can be found here. The government can assess penalties against those who violate these provisions.
Farmers and other private entities should be aware of the designation of a species as endangered. In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat. Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species. But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee. The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.
Senate President Larry Obhof and Speaker of the House Cliff Rosenberger have made committee assignments for the new session of Ohio’s 132nd General Assembly. While there are no major changes to committee structure or leadership, the committees contain many new members, including several legislators serving their first terms as legislators.
Sen. Cliff Hite (R-Findlay) will again chair the Senate’s Agriculture Committee, with newly elected Sen. Frank Hoagland (R-Mingo Junction) serving as vice chair and first Senate termer Sen. Sean O’Brien (D-Bazetta) appointed as the ranking minority member. O’Brien previously served three terms in the House of Representatives, which included a term on its Agriculture and Rural Development Committee.
- Returning from last session’s Agriculture Committee are Senators Bill Beagle (R-Tipp City), Bob Peterson (R-Washington Court House) and Michael Skindell (D-Lakewood).
- New to the committee are Senators Bob Hackett (R-London), previous House member Stephanie Kunze (R-Hilliard), Frank Larose (R-Hudson), Charleta Tavares (D-Columbus) and Joe Uecker (R-Miami Township).
Rep. Brian Hill (R-Zanesville) will again lead the House Agriculture and Rural Development Committee with Rep. Kyle Koehler (R-Springfield) serving as vice chair for the first time and Rep. John Patterson (D-Jefferson) returning as the ranking minority member.
- Representatives Jack Cera (D-Bellaire), Christina Hagan (R-Marlboro Township), Michael O’Brien (D-Warren), Bill Patmon (D-Cleveland), Jeff Rezabek (R-Clayton), Michael Sheehy (D-Toledo) and Andy Thompson (R-Marietta) will return to the committee.
- New to both the House of Representatives and the committee are Representatives Rick Carfagna (R-Genoa Township), Jay Edwards (R-Nelsonville), Darrell Kick (R-Loudonville), Scott Lipps (R-Franklin) and Dick Stein (R-Norwalk).
- New to the committee are Representatives Candice Keller (R-Middletown), David Leland (R-Columbus) and Derek Merrin (R-Monclova Township), along with Former Senate President Keith Faber (R-Celina).
Neither committee has a meeting scheduled at this time. Follow the committees' work in the new legislative session at https://www.legislature.ohio.gov/.
Beginning January 22, 2017, employers must use a new version of Form I-9 for employment eligibility verification of new hires. The U.S. Citizenship and Immigration Services (USCIS) revised Form I-9 last November and gave employers a short grace period for making the conversion to the new form, dated 11/14/16. The new form is available on the USCIS website at https://www.uscis.gov/i-9.
Employers will notice several improvements to the new I-9:
- The instructions are now separate from the form and include specific guidance on each section.
- The form is much more computer-friendly, with drop-down lists, calendars, on screen prompts and instructions for each field, a "start over" button and easy access to full instructions.
- The employer may now list more than one preparer and translator who assisted in completion of the form.
- In the first section, the employer must list only "other last names used" rather than "other names used."
- A new "additional information" box provides space for the employer to note important information for the employer's purposes such as additional documents presented, employee termination dates or form retention dates.
Employers must complete a Form I-9 to verify the identity and employment authorization of every individual hired for employment. For more information, see our previous post on Form I-9, and visit the USCIS's "I-9 Central" at https://www.uscis.gov/i-9-central.
Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Update: On January 25, 2017, the Sixth Circuit Court of Appeals granted a motion to hold the WOTUS litigation in the Sixth Circuit in abeyance (putting an issue on hold) while the Supreme Court reviews whether the Sixth Circuit has proper jurisdiction to hear the WOTUS litigation.
The Supreme Court of the United States has accepted a petition to hear an appeal from a Waters of the United States (WOTUS) ruling from the Sixth Circuit Court of Appeals. As discussed in our February 2016 blog post (available here), the Sixth Circuit Court of Appeals ruled that it had jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule). Proposed by the U.S. EPA and the Army Corps of Engineers, the controversial WOTUS Rule attempts to expand the geographic extent of waterways considered to be “waters of the United States” that are subject to the Clean Water Act.
A background on the WOTUS Rule in the Sixth Circuit
On April 21, 2016, the Cincinnati-based Sixth Circuit Court of Appeals determined that federal courts of appeal, and not federal district courts, have proper jurisdiction to hear cases involving the WOTUS Rule. In that case, numerous states argued that federal district courts should have jurisdiction to hear WOTUS Rule cases. However, the Sixth Circuit Court of Appeals held that federal appeals courts had exclusive jurisdiction over the review of the WOTUS Rule. Now that ruling is being challenged before the Supreme Court of the United States.
Challenging the ruling by the Sixth Circuit Court of Appeals
A private manufacturing association—the National Association of Manufacturers, is bringing the case before the Supreme Court. The association previously challenged the WOTUS Rule in federal district court and in the court of appeals. The question presented to the Supreme Court by the National Association of Manufacturers is whether the Sixth Circuit incorrectly decided that the federal courts of appeal have the exclusive jurisdiction under federal law to review the WOTUS Rule. The Supreme Court could decide that the federal appeals courts do not have exclusive jurisdiction to hear cases involving the WOTUS Rule, in which case the WOTUS Rule could be challenged in federal district courts instead of only in federal courts of appeal.
The upcoming change of administration may lead to uncertainty for the future of the WOTUS Rule. The incoming Trump Administration has proposed eliminating the WOTUS Rule altogether. The U.S. EPA and U.S Army Corps of Engineers may be directed to dismantle the WOTUS Rule if the executive branch chooses to eliminate it. That would cause the question before the Supreme Court to become a moot point. The Supreme Court may not even rule on the jurisdictional issue brought by the National Association of Manufacturers, if the incoming administration eliminates the WOTUS Rule quickly.
Some legislators in Washington agree with the incoming Trump administration’s position on the WOTUS Rule. Members of the Senate introduced Senate Resolution 12 (SR 12) on January 12, 2017. SR 12 expresses the position that the U.S. Senate formally requests that the Administrator of the EPA and the Chief of Engineers of the Army Corps of Engineers eliminate the WOTUS Rule altogether. However, SR 12 has not passed in the U.S. Senate and is currently pending. While SR 12 may not force any official action to repeal the WOTUS Rule, it shows support for the incoming administration’s plans to repeal the rule. We can expect WOTUS issues to remain hotly debated in 2017 as either the executive or the judicial branch addresses the WOTUS Rule.
U.S. Senate Resolution 12 is available here. Read the Sixth Circuit’s opinion issued February 22, 2016: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.
Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Below is the second of our two-part series regarding bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session.
Requirements for Humane Society Agents and House Bill 45
House Bill 45 was introduced February 10, 2015 and would have amended existing law to impose additional requirements upon those people hoping to be appointed as humane society agents. A number of changes and additions would have been implemented through the passage of HB 45. The bulk of the proposed legislation concerned training for humane society agents and filing evidence of completing that training with the county recorder. HB 45 would have required county recorders to record “[p]roof of successful completion of training by humane society agents,” as well as “notices of revocation of agents’ appointment” in the official records (emphasis added). According to the bill, proof of completion of training would have had to been signed by the CEO of the organization that provided training, the chief officer of the county humane society, and either the mayor or probate judge in the county.
House Bill 45 was referred to the Local Government Committee on February 11, 2015. No further action was taken, rendering the proposed legislation dead when the 131st General Assembly ended.
Tethering Animals and House Bill 94
House Bill 94 was introduced March 2, 2015 and would have enacted language that would have made it illegal to negligently tether an animal outside in certain situations. The bill would have imposed time limits on tethering and a prohibition on tethering animals in certain weather conditions. Furthermore, a prohibition on tethering would have been imposed if the tethers were unsafe, under a certain length, allowed the animal to touch fences or cross property lines, or were inappropriate for the animal’s size. HB 94 also would have prohibited tethering if the surrounding area was unsanitary, or if the owner of the premises was not present. Finally, the bill would have amended the current law to include punishment for violating the proposed tethering language. The bill, however, was referred to the House Agriculture and Rural Development Committee and afterwards, no action was taken on it.
Animal Abusers and House Bill 177
House Bill 177 was introduced on April 28, 2015. HB 177 would have required people who either were “convicted of or pleaded guilty to” a number of animal abuse violations to submit certain information, along with a fee, to the Attorney General within 30 days of “being convicted or pleading guilty.” HB 177 also tasked the Attorney General with creating and keeping a registry of animal abuse violators.
Law enforcement officers, humane society agents, and dog wardens would have been responsible for notifying the Attorney General of animal abuse violations. Animal shelters would have been prohibited from allowing a person on the registry from adopting a dog, cat, or any animal kept in a home.
The bill was referred to the Agriculture and Rural Development Committee on May 5, 2015, where no further action was taken.
To read HB 177, visit this page.
Sale of Dogs and House Bill 573
House Bill 573 was introduced on May 17, 2016. This bill focused on the sale of dogs both from pet stores and from other entities. The bill would have added or changed a number of definitions in the Ohio Revised Code. Most notably, the law would have made it illegal for a pet store to “negligently…offer for sale” or otherwise “transfer” a dog unless it came from an animal rescue, an animal shelter, a humane society, a dog retailer, or a qualified breeder, all of which were defined elsewhere in the bill.
Additionally, according to HB 573, both dog retailers and pet stores would have been forbidden from selling or otherwise transferring a dog under a number of conditions. Under the bill, they could not have sold dogs less than eight weeks old, dogs that had not been inspected by a veterinarian, and dogs without a microchip, among other conditions. However, none of these requirements would have been applicable to a dog sold or otherwise “transferred from the premises where the dog was bred and reared.” Finally, the bill included language stating that it would preempt local laws regulating the sale of dogs. House Bill 573 was referred to the Finance Committee on May 23, 2016 and no further action was taken.
Invasive Species and House Bill 396
House Bill 396 was introduced on November 16, 2015. This bill dealt with restricting and prohibiting certain species in Ohio. HB 396 would have added a number of definitions to the Ohio Revised Code, including a lengthy list of “prohibited species.” Species of birds, crayfish, fish, insects, and mollusks were included in the list. Additionally, “restricted species” was defined as including the quagga mussel, the zebra mussel, and their eggs. In addition, HB 396 would have given the Chief of the Division of Wildlife, with advice from Ohio Director of Agriculture, the power to designate other restricted and prohibited species subject to a number of considerations. One of these considerations would have been whether or not the species could cause severe harm to agricultural resources. The bill would have made it illegal to possess, introduce, sell, or offer to sell restricted and prohibited species.
The bill was referred to the Agricultural and Rural Development Committee on January 20, 2016 and ultimately did not leave the Committee.
Deer Rehabilitation and House Bill 267
House Bill 267 was introduced on June 22, 2015 and would have changed the Ohio Revised Code to allow licenses to run deer sanctuaries, permits to rehabilitate deer, and training for law enforcement. During the training, law enforcement officers were supposed to learn how to determine whether they needed to humanely euthanize injured deer or transfer them to someone permitted to rehabilitate the deer.
The bill was referred to the House Committee on Energy and Natural Resources on October 1, 2015, and was ultimately stranded there.
Labeling Nursery Stock and House Bill 566
House Bill 566 was introduced on May 12, 2016 and would have made it illegal for a person to “recklessly label or advertise nursery stock as beneficial to pollinators” if the nursery stock had been “treated with a systemic insecticide.” It would also have been illegal for a person to “recklessly label” stock as beneficial if the stock included the U.S. EPA warnings of “pollinator protection box[es]” and “pollinator, bee, or honey bee precautionary statement[s] in the environmental hazard section of an insecticide product label” on its packaging.
The bill was referred to the Agriculture and Rural Development Committee on November 11, 2016 and never made it any further.
Adjusting Current Agricultural Use Value formulas: Senate Bill 246 and House Bill 398
During the 131st General Assembly, the Senate considered Senate Bill 246. SB 246 addressed how current agricultural use value, otherwise known as CAUV, is calculated. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. SB 246 was a companion bill. That means that a version of the bill was introduced in both the Ohio House and the Ohio Senate. The companion house bill to SB 246 was House Bill 398.
Both bills were intended to alter the current formula used to calculate CAUV values across Ohio. According to the Ohio Legislative Service Commission, the changes proposed by the bill would “have a uniformly downward effect on the taxable value of CAUV farmland.” Thus, the likely effect would have been a lower tax bill for farmers who are taxed on a CAUV basis.
The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and HB 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee acted on its bill. Therefore, neither bill was passed into law during the 131st General Assembly.
To read SB 246, visit this page. The Ohio Legislative Service Commission’s analysis of SB 246 is available here. To read HB 398, visit this page. The Ohio Legislative Service Commission’s analysis of HB 398 is available here.
Nonrefundable Tax Credits for Rural Businesses and Senate Bill 209
The 131st General Assembly considered a nonrefundable tax credit for insurance companies that invest in certain rural business growth funds. According to the Ohio Legislative Service Commission, qualifying rural business growth funds include special purpose rural businesses that contribute capital to certain kinds of businesses with substantial operations in rural areas of Ohio.
SB 209 passed in the Ohio Senate. But, the bill did not pass the Ohio House. Therefore, the bill was not passed into law during the 131st General Assembly.
Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.
Application of Fertilizer and Manure and Senate Bill 16
Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.
The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates. SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.
House Bill 101 and the Response to Algal Blooms
House Bill 101 was introduced on March 4, 2015. The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms. Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.” Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie.
The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.
Agricultural Operation and Management Plans and Senate Bill 224
Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.
The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.
Series LLCs and House Bill 581
Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.
Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.
One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.
Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.
Donation of Food and House Bill 111
House Bill 111 was introduced on March 10, 2015. This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization. The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.
Many Ohioans choose to avoid the probate process by using a transfer on death designation. Since 2000, Ohio has permitted property owners to use transfer on death designations to transfer property upon the owner’s death. In 2009, Ohio law allowed property owners to make transfer on death designations with an affidavit instead of by designation on a deed. The new Ohio law forces the automatic termination of transfer on death affidavits for changes in marital status.
The new changes took effect on December 13, 2016 when the Governor signed Senate Bill 232 into law. Under Senate Bill 232, a transfer on death designation made either by a deed or by an affidavit to a spouse terminates upon a divorce, dissolution, or annulment. The new law applies to new and pre-existing transfer on death designations.
Because the law applies to pre-existing transfer on death designations, it may be a good time for property owners to revisit their estate plans. Property owners should be aware of the effect of divorce, dissolution, or annulment on their transfer on death designations.
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.
- 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.
- 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/
After several years of debate over voluntary versus mandatory GMO (genetically modified organism) labeling, Congress passed legislation yesterday to create a unified national standard requiring disclosure of information for bioengineered foods. Predictions are that President Obama will sign the legislation soon. Once effective, the new law will preempt state laws that require labeling of foods containing GMOs, such as the Vermont labeling law that recently became effective on July 1. The bill's passage through Congress represented a bi-partisan compromise led by senators Pat Roberts (R-KS) and Debbie Stabenow (D-MI). "This is the most important food and agriculture policy debate of the last 20 years," said Sen. Roberts.
What’s in the bill?
The legislation amends the Agricultural Marketing Act of 1946 to include the following:
Definition of “bioengineered” food, which is food intended for human consumption that contains genetic material that has been modified through in vitro recombinant DNA techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature.
- The Secretary of Agriculture shall determine the amount of bioengineered substance necessary to deem the food as bioengineered.
- A food that is derived from an animal that consumed feed containing bioengineered substances shall not be considered bioengineered. Thus, meat, poultry, dairy and eggs from animals that have consumed GMO feed will not be subject to the labeling requirements because they cannot be defined as bioengineered.
- Preemption of state food labeling standards. No state or political subdivision may establish requirements for labeling whether a food or seed is bioengineered or contains ingredients that are bioengineered. A food may bear disclosure of bioengineering only in accordance with federal regulations arising from this law.
- Creation of federal mandatory disclosure standard. Within two years of the bill’s enactment, the Secretary of Agriculture must establish a mandatory national bioengineered food disclosure standard and the procedures necessary to implement the national standard.
Choice of labeling. The federal standard must give a manufacturer the option of disclosing information with on-package text, a symbol or an electronic or digital link, such as a QR code. An electronic or digital link must contain access to an internet website or other type of electronic source.
- The USDA must conduct a study to identify potential technological challenges of disclosure through electronic or digital means, and must provide additional options if determined that the proposed technological options do not provide sufficient access to bioengineered food disclosure information.
- The USDA must also develop alternative disclosure options for foods contained in small packages.
Exclusions. The following are excluded from the national disclosure standard:
- Food served in a restaurant or similar retail food establishment.
- “Very small” food manufacturers, to be defined through rulemaking.
- As explained above, meat, poultry, dairy and eggs from animals that consume GMO feed.
- A food containing meat, poultry or eggs if the predominant ingredient would not independently be subject to the standard of if the predominant ingredient is broth, stock, water or a similar solution and the second-most predominant ingredient would not independently be subject to the national standard.
- “Small” food manufacturers. The USDA must define “small food manufacturers” and provide such manufacturers with a grace period of at least one year for implementation of the new standards and the additional option of providing only a telephone number or internet website on a food label to disclose required information.
- Food safety implications. The FDA conducts a pre-market consultation process for foods from genetically engineered plants; foods that successfully complete the process shall not be treated as more or less safe than non-genetically engineered counterparts because of bioengineering.
- Organically produced foods. A food certified as “organic” under the national organic program may be labelled as “not bioengineered,” “non-GMO” or with similar language.
- Enforcement. Failing to disclose a food as bioengineered is a prohibited act, but the rulemaking process will determine whether there will be penalties for noncompliance. The USDA Secretary will have authority to request records and conduct audits and hearings in regards to compliance but will not have recall authority for a food that does not comply with disclosure regulations.
The preemption established in the new law will be effective immediately and the State of Vermont is prohibited from enforcing its GMO labeling law. The USDA, through its Agricultural Marketing Service, will begin the rulemaking process for the national disclosure standard. A few key issues for agriculture to track though out the rulemaking stage will be the determination of "how much" bioengineered substance is sufficient to deem a food as bioengineered; defining the "very small" food manufacturers that will be exempt from the standard and the "small" manufacturers that will have a grace period and simpler disclosure requirements, whether QR codes and other technology options will remain viable due to expected objections that they discriminate against lower income consumers; and penalties for noncompliance. The two year window for rulemaking, however, leaves open the opportunity for future changes such as amending the legislation or prohibiting funding to be used for its implementation. Thus, while we have entered a new stage of the GMO labeling debate, the uncertainty of GMO labeling is not yet fully resolved.
To read the legislation, visit this page.
The Ohio General Assembly has enacted a law that raises the monetary limit for cases handled through Ohio's small claims court system. The new maximum amount of $6,000 for a small claims case will replace the current limit of $3,000 when House Bill 387 becomes effective in late September. Under the new law, a defendant in the case may also file a counterclaim for up to $6,000. Governor Kasich signed the bill on June 28, 2016.
Ohio law requires every county and municipal court in Ohio to establish a small claims division to handle minor disputes involving only the recovery of money. A small claims court cannot hear cases for slander, libel, malicious prosecution, abuse of process, return of personal property, punitive damages or other cases seeking remedies other than money. A person may file a small claims complaint and present the case in court without the assistance of an attorney, but may have legal representation if desired. The court may appoint a magistrate, who must be an attorney, to oversee the case and render a decision. The court also has the authority to enforce a monetary judgment against a party. Because small claims cases tend to be simple, they are resolved in less time and with less expense than cases heard by other courts.
The increased monetary limit for small claims cases will allow farmers and agribusinesses to address more disputes quickly and without the expense of an attorney. Operators and landowners owed money for products or services in excess of the current $3,000 small claims maximum often express frustration that it could be too costly and time consuming to address the matter through municipal or county courts. The new higher limit of $6,000 should capture many of these cases and offer an opportunity to recover such losses through the small claims process. According to the bill's sponsor, Rep. Lou Terhar (R-Cincinnati), the change will "bring Ohio in line with surrounding states and make Ohio a better place to do business and generate jobs."