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Larry Gearhardt, OSU Extension Asst. Professor, Taxation

Ohio Governor John Kasich recently signed a bill that, among other things, increases the small business income deduction from 50 percent to 75 percent of the first $250,000 in net business income.

In an effort to grow Ohio’s economy, last year the Ohio budget bill included significant tax law changes to deliver a $2.7 billion tax cut to individuals and businesses, over the course of three years. The changes included:

  • A small business tax cut that enables owners/investors to deduct from taxable income 50 percent of the first $250,000 in net business income.
  • A 10 percent personal income tax cut to be phased in over three years. In 2013, Ohio tax rates were reduced by 8.5 percent.
  • New assistance for lower-income Ohioans in the form of an Earned Income Tax Credit (EITC) equal to five percent of the amount claimed for the federal EITC.

An improving economy is generating stronger than expected state revenue, resulting in additional tax cuts. The Governor’s Mid-Biennium Review (HB 483) included the following additional tax relief:

  • ADDITIONAL SMALL BUSINESS TAX CUTS – For tax year 2014, the personal income tax deduction on small business income will be increased to 75 percent of the first $250,000 in net business income. (Under current law, the deduction does not affect the school district income tax base).
  • ACCELERATING THE INCOME TAX CUT – Next year’s scheduled one percent cut in income tax rates is moving up to be effective retroactive to January 1, 2014. This change will give taxpayers the full 10 percent income tax cut that was not scheduled to go into effect until January 2015.
  • NEW TAX RELIEF FOR LOW-AND MIDDLE-INCOME OHIOANS – Ohio is doubling the EITC from 5 to 10 percent of the federal credit. In addition, the state is increasing the personal exemption for Ohioans earning less than $40,000 a year from $1700 to $2200, and for those with incomes between $40,000 and $80,000 a year from $1700 to $1950.

Business income is defined as income from the regular conduct of a trade or business, including gains and losses. It also includes gains and losses from liquidating a business or selling goodwill. The deduction applies only to the business income apportioned to Ohio under existing law.

The business deduction percentage reverts back to 50 percent for taxable years after 2014.

Posted In: Tax
Tags: Ohio small business income tax deduction
Comments: 0
By: Peggy Kirk Hall, Thursday, June 26th, 2014

The recently enacted Water Resources Reform and Development Act of 2014 established a new mandate to the U.S. EPA:  change how EPA enforces the federal Spill Prevention, Control and Countermeasure (SPCC) rule against the nation’s farms.   Following several years of conflict between EPA and the agricultural community, Congress intervened with a plan to reduce the SPCC rule’s impact on agriculture.  The new law clarifies which farms must have certified SPCC plans that address fuel storage and spill response practices; the law also directs EPA to study and adjust the exemption levels within the next three years.  

Which farms must comply with the SPCC rule?

Here is an explanation of how the new law affects SPCC rule requirements for farms.  Note that the exemption level could change after EPA conducts its required study, explained below.  

  1. Farms that must have a professionally certified SPCC plan

Farms in this category must have an SPCC plan that is certified by a professional engineer.  This category includes farms that have any of the following:

  • An individual aboveground tank with storage capacity over 10,000 gallons;
  • An aggregate aboveground storage capacity of 20,000 gallons or more;
  • A "reportable oil discharge history."
  1. Farms that can self-certify their SPCC plans

Farms with moderate fuel storage and no history of reportable discharges must have an SPCC plan, but the owner or operator of the farm can self-certify the plan.  Farms in this category include those that:

  • Have an aggregate aboveground storage capacity of 6,001 to 20,000 gallons
  • And do not have a "reportable oil discharge history."
  1. Farms that are exempt from SPCC compliance

The EPA may not require compliance with the SPCC rule for any farm that:

  • Has an aggregate aboveground storage capacity of less than 6,000 gallons.

Changes to aggregate capacity calculations will affect SPCC's reach

The new law also changes which fuel storage containers a farm must include when calculating its aggregate fuel storage capacity.  This change could significantly impact whether a farm falls into the exempt, self-certified or professionally certified plan category.   Previously, the SPCC rule required a farm to include any storage container of 50 gallons or more in its aggregate capacity calculation.  Under the new law, a farm may now exclude these fuel storage containers from its calculation of capacity:

  1. All containers on separate parcels that have a capacity of 1,000 gallons or less;
  2. All containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of Food and Drugs. 

EPA must study discharge risks

The SPCC compliance requirements could change after the EPA completes the mandated study.   The law requires EPA to consult with the Secretary of Agriculture to conduct a study within the next year to determine the amount that is appropriate for an SPCC rule exemption, based on whether there is significant risk of an oil discharge to water.   Within 18 months of completing the study, the EPA may adjust the SPCC exemption level to not more than 6,000 gallons and not less than 2,500 gallons.  This provision gives EPA an opportunity to lower the exemption beneath the current 6,000 gallon minimum if the agency can prove that there is significant risk of oil discharges on farms with fuel storage capacity between 2,500 and 6,000 aggregate gallons.

What is the SPCC rule compliance date for farms?

Surprisingly, the new law does not remove the uncertainty surrounding the deadline for a farm to comply with the SPCC rule.   Maneuverings by Congress prevented EPA from enforcing the original May 13, 2013 compliance deadline until September 24, 2013.  After that date, a letter from several members of Congress advised the EPA Administrator not to enforce the rule at all until Congress enacted new legislation that would exempt most farms from the rule.  With the new law in place, will the EPA now enforce SPCC plan requirements against a farm?  If so, then a farm that is subject to the rule could face penalties for non-compliance if it has an oil discharge and does not have its SPCC plan in place.   Given that possibility, farms that fall under the new SPCC requirements should act quickly to develop their SPCC plans.

SPCC definitions

A few definitions from the SPCC rule, unchanged by the recent legislation, are helpful to understanding the rule’s application.

  • Farm means a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold or normally would have produced and sold $1,000 or more of agricultural products during a year.
  • Oil means oil of any kind or in any form, including, but not limited to:  fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.
  • Reportable oil discharge history means either a single oil discharge over 1,000 gallons or two oil discharges that each exceeded 42 gallons and that occurred within any 12-month period in the 3 years prior to the farm’s required SPCC certification date.

For more on the SPCC rule, see the EPA's SPCC page.

By: Peggy Kirk Hall, Tuesday, June 17th, 2014

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here

Hunting laws don't often reach our highest court, but the Ohio Supreme Court has agreed to review one man's challenge to an unlawful hunting action by the Ohio Department of Natural Resources (ODNR).  The case resulted in a fine of $27,851 against Huron County hunter Arlie Risner for the unlawful taking of an antlered white-tailed deer. 

The case began in 2011, when ODNR charged Risner with “taking a white-tailed deer from the lands of another without first obtaining written permission from the landowner or an authorized agent in violation of R.C. 1533.17.”  The Norwalk Municipal Court fined Risner $200 plus court costs and ordered forfeiture of the meat, which ODNR had seized from a processor.  Risner also had to reimburse ODNR $90 for meat processing costs.  The court later ordered Risner to turn over the deer's antler rack also, which he had taken to a taxidermist.

A few months following the court hearing, ODNR advised Risner that he also owed the state $27,851.33 as restitution for the value of the deer and that his hunting license was suspended until he paid the amount.   ODNR based its claim on Ohio Revised Code section 1531.201, which states:

“(B) The chief of the division of wildlife or the chief's authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.”

$27,851 for killing a deer?

ODNR's claim for $27,851 in restitution derived from ORC 1531.201, which contains a formula for calculating the minimum restitution value of an illegally taken antlered white-tailed deer.  The formula determines the deer's value based on its the size.  The law also includes additionall provisions for exceptionally large deer, stating that a convicted violator who takes a deer with a gross score of more than 125 inches  "shall pay an additional restitution value that is calculated using the following formula:  Additional restitution value = ((gross score - 100)2 x $1.65)."

The deer Risner killed exceeded the 125 gross score limit, with a 20-point rack and a gross score of 228 inches.  ODNR thus used the additional formula to determine Risner's restitution, which escalated the demanded payment to over $27,000.

Challenges by both parties

Risner refused to pay ODNR’s restitution order and the agency began enforcement proceedings in court.  Risner argued that the fee violated his constitutional rights and that ODNR could not seek restitution because the agency had already chosen its remedy of seizing the deer meat and antlers.  The Huron County Court of Common Pleas avoided the constitutional issues but agreed with Risner that the plain language of ORC 1531.201 prevented further restitution because ODNR had already been awarded possession of the deer and antlers in prior court proceedings.   Both Risner and the Huron County court focused on the “or” in the statute’s language, which states that ODNR “may bring a civil action to recover possession of or the restitution value of…” an animal.  The "or" set up a choice either one remedy or the other, according Risner and to the common pleas court.

ODNR appealed the decision to Ohio’s Sixth District Court of Appeals.  The appeals court disagreed with the lower court.  The court unanimously concluded that ODNR did in fact have authority to recover the restitution value for the deer.   “The statute, on its face, does not restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers have already seized parts of the wild animal,” said the court.  “Since Risner had no title to or ownership interest in the seized wild animal parts,” the court explained, “ it is illogical to construe ORC 1531.201 to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.” 

Additionally, the appellate court noted that ORC 1531.201 contained “additional” provisions for restitution assessments for deer in excess of 125 points, explaining that "[w]e must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. * * * Thus, all words should have effect and no part should be disregarded."  The court also stated, however, that nothing in its decision would prevent Risner from arguing for a deduction of the restitution value based on the monetary value the seized deer provided the state.

Risner requests review by Ohio Supreme Court

Risner asked the Ohio Supreme Court to review the decision.  “To allow the chief to bring a second action when a remedy has already been provided, chosen and carried out is nonsensical, frivolous, a violation of law and due process, and a waste of the Court's time and resources,” argued Risner.  “A second action provides for multiple sanctions and double (if not more) remedies…”

ODNR argued that the Supreme Court should not accept the case for review because the appeals court made a correct interpretation of the statute and because Risner had not been doubly penalized, as he had claimed.  “It is clear the General Assembly recognized the need to create R.C. 1531.201(B) as a separate civil mechanism to recoup the full economic loss of this valuable resource,” stated ODNR.   “The return of evidence did not make the State whole, nor should it be construed as a satisfaction of restitution liability…”

The question before the Supreme Court

Challenges to hunting laws don’t often pique the interest of the Ohio Supreme Court, especially those that don’t revolve around constitutional issues.  But this case does carry serious implications for both ODNR and Ohio hunters.   Does ORC 1531.201 allow ODNR to recover the parts of an antlered white-tailed deer and also to seek payment from the violator for the value of the deer, with additional payment for large animals?  If this is the correct interpretation, we can conclude that our legislature intended strong sanctions against violators in addition to ensuring that a violator would not be able to keep a poached animal.   Is this outcome more severe a punishment for unlawful takings of deer than the legislature intended? 

Or does the statute require ODNR to choose either possession or a restitution payment, but not both?   If this is the case, then ODNR must strategically determine how to handle an illegal taking of an antlered white-tailed deer.  Should ODNR claim the meat and antlers so that a violator does not benefit from breaking the law?  Or should ODNR allow the violator to keep the animal so that it can seek payment from the violator?  If the deer is quite large and the restitution payment high, should ODNR choose the higher payment and higher economic value over reclaiming the animal from the violator?  Is the goal of the statute punishment or regaining the economic value of an animal?

The Ohio Supreme Court will answer these and other questions when it determines the correct interpretation of ORC 1531.302 later this year or next.

Read the Court of Appeals decision in Risner v. Ohio Dept. of Natural Resources, Div. of Wildlife.

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here

By: Caty Daniels, Thursday, May 29th, 2014

For most people, dogs are a very familiar part of the family. For farm families, dogs may even go beyond the family pet duties and help protect the assets of the farm – the livestock. However, when dogs get loose and go after the livestock of someone else, serious problems can arise. Any livestock that is killed or injured by someone else’s dog is a monetary loss, as well as an emotional loss for some. A question we frequently receive is what can someone do if their livestock is threatened or attacked by someone else's dog. In these cases, livestock owners do have a course of action they may follow.

Under what circumstances can you kill a dog threatening your livestock?

Under Ohio Revised Code Section 955.28, dogs committing certain acts against livestock, poultry, other domestic animals, and other animals that are the property of another person, may be killed at the time of the act. These acts include:

  1. Chasing
  2. Threatening
  3. Harassing
  4. Injuring
  5. Killing

If a dog belonging to someone else is in the act of chasing, threatening, harassing, injuring, or killing your livestock, poultry or other animals, then you may kill the dog while it is in the act. If you are attempting to kill the dog while it is engaged in such an act, but you only wound the dog, you will not be liable for animal cruelty.

What if the dog has just committed the act and is running away?

If the dog is no longer in the act of chasing, threatening, harassing, injuring, or killing your livestock, then you are not permitted to kill the dog. If you do, you may face animal cruelty charges. In State v. Cordle, the owner of domestic fowl was found guilty under Ohio Revised Code Section 959.02 of maliciously, or willfully, and without consent of the owner, killing a dog that was the property of another. In that case, the domestic fowl owner found his neighbor’s dog killing one of his fowl. The dog ran back to the neighbor’s property where the domestic fowl owner had followed it and proceeded to kill it while on the neighbor’s property. If you do not catch the dog in the act of chasing, threatening, harassing, injuring, or killing your livestock, even though you may not kill the dog, you still may be able to recover damages for your loss, as explained in the next section.

Posted In: Animals
Tags: dogs threatening livestock, O.R.C. 955.28
Comments: 0
By: Peggy Kirk Hall, Thursday, May 22nd, 2014

The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants.  As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA).  While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state."  This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.

The bill defines "invasive plant species" as:

"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."

A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA."   In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops.  The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed.  Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production.  The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.

The bill contains one exception to ODA's authority over invasive plant regulation.  The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act.   Once ODA develops invasive plant regulations, however,  the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.

Read S.B. 192 here.

 

 

By: Peggy Kirk Hall, Wednesday, May 14th, 2014

A new bill in the Ohio Senate addresses several legal issues for Ohio agritourism operators.  Senators Jones (R-Springboro) and Peterson (R-Sabina) introduced S.B. 334 on May 7.  The bill would impact Ohio agritourism operators in regards to civil liability, property taxation, zoning regulation and amusement ride standards.

Civil Liability Protection

Following a similar trend in other states, the Ohio legislation would grant agritourism operators civil liability protection from claims for injuries that occur during agritourism activities.   An operator would not be liable for harm that an observer or participant sustains during an agritourism activity if the harm is a result of the following conditions, which the law defines as "risks inherent in an agritourism activity":

(a) The surface and subsurface conditions of land;

(b) The behavior of wild or domestic animals;

(c) The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;

(d) The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;

(e) The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.

The law does not extend civil liability immunity if an agritourism operator purposefully causes harm or if the provider's willful or wanton disregard for the safety of an observer or participant proximately causes harm to the person.

Real Property Taxation
 
The proposal aims to ensure that agritourism land can qualify for Ohio's Current Agricultural Use Valuation (CAUV) real roperty taxation program.  The CAUV differential tax assessment formula would apply to agritourism property in two situations:
 
(1) Tracts, lots, or parcels of land of ten acres or more devoted exclusively to agritourism during the three years prior to a CAUV application, if the land on which the agritourism is located is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use according to ORC 5713.30.
 
(2) Tracts, lots, or parcels of land less than ten acres that were devoted exclusively to agritourism and produced an average yearly gross income of at least $2,500 during the three years prior to the CAUV application, or where there is evidence of an anticipated gross income of such amount during the tax year in which the applicant applies for CAUV.
 
Zoning Authority
 
The bill also contends with the issue of whether agritourism activities are subject to local zoning regulations, a question we often receive at Ohio State.  According to the proposal, counties and townships would not have any authority to utilize zoning to prohibit the use of land for agritourism in any district, whether zoned for agricultural, industrial, residential, or commercial uses.
 
Amusement Ride Standards and Inspections
 
In response to emerging questions about permits and safety standards for activities such as zip lines on agritourism operations, the bill grants authority to the director of agriculture (ODA) to adopt rules to establish standards for amusement rides at agritourism locations that are consistent with standards adopted by the American Camp Association.  If the ODA adopts such rules, the bill states that other regulations pertaining to permits, inspections and duties would not apply to agritourism amusement rides.
 
Definition of Agritourism
 
An important component of the bill is its definition of "agritourism," but the bill raises as many questions as answers in its attempt to clarify the activities and operations that would be subject to the proposed legislation.  For purposes of the above provisions, the proposal defines "agritourism" as:
 
"An educational, entertainment, or recreational activity that takes place on a working farm or agricultural or horticultural operation and that allows or invites members of the general public to observe, participate in, or enjoy that activity.  "Agritourism" includes historic and cultural agriculture activities, self-pick farms or farmer's markets when they are conducted in conjunction with farm operations." 
 
The Senate referred S.B. 334 to the Civil Justice committee on May 14.   Learn more about the bill here
 
By: Caty Daniels, Thursday, April 17th, 2014

Ohio State University Extension’s Agricultural & Resource Law Program will host the Sixth Annual Ohio Agricultural Law Conference on Friday May 16, 2014 at the Ohio 4-H Center. This year’s program features OSU’s Dr. Carl Zulauf discussing the new Farm Bill. Also on the schedule is a legislative update from Ohio Farm Bureau Federation’s Tony Seegers. Craig Vandervoort of Sitterly & Vandervoort Ltd. will present on Medicaid and nursing home planning for family farms.  Robert Moore of Wright & Moore Law Co. will moderate a session featuring an OSU Extension Educator and an insurance agent on agri-tourism and direct marketing trends and liability. A roundtable discussion on guiding clients in today’s agricultural climate, moderated by Troy Callicoat of Barrett, Easterday, Cunningham and Eselgroth LLP, will wrap up the day.  

A special highlight of this year’s conference is a bus tour of OSU’s Waterman Farm.  The bus will then take conference attendees to the North Market in downtown Columbus for lunch and a discussion with North Market Farmers on legal issues and challenges they face. Law students interested in attending the conference may apply for student scholarships provided by the Paul L. Wright Agricultural Law Endowment Fund. Contact Caty Daniels at daniels.498@osu.edu for scholarship information. For more information and to register for the conference, visit www.regonline.com/OhioAgLaw.

Posted In: Legal Education
Tags:
Comments: 0
By: Peggy Kirk Hall, Monday, April 14th, 2014

The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture.  The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.)   The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's.   Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program. 

An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate.  The amendment will likely expand the program to more smaller-acreage farmers.    Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."

The Senate must now approve the House-amended version when it reconvenes in early May.  Upon Senate approval, the legislation would move to the Governor by mid-May.  If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program.  The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.

Watch for our final analysis of S.B. 150 as it continues the legislative process next month.

 

By: Peggy Kirk Hall, Wednesday, March 05th, 2014

The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR).  ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.”  The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.

How does the registry work?

ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop.  The ODA defines sensitive crops as follows:

Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
 

Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops.  ODA will then verify the producer's information before it is available on the registry.  Private and commercial pesticide applicators may also voluntarily register on the site.  If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries.  The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.

It is important to note that the information provided in the registry is not available to the general public.  It is only available to those who have registered on OSCR and have been verified by ODA.

Implications for crop producers and pesticide applicators

The registry offers a good risk management tool to sensitive crop producers.  By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts.  One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.

Reduced drift impacts will also benefit pesticide applicators who use OSCR.  However, the voluntary nature of the registry raises potential implications for pesticide applicators.  What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool?  Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered?  Does the availability of the information create a new legal duty for  pesticide applicators--a duty to take the additional step to identify nearby sensitive crops?  Could an insurer refuse to cover an applicator who failed to consult the registry?   Until Ohio courts receive and answer these legal questions, we don't have clear answers.

The caution to pesticide applicators, then, is to take the OSCR seriously.  Don't overlook the registry because participation is "voluntary" rather than mandatory.   The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.

To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.

By: Peggy Kirk Hall, Tuesday, February 04th, 2014

The federal Occupational Safety & Health Administration (OSHA) generated controversy recently when several of its enforcement actions against farms with grain bin storage hit the news headlines.   The enforcement actions are contrary to a general understanding in the agricultural community that OSHA does not have authority to enforce its regulations against farms with ten or fewer employees, referred to as the “small farms rider.”  While claiming that it does not intend to enforce beyond its authority, OSHA justifies its actions in an internal agency memorandum that interprets the small farms rider.  Is OSHA’s justification reasonable or contrary to law?  Here’s the language of the small farms rider and OSHA’s explanation of its authority:

  • The Small Farms Rider.  The 2014 Consolidated Appropriations Act passed by Congress, like every previous appropriations bill since 1976, states that none of the funds appropriated by Congress to OSHA “shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees.”  (emphasis added)
  • The agency focuses on the small farm rider’s use of the term “farming operation” which, according to the agency’s prior interpretation, means “any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations.”  
  • Not included in the definition of “farming operations,” according to the agency, are those establishments engaged in performing services on crops subsequent to their harvest with the intent of preparing them for market or further processing, including activities such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling, corn drying and shelling, grain drying, cleaning, and fumigating.  Why are these not considered farming operations?   Because the North American Industrial Classification System (NAICS) and Standard Industrial Codes (SIC) differentiate agricultural businesses that conduct crop and livestock production from those that conduct post-production activities.   Small farms with grain storage structures where grain is fumigated, dried, or processed subsequent to harvest and sold into the market would fall under the post-harvest NAICS codes rather than the agricultural production codes and therefore are not “farming operations” exempted by the small farms rider, states OSHA.    
  • The agency also notes that grain handling operations are not “core agricultural operations” according to OSHA’s federal regulations.  These regulations state that “core agricultural operations” include activities such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock, poultry, fish and livestock products.
Why is OSHA working so hard to distinguish grain storage activities from other farming activities?  Statistics could be one reason.   The agency notes that over 900 grain entrapment fatalities have occurred in the past 50 years with the highest on record occurring in 2010, when 26 workers died in grain engulfments.  This led to agency efforts to increase attempts to prevent deaths and injuries (see, for example, “OSHA works with The Ohio State University to promote safe practices”).  The agency also points to statistics indicating steadily growing amounts of on-farm grain storage capacity.  Finding a way to increase inspection opportunities on the expanding number of farms with grain storage would be consistent with OSHA’s efforts to reduce fatalities and injuries.  Unfortunately, recent enforcement actions against farms in Nebraska and Ohio appear punitive in nature and not simply focused on reducing risk.
 
What’s next?  Many members of Congress are pushing OSHA to revise its interpretation of the small farms rider.  OSHA has agreed, stating that it plans to look to USDA for advice on which post-harvest activities are "intimately related to farming activities and which ones aren't," according to OSHA deputy assistant secretary Jordan Barab.  An alternative to OSHA action would be for Congress to provide its own definition of “farming operations” rather than deferring to the agency’s interpretation.  
 
The important issue here:  grain handling safety.  Agriculture prides itself on knowing how best to handle its own issues.  As Congress and OSHA bicker over regulatory authority, let’s hope agriculture stays focused on grain handling practices and continues to reduce grain-related deaths.  For resources on safe grain handling, visit OSU’s Agricultural Safety & Health Program at http://agsafety.osu.edu/resources

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