The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Farm Science Review is upon us, and we’re hoping that the low-80s forecast holds true.  In addition to checking the weather report, we’ve been monitoring the news for developments in the agricultural law world, and quizzing each other on agricultural law topics so that we’re ready to answer your questions.  While we hope you come see our presentations (speaking schedule available HERE), we won’t make you wait until you see us at the Molly Caren Agricultural Center in London to learn what we’ve found in the news.

Here’s our latest gathering of agricultural law news you may want to know:

Family Farmer Relief Act of 2019 signed into law.  We’ve talked about this bill on the ag law blog, and now it’s official.  With the President’s signature, the debt limit for family farmers seeking to reorganize under Chapter 12 bankruptcy increases to $10 million from an adjusted $4.4 million.

No vote on community rights in Williams County, yet.  A proposed county charter for Williams County, Ohio containing language similar to the Lake Erie Bill of Rights may not make it on the November ballot.  The Ohio Supreme Court recently refused to compel the Williams County Board of Elections (BOE) to include the charter on the ballot for procedural reasons.

The charter would have declared that the people of Williams County have the right to a healthy environment and sustainable community, and that the Michindoh Aquifer and its ecosystem have the right to exist, flourish, evolve, regenerate.  Further, the aquifer would have the right of restoration, recovery, and preservation, including the right to be free from interferences such as the extraction, sale, lease, transportation, or distribution of water outside of the aquifer’s boundary.

Even though the petition to put the charter on the ballot had enough signatures, the BOE believed that the language of the charter violated Ohio law, and therefore exercised its power to reject the petition and keep it off the ballot.  The petitioners appealed the BOE’s decision to the Williams County Court of Common Pleas, and that court agreed with the BOE.  Instead of going to the Court of Appeals, the petitioners tried to go directly the Ohio Supreme Court because the BOE will soon print the November ballots.  The Ohio Supreme Court said the petitioners should have gone to the Court of Appeals first, and that it will not decide on whether the BOE has to include the charter on the ballot until the petitioners do so.

This doesn’t mean the end for the proposed charter, but rather that more court time is in the proposed charter’s future.  To read the Ohio Supreme Court’s opinion, click HERE.  To read the text of the proposed charter, click HERE.

Hemp, hemp, and more hemp.  Legal and policy updates on hemp continue to trickle down from state and federal officials.  Since our last blog post, when we released our latest law bulletin on the legal status of hemp in Ohio, there have been a couple additional developments.

One of the latest updates we’ve heard from USDA is that industrial hemp growers in states with a USDA-approved hemp production plan may apply for crop insurance to cover hemp grown for fiber, flower, or seeds starting next year.  Ohio is in the process of putting together a hemp program to send to the USDA for approval.  Ohio farmers still cannot legally grow hemp until the Ohio Department of Agriculture creates a hemp program and the USDA approves that program, but we are expecting rules to be released from those agencies in the coming weeks.  For more about the crop insurance update, read the Risk Management Agency’s press release HERE.

Closer to home, we’ve heard that the Ohio Department of Agriculture (ODA) has requested $3.3 million from the Ohio Controlling Board for staffing along with IT equipment and support.  Further, ODA has made statements predicting that it expects to have its rule hemp program rule package ready by the end of the year.

Federal court orders U.S. EPA to reconsider Renewable Fuel Standards waivers and their impact on endangered species.  The U.S. EPA is responsible for creating fuel standards that incorporate and blend renewable sources of energy under the Clean Air Act.  These standards tell refineries how much of their fuel blend must come from renewable sources of energy; however, the U.S. EPA also has the authority to grant waivers to companies that would have difficulty meeting the standard.  The court noted that some industry groups felt that the 2018 rules were too strict, while others argued that they were too lax.  The court ended up dismissing all but one of the claims against the U.S. EPA, saying that Congress gave it discretion in developing the standards.  However, the court sent the rule back to the U.S. EPA due to an argument by environmental groups that the federal agency failed to conduct a thorough review of the risk to endangered animals, plants, and habitats under the Endangered Species Act.  Many farm groups have criticized the Trump administration’s granting of waivers for causing a reduction in demand for their products from energy companies, but it appears that they will have to make their arguments to the administration rather than to the courts.  To read the D.C. Circuit’s opinion, click HERE.

Advertisements

Leave a comment

Filed under ag law harvest

Repeal and Replace of WOTUS: Step 1 Complete

Written by Ellen Essman and Peggy Hall

What’s old is new again.  To what was likely a mixed chorus of cheers and groans heard around the nation, the U.S. EPA and Army Corps of Engineers today announced the repeal of the 2015 Waters of the United States (WOTUS) rule.  The action is “Step 1” in the Trump administration’s two-step plan to repeal and replace the WOTUS rule, which establishes the jurisdictional authority of the EPA and Army Corps over waters and waterways.  It came in the form of a final rule that not only repeals the 2015 WOTUS rule set in place by the Obama Administration, but also reverts the entire country back to the old regulatory definitions of “waters of the United States” that were developed in 1986 and 1988 rulemakings and further interpreted by U.S. Supreme Court decisions.   Those definitions of WOTUS created a lot of confusion and litigation over the actual meaning of WOTUS, which the 2015 WOTUS rule aimed to clear up.  Today’s “Step 1” takes us back to older, earlier definition of WOTUS.

Wait—there’s a Step 2?

Back in February, we wrote a blog post when the Trump administration began what is now “Step 2,” proposing a new definition of WOTUS.  If that rule becomes final, it will replace the pre-2015 WOTUS definitions put in place by today’s announcement.   So, Step 1 involves reverting back to the old WOTUS definition until Step 2, implementing a new definition, is finalized.

The Trump administration’s proposed WOTUS rule scales back the reach of the 2015 WOTUS rule, which many claimed exceeded the agencies’ regulatory authority over waterways and waterbodies in the U.S.  Under the currently proposed rule, tributaries that are “ephemeral”—meaning those that are not around for a great deal of time or created by temporary conditions like rainfall or snowmelt—would not be considered as WOTUS.  In both the 2015 and pre-2015 WOTUS definitions, at least some ephemeral streams fell under federal regulation.  The currently proposed rule also clarifies waters that are not WOTUS by including a list of such waters.  The Trump administration states that its proposed rule would encompass fewer ditches, lakes, ponds, and adjacent wetlands than both the 2015 and pre-2015 versions of WOTUS.

So what’s WOTUS now, exactly?

Until the tide turns again, the definition of WOTUS set in place by today’s announcement is the pre-2015 rule, which is as follows:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:  (i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) which are used or could be used for industrial purposes by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under this definition;
  5. Tributaries of waters identified above;
  6. The territorial seas;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified above;

The current WOTUS does not include prior converted cropland or certain waste treatment systems.  Importantly, it also contains definitions for the terms wetlands, adjacent, high water, ordinary high water mark and tidal waters—many of these definitions have been the source of the litigation and confusion that led to the 2015 rule.

Read more about the new, old and proposed WOTUS rules on EPA’s website, here.  A fact sheet comparing the three versions of WOTUS is here.

Leave a comment

Filed under Environmental, Uncategorized, Water

Live from Farm Science Review, it’s the ag law team!

FSR19 Ag Law A

Somehow it’s mid-September already, and that can only mean one thing: it’s time for Farm Science Review!  We’re excited to get back out to the Molly Caren Agricultural Center to talk with farmers about our latest publications and answer their questions.

Check out the schedule above for the talks we will be giving on solar leasing, hemp law, and food regulations.  If you can’t make one of the presentations, or want to learn more about other topics on agricultural law, visit us at our booth in the Firebaugh Building, which is located at 384 Friday Avenue.

We will have free copies of our most popular law bulletins available, including:

  • Do’s and Don’ts of Dealing with Trespassers on the Farm
  • Ohio’s Line Fence Law: Frequently Asked Questions
  • Creating an Enforceable Farmland Lease
  • A Checklist of Farmland Lease Provisions
  • Ohio’s Recreational User Statute: Limiting Liability for Hunters, Snowmobilers, and More
  • Ohio’s Noxious Weed Laws
  • And many more!

We will also be bringing along some of our new law bulletins, including:

  • Legal or Not? Growing Industrial Hemp in Ohio
  • The Farmland Owner’s Solar Leasing Checklist
  • Laws that Provide Defenses for Agricultural Production Activities
  • Youth Labor on the Farm: Laws Farmers Need to Know

For more information about Farm Science Review, including directions, tickets, and a list of events and exhibitors, visit http://fsr.osu.edu.  We’ll see you there!

Leave a comment

Filed under Legal Education, Webinars and Events

Ohio Ag Law Blog— Law Bulletin Helps Explain the New Hemp Frontier

Written by Ellen Essman, Senior Research Associate, OSU Extension Agricultural & Resource Law Program

These days, industrial hemp never seems to leave the news. Just this week, the U.S. Court of Appeals for the Ninth Circuit declined to decide a case involving the interstate shipment of hemp between Oregon and Colorado by way of Idaho.  Hemp is illegal in Idaho, where the product was seized and the driver was arrested, even though the 2018 Farm Bill allows for the interstate transportation of hemp.  The Ninth Circuit, reviewing the case, determined that the state court actions needed to be decided before federal courts could hear the case.  As you may be aware, Ohio also made news this summer when the state passed a bill legalizing hemp in the state.

All of these developments involving industrial hemp may leave you with many questions. What is hemp? What did the 2018 Farm Bill do? What does Ohio’s new law do? Most importantly, can I grow and process hemp right now? To help farmers and others interested in the status of the hemp industry, we have recently added a law bulletin entitled “Legal or Not? Growing Industrial Hemp in Ohio” to our Ag Law Library.  There, we sort out the above questions and more.  We also discuss the anticipated development of federal and state hemp regulations.  The bulletin is available for you to read here.

Leave a comment

Filed under Crop Issues, Uncategorized

Fun in the Fall: Minimizing Liability at Your Agritourism Operation

Written by Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall.  Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.

Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks.  The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm.  These resources include:

  • Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity.  It also provides for special taxation and zoning of lands where agritourism activities occur.  This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides.  Click HERE to read the law bulletin.
  • Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks.  This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit.  Click HERE to read the factsheet.
  • Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage.  This factsheet explains agritourism insurance, why it may be needed, and more.  It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs.  Click HERE to read the factsheet.
  • Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability.  We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws.  Click HERE to read the factsheet.
  • Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations.  This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach.  Click HERE to read the factsheet.
  • Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm.  Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws.  Our latest law bulletin explains the youth labor laws that are unique to agriculture.  Click HERE to read the factsheet.

Food sales present some special issues that you will want to think about if you wish to sell food at your farm.  Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes.  The following resources can help you think through the steps you must take to sell food at your agritourism farm:

  • Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play.  This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food.  Click HERE to read the factsheet.
  • Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm.  Click HERE to read the law bulletin.

Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms.  OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan.  You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”

As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk.  In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.

Leave a comment

Filed under Business and Financial, Food

Changes on the Horizon for H-2A Temporary Agricultural Labor Rules

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules.  The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay.  Before we talk about the rule changes, let’s recap what the H-2A program is.

H-2A is a visa program for seasonal agricultural laborers from other countries.

Labor shortages have plagued farms across the United States for decades.  Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers.  Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.

In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor.  In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.

Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers.  In other words, a farmer can’t hire foreign labor because it’s cheaper.  A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.

What does the Department of Labor seek to change?

The DOL proposes to make several changes to the H-2A program’s administrative rules.  Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.

  • Mandate e-filing.  The DOL currently allows farmers to submit their applications online or in hard copy, but reports that 4/5 of applications are completed online.  A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions.  Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have internet access.
  • Allow e-signatures.  The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it.  Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
  • Subdivide the adverse effect wage rate based upon specific agricultural occupations.  In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers.  One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate.  Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers.  Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
  • Update the methodology for calculating prevailing wage standards.  Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage.  The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers.  Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
  • Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules.  When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation.  These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation.  By incorporating the guidance into a formal rule, the interpretation holds the force of law.  The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
  • Expand the definition of “agriculture” to include reforestation and pine straw activities.  Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations.  Under the new rule, these activities would be eligible for the agricultural based visa.
  • Reduce the time an employer must allow a domestic worker to apply for a job to 30 days.  Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period.  This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract.  Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
  • Allow an employer to stagger the entry of H-2A labor.  Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date.  Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor.  Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days.  This 120-day clock begins on the day the first H-2A workers enter the U.S.

For more information about the proposed changes, visit the proposed rule’s entry on the Federal Register HERE.

The public may submit comments until September 24, 2019.

As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes.  Members of the public may submit written comments to the DOL until Tuesday, September 24, 2019.

You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210).  When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.

Leave a comment

Filed under Labor

Back-to-school means different laws apply to youth farm workers

When kids head back-to-school, it’s time for farmers to do some homework and recall the rules that apply to youth working on farms during the school year.   Once school is in session, Ohio labor laws place restrictions on the times of day and number of hours that youth under the age of 18 can work on a farm.  The laws don’t apply to parents, grandparents, or legal guardians, however.  For other farm employers, be aware that the laws vary according to the age of the minor and some require written parental consent.  Here’s a quick refresher:

16 and 17 year olds

  • Cannot work before 7:00 a.m. on school days, with the exception that they can work starting at 6:00 a.m. if they were not working past 8:00 p.m. the night before.
  • Cannot work after 11:00 p.m. on a school night, which means a night when the minor has school the next day.
  • No daily or weekly limits on the number of hours the youth can work.

14 and 15 year olds

  • Cannot work during school hours while school is in session.
  • Cannot work before 7:00 a.m. or after 7:00 p.m., but can work until 9:00 p.m. from June 1 to September 1 or during any school holiday or break lasting more than 5 weekdays.
  • Cannot work more than 3 hours during a school day or more than 8 hours during a non-school day.
  • Cannot work more than 18 hours in a week while school is in session, unless the job is part of a work education program such as vocational training or work study.

12 and 13 year olds

  • The same time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to 12 and 13 year olds, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working, unless the youth’s parent or legal guardian also works on the same farm.

Under 12 years old

  • Can only work on a farm where employees are exempt from the federal minimum wage, which includes a farms of an immediate family member or a “small farm” that used fewer than 500 “man days” of agricultural labor in any calendar quarter the preceding year.  A “man day” is a day during which an employee performs agricultural work for at least one hour.
  • Exception to the above:  local youths 10 and 11 may hand harvest short-season crops outside school hours for no more than 8 weeks between June 1 and October 15 if their employers have obtained special waivers from the U.S. Secretary of Labor.
  • The same daily time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to youth under 12 years old, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working.

The other labor laws that typically apply to youth doing agricultural work on a farm continue to apply throughout the school year.  For example, employers must maintain records for youth employees, provide a written agreement of compensation and a statement of earnings on payday, and a 30 minute rest period if the youth works more than five consecutive hours.  An employer can’t assign any youth under the age of 16 with a “hazardous” job or task unless the youth is 14 or 15 and has a certificate of completion for tractor or machine operation.  Further information about these and other laws that apply to youth under 18 working on a farm is in our new Law Bulletin, Youth Labor on the Farm:  Laws Farmers Need to Know, available here.

Leave a comment

Filed under Labor