US Dept of Labor finalizes changes to H-2B visa rules

Via the American Horse Council:

On February 21, 2012 the Department of Labor (DOL) issued a final rule concerning the H-2B temporary guest worker program. This new rule, which will go into effect on April 23, 2012, will make significant changes to the way the H-2B program operates for all employers including those in the horse industry.

“Anyone in the horse industry who uses the H-2B program needs to be aware of this new rule. It makes major changes to the responsibilities of employers using the program and if the new guidelines aren’t followed employers could be fined and barred from using the program,” said AHC President Jay Hickey.

The H-2B program is used by members of the horse industry, principally horse trainers and owners who cannot find American workers to fill semi-skilled jobs at racetracks, horse shows, fairs and in similar non-agricultural activities.

The AHC believes the new rule will make the H-2B program more costly and burdensome for employers who are forced to use the program and has opposed the new rule. “It is unfortunate the DOL decide to finalize this rule,” said AHC Legislative Director Ben Pendergrass. “This rule will make it difficult for trainers and others in the horse industry to use the program and could impact American jobs. The current rule was working well for the industry and included many protections for foreign and American workers.”

The final rule, among other things, will:

• Require an employer to pay most inbound and outbound travel expenses for H-2B workers.
• Extend H-2B program benefits, such as reimbursement of transportation cost, to American “corresponding workers” that work alongside H-2B workers and perform substantially the same work.
• Require employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance.
• Increase the amount of time employers must try to recruit U.S. workers.
• Prohibit job contractors from using the program.
• Define temporary need as 9 months, previously it was 10 months.
• Define full time employment as 35 hours a week, previously it was 30 hours.

“This final rule is complex and has many new provisions and changes. If you are an employer who uses the program you should review the new guidelines and contact the lawyer or agent you use to process H-2B applications to ensure you are in compliance with the new rule when it goes into effect on April 23,” said Pendergrass.

DOL guidance and the complete rule can be found here on DOL’s website.

“Many Members of Congress are also displeased with this new rule and believe it could hurt industries in their states. The AHC is going to continue to work with those Members to try and roll back this new rule. Unfortunately, gridlock in Washington will prevent any quick action by Congress and the horse industry will have to comply with the new rule for the foreseeable future,” said Hickey.

Limited liability for Maryland owners who permit recreational use of their land

Did you know that Maryland landowners who permit others to use their land for recreational purposes (such as horseback riding), according to Maryland law do NOT:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability as a result of any injury to the person or property caused by an act of omission of the person.

- as long as the landowner does not charge for the use.

Good news for trail riders, and the kind landowners who host them!

For the full text of the law, click here.

General Assembly regular session ends with no budget agreement

At midnight on April 9, the Maryland General Assembly ended its 2012 session - without enacting an apparent compromise that would have balanced the budget through both spending cuts and revenue increases. This means that the so-called "Doomsday Budget," which is balanced through deep cuts in expenditures, will go into effect on July 1, unless a special session of the General Assembly is convened to try again. A Special Session is a virtual certainty, but as of this writing, when it will convene and whether it will be confined to just budget issues is still up in the air.

In any event, the legislature did manage to dispose of a number of legislative issues of interest to the Maryland equine community. Here's a summary of the outcomes of several proposed pieces of legislation that we have been following. For a more complete description of these bills, see the MD Horse Council's legislative Blogpost of March 6.

SB 108 (making clarifying changes to the stable license law) and HB 680 (requiring the state to incorporate education about sustainable ag into science curricula) passed both houses of the General Assembly.

In addition, Sunday hunting bills in Dorchester and Caroline (SB 105/HB 114 & SB 390/HB 129), Harford (SB 346/HB 321), Cecil(HB 877), and Calvert, Charles and St. Mary's counties(HB 1431) passed. Only the PG County bill (HB 809) failed to move.

On the racing side, SB 49 (making certain changes to the Maryland-Bred Race Fund) and SB 794/HB947 (eliminating the restriction on the use of Purse Dedication Account funds for operating expenses at Ocean Downs and Rosecroft through 2015) were passed by both houses.

Bills that failed to emerge successfully include HB 912 (changing "owner" to "guardian" in certain laws applying to dogs); SB 445/HB 336 and SB 203/HB 484 (giving courts the power to order transfer of ownership of confiscated animals, and requiring original owners to pay costs in removing and caring for confiscated animals after conviction of certain crimes of abuse, neglect or cruelty; HB 376 (redirecting slots revenue away from racing industry and to school construction); SB 15 (requiring a study of the mission and operations of the Show Place Arena at the PG Equestrian Center); SB 301/HB 1020 (establishment of a registry of convicted animal abusers).

A number of changes to the Maryland Agricultural Land Preservation program (MALPF) - SB 129 (easements), SB 148 (lot releases), SB 112 (appraisals) were enacted.

A number of bills related to manure management regulations and the Chesapeake Bay watershed restoration were unsuccessful: SB 330 (prohibited new regulations to mandate action on farms until other watershed states equal Maryland's performance so far); SB 594 (prohibiting winter application of animal manure and biosolids); SB 822/HB 487 (prohibiting watershed implementation mandates on local jurisdictions unless funding from state or federal sources would support); SB 823/ HB 486 (requiring the state to develop and rank a list of best management practices for watershed implementation).

However, SB 118 (allowing the state to add sediment to its existing nutrient credit program) passed both houses.

Of general interest: the Governor's Sustainable Growth and Agricultural Preservation Act (SB 236/HB 445) (related to the implementation of PlanMaryland) was enacted with amendments that leave final control in the hands of the local jurisdictions. The Family Farm Preservation Act of 2012 (SB 294/HB 444) was also enacted. This exempts up to $5 million dollars of the value of a farm from the state estate tax when it will remain in agricultural use for at least 10 years. It also reduces the rate for property exceeding $5 million from the current 16% to 5%.

The "Flush Tax" was doubled from $30 to $60, but only for users who discharge into the Chesapeake Bay Watershed. But the proposed increase in the Gas Tax (SB 971/ HB 1302) failed.

Finally, a few bills of interest that were filed after our March 6 summary deserve mention: HB 1303 (doubles from $100,000 to $200,000 per practice the maximum amount of state cost sharing for water pollution control projects such as manure storage structures, steam fencing and crossings, etc.) passed both houses. This will be especially helpful as farmers are asked to install more best management practices to meet Watershed Implementation Plan goals. HB 1404 was enacted, moving the Animal Waste Technology Fund from the Dept. of Business and Economic Development to the Dept. of Agriculture. This fund is intended to research, develop and market projects to reduce the amount of nutrients in animal waste, or develop alternative waste management strategies. Unfortunately, SB 976/HB 1309, which would have expanded the list of tax deductible equipment purchases under the subtraction modification law to include manure spreaders and other nutrient application equipment failed to pass.

Trail Riding News

Ron MacNab, MHC Executive Committee member, Maryland Horse Industry Board Trail and Recreational Riding Representative, and President of Trail Riders of Today has been working with the Maryland Department of Natural Resources (DNR) to identify all DNR properties that permit horseback riding.

They found that there are lots of places to ride that were not indicated on the park/forest websites.

DNR has now corrected this and horseback riding is indicated on those sites wherever it is allowed!

A House-Senate conference committee will meet very soon to work out a final budget for Maryland through June 2013.

Via Maryland Budget and Tax Policy Institute and Maryland Association of Non-profits: "The Senate and House have each now settled on their respective budget packages. Both versions include budget cuts, progressive revenue measures, and a shift of a portion of the cost of teachers’ retirement to local government budgets. . . .

[T]he Senate has a larger revenue package, which would leave a smaller revenue shortfall in the 2013 and future sessions. The Senate package also leaves a larger fund balance at year end. In the event that Maryland’s finances are affected by an economic downturn or federal budget cuts, we are less likely to need mid-year budget cuts under the Senate proposal.

The Senate scheduled the teacher retirement shift evenly over four years. The House version does it in just three years, and it’s “front-loaded:” passing ½ of the cost to counties in the first year.

Both versions increase the tax on cigars to be more comparable with the tax on cigarettes. The House version includes a significant tax increase on chewing tobacco, whereas the Senate version increases chewing tobacco taxes only slightly."

Annapolis update!

The legislative session is now more than half over, and the deadlines for entering new proposed bills (except for extraordinary measures), have now passed. The House of Delegates is considering over 1500 bills; the Senate has over 1000. Whatever is not passed by midnight April 9 will have to wait until next year.

Here's a summary of what we've been watching - with thanks to the MD Farm Bureau for their helpful summaries! To see the full text of any of these bills, or to find out their current status, go to http://mlis.state.md.us/. This site is updated every night.

SB 445/HB336 - Criminal Law - Animal Cruelty - Assignment and Costs of Animal, Senators Colburn and Mathias/Delegates Haddaway-Riccio, Conway, Eckardt, McDermott, and Otto: Requiring a court to order a defendant convicted of a specified charge of animal cruelty, as a condition of sentencing, to assign ownership of a specified animal to the agency or organization that confiscated the animal for disposal at the discretion of that agency or organization and to pay, in addition to any other fines and costs, all reasonable costs incurred in removing, feeding, housing, treating, or euthanizing an animal confiscated from the defendant. - Support

SB 108 -Maryland Horse Industry Board - Licensing, By Request - Departmental - Agriculture: housekeeping revisions to stable license bill; making clear what facilities must be licensed - support

HB 912 - Domestic Animals - Pet and Animal Guardians, Delegates Kach and Olszewski: Changing variations of the term "own" to variations of the term "guardian" in specified provisions of law relating to dogs - oppose

HB 722 - Montgomery County - Real Property - Enforceability of Recorded Covenants and Restrictions - Agricultural Activities and Structures MC 16-12, Montgomery County Delegation: Montgomery County right to farm legislation (making HOA restrictive covenants that prohibit agriculture in the ag reserve unenforceable) - support; oppose Barkley amendment

HB 376 - Video Lottery Terminal Proceeds - School Construction, Delegates Simmons, Anderson, Arora, Barkley, Burns, Cane, Cluster, Conaway, Cullison, Dwyer, Gilchrist, Glenn, Gutierrez, Hough, Hucker, K. Kelly, Kramer, McConkey, McMillan, Myers, Parrott, B. Robinson, Serafini, Tarrant, Washington, and Wilson: Redirecting slots revenue currently designated for the MD racing industry to school construction instead - oppose

HB 680 - Education - Development of Guidelines to Incorporate Sustainable Agricultural Education, Delegate Rosenberg, Luedtke & Washington: Requires the State Board of Education and the University of Maryland Extension to jointly develop guidelines to incorporate education about sustainable agriculture into the existing science curricula. The bill requires consultation with local Board of Education, the Maryland Agricultural Education Foundation (MAEF), and other organizations that promote education about sustainable agriculture. The bill does not define “sustainable agriculture.” - support

In addition to these bills, we are also watching:

SB 301/HB 1020, which would create a "registry" for animal abusers, similar to sex offender registries.

Seven bills related to the proposals from MDA to change the Nutrient Management regulations:

SB 330- prohibits Maryland state agencies (MDA, DNR, MDE) from adopting new regulations to mandate actions on farms to meet WIP goals until surrounding Bay Watershed states (PA, VA, WV, NY and DC) achieve or exceed the percentage reduction of nitrogen and phosphorous attributed to their agricultural sectors as Maryland farmers have achieved since 2009. [Unfavorable report EHEA] [Note: crossfiled with HB 464, which was withdrawn after unfavorable report from Environmental Matters]

SB 594 - Codifies the manure and sewage sludge application restrictions that are being debated as part of the current MDA regulatory process. The bill prohibits the application of animal manure or biosolids to agricultural land between November 1st and March 1st, unless it is injected into the soil with greater than 90% remaining below the soil surface. For the remainder of the year (March 1-November 1) the bill mandates that all animal manure or biosolids be injected or incorporated within 24 hours. Beginning July 1, 2017, the bill prohibits the use of fertilizer to agricultural land that has a phosphorus fertility index value that is greater than 150. After July 1, 2020, the bill prohibits MDA from authorizing the application of animal manure or biosolids to agricultural land between September 10 and November 15, even if there is a lack of storage capacity.

SB 118 - Gives MDA the authority to add sediment credits to its existing agricultural nutrient credit certification program.

SB 822/487 - Provides that a local jurisdiction may not be required to implement a WIP activity or strategy unless funding sufficient to pay for the activity or strategy is provided by the state or federal government. [HB 487 has received unfavorable report from Environmental Matters]

SB 823/486 - Requires the Maryland Department of Environment (MDE) to develop a list of Best Management Practices (BMPs) that a county may use under a Watershed Implementation Plan (WIP) to implement the Bay Total Maximum Daily Load (TMDL) by October 1, 2012.

Five bills related to racing and slots:

SB 26 - Authorizing the holder of a video lottery operation license to offer table games in the State, subject to referendum Nov 2012.

SB 155 - Requiring the Video Lottery Facility Location Commission to conduct a study of financial impact of table games.

SB 49 - Authorizing the Maryland Racing Commission to allocate a portion of the Maryland–Bred Race Fund for horses conceived, but not necessarily foaled, in Maryland; altering the amount of the Fund the Commission may allocate for certain horse races; requiring the Commission to set the amount of certain breeder awards for races in the State and outside the State.

SB 794/HB 947 - Eliminating the specific year restriction on the use of Purse Dedication Account funds for operating expenses.

Twelve bills related to land use and zoning, including MALPF and PlanMaryland:

SB 129; SB 148; SB 112 - MALPF bills re: appraisals, easements and lot releases.

HB 23 - Constitutional amendment to provide that dedicated state funds may be used only for the specific purpose that are set forth in the law.

HB 36 - Requiring the Secretary of Planning to submit the State Development Plan and any substantial part or revision of the Plan to the General Assembly; prohibiting the Plan from being finalized until it is approved by an Act of the General Assembly; authorizing the General Assembly to modify the Plan as submitted by the Secretary; requiring the Governor to file with the Secretary of State the Plan, part of the Plan, or a revision to the Plan, together with specified comments, after enactment of a law that approves or modifies the Plan.

HB 253 - Prohibits the Department of Planning from adopting any regulation or taking any action that would restrict the planning and land use powers of any local government or regional planning agency.

SB 532/HB 1201 - Prohibits the use of PlanMaryland, the Governor’s statewide development plan, to create or establish a new cause to deny a state permit, project, or approval. It would also prohibit the Plan’s use to deny state funding that is mandated by statute, regulation, or in the state’s operating or capital budgets. Provisions in the bill would require conflicts between the Plan and counties or municipalities to be negotiated in good faith, but if no resolution of the conflict can be had, a local government’s comp plan, zoning laws, and local ordinances take precedence.

SB 236/HB 445 - Creates a new state level approval process for development, including septic restrictions on new subdivisions.

HB 931 - Requires General Assembly approval prior to finalizing the State Development Plan, PlanMD.

HB 932 - Prohibits the use of PlanMaryland, the Governor’s statewide development plan, to create or establish a new cause to deny a permit, project, or approval. It would also prohibit the Plan’s use to deny state funding that is mandated by statute, regulation, or in the state’s operating or capital budgets.

Seven bills related to taxes and fees, including estate taxes:

SB 294/HB 444 - Exempts the value of a farm from the state estate tax when the farm stays in agricultural use for the next 10 years.

SB 324/HB 154 - similar to SB 294, except this bill recaptures the estate tax that would have been due if the property ceases to be used for farming purposes during the life of the qualified recipient.

SB 410 - Excludes the full value of qualified agricultural property from the gross value of an estate for the purposes of the Maryland estate tax.

SB 240/HB 446 - an increase to the current "flush tax."

US Dept. of Labor to re-post proposed change to Farm Child Labor Rule

The US Department of Labor announced in February that it will:

"re-propose the portion of its regulation on child labor in agriculture interpreting the 'parental exemption.' The decision to re-propose is in part a response to requests from the public and members of Congress that the agency allow an opportunity for more input on this aspect of the rule. . . .

The parental exemption allows children of any age who are employed by their parent, or a person standing in the place of a parent, to perform any job on a farm owned or operated by their parent or such person standing in the place of a parent. Congress created the parental exemption in 1966 when it expanded protections for children employed in agriculture and prohibited their employment in jobs the Department of Labor declared particularly hazardous for children under the age of 16 to perform.

The department recognizes the unique attributes of farm families and rural communities. The re-proposal process will seek comments and inputs as to how the department can comply with statutory requirements to protect children, while respecting rural traditions. The re-proposed portion of the rule is expected to be published for public comment by early summer. The department will continue to review the comments received regarding the remaining portions of the proposed rule for inclusion in a final rule."

Click here for the full text of USDOL's press release.