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Written by Ellen Essman, J.D., OSU CFAES Government Relations

Just like there won’t be snow flurries on Christmas this year, there was not a flurry of activity at the Statehouse over the last few months. That being said, we will be carefully following several ag-related bills that progressed in committees but have not yet been passed by the full body, as the calendar turns to 2024. Here’s a summary of the bills we’re watching. 

H.B. 162—Agriculture Designations. H.B. 162 was introduced by Representatives Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville) on May 5, 2023, and was passed by the House in October, and had its first hearing in the Senate Agriculture and Natural Resources Committee on December 5. The bill would designate the following days and weeks to honor Ohio Agriculture:

• March 21 of each year as “Agriculture day;”
• The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as “FFA Week;”
• October 12 of each year as “Farmer’s Day;” and
• The week ending with the second Saturday of March as “4-H Week.”

H.B. 347—Farming Equipment Taxes. This bill was introduced by Representative Don Jones (R-Freeport) and referred to the House Ways and Means Committee in early December.  The bill would change the way farmers claim a tax exemption on certain purchases. 

Currently, when an Ohioan engaged in farming, agriculture, horticulture, or floriculture is buying a product for “agricultural use,” they must provide the seller with an exemption certificate. This certificate comes from the Ohio Department of Taxation and relieves the seller of the obligation to collect the sales tax on behalf of the state.  However, the Department of Taxation can later determine that the purchase does not qualify for exemption, and then the farmer would be expected to pay the tax. 

H.B. 347 would slightly alter this current way of doing things when it comes to the purchase of certain vehicles and trailers.  Under the bill, the purchaser could receive an agricultural use exemption for taxes on these vehicles if the purchaser shows the seller copies of the purchaser’s Schedule F—the federal income tax profit of loss from farming form—for three most recent preceding years. Alternatively, a farmer could obtain a certificate from the Department of Taxation verifying that they have filed a Schedule F for three years in lieu of providing the forms directly to the seller.  Notably, the bill states that “no other documentation or explanation shall be required by the vendor or the tax commissioner” to prove that the purchase qualifies for the agricultural use exemption.

The following vehicles and trailers would be included under the bill:

• Trailers, excluding watercraft trailers;
• Utility vehicles, (vehicles with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, land and garden, materials handling, or similar activities);
• All-purpose vehicles, (vehicles designed primarily for cross-country travel on land and water, or on multiple types of terrain, but excluding golf carts);
• Compact tractors (garden tractors, small utility tractors, and riding mowers).

H.B. 364—Agriculture (seed sharing). House Bill 364 was introduced in the House by representatives Dave Dobos (R-Columbus) and Roy Klopfenstein (R-Haviland) on December 14.  The bill would allow the Ohio Prairie Association to distribute milkweed seeds non-commercially to its members, with the intent of promoting habitats for pollinators like monarch butterflies.

The bill would legally define “non-commercial seed sharing” as the distribution or transfer of ownership of seeds with no compensation or remuneration.  Also included in the definition are a list of situations that are not considered “non-commercial seed sharing,” including when:

• The seeds are given as compensation of work or services rendered;

• The seeds are collected outside of Ohio;
• The seeds are patented, treated, or contain noxious weed species or invasive plants.

H.B. 364 also includes a definition of “seed library,” which it defines as a non-profit, governmental, or cooperative organization or association to which both of the following apply:

• It is established for the purpose of facilitating the donation, exchange, preservation, and dissemination of seeds among the seed library’s members or the general public.

• The use, exchange, transfer, or possession of seeds acquired by or from the non-profit governmental, or cooperative organization or association are obtained free of charge.

The bill would further exempt non-commercial seed sharing for the purposes of pollinator conservation, creating and conserving native habitats, and operation of a seed library from labeling, advertising, handling, and sales restrictions under Ohio law.

To further the goal of promoting pollinators and habitats, H.B. 364 would make changes to the requirements for maintaining toll roads, railroads, or electric railways. Current law requires managers of such thoroughfares to destroy a number of noxious weeds along the roadway or in right of ways. The bill would no longer require the destruction of Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, or ironweed. 

The holiday season isn't distracting the Senate Agriculture and Natural Resources Committee from considering three legislative proposals concerning scenic rivers, small beer brewers, and state agriculture day designations.  On December 12, the committee will hear testimony on all three bills.  Here’s a summary of the proposals.

S.B. 156 - Designation of wild, scenic, and recreational rivers.  Senators Bill Reineke (R-Tiffin) and Bob Hackett (R-London) introduced this legislation to revise portions of the Ohio Scenic Rivers Program that were raising concerns from private property owners.  The committee will hold its fourth hearing on the bill on December 12.  The proposal makes the following changes to the Ohio Scenic River Law:

• Clarifies that the designation of a Wild, Scenic or Recreational River does not grant authority to oversee private activities on private property or enter private land within the river area to the Ohio Department of Natural Resources (ODNR), which administers the program. 
• States that the agency has management and oversight of lands along a designated river only for those lands the state owns.
• Requires ODNR to adopt rules to govern the use, visitation, and protection of scenic river lands and to establish facilities and improvements within the areas necessary for visitation, use, restoration, and protection of the lands.
• Clarifies that certain public entities must obtain approval from the ODNR Director to perform certain construction activities within 1,000 feet of a wild, scenic, or recreational river. 
• Extends the public comment period following the announcement of intent to designate a new river from 30 days to 60 days.

S.B. 138 – Alcohol Franchise Law exemption for small brewers.  This bill introduced by Senator Andrew Brenner (R-Delaware) aims to help small brewers who annually manufacture less than 250,000 barrels (7.75 million gallons) of beer.  The bill exempts small brewers from Ohio’s Alcohol Franchise Law, which requires a beer or wine manufacturer to enter into a franchise agreement with a distributor and lays out requirements for the franchise agreement.  The exemption would allow small brewers to establish agreements with distributors under their own negotiated terms rather than the state-required terms.  S.B. 138 will see its second committee hearing on December 12.

H.B. 162 – Agriculture Appreciation Act.  The House of Representatives passed H.B. 162 in October, and it will have its  second hearing on December 12.  Proposed by Reps. Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville), the bill designates the following federal agriculture days as state days in Ohio:

• March 21 of each year as “Agriculture day”;
• The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as "FFA Week";
• October 12 of each year as “Farmer’s Day”;
• The week ending with the second Saturday of March as “4-H Week.”

Keep up with the Senate Agriculture and Natural Resources Committee’s activity on the Ohio Senate’s website at https://ohiosenate.gov/committees/agriculture-and-natural-resources. 

Second marriages present unique challenges for farm transition planning. This is especially true when the second marriage occurs later in life and the spouses have accrued significant assets and/or have children from prior marriages. The spouses in a second marriage obviously want to help provide for each other but may have a competing interest of providing for their children but not necessarily stepchildren. Without good planning, it is possible that farm assets will end up with a spouse or stepchildren who were not involved in the farming operation.

Farm Transition Planning Strategies for Second Marriages, a new bulletin available at farmoffice.osu.edu, addresses the two most common sources of risk to farming operations when a second marriage is involved – death and divorce. While these risks cannot be eliminated, there are strategies to help minimize the risks to ensure, as best we can, that farm assets stay with the farm family. The bulletin discusses the strategies and how they can be integrated into a farm transition plan.

Strategies to protect farms from the death of a second spouse mostly involves incorporating a trust in the farm transition plan.  A trust can hold assets for the surviving spouse without giving legal ownership to the spouse.  The trust serves the dual purpose of providing  income and other resources for the surviving spouse while also protecting those assets to ultimately be inherited by the deceased spouse’s heirs.  Trusts are an excellent tool to both provide for spouses and protect assets for future generations.

Prenuptial and postnuptial agreements can be used to reduce the risks of divorce.  These agreements between spouses specifically identify which assets are considered joint, marital assets and which assets are to be considered outside of the marriage.  These designations can help safeguard farm assets by keeping them immune from a division of assets in a divorce.   A recent change in the law allows spouses to enter into such an agreement even after the marriage has occurred.

Any farmers who are in a second marriage should consider including a trust and/or pre/postnuptial agreement into their farm transition plan.  An attorney experienced in farm transition planning can assist with deciding if a trust or marriage agreement is needed and how best to integrate into a farm transition plan.  The Farm Transition Planning Strategies for Second Marriages bulletin provides a detailed discussion of trusts and marriage agreements and their potential impact on farm transition planning.

With the warm, dry, and windy months of October and November behind us, Ohio farmers will soon have legal clearance to conduct open burning during the daylight hours.  Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November, and then again in March, April, and May.  That’s because ground cover and weather conditions create high fire risk and volunteer firefighters with daytime jobs aren’t readily available to fight the fires. 

December 1 marks the end of the daytime burn restriction, but other open burning laws remain in effect. Farmers can burn “agricultural waste,” but must follow conditions in the open burning laws.  Burning wastes that aren't agricultural waste might require prior permission or notification, and it is illegal to burn some wastes due to the environmental harms they cause. Don't get burned by failing to know and follow the open burning laws.  Here’s a summary of important provisions that affect farmers and farmland owners.

What you can burn.  Ohio law allows the burning of “agricultural wastes” under certain conditions.  Ohio law defines what is and is not “agricultural waste” as follows:

• Agricultural waste is any waste material generated by crop, horticultural, or livestock production practices, and includes such items as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities.
• Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or "economic poisons and containers," unless the manufacturer has identified open burning as a safe disposal procedure.
• Agricultural waste does not include"land clearing waste," which is debris resulting from the clearing of land for new development for agricultural, residential, commercial or industrial purposes.  Burning of “land clearing waste” requires prior written notification to Ohio EPA.
• If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.

Where you can burn.  Laws that affect the burning location relate to where the waste is generated and whether the burn is in or near a village, city, or buildings:

• It is legal to burn agricultural waste only if it is generated on the property where the burn occurs.  It is illegal to take agricultural waste to a different property for burning and to receive and burn agricultural waste from another property.
• Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA.  A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile of a city or village with a population of more than 10,000. 
• A burn must be located more than 1,000 feet from any neighboring inhabited building.

How to manage the burn.  Ohio laws impose practices a person must follow when conducting open burning, which includes:

• Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
• Stack waste to provide the best practicable condition for efficient burning.
• Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
• Take reasonable precautions to keep the fire under control. 
• Extinguish or safely cover an open fire before leaving the area.

Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.

A bad burn can burn you.   Violation of state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio EPA, which has the authority to issue fines of up to $1,000 per day per offense for an illegal burn.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.

An illegal burn might also bring in the Ohio Division of Forestry or local law enforcement.  Beyond the environmental provisions, other violations of the open burning laws can result in third degree misdemeanor charges.  Penalties of up to $500 and 60 days of jail time per violation could result.  

A final risk to consider is liability for harm to yourself, other people, or other property if a burn goes wrong.  It’s possible for a fire to escape and burn unintended property, to reduce roadway visibility and cause an accident, or to interfere with people, animals, crops, or buildings.  These situations can cause personal injuries, property harm, and could result in insurance claims or a negligence or nuisance lawsuit.  Using common sense and taking reasonable safety precautions when conducting a burn can go a long way toward reducing the risk of harm and resulting liability for harm.

To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.