Recent Blog Posts

December 31 saw the end of the 135^th Ohio General Assembly. The assembly's Lame Duck session following the November election brought with it the passage of several bills that may have an effect on agriculture and natural resources throughout the state.  Any bills the legislature did not approve before the end of the session "died" and are no longer under consideration.  Here's a summary of bills the lawmakers passed, which are all now signed by Governor DeWine:

S.B. 156—Scenic Rivers.  Senate Bill 156 passed ahead of the Lame Duck session and became effective on October 24, 2024. S.B. 156 transferred the authority to administer the Wild, Scenic, and Recreational River Program from the Ohio Department of Natural Resources’ (ODNR) Division of Parks and Watercraft to the Division of Natural Areas and Preserves (DNAP). Further, the bill narrowed DNAP’s scope of authority from river areas (including land around Wild, Scenic, or Recreational Rivers) to just the watercourses of rivers.  At the same time, the bill expanded the types of watercourses that can be designated as wild, scenic, or recreational rivers to include headwaters of those rivers.

H.B. 364—Regards non-commercial seed sharing; noxious weed removal. The main goal of House Bill 364 is to help conserve pollinator species and support native plant habitats. To do this, the bill exempts from the laws governing seeds any "noncommercial seed sharing" that supports a number of activities. These activities include:

• Conservation of pollinators and threatened or endangered species;
• Planting and creation of native plant habitats;
• Propagation of native plants for their specific conservation;
• Operation of a seed library, provided that the seed library ensures that any seeds exchanged among the seed library’s members or the general public are open-pollinated, public domain varieties.

A “seed library” is defined 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.

Finally, the bill makes changes to the weed removal provisions in R.C. 4959.11, which requires managers of toll roads, railroads and electric railways to manage weeds along their roads and rights of way. The bill changes the specific requirement to destroy "Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, ironweed and all other noxious weeds" to one that requires destruction of "noxious weeds" as defined in the law that applies to weed removal along county and township roadways. Several of the weeds removed from R.C. 4949.11 are not on Ohio's noxious weeds list and, especially in the case of milkweed, are beneficial plants for monarch butterflies and other pollinators. 

S.B. 54—Establish the New African Immigrants Grant and Gift Fund.  At first glance, the title of Senate Bill 54 doesn’t indicate that it has anything to do with agriculture or natural resources law. However, S.B. 54 became the “Christmas Tree” bill of the Lame Duck session, meaning that amendments not having anything to do with the original purpose of the bill were added on to it. 

S.B. 54 contains two such amendments that relate to agriculture and natural resources. The first, originally found in House Bill 683, transfers $10 million from the Ohio Controlling Board Emergency Purposes/Contingencies Fund to ODA to disburse to Soil and Water Conservation Districts for drought relief to farmers affected by the 2024 drought. 

The second addition to S.B. 54 is the creation of the Ohio River Commission. The Commission will be housed within the Department of Development, and its purpose will be to “develop and promote economic development, marine cargo terminal operations, and travel and tourism on the Ohio river and its tributaries.”  Of note are several of the powers and duties given to the Ohio River Commission, including:

• Receive, promote, support, and consider recommendations, from public or private planning organizations, and develop a master plan for Ohio River infrastructure and transportation projects;
• Coordinate with port authorities, private port operators, metropolitan planning organizations, regional transportation planning organizations, local development districts, Ohio River service entities, utility service providers, and agricultural, tourism, and recreational interests, regarding Ohio River infrastructure and transportation;
• In conjunction with applicable state agencies, coordinate with state agencies, local governments and communities, other states, and the federal government regarding Ohio River issues;
• Evaluate policies, programs, programs of research, and priorities to offset the continued decline in coal production and consumption within the Ohio River Basin and promote prosperity in Ohio’s Appalachian region; and
•  Administer development funds and seek, support, and assist the Ohio River industry in the utilization of available grants, loans, and other finance mechanisms in support of Ohio River projects.

H.B. 503—Prohibit activities re: garbage-fed swine, feral swine, wild boar.  House Bill 503 is meant to address the dangers of feral swine; namely the destruction of property and the transmission of diseases like African Swine Fever to Ohio’s commercial pig population.

The bill makes it illegal to knowingly:

• Import, transport, or possess live wild boar or feral swine;
• Release wild boar or feral swine into the wild or expanding the range of a wild boar or feral swine by introducing it to a new location; and
• Purposely feed a wild boar or feral swine.

In addition, if a person knows or has reason to know that wild boar or feral swine are present on public or private property, the law requires them to report it to Ohio Department of Natural Resources’ Division of Wildlife.  If wild boar or feral swine is present on a person’s property, they may immediately eradicate the swine without a hunting license, as long as they notify the Division of Wildlife and follow the Division’s instructions.

H.B. 503 also includes language that makes it illegal to feed garbage or treated garbage to swine, or to bring swine into Ohio that has been fed garbage or treated garbage. For the first violation, the Ohio Department of Agriculture can collect a penalty of up to $500 and can charge up to $1000 for subsequent violations.

With the 136^th General Assembly now underway, be sure to follow the Ohio Ag Law Blog for updates on legislation we'll see in this new two-year legislative session.

Thank you to Ellen Essman, J.D. with OSU CFAES Government Affairs, for authoring this post.

The Corporate Transparency Act ("CTA") has reached the Supreme Court of the United States (“SCOTUS”). On New Year’s Eve, the U.S. Department of Justice submitted an application to SCOTUS, seeking either a stay of the nationwide injunction or, at a minimum, a limitation of the injunction's scope to the plaintiffs specifically named in the Texas Top Cop Shop case.

How Did We Get Here? 
Although there have been multiple lawsuits filed to stop the implementation of the CTA, the nationwide injunction at issue stems from the Texas Top Cop Shop v. Garland case arising out of the Eastern District of Texas. Below is a timeline of events:  

• May 5, 2024 – Six plaintiffs, including Texas Top Cop Shop, Inc., filed a federal complaint alleging that the CTA’s reporting rule is unconstitutional and asked the court to invalidate the CTA and its reporting requirements. 
• June 3, 2024 – Plaintiffs filed a motion for a preliminary injunction seeking to halt the implementation of the CTA’s reporting requirements and deadlines. 
• December 3, 2024 – The U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction against the CTA, concluding that the CTA “appears likely unconstitutional.” The court did not rule on the constitutionality of the CTA but instead focused on whether the Plaintiffs satisfied the proof necessary for being awarded an injunction. See our post regarding the court’s decision to issue an injunction. 
• December 9, 2024 – The Government appealed the issuance of the injunction to the U.S. Court of Appeals for the Fifth Circuit. 
• December 13, 2024 – The Government filed a motion to stay the injunction issued by the lower court. A stay of an injunction essentially “lifts” or cancels out the injunction. 
• December 23, 2024 – A motions panel for the Fifth Circuit granted the Government’s motion and issued a stay on the injunction against the CTA, essentially reinstating the CTA’s reporting requirements. See our post on the motion panel’s decision. 
• December 26, 2024 – A merits panel for the Fifth Circuit reversed course and vacated the stay issued by the motions panel, effectively reinstating the injunction against the CTA. See our post on the merit panel’s decision. 
• December 31, 2024 – The Government submitted its application to SCOTUS to review the nationwide injunction.  

What Happens Next?
SCOTUS may choose to disregard the application and decline to address the challenges to the CTA, leaving the injunction intact. Alternatively, SCOTUS could opt to overturn or narrow the injunction, reinstating the CTA's reporting requirements for numerous businesses across the country. As a result, reporting companies should be prepared to promptly submit the required beneficial ownership information (“BOI”) reports.

Filing BOI Reports
Although there is no current mandate for reporting companies to file BOI reports to the Financial Crimes Enforcement Network (“FinCEN”), voluntary submissions are still being accepted. There is no charge to file a BOI report with FinCEN. Reporting companies can simply visit https://boiefiling.fincen.gov to begin the process of filing their BOI report. 

Reporting companies will need the following information: (1) the reporting company’s legal name, (2) tax identification number, (3) jurisdiction of formation, and (4) current U.S. address. For their beneficial owners, reporting companies will need the following information: (1) full legal name, (2) residential address, (3) a form of identification, which must be either a state issued driver’s license, a state/local/tribe-issued ID, a U.S. passport, or a foreign passport, and (4) an image of the identification used in number (3). Note: companies formed after January 1, 2024, will also need their company applicant information. See our law bulletin for more details on reporting requirements. 

As previously noted, filing a BOI report is free of charge, and a straightforward LLC with only a few beneficial owners can typically complete and submit the report with ease. However, a reporting company may opt to engage a professional, such as an attorney, accountant, or other third-party, to assist with the process for a fee. 

Conclusion
While there have been no significant updates to the CTA, it is essential to stay informed about potential changes on the horizon. The Government's application to SCOTUS could lead to a shift in direction in the near future. As always, we will keep you updated on the latest developments.

In a recent blog post, we discussed a federal district court’s issuance of a nationwide injunction against the Corporate Transparency Act (“CTA”), temporarily halting the requirement for businesses to file “beneficial ownership information” (“BOI”) reports with the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). In that post, we promised to keep you updated on the legal status of the CTA and its BOI reporting requirements. Well, we are here to tell you that the saga continues . . . 

As of December 23, 2024, that nationwide injunction is no longer enforceable, and the BOI reporting requirements of the CTA have been reinstated. The Court of Appeals for the Fifth Circuit issued a temporary stay on the nationwide injunction. The Fifth Circuit found that the government made a strong showing that it is likely to succeed in proving that the CTA is constitutional. The court explained that Congress exercised its broad authority under the Commerce Clause to pass the CTA, aiming to regulate the anonymous ownership and operation of businesses that constitute an "economic class of activities" significantly affecting interstate commerce. Consequently, the court determined that the reporting requirement for such businesses is within the scope of the Commerce Clause.

The court further concluded that “a last-minute injunction of a statute proposed and passed by the people’s representatives inevitably causes irreparable harm.” Additionally, the court determined that the burden on businesses required to report is minimal. When weighed against the “public’s urgent interest in combatting financial crime and safeguarding national security,” the court found that a stay of the injunction was justified.

Following the Fifth Circuit's ruling, the Department of the Treasury issued an alert on the FinCEN website acknowledging that reporting companies may require additional time to comply with the CTA due to the period when the preliminary injunction was in place. As a result, the reporting deadlines have been extended as follows: 

• Reporting companies established or registered before January 1, 2024, now have until January 13, 2025, to submit their initial BOI reports to FinCEN. (Previously, these companies were required to report by January 1, 2025).
• Reporting companies formed or registered in the United States on or after September 4, 2024, and before December 3, 2024, have until January 13, 2025, to submit their initial BOI reports to FinCEN.
• Reporting companies formed or registered in the United States between December 3, 2024, and December 23, 2024, have an additional 21 days beyond their original filing deadline to submit their initial BOI reports to FinCEN.
• All reporting companies created or registered in the United States on or after January 1, 2025, have 30 days to file their initial BOI reports with FinCEN. 

So, what does it all mean? 

If your farm business is registered in Ohio, compliance with the CTA's reporting requirements is once again mandatory. While farm businesses now have a slight extension to meet the BOI reporting requirements, it is probably best practice not to delay too long. 

This situation is unfolding quickly. This case may still undergo further review by the Fifth Circuit or potentially reach the Supreme Court of the United States. Additionally, several other federal courts are currently evaluating challenges to the CTA. We will make every effort to keep you informed promptly as the situation develops.  

Note: The following article was written by Sarah Hoak, an undergraduate student in the College of Food, Agricultural, and Environmental Sciences at Ohio State.  Sarah was a student in the Agribusiness Law Class at OSU this past semester.  Sarah researched and wrote this article to expand her knowledge and understanding of pesticide use policy, a topic of great interest to her.

On August 20, 2024, the EPA announced its final Herbicide Strategy. Many in the agriculture community are wondering what the strategy is, how it came to be and what it means for the industry.

The herbicide strategy is one part of the EPA’s workplan to protect endangered species. It was created in response to multiple lawsuits filed against the EPA for failure to comply with the Endangered Species Act (ESA) by not conducting mandatory consultations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA is the primary federal law that regulates pesticide use in the U.S. and prevents the sale or use of a pesticide in the United States until the EPA approves and registers a label for the product. After a pesticide label is approved, the EPA must review the label every fifteen years to ensure that it continues to meet federal requirements with regards to the environment and human health. However, the EPA has struggled to complete ESA consultations when registering pesticides or reviewing their labels. Just one ESA consultation can take years to complete, and time adds up when there are over 17,000 registered pesticide products on the market.

To better comply with the ESA and reduce the risk of more litigation, the EPA drafted the Herbicide Strategy. This policy was designed to start the protection of endangered species earlier in the regulatory process. Instead of acting after the fact, the strategy aims to mitigate herbicide exposure to endangered species at the start. The strategy lays out a set of mitigation guidelines that growers and applicators will need to follow as they apply an herbicide. These mitigation practices will help limit herbicide exposure to endangered species. A draft policy of the strategy was released in 2023 and underwent the public comment process. Because the EPA is a government agency, they have the power to make and enforce regulations. The public can share their input on drafted regulations during the “comment period,” which is a 30–60-day time frame where government agencies will hear comments from the public¹.

The comments that were submitted for the draft herbicide strategy expressed concern about the restrictiveness and complexity of the policy. The EPA took these comments into account and made changes so that the final policy is easier to understand, includes more flexibility for pesticide users and reduces the amount of additional mitigation needed.

The final policy, taking into account public comments, focuses on targeting pesticide exposure from off-target movement including spray drift, erosion and runoff. The EPA will use a three-step decision framework to implement the policy. The first step compares and identifies a herbicide's potential to have population-level impacts on endangered species as either not likely, low, medium, or high. This step sets the bar for how much mitigation is needed for use of each herbicide.

The second step will determine the level of mitigation needed to sufficiently reduce spray drift, runoff and erosion exposure to listed species. For spray drift exposure, mitigation will primarily be based on buffer distances, and the distance will be determined by a herbicide’s classification (from step one) and the method of application. Applicators have the option to reduce the required buffer size by adopting additional mitigation measures aimed at reducing spray drift.

For runoff and erosion exposure, a point system will be used with growers/applicators having a mitigation menu from which to select practices that aim to reduce off-target movement. Herbicides will require a certain amount of mitigation points based on their classification from step one. Mitigation measures receive a value of either one, two or three points - three being high efficacy and one being low efficacy. Like with spray drift, applicators/growers have the option to gain the required number of points by adopting additional mitigation measures.

Step three will determine where the mitigations identified in step two will be required. This step considers each field's characteristics. Some mitigations may apply across the entire area of herbicide use or may be geographically specific and only apply in certain locations. This step complicates the strategy and its implementation because each field may require different forms of mitigation depending on its characteristics.

Let's look at an example for runoff and erosion mitigation on a field in Franklin County, Ohio with a 2% slope:

Using the EPA’s mitigation menu, we can determine how much mitigation is needed. Using the mitigation relief options in Table 1 of the mitigation menu, the field has a starting point value of 5 points. The field gets 3 points because Franklin County has a low pesticide runoff vulnerability and 2 points because it has a slope of less than 3%. If a grower were to apply a herbicide with a low impact, no additional mitigation measures would need to be taken. Low population impact herbicides require 3 mitigation points, and the base field characteristics cover this already.

However, if a grower were to apply a high impact herbicide, then 9 mitigation points (4 in addition to the field’s starting value) would need to be met. The grower can choose from various mitigation options to reach the 9-point mark. Some of these options include no-till conservation tillage (3 points), contour farming (2 points), in field vegetative strips (2 points), cover crops with tillage (1 point), grassed waterways (2 points), mitigation tracking (1 point) or participating in a qualifying conservation program (2 points). There are even more mitigation measures to choose from that are listed in the mitigation menu. As long as the grower selects and implements enough mitigation measures to reach the 9-point mark, then they will be in compliance with the strategy.

The Herbicide Strategy is a complex and layered policy that will affect growers and pesticide applicators across the United States. Compliance with the ESA has been a struggle for the EPA, but through the Herbicide Strategy, mitigation of spray drift and runoff/erosion exposure to endangered species should be reduced. Remember, geography, proximity to endangered species, method of application, pesticide applied, and farm management will dictate how much of an effect this policy has on a specific operation. Not every grower and applicator will be in the same situation, each will have to adjust and change certain aspects of how they manage their farm or specific fields.

Unfortunately, how this policy will play out and be implemented is unclear.  The agriculture community will have to be vigilant and adapt to the Herbicide Strategy as more information arises and implementation begins.