Recent Blog Posts

Written by Peggy Kirk Hall and Barry Ward, Leader, Production Business Management

Many farmers have utilized the CARES Act’s Paycheck Protection Program (PPP) to obtain federal funds to help with payroll and certain non-payroll expenses in the wake of COVID-19.  As we’ve discussed on our Farm Office Live webinars here, Congress revised the PPP with the passage of the Paycheck Protection Program Flexibility Act earlier this month.  As a result of the new legislation, the Small Business Administration released a series of Interim Final Rules (IFRs) and a new forgiveness application.  The IFRs, available here, clarify certain points contained in the bill and provide revisions to previous IFRs.  All of these changes affect how farmers can use the funds and how much of the funds can be forgiven from loan repayment requirements. 

The new PPP provisions

• The “covered period” that applies to the issuance and use of PPP loan expenditures was to end on June 30, 2020, but the law now extends that date to December 31, 2020.  This means that borrowers now have until December 31 to spend PPP loan proceeds.
• The “covered period” for loan forgiveness has also changed.  Borrowers will now be able to have up to 24 weeks of costs forgiven and not subject to repayment.  But borrowers who received loans prior to June 5, 2020 may choose to use the 8-week period provided in the original PPP.  A borrower need not wait until the end of the covered period to apply for forgiveness if the borrower has expended the loan funds prior to the end of the covered period.
• The requirement that 75% of loan proceeds be used for payroll costs in order to receive full forgiveness has been reduced to 60%.   This means that forgiveness is not applicable for any portion of non-payroll costs that exceed the 40% maximum for non-payroll.  Under the original law, forgivable non-payroll costs could not exceed 25%.
• The amount eligible for forgiveness can equal the full loan amount plus accrued interest, and the IFR revises the eligible costs for both the 8-week and 24-week covered periods as follows:
  • Payroll costs for 24 weeks at a maximum of $46,154 per employee and for 8-weeks at a maximum of $15,385 per employee, as well as benefits such as health care costs, state payroll taxes paid by the employer, and retirement contributions.  Note that there are limitations to including health insurance contributions made on behalf of self-employed persons, general partners and owner-employees of S-corporations and to including employer retirement payments on behalf of self-employed persons or general partners.
  • Owner compensation replacement is calculated according to 2019 net profit.  The forgiveness limit for an 8-week covered period is 8/52 of the 2019 net profit, up to $15,385 and for a 24-week covered period, is restricted to two and a half months or 2.5/12 of 2019 net profit, up to $20,833.
  • Mortgage interest, rent payments on lease agreements, and utility payment costs are eligible to the extent that they would be deductible as business mortgage, rent and utility payments on Form 1040 Schedule F or Schedule C.  Note that although this language defines the forgivable portions of these non-payroll costs, such costs are not actually deductible if forgiven.
• Employers will have a longer period to rehire employees and restore salaries without reducing the forgiveness amount.  This “safe harbor” date for rehiring employees is extended to December 31, 2020.
• An employer who isn’t able to rehire employees by the end of the “safe harbor” period may qualify for an exemption from a corresponding forgiveness reduction that would occur if the employer can document that:
  • The employer is unable to rehire persons who were employees on February 15, 2020 or to rehire similarly qualified persons, or
  • The employer is unable to return to the same level of business activity it was at before February 15 due to COVID-19 standards and requirements.
• For new loans taken out after June 5, loan proceeds that are not forgiven may be repaid in five years rather than two years.  Loans prior to June 5 remain at a two-year repayment term, unless the lender agrees otherwise.
• Borrowers can defer repayment of the loan until the date that the lender receives the borrower’s forgiveness amount, or until 10 months from the end of the borrower’s forgiveness period if not applying for forgiveness.              
• The original law prohibited borrowers  from using the CARES Act provision that allows employers to defer payroll taxes once they received loan forgiveness, but the new law allows borrowers who receive forgiveness to also defer payroll taxes under the CARES Act.

The forgiveness application and process

A new forgiveness application was also released to correspond with the changes in the new PPP Flexibility Act.  As laid out in the application instructions, borrowers are eligible to use a shorter “EZ application” for loan forgiveness if they meet one of these criteria:

• Borrower is self-employed and has no employees or
• Borrower didn’t reduce salaries or wages for employees by more than 25% and didn’t reduce numbers or hours of employees or
• Borrower experienced reductions in business activity as the result of health directives related to COVID-19 and did not reduce salaries or wages of employees by more than 25%.

The forgiveness process could take up to five months.  It begins with a borrower submitting the application to the lender that provided the loan, who will have 60 days to review the application and send the approved application on to the SBA.  The SBA will have up to 90 days to review the application, confirm the amount to be forgiven and remit to the lender the forgivable amount and any accrued interest, less any advance payments made to the borrower under the Economic Injury Disaster Loan program. 

The Loan Forgiveness Application Form is here and its instructions are here.  The Loan Forgiveness Application Form EZ is available here and its instructions are here. 

Uncertainties remain

Despite the recent changes to PPP, several gray areas and uncertainties remain, such as:

• PPP Loans received prior to June 5, 2020 allow the borrower to choose between an 8 week and a 24 week covered period.  Farmers with a loan based on owner compensation replacement and no employees will likely benefit from choosing the 24 week covered period to meet the criteria for full loan forgiveness.  One possible downside with choosing the 24 week covered period might be further rule changes that might be unfavorable to the borrower, although this is unlikely.  There is still uncertainty as to whether a self-employed person needs to write a check to themselves to qualify for forgiveness based on the owner compensation replacement portion of the PPP Loan. The safe alternative would be to write this check even if the check is deposited back into the same account.
• According to some sources there is ongoing discussion regarding legislation that would grant forgiveness to all PPP loans under $150,000. This discussion of a safe harbor based on the size of the PPP loan is apparently being advanced by certain banks.

We encourage employers who obtained a PPP loan to talk with their lenders and accountants to capitalize on and comply with the PPP changes and make decisions about the forgiveness options.  For those who have not yet applied for a PPP loan, the deadline is soon approaching —applicants have until June 30, 2020 to apply for a loan.

Read more about the PPP’s original provisions in our blog post here.

There’s been a lot of action in the Ohio General Assembly over the last few weeks ahead of the body’s summer break.  Specifically, the House of Representatives has considered bills involving a student debt forgiveness program for veterinarians, animal abuse, road safety in Amish country, immunity for apiary owners for bee stings, and a bill meant to support county fairs during the COVID pandemic. Finally, both the Ohio House and Senate have passed bills that would limit liability involving the transfer of COVID-19.  

Animal-drawn vehicle lighting. House Bill 501, concerning slow-moving, animal drawn vehicles, was introduced in February of 2020 and was first heard in the House Transportation & Public Safety committee on June 2.  The purpose of HB 501 is to “clarify the law governing slow-moving vehicles and to revise the lighting and reflective material requirements applicable to animal-drawn vehicles.” The bill would require animal-drawn vehicles, like the buggies typically driven by the Amish, to have the following: (1) at least one white lamp in the front visible from 1,000 feet or more; (2) two red lamps in the rear visible from 1000 or more; (3) one yellow flashing lamp mounted on the top most portion of the rear of the vehicle; (4) a slow moving vehicle (SMV) emblem; and (5) micro-prism reflective tape that is visible from at least 500 feet to the rear when illuminated by low beams on a vehicle.  In the committee hearing, HB 501 had mostly positive feedback, and was touted as a solution to crashes involving animal-drawn vehicles in poor visibility. 

When the bee stings.  HB 496, which would grant apiary owners immunity for bee stings, passed the Ohio House on June 9, 2020.  The bill would protect the owner of a registered apiary from liability in the case of a personal injury or property damage from a sting if they do the following: (1) implement and comply with the beekeeping industry best management practices (BMPs) as established by the department of agriculture; (2) keep correct and complete records of their implementation and compliance with BMPs and make the records available in a legal proceeding; (3) comply with local zoning ordinances pertaining to apiaries; (4) operate the apiary in compliance with the Ohio Revised Code.  Notably, the bill would not protect apiarists from harming a person intentionally or through gross negligence.  The bill now moves on to the Ohio Senate for consideration.

Debt forgiveness for veterinarians.  The House also passed HB 67 on June 10, 2020.  This bill would create the “veterinarian student debt assistance program,” which would determine which veterinarians would receive student debt assistance, and how much each person would receive.  The amount awarded must be between $5,000 and $10,000.  Essentially, if the new veterinarian agrees to live in Ohio for a certain amount of time, and to participate in “charitable veterinarian services” like spaying and neutering for a nonprofit organization, humane society, law enforcement agency, or state, local, or federal government, student debt could be forgiven.  The details, including how many hours a veterinarian would need to work for charity, the types of charities that qualify, the amount of time a person must live in Ohio, and others would be determined by State Veterinary Medical Licenses Board. 

Animal abuse. HB 33 passed the lower chamber on June 11, 2020.  This bill would require veterinarians, social service professionals (people who work at the county Job and Family Services, Children’s Services), counselors, social workers, and other similar professions to report violations against “companion animals” (dogs, cats, other animals kept in a residential dwelling), to law enforcement and/or the county humane agent or animal control officer.  People in these professions would have to report when they have “knowledge or reasonable cause to suspect” that violations to companion animals are happening, and they know or suspect that a child or older adult (60 years and older) lives in the residence, and they know or suspect that the violation is having an impact on the child or older adult.  Violations include animal abandonment, injury, poisoning, cruelty, fighting, dog fighting, or sexual conduct with an animal. 

Assistance for county fairs.  If you’ve heard about any Ohio legislation recently, it was likely this bill.  HB 665 was passed by the House after much debate on June 11, 2020.  The 61 page bill makes a lot of changes to the statutory language.  Importantly, the bill would make it a misdemeanor for patrons not to follow written warnings and directions on amusement rides.  The bill also makes a number of changes to how county agricultural societies operate.  First of all, members of a county agricultural society would have to be residents of the county.  Members would have to pay a fee to retain membership, and the societies would have to issue a printed membership certificate to members.  In counties with an ag society, the county treasurer must transfer $1600 to the society each year as long as the society holds its annual exhibition, reports to the Ohio Department of Agriculture (ODA), and the director of ODA presents the society with a certificate showing it has followed applicable laws and regulations.  The bill also addresses independent agricultural societies, to which similar rules apply. The county board of commissioners would also be required to appropriate at least $100 to the ag society’s junior club.  The bill would require ag societies to create a report of its proceedings during the year, file a financial report and send it to the ODA director, and publish an announcement in the county newspaper or the society’s website a statement about the filing of the financial report, and contact information for people who want to obtain a copy of the report.  The bill also outlines the circumstances under which an ag society can sell fairgrounds or parts of fairgrounds.  Finally, an amendment to the bill was adopted that would allow rescheduling of horse races. 

So what was so controversial about this bill?  A suggested amendment to the bill led to a heated argument in the House.  The amendment would have banned sales and displays of confederate flags and other memorabilia at county fairs.  This ban is already in place at the Ohio State Fair, but not county fairs.  Ultimately, the bill passed in the house, but this amendment did not.  The vote to table the amendment was largely along party lines, with every Republican except one voting against the amendment, and all Democrats voting for.

COVID-19 liability. The House passed HB 606 back in May, and we discussed it in a blog post here.  As a refresher, the bill is meant to protect businesses, schools, corporations, people, etc. from liability.  It would accomplish this with the declaration: “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.” In other words, as long as the person, school, or business did not expose or transfer the virus recklessly, intentionally, or with willful and wanton conduct, someone could not bring a civil action for injury, death, or loss to person or property if they contract COVID from the entity.  Furthermore, the bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.

The Ohio Senate passed a similar bill, SB 308. Unlike the House bill, SB 308 provides immunity only in the health care context.  The bill would provide immunity from civil liability for doctors, nurses, and others working in the health care arena during “disasters” like the current pandemic.  It would also provide a qualified immunity from liability to services providers for “manufacturing” and any other service “that is part of or outside of a service provider's normal course of business conducted during the period of a disaster or emergency declared due to COVID-19 and ending on April 1, 2021.” 

What’s next?  The Ohio Senate is scheduled to meet next week on an “as needed” basis.  During these tentatively scheduled sessions, the senate could consider the bills that have cleared the House—HBs 496, 67, 33, and 665.  If passed by the Senate, the bills would then move on to Governor DeWine for approval.  We will keep you updated on what the Senate and Governor decide.  In the case of the COVID immunity bills, each bill moved to the opposite house, where they are currently being considered in committees.  We’ll have to wait and see if one or both are sent on to DeWine, or if the two houses choose to somehow combine the bills into one document. 

When we explained in our last blog post the recent Court of Appeals decision that vacated the registration of three dicamba-based products, we mentioned that one possibility for answering the “what happens now” question was for the EPA to issue a cancellation order that would allow end users to use existing stocks of the products.  That’s exactly what happened yesterday, when the US EPA made a final order that cancels the registrations of XtendiMax, Engenia, and FeXapan but allows for movement and use of the products.  Here’s a summary of the agency’s order.

Authority to issue the cancellation order

After reviewing the background of the dicamba product registrations vacated by the Ninth Circuit Court of Appeals last week for lack of “substantial evidence” supporting the registrations, the EPA stated that it was relying upon the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to establish provisions for the disposition of existing stocks of registrations that are found to be invalid.   “The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under [sections 3, 4 or 6 of FIFRA] to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of [FIFRA]” stated the agency. 

The EPA noted that FIFRA does not prohibit the use of unregistered pesticides, but only prohibits the sale and distribution of unregistered pesticides.  The agency noted that without its action, end users holding stocks of the products aren’t prevented from using the stocks without following the now voided label directions and restrictions.  And the agency pointed to a similar action it took after a 2015 court order that vacated the registration of sulfoxaflor and a 2010 court decision that vacated the registration of spirotetramat.  In both cases, the EPA utilized a cancellation order to establish terms and conditions for the disposition of existing stocks of the products.

Existing Stocks Determination

Back in 1991, the EPA established an “existing stocks policy” to help the agency assess how to treat existing stocks of cancelled pesticides, both when no significant risk concerns have been identified and when there are significant risk concerns for a cancelled product.  The agency noted that it considered the six factors outlined in the policy for considering significant risk concerns associated with a cancelled pesticide and reached the conclusion that “distribution and use in certain narrow circumstances is supported.”  The six factors the agency considered in determining what to do with the existing stocks of dicamba products are:

1.  Quantities of existing stocks at each level of the channels of trade

The agency noted that due to the current timing of the growing season, significant existing stocks are present in the possession of end users and throughout the channels of trade.  Stating that it couldn’t determine the exact quantities of existing stocks at each level of the channels of trade, the EPA estimates that “approximately 4 million gallons could be in the channels of trade.”

2.  Risks resulting from the use of the existing stocks

Again concluding that because the product registrations were vacated and the labels therefore voided, end users were not legally bound to follow label restrictions if using the dicamba products.  The agency concluded that such non-label uses would have greater potential for adverse effects than if the agency issued an order allowing and regulating the use of the existing stocks.  Such an order is imperative, said the agency, to ensure that any use of the products would be consistent with previously approved labeling and could be enforced in order to prevent unreasonable adverse effects on the environment.  Surprisingly, the EPA gave little attention to the volatility concerns raised by the Ninth Circuit in its decision last week, and evidence the court pointed to in that case that suggested that even applications by those who carefully followed the label restrictions were subject to drift and damage.

3. The benefits resulting from the use of existing stocks

Capitalizing on the unfortunate timing of the Ninth Circuit’s vacation of the pesticide in regards to immediate needs for the current growing season, the agency concluded that “the benefits resulting from the use of the products are considerable and well established, particularly for this growing season.”  The EPA reiterated many of the numerous communications it had received stating how essential the over-the-top products are, especially with the growing season underway. It also concluded that allowing non-over-the-top uses would result in substantially greater benefits to users and society than would disposal of the products.

4. The financial expenditures users and others have already spent on existing stocks

Echoing the concerns of many farmers and again pointing to the current growing season, the agency concluded that “the costs to farmers are not limited to their existing stocks of these dicamba products, but include other sunk costs made in expectation of the availability of these products (seed purchase, tilling, planting, etc.) as well as the lost opportunity to switch to a different crop or to another herbicide or weed management method.”

5. The risks and costs of disposal or alternative disposition of the stocks

The EPA concluded that disposal of the existing stocks of dicamba products would incur substantial costs for all and for stock already in the hands of end users, “may be neither feasible nor advisable.”  Additionally, the agency pointed to disposal or return of opened containers which would have high risks of spillage and increased expenses for proper disposal.

6. The practicality of implementing restrictions on distribution, sale, or use of the existing stocks

Another option available to the agency under FIFRA would be to issue individual stop sale, use and removal orders to all end users holding dicamba products, but the EPA concluded that such an action would be unwarranted under the present facts because tracking the existing stocks would be burdensome, inaccurate and impractical and that “hard-pressed farmers who have made large investments in their existing stocks may be uncooperative with a cancellation order that requires disposal.” 

Final Order

After weighing the six factors above, the EPA concluded that the six factors weigh heavily in support of allowing end users to use existing stocks of the dicamba products in their possession.   However, the agency imposed a July 31 , 2020 cut-off date for use of existing stocks in order to “further reduce the potential for adverse effects.”  Here are the final orders the agency made for distributed, sale and use of the products:

1. Distribution or sale by the registrant.  Distribution or sale by the registrant of all existing stocks of the products listed below is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
2. Distribution or sale by persons other than the registrant.  Distribution or sale of existing stocks of the products listed below that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed below.
3. Distribution or sale by commercial applicators.  For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of products listed below that are in the possession of commercial applicators is permitted.
4. Use.  Use of existing stocks of products inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited.  All use is prohibited after July 31, 2020.

Now what? 

While the manufacturers of XtendiMax, Engenia, and FeXapan are prohibited from selling and distributing their products effective as of June 3, 2020, the EPA’s cancellation order allows others to return, dispose of, or use the products according to the previous label restrictions and no later than July 31, 2020.  But a few other factors come into play:

• Some states have already taken actions to restrict the use of the dicamba products within their states, which is within a state’s authority.  Ohio has not done so, and instead has stated that it has been awaiting US EPA guidance on the legal status of the products and will communicate options for farmers afterwards.  This means that users in Ohio should keep a close eye on the Ohio Department of Agriculture to see if it will go along with the US EPA’s guidance or direct otherwise.
• A cancellation order issued by the EPA is a final agency action that is subject to appeal, so we might see an immediate of the cancellation order and a request to stay the order pending appeal.  Such an appeal could challenge whether the EPA has the authority to regulate existing stocks of the products and whether the agency’s analysis sufficiently addressed the risks of adverse impacts from continued use.

As seems often to be the case with dicamba, there’s a mixed sense of drama and dread with what lies ahead.  We’ll be sure to keep you posted on the next legal news for dicamba.

Read the US EPA’s cancellation order for XtendiMax, Engenia, and FeXapan here.

“Will I be liable for that?” is a common question we hear in the legal world.  COVID-19 has made that question even more commonplace, especially as more businesses reopen or expand services and more people reengage in public activities.  About a dozen states have acted on the liability concern and passed COVID-19 liability protections, and Congress is also deliberating whether federal legislation is necessary.  Here in Ohio, the House and the Senate have been reviewing separate immunity proposals.  Yesterday, Ohio’s House passed its bill, which aims to limit liability in certain situations where a person claims harm from the transmission of COVID-19.

The language of House Bill 606 effectively explains the House’s intent in putting forth its proposal, stating that:

• The Ohio General Assembly is aware that lawsuits related to the COVID-19 health emergency numbering in the thousands are being filed across the country.
• Ohio business owners, small and large, as they begin to re-open their businesses are unsure about what tort liability they may face, and recommendations regarding how best to avoid infection with COVID-19 change frequently.
• Businesses and premises owners have not historically been required to keep members of the public from being exposed to airborne viruses, bacteria, and germs.
• Those individuals who decide to go out into public places are responsible to take those steps they feel are necessary to avoid exposure to COVID-19, such as social distancing and wearing masks.

The House bill declares that for the above reasons, any COVID-19 “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.”

The bill’s reference to not establishing a legal duty in regards to COVID-19 is important, as it forms the basis of immunity from liability for COVID-19 infections.  Under Ohio law, a person who can prove that harm resulted because another failed to meet a required duty of care can make a successful claim of negligence and receive damages for harm caused.  Negating a legal duty of care for handling of COVID-19 removes the possibility of civil liability. 

The House bill clearly lays out its general liability protection in Section 4 and extends the immunity from March 9 to December 31, 2020 to “any person,” which includes an individual, corporation, business trust, estate, trust, partnership, association, school, for-profit, nonprofit, governmental, or religious entity, and state institution of higher education.  But it also makes an exception from immunity where a person has acted recklessly, intentionally, or with wanton misconduct:

1. No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of [COVID-19] or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless or intentional conduct or with willful or wanton misconduct on the part of the person against whom the action is brought.

Opponents to the bill claim that it would encourage persons not to take any COVID-19 precautions, but proponents argue that the bill does so by discouraging reckless behavior.  Under the legislation, to behave recklessly means that “with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of [COVID-19] or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations.”

In addition to the general immunity protection explained above, the House bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.

The Ohio Senate is working on its own version of a COVID-19 immunity bill. A fourth hearing on Senate Bill 308 took place on May 27 before the Senate Judiciary Committee.  Several substitute bills have replaced the original bill, and it's yet uncertain what the final version will contain.

Read about House Bill 606 here and Senate Bill  308 here.