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Update:  For a full explanation of the rule, refer to our new Law Bulletin, The New FAA Rule for Using Drones on the Farm  

Part 1:  Drone Pilots Must Obtain FAA Certification

The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS).  The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace.  Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016.  An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.

The Remote Pilot Certification Requirement

The Remote Pilot in Command (Remote PIC) is the person who is directly responsible for the operation of the sUAS.  The new rule requires the Remote PIC to obtain a remote pilot certificate with a small UAS rating.  To do so, an applicant must meet eligibility requirements, pass a knowledge test and complete the application process. 

1.      Eligibility requirements.   An applicant for a Remote PIC must be at least 16 years old, proficient in the English language, and in a physical and mental condition that would not interfere with safe operation of a sUAS.

2.      Knowledge test.    An applicant must pass the unmanned aircraft general (UAG) knowledge test before applying for the remote pilot certificate.  The knowledge test, which will be available beginning August 29, 2016, will contain 60 multiple choice questions on:

• Federal regulations for sUAS.
• Airspace classification and operating requirements.
• Weather sources and effects of weather on sUAS.
• Loading and performance of sUAS.
• Emergency procedures.
• Crew resource management.
• Radio communication procedures.
• Determining performance of sUAS.
• Effects of drugs and alcohol.
• Aeronautical decision-making.
• Airport operations and maintenance.
• Preflight inspection procedures.

The FAA provides a free online learning course for knowledge test preparation, available through www.faasafety.gov or here.   The FAA also presents a sample exam on its website, available here.   Applicants must take the knowledge test at an FAA-approved Knowledge Testing Center.  A list of Ohio’s 23 test centers is available at www.faa.gov/training_testing/testing/media/test_centers.pdf .   Passing the test requires a score over 70%; an applicant who fails the test may retake the test after 14 days.

Applicants already holding a pilot certificate, other than a student pilot, must follow a different process that includes completing a two-hour online course.  The course, which includes an exam, is available through www.faasafety.gov or here. 

3.      Application.  An applicant who passes the UAG knowledge test must complete the application for a remote pilot certificate, FAA Form 8710-13.   The form will be available as a paper application or online through the FAA’s Integrated Airmen Certificate Rating Application System at https://iacra.faa.gov.   The Transportation Security Administration (TSA) will then conduct a background security screening of the applicant to determine if the applicant represents a security threat.  If the screening is successful, an applicant will receive the remote pilot certificate.  An unsuccessful security screening will disqualify the applicant, who would have a right to appeal the security screening decision.  Note that an applicant who uses the online application can obtain a temporary certificate online upon successful completion of the security screening, while an applicant who submits a paper application must wait to receive the permanent remote pilot certificate through U.S. mail.  The FAA has announced that it hopes to issue a temporary remote pilot certificate within 10 business days after submission of an online application.

What Happens After Certification?

A certified Remote PIC may legally fly a sUAS and may also directly supervise persons who do not hold a remote pilot certificate, as long as the Remote PIC maintains the ability to take control of the sUAS.  This provision will allow Remote PICs to teach, demonstrate and train uncertified operators.  The Remote PIC has several responsibilities:

• Register the sUAS with the FAA.
• Conduct pre-flight inspections.
• Abide by operational limitations in the new sUAS rule.
• Maintain records on the sUAS and its flights.
• Upon request, make the sUAS and records available to the FAA for inspection or testing.
• Report any operation that results in injury, loss of consciousness or property damage of at least $500 to the FAA within 10 days of occurrence.

Recurrent knowledge test.  A person who receives the remote pilot certificate must take a recurrent knowledge test within 24 months to retain the certification. 

Part 2 of this Series

In our next post in this series on implications of the new rule for sUAS in agriculture, we’ll explain the operational limitations and requirements for sUAS.  To read the new rule or access up-to-date information on sUAS, go to www.faa.gov/uas.  

An agritourism bill first introduced over a year ago has finally received approval from the Ohio General Assembly. The Senate passed SB 75 last November, but the bill did not pass the House of Representatives until May 4, 2016. The House had passed a similar bill last May, but the Senate failed to act on that bill. If signed by Governor Kasich, SB 75 will be in effect in time for the fall agritourism season. (Update: Governor Kasich signed the bill, which becomes effective 8/16/16).

The legislation addresses civil liability risk, property taxation and local zoning authority for “farms” that provide “agritourism” activities. It’s important to understand several definitions in the law:

• A "farm" is land that is devoted to commercial agricultural production, either at least 10 acres in size or grossing an average income of $2500 from such production.
• "Agricultural production" means commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth.
• "Agritourism" is an agriculturally related educational, entertainment, historical, cultural, or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.
• An "agritourism provider" is anyone who owns, operates, provides, or sponsors an agritourism activity, whether or not for a fee, including employees at agritourism activities. 

For agritourism providers on farms, the legislation offers the following protections:

Civil liability immunity.   The new law protects an agritourism provider from liability for injuries to agritourism participants in certain situations. The law states that a provider does not have a legal duty to remove risks that are “inherent” in agritourism activities and will not be liable for any harm a participant suffers because of such risks. “Inherent risks” are dangers or conditions that are an integral part of an agritourism activity, including surface and subsurface conditions of land; ordinary dangers of structures or equipment ordinarily used in farming; behavior or actions of domestic or wild animals , except for vicious or dangerous dogs; the possibility of contracting illness from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste; and a participant’s failure to follow instructions or exercise reasonable caution while engaging in the agritourism activity.

Warning sign requirement. An agritourism provider must post and maintain warning signs on the farm to receive the law’s civil liability protection, and a provider who fails to post or maintain these signs can be liable for a participant’s harm. At or near each entrance to the agritourism location or at each agritourism activity, a provider must post and maintain a sign that states: "WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity. Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity." This warning must be printed in black letters that are at least one inch in height.

Exceptions to immunity.  An agritourism provider will not be immune for harm caused by the provider’s willful or wanton disregard for a participant’s safety; if the provider purposefully caused harm to the participant; if the provider's actions or inactions constituted criminal conduct and caused harm to the participant; or if the provider had or should have had actual knowledge of an existing dangerous condition that is not an inherent risk and the provider did not make the dangerous condition known to the participant.

Property taxation. The new legislation ensures that agritourism parcels are eligible for Ohio’s Current Agricultural Use Valuation (CAUV) program, which provides reduced property taxation on qualifying agricultural lands. According to the new law, the existence of agritourism on a tract, lot, or parcel of land does not disqualify land that otherwise qualifies for the CAUV program.

Local zoning authority. The new legislation expands Ohio’s “agricultural exemption” from local zoning to include agritourism activities. The “agricultural exemption” limits the ability of townships and counties to use zoning to prohibit or regulate certain agricultural land uses in any zoning district. Under the new law, agritourism becomes part of the agricultural exemption and is an agricultural land use that zoning officials cannot prohibit by way of zoning.

The legislation does allow townships and counties to regulate some factors related to agritourism land uses if the regulations are necessary to protect public health and safety, however. These factors include the size of structures used primarily for agritourism and setback lines for such structures, egress or ingress into a parcel, and the size of parking areas. This limited authority does not include the power to require improvements such as drainage or paving for agritourism parking areas.

The legislation also clarifies that county and township zoning may not prohibit the use or construction of structures for vinting and selling wine if located on land where grapes are grown.

Implications of the new legislation

1. Not everyone who engages in agritourism will benefit from the new law.  The law is designed to address agritourism activities that diversify an existing farm—where the activities occur on land that is otherwise engaged in agricultural production. For example, a person who purchases 10 acres of vacant land with the intent of creating a corn maze and petting farm will not benefit from the law because there is no agricultural production already taking place on the land. If the land is first involved in agricultural production, added agritourism activities will fall under the new law.
2. Visitors to agritourism operations must take more responsibility for their own safety.  The law recognizes that there are inherent dangers on farms that can be beyond the control of agritourism providers. Visitors who wish to participate in an agritourism experience must be aware of these dangers and be prepared to protect themselves by following directions, paying attention to surface conditions, being cautious around animals and equipment, supervising their children and generally exercising reasonable care while on the farm.
3. Agritourism providers must be prepared to meet the law’s signage requirements.  When the law becomes effective, agritourism operators should have proper warning signs posted. Providers who fail to post the right sign in the right place will lose the law’s immunity protections.
4. Local officials must treat free and fee-based agritourism activities equally.  Unlike some agricultural laws, there is no distinction in the new law between commercial agritourism businesses and free agritourism activities like educational farm tours; the law applies in the same way regardless of whether the activity is fee-based or free, as long as it’s conducted on a “farm.”
5. Counties and townships must identify public health and safety issues and develop appropriate zoning standards. Counties and townships must be prepared to recognize agritourism situations that pose health and safety concerns due to the size and location of a structure, ingress and egress on the property or the size of a parking area. If a public health or safety issue is identified and the county or township wants to regulate the issue, it must have enacted zoning standards that address the issue.

Read SB 75 on the Ohio General Assembly’s website here.

Post Script:  Governor Kasich signed this legislation on May 17, 2016; the new law becomes effective on August 16, 2016.

Legislation proposing changes to Ohio’s current agricultural use valuation (CAUV) program has remained on hold in the General Assembly since last fall. Senator Cliff Hite (R-Findlay) and Representative Brian Hill (R-Zanesville) introduced the companion bills on November 18, 2015. The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and House Bill 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee has acted on its bill.

Taking up Ohio Farm Bureau’s recommendations, the bill sponsors target two aspects of the CAUV program—the formula used to determine CAUV values and the valuation of land used for conservation practices or programs. To create more accurate valuations, the legislation proposes several changes to the CAUV formula:

• States additional factors to include in the rules that prescribe CAUV calculation methods. Currently, the rules must consider the productivity of the soil under normal management practices, the average price patterns of the crops and products produced to determine the income potential to be capitalized and the market value of the land for agricultural use. The proposed legislation adds two new factors: typical cropping and land use patterns and typical production costs.

• Clarifies that when determining the capitalization rate used in the CAUV formula, the tax commissioner cannot use a method that includes the buildup of equity or appreciation.

• Requires the tax commissioner to add a tax additur to the overall capitalization rate, and that the sum of the capitalization rate and tax additur “shall represent as nearly as possible the rate of return a prudent investor would expect from an average or typical farm in this state considering only agricultural factors.”

• Requires the commissioner to annually determine the overall capitalization rate, tax additur, agricultural land capitalization rate and the individual components used in computing those amounts and to publish the amounts with the annual publication of the per-acre agricultural use values for each soil type.

To remove disincentives for landowners who engage in conservation practices yet pay CAUV taxes at the same rate as if the land was in production, the proposed legislation:

• Requires that the land in conservation practices or devoted to a land retirement or conservation program as of the first day of a tax year be valued at the lowest valued of all soil types listed in the tax commissioner’s annual publication of per-acre agricultural use values for each soil type in the state.

• Provides for recalculation of the CAUV rate if the land ceases to be used for conservation within three years of its original certification for the reduced rate, and requires the auditor to levy a charge for the difference on the landowner who ceased the conservation practice or participation in the conservation program.

To access the bills and follow their status in the Ohio legislature, visit HB 398 here  and SB 246 here. 

For an explanation of the CAUV formula, see our Tax Bulletin "Why did my CAUV values increase so much?" available here.

The Ohio Department of Agriculture (ODA) has revised regulations that implement Ohio’s Cottage Food Law, which addresses the production and sale of certain “non-potentially hazardous” foods. An operation producing a “cottage food” may do so without licensing and inspection by ODA, but must follow labeling requirements and is subject to potential food sampling by ODA.

Changes to Ohio’s cottage food regulations include the following:

New cottage food products

Several new food items have joined the list of cottage food products that an operator may produce without licensing or inspection by ODA:

1. Flavored honey produced by a beekeeper, if a minimum of 75% of the honey is from the beekeeper’s own hives;
2. Fruit chutneys;
3. Maple sugar produced by a maple syrup processor, if at least 75% of the sap used to make the maple syrup is collected directly from trees by the processor;
4. Waffle cones dipped in candy;
5. Dry soup mixes containing commercially dried vegetables, beans, grains, and seasonings.

Foods that are not cottage food products

Two revisions clarify foods that do not fall under the cottage food law:

1. Fresh fruit that is dipped, covered, or otherwise incorporated with candy;
2. Popping corn.

Fruit in granola products

If adding fruit to granola, granola bars, or granola bars dipped in candy, which are all cottage food products, the fruit must be commercially dried.

The new regulations became effective January 22, 2016. View the cottage food regulations at http://codes.ohio.gov/oac/901%3A3-20.  Read our other posts on Ohio’s Cottage Food Law at https://farmoffice.osu.edu/blog-categories/food.