Agricultural Drones Need New Regulations to Take Off

The technology is here. The uses are many. Unfortunately, for those farmers wishing to take off, the commercial use of unmanned aerial vehicles (UAVs), also known as drones, is illegal, and a clear regulatory framework is yet to be developed.

Federal Regulation

Drones, like other aircraft, are regulated by the Federal Aviation Administration (FAA). The FAA has taken the position that it is illegal to fly nearly all commercial drones. In recent publications, the FAA has contended that “commercial operations are only authorized on a case-by-case basis.” Currently, the only approval the FAA is granting for the use of commercial drones is an “experimental airworthiness certificate” to conduct research and development, training, and flight demonstrations. Commercial drone operations must have certified aircraft and pilots, in addition to their operating approval. The FAA also allows public entities such as federal and state governments and public universities to apply for a Certificate of Authorization (COAs). Under COAs, governments have used drones in limited operations such as search and rescue, military training, border patrol, and firefighting.

The FAA’s ban on commercial drones applies to the myriad agricultural uses of drones such as crop scouting, disease monitoring, precision spraying, and livestock tracking. Yet, many farmers have begun using drones, recognizing their great usefulness. Many have contended that their use falls under the model aircraft exception to FAA regulations. Others have argued that the law is so uncertain that the FAA won’t step in to enforce regulations.

FAA approval is not required to fly “model aircraft,” although there is some debate regarding the meaning of that term. In the 2012 FAA Modernization and Reform Act (the “Reform Act”), Congress defined “model aircraft” as unmanned aircraft flown “within the visual line of site of the person operating the aircraft for hobby or recreational purposes.” In 1991, the FAA set forth voluntary guidelines for those flying model aircraft. These guidelines included flying below 400 feet, 3 miles from the airport, and away from populated areas.

In a 2007 Notice, the FAA specifically stated, “You may not fly a [UAV] for commercial purposes by claiming that you’re operating according to the Model Aircraft guidelines.” Nonetheless, many argue that the FAA does not have jurisdiction over small unmanned aircraft, including those used commercially. They argue in support of the contention that the FAA has not enforced regulations against model aircraft for decades and can’t begin doing so now. 

On June 18, 2014, the FAA issued a notice removing any doubt as to where the agency stands with respect to the classification of drone use in agriculture. In its “Interpretation of the Special Rule for Model Aircraft,” 14 CFR Part 91, the FAA states that “Determining whether crops need to be watered that are grown as part of commercial farming operation” would not be a hobby or recreational use falling under the model aircraft exception to FAA rulemaking. In contrast, “viewing a field to determine whether crops need water when they are grown for personal enjoyment” would, under the FAA notice, qualify as a “hobby or recreation” flight.

Under this guidance, farmers wishing to fly drones to monitor their personal gardens are free to proceed. If they fly that same drone, however, for the productive purpose of scouting their field corn, they have crossed into illegal territory. Such remains the legal landscape of UAVs in agriculture. But that is expected to change.

In the Reform Act, Congress instructed the FAA to issue regulations for the “safe integration” of drones into the airspace by September 30, 2015. The FAA has said that they expect to issue proposed regulations by the end of 2014. These regulations, which will govern unmanned aircraft weighing less than 55 pounds, will most certainly include provisions for commercial operations. It is also expected that they will specifically address and allow certain agricultural uses.

A case pending before the National Transportation Safety Board (NTSB) could impact this rulemaking. In Huerta v. Pirker, the FAA fined a Swiss photographer $10,000 for flying a small unmanned aircraft (which weighed less than five pounds) over the University of Virginia campus to take pictures and video. This was the first such fine the FAA has imposed on a drone operator. The FAA contended that the photographer had violated the FAA’s ban on commercial drone use and that the photographer had flown his drone in a careless or reckless manner. A Denver-based administrative law judge from the NTSB dismissed the action and vacated the fine, holding that the aircraft was a “model aircraft,” subject only to voluntary compliance with FAA guidelines. The FAA has appealed, and the full NTSB should consider the case shortly. 

State Regulation

Although the authority to regulate airspace and airworthiness rests with the federal government, not the states, states may regulate the aeronautical activities of their own institutions and departments. Pursuant to this authority, the Iowa Legislature recently passed a bill prohibiting evidence obtained by law enforcement using a drone from being admissible in a criminal or civil trial unless it was obtained pursuant to a search warrant or in a manner consistent with state and federal law. The bill also directs a study group to develop model guidelines for law enforcement’s use of drones and to report those findings to the Legislature by Dec. 31, 2014. Governor Branstad signed the bill into law on May 23, 2014.

Conclusion

The regulations expected by year end should begin opening the door to the agricultural use of drones. The industry is poised to explode if and when that happens. As the technology unfolds, many other legal concepts will evolve to accommodate drone use, including invasion of privacy, nuisance, and trespass. Despite these obstacles, it seems clear that drones will be ubiquitous agricultural tools in the not-so-distant future. In the meantime, farmers can safely test drive their drones by monitoring their personal gardens. They’ll just have to start doing a lot of canning.