If there’s anything constant about technology, it’s that it’s changing rapidly. Some of the most recent accelerated progress in precision ag tools are unmanned aerial vehicles (UAV), or drones.
With a drone, a crop farmer can conduct scouting activities, determine nutrient deficiencies in crops and identify areas of low fertility. Normalized difference vegetation index (NDVI) imagery collected and stitched together with specialized software can help producers make timely decisions about nitrogen, herbicide and pesticide applications at any time of the growing season. The livestock farmer can check pastured cattle for signs of illness, track grazing patterns or locate a cow that has gone down in a remote section of a field.
Unmanned aircraft uncovered
UAVs are just one part of an unmanned aircraft system (UAS), which includes support equipment, control station, navigation equipment, cameras and software – anything necessary to operate the craft. However, although UAS are now widely available and becoming more affordable, operating one legally is another story.
“The development of drone technology has been very promising, especially for ag,” Peggy Hall, assistant professor of Ohio State University’s resource and law program, said. “Along with that development are increased safety concerns with having this aircraft in the national airspace.”
Hall explained that Congress addressed this concern in the FAA Modernization and Reform Act of 2012, which requires FAA to develop safe integration of UAS via a five-year roadmap. The roadmap was announced in November 2013, and six UAS test sites were announced in December 2013. The six test sites include two in the east: Griffiss International Airport in Rome, New York, and Virginia Polytechnic Institute and State University in Blacksburg, Virginia.
“The proposed rule for UAS was issued in February 2015 and the comment period closed April 24th,” Hall said. “We could see a final rule by this time next year. There were close to 5,000 comments, so there’s a lot to wade through, and there’s ongoing research that might lead to changes in the proposed rule.”
How the rule applies
The proposed rule relates to UAVs weighing less than 55 pounds, and involves certification of the operator, requirements for the aircraft itself and operational requirements for using the aircraft. Anyone over 17 who can verify his/her identity and meet certain mental and physical conditions in the application process can become certified to operate a small UAS.
“The big part of this rule is the knowledge test that will be required for operators every two years,” Hall said. “This replaces the typical airman/pilot’s license that (we) see with other aircraft.” The knowledge test includes regulations, airspace classification, flight restrictions, weather, loading and performance, emergency procedures, crew management, radio communications, airport operations, and drugs and alcohol.
So what about operating a UAS now? “If it’s for hobby or recreational use, then yes, you can fly it now,” Hall said. “There’s no certificate or license required for hobby or recreational use.” She added that several safety regulations apply to such use, including flying no higher than 400 feet, operating away from populated areas and notifying nearby airports that you are operating a UAS.
“The operator must maintain a visual line-of-sight with the aircraft at all times” Hall said. “There is an allowance to use an observer to help maintain that line-of-sight, but that observer cannot extend the line-of-sight beyond the original operator’s line-of-sight. Think of that observer as an assistant who can help keep an eye on the UAS.”
Another limitation is that UAS must be operated only during daylight hours, which has raised some concerns among those who believe that better photographs can be obtained during nighttime hours.
Keeping it legal
Back to the farmer who simply wants to monitor his crops – can he do that legally? “The FAA has very clearly said that if crops are part of a farm business, that’s commercial use, and you need authorization from FAA to make that kind of a flight,” Hall said. “Commercial activity requires a certificate of air worthiness from FAA or a Section 333 Exemption.”
According to the FAA website, the Section 333 Exemption process provides operators who wish to pursue safe and legal entry into the National Airspace System (NAS) a competitive advantage in the UAS marketplace, discouraging illegal activities and improving safety.
Rusty Rumley, senior staff attorney at the National Agricultural Law Center in Arkansas, said that federal regulation will focus on the public safety aspect: maintaining safe airspace, safe aircrafts and properly trained operators while states deal with privacy, trespass and nuisance.
According to the National Conference of State Legislatures, 43 states have introduced 130 bills and resolutions addressing UAS issues. “Currently, 22 states have passed some form of legislation dealing with the use of UAS,” Rumley said. “A lot of these laws are modeled after each other with some of the same language. It’s important that you know exactly what your state law entails.”
The real gamechanger
What about privacy? “For the most part, laws surrounding privacy haven’t changed as a result of the proliferation of UAS,” Rumley said. “The… laws regarding privacy are the same as they’ve been for decades. The big game-changer for UAS is that we have taken something that was extremely expensive to use and made it affordable for the masses.”
A somewhat contradictory aspect regarding the issue of legal use of UAS is that current law allows a privately owned light plane to fly over a farm and take photos that could potentially be used against the owner, but a farm owner cannot fly a UAS over his own property to collect information if it relates to the farm business. Rumley said that that issue is one of several gray areas that has yet to be worked out.
Rumley said that an interesting twist regarding state UAS legislation is that some states that are creating statutes for UAS regulation are incorporating ag gag or farm security laws that make it illegal for someone to enter a farm and take photographs. “We typically see these cases in states that have strong animal ag industries,” Rumley said. “There have been instances where where animal rights activists have entered a farming operation, taken pictures and released them on the Internet. Idaho is one of the states that has an ag gag statute, and they have incorporated their ag gag statute with their UAS statute. So not only can you not sneak into a farm to take pictures, they’ve also made it illegal to use a UAS to conduct any kind of surveillance on a farm, dairy or ranch without specific written consent from the owner.”
Don’t jump the gun
Some farmers have suggested that their response to an unauthorized UAV flying over their farm would be to shoot it down, but that isn’t a good solution. “As far as the FAA is concerned, UAVs are an aircraft,” Rumley said. “It’s a felony to shoot one down, and it’s the same as going to the end of a runway and shooting a commercial jet.”
J. Craig Williams, Penn State Extension, said that farmers who are considering using UAS legally for crop monitoring or other purposes should determine the value of the information they might collect. “If you just want a picture of a field and find that it needs more nitrogen, maybe you can make that decision without flying the drone,” he said. “The technology to detect that deficiency is there, but if you don’t have the ability to put more nitrogen on in some spots, are you are going to spread nitrogen on the whole field anyway? Is that information from the drone useful?”
When it comes to intent and distinguishing between personal and commercial use, Williams used the example of burcucumber in a field. “Maybe it wasn’t there when the corn was sprayed at one foot,” he said. “Now the corn is taller, and the farmer would be able to see the weeds with a camera in the air. He knows that he has to spray because burcucumber will take over the field. But does that put the farmer in the category of commercial use because he’s the farm operator?”
Again, that’s one of several gray areas, and Williams advised farmers to continually check the FAA website for updates.
Williams said that no matter which way the FAA rule goes, the farmer who purchases a UAS and uses it to make farm management decisions will still have to determine which aircraft best suits his needs, which camera is appropriate and which software is appropriate for processing the information collected. Another consideration is the operator’s level of computer savvy and ability to select and use the appropriate software required to stitch together the hundreds of images collected during a single flight.
For now, before the final, official FAA rule is released, the rules for operating UAS are simple: Don’t fly above 400 feet, keep the UAV within sight at all times, operate only when no other people or crowds are in the area, and don’t fly within five miles of an airport. An app (https://www.faa.gov/uas/b4ufly/) that’s currently in beta testing will help users determine whether there are any restrictions or requirements in place where they want to fly.
Once the final FAA rule is in place, perhaps not until 2016, the bottom line is that farmers will have to determine for themselves whether it’s worth purchasing a UAS system and applying for the 333 Exemption or licensing to use the UAS in a business, or opt to add the services of a licensed UAS operator to the farm management team along with the agronomist, nutritionist and other professional services.
For the most up-to-date information on the proposed UAS rule and current guidelines, check frequently with FAA’s user-friendly website at https://www.faa.gov/
Cover and Photos by Sally Colby