Part 108 Digest for Agricultural Operators
Introduction
A few weeks ago, the Federal Aviation Administration (FAA) released its highly anticipated Notice of Proposed Rulemaking (NPRM) for Part 108, a new regulation designed to govern drone operations conducted Beyond Visual Line of Sight (BVLOS). This proposal marks a positive shift from the current, cumbersome exemption-based system and creates a tailored, risk-based framework that holds significant promise for the agricultural sector and the broader commercial drone space. Proposed Part 108 is a welcome move towards creating realistically scoped rules that allow small operators to achieve compliance while running their businesses.
The proposed Permitted and Certificated Operations (P&CO) framework is a positive development, creating a dynamic accountability model for operators of all sizes, across a range of applications. By creating an agriculture-specific framework, the FAA acknowledges that regulating American agricultural airspace must reflect its unique risks and use cases, which differ significantly from other forms of BVLOS flights. Critically, the FAA proposes restricting the application of pesticides, fertilizers, and seeds to Certificated Operations, something ADI feels is unreasonably restrictive, and an incursion into the EPA’s clear Congressional authority on that matter.
However, as we move from a proposed rule to a final one, it is crucial that the FAA builds on this foundation. The final Part 108 rule must do more to accommodate the diverse nature of BVLOS operations, especially for sectors like agriculture, as well as private security and construction, to ensure the new regulations are practical, encourage compliance, and enhance safety.
The Importance of Differentiated BVLOS
In the Proposed Part 108, the FAA focuses on differentiating between the risk profiles of various operational categories. For a delivery or logistics drone, BVLOS means disappearing over the horizon, transiting miles of third-party properties at altitude. For a farmer, BVLOS often means the drone is relatively close, but temporarily obscured by a barn, a stand of trees, or the rolling terrain of their own field. ADI is supportive of an ‘Ad Coelum Shielding’ model (named after the Ad Coelum doctrine of common law and discussed in a separate article) to differentiate those instances where low-altitude flights occur exclusively on the customer’s land, within 50 feet AGL, and as such, should be treated as a significantly different risk framework.
The FAA needs to adopt a BVLOS framework that defines Agricultural Operations as those for dispensing pesticides, fertilizers, and other agricultural inputs, while as discussed below, other agriculture-related operations, such as crop and livestock monitoring, are categorized as Aerial Surveying Operations, to better differentiate their operational realities.
The FAA’s own language in the proposal highlights the need for a flexible, performance-based regulatory approach, and this is the perfect opportunity to apply that principle. A recent Office of Inspector General (OIG) report criticized the FAA’s BEYOND program for failing to effectively study and address the different operational categories, heavily focusing on logistics-based BVLOS operations to the detriment of other categories such as. The Part 108 Rulemaking is the FAA's chance to respond to this guidance by thoughtfully and meaningfully differentiating between all BVLOS operational categories.
While the overall framework of Proposed Part 108 is promising, several specific areas require close attention and advocacy from the agricultural community.
Permitted and Certificated Operations: A Modern, Two-Tiered Framework
Proposed Part 108 introduces a novel, two-tiered structure for authorizing BVLOS operations: Operating Permits and Operating Certificates. The goal is to provide a streamlined path for smaller and lower-risk operations, while applying more rigorous oversight for larger companies executing more complex operations. The FAA further breaks down Permits and Certificates into subcategories with various rules, tailoring regulations to each operational subcategory, including one for agriculture.
The FAAs Permitted and Certificated Operations framework creates a practical compliance path for the agricultural drone operators, who currently face the choice of applying for complex BVLOS waivers, or technically violating FAA regulations every time they pass behind a tree or a round-bale. If implemented correctly (especially if mirrored in a future Part 137 rulemaking) this framework will enhance safety and unlock the full potential of drone technology for American agriculture.The path an agricultural operation takes in securing an operating permit or certificate will depend on the scale and risk of their operation.
A key philosophical shift is the transition from requiring traditional airman certificates for pilots to a focus on corporate responsibility. Each operational company will have a designated Operations Supervisor with overall control and qualified Flight Coordinators providing tactical oversight of individual drones. This flexible structure acknowledges the highly automated nature of modern drones and allows operators to assign personnel more efficiently.
Permitted Operations accommodate eight different operational categories: training, flight testing, demonstration, recreational operations, package delivery, agricultural use, aerial surveying, and civic interest.
Certificated Operations would be restricted to four categories (though more may be added): package delivery, agriculture,aerial surveying, civic interest, and other operations as approved by FAA.
Critically, as discussed later, the FAA proposes restricting the application of pesticides, fertilizers, and seeds to Certificated Operations, something ADI feels is unreasonably restrictive, and is an improper incursion into the EPA’s clear Congressional authority on that matter. Additionally, the proposed regulations acknowledge the desire for one flight coordinator to be above to manage multiple UA BVLOS, but the proposed regulations restrict their operation to a 1:1 ratio of coordinators to UA for now.
This Permitted and Certificated Operational Framework represents an additional significant win for the agricultural drone industry. While Part 108 does not alter the need to secure a Part 137 certificate, the FAA acknowledges that the current 137 framework is an imperfect fit, and this Permitted and Certificated framework seems to be the likely avenue the FAA would use for that future rulemaking to create a separate Part 137 equivalent for Agricultural Drones.
For Agricultural Operations, an individual farmer with one or two drones can get started as a Permitted Operator, and as their business expands, increasing their compliance and risk management controls as they reach the 10 aircraft limit, requiring a transition to a Certificated Permit. By creating this gradient, the FAA will allow small operators to become easily compliant, while maintaining effective oversight of larger-scale operations.
Agricultural Operating Permits:
Permitted Operations are meant to provide, in the FAA’s own words, “an expedited path for authorization [and] simple, rapid access to commencing operations for smaller scale and lower-risk operations.” For a small farmer or an independent operator, this should provide a straightforward process to become compliant, without prohibitive compliance costs and bureaucratic hurdles. To balance this reduced administrative burden, Permitted Operators would be required to renew their permits every two years.
While the FAA has laid out the proposed submission materials for Permitted Operations, they have provided no insight into how those submissions will be processed. It is critical, especially in agriculture, that the FAA create a framework that is workable and easily engaged with - preferably through the FAA’s online DroneZone portal.
While ADI supports the majority of the proposed application requirements for Permitted Agricultural Operations, we argue that the FAA should remove the proposed requirement to submit customized own manuals, as well as record-keeping and reporting procedures. The Permitted Operations framework is intended for those who do not have the employees or compliance infrastructure to be able to draft that sort of documentation, but equally, have sufficient simple operations that tailored manuals, records, and reporting is not needed. ADI supports the use of manufacturer and FAA-supplied guidance and directives for those requirements, which Permitted Operators would be required to download and review.
As with Part 137, creating these types of application requirements for small operations do not result in highly tailored submission materials, and instead result in a kabuki theatre in which the same attorneys submit the same boiler plate to the same evaluators time after time after time, and everyone pretends there is a meaningful conversation going on between regulators and the regulated, when it just wastes farmers’ money and the FAA’s time. Having the FAA and manufacturers publish set standards would provide a great deal of efficiency for Permitted Operations.
Key limitations for Permitted Agricultural Operations include:
Fleet Size: Limited to fewer than 10 active aircraft.
Aircraft Weight: Can operate drones up to 1,320 pounds (including payload - same as under Permitted Operations).
Operating Area: Restricted to Category 1 population density areas - defined as anywhere over one mile from a LandScan cell with 10 or more people (for more information, click here) - essentially, very sparsely populated rural locations with few to no people nearby.
License Duration: Permits must be renewed every 24 months. (ADI is engaging with the FAA on ways to ensure that timely submissions which the FAA does not respond to in time do not result in a no-fault loss of permitting).
Agricultural Operating Certificates
If an operation exceeds the limitations of an Operating Permit —for instance, by using more than 10 drones, or needing to operate in more populated areas, it would require an Operating Certificate.
Certificated Operations are designed for more complex corporate structures and trade a more in-depth compliance program for greater freedom of operation. They would require a more comprehensive registration process, including advanced risk assessments and training programs, but would not place limits on the number of aircraft which an operating company could have in their fleet at any given time. Additionally, Operating Certificates would be valid until surrendered or revoked, but the expectation is that the tempo of compliance checks would be relatively high, compared to Permitted Operations.
Certificated Operations are not as thoroughly discussed because the flexibility of the permit leads to fewer hard rules. Certificated operations allow greater flexibility and a wider operational envelope. In return, it demands more stringent reporting, record-keeping, and corporate accountability. This rightly places the burden of compliance on the corporate structure, not just the individual pilot. While Certificated Operations result in more significant FAA oversight, including requirements for a Safety Management System (SMS) and an FAA-accepted training program, in exchange, certificated operators gain:
Fleet Size: No limit on the number of active aircraft.
Aircraft Weight: Can operate drones up to 1,320 pounds (including payload - same as under Permitted Operations).
Operating Areas: Permitted to operate in up to Category 3 population density areas - defined as anywhere over one mile from a LandScan cell with 25 or more people (for more information, click here) - still a fairly restrictive standard.
License Duration: Certificates do not expire and do not need to be renewed, but are subject to continuous FAA inspection and an increased record-keeping and compliance obligation.
This two-path system is a welcome change, as it rightly separates the needs of a family farm from those of a large-scale commercial spraying enterprise.
TSA and FAA Need to Focus on Non-Agricultural Hazmat Transportation
Agricultural Operations represent the most critically differentiated operational category when compared to the ubiquitous BVLOS use-case of package delivery, because agricultural drones take off, operate, and land, all on the same property, and rarely fly more than 50 feet AGL. By the FAA’s own admission, “the objective is to use categorization to mitigate the associated risks with tailored authorizations and limitations,” and the regulation of Agricultural Operations should be so tailored.
The TSA’s concerns about Hazmat are legitimate for traditional BVLOS operations, which transit third-party properties at high altitudes. However, application of agricultural inputs by air or ground, is already highly regulated at the state and federal level by Congressionally appointed experts at the EPA, who have been developing the regulatory framework for decades. Proposed Part 108 correctly notes the risks of hazardous material transport for package delivery, however, Part 137 already requires operators to follow all federal, state, and local laws, as well as label instructions when applying agricultural inputs.
The FAA's proposal in Part 108 to restrict the handling of hazardous materials beyond state and federal requirements already in place represents a detrimental overreach of its statutory authority. Congress, through FIFRA, explicitly empowered the EPA—not the FAA—to regulate the application of pesticides and fertilizers, a responsibility largely delegated to expert state agencies. While the FAA has a clear mandate to ensure the safety of flight and the national airspace, its role does not extend to dictating who can dispense specific agricultural materials when their use is already governed by a comprehensive EPA and state framework.
This proposed rule is an ultra vires incursion into the EPA's jurisdiction, offering no cognizable reason why the same comprehensive training on chemical handling is sufficient for all other interactions with agriculture-related hazmat, but not when it comes to drones.
Classifying Agricultural Operations & Aerial Surveying Operations
The FAA is proposing an “Aerial Survey Operations” category as well as an “Agricultural Operations” category for Part 108. ADI believes all crop and livestock monitoring, or any other agriculture-related operations that do not dispense physical inputs, should be pushed to the Aerial Survey Operations category. ADI is a staunch supporter of these drones, as critical for the future of American agricultural drones, and want to be clear that pushing for the categorical difference is, in no way, a diminution of their utility.
The reason for this bifurcation is that those operations occur at altitudes shared by other drones and use-cases, critically, where BVLOS occurs because of distance instead of proximate obstacles. ADI is advocating for a clearly delineated agricultural operations category, focused on UA which are dispensing fertilizers, pesticides, seeds, and other agricultural inputs directly, where BVLOS occurs because of trees, barns, or dipping over a hill.
Data Reporting: Shifting the Burden
The agricultural drone industry is unique. Unlike other sectors, it is disproportionately composed of single individuals and small family businesses, purchasing industrial-scale equipment. These farmers are intelligent and safety-conscious, but they do not have compliance departments, or the time, to wade through hundreds of pages of dense regulations. As discussed in the Permitted Operations section, the FAA must ensure that data reporting is robust, but also not overly burdensome to small operators.
While Proposed Part 108 describes the exemption process as a ‘useful tool’ the FAA acknowledges that it is a ‘labyrinth of regulations’ - what the FAA misses in this is that, if less than 20% of the industry is compliant (as is the case for Part 137 operations), the tool is not working. Part 108 proposes monthly flight data reporting requirements for operators. While data collection is necessary for safety analysis and progress in our industry, requiring agricultural operators to maintain those logs places a significant administrative burden on busy farmers, who have little free time for extra bookkeeping. Further, manual entry by operators, which is then submitted to the FAA for manual re-entry, exacerbates the chances of errors, which the OIG’s recent report on BVLOS found is a rampant issue for the FAA already.
ADI is advocating for Permitted Operations to leverage data collected on-device by manufacturers and Automated Data Service Providers (ADSPs) to automate that data collection. Part 108 is already pushing a great deal of responsibility to manufacturers and, for agricultural drones, this type of reporting and logging comes with most of this data collection by default.
Without Part 137 Reforms, Non-compliance Will Remain a Looming Issue
As discussed in a separate article, the FAA currently authorizes heavy-lift agricultural spray drones via exemptions to Part 137, a regulation which FAA admits is a poor fit for agricultural drones as it is written for manned aircraft, and is a “labyrinth of regulations.” FAA states that over 1,700 such exemptions have been issued, however, the best industry estimates place the number of heavy-lift agricultural drone operators at 10,000 or more, representing an optimistic compliance rate of 20%. This is a significant problem for both 137 and Proposed Part 108, because there is no reason for an operator who knows they are fundamentally non-compliant (no operating license or registration) to pursue or respect subordinate regulations such as Proposed Part 108.
Regulations that deter participation in the NAS framework are far more dangerous than a framework with workable regulations with low barriers for compliance for Permitted Operations. Many operators feel that since they are already non-compliant with basic FAA regulations, there is little incentive to follow the rules for BVLOS.
As a result, it is critical for Proposed Part 108 to be the first, not the last, significant reform to the FAA’s approach to UAV regulation, particularly for agriculture.
Conclusion
In summary, the proposed Part 108 offers a much-needed and promising path forward for regulating agricultural BVLOS drone operations in the United States. Its risk-based, two-tiered framework is a significant improvement that shows the FAA is moving in the right direction. To realize the full potential of this rule, however, the FAA must take further steps to adequately tailor the rule to agricultural operations. This means removing the unwarranted restrictions on dispensing agricultural inputs—a matter rightly left to the EPA—and adopting a more nuanced definition of BVLOS that recognizes the vast difference in risk between on-farm operations and long-distance logistics. Furthermore, by automating data reporting to ease the burden on small operators and committing to a broader reform of the ill-fitting Part 137 regulations, the FAA can create a framework that not only enhances safety but also encourages widespread compliance. We are encouraged by this proposal and look forward to working with the agency to refine these key areas, ensuring the final rule successfully unleashes the full potential of drone technology for American agriculture.