Regulatory Advocacy

Early engagement with federal agencies during the rulemaking process is crucial for stakeholders who want to influence the final shape of regulations. Notice-and-comment rulemaking process, the standard procedure for most federal regulations in the United States begins when an agency publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register. The public is then given a period, usually 30-60 days but sometimes longer, to submit comments on the proposed rule. After this, the agency reviews and considers all substantive comments received before publishing the final rule, along with a discussion of the comments and the agency's responses.

The requirement that the government respond to all substantive comments is a key feature of this process. This obligation serves several important purposes: it ensures that the agency considers diverse viewpoints and expert opinions, creates a record for judicial review should the rule be challenged in court, promotes transparency and accountability in the rulemaking process, and provides an opportunity for the public to influence the final shape of the rule. When responding to comments, the agency must address all significant issues raised. This doesn't mean responding to each comment individually, but rather addressing the substance of all relevant arguments and data presented. The agency's responses must be reasonable and based on the rulemaking record.

This is critical for the agricultural drone industry. If we can unify and create cohesive, well supported arguments that are representative of a significant portion of the industry, the FAA will need to substantively respond in a way they never will after the NPRM process ends. This is especially important after the 2024 Supreme Court decision in Loper Bright v. Raimondo, which you can read more about here, which significantly reduces the freedom agencies have to interpret the directives from Congress.

Once a final rule is published, it becomes much more difficult to change. This is due to several factors. Once published, the rule has the force of law and can only be changed through another formal rulemaking process or by an act of Congress. Courts generally give deference to agency interpretations of statutes they administer (known as Skidmore Deference (was Chevron Deference until Loper Bright, link here), making it harder to challenge finalized rules. Initiating a new rulemaking process to change an existing rule requires significant time and resources from the agency. Furthermore, changes to existing rules often face political scrutiny and potential opposition.

Given these factors, early engagement in the rulemaking process is critical for several reasons. Agencies often seek informal input before publishing an NPRM, so early engagement can help shape the initial proposal in a favorable direction. With early awareness of upcoming rules, stakeholders have more time to conduct research, gather data, and prepare thorough, well-reasoned comments. Early engagement also allows time to form alliances with other stakeholders, potentially increasing the impact of comments. Engaging early and throughout the process provides multiple opportunities to influence the rule's development. Once a rule is finalized, it becomes much harder to change, so early engagement is often the best and sometimes only chance to significantly influence the rule's content. Consistent engagement throughout the process can signal to the agency the importance and complexity of the issues at stake.

The structure of the notice-and-comment process, combined with the finality of published rules, makes early and sustained engagement crucial for stakeholders who wish to influence regulatory outcomes. The requirement for agencies to respond to all substantive comments provides a significant opportunity for public input, but this opportunity is most effectively leveraged through early and thorough participation in the rulemaking process.

The Federal Aviation Administration (FAA)

ADI firmly believes that the FAA should strongly consider drafting a separate 'part' for agricultural aviation drones, distinct from the current Part 107 regulations.

This argument is based on the unique operational characteristics, economic impact, and safety considerations of agricultural drones, as well as the recommendations from the BVLOS ARC report.

Specialized Operational Weights and Environment - Agricultural drones operate in a distinct environment that sets them apart from other commercial drone applications, including delivery drones. As highlighted in the BVLOS ARC's recommendations AG 2.2 and 2.3, the FAA should create rules that allow for operation through compliance with regulations alone, without the need for waivers, based on the weight of the drone and its operational environment.

Weight: Agricultural spray drones are significantly heavier than most other drone categories, with the exception of heavy-lift logistics drones. However, their operational environment is fundamentally different, as described below. Further, their flight times are so constrained that recreational flights are unlikely.
Low altitude operations: Agricultural drones typically operate below 100 feet AGL for heavy agricultural drones, and slightly higher for multispectral imaging drones.
Fixed operational areas: These drones work over prescribed environments such as crops and orchards, unlike the variable urban and suburban environments envisioned for delivery drones. This is especially important because, if trailered onsite (likely - given their short flight duration) there is little reason for them to frequently, if ever transit over humans outside their immediate operators. Further, in the event of a crash, they would most likely land in a field, doing some quantity of crop damage, but not injuring 3rd parties or their property - a definite risk with logistical drones.
Predictable flight patterns: Agricultural drone operations can be described relatively uniformly across the country, with consistent operational parameters and tasks.

Economic Impact and Resource Conservation - Agriculture is a cornerstone of the U.S. economy, and agricultural drones offer significant potential for efficiency gains, safety improvements, and cost reductions. A tailored regulatory framework would not only facilitate the adoption of this technology but also conserve FAA resources by streamlining the approval process for a sector with relatively uniform operational characteristics. Unlike delivery drones, which are still in an experimental phase and backed by high-dollar logistics companies, agricultural drones represent a mature technology being adopted by individual farmers and small agricultural businesses. These stakeholders are making significant financial investments in drone technology, often representing a substantial line item in their budgets. A specialized regulatory framework would provide greater certainty for these investments and support the growth of this critical sector.

Safety and Environmental Considerations - Agricultural drones present unique safety and environmental considerations that are not adequately addressed by the current Part 107 regulations. A separate 'part' for agricultural drones could more effectively address these concerns, promoting safe and responsible operations while also recognizing the unique risk profile of agricultural drone use.

Pesticide and fertilizer application: Specific regulations are needed to address the safe and effective application of agricultural chemicals, including measures to prevent and mitigate drift.
Wildlife protection: Operating in rural environments requires specialized measures to minimize the risk of collisions with wildlife.
Data privacy and security: Given the sensitive nature of agricultural data collected by drones, specific guidelines for data collection, storage, and sharing are necessary to protect proprietary farming information.

Contrast with Delivery Drones - While delivery drones may be of comparable size to some agricultural drones, they face significantly different challenges:

Experimental nature: Delivery drone technology is still largely in the experimental phase, grappling with issues such as limited battery life and complex urban navigation.
Variable environments: Unlike agricultural drones, which operate in relatively consistent environments, delivery drones must navigate diverse urban and suburban landscapes.
Backing and investment: Delivery drone development is often backed by high-dollar logistics companies, in contrast to the individual farmers and small businesses investing in agricultural drones.
These differences underscore the need for a separate regulatory approach for agricultural drones, which represent a more mature technology with immediate practical applications and economic impact.

Regulatory Efficiency - Creating a separate 'part' for agricultural drones could actually streamline the regulatory process for both the FAA and drone operators. By establishing clear, sector-specific regulations, the FAA could reduce the need for individual waivers and case-by-case assessments, leading to more efficient use of regulatory resources and faster adoption of beneficial drone technology in agriculture.

Europe’s SORA Framework - One source of valuable information on how to improve the drone-regulation space is considering what from the European SORA Framework is useful for us to adopt in the U.S. ADI does not believe that it is better (or worse) than the FAA’s approach, but it is important that we consider other approaches to regulation to find the best approaches. The Specific Operations Risk Assessment (SORA) framework is a methodology developed by the European Union Aviation Safety Agency (EASA) for assessing and mitigating risks associated with drone operations. It plays a crucial role in Europe's approach to regulating unmanned aircraft systems (UAS) operations, particularly those that fall outside the standard scenarios covered by the "open" category of operations.

Conclusion - The creation of a separate 'part' for agricultural aviation drones is not only justified but necessary to support the growth and innovation of this important sector. By recognizing the unique operational characteristics, economic impact, and safety considerations of agricultural drones, the FAA can create a more targeted and effective regulatory framework. This approach would ensure public safety and environmental protection while also facilitating the adoption of drone technology in agriculture, ultimately supporting American farmers and the broader agricultural economy. Furthermore, it would align with expert recommendations from the BVLOS ARC and create a model for how drone regulations can be effectively tailored to specific industries as the technology continues to evolve.

The Small Business Administration (SBA)

The Small Business Administration plays a crucial role in advocating for various industries, including emerging sectors like agricultural drone companies. These companies, which are taking significant financial risks to innovate and support American farmers, can benefit greatly from the SBA's advocacy efforts and resources. Let's explore how the SBA can help advocate for such industries.

The SBA's Office of Advocacy is specifically designed to represent small businesses before Congress, the White House, federal agencies, federal courts, and state policymakers. For agricultural drone companies, this office can be instrumental in several ways.

First, the Office of Advocacy conducts economic research on small business issues, including emerging technologies and their impact on various sectors. For agricultural drone companies, this could involve studies on the economic benefits of drone technology in farming, the challenges faced by these companies, and the potential for job creation in rural areas. These studies can provide valuable data to support policy recommendations and regulatory reforms.

The SBA can also organize roundtables and forums that bring together agricultural drone companies, farmers, policymakers, and regulators. These events create opportunities for small businesses to voice their concerns directly to decision-makers and help educate policymakers about the unique challenges and opportunities in the agricultural drone industry.

In terms of regulatory advocacy, the SBA plays a crucial role in reviewing proposed federal regulations and their impact on small businesses. For agricultural drone companies, this could involve scrutinizing FAA regulations on drone usage, EPA rules on pesticide application, or USDA policies on precision agriculture. The SBA can push for regulatory flexibility and exemptions that take into account the limited resources of small businesses and the innovative nature of their work.

The SBA also provides compliance assistance to help small businesses navigate complex regulatory environments. For agricultural drone companies dealing with multiple regulatory agencies (FAA, EPA, USDA), this guidance can be invaluable in ensuring compliance while minimizing administrative burdens.

Furthermore, the SBA can advocate for increased funding and support for research and development in agricultural technology. This could include pushing for grant programs, tax incentives, or other financial support mechanisms that help agricultural drone companies offset the significant risks they're taking to innovate in this space.

The SBA's regional and district offices can also play a role in local advocacy efforts. They can work with state and local governments to create a more supportive environment for agricultural drone companies, potentially through local economic development initiatives or state-level regulatory reforms.

In addition to advocacy, the SBA provides various programs and services that can directly benefit agricultural drone companies. These include access to capital through SBA loan programs, which can be crucial for companies taking significant financial risks. The SBA's Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs can provide crucial early-stage funding for agricultural drone technologies.

The SBA also offers business counseling and training services through its network of Small Business Development Centers (SBDCs), SCORE chapters, and Women's Business Centers. These resources can help agricultural drone companies develop business plans, navigate regulatory challenges, and connect with potential customers and investors.

By leveraging these various advocacy tools and support programs, the SBA can help create a more favorable business environment for agricultural drone companies. This support can be crucial in helping these innovative businesses overcome regulatory hurdles, access necessary capital, and ultimately succeed in their mission to enhance American agricultural productivity through advanced technology. The SBA's efforts can help ensure that the significant financial risks taken by these companies are matched by a supportive policy environment that recognizes their potential to transform American farming.