Hemp, drones, meat labeling and more—there is so much going on in the world of ag law! With so much happening, we thought we’d treat you to another round of the Harvest before the holidays.
Hemp for the holidays. As 2020 and the first growing season approach, there has been a flurry of activity surrounding hemp. States have been amending their rules and submitting them to the USDA for approval in anticipation of next year. In addition, just last week USDA extended the deadline to comment on the interim final hemp rule from December 30, 2019 to January 29, 2020. If you would like to submit a comment, you can do so here. To get a refresher on the interim rule, see our blog post here.
In other hemp news, EPA announced approval of 10 pesticides for use on industrial hemp. You can find the list here. Additional pesticides may be added to the list in the future.
Congress considers a potential food safety fix. It’s likely that over the last several years, you’ve heard about numerous recalls on leafy greens due to foodborne illnesses. It has been hypothesized that some of these outbreaks could potentially be the result of produce farms using water located near CAFOs to irrigate their crops. A bill entitled the “Expanded Food Safety Investigation Act of 2019” has been introduced to tackle this and other potential food safety problems. If passed, the bill would give FDA the authority to conduct microbial sampling at CAFOs as part of a foodborne illness investigation. The bill is currently being considered in the Senate Health, Education, Labor, and Pensions Committee.
Animal welfare bill becomes federal law. In November, the President signed the “Preventing Animal Cruelty and Torture Act” (PACT), into law. PACT makes it a federal offense to purposely crush, burn, drown, suffocate, impale, or otherwise subject non-human mammals, birds, reptiles, or amphibians to serious bodily injury. PACT also outlaws creating and distributing video of such animal torture. The law includes several exceptions, including during customary and normal veterinary, agricultural husbandry, and other animal management practices, as well as during slaughter, hunting, fishing, euthanasia, etc.
No meat labeling law in Arkansas? Last winter, Arkansas passed a law that made it illegal to “misbrand or misrepresent an agricultural product that is edible by humans.” Specifically, it made it illegal to represent a product as meat, beef, pork, etc. if the product is not derived from an animal. Unsurprisingly, the law did not sit well with companies in the business of making and selling meat substitutes from plants and cells. In July, The Tofurky Company sued the state in the U.S. District Court for the Eastern District of Arkansas, Central Division, claiming the labeling law violates the First and Fourteenth Amendments, as well as the dormant Commerce Clause. On December 11, the District Court enjoined, or stopped Arkansas from enforcing, the labeling law. This means that the state will not be able to carry out the law while the District Court considers the constitutionality of the law. We will be following the ultimate outcome of this lawsuit closely.
Ag wants to be part of the drone conversation. The Senate Committee on Commerce, Science, and Transportation is currently considering a bill called the “Drone Advisory Committee for the 21st Century Act.” If passed, the bill would ensure that the Federal Aviation Administration (FAA) includes representatives from agriculture, forestry, and rangeland, in addition to representatives from state, county, city, and Tribal governments on the Drone Advisory Committee (DAC). Thus, such representatives would be part of the conversation when the DAC advises the FAA on drone policies.
Ag financing tools may get an upgrade. The “Modernizing Agriculture and Manufacturing Bonds Act,” or MAMBA (what a great name) was introduced very recently in the House Committee on Ways and Means. Text of the bill is not yet available, but when it is, it should be located here. According to this fact sheet, the bill would make a number of changes to current law, including increasing “the limitation on small issue bond proceeds for first-time farmers” to $552,500, repealing “the separate dollar limitation on the use of bond proceeds for depreciable property” which would mean famers could use the full amount for equipment, breeding livestock, and other capital assets, and modifying the definition of “substantial farmland” to make it easier for beginning farmers to gain access to capital.
Shoring up national defense of agriculture and food is on the docket. The Committee on Agriculture, Nutrition, and Forestry sent the National Bio and Agro-Defense Facility Act of 2019 (NBAF) to the floor of the Senate for consideration. Among other things, bill would allow the USDA, through the National Bio and Agro-Defense Facility, to address threats from human pathogens, zoonotic disease agents, emerging foreign animal diseases, and animal transboundary diseases, and to develop countermeasures to such diseases. Essentially, USDA and NBAF would see to national security in the arena of agriculture and food.
We hope you have a wonderful holiday season! We will be sure to continue the ag law updates in the next decade!
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 2: Rules for Operating Drones
The FAA’s long awaited rule for drones or “small unmanned aircraft systems” (sUAS) weighing less than 55 pounds will be effective on August 29, 2016. Our previous post explained the rule’s process for obtaining certification as a Remote Pilot in Command (Remote PIC) that will apply to those who operate a sUAS for commercial uses or incidental to a business, such as for farming purposes. In this post, we focus on the new rule's operational requirements and limitations. Farmers who want to use a drone in the farm operation need to understand and comply with these provisions.
- Registration. A person may not operate a sUAS over 0.55 pounds unless it is registered with FAA. An online registration is available at https://registermyuas.faa.gov/
- Pre-flight inspection. The Remote PIC must inspect the sUAS prior to a flight to ensure that it is in a condition for safe operation, which includes inspecting for equipment damage or malfunctions. The FAA advises operators to conduct the pre-flight inspection in accordance with the sUAS manufacturer’s inspection procedures and provides a list of the elements to address in a pre-flight inspection in section 7.3.4 of this guideline.
- Pre-flight information. The Remote PIC must make sure that all persons directly involved in the flight are informed about roles and responsibilities, operating conditions, emergency and contingency procedures and potential hazards.
- Flight operators. Only a Remote PIC may fly the sUAS, or someone under the direct supervision of a Remote PIC if the PIC is easily able to gain control of the sUAS. A Remote PIC may only operate or observe one drone at a time.
- Airspace. Flights of sUAS are allowed in Class G airspace, the airspace that is not controlled by Air Traffic Control (ATC) communications, which encompasses a majority of agricultural lands. A flight in Class, B, C, D and E controlled airspace requires permission from the appropriate ATC prior to flight. The FAA will establish a web portal that will allow an operator to apply for ATC permission online.
- Waiver process. The operator may apply for a “certificate of waiver” that allows deviation from some of the operational requirements if the FAA determines that the flight would be safe. The operator must receive the waiver prior to the flight, so should file the request about 90 days in advance of the proposed flight. The FAA will post the waiver applications, which are not yet available, at http://www.faa.gov/uas/.
Operating rules during flight
- Weather visibility. There must be a minimum visibility of three miles from the sUAS control station.
- Visual line of sight. The Remote PIC or the authorized person operating the drone must maintain a constant visual line of sight with the sUAS, without the aid of a device other than glasses or contact lenses. The operator may use a visual observer to help maintain the line of sight, but using an observer cannot extend the line of sight.
- See and avoid. The operator must yield the right of way and avoid collision with another use of the national air space.
- Height. The sUAS may not fly more than 400 feet above ground level.
- Time of day. Flights may occur only during daylight hours or no more than 30 minutes before official sunrise or after official sunset if the sUAS has anti-collision lighting.
- Speed. The sUAS speed may not exceed 100 miles per hour.
- People. A flight may not occur over persons who are not involved in the flight or are not under a covered structure or inside a covered stationary vehicle.
- Base of operation. Operation of the sUAs may not occur from a moving aircraft. Operation from a moving land or water vehicle is permissible if in a sparsely populated area and not transporting property for hire.
- External load and towing. A sUAS may carry or tow an external load if the load is securely attached, does not affect control of the aircraft, is not a hazardous substance and the combined weight of the sUAS and its load does not exceed the 55 pound weight limit.
- Aerial applications. Use of a sUAS for dispensing herbicides, pesticides and similar substances must also comply with the “agricultural aircraft operation” regulations in 14 CFR 137.3.
- Dropping objects. An operator may not create an undue hazard that poses a risk of injury to persons or property when dropping an object from a sUAS.
- Careless or reckless operation. A person must not operate a sUAS carelessly or recklessly. The FAA provides the example of failing to consider weather conditions when flying near structures, trees or rolling terrain in a densely populated area as an example of careless or reckless operation.
- Production of records and vehicle. If requested by FAA, a person must make the sUAS or its records available for testing or inspection.
- Accident reporting. Within 10 days of occurrence, a Remote PIC must report to the FAA a flight operation that results in loss of consciousness or serious injury to a person or creates property damage of at least $500. Reporting can occur online at www.faa.gov/uas or by telephone to the appropriate FAA field office or regional center.
Penalties for noncompliance with the rule
The FAA will have enforcement authority over the new regulations. Depending upon the type and violation, civil penalties could be up to $27,500. An operator could also be subject to criminal penalties for violations that are reckless, destroy property or threaten public safety; those penalties could be up to $250,000.
Learn more about the sUAS rule at http://www.faa.gov/uas/
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.
After much anticipation, the Federal Aviation Administration (FAA) has published proposed regulations that would govern the operation of drones used for agricultural and other activities. The proposal would allow farmers and ranchers to operate drones, referred to in the rule as “unmanned aircraft” and “unmanned aircraft systems” (UAS), subject to requirements intended to address public safety and national security concerns.
Under the proposed small UAS rule, operators must comply with a certification process, register and maintain aircraft, and follow limitations on aircraft operation. Of the proposed limitations, agricultural operators might have concerns about a “visual line-of-sight” rule requiring that operators have visual contact with aircraft, a flight ceiling of 500 feet above ground level and prohibitions against night flights. Additionally, the proposal fails to address privacy issues and the potential use of drones for surveillance activities on another person’s property.
The following provisions are the major components of the proposed rule, which would apply to unmanned aircraft weighing less than 55 pounds that are used for non-hobby and non-recreational purposes:
Operator Certification and Reporting
Certification. An operator of a UAS must have an “unmanned aircraft operator certificate with a small UAS rating,” which requires:
- Meeting eligibility requirements: the applicant is at least 17 years old, speaks English, has no state or federal drug offenses, has no physical or mental condition to prevent safe UAS operation, and the applicant’s identity is verified by the FAA.
- Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center, which covers: (1) applicable regulations relating to small UAS rating privileges, limitations, and flight operation; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small UAS operation; (3) official sources of weather and effects of weather on small UAS performance; (4) small UAS loading and performance; (5) emergency procedures; (6) crew resource management; (7) radio communication procedures; (8) determining the performance of small UAS; (9) physiological effects of drugs and alcohol; (10) aeronautical decision-making and judgment; and (11) airport operations.
- Passing a recurrent aeronautical knowledge test every 24 months.
Reporting. An operator must report an accident to the FAA within 10 days of any operation that results in injury or property damage.
- Aircraft registration. A small unmanned aircraft must be registered with the FAA.
- Markings. A small unmanned aircraft must display nationality and registration markings.
- Aircraft condition. An operator must maintain a small unmanned aircraft in a condition for safe operation.
Pre-flight requirements. Before a flight, an operator must conduct a pre-flight inspection and assessment that includes:
- Inspection of the links between the unmanned aircraft and its control station.
- Verification of sufficient power to operate the aircraft at least 5 minutes beyond the intended operational time period.
- Assessment of the operating environment, including local weather conditions, local airspace and flight restrictions, locations of persons and property on the ground and other ground hazards.
- A briefing to all persons involved in the aircraft operation that addresses operating conditions, emergency procedures, contingency procedures, roles and responsibilities and potential hazards.
Visual line of sight requirement. An operator must maintain a “visual line-of-sight” with the unmanned aircraft, using only human vision that is unaided by any device other than glasses or contact lenses.
Use of visual observer. An operator may use “visual observers” to assist with the visual line-of-sight requirement.
- An operator and visual observer must maintain constant communication, which may be made through communication-assisted devices.
- The aircraft must still remain close enough to the operator for the operator to be capable of maintaining the visual line-of-sight.
Operating limitations. An operator must not operate an unmanned aircraft:
- More than 500 feet above ground level.
- More than 100 mph.
- After daylight, which is the time between official sunrise and sunset.
- When there is not minimum weather visibility of 3 miles from the aircraft’s control station.
- No closer than 500 feet below and 2,000 feet horizontally away from any clouds.
- Over any persons not directly involved in the operation and not under a covered structure that would protect them from a falling UAS.
- From a moving aircraft or vehicle, unless the moving vehicle is on water.
- Within Class A airspace; or within Class B, C, or D airspace or certain Class E airspace designated for an airport, without prior authorization from the appropriate Air Traffic Control facility.
- Carelessly or recklessly, including by allowing an object to be dropped from the aircraft in a way that would endanger life or property.
In the proposed rule, the FAA also presents the possibility of including regulations in the final rule for “micro-UAS,” or unmanned aircraft weighing no more than 4.4 pounds that are composed of “frangible” materials that yield on impact and present minimal safety hazards. The micro-UAS category would require operators to self-certify their familiarity with the aeronautical knowledge testing areas; would limit operation to: 1,500 feet within the visual line-of-sight of the operator, no more than 400 feet above ground, only in Class G (uncontrolled) airspace and at least 5 miles from an airport; and would allow flight over people not involved in the operation. The agency invites comments on whether to include a micro-UAS category in the final rule.
What’s not in the Proposed Rule?
Privacy concerns. Many in the agricultural community worry about the potential use of drones for surveillance activities that violate a property owner’s privacy. The FAA states that privacy concerns about unmanned aircraft operations are beyond the scope of this rulemaking and that “state law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.”
The agency also notes the recent Presidential Memorandum issued by President Obama, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015), which requires the FAA to participate in a multi-stakeholder engagement process led by the National Telecommunications and Information Administration to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private use of UAS in the NAS. The memorandum also requires agencies to “ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, in violation of law.” Read the Presidential Memorandum here.
External loads and towing operations. The FAA declined to propose new regulations for small unmanned aircraft with towing and external load capabilities. Instead, the agency invites comments, with supporting documentation, on whether external load and towing UAS operations should be permitted and whether their use should require airworthiness certification, higher levels of airman certification or additional operational limitations.
The FAA will accept public comments on the proposed small UAS rule until April 24, 2015. Issuing a final rule could take at least another year after the comment period closes. In the interim, FAA encourages operators to visit http://knowbeforeyoufly.org/ to understand current regulations for the use of small UAS, which remain in place until the FAA issues its final rule.
OSU’s Agricultural & Resource Law Program is pleased to announce its inaugural webinar, Big Data and UAVs: Legal Issues for Agriculture, scheduled for Friday, December 12 at 1 pm. This is the first webinar in the program’s new “Ohio Food, Agriculture and Environmental Law Webinar Series,” offering monthly legal webinars on issues of importance to Ohio agriculture.
The webinar will feature John Dillard, an Associate Attorney with the law firm of Olsson Frank Weeda Terman Matz, PC in Washington, DC and a leading expert on legal issues with technology and agriculture. With a background in agriculture and experience advising clients in the food and agricultural industries, Dillard will present a practical analysis of the legal issues raised by agriculture’s increasing use of large data sources and UAVs. Dillard authors a blog, Ag in the Courtroom, on AgWeb.com and Legal Ease, a column in Farm Journal magazine. He has appeared on national television and radio agricultural programs to discuss legal issues that affect agriculture.
Future webinars in the Ohio Food, Agriculture and Environmental Law Webinar Series will feature other national and state experts discussing legal issues of importance to Ohio agriculture. Topics in the series thus far will include:
The 2014 Farm Bill: Guiding a Client through the New Law with Bill Bridgforth of Ramsay, Bridgforth, Robinson & Raley LLP, Pine Bluff, Arkansas on Friday, January 9, 2015 at 1 pm.
Managing Pollutant Discharge Risk on Farms with Chris Walker and Jack Van Kley of Van Kley & Walker LLP, Dayton/Columbus, Ohio and Tom Mehnke of Mehnke Consulting LLC, Greenville, Ohio on Thursday, February 12, 2015 at 1 pm (tentative).
Introduction to Food Law: What You Need to Know to Build a Food Law Practice with Jason Foscolo of Foscolo & Handel PLLC, Sag Harbor, New York on Thursday, March 12, 2015 at 1 pm.
Nursing Home Costs & Medicaid: The One-Two Punch to the Family Farm with Craig Vandervoort of Sitterly & Vandervoort Ltd, Lancaster, Ohio on Friday, April 10, 2015 at 1 pm.
Rights and Remedies for Protecting Your Water Supply in Ohio with Joe Reidy of Frost Brown Todd LLC, Columbus, Ohio and Peggy Kirk Hall of OSU’s Agricultural & Resource Law Program on Thursday, May 14, 2015 (tentative).
For information on how to access the complimentary webinars and archived recordings, visit the “webinars” tab on https://farmoffice.osu.edu.