Drone On: FAA Adopts New Regulations Governing the Use of Drones in Construction

img_0510Unmanned aircraft systems (“UAS”), which are commonly referred to as drones, are becoming increasingly less expensive and easier to operate.  As a result, these aircraft are being used more frequently for both recreational and business purposes.  The construction industry is at the forefront of commercial drone use.  In fact, just last week, Fortune published an article entitled, “The Construction Industry is in Love with Drones.”

Drones are being used by contractors for a variety of purposes, which mostly center around improving efficiency.  These uses include: (1) monitoring progress; (2) surveying sites; (3) inspecting structures; and (4) providing aerial overviews of completed projects.  The speed, frequency, and economical manner in which drones can furnish contractors with an accurate understanding of job site progress is, by itself, enough to ensure that drones are only going to become more prevalent on construction projects.

Given that drones are here to stay, contractors should be aware of the new Federal Aviation Administration (“FAA”) Small Unmanned Aircraft Systems Rules (the “UAS Rules”) that went into effect on August 29, 2016.  The UAS Rules (which are located in Title 14 of the Federal Code of Regulations part 107) classify UAS, provide for the certification of remote pilots, and provide certain operational limitations for purposes of maintaining the safety of the National Airspace System and ensuring that drones do not become a threat to national security.  The UAS Rules govern commercial drone use (not model aircraft flown recreationally), such that they necessarily apply to the operation of drones on construction projects.

Below is a summary of some of the key provisions of the UAS Rules.  It should be noted, however, that most of the “operational limitations” that follow may be waived upon application, if the applicant demonstrates his or her operation can be conducted safely under a certificate of waiver.

  1. Operational Limitations:
    • Small UAS must weigh less than 55 lbs, and cannot travel at groundspeeds greater that 100 mph.
    • Small UAS cannot travel at altitudes of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, within 400 feet of a structure.
    • Small UAS must yield right of way to other aircraft.
    • Visual line-of-sight (VLOS) operation only – all small UAS must remain within the VLOS (unaided by any device other than corrective lens) of: (a) the remote pilot in command and the person manipulating the flight controls, or alternatively (b) the visual observer.  There also must be minimum weather visibility of 3 miles from the control station.
    • Daylight-only operation – small UAS must be operated during daylight hours or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting.
    • No operation from moving vehicles – small UAS may not be operated from a moving aircraft.  They also may not be operated from a moving vehicle, unless the operation is over a sparsely populated area.
    • No operation above people – small UAS may not be operated over any persons not directly participating in the operation.  They also may not be operated under a covered structure or inside a covered stationary vehicle.
  2. Remote Pilot in Command Certification and Responsibilities:
    • Small UAS operators must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command).
    • To qualify for a remote pilot certificate, a person must:
      • Demonstrate aeronautical knowledge by either: (a) passing an initial aeronautical knowledge test at an FAA-approved testing center; or (b) holding a part 61 pilot certificate, completing a flight review within the past 24 months, and completing an FAA small UAS online training course.
      • Be vetted by the Transportation Security Administration.
      • Be at least 16 years old.
    •  Remote pilots in command must also:
      • Conduct a preflight inspection to ensure that the small UAS is in safe operating condition.
      • Determine that the small UAS complies with the existing registration requirements specified in § 91.203(a)(2).
      • Upon request, make the small UAS available to the FAA for inspection or testing, along with any documents/records required to be kept under the UAS Rule.
      • Report any operation that results in serious injury, loss of consciousness, or property damage of at least $500 to the FAA within 10 days.

A copy of the full UAS Rules can be found here.  Up, up, and away!