DON’T GET FINED – THE 9 OPERATING RULES CEOS NEED TO KNOW
By Brett W. Schouest
Like many others, the construction industry continuously benefits from innovation and advances in technology. One recent advancement is the use of unmanned aircraft, or “drones,” on construction projects. The technology has many applications, including surveying, site layout and topography, site security and safety, job progress and inspection, materials and tool/equipment delivery and access to otherwise inaccessible locations and viewpoints.
With so many benefits, it may seem like a no-brainer for construction companies to adopt drones for their own projects. However, their growing popularity has prompted the need for Federal Aviation Association regulations governing drone use.
The initial regulations, implemented in 2012, were prohibitively strict for many users. But the new, comprehensive regulations implemented last August generally ease the rules, allowing drone operations in commercial projects without FAA preapproval, with fewer restrictions and an easier pilot’s certification.
It’s important for CEOs in construction and real estate development to consider these regulations as they decide whether and how to use drones.
What exactly is a drone? The FAA defines a drone as an “unmanned aircraft,” operated without the possibility of direct human intervention from within or on the aircraft. “Small unmanned aircrafts”, the drones typically used in construction, may weigh up to 55 pounds on takeoff. The drone, along with all its associated elements and controls — anything required for safe and efficient operation — is considered a “small unmanned aircraft system” (small UAS).
Who can operate a drone? The person operating the drone is referred to as a “remote pilot in command” or PIC.
One consideration for contractors using drones on construction projects is whether to invest in their own employees for training and certification as a remote PIC or whether to outsource such operations to third-parties licensed and operating as remote PIC’s.
In considering this decision, contractors would do well to consider the requirements a remote PIC must meet in order to fly legally:
- Obtain a remote pilot certificate with a small UAS rating
- Achieve passing grade an aeronautical knowledge test (within the past 24 months)
- Be at least 16 years old
- Speak fluent English
- Have no mental condition affecting operation of the small UAS
The FAA regulations allow someone under direct supervision of a certified flyer to operate the drone if the remote PIC has the ability to immediately take direct control over the flight operations. It’s also important to note that remote PIC certification is subject to revocation or suspension for conviction of a drug offense or refusal to submit to alcohol testing.
How are drone operations allowed and restricted in the context of construction projects?
While the operating rules for drones are applicable in all situations, many have practical implications in the context of construction.
Initial Operation Requirements. These are essentially the pre-flight checklist. A few things to verify before takeoff:
- Is the drone registered with the FAA?
- Is the designated PIC certified?
- Is the drone in safe working condition?
- Is the surrounding area safe? This includes checking weather conditions and scanning for people or objects that may be in the flight path.
- Are there airspace or flight restrictions in the area?
It’s also important to remember that drone groundspeed is limited to 100 mph. And, no person may operate a drone in a careless or reckless manner that may endanger another’s life or property; however, a remote PIC may deviate from the rules as necessary to meet an in-flight emergency, but may be required to submit a report of the deviation to the FAA.
Operational Area Restrictions. A construction project located in a heavily populated area, or near an airport, may be prohibited or restricted from drone use — at least, without a special permission. Construction companies must ensure their projects are in Class G airspace (away from airports) before they begin drone use. If the project is in Class B, C, D or E airspace, it likely requires authorization.
Daytime Usage and Visibility. Because drone flight is only allowed during daylight hours (and at twilight with the proper lighting, visibility, and clearance), construction companies will likely be unable to use drones for initiatives such as nighttime security or surveillance.
Operation Over Persons. Even daytime usage may be restricted to certain times, as drones cannot be operated over other people, unless those people are directly involved in flight or under cover of structure or vehicle to protect them from a falling drone. This will obviously impact drone operations on busy project sites.
Visual Line of Sight. The pilot must be able to see the drone at all times during flight, which may restrict its use in enclosed areas of a construction site or project. However, the pilot may have an assistant to help him or her maintain that line of sight as long as the pilot and assistant are in communication at all times.
Multiple Drone Operations. No one is allowed to operate (or assist with) more than one drone at a time, and the drone may not be operated so close to another aircraft as to create a collision hazard, so small construction sites may not be ideal for more than one drone. Even in the case of sufficient area, contractors need to make sure there is sufficient personnel to operate multiple drones safely and legally.
Operation From Vehicle or Aircraft. Drones cannot be operated from a moving aircraft at all, and they can’t be operated from another vessel or vehicle except in sparsely populated areas and when the vehicle is not being used a carrier of another’s property for hire. This means, especially in populated areas, pilots will not be able to operate drones from trucks or other equipment at a project site.
Operations Near Structures. In general, drones cannot fly more than 400 feet above ground level, although there are exceptions for flying around structures such as buildings. Drones can be flown around and above tall structures involved in a construction project for inspection and other purposes, but only within certain limits –within 400 feet of the structure and, even then, it cannot fly more than 400 feet above the structure’s tallest point.
Materials Carried by Drones. Drones may not be ideal for transporting large materials to or around a construction site, as the aircraft and its load may not exceed 55 pounds. Further, drones may not carry hazardous materials, any objects attached to or being carried by drones must be secure and not affect control of the drone flight, and objects cannot be dropped from drones in a hazardous manner.
These regulations may seem restrictive, but it’s also important to know that some can be varied or lifted in certain situations upon request and approval by the FAA.
No doubt as technology advances, we will find more and more uses for drones on construction sites. As long as the builders and contractors understand the impact of FAA regulations, drones are poised to become a great asset for the construction industry.
Brett W. Schouest is a commercial litigator at Dykema, experienced in construction litigation and counseling. His skills enable him to handle litigation concerning construction, real estate and technology issues, in addition to consumer and commercial financial services disputes, insurance coverage, business contract and tort disputes, and business owner/officer issues.