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Legal Issues for Drones on Construction Job Sites

The FAA has additional rules for companies using drones for commercial services that you need to know.

February 25, 2016

Drones are turning up with increasing frequency on construction projects, taking videos of a project's progress, mapping for software programs, surveying, and monitoring.

We've reminded you to register your drones or face a hefty fine. But, did you know drones used for commercial business have additional rules?

Here's what you need to know:

Right now, the FAA allows for recreational - not commercial - drones weighing under 55 pounds flown no more than 400 feet above the ground and in no location that may interfere with air traffic.

To be used for commercial purposes, the FAA requires drone operators to obtain a Section 333 grant of exemption. 

According to the FAA, "By law, any aircraft operation in the national airspace requires a certificated and registered aircraft, a licensed pilot, and operational approval. Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a Unmanned Aircraft Systems (UAS) to operate safely in the National Airspace System (NAS)." The FAA says obtaining this exemption will help discourage illegal drone operations and improve safety, and has identified this as a high priority project to address demand for civil operation of UAS for commercial purposes.

The FAA recently said it will have new and more detailed explanations of its drone regulations by mid-2016. But in the meantime, contractors should be aware that the FAA has demonstrated it will not hesitate to levy significant (seven figure) civil penalties to contractors who are discovered using drones on project sites without the necessary Section 333 exemption.

State legislatures are also weighing how drones can be used and regulated, taking into account benefits of their use, privacy concerns, and economic impact. Some of the proposed regulations can directly impact contractors by disallowing drones to photograph private property, critical infrastructure and facilities, and operating in violation of an property owner's air rights.

FAQS - Here are some frequently asked questions about the Section 333 Exemption process:

What are the main requirements needed for me to operate an unmanned aircraft or drone for my business?

You will need:

  • Section 333 grant of exemption
  • Certificate of Waiver or Authorization (COA)
  • An aircraft registered with the FAA
  • A pilot with an FAA airman certificate

What is a petition for exemption?

A petition for exemption is a request to the FAA by an individual or entity asking for relief from the requirements of a current regulation.

Do I need a Section 333 grant of exemption if I'm not charging for my services?

Unless you are flying only for hobby or recreational purposes, you will need FAA authorization via a Section 333 grant of exemption to fly your unmanned aircraft system (UAS) for your business. This applies even if you are only flying to supplement or aide your business and not charging fees for doing so.

The FAA recently published new rules for operating small UAS commercially. Do I still need a Section 333 exemption?

Yes. The Small UAS Notice of Proposed Rulemaking (NPRM) was published in February 2015, and the public comment period closed in April 2015. The FAA must analyze all comments received before issuing the final small UAS rule. Until a final rule is issued, no part of this rule is in effect and current regulations continue to apply, meaning that commercial operators must petition for and receive a Section 333 grant of exemption.

Where can I find  help to submit a petition for exemption?

Guidelines for submitting a petition for exemption are available at http://aes.faa.gov/Petition/home.html. This website details the general exemption process for filing any petition for exemption, and it provides answers to frequently asked questions about the process. The FAA UAS Integration Office has also published a set of instructions specifically related to Section 333 petitions for exemptions, which can be found at:
http://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/.

If I receive a Section 333 grant of exemption, can I do whatever I want with my UAS (drone)?

All Section 333 grants of exemption are issued with conditions and limitations that the operator is responsible for complying with. The FAA publishes all Section 333 grants of exemption, on its UAS website:

Is there a fee associated with the Section 333 exemption process?

There is no fee associated with petitioning for exemption. However, all aircraft operations conducted under a Section 333 grant of exemption must use a registered UAS, and there is a minimal fee associated with registration. Details are available here.

How long does the process take?

The FAA requires a reasonable amount of time to conduct the study. You should submit your request 120 days prior to the date you plan to use your drone for commercial services.

Do I need a pilot's license to petition for exemption under Section 333?

By law, the FAA cannot authorize an aircraft operation in the National Airspace without a certificated pilot in command of the aircraft (Title 49 of United States Code § 44711). Exemptions granted in accordance with Section 333 carry the following requirement regarding the Pilot-in-Command (PIC) of the aircraft:

Under this grant of exemption, the Pilot-in-Command must hold either:

1. An airline transport, commercial, private, recreational, or sport pilot certificate.

2. A current FAA airman medical certificate or a valid U.S. driver's license issued

3. Meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.

Who is the FAA contact for the Section 333 process?

Further questions about the Section 333 exemption process should be directed to 333exemptions@faa.gov. Questions about operating conditions and limitations with a Section 333 exemption should be directed to 9-AFS-UAS-Inquiries@faa.gov.

The FAA continues to develop and finalize its drone regulations, and from a legal standpoint, the use of drones by construction contractors is still in an uncertain state of limbo. Beyond remaining mindful of the FAA requirements and regulations as they are updated, construction contractors should implement their own internal guidelines with respect to the use of drones on the job site. For instance, drone operators should be required to go through a training protocol, and drone flight paths should be planned in advance and properly documented.

Source: FAA

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