Commercial Drone Use – FAA Clarifies Rules

Construction contractors increasingly use drones to monitor and document progress on construction sites. Drones are becoming more and more common place in construction. One of our clients, an excavation contractor, uses a drone to fly the project before the bid. The contractor then uses the data gathered from the drone to create a topographic map, inputs the design elevations and plans in a computer, and calculates the quantities as a check of the owner takeoffs. This is an inexpensive check on quantities, which provides the contractor with a leg up in the bidding process.

On June 21, 2016, the Federal Aviation Administration (FAA) published its long-awaited Operational Rule for the team use of small Unmanned Aircraft Systems (UAS), more commonly known as drones. The rules provisions are designed to minimize risks to other aircraft, people, and property on the ground. A summary of the commercial “fly for work/business” rules are summarized below.

*These rules are subject to waiver.

The FAA is offering a process to waive some restrictions if an operator proves the proposed flight will be conducted safely under a waiver. The FAA will make an online portal available to apply for these waivers in the months ahead. To qualify for a Remote Pilot Airman Certificate, an individual must either pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center, or have an existing, non-student Part 61 Pilot’s Certificate. If qualifying under the latter provision, a pilot must have completed a flight review in the previous 24 months and must take a UAS online training course provided by the FAA. The Transportation Security Administration will conduct a security background check of all remote pilot applications prior to issuance of a certificate. Operators are responsible for ensuring a drone is safe before flying, but the FAA is not requiring small drones to comply with current agency airworthiness standards or aircraft certification. Instead, the remote pilot will simply have to perform a preflight visual and operational check of the small UAS to ensure that the safety-pertinent systems are functioning properly. This includes checking the communication link between the control station and the UAS.

Although the new rule does not specifically deal with privacy issues in use of drones, and the FAA does not regulate how a UAS gathers data on people or property, the FAA, as well as some states, are acting to address privacy considerations in this area. The FAA is strongly encouraging all UAS pilots to check local and state laws before gathering information through remote sensing technology or photography. As part of a privacy education campaign, the agency will provide all drone users with recommended privacy guidelines as part of the UAS registration process and through the FAA’s B4UFly mobile app. The FAA will also educate all commercial drone pilots on privacy during their pilot certificate process. For more information, see the FAA website on the new rule.[1]

[1] Getting Started, Federal Aviation Administration (June 20, 2016) https://www.faa.gov/uas/getting_started/.

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