Contractors deploying unmanned aerial systems (UAS or drones) in their construction practice have learned to conduct operations in conformity with the FAA’s commercial flight rules. But conformity with FAA regulations is just the start to a robust and legally compliant UAS program.

Construction executives must deploy a tailored and full risk management program covering its UAS usage. Such a program should comport with all applicable federal, state and local laws and regulations, be consistent with the owner’s UAS policy, be an evolving policy which requires proper training of the UAS team and reflect the rapidly changing regulatory framework and operational guidelines.

A UAS flight operation must reflect the current regulatory requirement founded in the Federal Aviation Administration 14 C.F.R. Part 107. These rules govern all commercial UAS flight operations and apply to all construction uses, whether the drone is operated as part of contractor’s UAS program or by a hobbyist employee who operates a personal UAS at work. Part 107 covers UAS registration, flight restrictions, pilot training and certification, as well as equipment requirements. At a minimum, an organization’s UAS leader must be knowledgeable of these requirements and treat operations of UAS equipment with at least the same training and operation control as it does all other major equipment operations.

An understanding of Part 107 yields some basic limitations on flight operations that constrain a contractor’s use of equipment. Contractors are prohibited from operating a drone at night unless the FAA grants a waiver. A drone may not operate during civil twilight unless the drone has anti-collision lighting for at least three miles. The drone must remain within the visual line-of-sight of both the remote pilot in command and the individual actually manipulating the drone.

Finally, a major restriction on usage is the requirement that a drone may not fly over non-participating humans. Non-participating humans has been interpreted by the FAA to mean all persons other than the drone flight crew, which means drones may not be flown over the construction workforce, except in limited circumstances, such as if the work force is under a protected structure.

Understanding the flight limitations and exceptions is key to keeping a UAS program safe and legal. The FAA periodically updates regulations and circulates clarifications. Commercial operators should keep themselves a breadth of these updates by regularly checking the FAA website.

There are multiple UAS vendors that provide operational software and equipment controls that incorporate some, but not all, of FAA flight restrictions into the UAS mapping systems, which serve as a backstop to the team, and can prevent non-compliant flights from being launched on the project site.

For unique uses, or for instances where a contractor has a specific need to operate a drone outside of the Part 107 limitations, contractors may request an operational waiver from the FAA allowing drone pilots to deviate from these limitations. Some types of exceptions are routinely granted, while others are rarely granted. Before seeking a waiver, consult with a professional who can guide the company through the exemption process and provide a realistic assessment of whether an exemption will likely be granted.

The federal government has exclusive sovereignty of airspace. Under the federal preemption doctrine, state or local law cannot preempt FAA’s carefully drafted regulations concerning airspace operations. Thus, although localities have their own regulations regarding drone operations, some are unenforceable. Some local laws are supplemental to, and do not preempt, federal regulations. For instance, certain states limit or prohibit use of a UAS near a critical infrastructure, such as oil refineries, chemical storage facilities and wireless communication facilities. Knowing what local laws govern, and whether they are enforceable, often requires guidance of legal professionals with experience with UAS laws.

Even if some local laws may be pre-empted by Part 107 rules, this is not a license to ignore these laws. After all, flaunting local restrictions by asserting federal preemption will not gain friends within the local authorities, who regulate other aspects of a contractor’s work. Many local laws governing use of drones mirror the concern of private landowners and other persons who can assert torts claims against a UAS operator for trespass and invasion of privacy. As construction professionals already know, cooperation and consultation with neighboring landowners is a prudent risk mitigation effort, even where no such consultation or permission is required.

At project inception, it is important for the contractor to understand and review the owner’s own UAS usage policies if it plans on operating a UAS during performance of the project. These policies may further limit use of the UAS beyond federal, state or local regulations.

Prior to operating the UAS, contractors should determine if its intended uses are permissible under the owner’s UAS policy, if the contractor must provide notice to the owner and obtain consent to use the drone, and if the policies attempt to shift an unreasonable risk of liability to the contractor. Further, contractors must review their contract with the owner and the owner’s UAS policy to determine which party has intellectual property rights to drone video recordings and pictures as these may be considered project drawings and designs. Contractors should flow-down the obligation to abide by the owner’s UAS usage policy, including notification and approval requirements to its subcontractors to ensure compliance during performance of the project.

In conjunction with implementing a comprehensive UAS program with the organization, companies can manage UAS operational risks through insurance. Generally, liability for property damage and bodily injury arising from the use of an UAS is excluded from commercial general liability policy under the standard aircraft exclusion provision.

To cover drone operations on a construction site, add an aviation rider or separate UAS insurance policy. These policies cover claims uniquely associated with drones and typically cover first-party claims that include damage to the drone itself. These UAS policies and endorsements may limit coverage to scheduled uses of the UAS, a risk managed through proper policies and procedures.

Executives should work with their risk management program to determine which policies and endorsements are appropriate for the organization based on the frequency of uses and whether its uses of the UAS are permissible under the policy. Beyond insurance, carefully draft subcontract and consulting agreements to protect the organization from liability arising from a UAS operation conducted by other companies hired. These protections specifically include drafting an indemnity broad to cover UAS operations, requiring proof of UAS coverage naming the company and the owner as named insured, and requiring the third party to maintain a UAS policy, pilot certificates, flight plans and permissions as a precondition to operations.

Before contractors operate a UAS on a project site, they should anticipate being asked to provide the project owner with a copy of the contractor’s UAS policy. The policy should conform to the current best practices, meet the expectation of the client, govern safe and professional use by employees and minimize the company’s liability risk. The organization should require the UAS team and all affected employees to comply with such policies, which should be reviewed and updated at least annually to conform to current regulations and governmental guidance. The UAS policy manual should incorporate the following practices:

• Clearly define the roles and responsibilities of key staff, including the operations director, lead remote pilot and field crew.
• Establish safety protocols that are fully compliant with Part 107, OSHA and all other applicable federal, state and local laws. Contractors should consider working with counsel and risk management in drafting these protocols.
• Track inventory and keep records of each drone’s registration, its use within its specific design limitations, maintenance of the drones and all performed drone missions.
• Require all deployments to be approved by the Operations Director and keep record of the UAS use requests and the approval.
• Require the Operations Director to coordinate with the project site team to ensure safe and compliant operations.
• Conduct a comprehensive training program in a controlled environment, including review of past operations and provide training of those tasks.
• Provide safety and toolbox talks for full employee awareness prior to site operation.
• Require the project site team to use a pre-deployment checklist to ensure the drone is functioning properly and all safety.
• Require the Operations Director to plan the flight path ahead of deployment on the site to address potential privacy issues and obtain permission from affected individuals in advance.

A comprehensive UAS program that provides knowledge-based training, operational training and a system of equipment maintenance is key to successful UAS deployment. A risk management program that addresses both prevention and mitigation will allow an organization to reap the full benefit of the use of drones in its projects.