Use of unmanned aerial vehicles (UAV) and unmanned aircraft systems (UAS) (aka drones) in construction is rapidly increasing and expanding. Drones have been and can be used for a variety of functions, such as imaging (i.e., monitoring job progress, job documentation, real-time data/quality control and marketing), workforce supplementation/replacement (i.e., emergency response, address construction needs in difficult/unsafe places), surveying and environmental (i.e. air and ground sampling). Benefits of using drones include cost-effectiveness, safety, ability to reach difficult project areas, efficient inspection processes, and sophisticated marketing and bid presentations. Downside risks may include safety (airplanes, wind, birds), privacy, limited airspace, technology interference, improper automation, claims from crashes, defect litigation optics and regulatory process concerns.

In the FAA Modernization and Reform Act of 2012, Congress mandated that the Department of Transportation (Department) develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. Since 2012, the Department has made progress in enabling operations by issuing exemptions through Section 333 of the Act permitting commercial operations, creating a test site program, issuing a notice of proposed rulemaking for small systems, and encouraging research and innovation that will enable advanced drone operations.

A foundational statutory and regulatory requirement that the Department has employed for each of these integration programs is aircraft registration and marking. In order to operate in the national air space, operators must not only be aware of the system in which they are operating, but also that the FAA intends to identify and track drones to their operators. In fact, on October 19, 2015, the Secretary of Transportation Anthony Foxx announced that all unmanned aircraft would be required to be registered with the government just as manned aircraft are today. Foxx announced the formation of a task force consisting of government leaders and diverse stakeholders who will determine the specifics of how/which drones will be covered and how the registration process will work. Information that the task force will consider include:

1. What methods are available for identifying individual products?
2. At what point should registration occur (e.g. point of sale or prior to operation)?
3. What are the advantages of point of sale approach relative to a prior to operation approach?
4. Should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight?
5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
6. Should the registration be electronic or web-based?
7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
8. How should the registration data be stored, who should have access and how should the data be used?
9. Should a registration fee be collected, and if so, how?
10. Are there additional means beyond aircraft registration to encourage accountaibility and responsible use of UAS?

Presently, commercial use of drones – i.e., professional service for business purposes – is banned without an exemption under Section 333 of the Act. This applies even if you are only flying to supplement or aide your business and not charging fees for doing so. Hobby use, for now, is ok. The main requirements to operate an unmanned aircraft or drone for your business are:

1. A Section 333 grant of exemption;
2. A Certificate of Waiver or Authorization (COA);
3. An aircraft registered with the FAA; and
4. A pilot with an FAA airman certificate.

See generally www.faa.gov/uas/legislative_programs/section_333/333_faqs.

All Section 333 grants of exemption are issued with conditions and limitations applicable to the operator. The FAA publishes all Section 333 grants of exemption, on its UAS website: http://www.faa.gov/uas/legislative_programs/section_333/333_authorizations/.

The operating conditions and limitations associated with each authorization are listed within the grant of exemption document.

The Section 333 exemption process is different from the COA process. All Section 333 grants of exemption are automatically issued with a “blanket” 200-foot nationwide COA with certain restrictions around airports, restricted airspace and other densely populated areas. Details are available at: http://www.faa.gov/news/updates/?newsId=82245.

An operator who wants to operate outside the parameters of the blanket COA are eligible to apply for a separate COA specific to the airspace required for their operation. Applications for these COAs must be submitted through the UAS Civil COA Portal.

COA applications MUST include:

1. An exemption number – issued with your Section 333 grant of exemption.
2. An aircraft registration number – all aircraft must be registered with the FAA to be issued a COA.

The FAA will evaluate your petition and send you its decision based on a full review of your request. An FAA grant or denial of exemption is based on the specifics of each situation. If your petition for exemption is similar enough to previous grants of exemption, it may qualify for a summary grant of exemption. The FAA requires a reasonable amount of time to conduct the study. Whenever possible, all efforts are made to handle proposals expeditiously. Under current regulations, a petitioner requesting a Section 333 exemption is advised to make the request 120 days prior to the date they anticipate needing it for operations.

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, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver's license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal government. The PIC must also 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.

If you intend to operate a drone for use in your design or construction business, whether or not you charge for that use, be sure to comply with the applicable laws and regulations regarding use. In addition, though not required by the foregoing, you should also talk to your insurance broker regarding coverage under your CGL policy, including a special aircraft/UAS endorsement, if appropriate. If you are contracting with subconsultants or subcontractors who you know intend to utilize drones for their services or work, consider appropriate risk allocation (i.e., indemnity insurance) relating to such use. Finally, because the laws regarding commercial drone use are changing rapidly, stay on the lookout for new developments in this area.