Updated: AGC’s Response to New Drone Use Rules

Source: AGC of America

FAA Finalizes New Federal Rules on the Commercial Use of Drones; AGC Schedules Follow-Up Programs Specifically for Construction Contractors

On June 21, 2016, the Federal Aviation Administration (FAA) finalized a new and comprehensive set of rules for the commercial use of small drones in all industries, including construction.   This action completes a rulemaking process that the FAA began in February of 2015 – in an effort to meet Congressional demands and to stem a rapidly rising tide of applications for individual exemptions from longstanding rules that make no distinction between manned and unmanned aircraft.   Through January 20 of this year, the FAA had granted 3,136 of these exemptions for the commercial use of drones, and significantly, 48% of that total were for uses in the construction and engineering.

AGC Success

AGC submitted detailed comments on the proposed rules and continues to assess the FAA’s response.  At the outset of its letter to the agency, AGC encouraged the FAA “to create a straightforward and streamlined process for companies to request exemptions from the agency’s [proposed] requirements and restrictions” where alternative approaches to “specific aircraft operations” would be “equally effective” in addressing the agency’s concerns.

Perhaps the best news is that the FAA has taken that advice, adding “waiver authority to the regulatory text in order to accommodate . . . unique operational circumstances.”  The agency has created a new “certificate-of-waiver process” specifically to give the agency the flexibility “to assess case-specific information concerning a small UAS operation that takes place in a unique operating environment,” such as a construction jobsite.

Follow-Up Programs

AGC continues to study the final rules. It is also scheduling a series of educational programs on the specific questions drones operations will require construction contractors to address. The dates and times for the individual programs included in this WebEd series, and the topics that each will address, are the following:

Date Time Topic
September 28 2:00 p.m. Eastern How Construction Contractors Are Already Using Drones
October 5 2:00 p.m. Eastern The New Federal “Rules of the Road”
October 12 2:00 p.m. Eastern Privacy, Nuisance and Other Legal Doctrines Restricting Drone Operations
October 19 2:00 p.m. Eastern Insurance and Outsourcing Strategies for Drone Operations
October 26 2:00 p.m. Eastern How to Manage the Additional Data that Drones Generate

For more information, including links to the FAA’s summary of its new rules, to its Fact Sheet on the new rules and to the full text of the rules themselves, simply click here.

Visit AGC’s WebEd Drone Series site to register for the entire series.

New Contractor Requirements Effective After June 30

The following new contractor requirements take effect for state and local public works contracts awarded after June 30, 2016. Exceptions include Build/Operate/Transfer, P3, Design-Build and Construction Manager as Constructor contracts.

A contractor of any tier with 10 or more employees must provide its workers with access to a training program applicable to the tasks performed by those workers. Training can be accomplished through an apprenticeship program offered by Ivy Tech or Vincennes University, a program established by or for the contractor, a program offered by an entity sponsored by the U.S. Department of Labor, Bureau of Apprenticeship and Training (US DOL-BAT), a program that results in the award of an industry recognized portable certification, or a program approved by the Federal Highway Administration (FHWA) or INDOT.

A prime or general contractor (G.C.) or a subcontractor, contracting with a prime/G.C., employs 50 or more journeymen, the contractor must also participate in an apprenticeship or training program meeting standards established by or approved by US DOL-BAT, Indiana Department of Labor, FHWA or INDOT.

A contractor in any tier must preserve payroll and related records for three years after completion of the project and make those records open to inspection by the Indiana Department of Workforce Development.

Prime/G.C. and subcontractors, contracting on local public works contracts of $150,000 or more, must now adhere to drug testing requirements that were only applicable on state contracts prior to July 1, 2016.

The new statutes also require public owners to follow new procedures regarding possible contractor violations and in contractor responsibility determinations. For violations involving E-Verify, federal or state minimum wage laws, workers compensation or unemployment compensation, the public agency will be required to refer the matter to the appropriate agency. For other violations involving the new requirements, the public agency shall require the contractor to remedy the violation within 30 days of notification. If the violation continues, the agency shall find the contractor not responsible for up to 48 months. A finding that a contractor is not responsible is subject to judicial review. However, a finding that a contractor is not responsible due to a violation of the new requirements may not be used by another public agency as the basis for finding that contractor not responsible.