Welcome, Commercial Drone Pilots!
Join our growing community today!
Sign up

14 CFR 107.39 - Flight over people.... "unless that human being is....." (construction related)

Kristina Fowler

Well-Known Member
Joined
Jan 20, 2018
Messages
187
Reaction score
90
No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.


My question is this: I've been hired by a construction company to capture the pouring of a concrete slab. There will undoubtedly be employees of the construction company doing their assigned tasks around the area directly under my drone. Are these workers considered "Directly participating in the operation of the small unmanned aircraft" and thereby exempt from 14 CFR 107.39 ???
 
No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.


My question is this: I've been hired by a construction company to capture the pouring of a concrete slab. There will undoubtedly be employees of the construction company doing their assigned tasks around the area directly under my drone. Are these workers considered "Directly participating in the operation of the small unmanned aircraft" and thereby exempt from 14 CFR 107.39 ???
NEGATIVE!
Participating in the operation of the sUAS means some part of flying or ensuring SAFETY of the flight... pilot, RPIC, VO, Safety Officer etc. aka Flight Crew. Construction workers, Film Crew, Actors, principals are not part of the Flight Crew. Also the "trick" of designating each and every person on the site as a Visual Observer isn't a loop hole. I've heard that one several times and that idea won't hold water with the FAA.

You fly in such a manner as you're not directly OVER any of the workers to the best of your ability. People are "uninteresting" viewed straight from above so fly at an angle.

Keep in mind that it's possible the DATA you're creating will be used outside of it's intended purpose so you could be creating Video Evidence of you violating ~107.39. This evidence could become part of a Marketing Campaign and be used outside of the customer's initial scope. Your flying over people (violating ~107.39) could end up on a website or commercial getting you some unwanted FAA attention.

Plan your flights carefully, implement your plan precisely, and should you "accidentally" fly directly over people EDIT it out of your EVIDENCE roll and do NOT share it with the client.

We fly lots of construction sites and usually coordinate to do them during off peak times (after hours, weekends, lunch etc) but occasionally that doesn't work and we have to fly during working hours. When we do, we plan carefully to fly more "oblique" angles and avoid high pedestrian areas as much as possible.
 
No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.


My question is this: I've been hired by a construction company to capture the pouring of a concrete slab. There will undoubtedly be employees of the construction company doing their assigned tasks around the area directly under my drone. Are these workers considered "Directly participating in the operation of the small unmanned aircraft" and thereby exempt from 14 CFR 107.39 ???

I am going to assume this is a slab pour. The regs are clear in that you may not operate over people and the construction crew cannot be passed off as part of the flight. You can possibly still shoot though. You would need to establish a safe zone off of one side to shoot offset images and video. You would be smart to add a minimum of two extra crew members if not more to ensure that no non-essential people wander into the site before or during flight. You will need to establish the site with enough offset to the work area to ensure that if they aircraft fails in-flight, momentum does not carry it into the work area. If that is possible, THEN you could safely carry out the flight and get what you need within the structure of the regulations.
 
Unless you are flying over a packed crowd, I doubt if anyone can determine by a video that one was flying "over" (as interpreted as being literally directly over) anyone in a video given a decent altitude. You can look like you are over someone when in fact you would miss the person by several feet if you were to drop from above. My interpretation of this reg is that you should simply avoid flying over people to the best of your ability and best judgement, because if you drop out of the sky and impact anyone, you're liable and screwed as the PIC. I do my best to avoid flying over workers at construction sites and find some comfort in knowing that they are all wearing hard hats if I misjudge.
 
Unless you are flying over a packed crowd, I doubt if anyone can determine by a video that one was flying "over" (as interpreted as being literally directly over) anyone in a video given a decent altitude. You can look like you are over someone when in fact you would miss the person by several feet if you were to drop from above. My interpretation of this reg is that you should simply avoid flying over people to the best of your ability and best judgement, because if you drop out of the sky and impact anyone, you're liable and screwed as the PIC. I do my best to avoid flying over workers at construction sites and find some comfort in knowing that they are all wearing hard hats if I misjudge.
You're probably right, but my guess would be, the more steps you take to mitigate risk, like R mentioned, would probably weigh in your favor in the unlikely event there were an "oh Bleep" moment. MHO
 
  • Like
Reactions: MapMaker53
Another thing to consider is that everyone on the job site is wearing proper PPE and using proper equipment. Coordinate with the site manager and let him/her know you will be filming and that everyone needs to have proper PPE as required including required equipment and restraints while on a ladders etc. I had to do a reshoot because I captured someone on a ladder without approved restraints.
 
.... I had to do a reshoot because I captured someone on a ladder without approved restraints.

One of our clients require a 1 hour heads up so they can get everyone on sight "OSHA Legal". The first time we showed up there was a roofer dangling from a man-lift with NO fall devices attached. I stopped recording and showed the video to the PM and he went ballistic LOL.
 
Unless you are flying over a packed crowd, I doubt if anyone can determine by a video that one was flying "over" (as interpreted as being literally directly over) anyone in a video given a decent altitude. You can look like you are over someone when in fact you would miss the person by several feet if you were to drop from above. My interpretation of this reg is that you should simply avoid flying over people to the best of your ability and best judgement, because if you drop out of the sky and impact anyone, you're liable and screwed as the PIC. I do my best to avoid flying over workers at construction sites and find some comfort in knowing that they are all wearing hard hats if I misjudge.
Two major issues here:
1. Your description displays a rather peremptory attitude to safety, which, as professionals should be our top priority.
2. “My interpretation of this reg...” - I really don’t think any comment is needed.
 
  • Like
Reactions: MapMaker53
In Canada, construction staff, having been informed, become part of the "operation" so don't need to be cleared out of the way.
 
n Canada, construction staff, having been informed, become part of the "operation" so don't need to be cleared out of the way.

In the US, operating engineers (heavy equipment operators) look at you like you're an idiot when you tell them that the FAA considers it dangerous and illegal to fly a 8lb drone over the land they are working on while they are operating 50k-100k lb machines with fully enclosed ROPs (Roll Over Protection) because the drone, on a grid mission, may fly over them, fail and fall out of the sky and either hit their machine or cause them to be distracted and/or startled and cause them to drive into the hwy and destroy life and property.

But, hey. the FAA knows what they're doing, right? In the US, common sense is commonly absent from rulemaking. What starts out as good intentions escaletes into nonsense. Flying a construction site with heavy land moving equipment is treated the same as a playground with toddlers. Just the same, right?
 
Last edited:
  • Like
Reactions: Recoveryone
In the US, operating engineers (heavy equipment operators) look at you like you're an idiot when you tell them that the FAA considers it dangerous and illegal to fly a 8lb drone over the land they are working on while they are operating 50k-100k lb machines with fully enclosed ROPs (Roll Over Protection) because the drone, on a grid mission, may fly over them, fail and fall out of the sky and either hit their machine or cause them to be distracted and/or startled and cause them to drive into the hwy and destroy life and property.

But, hey. the FAA knows what they're doing, right? In the US, common sense is commonly absent from rulemaking. What starts out as good intentions escaletes into nonsense. Flying a construction site with heavy land moving equipment is treated the same as a playground with toddlers. Just the same, right?

That's why I just ask them when they are going to break for lunch and fly the site when they aren't there. Higher speed;less drag.
 
  • Like
Reactions: BigAl07
In Canada, construction staff, having been informed, become part of the "operation" so don't need to be cleared out of the way.
In the US, the RPIC, the pilot, and the observers are only considered part of the crew (and no, briefing construction workers does not make them part of the crew). Honestly as mentioned above, some workers are better protected when in construction equipment but that is covered under the moving vehicle reg.
I've found iit much easier to fly during lunch when I can ask the general contractor to clear the site. It does not interrupt the flow of work and they benefit from the data we collect also so everyone is happy and we don't hold up work (which makes people up the chain from me happy). The alternative is flying the site after hours (which makes me unhappy).
 
  • Like
Reactions: Dave Pitman
In the US, the RPIC, the pilot, and the observers are only considered part of the crew (and no, briefing construction workers does not make them part of the crew). Honestly as mentioned above, some workers are better protected when in construction equipment but that is covered under the moving vehicle reg.
I've found iit much easier to fly during lunch when I can ask the general contractor to clear the site. It does not interrupt the flow of work and they benefit from the data we collect also so everyone is happy and we don't hold up work (which makes people up the chain from me happy). The alternative is flying the site after hours (which makes me unhappy).
I like flying sites on the weekend( no issues or worries about ground crews), but I have a 9-5 doing inspections and flying during those times also. I inform the Sup's at the Pre-con that I will be out with a drone during different phases of the build.
 
  • Like
Reactions: Dave Pitman
I like flying sites on the weekend( no issues or worries about ground crews), but I have a 9-5 doing inspections and flying during those times also. I inform the Sup's at the Pre-con that I will be out with a drone during different phases of the build.
I'm salary so anything outside normal working hours is just 1:1 comp time which is worthless to me. It's hard enough taking vacation, let alone comp time when the job is running at full speed. I only have a part time coverage if I am out, so taking off really is not an option. Working for free (in essence), is not happening.
 
That's why I just ask them when they are going to break for lunch and fly the site when they aren't there. Higher speed;less drag.
I like flying sites on the weekend( no issues or worries about ground crews), but I have a 9-5 doing inspections and flying during those times also. I inform the Sup's at the Pre-con that I will be out with a drone during different phases of the build.

On projects that involve ground control, I generally fly on the weekend when possible too. Flying the mission is actually the safest part as far as I'm concerned. I don't really like wandering around looking for and placing targets over markers when the equipment is very active. Lunch hour is just not sufficent for jobs over 100 acres (covering markers, flying, recover markers). About 5 years ago, a surveyor was seriously injured by a D9 on a project here out checking grade during heavy excavation. All safety protocol was active, but accidents happen. One of the great things about using drones is to keep people out of harms way. In this enviornment, the drone is insignificant. The FAA will get there...some day...maybe.
 
  • Like
Reactions: R Martin
On projects that involve ground control, I generally fly on the weekend when possible too. Flying the mission is actually the safest part as far as I'm concerned. I don't really like wandering around looking for and placing targets over markers when the equipment is very active. Lunch hour is just not sufficent for jobs over 100 acres (covering markers, flying, recover markers). About 5 years ago, a surveyor was seriously injured by a D9 on a project here out checking grade during heavy excavation. All safety protocol was active, but accidents happen. One of the great things about using drones is to keep people out of harms way. In this enviornment, the drone is insignificant. The FAA will get there...some day...maybe.
anything involving a D9 or D10 is always serious, and never fall on the ground when scrapers are running, you can find yourself in one of those cans and they would never suspect a thing happen.
 

Members online

No members online now.

Forum statistics

Threads
4,277
Messages
37,605
Members
5,969
Latest member
KC5JIM