The second half of 2015 will be crucial for European development of UAS regulation and therefore for the industry. By the end of July, the European Aviation Safety Agency (EASA) should issue a consultation on a proposal which suggests a liberal approach to the smallest types of UAS. Since these are expected to be the most numerous, the response should play a large part in shaping the industry – for both commercial and leisure applications – for the foreseeable future. The European Commission has tasked EASA with providing concrete regulatory proposals by the end of the year.
The Riga Declaration
There has been a lot of activity in the last six months. First, the European aviation community met in Riga in March and – somewhat cryptically - pronounced a consensus on five principles to govern regulation of unmanned aerial systems in Europe and to strike a balance between promoting UAS services and operations and maintaining adequate safety, security and privacy. Although the declaration is not part of a recognised EU legislative or policymaking process, it now has DG Transport endorsement. The expressed aim of speedy, harmonised, regulation reflects the Commission's call for action in April 2014. While this does little more than give industry a basis to put pressure on legislators if there is no progress, some elements - notably full integration throughout European airspace – are a long way away.
The Riga declaration came shortly after the FAA in the United States announced a formal rulemaking and just before ICAO launched its Manual on RPAS. More on these on another occasion.
EASA "Concept of Operations for Drones"
It was clear from the Riga Declaration and the infographics posted at the Conference that EASA already had a highly developed model for future regulation. EASA issued their document, entitled "Concept of Operations for Drones", within a week of the declaration. This is a document largely developed by JARUS – a multinational group of regulators seeking to co-ordinate rulemaking on unmanned vehicles, with many members outside Europe.
The 'Concept of Operations' is not a formal proposal to make or amend European regulation. While it is short on detail it does give some clues as to the way forward. Safety aspects are the top priority, but other risks, such as privacy/data protection, security and spectrum "need to be addressed at the same time as the safety risk". This section largely limits itself to options for managing these risks, and makes plain that Member States, EASA and other European institutions will all have their part to play.
Currently, EASA competence for UAS is limited to platforms above 150kg. Many advocate greater harmonisation so as to maximise the ability and ease of operation throughout Europe. The Concept proposes giving EASA competence for all UAS and removing the 150kg threshold.
The Concept's classifications
The centrepiece of the Concept is three categories of operation with distinct regulatory regimes: open, specific and certified.
- Open category: the lowest risk operations, staying within defined limitations. Crucially, no operations may take place beyond visual line of sight or above 150m above ground level.
- Specific operation category: authorisation specific to the particular operation would be required.
- Certified category: certification would be required (rather as for existing manned aviation) where there is a higher risk due to the nature of operations or where organisations providing specific services seek certification on a voluntary basis.
European Commission infographics employed at the Riga conference show the same three categories. Both those graphics and the Concept confirm that the intention is that the open category will not be subject to authorisation by aviation regulators, and that enforcement will be ensured by the police.
More significantly the graphics indicate that photography, filming or industrial operations can fall within the open category, and the Concept confirms that some commercial operations can take place without authorisation by aviation regulators. That is not to say that all filming, for instance, will be low risk; equally it may be that the reference to industrial operations contemplates a business conducting UAS operations purely for its own purposes rather than commercial third party services. However the Concept is clear that some urban flights may take place over people not involved in the operation, though not over crowds.
The other two categories suggest UAS "mixing it" with existing aviation activity. The certified class will be treated like existing manned aviation regulation, with aircraft certification, pilot licensing and so on. Some of those measures will also feature in the specific category. These are longer term goals.
What are the limits on the "open" category? What should industry do now?
The interesting, and immediate, question is where the boundaries will be set for operation within the open category. Other than saying that it is the lowest level of risk, that operations must be limited to line of sight and away from reserved areas such as controlled airspace, the Concept is almost silent on what will be permissible.
One of the reasons for this lack of certainty is the extent to which views vary on how to draw those boundaries, and because of the enforcement challenges arising from a fast-expanding sector, particularly when leisure and recreational applications are included. A number of parameters could be employed: location, weight, kinetic energy, operational envelope, application, control system, degree of automation and so on.
The prospect of agreement on "hard" boundaries around the open category across the JARUS membership – who have been working these issues for some time - over the next six months seems remote. Existing variation across EU Member States may suggest that views vary greatly on the balance between allowing exploitation of UAS technology and the perceived disadvantages: if so, the task facing EASA and the Commission in finding consensus is considerable.
For this reason, there are suggestions that the boundaries of the "open" category will be left to Member States, within a framework agreed at EU level. That would have a number of consequences.
If there is a lack of European harmonisation, industry should consider where the balance lies: does complete harmonisation inevitably entail too much delay in reaching agreement, or too much limitation on low risk operations? At what point does the increased (or speedier) opportunity in some territories outweigh the increased cost of having to meet different standards in different territories?
In any event business must engage with the consultation and identify what they consider to be appropriate – or inappropriate - within the open category and why. It is as important for manned aviation to identify the objective threats as it is for the UAS sector to explain how the risks can be managed. The Concept suggests that the framework will be complemented by industry standards, so that there may be a role for self-regulation.
The Concept of Operations holds out the prospect of a liberal regime for low risk operations. It may prove something of a shock to some Member States, and to industry, that commercial UAS operations may take place without aeronautical regulatory oversight. Both France and the UK, which have relatively well-developed structures, presently require some form of permission for any commercial operations. Suppliers of UAS for leisure and recreation are also likely to be affected. The political process will take place against a background of various other efforts among European institutions such as the Parliament's Committees on Transport and Tourism and on Civil Liberties, Justice and Home Affairs. Whether the EASA Concept will achieve sufficient definition and survive that process will depend in part on public and political acceptance as well as a measured debate about the risks entailed.
Given the objective of concrete proposals by the end of the year we do not anticipate much more than about three months for responses to the consultation. We will alert our readers to the consultation when it is posted with details of timing.