The term "prototype" is familiar in aviation, even if modern aircraft manufacturers use it less frequently nowadays to describe the first aircraft of a new type. It is a rather less familiar term in the context of intended regulation.
The publication in August of the European Aviation Safety Agency's "prototype" Commission Regulation on Unmanned Aircraft Operations therefore raised questions as to what the document is and what happens next. The idea clearly is that the text be the basis of a Commission Regulation to govern a discrete aspect of aviation activity, in the same way that Commission Regulations presently cover matters such as initial and continuing airworthiness of manned aircraft, aircraft operations, personnel qualifications and air traffic management. mHelpfully, the accompanying explanatory note sets out the background, in that it was agreed in early 2016 to produce a roadmap to deliver plans for the "operation centric" concept for UAS operations, but in the absence of full clarity on all issues, EASA decided to issue a "prototype" regulation for the open and specific categories.
Unlike the Concept of Operations or the Technical Opinion, the Prototype is, therefore, written in the form of a draft Regulation. While it indicates EASA's present position ahead of plans to publish a formal Notice of Proposed Amendment by the end of 2016, it is made clear that the Prototype does not bind either EASA or the Commission in any way.
The other part of the background is that the Prototype covers all types of UAS whatever their weight. As matters stand, the Basic Regulation only confers jurisdiction on EASA for UAVs weighing over 150 kg. Amendments to the Basic Regulation were published in late 2015, at about the same time as the Commission's Aviation Strategy , which will, among other things, confer complete jurisdiction on EASA to work with the Commission on all classes of unmanned aircraft. If passed, the amendments to the Basic Regulation will, additionally, give greater power to the Commission to implement regulations without the same degree of parliamentary scrutiny as is presently the case. This should streamline the regulatory process for aviation generally as well as for unmanned aviation.
What Will the Proposed Regulation Do?
The main body of the Prototype establishes the three categories (open, specific and certified) for UAS operations which have been familiar since the launch of the "Concept of Operations for Drones" in 2015. The balance of the document concentrates solely on the open and specific categories, but the explanatory note confirms that existing manned aircraft regulations will be amended to incorporate requirements for the certified category of unmanned aircraft, rather than creating standalone certification specifications for unmanned aircraft. It contains a detailed schedule of the regulations to be amended and a timetable for publication of NPAs and decisions. This programme is envisaged to run through until 2019.
The Prototype sets out a number of key principles applicable to UAS operations, such as responsibility for operation and for safety critical services, registration requirements, and equipment fit. There is no difference, in principle, between requirements applicable to commercial and non-commercial operations. It does however appear clear that the smallest sub-category within the open category is only intended to cover toys; there is also provision for Member States to allow existing model flying clubs to continue operating much as they presently do.
Most of the detail is contained in two annexes:
- Annex I, "Part UAS", sets out specific requirements applicable to the open category (in Subpart A), the specific category (in Subpart B) and the proposed Light Unmanned Aircraft Operators' Certificate (LUC) (in Subpart C). Appendices to Annex I contain prescribed forms (in a number of instances yet to be drafted) and detailed product requirements for open category UAS. This category is further divided into four sub-categories, on which we comment further below.
- Operations within the open category are largely intended to be carried out with UAVs that are sold commercially rather than privately built. Much of Annex II, which is entitled "Making Available on the Market", defines obligations of suppliers of light UAS for the open category. This section is intended to provide a self-contained code for the commercial supply of open category UAS, and components therefor, for distribution, consumption or use in the EC. Commercial clients and their lawyers will pay particular attention to Section 2 of Annex II which prescribes detailed obligations of manufacturers, authorised representatives, importers and distributors. In a manner reminiscent of the product liability regime in force in the EU since the 1980s, manufacturers' obligations (with respect to product liability) are effectively imposed upon importers and contributors. Annex II also contains conformity assessment procedures which manufacturers and importers will need to address to ensure that products may lawfully be marketed.
Sub-categories of the Open Category
The open category is further divided into four sub-categories. This differentiation is relatively complex and the Prototype spells it out thoroughly. For instance, Category A0 is weight limited to 250g and height limited to 50m above ground level. Categories A1 to A3 may weigh up to 25kg but, with the exception of Category A3, are still height limited to 50m. Only Class A3 may be used up to 150m above ground level in the open category. Performance limitation equipment must manage the height limitations and Classes A2 and A3 must have geofencing systems. Classes A1 and A2 make use of the Abbreviated Injury Scale scale of injury severity – this was developed in the automotive industry and defines the maximum injury that a given object can inflict. Class A0 must comply with the Toy Safety Directive and therefore meet those requirements on the likelihood of inflicting injury. Pilot competence requirements and age restrictions vary between the four sub-categories; Classes A0 to A2 must be safely controllable without any training courses.
The specific category is addressed in Subpart B of Annex I. In some ways this part of the Prototype is simpler than the wording for the open category. The principle is that operators will either declare compliance with one of the standard scenarios (which, unfortunately, have not yet been published in draft) or will prepare a risk assessment and operate in accordance with an operations manual. The standard scenarios may require a declaration of conformance or specific authorisation: where the scenario so provides an operator can start operations upon submitting the declaration to the competent authority. Alternatively, operators may apply for a Light Unmanned Aircraft Operator's Certificate which will define privileges and operational limitations for that operator.
A specific operator must be registered with the Member State of its place of residence or its principal place of business, and the principle is that once a specific authorisation has been issued by that Member State, operations within that category may be conducted through the EU. We can see this causing concern among more conservative Member States. Operators from outside the EU will need to seek authorisation from each Member State in which operations are to be conducted.
The proposed Regulation will require Member States to co-operate on safety matters. Given the use of other parts of the EU product regulatory regime, this is likely to involve a level of co-operation between EU and Member State regulators that has to date not been necessary for aviation purposes.
No Drone Zones
Much was made in the A-NPA 2015-10 of the ability of Member States to introduce "no drone zones" or "limited drone zones". This power appears in the Prototype in relatively simple terms and enables the Member States' competent authorities to define airspace where UAV operations are not permitted without authorisation or at all, or only if they meet defined technical, environmental, performance or equipment fit specifications. The intent, surely, is that the power should only be used sparingly and with good reason, but no such restriction is spelt out explicitly. This begs the question of the extent to which a Member State may impose widespread restrictions across large parts of its airspace. Not all Member States have liberal rules in place so there may be some who do not relish the prospect of widespread UAV operations in their airspace. Some may consider that other Member States will authorise specific operations in a manner which they do not regard as acceptable. The fact that information must be made available on prohibited, restrictive or special zones does not necessarily address the point that this could, on the face of it, be used as a means to impose separate national regulation and thus impede the desire of harmonisation. Any action of that nature would be subject to normal EU principles of proportionality and non-discrimination.
Implementation and Transition
The Prototype proposes an implementation timetable, which, given that the time when EASA assumes competence for small UAS is itself uncertain, is heavily caveated. The scheme of transition is that economic operators and UAS "placed on the market" must comply with the revised Regulation by about 2019, and that UAVs weighing less than 250g and placed on the market before that date are deemed to be classified as Class A0. They will, therefore inherit a form of grandfather rights.
The current timetable suggests that all UAS will have to be operated in accordance with the revised regulation by 2020 and all operators must, by then, convert existing authorisations into ones as contemplated by the Prototype. By the same date, operational authorisations must be given to recreational operations conducted by clubs or associations with a proven safety record. This should reassure the existing model flying community.
The Prototype contains far more on matters such as general operational requirements and registration than we can cover in this short item. The reference in the title of the prototype regulation to "operations" is something of a misnomer in that substantial elements address platform and system integrity, if not airworthiness in the traditional sense. However "operation centric" the scheme is to be, large elements will depend on meeting detailed product requirements. Given that the Prototype implements a complicated structure, it merits close analysis and is generally well-written. We will have a better picture of the future landscape when remaining aspects such as draft standard scenarios and prescribed forms are published.
The website says that EASA was taking comments on the Prototype at [email protected] until "mid-October" 2016. Given that it is not a formal consultation process, and does not yet contain all intended elements, it makes sense to submit comments in any event. EASA has also invited selected stakeholders to a meeting to address the comments made on the Prototype in Köln on 24 October. Industry participants who wish to find out more and express their views would be well advised to seek an invitation.