The European Aviation Safety Agency has now issued the consultation we referred to in our client alert of 28 July. The Advance Notice of Proposed Amendment does not yet have a detailed rule-making structure in the way of the US NPRM for small UAS operations issued in February, but is broader in scope, contemplating, as flagged in the "Concept of Operations for Drones", three separate categories of UAS operation: open, specific and certified. The A-NPA holds open the prospect of a liberal approach for small and low risk operations, but advocates a more complex structure than flagged in the Concept, by splitting the open category into three weight bands. It also confirms that Member States can be flexible in their application of the new framework.
Responses are due by 25 September 2015 on EASA's online response tool. The plan is for EASA to submit concrete proposals to the Commission by the end of the year. Factors in which users, operators and manufacturers will be interested include the following.
Commercial and Leisure Operations
- Given that the same system may be used for both commercial and leisure purposes, there is in general no distinction between the two categories. Regulation is based on operational parameters and the risk to others, rather than the purpose of the operation. This contrasts with some existing requirements, such as the need in the UK for CAA permission for aerial work, or rules in Italy which are to come into force in September which will not apply to "model" aircraft used for recreational or sporting purposes. Unlike the US proposal, the A-NPA does not feature an express carve-out for model aircraft clubs. For practical purposes, though, the objective seems to be that all leisure operations will take place within the open category, since the burden of preparing an operations manual would be significant for a recreational user.
- The intention is that neither the open or specific categories will be subject to the European aviation regulatory system: open category operations will not require authorisation by aeronautical regulators, and specific operations will be subject to individual Member States' rules. Curiously, this is described as EASA "standardisation".
- The A-NPA does contain detailed proposals for the limitations on open operations. They must be conducted within visual line of sight and are subject to a MTOM of 25kg. There is no suggestion that "direct" line of sight can be extended by use of an observer. The maximum permitted altitude is 150m agl and operations above 50m require a basic level of operator or "pilot" competence. They must keep their distance from people who are not involved in the operation: a “safe” horizontal distance and at least 50m vertically, and never over crowds or more than 12 people. Within those limitations, there is no general restriction on operations in urban areas.
- However, within the open category EASA proposes three weight-based sub-categories: those below 1kg, those from 1 to 4kg and those between 4 and 25kg. Those below 1kg are limited to a maximum altitude of 5om; those over that weight that are to be sold to consumers must carry geofencing and identification capability.
General Product Safety Directive
- Historically, aviation safety has not relied on the European General Product Safety Directive but EASA intends to be involved in drawing up requirements under this Directive to assure the integrity of UAS operating in the open and specific categories. Manufacturers in particular should note that these standards will be developed and all UAS sold to consumers will need to comply with these requirements. They will also need to supply information on operating limits for use in the open category and give consumers a list of dos and don'ts.
- Member States will be able to establish "no drone zones" in which no UAV operations are permitted, and "limited drone zones", where only those which carry identification systems and geofencing capability are permitted. Open category UAVs over 4kg would not be allowed in limited drone zones, so specific authorisation (or full certification) would be needed for those UAVs to operate there. EASA is to promulgate standards for geofencing and identification systems.
- Users will appreciate that the adoption of no drone zones or limited drone zones will affect the ability of UAS service providers to operate over their land. For instance, the owner of a farm located adjacent to a major airport is unlikely to be able to make use of open category agricultural survey services to the same extent as a landowner located many miles from an airport. That is not to say that an operator cannot seek specific authorisation (or indeed certified operation) but formal proposals for those implementing rules are not expected at the end of this year.
- Authorisation for specific operations will be required when an operation poses a significantly greater risk to people on the ground or involves sharing airspace with manned aviation. The latter point should not be taken absolutely literally since manned aircraft operate in low level airspace when flying from private airfields, carrying out infrastructure inspections and so on. However the expectation is that all operations above 150m agl or beyond visual line of sight, where safe separation relies on operational procedures or equipment such as a detect and avoid system, will need specific authorisation.
- Specific operations will, as the name suggests, be subject to a risk assessment based on the specific operation. Unlike operations in the certified category, there is no general requirement for a pilot's licence or for equipment/system certification, but an operations manual must define such factors as training and qualification for operating staff and the measures taken to ensure operational safety.
- The test for differentiation between specific and certified operations is also somewhat nebulous. Operations will need to be certified when the risk rises to a level similar to that of manned aviation or where the specific category does not assure safety. Examples given are where unmanned aircraft are used to transport people or where large cargo UAVs are employed. More detailed implementing rules are to be issued in due course but the technology for such applications is, arguably, some time further off.
Both the European and US proposals tackle, in their different ways, the issue of how to define a low risk class of UAS operations and to limit it in such a way as to enable those operators to fly within a limited envelope and with minimal aeronautical regulatory interference. This should free up the regulators’ capacity to address the more demanding issues of operations beyond line of sight and where the objective is routine integration with manned aviation.
The main differences between the European and US approaches do not lie in the differences such as the weight and altitude thresholds where the use of imperial and metric units create marginal variations – industry will be able to design equipment and develop operational practices that meet both sets of requirements. In any event the US retention of imperial weight measurements is no more anomalous than the European use of an altitude limit in metres when the rest of aviation still uses feet. European manufacturers will also presumably be able to design plenty of equipment that can comply with the 100mph limit even though the EASA proposals do not have a comparable limit. On the other hand US manufacturers will need to consider European geofencing requirements in order to be able to sell to the European market. More significant policy variations include the US requirements for platform registration and markings, and for operators to take, and repeat, an aeronautical knowledge test and to hold an unmanned operator certificate with a small UAS rating. Many European commercial operators will be able to conduct business without holding a comparable licence, so they will need to obtain that certification if seeking to do business in the US. The express limit in the US of one UAV per operator does not appear in the European proposal: where the operation is highly automated, the pilot’s role is limited to that of planning and keeping watch for other aircraft.
Two developments in the US immediately after the A-NPA was published demonstrate how fast-moving the sector is. First, the level of interest in the sector was confirmed when the FAA announced that it had issued one thousand Section 333 exemptions for commercial UAS operations. To put this in context, there are already more than that number of commercial operations formally approved in France alone. But given how much more recently the US started issuing these exemptions in earnest, it shows how much interest there is in that market. While many of these operations will no doubt be able to be carried out within the new rule, we understand exemptions and waivers will still be available for an operation that is outside its scope, so long as the operator can satisfy the FAA that safety is not prejudiced. However the other part of the challenge for regulators was illustrated by the disclosure, about a week later, that pilot sightings of UAVs reported to the FAA that suggest four times as many such events in 2015 than in 2014.
Both European and US regulators have to strike the balance between an appropriate level of public safety while not stifling a new industry with unnecessary bureaucracy. Although the US approach is not yet as far-reaching as the European proposals it is further ahead: the consultation closed in April, and whatever final proposals are put forward by EASA will have to go through the European legislative process. It is hard to avoid the conclusion that the US will already be operating their proposed small UAS rule by the time a pan-European small UAS regime is in place – and the latter will be subject to considerable variation across Europe.