After the Riga Declaration and the report of the TRAN Committee of the European Parliament the question is no longer “if” drones will proliferate in the airspace, but “how” we should regulate the several facets of this new phenomenon.
Around 15 years ago the majority of experts argued that the “invasion” of airspace by drones would have started at altitudes normally populated by traditional aircrafts (e.g. so called MALE around 20,000 feet and HALE between 30,000 and 50,000 feet), thus heavily interfering with traditional jet-liners. Reality has decided to go on a different way.
Today, we see thousand of little drones of very few kilos flying well below 500 ft, and often well below 100 ft, under the command of persons who are sometimes totally new to aviation and have no idea of airspace.
At 100 ft, outside the departure and landing path, there is not much aviation activity except for few emergency services. On the contrary, flying so low is extremely dangerous for manned aviation due to the presence of buildings, trees, chimneys, cranes, cables and other objects.
At the other extreme, above flight level (FL) 600 (= 60,000 feet, alias around 20 km), airspace has been traditionally underused due to material as well as economic obstacles in operating “normal” aircrafts at such altitudes; but now several companies are envisaging a growing number of stratospheric balloons, suborbital commercial rocket propelled aircraft as well as solar powered drones, with several metres of wing span, loitering there for weeks and acting as a communication relay.
ICAO still seems concentrated on commercial freight air transport by unmanned aircraft, in the range of altitudes commonly used by traditional jet-liners. In the EU the institutions are becoming increasingly aware that instead the priority is to regulate the safety, security, privacy and insurance of the “new comers” below 500 ft and above FL 600.
The involved operators are in fact entities that very often have no previous aviation experience (a young man treating the drone as a “toy” as well as companies like Google, with more experience in telecommunications and computers than flying aircraft). The challenge to the aviation authorities is thus enormous.
The five principles of the Riga Declaration adopted in March this year highlighted that for this new segment of aviation rules have to be “proportionate” (i.e. it is neither thinkable nor necessary that a surveyor using professionally a small drone should be submerged by the amount of regulatory paperwork that we see in a commercial airline) but they should be developed “now”, since the airspace is already “invaded” by drones and regulators are lagging behind technology.
Furthermore key elements are the public acceptance (which beyond safety, includes at least privacy and security) and the central role of the “operator”, which is not the remote pilot, but the company employing the pilot.
The abovementioned points are emphasized in the draft report of the TRAN Committee of the European Parliament (EP) on the matter, chaired by Jacqueline Foster.
Such a report reminded that today the EU is the world leader for the use of small drones, which highlights the necessity to use the so-called “operation centric” approach (i.e. in order to maintain safety the focus is on the operator, i.e. its organisation and its ability to respect some limitations, not on the reliability of the technical system as in the traditional aviation approach).
The EP welcomes the development of sports and recreational RPAS (Remotely Piloted Aircraft Systems) but calls for a clear, globally harmonised and proportionate regulatory framework in the EU (i.e. below 150 kg).
The Parliament also considers that rules at EU and national level should clearly indicate the provisions applicable to RPAS in relation to the internal market and international commerce (production, sale, purchase, trade and use of RPAS); this means that in what EASA calls the “open” category, there could be no aviation administrative processes, but obligations for the vendors to inform customers on the operational limitations applicable to their drone.
This is in itself a major revolution in the regulatory approach to aviation.
Furthermore the EP believes also that privacy, data protection and any other applicable law, such as criminal, intellectual property, aviation and environmental law, should be specified in a notice for purchasers.
The hard point is now removing the limit of 150 kg for the EASA competence. It is clear that just lowering it to e.g. 30 kg would be ridiculous, since 95% of current operations employ drones of less than 20 kg.
States should therefore make a big step backwards on behalf of the internal market and this is the next major challenge for the EU citizens to overcome. The support obtained so far by the Commission and by the EP is however encouraging.
Photo credit: Sebastian Soldberg
In Europe several countries already promulgated rules on civil drones. As the number of operators is expected to increase by 10 times in the next five years the EU is now focusing on developing a common policy.
2015 could be the year of drones in non-military aviation, marked by the ICAO Manual, the EU Riga Declaration and the American Notice of Proposed Rulemaking (NPRM) issued by the Federal Aviation Administration (FAA).
In February the International Civil Aviation Organisation (ICAO) released the first edition of the “Manual” (Doc 10019) on the international use of drones for civil applications. The basic ideas are that the drone should be airworthy (no wonder), but also that the person flying it from the ground is a pilot: “remote pilot”, but still executing the tasks and be accountable as a pilot.
Furthermore, and this is quite new in the ICAO literature, a chapter in the Manual is devoted to the “operator”, i.e. the entity taking responsibility for the entire cycle of operations: maintenance, qualification of the remote pilot, procedures, authorisations, insurance, privacy and data protection, etc.
In the EU several Member States (MS) already promulgated rules on civil drones, which, below 150 kg, are still a national responsibility. The most important common denominator across all these rules is indeed the central role of the operator: the operator has to apply to the civil aviation authority to obtain permits to fly, even for commercial purposes.
Consequently the holder of the authorisation has privileges (i.e. flying within certain limitations) and responsibilities (e.g. liability).
On 6 March the EU aviation leaders gathered in Riga, invited by the Latvian Presidency, and delivered a declaration which states that rules are “necessary now” and that the operator of a drone is responsible for its use: “When a drone service is delivered, the authorities should be able to act and hold the operator accountable”.
The approach based on regulating the responsibilities and privileges of the operator, already adopted by several MS, is hence expected to become a central pillar of the EU policy for civil drones.
In the MS there are already around 3,000 civil operators of drones legally authorised to fly. This number may increase by 10 times in the next five years, not only based on market forces and technology, but also on clear and proportionate rules on the internal market, without which no business case is credible, while insurers would be very hesitant.
But, after the Second World War, the USA have been the leaders guiding the development of civil aviation around the globe. Is this still true for the drones? On the technology side, no doubts, the Americans have excellent products, which represent a fierce competition to EU manufacturers. But on the regulatory framework, which is also a key enabler for the internal market, is the FAA leading the world? I believe not.
The USA in fact, were the first in the world to introduce (1926) the idea of a “type approval” for the design of an aircraft model, which is then industrially manufactured in several individuals.
This idea proved effective and contributed to make traditional commercial aviation as safe as we know it today. But a type approval requires a lot of technical effort and documents to be submitted to the aviation authority. Is it thinkable for drones of few kg which anyone can buy through the web? Possibly not.
And in fact, through section 333 of the reauthorization act of 2012, the USA legislator obliged the FAA to grant “exceptions” for small unmanned aircraft, including their possible commercial use.
The approach is hence diverging across the Atlantic: the FAA has been extremely cautious, since, due to the novelty of drones, they were not sure about the technical approach to be followed.
Their delay has forced the political authorities to act and presently the FAA is granting case-by-case “exceptions”, without any general rule yet promulgated. Again no wonder: this is since centuries the approach of the “common law” still greatly influencing the American culture.
In the EU, on the contrary, we are heavily biased by the Illuminist top-down approach and therefore we started from the operator and its responsibilities and privileges, even if technical standards were not yet mature…. and we are ahead of the USA for the regulation of civil drones.
Unable to further resist the political pressures, the FAA on last 23 February has published a NPRM on “small UAS” to allow routine use of certain small unmanned aircraft systems (UAS) in the USA aviation system, while maintaining flexibility to accommodate future technological innovations.
The FAA proposal offers safety rules for small UAS (under 55 pounds, which around 25 kg) conducting non-recreational operations (commercial or non-commercial, but always professional). The rule would limit flights to daylight and visual-line-of-sight operations (VLOS).
It also addresses height restrictions, operator certification, optional use of a visual observer, aircraft registration and marking, and operational limits.
This proposed rule is for some aspects similar to the European approach, since it finally accepts that for small UAS formal airworthiness certification may not be necessary, while operations could be limited to VLOS in day light conditions, below 150 meters of altitude and below a given speed.
But still it uses the term “operator” and the term “pilot” as equivalent, while in Europe the distinction is clear and the former is responsible not only for safety, but also for security, liability, insurance, privacy and data protection.
Anyway the FAA NPRM is a good step in the right direction: “rules now, even if technology is not standardised”. But still the semantics and the cultural approach (i.e. no sufficient attention to the “organisations”) are not fully aligned with ICAO and EU.
At worldwide level the Joint Authorities for Rulemaking on Unmanned Systems (JARUS) are also applying the ICAO and EU approach and presently developing a set of requirements (JARUS-ORG) for the organisations, including operators, involved in civil operations of drones.
In conclusion the expansion of the civil market for drones is unavoidable and will also bring benefits to society in terms of new services and new jobs.
In this context ICAO, JARUS and Europe are going towards a comprehensive regulatory framework whose central pillar is the operator and they have jointly the possibility of influencing the rest of the world. The FAA is, at least for moment lagging a little bit behind.