One of the fastest-developing, awe-inspiring and truly promising pieces of technology today are Unmanned Aircraft Systems (UAS), or as the public frequently refers to them – drones or unmanned aircraft, for short.
This article will first have a brief look at the most recent developments in the UAS commercialization, and then analyze the evolution of regulations over this area in the US, EU, and Ukraine. It does not feature a detailed legal analysis of the current and proposed regulatory framework, rather, attempts to draw a roadmap of where it is now heading and outline most important changes. UAS should be understood as a system of two key components – the unmanned aircraft (UA) and the equipment used to control the UA.
The sector of UAS has a great potential to save lives, increase safety, produce new jobs and boost economy growth. And 2016 is a great year for the future of commercial UAS.
Only few months earlier, Deutsche Post DHL recently completed tests for business-to-customer and customer-to-customer parcel delivery using a ‘parcelcopter’ (a third-generation transport UAS) in a defined area in the Bavarian Alps. This is the first time ever that a parcel delivery service has directly integrated a drone logistically into its delivery chain for end-customer delivery. Amazon is breathing down Deutsche Post DHL’s neck with its Amazon Prime Air project that will feature special characteristics of high transport velocity and an anti-collision system, delivering parcels up to 2.5 kilograms.
Delivery, nevertheless, is only one of the areas that UAS are set to occupy. Another, and by far more important, area where drones will come to our aid is medicine and emergency response. In July of 2016, Zipline International, a Silicon-valley start-up, began flying its drones in Rwanda under a partnership with the government. The Zipline UAS now ferry supplies to hospitals and health centers across the East African nation, becoming the world’s first drone delivery system to operate at a national scale. With Zipline’s system, hospitals are able to order blood or medicine via text message, and have it delivered within minutes by one of the company’s custom-built drones, eliminating the need for onboard insulation or refrigeration. The Netherlands are testing a drone ambulance system since 2014, which features a defibrillator that can be used by bystanders. It will fly to a patient suffering heart attack within minutes, even if he or she is indoors, saving precious time before the medics arrive.
Drones will be our best friends in aerial indoor and outdoor inspections. Earlier in 2016, Lufthansa AG made plans for cooperation between Lufthansa Aerial Services and DJI (the leading provider of drone technology from China) to provide specialized drones for various inspection, measuring and monitoring purposes. And these are by no means limits of how we will use drones in the future.
That being said, 2016 is an important milestone not only because of these great technological and commercial developments. After all, UAS have been in use with the military for quite some time now, and the commercialization of this area using military developments has been happening over the past several years.
What is remarkable is that up until this year, legal developments have been trailing behind the UAS revolution, desperately trying to catch up with it. For instance, in 2012 the US Federal Aviation Administration (FAA) published the Modernization and Reform Act, banning the commercial operation of UAS until the agency establishes regulations to allow the use of commercial drones. These limitations have been gradually reduced over the course of several years by different states, but no definitive regulation at a federal level had been published.
In Europe, the European Aviation Safety Agency (EASA) started active work in this area only in 2015. Following the publication of an Advance-NPA 2015-10 (Advance Notice of Proposed Amendment) in July 2015, the Agency published a Technical Opinion (Opinion of a technical nature) in December 2015. The later is an important document to note as it established three categories with different safety requirements, proportionate to the risk, within which the regulatory framework is divided: open, specific, and certified.
The ‘Open’ category has a low risk factor: no authorization is required to operate UAS, as long as forbidden or restricted drone zones are respected. ‘Specific’ category carries a medium risk of operations: authorization is required by a competent national aviation authority (NAA), following a risk assessment performed by the operator. For certain lower risk scenarios, a simple declaration sent by the operator to the NAA, will be sufficient to start the operation. Finally, the ‘certified’ category includes high risk activities, where requirements are comparable to those for manned aviation.
And now, starting this Monday, world’s leading aviation regulatory bodies will start a comeback, and, for the first time ever, catch up and provide for future technology changes.
On August 29, the new Small Unmanned Aircraft Systems Rule, Part 107, will become effective in the US. The compressive rulebook regarding commercial drone operations was published on 21 June, and features a massive, 624-page document, co-developed by the FAA and the Department of Transportation. Just to mention some of the most important rules: commercial drones weighing up to 25 kg (55 pounds) will be able to fly during daylight hours and lower than 400 feet in the air, or higher if within 400 feet of a taller building or tower. The aircraft must remain within sight of the operator or an observer who is in communication with the operator. The operators must be at least 16 years old and pass an aeronautics test every 24 months for a certificate and a background check by the Transportation Security Administration. Transportation Secretary Anthony Foxx called the rule a "major milestone" and had been quoted saying “we wanted to make sure we’re striking the right balance between innovation and safety."
Seven days earlier than the Small UAS Rules becomes effective, EASA published a Prototype Commission Regulation on Unmanned Aircraft Operations and its Explanatory Note. The 72-page Prototype regulation covers ‘open’ and ‘specific’ categories defined in the Technical Opinion, and proposes actual rules providing the necessary clarity, notably on what are the responsibilities of the EU Member States and what is the flexibility offered to them. The document relates to all UAV operations within the Single European Sky airspace – both recreational and commercial. It does not regulate ‘state’ operations (e.g. police, military, customs, firefighting, etc.) This is contrary to the FAA Rules, which cover only commercial, non-hobbyist UAS operations.
Reading the text of the Prototype regulation, one can see that it is very operation centric, risk- and performance-based. It means that the future requirements are as far as possible expressed in terms of objectives, not only based on drone specifications. Such approach definitely deserves appraisal, as even very small drones (or “nano” drones) have the potential to be used in areas with a very high risk factor, for instance, inspections of oil reservoirs. On the contrary, relatively heavy drones might be easy-to-use and engaged in such activities as simple recreational imagery with bulky high-definition video and image recording hardware.
Apart from many comprehensive rules formulated in the prototype regulations, of particular interest are rules concerning technical registration, electronic identification and geofencing. The draft document divides the operations of UAS in the ‘open’ category into 4 subcategories: A0, A1, A2, and A3. A0 is considered to be operation of UAS posing a negligible risk of severe injury to people on the ground or damage to manned aircraft, and requiring neither specific remote pilot competence nor age limitations; and A3 is operation posing a higher risk of severe injuries to people on the ground or damage to manned aircraft and operated by registered operators with higher competence.
The prototype regulation requires that all UAS operating in subcategory A1 and beyond must be registered with a competent authority, display the registration marks on the body of the UA, and be equipped with (a) electronic identification means, and (b) geofencing function. The first piece of equipment ensures the capability to identify a UA in flight without direct physical access to that aircraft for a select audience (air traffic control, manned aircraft, other UAS etc.) Similar devices are being used for a long time on manned military and commercial aircraft. The ‘geofencing’, however, is a very interesting novelty. ‘Geofencing’ is an automatic function designed to limit the access of the UA to airspace areas or volumes provided as geographical limitations based on the UA position and navigation data. In other words, if, for example, a UA tries to enter a 5-mile restricted area around an airport, it will hit an ‘invisible wall’, and not be able to proceed further. Undoubtedly, ‘geofencing’ has a great potential to boost safety and privacy, but has several major drawbacks.
Firstly, there is no guarantee that authorities will not ‘geofence’ large territories that are perfectly safe to fly within. Secondly, such technology might carry a risk in itself if it will interfere with the equipment of civil aircraft. Lastly, setting up of such system is a very costly endeavor, and there is a high chance that the competent authority will transfer these costs to UAS operators in terms of registration and other administrative costs. This, together with the cost of manufacturing a UAS with a built-in identification and geofencing system, can have a serious detrimental effect on the affordability of UAS to the public. It will be interesting to see if and how this issue will be addressed in the course of adopting the final text of the regulation.
Turning now to the regulatory situation in Ukraine, UAS are a clear case of a legal lacuna. The main aviation law of Ukraine – the Air Code – defines the UA as a type of an aircraft. Thus, technically a drone has a legal status similar to a commercial Boeing, except that an UA with up to 20 kg takeoff mass does not need to be registered. In terms of actually flying the UA, Article 29 of the Air Code clearly establishes that the use of Ukrainian airspace is strictly permission-based. Neither the 2002 "Regulation on the use of airspace Ukraine", nor the 2011 "Rules on the flight of civil aircraft in the airspace of Ukraine" provide any exceptions for UAS. What this means is that the owner of a 250-gram entry-level drone with an altitude limitation of below 100 meters, at least formally, has to file tons of paperwork before flying his small UA around some far-off field.
Ukraine, with its vast territory, has everything to become one of the top-users of UAS in the near future.
The State Aviation Administration of Ukraine (SAAU) adopts a reaction-based approach and lags significantly behind the industry, despite some of its efforts. Notably, in May 2016 SAAU published a “Draft on provisions and procedures ensuring the safety of general aviation aircraft, sports, amateur and unmanned aircraft”. The relatively brief text is more of a statement of intentions rather than a comprehensive regulatory framework, and frequently refers to the Prototype regulation by EASA and the ICAO Manual on Remotely Piloted Aircraft Systems. While the SAAU draft poses more questions than answers, three issues stand out.
One, the name of the draft document clearly states that it is concerned with the safety of aircraft, completely disregarding the safety of persons and property on the ground – this was one the key priorities of EASA and FAA when drafting their texts.
Two, the draft proposes to classify the UAS based on operational weight, operational radius, controlling method and the amount of energy generated by hitting an obstacle. This is exactly opposite to the operation-centric classification, proposed by EASA. The troubles arising using the SAAU method have been outlined.
Three, the SAAU draft proposes that all UAS operations within populated areas should be subject to approval by SAAU and local government. Should this provision be approved, the amount of hardships to get such permissions and the room for corruption can only be imagined.
Ukraine, with its vast territory, has everything to become one of the top-users of UAS in the near future. In deliveries, UAS might be the more economical solution to reach distant towns and scarcely populated areas with small loads of mail and parcels. In medicine, UAS already have the potential to deliver medicine and first aid to villages where there is no doctor, and the ambulance takes hours to arrive. In aerial imagery, companies operating UAS are already scanning the endless Ukrainian fields to boost crop production. As the technology becomes cheaper and more available to companies and private persons, Ukraine needs a operation centric, risk- and performance-based, and proportionate regulatory framework. There is no need to close-off entire cities for UAS and require training for every UAS operator. Given Ukraine’s low air traffic volumes, within a vast majority of Ukrainian airspace UAS might operate without any risk to other aircraft.
Although Ukraine trails on UAS regulation development, not being the first has its upsides – we can draw on the US and EU experience, and extract the best of each system.