EASA’s draft on Drone Rules: slower process & shorter regulations = Better?

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Sometimes the slow gestation of regulatory rules may result in the better articulation of policy than fast, and a short rule may state more appropriate standards than a lengthy set. The European Safety Agency in July issued its draft regulatory framework for UAS operation (or en français- “Vers une réglementation des drones civils en Europe”).

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The press has been full of complaints about the slowness of the FAA’s issuance of its NPRM on civil drone (or Unmanned Aerial System [UAS]) operations. EASA just issued an Advanced Notice of Proposed Amendment (A-NPA). The comments are due on September 15, 2015. The FAA issued a draft Part 107 back on February 15, 2015 and that is a detailed 195 page document. The EASA A-NPA 2015-10, which took almost six months longer to draft, is a mere 45 pages.

The European version is simply summarized as follows:

‘Open’ category (low risk): safety is ensured through operational limitations, compliance with industry standards, requirements on certain functionalities, and a minimum set of operational rules. Enforcement shall be ensured by the police.

‘Specific operation’ category (medium risk): authorisation by National Aviation Authorities (NAAs), possibly assisted by a Qualified Entity (QE) following a risk assessment performed by the operator. A manual of operations shall list the risk mitigation measures.

‘Certified’ category (higher risk): requirements comparable to manned aviation requirements. Oversight by NAAs (issue of licences and approval of maintenance, operations, training, Air Traffic Management (ATM)/Air Navigation Services (ANS) and aerodrome organisations) and by EASA (design and approval of foreign organisations).

[The UK version of English results in different spelling.]

It is clear that the EASA was driven by a risk analysis principle. The A-NPA has a section entitled “Industrial Context and Trends” by recognizing how difficult it will be for a regulator to remain current with the UAS industry in saying:

“…the drone industry is extremely innovative and the risk that regulations are superseded by new developments will be always present. Innovation is both in terms of type of machines and type of operations.”

The EASA document then walks through a sequence of analyses (headings and some pertinent text):

  • Operation-centric
  • Risk-based
  • Proportionate
  • Progressive
    • The categories have been established with the idea that a start-up company would start to operate in the ‘open’ category with small and simple drones in operating conditions that pose very low risk, e.g. VLOS and very low-altitude operations, and as its experience increases to move more progressively to the ‘specific’ and ‘certified’ category with more complex operations, e.g. heavier and more complex drones and Beyond Visual Line of Sight (BVLOS) operations.
  •  Performance-based
    • Objective-based rule: only the objective is defined, not the means to achieve it.
    • Process-based rule: specific organisational requirements or processes are prescribed as enablers of a desired outcome.
    • Performance-standard-based rule: a set of performance metrics (quantitative and qualitative) is defined and based on it; it is determined whether a system is operating according to expectations.

Another aspect of the A-NPA that is unique to the EU is that EASA (although it has grander aspirations) has to depend on the National Aviation Authorities to implement and enforce some of these rules. In recognition of  the difficulty of enforcement, the draft defers on the specifics of enforcement standards; here is how EASA finesses this issue:

“Over time, manned aviation has developed its own oversight and law enforcement mechanisms, driven especially by the NAAs. Drone operations will pose additional enforcement challenges to authorities. Experience needs to be gained as to how existing rules on safety, data protection and privacy, security and environmental protection, or liability/insurance shall be implemented.  Guidelines are often not available, and those who are engaged in drone operations have low awareness of the applicable rules.

Rules have to be enforced by local forces. As the police and other law enforcement agencies are expected to play a key role in the oversight of the ‘open’ category, they should be provided with an information manual and a training syllabus after coordination with the relevant national authorities.”

This is an Advanced NPA and it requests comments on the specifics on some of the rules.

  • For example, as to the Open Category, EASA lists 17 specific proposals which might define the limitations on these small UASs.
  • The draft also suggests that the approval of the “specific operation” category may be dependent on a case-by-case safety risk analysis resulting in an operations manual with risk mitigation requirements.
  • The largest class of drones, “certified,” may involve prior review of the vehicle of its airworthiness, or so it is suggested. The beyond light of sight operations is mentioned and EASA poses the possible option of special certification for a Remote Operator.

Thus, the brevity of the A-NPA may be attributable to the fact that many of the specifics have not yet been defined, but it is clear that the risk analysis approach will likely lead to a final rule, which applies standards based on the risks of a specific operation.

 

ADVANCED NOTICE OF PROPOSED AMENDMENT: Introduction of a regulatory framework for the operation of drones

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