Why is the EASA final rule for the operation of unmanned aircraft elusive and why time is an important factor for a successful regulation procedure?
On December 18, 2015, the EASA published the Technical Note “Introduction of a regulatory framework for the operation of unmanned aircraft” for the operation of drones or unmanned aircraft in the European airspace. The Technical Note provides feedback for the EASA member states and other European stakeholders in the aviation industry, from manufacturers and operators of unmanned aircraft to the first draft – initiated by the European Commission – of a regulatory framework for the operation of drones (A-NPA 2015-10: “Introduction of a regulatory framework for the operation of drones” 2015 10)
This announcement has motivated us to use the FAA Draft rule for small UAS Notice of Proposed Rule Making (NPRM) to provide a brief regulatory interpretation and a comparison to the FAA regulatory introduction status.
The regulatory principles of EASA and FAA follow a heterogeneous approach, and both of them ignore a number of loopholes that include the aspects of high technology. The FAA prefers the direct and almost nonnegotiable way of implementation. However, the EASA follows a procedural perspective and is determined to involve UAV stakeholders.
As described in the figure above, the FAA will soon publish the final rule for small unmanned systems (UAS) which will replace the interim 333-exemption process. The comment and consultation phase was closed in 2015. Furthermore, the final review of comments is expected very soon. In the meantime, the FAA published the interim final rule for the web-based registration and the marking requirements for small UAV. Also, the registration registry commenced on December 21, 2015.
If you expect a similar progress of drone regulation in the EU, you will be disappointed.
The EASA just finished the pre-consultation phase, publishing the Technical Opinion (see above). These publications connote that the era of special rulemaking procedure will soon end. This special rulemaking procedure only applies if a diverse, innovative, international and high-risk regulation amendment is required (UAV operation in Europe belongs to this category).
Now the regular rule making procedure for drone regulation begins with the draft phase. The figure above also displays the rough time stamps.
The reasons for the delay are comprehensible:
- The FAA NPRM is structured based on weight and technology; however, the EASA includes a more risk-oriented structure. Categorizing the drones into three subcategories takes more time. Put simply, three different aspects would be included into the of drone regulation.
- After an initial risk assessment, the EU decided to go for a special rulemaking procedure. Rather than using the common rulemaking procedure, the EASA added a pre-consultation phase, which deviates from the normal rulemaking procedure and which costs additional time.
- The voice and accountability of the Member States: Before EU/EASA regulation for drones will be published, local drone rules of the Member States already exist; they were implemented for a while. To harmonize EU/EASA drone regulation, a longer consultation phase is required.
To provide a brief overview of the content, the table below highlights the most popular regulatory topics
As long as the final EASA rule is not published, the EASA delegates the interim rule for the operation of unmanned aircraft to the EASA Member States. The Member States included requirements for the operation of unmanned operation into national regulations. Examples: France: DGAC DEVA1207595A, Germany: LBA NFL I 281/13, UK: CAA CAP 722 or recently published by Finland: OPS M1.
Generally, these local rules are equivalent to global rules for drones. Examples of local specifics are as follows:
- The Netherlands requires RPAS licenses for UAV pilots. Pilots of DHAS, an industrial inspection operator, were one of the first owners of RPAS licenses in December 2015.
- The French DGAC requires type certificates for every operated drone on the French territory. Not only the French manufacturerDeltadrone or Parrot, foreign manufacturer such as DJI or Sensefly drones also cannot operate without a type certificate.
- The Spanish Aviation Authority authorizes as well UAV flight schools.
- The German government recently announced that every drone above 500g (1,1lbs) must be registered.
In sum, the successful rule making formula consists of two axioms: Understanding and Adaption. The regulation for drones should be easy to understand, and the requirements should be as close as possible to the industry and market needs. Keeping this formula in mind, the EASA has enough time to include the learnings from the market and industrial changes, because the drone revolution has just begun. By referring to the introductory sentence, time means – in this context – better chances.
Given the current rule making procedure, the following challenges could have a huge impact on the drone regulation and should be taken into account:
- BVLOS operation for MALE applications such as agriculture and wildlife monitoring
- Flight safety risk assessments
- Flight records management
- Occurrence reporting for drone operation
- Integration of drone operation into the controlled airspace
- Bilateral agreements between EU and FAA
- Harmonization at EU level of geographical limitation systems, identification, registration and competence of pilots
- International approach beyond the European barriers: Local operator and global manufacturers will benefit from global standards