Drone Regulation - UK and EU Changes: June 2018

The current UK drone regime disapplies many ANO requirements for line of sight operations of UAVs less than 20kg ('SUA' in ANO parlance). The main elements of this regime remain in place, including the requirement for permission for commercial operations.  However, the amendment laid before Parliament on 30 May makes a number of changes.  

• The restriction on flight over 400 feet above the surface only applied to small UAS over 7kg. This distinction has been removed.  All SUA are therefore limited to flight below 400 feet, unless CAA permission is obtained.
• The regulation will introduce a distinction between the SUA operator and the remote pilot.  Previously obligations to ensure safety were imposed on the 'person in charge': now obligations will be imposed on both SUA operator and the remote pilot.  The remote pilot is an individual who operates the UAV controls or monitors its automatic systems, whereas the SUA operator is the person with management of the SUA.  The operator may, therefore, be either an individual or a body corporate.  This approach may, however, have unintended consequences for "one man band" operations and model aircraft associations.
• There is a more complex regime for restriction of flight in the vicinity of licensed or military aerodromes depending, for instance, on whether an air traffic services unit is in operation at the aerodrome.  The existing requirement that all SUA over 7kg require permission to operate within an aerodrome traffic zone remains. 
• The new articles 94C and 94D introduce a registration regime for SUA over 250g.  Flight will be prohibited if the operator does not hold a certificate of registration or has not displayed the registration number on the aircraft.  Additionally, the remote pilot must be satisfied that the operator is correctly registered.  
• Similar mechanisms will apply for the issue of an acknowledgement of competency of remote pilots.  No one may fly an SUA over 250g without an acknowledgement of competency.  
• In each case, the CAA has a degree of discretion on the registration process and the training, tests and form of application for an acknowledgment of competency.
• The additional separation requirements in relation to surveillance SUA remain in place under the revised regime, subject to amendment to account for the different roles of SUA operator and remote pilot. 

The new operational restrictions are to come into force on 30 July 2018.  The prohibition on flight without registration or acknowledgement of competency is to come into force on 30 November 2019.  The CAA must be in a position to accept applications for registration or acknowledgement of competency by 1 October 2019.  

The latest UK changes have to be seen in the context of broader developments in Europe.  The introduction of a harmonised European regime has long been dependent on a change to the EASA Basic Regulation to confer EASA jurisdiction over unmanned aircraft below 150kg.  An amendment to the Basic Regulation to achieve this was first published in late 2015 but the legislative process had reached a stalemate by mid-2017.  Political agreement was finally reached in late 2017 and it is notable that, although the changes to the Basic Regulation covered many other aspects of conventional aviation, it was the introduction of a harmonised UAS regime which was promoted by the Parliament when it approved the changes in June.  The changes to the Basic Regulation have now been approved by the Council, and subject to formal publication will enable the Commission to introduce the UAS rules.  

In February 2018 EASA published Opinion Number 01/2018 together with what was then expected to be the final form of the UAS regulations.  These took the form of a draft Commission Regulation for the operation of unmanned aircraft, with an Annex on UAS operations in the open and specific categories ('Part UAS') and a draft Commission Delegated Regulation on making available on the market of unmanned aircraft for use in the open category.  Draft Acceptable Means of Compliance and Guidance Material were also published.  However, in June 2018 revised forms of the regulations were published indicating that there is still discussion between EASA, the Commission and Member States on the detailed rules.  Once the Basic Regulation is formally amended, a consultation process is expected. 

Nevertheless the Commission Regulation is expected to retain the three categories of unmanned aircraft operations which have been familiar for some time now:  open, specific and certified.  Certified operations aircraft will be developed on the basis of amending existing certification processes and specifications for manned aircraft.  Previous iterations of the draft UAS regulations indicated the time scales for amending those specifications and a number of those dates have since passed, but the focus of the current regulation is on open and specific operations with little reference to certified operations.  

The three main elements of the Commission Regulations follow the structure of the 'Prototype' regulation of August 2016 and NPA 2017-05 of May 2017, but there have been considerable changes in the details along the way.  The open category remains limited to daytime, line of sight, operations at low level (in principle below 120m AGL).  The overall weight limit is 25kg but within the open category there are three operational sub-categories and five platform classes many of which impose further weight limits on the platform being used.  Commercial operations may take place within the open category without further regulatory approval, which will see the disappearance of the UK permission for commercial operations. 

Given the objective of the specific category the regime is much less prescriptive than the open category.  The concept of the light unmanned operator's certificate remains as does the approach of flying in accordance with standard scenarios or a specific risk assessment.  However, at the time of writing the standard scenarios have not yet been published.  EASA is clearly looking to industry for proposals in this regard.  

Part of the objective of the open category is to encourage the use of commercially available light UAVs and the Delegated Regulation on "unmanned aircraft intended for use in the 'open' category" comprises a self-contained code for the commercial supply for open category UAS and components.  These may not be made available on the market unless they comply with the relevant product codes which are set out in detail in the appendices to the Delegated Regulation.  

Conclusion

Changes to the UK regulation are at this stage more restrictive than liberalising.  The imposition of the same operational restrictions on all SUA, and not merely those above 7kg, have been flagged for some time.  There has been a degree of political acceptance that registration would be introduced for some time – it was a clear finding of the public dialogue in 2016, although, in the absence of an electronic identification mechanism, the accountability objective may not be fulfilled. 

Nevertheless there are a number of other imminent changes.  The UK Government has promised publication of its Drones Bill in summer 2018 which is expected to introduce additional police powers. Despite its prolonged gestation, the harmonised EU regime looks likely to come into force in the UK before Brexit. The Government has acknowledged the need for further realignment at that stage, although the changes are designed to be consistent with the new EU regime.