Firsts: EU-wide Drone Regulation and UTM for Australia

On 26 June 2018, the European Council adopted new Civil Aviation Regulations (Regulations), which include the first ever European Union (EU)-wide unmanned aircraft[i] (otherwise referred to as remotely piloted aircraft systems (RPAS)) rules.[ii]

The Regulations require RPAS operators to be registered and the aircraft themselves to be individually marked and identified under certain circumstances. It also requires States to digitally store and be able to exchange registration information. The Council’s adoption of these new rules signify a unified move forward from the previously fragmented approach to RPAS regulation across the EU. The introduction of a “risk and performance-based approach to safety”[iii] is also one of the first steps towards realising the European Commission’s “U-space vision” (a set of new services and procedures to support safe, efficient and secure access to airspace for large numbers of unmanned aircraft).[iv]

What are the features of the new regulations?

The official line for the Regulations is that it is intended to bring legal certainty for industry and eliminate rules that could stifle entrepreneurship. It requires unmanned aircraft operators to be registered if their RPAS is capable of transferring more than 80 Joules of kinetic energy upon impact with a person.[v] Operators must also be registered if the RPAS operations present risks to privacy, protection of personal data, security or the environment.[vi] Where there is a requirement for registration, the RPAS concerned must be individually marked and identified.[vii] The rules also require member states to digitally store and be able to access and exchange registration information of drone operators.[viii]

How do the European Regulations compare with Australia’s?

Australian regulations for drones, the Civil Aviation Safety Regulations 1998 (“CASRs”) currently address RPAS or remotely piloted aircraft (RPA) in terms of mass, not kinetic energy, as the European Regulations do. We can put this term “joules of kinetic energy” into a more concrete example.

Consider a DJI Phantom 4 Pro. It weighs 1.38kg and has a maximum speed of 45miles per hour (or 20.1 meters per sec).[ix] It’s kinetic energy in joules is equal to:

1/2 mv2 = ½ x 1.38 x 20.12 = 278.77 Joules

Under the new EU Regulations, the operator of the 1.38kg Phantom 4 Pro may be required to be registered because the RPAS is capable of transferring more than 80 Joules of kinetic energy upon impact with a person.   The energy upon impact of this particular RPAS travelling at a speed of 45 mph is about 3.5 times the threshold for registration under the new rules.

Under Australian Regulations, an “excluded RPA” can be operated without licences or permissions.[x] This category includes RPAS that weigh up to 150kg if they are being operated for the purpose of sport or recreation.[xi] The class also allows for RPAS up to 2kg to be operated commercially if they are operated in “standard operating conditions”.[xii] A DJI Phantom 4 Pro could conceivably be used in the excluded category, or recreationally, under the present Australian rules without registration or anything like it (depending on the kind of operation).

This demonstrates that the new European Regulations are significantly more risk averse in outlook.

European U-space or UAS Traffic Management (UTM)

The European Union and Eurocontrol founded the Single European Sky Traffic Management Research Joint Undertaking (SESAR JU) in 2004.[xiii] SESAR JU’s role was to develop the new generation European air traffic management system. It has so far created a blue print for a range of RPAS projects focusing on the integration of RPAS into the aviation system particularly within the airspace of up to 150 meters above ground level. SESAR JU has identified three foundational services essential to U-space: e-registration, e-identification and geofencing.

The current initiatives envisage e-registration as mandatory for RPAS operators except for those less than 250g. E-identification allows authorities to identify an RPAS, and link it back to the e-registration system, which can be used in support of safety and security requirements, as well as law enforcement.

The European Commission expects to deliver foundational services for the U-space in 2019.

ICAO and UTM

ICAOs function is to provide its member states with recommended practices and standards in support of civil aviation. In respect of RPAS, ICAO anticipates and naturally desires:

routine operation of RPAS throughout the world in a safe, harmonized and seamless manner comparable to that of manned operations: ICAO RPAS Manual (p iv)

Furthermore, it defines its own scope regarding ICAO provisions with an ambitious goal as follows. To:

… in the next five to ten years … facilitate integration of RPAS operating in accordance with instrument flight rules in controlled airspace and at controlled aerodromes.

As is now widely recognised, civilian RPAS are the newest component of the aviation system and one that ICAO is working to integrate.[xiv] Accordingly, ICAO announced a Request for Information on Traffic Management Systems for Unmanned Aircraft Systems in 2017, and recognised the need for:

common agreement on the framework and core boundaries of UTM … [to] facilitate harmonization between UTM systems globally and enable industry, including manufacturers, service providers and end users to grow safely and efficiently without disrupting the existing manned aviation system.[xv]

This reflects the ICAO identified 3 components that are fundamental for a UTM:[xvi] registration system, communications systems, and geofencing-like systems to prevent unmanned aircraft operation in security, restricted or danger areas (like nuclear power plants in France)[xvii]. Such conclusions are clearly echoed by the EU initiatives outlined above.

What about Australia and UTM?

Elon Musk is credited with saying:

When Henry Ford made cheap, reliable cars people said “Nah, what’s wrong with a horse?” That was a huge bet he made, and it worked.

While RPAS have already moved both Australians and those further afield away from limited notions of what aviation can accomplish, further progress may yet be constrained by a lack of a suitable aerial and regulatory architecture permitting RPAS, civil and military aircraft, future hybrid aerospace vehicles and space objects to co-exist (and thereby facilitate future as yet unanticipated ways of moving people, parcels, payloads and pizzas).

That architecture has a name – UTM.  Currently, there is no Australian Government initiative to establish UTM system in Australia.

In 2016 and 2017 the Association of Certified UAV Operators (ACUO) called on the Australian Government to launch such a program in submissions to the Senate Standing Committee on Rural and Regional Affairs and Transport Inquiry into Regulatory requirements that impact on the safe use of Remotely Piloted Aircraft Systems.[xviii]

In evidence given to the Senate Standing Committee on 28 June 2017 Joseph Wheeler on behalf of IALPG suggested that any such program should be within or under the auspices of a suitable whole of Australian government (WOAG) national policy framework for efficient and safe use of airspace (which would take in both manned and unmanned airspace users):

I … urge the committee to make recommendations, to take a whole-of government approach so views across government can inform and add to this challenging debate. This is needed, given the cut-through of issues that drones raise. Air safety is but one of them. There are import controls, security, including national security, privacy, insurance and liability, and international obligations of Australia as a party to the Chicago Convention. There are state, federal and local level enforcement options and questions that need to be addressed and should be addressed in any new fresh rethink or policy framework when we go back to a clean slate.xviv

The Senate is scheduled to release its report on 31 July 2018. We hope that a UTM or U-space initiative is within the Senate’s recommendations, and that the Australian Government will, in response, require CASA to strategically consider a WOAG approach to any roadmap to do with RPAS in Australia going forward.  In our view, for CASA to solely shoulder the burden of advancing a system for integration of RPAS into the Australian aviation system (as it suggests it will in its May 2018 Review of aviation safety regulation of remotely piloted aircraft systems report) by way of a “roadmap”, is neither realistically feasible nor appropriate.

Quite simply, UTM is not just an aviation question, but one involving questions and motivators of a variety of strategic national interests: infrastructure, planning, environment, security, privacy, and also heavily interrelated with other legal, policy and strategic objectives, such as a Australia’s desire to move towards its rightful place as a leader in space capabilities.

Such a discussion needs dialogue with, and direction and guidance from, Government, not just the air safety regulator.

IALPG is hoping to work with ACUO, the most active proponent locally of UTM, and a variety of other necessary stakeholders such as the Australian Federation of Air Pilots, and Civil Air Australia, to name but a few, to progress and evolve the concept of UTM in Australia.

The goal is and should be to creatively engineer its future development to ensure not only air safety, but clear actualisation of a nationally agreed, and structured shift in traffic management in what will no doubt signify a contemporary and important equivalent of the move from horse and carriage to motor vehicle.

 

by Joseph Wheeler and Karina Galliford

 

[i] Unmanned aircraft is the term that the EU Regulations use to describe what is also described in Australian law as Remotely Piloted Aircraft (RPA) or Remotely Piloted Aircraft Systems (RPAS). RPAS is the acronym adopted to refer to unmanned aircraft in this article.

[ii] The Regulations will be signed and published at the end of July 2018 and will enter into force 20 days after publication.

[iii] U-space Blueprint https://www.sesarju.eu/u-space-blueprint

[iv] U-space Blueprint https://www.sesarju.eu/u-space-blueprint.

[v] Annex IX para 4.2(a) of Regulation (EU) 2018/# on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency at <http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf>

[vi] Annex IX para 4.2(b)of Regulation (EU) 2018/# on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency at <http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf>

[vii] Annex IX para 4.3 of Regulation (EU) 2018/# on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency at <http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf>

[viii] Art 56(7) of Regulation (EU) 2018/# on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency at http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf.

[ix] See https://www.dji.com/phantom-4-pro/info.

[x] Regulation 101.252 of the CASR.

[xi] Regulation 101.237(5) of the CASR, and AC-101 section 1.2.

[xii] Regulation 101.237(5) of the CASR, and AC-101 section 1.2.

[xiii] See < https://www.sesarju.eu/index.php/discover-sesar/history>.

[xiv] Manual on Remotely Piloted Aircraft Systems (RPAS), International Civil Aviation Organisation, First Edition, 2015, (v).

[xv] See https://www.icao.int/Meetings/UAS2017/Pages/Request-for-Information.aspx.

[xvi] Manual on Remotely Piloted Aircraft Systems (RPAS), International Civil Aviation Organisation, First Edition, 2015.

[xvii] See incident of Greenpeace intentionally crashing a drone into a French nuclear power plant <http://www.abc.net.au/news/2018-07-03/greenpeace-fly-superman-drone-into-nuclear-facility/9936884>

[xviii] See <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Rural_and_Regional_Affairs_and_Transport/Drones/Submissions>.

xviv See < http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=customrank;page=0;query=Dataset%3AcomSen,estimate%20Decade%3A%222010s%22%20Year%3A%222017%22%20CommitteeName_Phrase%3A%22rural%20and%20regional%20affairs%20and%20transport%20references%20committee%22%20Month%3A%2206%22;rec=4;resCount=Default> Hansard, Senate Rural and Regional Affairs and Transport References Committee, 28 June 2017.

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