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New EU Drone Regulations: the Implementing and Delegated Regulation

 
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New EU Drone Regulations: the Implementing and Delegated Regulation

Birgitta Van Itterbeek, Annick Sleeckx

On 11 September 2018 the new Basic Regulation on aviation safety rules came into force including for the first time a new section for drones (Unmanned aircraft or UAS). Until recently all UAS weighing less than 150 kg were regulated at national level, creating disparate rules throughout the EU member states. Now competence for all drones, including small drones (less than 150 kg) has been transferred to the EU. The Basic Regulation only set out basic rules. The European Commission has now adopted respectively on 12 March 2019 and 24 May 2019 a Delegated and an Implementing Regulation. The Delegated Regulation[1] (“DR”) harmonizes the technical requirements of the UAS while the Implementing Regulation[2] (“IR”) sets out the rules and procedures for the operation of the UAS.  These regulations will come into force 1  July 2019, and shall apply from 1 July 2020 onwards. Member States have until 1 July 2021 to determine the UAS geographical zones. Read more here. (Read here for more information on the Belgian Drone Legislation)

Why need for EU drone Regulations

Drones are a rapidly-developing sector. It is expected that within 20 years the European drone sector will directly employ more than 100,000 people and have an economic impact exceeding €10 billion per year, mainly in services.

Drones can by definition cross the borders and without common rules with respect to product standards and the operations, cross border operations of drones are a real challenge.

The strategy of the EU is the safe and secure integration of drones into the European aviation system from 2019 onwards through the development of:

  1. A common safety regulatory frame work, proportionate to risks for drones of all classes. This is to enable the creation of a single European market for civil drones applications;
  2. The necessary enabling technologies
  3. Measures to ensure the protection of citizens; and
  4. Measures to support market development and European industries

Both regulations are risk-based and take into account the principles of proportionality as well as measures to mitigate the risks of drones operations in open, specific and certified categories.

Basic Regulation

The Basic Regulation conferred powers on the Commission to adopt implementing regulations and delegated regulations (Chapter III, Section VII). In its annex IX the Basic Regulation contains essential requirements for drones – the starting point for design, production, maintenance and operation, generic requirements for all drones and more detailed requirements for classes subject to certification or declaration.

Implementing Regulation

The implementing regulation sets out the rules for the operation of UAS. It creates three categories: open, specific and certified. The categories correspond with a higher or lower level of required skills and official qualifications of the remote pilot.

The open categories are in principle low risk drone operations. They do not require prior authorization by the competent authorities; nor a declaration by the drone operator before the operation takes place. But if the UAS weighs more than 250 grams, the operator will need to be registered.

The requirements refer to line of sight operations, maximum platform weight of 25 kg, maximum altitude of 120 m above ground level (except where flying over a fixed obstacle), limited flight over uninvolved people and meet criteria of classes C0-C4 as described extensively in the Annex to the DR. It is prohibited for this category of UAS operation to transport dangerous goods or to drop any material. The remote pilot must have the ability to take control at all times. So autonomous operations are excluded.

The specific category  is the category of drone operations which does not fall into the scope of the open category: if one of the requirements of the open category is not fulfilled, the operation will be placed into the specific Category. The operator of the UAS considering the risk involved, may require an authorization by the competent authority before the operation takes place, except for standard scenarios for which a declaration by the drone operator is sufficient or when the operator holds a light drone operator certificate (“LUC”) with privileges.

A certified category means a category of drone operation which requires the certification of the drone and its operator as well as licensing of the flight crew. This is the most futuristic of the categories, as it applies to UAS with dimensions of more than 3 meters, or if it transports dangerous goods or people. The category also applies to UAS operations that would generally fall under the specific category, but which are deemed to be too dangerous by the competent authority if not certified. Pursuant to current Belgian law a UAS is not allowed to transport goods or passengers.

The IR states how, if applicable under a specific or certified operation, an operational risk assessment must be conducted taking into account several aspects of the operation such as the nature of the activities, the environment, the class of airspace, the complexity of the operation, the technical features of the UAS as well as the competence of the pilot conducting the operation.

Registration

At present only drones weighing more than 1 kg must be registered in Belgium. This regime will be completely changed. From June 2020 onwards, a substantial amount of operators will need to register themselves if they operate drones with a maximum take-off mass of more than 250 g or if their drones are equipped with a sensors able to capture personal data. Each such operator will therefore have its own individual identification number. The operator will then have to upload this number onto the identification add-on of its drone, as further described under the DR, and attach their registration number  physically on their UAS. Furthermore, the UAS whose design is subject to certification, because of the higher risk they pose, will need to be registered as well.

U-Space

The IR tries to implement some of the ‘U-Space’ system notions. U-space is the conglomerate of services and functions needed to integrate drones into the aviation system; the implementing regulation therefore at present includes requirements to the registration, geo-awareness and remote identification of the unmanned aircraft systems.

Delegated Regulation

De delegated regulation sets out the manufacturing requirements for drones, related to the design, production and maintenance. The DR has one small chapter on the UAS operated in the certified and specific categories, but the main focus are the UAS to be operated in the open category, meaning low risk drones. The Annex to the DR divides the open category further into 5 classes: classes C0 to C4. The class to which the UAS belongs needs to be made visible through a class identification label on the UA itself.

(Source: EASA Opinion No 01/2018)[3]

Identification

The DR and its Annex impose a direct remote identification obligation on UAS which fall under the open category, except the lowest C0 Class. This means that most UAS have to emit in real time, during the whole duration of the flight among others the UAS operator Registration number, its geographical position, its route course and if possible the position of the remote pilot or the take off point. The DR prescribes that the manufacturer of the UAS encloses with its products a user’s manual providing the instructions in order to be able to comply with this identification emission rule.

As the DR deals with the product requirements, it sets out obligations for the different types of economic operators producing, importing and distributing these products. It further prescribes how Member States should monitor these technical requirements, by the establishment of conformity assessment bodies and notifying authorities. In Belgium, the general body for UAS Registration and the control of technical requirements is all centered in the DGLV/BCAA.

Implementation

The IR and DR will apply from 1 July 2020 onwards. However, there will be a two year transition period thereafter  to suspend certain open category requirements. The Regulations will then be fully applicable by 2022. Naturally, the classifications and provisions contained in the Belgian “Drone KB” will have to be amended after the new Regulations as they are directly binding and will replace a great deal of this Belgian Royal Legislative Act.[4]

Issues

Member states remain competent to create no/restricted drone zones.

Under the IR, the Member States remain competent to create no-drone or restricted drone zones. In Belgium, the competent air traffic control authority has issued an interactive map, which is also available in an app. The application shows the different areas where commercial drone use is not allowed (class 2 and 1b) or is only allowed with a specific permission/derogation (class 1a). where the drone user has an overview on the different zones and can act accordingly.

(Source: https://www.skeyes.be/en/services/droneguidebe/).

 

 

[1] Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems, OJ L 152, 11.6.2019, p. 1–40

[2] Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft, OJ L 152, 11.6.2019, p. 45–71

[3]European Aviation Safety Agency Opinion (“EASA”) No 01/2018, “Introduction of a regulatory framework for the operation of unmanned aircraft systems in the ‘open’ and ‘specific’ categories”, p. 21, See < https://rpas-regulations.com/wp-content/uploads/2018/02/EASA_EU_Opinion-No-01-2018_180207.pdf> (last visited 19/06/20219))

[4] KB 10 APRIL 2016 met betrekking tot het gebruik van op afstand bestuurde luchtvaartuigen in het Belgisch luchtruim, BS 15 april 2016, 25.944

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