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04
sep

Newsletter September 2012: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

UNMANNED AERIAL SYSTEMS: TOWARDS AN EUROPEAN LEGISLATION OR GLOBAL REGULATORY SYSTEM?

 

I.
Unmanned Aerial Systems are an emerging statement of civil aviation. In the last ten years a number of aviation regulatory agencies have taken action to promote safety. One can refer to the Australian CAA who was the first in the world to introduce the concept of UAS operator, which is a legal entity taking responsibility for organising the flight operations.

In the USA this industry is undergoing a major transition. Congress is indeed working on the modernization of the new military UAS market. The FAA should establish by 2015 airspace standards, regulations, procedures, etc.

However in this emerging new market a lot of issues are to be resolved.

The International Civil Aviation Organization (ICAO) continues to develop its long awaited regulatory framework for integration of unmanned aerial vehicles ( UAVs).

The first package of standards for what ICAO calls remotely piloted aircraft systems (RPAS) will become applicable on Nov. 15. “This is the tip of a complete regulatory framework,” Leslie Cary, secretary of ICAO’s unmanned aircraft systems (UAS) study group, told Aviation Week.

The objective of the regulations is to enable a remote operator located in, and licensed by, one country to fly a UAV in the airspace controlled by another country.

The initial set of standards defines an RPAS as “a remotely piloted aircraft plus one or more remote piloting stations, flown by remote pilots who work for an RPAS operator.” The RPAS “has to have a certificate of airworthiness that goes to the aircraft, not the system, but which only goes to the aircraft if it is evaluated as a system,” says Cary. “The RPAS operator must be certificated – akin to an air operator certificate – and the remote pilot has to be licensed.”

ICAO is working on an RPAS guidance manual to be published in early 2014, in advance of the related standards. “This will cover requirements for certificates of airworthiness, RPAS approval, operator certification, and new lines of distinction between airworthiness, maintenance and operations,” Cary says.

In 2016-18, ICAO plans to issue SARPs (standards and recommended practices) and PANs (procedures for air navigation) for aircraft, operators, licensing, sense-and-avoid, communications, and basic air traffic management (ATM) procedures for RPAS. In 2020-23, the SARPs will be refined to add aerodrome requirements and expanded ATM procedures.

What is however the status today?

II.
The Chicago Convention makes a distinction between a State aircraft and civil aircraft, based on the use of the aircraft in question.

Article 3(a) and 3(b) of the Chicago Convention states:
(a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.
(b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

The Chicago Convention lays down a number of services deemed to be services operated by State aircraft, but the Convention as such does not contain a definition State aircraft.

Such implies that States have used their freedom to qualify aircraft as State aircraft pursuant to their domestic legislation and international practices.

Under the Chicago Convention the use of an aircraft determines its status. If an aircraft is not used for the public services it is deemed to be a civil aircraft.

The Chicago Convention and its 18 Annexes will govern the operation of any civil aircraft. The operation of State aircraft is subject to domestic law and international agreements, as well to f.i. NATO arrangements and EUROCONTROL.

In 2001 the Provisional Council, defined state aircraft as follows:
“For ATM purposes and with reference to article 3(b) of the Chicago Convention, only aircraft used in military, customs and police services shall qualify as State Aircraft. Accordingly: Aircraft on a military register, or identified as such within a civil register, shall be considered to be used in military service and hence qualify as State Aircraft; Civil registered aircraft used in military, customs and police service shall qualify as State Aircraft; Civil registered aircraft used by a State for other than military, customs and police service shall not qualify as State Aircraft”.

III. In the EU the following rules apply:
The current legal framework is shortly said
– the 1944 Chicago Convention
– EU Regulation 1592/2002 (EASA basic Regulation) and Regulation 216/2008 to establish and maintain a high uniform level of civil aviation safety in Europe and finally EU Regulation 1149/2011 which updates Regulation 2042/2003 relating to the continuing airworthiness of aircraft, aeronautical parts and products and related administrative procedures. It has to be stressed that these common technical requirements and procedures for ensuring the continuing airworthiness of aircraft and its components apply if the aircraft is either registered or operated in a Member State.

The main actual legislation is the EU legislation on Air Traffic Management as laid down in the Single European Sky regime. The Single European Sky regime promotes the implementation of a common transport policy. This regime is also designed to meet the requirements of all airspace users, being operated of aircraft operator as a General air traffic as mentioned in article 1 § 1 of EC Regulation 549/2004 as amended.

Those rules are not applicable for military use of an UAV. However the Single European Sky regime promotes the implementation of a common transport policy. General air traffic is defined as “all movements of civil aircraft, as well as all movements of State aircraft (including military, customs and police aircraft) when these movements are carried out in conformity with the procedures of ICAO”. Consequently, the SES regime tries to implement Article 3(a) of the Chicago Convention, as it should, as confirmed by the statement that the SES regime is “without prejudice to the rights and duties of Member States under… the Chicago Convention”.

However, the SES regime is not as consequent as it could be as it only excludes “military operations and training” from its scope. Therefore, the question is whether the operation of aircraft, including UAS’s which are used for police, customs and other typically public service purposes, is or is not subject to the provisions of the SES regime.

IV. The typical hazards related to UAS and relevant for aviation safety are:
A crash of an Unmanned Aircraft: on a non-populated ground or at sea this is not a safety risk for any human. The economic damage connected to the loss of the airframe will probably be mitigated through insurance. This is however not regulated through aviation law. One may say that this is a basic difference with “manned” aviation where the protection of people on board is paramount. The lack of people on board does not imply that there is no aviation safety risks.

Are to be considered as typical hazards:
– Collision on the ground on a runway;
– Collision with other aircraft or vehicles during ground operations;
– Mid-Air collisions (MAC): the unmanned vehicle hits a second aircraft in flights;
– A crash of the unmanned aircraft on the surface causing injuries or even fatalities.

Rules for UAS operations at aerodromes can mitigate the risk of collisions during ground operations, while, for the time being, UAS in fact do not need to operate at congested aerodromes.

In Europe the risk of a crash and causing injuries has a very important relevance since the region is very densely populated.

There should be airworthiness approval processes, which ensure that the UAS will potentially crash against the ground only with a defined probability inversely proportional to the severity of the consequences. In other words, the risks for third parties have to be mitigated to an acceptable level and therefore airworthiness rules, processes and approvals are necessary.

Airworthiness rules are therefore the priority, since they apply to UAS of any weight, in visual line of sight (VLOS) from the pilot or beyond (BVLOS) under Visual (VFR) or Instrument Flight Rules (IFR).

V. EASA and UAS
In the European Union the European aviation safety agency is regulating the main issues about aviation safety. EASA has to follow ICAO provisions when existing, which, for UAS was not the case until October 2010. Furthermore recital (1) of Basic Regulation 1108/2009 calls on EASA to look at the safety of the “total aviation system”, which includes not only initial and continuous airworthiness, but also flight crew licensing, air operations, aerodromes, Air Traffic Management (ATM) and Air Navigation Services (ANS). In other words, while the legislation on the “Single European Sky” also refers to safety (but only for ATM/ANS), there can be no doubt that the cornerstone of safety regulation of the total aviation system in the EU is EASA including for UAS.

Military aircraft and military aviation operations and aerodromes are outside the EASA scope, as well as other governmental but non-military operations.

Once can say that military services do properly oversee the safety of their unmanned aviation systems.

Another main issue is that EASA Basic Regulations strives not only for the highest safety but also for uniform safety. We do doubt however that all 27 EU Member States are sufficiently equipped in professional terms.

As already mentioned in our previous newsletter, the present legislation limits EASA competence to civil UAS with a minimum mass of 150 kg. Below this weight, the competence remains domestic. The EU legislator should in the future consider leaving the competence for issuing type certificates to UAS of less than 150 kg to national authorities based on common EASA rules in order to achieve and maintain on the one hand uniform safety.

VI. Airworthiness Policy of EASA
Airworthiness is first EASA main principle

EASA published in August 2009 a policy to guide industry for applying for airworthiness certification for their respective UAS products. This is all based on the principle that the risk for third parties on the ground is broadly proportional to the kinetic energy of the aircraft at the moment it hits the surface. EASA believed that in the few years, once the community will have acquired more experience, it could be possible to publish a Certification Specification for UAS in fact currently planned before the end of 2016.

VII. ICAO Circular 328: towards a global rule?
ICAO published its Circular 328 on Unmanned Aircraft Systems in October 2010. The circular makes some important statements such as for instance :
– UAS are aircraft and therefore their possible accidents and serious incidents have to be investigated by the competent aviation bodies (Annex 13 to the Chicago Convention was already amended for this purpose in 2010);
– UAS can be without pilot (even none from the ground able to modify the trajectory, as is the case of unmanned balloons) or under the responsibility of a “Remote Pilot”. This is also the most relevant;
– As there is no pilot on board, before operating across national borders, the Remote Piloted Aircraft will require a special authorisation on the basis of article 8 of the Chicago Convention;
– The ultimate goal is to allow UAS under General Air Traffic (GAT) rules to fly across non-segregated airspace.
– The aircraft itself and the Remote Pilot Station can be separately certified.
– There is also the issue of the architectures of communication SATCOM a.o. The communications between the remote pilot and the Air Traffic Control Units are necessary in controlled airspace but different architectures can be used.
– Circular 328 is as any other ICAO Circular only a guidance and will not be updated by ICAO. The ICAO Secretariat is planning to publish a more detailed ICAO UAS Manual. Its foreseen to published in early 2013.

A few principles in relation to ATM/ANS are expected to be applied:
Rules of the air as we can find them back in ICAO Annex 2 which are applicable to the remote pilots aircraft.

The remote pilots aircraft will have to use meteorological information, aeronautical charts and information as one can find them back in ICAO annexes 3, 4 and 15.
– The Unmanned aerial systems will use the same technologies as manned aircraft for communications with ATC
– From the Air Traffic Services perspective, including Air Traffic Control, Unmanned Aerial Systems are to be considered as one more airspace user, but basically the same rules will apply.

The Unmanned Aerial Systems are presently creeping from military operations to civil aviation. This point is clear and the aviation safety regulators are fully aware of the benefits stemming from the opening of aviation to the third industrial revolution. Some safety regulators have already published initial sets of rules or at least guidance material.

As said above in 2013 one can await the ICAO UAS Manual and a set of EASA rules for UAS which is foreseen for 2016.

One can see that the aviation regulations will slightly change the forthcoming years and probably in a rather quick pace.

Therefore regulations for today’s airborne UAS should be crafted with an eye toward tomorrow’s technologies. It’s up to the policy-makers to understand how the next generation of UAS and related system will work. We are convinced that the future systems will differ from the one are used today.
For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website: www.fliegerlaw.com, telephone: +32 3 238 77 66

 

Copyright A. Flieger