Draft Regulation for unmanned aircraft systemsin the ‘open’ and ‘specific’ categories

DRAFT COMMISSION REGULATION (EU) …/…

of […]

laying down rules as regards unmanned aircraft operations

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to Regulation (EU) …/… of the European Parliament and of the Council of …on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Regulation (EC) No 216/2008([1]), and in particular Articles 45, 46, 47 and 51 thereof,

Having regard to Regulation (EU) No 376/2014 of the European Parliament and of the Council of
3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No1321/2007 and (EC) No 1330/2007([2]),

Having regard to Regulation (EU) No 996/2010 of the European Parliament and of the Council of
3 April 2014 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC,

Whereas:

(1)Pursuant to Regulation (EU) …/… (hereinafter referred to as the ‘Basic Regulation’), the Commission, assisted by the European Aviation Safety Agency (EASA), is empowered to adopt the necessary Commission acts for the design, production, maintenance and operation of unmanned aircraft systems(UAS) and their engines, propellers, parts, non-installed equipment and equipment to control them remotely.

(2)Measures taken in the framework of this Regulation should be proportionate to the nature and risk of the type of unmanned aircraft operation and should in particular take due account of the following: type of operation and whether the operation is open to members of the public; the extent to which other air traffic or persons and property on the ground could be endangered by the operation; the type of airspace used and territory overflown; the complexity and performance of the aircraft involved; the type, scale, and complexity of the operation or activity, including, where relevant, the size and type of the traffic handled by the responsible organisation or person.

(3)The risk of operating an unmanned aircraft varies as a function of the characteristics of the unmanned aircraft and the type of operation.Therefore, different rules should apply to different categories taking into account the principles of proportionality and progressivity, and that rules should be based on risk assessment and be performancebased.

(4)The higher risk operations of unmanned aircraftshould be regulated by similar rules as for manned aircraft, which include the certification of the aircraft. The introduction of the regulatory framework to accommodate such ‘certified’ operationsshould therefore be the subject of a dedicated rulemaking processamending the existing regulations applicable to manned aircraft.

(5)The lower risk operations, subject to the present Regulation,shall be regulated based on the nature and risk of the activity using an operationcentric concept. For these operations, which are subdivided into two categories (the ‘open’ and the ‘specific’ category), proportionate requirements should be applicable and adapted to the level of risks inherent to the category of operation.

(6)Regulation (EC) No 765/2008([3])provides a framework for the marketsurveillance of products to ensure that those products fulfilrequirements providing a high level of protection of publicinterests, such as health and safety in general, health and safety inthe workplace, the protection of consumers, protection of theenvironment, and security.This Regulation also provides a framework for controls onproducts from third countries and lays down the general principles of the CE marking.

(7)Decision No 768/2008/EC[4] provides, in the form of reference provisions,definitions and general obligations for economic operatorsand a range of conformity assessment procedures fromwhich the legislator can select as appropriate. It also laysdown rules for CE marking. Furthermore, referenceprovisions are provided as regardsthe requirements forconformity assessment bodies to be notified to theCommission as competent to carry out the relevantconformity assessment procedures and as regards thenotification procedures. In addition, this Decision includesreference provisions concerning procedures for dealingwith products presenting a risk in order to ensure the safetyof the market place.

(8)In order to ensure a smooth transition, appropriate transitional measures should be provided. In particular it is necessary to provide sufficient time for the Stakeholders and Member State to adapt to the new regulatory framework, to allow Member States the time to issue authorizations and certificates introduced by this regulation and to recognize under certain conditions the validity of authorizations and certificates issued before this regulation applies.

(9)Taking into account the good safety record achieved, dedicated provisions for recreational flight activities conducted in the framework of model clubs and associations should be also provided, in order to ensure a level playing field for all UAS operators.

(10)The Basic Regulation includes provisions on accreditation of qualified entities that may be granted a privilege to issue, revoke, and suspend certificates on behalf of the Agency or competent authority.

(11)Taking into account the plan of the European Commission to establish a system for Unmanned Traffic Management (U-Space), this regulation contains provisions for 3 elements of U-Space namely registration, geofencing and e-identification

(12)The measures provided for in this Regulation take account of Opinion No …/… issued by EASA in accordance with Article … of the Basic Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

  1. This Regulation lays down:

(a)rules for regulating an operation-centric and risk based concept for the operation of unmanned aircraftsystems (UAS), and more specifically in the open and specific categories, within the airspace over the territory where the treaties of European Union and of the Functioning of European Union apply;

(b)technical requirements and administrative procedures for the design, production and maintenance of UASin the open and specific categories within the European Union;

(c)technical requirements and administrative procedures for the implementation of the concepts of registration, electronic identification, and geofencing;

(d)requirements for subcategories in the open category;

(e)conditions to issue a declaration or to obtain an authorisation,as appropriate, in the specific category;

(f)requirements for the introduction of a concept of standard scenarios in the specific category;

(g)conditions to obtain an optional light UAS operator certificate (LUC), with associated privileges;

(h)conditions to obtain a certificate of competence for remote pilots; and

(i)conditions for the making available on the market of UAS intended to be used for operations in the open category, as well as requirements for market surveillance relating to the marketing of those UAS in the Union. Those conditions shall constitute Union harmonisation legislation within the meaning of Regulation (EC) No765/2008 and of Decision No 768/2008/EC.

  1. Indoor operations are not subject to this Regulation.
  2. Operations in the certified category are not subject to this Regulation.

Article 2

Definitions[DRN1]

  1. For the purpose of this Regulation, the definitions of Article 3 of the Basic Regulation, of Article 2 of Regulation (EC) No 765/2008, and of Article R1 of Annex I toDecision No768/2008/EC shall apply.
  1. For the purpose of this Regulation, the following definitions apply in addition:

(a)‘acceptable means of compliance’ (AMC) means non-binding standards adopted by EASAwhich may be used by persons and organisations to demonstrate compliance with the Basic Regulation and its Commission acts;

(b)‘automatic operation’ means anoperation following pre-programmed instructions that the UAS executes while the remote pilot is able to intervene at any time;

(c)‘autonomous operation’ means an operation during which an unmanned aircraft is operating without remote pilot intervention in the management of flight.

(d)‘certification specifications’ (CSs) means non-binding technical standards adopted by EASA which indicate the means to demonstrate compliance with the Basic Regulation and its Commission acts, and which can be used by organisations for the purpose of certification;

(e)‘competent authorities’ means the authorities responsible for the certification, authorisation and oversight of UAS air operations in the Member State where the UAS operator has its principal place of business or place of residence;

(f)‘economic operators’ shall mean the manufacturer, the authorised representative, the importer and the distributor;

(g)‘electronic identification’ means the capability to identify a UA in flight without direct physical access to that aircraft;

(h)‘first-person-view mode’ means a mode of operation of a UAS where the remote pilot navigates the UA through a camera installed on the UA;

(i)‘follow-me mode’ means an automatic mode of operation of a UAS where the UA constantly follows a person or a device;

(j)‘geographicallimitation’ means a restricted airspace volume defined through electronic map data;

(k)‘geofencing’ means an automatic advisory function to provide information limit the access of the UA position in relation to airspace areas or volumes provided as geographical limitations and may limit the access of the UA to these areas based on the UA position and navigation data;

(l)‘guidance material (GM)’ means non-binding material developed by EASAthat helps to illustrate the meaning of a requirement or specification and is used to support the interpretation of the Basic Regulation, its Commission acts, certification specifications and acceptable means of compliance;

(m)‘hazard’ means a condition or an object with the potential to cause injuries, damage, loss of material or a reduction of the ability to perform a prescribed function;

(n)‘making available on the market’ shall mean any supply of a product for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge;

(o)‘model aircraft club or association’ means an organisation legally established in a Member Statewith the purpose of conducting leisure flights, air displays, sport or competition activities with UAS;

(p)‘Part-UAS’ means the rules applicable to the operation of a UAS falling into the ‘open’ or ‘specific’ category, as laid down in Annex I to this Regulation;

(q)‘placing on the market’ shall mean the first time a product is made available on the EU market;

(r)‘remote pilot’ is a natural person who manipulates the flight controls of a UA, as appropriate, during a flight and is responsible for safely conducting the flight;

(s)‘remote pilot competency’ means a combination of skills, knowledge and attitudes required for a remote pilot to perform a task to the prescribed standard;

(t)‘remote pilot station’ (RPS) means a component of the UAS containing the equipment used toremotely control the UA;

(u)‘specific operations risk assessment (SORA)’ means a methodologyto assess the risk of an operation in the specific category and establish corresponding mitigations measures;

(v)‘standard scenario’ means a description of an operation in the specific category, for which mitigation measures have been determined based on a risk assessment (e.g. SORA) andincluded by the Agency in its acceptable means of compliance;

(w)‘UA’ (unmanned aircraft) means any aircraft operated or designed to be operated without a pilot on board;

(x)‘UA observer’ means a natural person who, by unaided visual observation of the UA, assists the remote pilot in safely conducting the flight;

(y)‘UA system’ (UAS) means the UA and any equipment, apparatus, appurtenance, software or accessory that is necessary for the safe operation of the UA;

(z)‘UAS operator means any legal or natural person who operates or intends to operate one or more UAS; [DRN2][DRN3]

(aa)‘Union harmonisation legislation’ means any Union legislation harmonising the conditions for placing products on the market;

(bb)‘visual line of sight’ (VLOS) means a type of operation in which the remote pilot maintains continuous unobstructed and unaided visual contact with the UA, allowing the remote pilot to monitor the flight path of the UA in relation to other aircraft, persons, and obstacles, for the purpose of maintaining separation from them and avoiding collisions.

  1. In addition the definitions listed in Annex II,relative to product legislation,apply.

Article 3

Categories of UAS operations

UASoperations are categorised into one of the following three risk-based categories:

  1. open is a category of UASoperation that, considering the risks involved, does neither require a prior authorisationby the competent authority nor a declarationby the UAS operator before the operation takes place;

2.specific is a category of UASoperation that, considering the risks involved, requires an authorisation by the competent authority before the operation takes place and takes into account the mitigation measures identified in an operational risk assessment, except for certain standard scenarios for whicha declaration by the UAS operator is sufficient;[T4][DRN5]

3.certified is a category ofUASoperation that, considering the risks involved, requires the certification of the UAS, flight crew licensing and certification of theUAS operator, in order to ensure an appropriate level of safety.

GM1 Article3 Examples of certified operations[T6][DRN7]

The category under which an operation will fall depends on the risk it poses. For all operations exceeding the limitation defined for open category, the UAS operator is required to the propose mitigations measures, based on a risk assessment or those defined in a standard scenario published by the Agency, when applicable. The operation will be considered in a certified category when the mitigations will be achieved through an airworthiness certification of the system, a flight crew licensing and a certification of the UAS operator.

It is anticipated that operations in ‘Certifiedcategory” may include:

  • Large and or complex UAS operating continuously over open assemblies of people[JJSB8][DRN9]
  • Large and or complex UAS operating Beyond VLOS in high density airspace
  • UAS used for transport of people
  • UAS used for the carriage ofdangerous goods that may result in high risk for third party in case of crash
  • Large cargo [JJSB10][DRN11]delivery in urban area

Article 4

Principles for UASoperations

  1. The UAS operator shall be responsible for its safe operation. The UAS operator shall [T12][DRN13]comply with the requirements laid down in this Regulation and otherrelevant EU andnationalregulations, in particular those related tosecurity, privacy, data protection, liability, insurance and environmental protection.
  2. The UAS operator shall register themselves or the UA or both,as required by this regulation, with the entity designated by the Member State for that purposeand display the registration informationon the UAs it operates in order for them to be easily identifiable.
  3. TheUAS operator shall ensure that UA is equipped with an electronic identification means as required by this regulation.
  4. TheUAS operator shall ensure that UA is equipped with a geofencing function,as required bythis regulation.
  5. The Member Statemay designate zones or airspace areas where UAS operations are prohibited or restricted,in accordance with Article12.

GM1 Article 4 Responsibility of UAS operator and remote pilot

The respective responsibilities of the UAS operator and its remote pilots are defined in UAS. OPEN.10 and .30 and in UAS.SPEC.10 and 30

Article 5

‘Open’ category operations

  1. For operations of UAS in the‘open’ category, risks shall be mitigated through a combination of following safety measures, including:

(a)requirements and limitations on the flightoperations,the UA, and the personnel and organisations involved as detailed in Annex I to this Regulation; and

(b)limitations to be defined by the competent authority with regard to airspace areas or special zones for UAS operations according to Article 14for geofencing purposes or for particular airspace areas.

  1. Considering the different levels of risk within an ‘open’ category operation, this category is further divided into subcategories of operations.Each subcategory of operation is characterised by:

(a)the use of a certainclass or classes of UAS defined by the technical requirements provided in the related appendix;

(b)operational limitations; and

(c)requirements for the remote pilot and UAS operator.

  1. Except for privately built UAS,the requirements defining the different classes of UASoperated or intended to be operated in the ‘open’ categorytogether with Annex II to this Regulationshall constitute Union harmonisation legislation within the meaning of Regulation(EC)No 765/2008 and of DecisionNo 768/2008/EC.The placing on the market of UAS of those classes shall comply with these requirements and the conditions and rules set out in Annex II to this Regulation.
  2. An operation of a UAS conducted in the ‘open’ category within the airspace over the territory where the treaties of European Union and of the Functioning of European Union apply shall comply with the requirements of Subpart Aof Annex I to this Regulation.

Article 6

‘Specific’ category operations

  1. For operations in the ‘specific’ category, risks shall be mitigated through safety measures based on an operational risk assessment or contained in a standard scenario published by EASA.
  2. In order to operate in the ‘specific’ category, the UAS operator shall:

(a)have submitted a declaration according to a standard scenario or hold an authorisation issued by the competent authority or by itself when holding a LUC with privileges to authorise its own operations; and

(b)comply with the conditions included in the declaration or the operational authorisation. one of the following:

(c)the standard scenario, where a declaration is considered sufficient;

(d)an operational authorisation issued by the competent authority; or

(e)(b)an operational authorisation issued by the holder of a light UAS operator certificate (LUC) with privileges to authorise its own operations.

  1. An operation of a UAS conducted in the ‘specific’ category within the airspace over the territory where the treaties of European Union and of the Functioning of European Union applyshall comply with the requirements ofSubpart B ofAnnex I to this Regulation.

Article 7

Designation of the competent authority

  1. A Member State shall designate one or more competent authorities, with allocated responsibilities for the registration, authorisation and oversight of UAS operations.
  2. If a Member State designates more than one entity as a competent authority:

(a) the areas of competence of each entity shall be clearly defined; and

(b)coordination shall be established between those entities to ensure effective implementation of this Regulation.

  1. The competent authorities shall:

(a)have a suitable organisational structure, appropriate documented procedures, and adequate resources;

(b)have personnel with sufficient knowledge, professional integrity, experience and training to perform their allocated tasks.

  1. Member States shall ensure that the competent authority personnel do not perform activities related to this Regulation when there is evidence that this could result, directly or indirectly, in a conflict of interest, in particular when related to family or financial interest.

GM1 Article 7