India: Indian Aviation Ministry Proposes Draft Regulations On Drones

On 1 November 2017, India's civil aviation regulator, the Ministry of Civil Aviation, Government of India (GOI) released the draft norms / civil aviation requirements (CARs) for permitting operation of civil remotely piloted aircraft (RPA) systems, commonly known as 'drones'. The draft CARs are open for public and other stakeholders' comments for a month, post which the GOI will release the final regulations (expected by the end of this year).

Background

In October 2014, the Director General of Civil Aviation (DGCA) had banned use of drones in India on account of: (i) privacy and security concerns posed by them; and (ii) the absence of a regulatory framework in India governing their operations. Consequently, in April 2016, for the first time, the GOI proposed draft guidelines for regulating drones, however, it did not formalise. With certain additional changes to the regulations previously proposed, the draft CARs intend to revoke the current ban on use of drones, and provide a comprehensive framework for licensing and other requirements for use and operation of drones in India.

Key provisions of the draft CAR

This Ergo Update discusses the key aspects for operation of drones / RPAs proposed in the draft CAR:

Drones Defined

The draft CARs have defined an unmanned aircraft (UA) to mean an aircraft which is intended to operate with no pilot on board, however is operated / piloted from a remotely piloted station.

Category of Drones

The draft CARs categorize RPAs / drones in the following manner, in accordance with their maximum take-off weight:

  1. Nano – Less than or equal to 250 grams;
  2. Micro – Greater than 250 grams and less than or equal to 2 kg;
  3. Mini – Greater than 2 kg and less than or equal to 25 kg;
  4. Small – Greater than 25 kg and less than or equal to 150 kg;
  5. Large – Greater than 150 kg.

UIN for the Drones / RPAs

Unless specifically exempted, all RPAs / drones will be required to obtain a Unique Identification Number (UIN) from the DGCA. Import or acquisition of RPAs will also require permission from the DGCA.

Exemptions from obtaining UIN

The following RPAs are exempted from obtaining UIN: (a) RPAs in the Nano category with an intent to fly up to 50 feet above ground level (AGL); and (b) RPAs owned and operated by Government security agencies.

Eligibility for UIN registration

Owing to the security concerns, the draft CARs provide that Indian controlled entities, Indian citizens or Government owned companies would be permitted to register their drones. As per the draft CARs, UIN will be granted only where the remotely piloted aircraft systems (RPAS) is wholly owned by:

  1. a citizen of India;
  2. GOI or state governments, or a company owned or controlled by these governments;
  3. an Indian company or body corporate, which (i) has its principal place of business within India, (ii) its chairman and at least 2/3rd of board of directors are citizens of India, and (iii) its substantial ownership and effective control is vested with Indian nationals; or
  4. a company or corporation registered outside India, only if it has licensed the RPAS to any organisation set out in (b) or (c) above.

To expedite the process, the DGCA is mandated to grant UIN within two days of the receipt of the application with completed documents.

MHA and other clearances

For security reasons, all RPAS, except those owned and operated by Government security agencies, will also need clearance from the Ministry of Home Affairs, GOI (MHA). In addition, (i) permission from the Department of Telecommunications, Ministry of Communications, GOI for all frequencies used in RPA operations; and (ii) verification of character and antecedents of the remote pilot from local police office, etc. will also be required for obtaining the UIN.

Permit for RPA Operators

All RPAs, unless exempted, are required to obtain an unmanned aircraft operator permit (UAOP) from the DGCA. In case of an offshore entity which has licensed RPAS to an Indian entity, UAOP will be issued to the Indian licensee.

A copy of the UAOP issued by the DGCA will be sent to other regulatory agencies, namely, the MHA, the Bureau of Civil Aviation Security (BCAS), the Air Traffic Service, the Indian Air Force and district administration (Superintendent of Police) for information.

The UAOP will be issued for an initial period of five years, and any renewal will be subject to a fresh clearance from the MHA. It has been clarified that the UAOP will be non-transferable and the DGCA may impose additional requirements on a case-to-case basis.

Exemptions from obtaining UAOP

For commercial viability, the following RPAs have been exempt from obtaining the UAOP:

  1. Nano RPAs operating below 50 feet AGL in uncontrolled airspace and indoor operations;
  2. Micro RPA operating below 200 feet AGL in uncontrolled airspace and clear of prohibited, restricted and danger areas, etc. However, the user is required to intimate the local police authorities before commencement of actual operations; and
  3. RPAs owned and controlled by Government security agencies, provided, they intimate the local police authorities and ATS before commencement of actual operations.

Further, model aircrafts up to maximum take-off weight of 2 kgs flown below 200 feet inside educational institution premises will not be required to obtain the UIN or UAOP. They will only be required to inform local police authorities for indoor activities.

Certain other key aspects

The draft CARs have also proposed the following requirements for operating drones / RPAs in India:

  1. 'No drone zones / restricted areas' restricting the operations of drones have been listed in the draft CARs. Further, no drones / RPAs will be permitted to operate in sensitive areas e.g. near airports, border, international borders /line of control, etc.;
  2. RPAs are permitted to only operate during the day light and within the visual line of sight only;
  3. RPAs should not discharge or drop substances unless specifically permitted in the UAOP;
  4. RPAs should not transport any hazardous material such as explosives, animal or human payload. RPAs should not be flown in any manner to cause danger to any person or property;
  5. The operator / owner will be reasonable for safety, security and access control of the RPAS. In case of loss of RPAS, intimation needs to be made to local administration / police authorities, BCAS and DGCA;
  6. The owner / operator (except in case of Nano RPA) is required to report any incidents to the DGCA, who will notify other authorities. The operator will also be responsible to ensure that the privacy of individuals is not compromised;
  7. Specific pilot training requirements are set out for pilots operating the RPAs, except in case of Nano and Micro RPAs;
  8. All RPAs, except Nano RPAs, are required to inform the local police authorities in writing before commencement of the operations;
  9. All civil RPAS operators are required to obtain insurance for any liability / damage to third party from any accident or incident;
  10. The UAOP may be cancelled or suspended at any time if operations are not acceptable to DGCA; and
  11. Breach of compliances under draft CARs may result in penal actions including under the Indian Penal Code, 1860.

Comment

Artificial intelligence and drone technology have immense potential for technological and economic growth globally. The draft CARs proposed by the GOI is a welcome step towards regulating drones in India, which so far have been banned. The GOI has studied regulations in other jurisdictions and proposed the new norms with a view to safeguard privacy and security concerns, and further encourage the ease of doing business in India with drone technology. This could provide a much needed boost to the 'Make in India' initiative of the GOI. In fact, Amazon Inc. has already filed a patent in India for deploying drones for delivery and other services in India. We expect more players to follow soon, with the new regulatory framework being in place.

However, it is to be noted that the draft regulations do not delve deep into the issues relating to protection of privacy, which remains a key concern in the absence of an adequate data privacy regime in India. Further, the draft CARs do not permit foreign players / Indian entities with foreign control to register drones in India, which will majorly discourage foreign investment in this segment. Further, a single window clearance for regulatory approvals would have eased the process for registering drones since currently there are multiple regulatory agencies proposed for clearance as well as regulating operation of drones, which could lead to delays and excessive regulation. The CARs also do not set out any standards for manufacture and production of drones, which would be another key aspect for this industry. We will have to wait and watch if the fine print of the CAR will address some of the above concerns. Since the technology is new, the GOI may prefer the approach of introducing the regulations with restrictions and subsequently relax the regime over a period of time.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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