Co-authored by Kevin Westwood
E-mail: kevin.westwood@kevindwestwood.com

The Ministry of Civil Aviation ("MoCA") has undertaken the initiative of bringing critical amendments to the currently existing Unmanned Aircraft System Rules, 2021 ("UAS Rules")1 vide the Draft Drones Rules, 2021 ("Draft Rules")2 released on July 14, 2021 for public consultation.

The Draft Rules have heavily reduced the procedural and compliance aspects of owning, operating, manufacturing and importing civilian drones or Unmanned Aircraft Systems ("UAS"/"Drone(s)").

The Draft Rules seek to provide a legal and regulatory framework to the UAS or Drone industry in India. India is set to be one of the largest and fastest growing Drone markets in the world by FY2026 growing at a CAGR of 14.61%, owing to the rapid technological advancements and the increasing need for advanced systems for delivery, security among others. The Indian Drone market has shown exponential growth since 2018, pursuant to the release of the draft norms for usage of Remotely Piloted Aircraft Systems ("RPAS")3 in 20184.

In light of the fast paced evolution of the Drone industry, and the need for expansive legislations for this sector, we appreciate the initiative undertaken by the MoCA to revise and enact newer and more advances legislations to better govern this sector. We submit our views and observations on the Draft Rules through the present recommendations ("Our Recommendations").

Our Recommendations on the Draft Rules are divided in three parts.

In PART A, we examine the existing legal and regulatory framework governing Drones in India.

In PART B we examine in detail the established UAS regimes in certain international jurisdictions.

In PART C, we encapsulate our recommendations on the provisions of the Draft Rules.

The recommendations have been co-drafted by Mr. Kevin Westwood, a pioneer in high hazard industries such as Oil & Gas, Petrochemical, & Agrochemical, having more than 40 years of experience. He has domain expertise in wide range of engineering disciplines, and has held positions with certification responsibility for mechanical, electrical, civil, transportation (road and rail) operations.

Being a subject matter expert, Mr. Kevin Westwood has served on the panel developing British Petroleum's internal drone operating standards and has also advised on use of drones within the company. British Petroleum was the first company to obtain a commercial license to fly drones in USA after the regulations were introduced.

Further, Mr. Kevin Westwood has successfully managed many significant emergencies of high value assets and is a world recognised expert in emergency response, risk and crisis management. Mr. Westwood owns and operates drone companies in the UK, and Trinidad & Tobago and represents various drone manufacturers from the UK, Ukraine, Netherlands, USA, Switzerland, & Israel.

PART A: CURRENT FRAMEWORK REGULATING UAVS IN INDIA

A1. Legislative History of Drones in India

  1. The first notification concerning the UAS was issued by the Office of the Director General of Civil Aviation ("DGCA"), which is the apex regulator for civil aviation in India, and can be traced back to 7 October 2014.5 Under this notification, the DGCA recognized that UAS have potential for large number of civil applications. However, its use besides being a safety issue, also poses a security threat. As the airspace over cities in India has high density of manned aircraft traffic, lack of regulation, operating procedures/standards and uncertainty of the technology, UAS poses threat for collisions and accidents. On the basis of this, the DGCA restricted civil operation of UAS and made it mandatory to obtain approval from the Air Navigation Service provider, defence, Ministry of Home Affairs, and other concerned security agencies, besides the DGCA before undertaking any Drone usage. Furthermore, it also stated that the DGCA is in the process of formulating the regulations (and globally harmonize the same) for certification & operation for use of UAS in the Indian civil airspace and cautioned against use of UAS by any non-government agency, organization, or an individual in Indian civil airspace for any purpose whatsoever.6
  1. Further, the DGCA released a set of draft guidelines on April 21, 2016 on the use of UAVs for civilian or recreational purposes. The DGCA invited comments on these guidelines from various stakeholders. Thereafter, in October 2017, the DGCA announced a set of draft regulations for the use of UAVs in the civilian airspace.7 The Indian Railways Budget Speech (2016-17) also recorded that in line with international best practices, technological solutions such as the latest drone and geo-spatial based satellite would be utilised for remotely viewing physical progress of major projects.8
  1. Subsequently, the Indian Government, over the years has referred to the use of Drones in various sectors including agriculture, railways, mining and defence among others.
  1. In the year 2018, the DGCA released Civil Aviation Requirements, 2018 to regulate the operation of Civil RPAS ("CAR, 2018"). Further in 2019, the DGCA released the requirements for undertaking aerial work by RPAS ("CAR, 2019"). The CAR, 2018 and CAR, 2019 have been collectively referred to as "CARs".
  1. Pursuant to the issue of the CARs, the DGCA has been issuing various circulars, notifications and guidance manuals to regulate and suggest standards of operating and certifying RPAS. The DGCA has also issued a Flying Training Circular 1 of 2019, stipulating the training and procedure manual for remote pilot training. In 2020, the DGCA issued Flying Training Circular 3 of 2020, laying down a detailed procedure for getting approval as a remote pilot training organisation. Flying Training Circular 1 of 2019 and Flying Training Circular 3 of 2020 are collectively referred to as "Flying Training Circulars".
  1. Thereafter in June 2020, the MoCA released draft Unmanned Aircraft Systems (UAS) Rules 2020 and invited comments from the public on the same. Public consultations were held with the stakeholders post which the UAS Rules were notified on March 15, 2021. The UAS Rules purported to provide a uniform and consolidated framework for the regulation of Drones in India.
  1. With the present Draft Rules, the UAS Rules stand to be superseded. However, it must be noted that the since the Flying Training Circulars and the CARs have been issued under the Aircraft Rules, 1937, the application of which has been specifically made inapplicable under the Draft Rules, the validity of these are under question.
  1. The Draft Rules substantially reduce the compliances to be met by the licensees, compared to the UAS Rules. However, the Draft Rules also lack a proper framework of regulating the licensing and authorisation process in terms of operation of drones/UAS, remote pilot training organisation and traffic management.
  1. It is in light of the above ambiguity that we proceed with making the following recommendations/comments.

PART B: ESTABLISHED UAV REGIMES IN INTERNATIONAL JURISDICTIONS

B1. United Kingdom

  1. The drone operations in the UK are primarily governed by Air Traffic Management and Unmanned Aircraft Act 20219 ("ATM Act") and CAP 72210 also known as Unmanned Aircraft System Operations in UK Airspace - Guidance ("CAP 722"). They are the primary guidance document for the operation of unmanned aircraft systems within the UK. It is intended to assist those who are involved in all aspects of the development and operation of UAS. The CAP 722 which was previously referred to as DAP Unmanned Aerial Vehicle Operations in UK Airspace - Guidance, June 2001, find's its recognition from two main primary legislations namely- Air Navigation Order 201611 ("ANO") and The Basic Regulation12 ("BR"). The rules under above mentioned guidance and regulations are enforced by Civil Aviation Authority of UK ("CAA").
  1. The ATM Act confers police certain powers in relation to unmanned aircrafts and provides for fixed penalties for certain offences relating to unmanned aircraft under Part 3 of the Act. Schedule 8 of the ATM Act makes provision about powers of police officers and prison authorities relating to unmanned aircraft whereas Schedule 9 makes provision about powers of police officers relating to requirements in the ANO 2016.
  1. The BR sets out the common rules for civil aviation within the UK. It makes provision for Implementing Regulations13 or Delegated Regulations (sometimes referred to as Implementing Acts or Delegated Acts) dealing with subjects such as airworthiness certification, continuing airworthiness, operations, pilot licensing, air traffic management and aerodromes.14 For eg- Implementing Regulations for airworthiness certification and continuing airworthiness were the first 'common EU regulations' to be introduced and Implementing Regulations for pilot licensing, operations, aerodromes, air traffic management and common rules of the air have more recently become applicable under the BR.
  1. The CAP 722D15 defines Unmanned Aircraft System ("UAS") as an unmanned aircraft and the equipment to control it, comprising of remotely individual 'system elements' and any other system elements necessary to enable flight, such as a Command Unit (CU), communication link and launch and recovery element. An unmanned aircraft is defined as any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board.
  1. Some of the areas pertaining to governance of drones/UAS in accordance with the established regulations have been mentioned below:

A. Registration and Accreditation16

  1. The registration requirements for civil UAS are contained within the BR.17 Further, the UA whose design is subject to certification are required to be registered in accordance with Annex IX of the BR and articles 24 to 32 of ANO 2016. Once the Civil Aviation Authority ("CAA UK") has processed the application, the aircraft will be issued with a registration ID consisting of five characters starting 'G-' (e.g. G-ABCD) and the details will be entered into the aircraft register. The registration must be displayed permanently on the aircraft in accordance with article 32 of ANO 2016.18
  1. Further, every UAS operator must be registered and such registration is subject to a charge as defined in CAA scheme of charges.19 For a UAS having less than 250g flying weight (Class C0), UAS operator must be registered if the UA is able to capture personal data (i.e. a camera) and is not a toy20. Registration not required if the UA is either a toy, or it is not able to capture personal data. Similarly, UAS operators flying UAS with 900g flying weight (Class C1) must also be registered. Same goes for UAS coming under Class C2 and C3 i.e., UAS with the maximum take-off weight of 25kgs.
  1. In UK, even though the concept of UTM21, or U-space as it is referred to within the EU, is still in its relative infancy and regulations are still under development the Connected Places Catapult22 are leading the UAS traffic management work through 2019-20 to build on previous work to develop a UK framework based on open access principles, with support from the Department for Transport, CAA, a consortium of industry specialists and broader consultation.23 This work recommends an architecture for UAS traffic management that includes several key roles:

    • Central Services offering vital services to the UAS traffic management ecosystem including a flight information and management system, the authorisation and directory of UAS traffic management Service Providers, a flight notice board, and UAS and operator registration.
    • UAS traffic management Service Providers, offering specific UTM services to the public, businesses, local authorities, and others.
    • Supplementary Data Service Providers who provide the data that supports the functioning of the UAS traffic management ecosystem, including weather, terrain and obstacle data along with insurance and surveillance data.
    • Air Traffic Service Providers who will need to interact in some way with the unmanned traffic system.
    • Public Authorities, who may in future be required to engage in the ecosystem as an authority holder for certain operations.

B. Licence requirements24

  1. The requirements for the licensing and training of United Kingdom civil remote pilots have not yet been fully developed. United Kingdom requirements will ultimately be determined by ICAO Standards and Recommended Practices (SARPs). ICAO has developed initial standards for a Remote Pilot's Licence (RPL), but these are part of a larger SARPS package that will not become applicable until 2024 at the earliest. Until formal licensing requirements are in place the CAA UK will determine the relevant requirements on a case-by-case basis, considering additional factors such as the type of operation being conducted, and the system being operated.
  1. For now, Remote pilots must be in possession of an appropriate manned aviation pilot's licence associated with the type of operation being conducted (with appropriate mitigation related to the operation of the particular unmanned aircraft).

C. Remote Pilot Training Course25

  1. The "remote pilot" is defined as 'a natural person responsible for safely conducting the flight of an unmanned aircraft by operating its flight controls, either manually or, when the unmanned aircraft flies automatically, by monitoring its course and remaining able to intervene and change the course at any time.'
  1. The Competency requirements for a "Remote Pilot" is provided under 4.2.3 of CAP 722. The competency of the personnel involved in the operation of an unmanned aircraft is a major factor in ensuring that unmanned aircraft operations remain tolerably safe. Within any UAS operation, the primary focus is obviously placed on the competency of the remote pilot. Following on with the principle of taking a risk-based approach, the regulations use the competency of the remote pilot as a way of complementing the other risk mitigations and so the precise level of competency that is required is dependent on the category of operation. Remote pilot competency requirements will be set out in each individual operational authorisation document. UAS operators will be expected to propose the levels of remote pilot competency through the risk assessment associated with the particular operation.

D. Standard operating procedure for UAS26 (Few Examples)

  1. The UAS pilot must operate within Visual Line of Sight. Operating within Visual Line of Sight (VLOS) means that the remote pilot must be able to clearly see the unmanned aircraft and the surrounding airspace at all times while it is airborne. The key requirement of any flight is to avoid collisions and a VLOS operation ensures that the remote pilot is able to monitor the aircraft's flight path and so manoeuvre it clear of anything that it might collide with. While corrective lenses may be used, the use of binoculars, telescopes, or any other forms of image enhancing devices is not permitted.
  1. The 'operating height' is limited to a maximum distance of 400 feet (120 metres) from the closest point of the earth's surface.27 However, there is scope for the CAA to authorize flight at greater heights, via an operational authorisation, if the CAA is satisfied that this can be achieved safely.28 It must be noted that the 400 ft (120 m) limitation applies to 'heights above/distances from' the surface of the earth. It does not automatically apply to heights/distances from tall buildings or other structures. There are no specific prohibitions to VLOS operations during night time. The basic VLOS principles still apply (i.e., you must be able to see the aircraft and the surrounding airspace).
  1. Remote pilots flying under VLOS should always approach their task with the mindset that they will be the ones that will need to 'make the first move' when avoiding other airspace users; invariably, they will be the first to recognize (i.e., 'see' or more likely 'hear') the potential conflict. While the primary focus of the UAS Regulations is on the protection of persons, UAS operators and remote pilots must also bear in mind their responsibilities towards vehicles, vessels and structures while flying, even if they are unoccupied.29
  1. A UAS will not be flown within 150 meters (492 feet) of any congested area or organized open-air assembly of more than 1,000 persons; or within 50 meters (164 feet) of any person, property, vessel, vehicle, or structure which is not under the control of the person in charge of the aircraft; following additional codes not to overfly 122 meters (400 feet) above the surface.
  1. Flight Restriction Zones (FRZ) are implemented at the majority of UK aerodromes. Their purpose is to enhance safety for other airspace users within the vicinity of an aerodrome. Permission to fly above 400 feet (120 metres) within the FRZ may be granted by the ATC unit, without requiring further permission from the CAA, providing the flight remains entirely within the FRZ. If no ATC unit is present, then flight above 400 feet (120 metres) within the FRZ is not permitted unless permission has been granted by the CAA.

E. UAS operations in restricted areas30

  1. Prohibited Areas and Restricted Areas, as notified in the (Aeronautical Information Publication) AIP apply to unmanned aircraft (irrespective of their size) as well as manned aircraft. Where approval is required to enter these areas, permission must be sought in accordance with the entry requirements as set out in the statutory instrument that established the specific area.
  1. For eg., The Air Navigation (Restriction of Flying) (Hyde Park) Regulations 2017, Air Navigation (Restriction of Flying) (City of London) Regulations 2004 and Air Navigation (Restriction of Flying) (Isle of Dogs) Regulations 2004, lay down restrictions on aircraft operations, including UAS, within three defined airspace areas:

    • EG R157 (vicinity of Hyde Park);
    • EG R158 (vicinity of the City of London); and
    • EG R159 (vicinity of the Isle of Dogs).
  1. Further, persons in charge of an unmanned aircraft with a mass of more than 7 kilos cannot fly the aircraft without specific permission, or at a height of more than 400 feet except in some very limited instances. The operator must be reasonably satisfied that the fight can be made and cannot drop an article or an animal from the aircraft so as to endanger people or property.31
  1. The UK regime also provides an authorisation framework for drones flying out of UK. There are specific restrictions in place in terms of the purpose for which the drones are being used, such as, drones fitted with a camera, there are also a number of additional limitations surrounding where it can be operated and in how close proximity can it fly to other uninvolved people or objects. The CAA UK gives out a special permission in this regard.

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Footnotes

1. https://egazette.nic.in/WriteReadData/2021/225860.pdf;

2. https://www.civilaviation.gov.in/sites/default/files/Draft_Drones_Rules_14_Jul_2021.pdf;

3. Office of Director General of Civil Aviation, Government of India. "Requirements for Operation of Civil Remotely Piloted Aircraft System (RPAS).", F. No. 05-13/2014-AED Vol. IV. (August 27, 2018)

4. India Drone Market Report 2019-2024, ResearchAndMarkets.com

5. Government of India, Office of the Director General of Civil Aviation, "Public Notice - Use of Unmanned Aerial Vehicle (UAV)/ Unmanned Aircraft Systems (UAS) for Civil Applications," October 7, 2014, http://164.100.60.133/public_notice/PN_UAS.pdf.

6. Id.

7. Government of India, Office of the Director General of Civil Aviation, "Requirements for Operations of Remotely Piloted Aircraft Systems (RPAS), http://164.100.60.133/misc/draft%20cars/CAR%20-%20UAS%20(Draft_Nov2017).pdf.

8. https://eparlib.nic.in/bitstream/123456789/156/1/rbs_2016-17.pdf

9. https://www.legislation.gov.uk/ukpga/2021/12/part/3/enacted;

10. https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=415;

11. https://www.legislation.gov.uk/uksi/2017/1112/contents/made;

12. Regulation (EU) 2018/1139 (https://www.legislation.gov.uk/eur/2018/1139/contents);

13. https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=9654;

14. 1.2.3.3 CAP 722 8th Ed.;

15. https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=9802;

16. A3 CAP 722 8th Ed.;

17. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1139&from=EN;

18. C1.1 CAP 722 8th Ed.;

19.http://publicapps.caa.co.uk/modalapplication.aspx?catid=1&pagetype=65&appid=11&mode=list&type=sercat&id=10

20. To be classed as a toy, a product must be able to comply with the 'Toys (Safety) regulations 2011.

21. 3.8 CAP 722 8th Ed.

22. The Connected Places Catapult are one of 9 'catapult' organisations which are funded by Innovate UK (Department for Business, Energy and Industrial Strategy) to accelerate technology uptake and integration across different sectors in the UK.

23. https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=9307

24. C3.2.1 CAP 722 8th Ed.

25. 4.2 CAP 722 8th Ed.

26. 2.1 CAP 722 8th Ed.

27. 2.1.1.1 CAP 722 8th Ed.

28. Annex B CAP 722 8th Ed.

29. Article 241 of ANO 2016.

30. 2.4.5 CAP 722 8th Ed.

31. UK Civil Aviation Authority, "Air Navigation Order 2016 and Regulations," August 2016, https://www.caa.co.uk/News/Air-Navigation-Order-2016/.

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