Drones: national regulations not complete

In this blogpost, we present some reference regulation on drones. As the reference regulation is still anything but complete, we also list the aspects which might be worthwhile being regulated.

 

When starting our investigation on regulations on drones, we hoped to be able to identify various types of good regulation in English. Unfortunately, the relatively best regulation we found is available in French only, it is the one from France. Whilst Japan was first to regulate drones for agricultural use, France was supposedly the first state to regulate drones in general terms, and this happened in 2012. Now in 2015, France is about to substantially sharpen its provisions, see this article available on a blog of Le Monde. There will not be much freedom left for those who wish to use drones in France. Hence we do not know whether it is really advisable to follow France. At any rate, even the French law is far from being complete. Like in most other jurisdictions, regulators seem to be hesitant to regulate on more aspects than those commonly regulated in the framework of civil aviation. This can be explained by the responsibility assignment of authorities or by the legal empowerments, but is still unfortunate. As you will read later-on, there are many more aspects to be regulated with regard to drones. Still the French law is interesting in so far as it differentiates not only between different classes of devices, but also between different “scenarios”. At least to study this interesting regulatory technique, you might wish to read the law of France in French or with the help of a translation machine. A short description of these “scenarios” (a combination of different parameters) is also available on this private website.

We also found an interesting draft U.S. bill. It is less restrictive than the French law. However, here again, we have to state that it is not complete at all. In absence of any better, we recommend regulators to study this bill. Please note that the actual legal text is to be found at the very end of the voluminous pdf-file.

How else can we help regulators in their preparation of domestic rules for drones? We thought that it would be helpful to list all the aspects which can be regulated with regard to drones. The list is based on the various regulations we found, but contains also many aspects that we are familiar with from other sectors.

The following aspects can be regulated with regard to drones:

– Minimum and maximum weight and dimensions and speed of the devices (this can be combined with the establishment of different classes of drones);

– Minimum and maximum noise (minimum noise may be useful in terms or warning, see the minimum noise requirement for electric cars in some jurisdictions);

– Flight and driving safety (e.g. wind resistance) and performance (preciseness of steering) of drones;

– Swimming safety and performance (more and more drones are also able to use waterways);

– Software safety;

– Annual or bi-annual state or third party control of airworthiness or of other aspects of safety;

– Registration of drones;

– Identification/marking of drones;

– Visibility / signalisation of drones (e.g. by mandatory colours or lights);

– Minimum reach of radio communication between pilot / driver and drone;

– Maximum permitted distance between pilot / driver and drone;

– Radio frequencies / bandwidth to use / not to use;

– Frequency / bandwidth interference with other devices (not just drones);

– Electro-magnetic compatibility other than the one linked to the bandwidth of the frequencies used;

– Protection against hacking / cybersecurity;

– Age of pilots / drivers;

– Medical conditions of pilots / drivers;

– Absence of drug and alcohol consumption / addiction of pilots / drivers;

– Absence of criminal past of pilots / drivers;

– Absence of links to terrorists of pilots / drivers;

– Knowledge qualification / licences of pilots / drivers (possibly subject to classes);

– Training of pilots / drivers and requirements for respective schools and instructors;

– Registration of owners, pilots / drivers (possibly subject to classes);

– Keeping eye contact;

– Where not to fly, not to drive, not to swim (e.g. over crowds, military facilities, industry facilities, railways, over and on highly frequented waterways or streets);

– Maximum permitted speed subject to the respective flight zones and height;

– Minimum weather conditions;

– Light conditions (no night flights);

– Priority and other traffic rules in air, on ground, on water (possibly subject to classes);

– Incident and accident reporting by pilots / drivers;

– Incident and accident analysis by authorities;

– Maintenance obligations of pilots / drivers (possibly subject to classes);

– Data protection / privacy with regard to captured images or films;

– Requirements for cameras;

– Requirements for camera installation;

– Ban of weapons and/or of the installation of weapons;

– Ban of certain other dangerous goods;

– Requirements for other loads and the installation of other loads (possibly subject to classes);

– Control of trade with weapons which are suitable to be installed;

– Control of trade with drones;

– Liability of manufacturers;

– Liability of owners;

– Liability of pilots / drivers;

– Insurance obligations with regard to these liabilities;

– Financial or criminal sanctions;

– Enforcement mechanisms (see our Handbook, Chapters 7 and 8)

It goes without saying that no regulator is obliged to regulate with regard to all these aspects. However, it is also true that the list could even be prolonged. E.g. there are quite many elements of the checklists for products and services contained in our Handbook “How to regulate?” (see right column) that could be used for drones as well. To facilitate the access to these checklists, we will display them in the Annex.

Furthermore, regulators can regulate on the various use forms or can combine the various use forms with the aspects listed just above:

– Recreational use;

– Use for agriculture;

– Use for transport of goods;

– Use for communication purposes (e.g. facilitating mobile communication during events);

– Use for energy generation (wind turbines);

– Use for other commercial purposes (e.g. generating pictures in a view of selling or utilising them commercially, repairing infrastructure);

– Use for artistic purposes;

– Use for educational or research purposes;

– Use for military purposes;

– Use for public inspection purposes;

– Use for firefighting, rescue and relief operations (such as locating victims);

– Use for other public / government purposes.

The majority of laws so far identified do not distinguish too much between these various use forms. Mostly, regulators have so far focused on recreational use. An exception hereto is the law of Unmanned Aircraft (Public Safety and Security) Act (2015) of Singapore which is presented in this media article. Furthermore the already mentioned draft U.S. bill lists a range of use forms. The final bill will certainly be accessible from this website.

Of course, jurisdiction can set-up the usual certification or approval requirements (more on this in our Handbook, Chapter 7). An interesting possible procedural element can be found in the law of Switzerland. Switzerland requires a “total hazard and risk assessment” as part of the application for certain flights, namely flights above gatherings or without direct eye contact.

What other good practice is worthwhile being mentioned?

New Zealand has developed an excellent website, presenting in a simple and comprehensive way legal obligations. The second best website we found is the one from the United Kingdom.

Singapore has developed an easy to use online portal for online-applications of pilots / drivers.

 

ANNEX – checklists for products and services contained in the Handbook “How to regulate?”

11.2.4 Particular checklist for regulation on products (also partly applicable to materials)

Check whether you also need to regulate with regard to the following elements:

Product components, replacement parts;

Services used in the production process;

Services with regard to products once they are placed on the market;

Services with the products (offered to final users, consumers etc.);

Long-distance sales (e.g. via Internet), with special focus on salespersons outside the jurisdiction;

Advertisement;

Distribution modalities;

Parallel trade;

Reprocessing;

Manufacturing as an activity;

Professional activities linked to the products and their distribution;

Fees for conformity assessment activities;

Fees for enforcement / market surveillance activities;

Fees for the application of conformity assessment bodies as Conformity Assessment Bodies.

Check whether all of the following risks, if relevant, have been covered:

– Mechanical risks (e.g. failing of brakes, failing of steering, squeezing mechanisms, cutting mechanisms),

– Software failure risks,

– Risks of software manipulation,

– Risks of electric failure,

– Risks linked to electricity,

– Risks of incompatibility of devices, connectors, chemical substances etc.

– Risks linked to electro-magnetic radiation (risk of interference with devices, risks for ultra-sensitive persons),

– Risk of radioactivity,

– Risk of other tissue destructing radiation (e.g. by protons or other parts of atoms),

– Risk of optical disturbance by beams and other light(s),

– Risk of too high or too low temperature,

– Risk of fire,

– Risk of spreading disease by use of human, animal or synthetic tissues,

– Risk of uncontrolled proliferation of living tissues or beings,

– Risks of bio-compatibility of chemicals,

– Risk of too high pressure (e.g. in case of explosion),

– Risk of not performing sufficiently / as intended (e.g. medicine),

– Risk of misunderstanding instructions for use,

– Risk of unintended inappropriate use,

– Risk of intended inappropriate use (“off-label use”).

Check whether the right risk management principles have been applied to each of these risks.

Check whether you need specifically regulate on steps before the final product leaving the manufacturer, e.g. with regard to:

Risks of research (e.g. the research on synthetic biology might already constitute a risk),

Development of intermediate products (like synthetic biology tissues intended to be used for various types of final products falling under different legislation),

Making available of intermediate products (like synthetic biology tissues that could be used for various types of final products falling under different legislation),

Development of final products (thus not the risk of the final product itself, but the risks of developing final products).

The only sector known by the author for which there is, in some jurisdictions at least, a complete control, from research to final products, is the sector of nuclear research, distribution of nuclear materials and final nuclear products.

11.2.5 Particular checklist for regulation on services (also partly applicable to processes in general)

Check whether you also need to regulate with regard to the following elements:

Intermediate services;

Services used to provide the services;

Products used to provide the services;

Remedying deficient services;

Long-distance services (e.g. via Internet), with special focus on service providers outside the jurisdiction;

Advertisement;

Distribution modalities;

Professional activities linked to the services or linked to the distribution;

Service providing as a professional activity;

Fees for conformity assessment activities;

Fees for enforcement activities;

Fees for the application of conformity assessment bodies as Conformity Assessment Bodies”.

 

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