Drones Law: The “SPECIFIC” category of drone operations (part III)

Introduction

In part II of our blog series we wrote about the “open” category of unmanned aircraft system (UAS) operations.  According to the EUs Implementing Regulation, this category is the most riskless. Nevertheless, there are a lot of new standards and requirements set by the EU legislative acts drone operators as well as regulatory authorities have to comply with (“OPEN” category of UAS operations – Lower Risk, lower requirements? (part II) – https://blog.pwclegal.at/en/open-category-of-uas-operations-lower-risk-lower-requirements/).

Beside the “open” category, the “specific” and “certified” category were established.

The classifications are categorized by degree of “risk” – in the following we would like to introduce the “specific” category of drones and the measures that need to be taken in order to operate drones in this category.

1.      Specific category – an introduction

Operations in the specific category should cover all types of operations that do not fall under the open category anymore, meaning that when an intended operation exceeds the restrictions of the “open” category, the operator needs to operate under the “specific” category.

Consequently, these are operations that represent a higher risk and for which a thorough risk assessment needs to be conducted. The assessment’s aim is to indicate which requirements are necessary to keep the operation safe.

Before an operation of drones in the “specific” category takes place, an authorization by the competent authority is required. Risks are to be mitigated through safety measures identified in an operational risk assessment or contained in a standard scenario published by EASA.

2.     Authorization of operations in the specific category

UAS operations in the “specific” category require an operational authorization or an operations declaration made by the drone operator (standard scenario) or an authorization issued by the competent authority for the operation of drones in the framework of model aircraft clubs and associations.

2.1. Operations declaration

If a drone operator operates an unmanned aircraft with

• a maximum characteristic dimension up to 3 metres in “visual line of sight” (VLOS) over controlled ground area except over assemblies of people; or
• maximum characteristic dimension up to 1 metre in VLOS except over assemblies of people; or
• maximum characteristic dimension up to 1 metre in “beyond visual line of sight operation” (BVLOS) over sparsely populated areas; or
• maximum characteristic dimension up to 3 metres in BVLOS over controlled ground area;

and in each case

• performed below 120 metres from the surface of the earth,

an operational declaration of compliance with a standard scenario (the standard scenario is not yet published by the EU; according to the European Union Aviation Safety Agency, they will publish an Opinion proposing an amendment to the European regulation – Implementing Act – to add two standard scenarios to facilitate some operations posing a low risk only in October 2019) may be submitted to the competent authority of the Member State of operation.

After receiving the declaration, the competent authority has to verify that all necessary elements are available and provide the drone operator with a conformation of receipt and completeness without undue delay. After receiving the confirmation of receipt and completeness, the UAS operator is entitled to start the operation.

2.2. Operational authorization

If one of the requirements for falling under the “open” category is not met, an UAS operator needs to obtain an operational authorization from the competent authority in the Member State where it is registered.

The operator needs to perform a risk assessment; in the particular case the drone operator needs to:

• describe the characteristics of the UAS operation;
• propose adequate operational safety objectives;
• identify the risks of the operation on the ground and in the air (inter alia the extent to which third parties or property on the ground could be endangered by the activity; the complexity, performance and operational characteristics of the unmanned aircraft involved; the purpose of the flight; the probability of collision with other aircrafts);
• identify a range of possible risk mitigating measures and
• determine the necessary level of robustness of the selected mitigating measures in such a way that the operation can be conducted safely.

In a next step the competent authority evaluates the risk assessment and the robustness of the mitigating measures that the drone operator proposed to keep the operation safe in all phases of flight.

An operational authorization is granted when the evaluation concludes that the operational safety objectives take account of the risks of the drone operation and the mitigation measures, the competence of the personnel involved, and the technical features of the unmanned aircraft are adequate to keep the operation safe. Furthermore, the drone operator needs to provide a statement confirming that the operation complies with any applicable EU and national rules (inter alia regarding privacy, data protection, liability, insurance, security and environmental protection).

The operational authorization is valid upon receipt and cannot be transferred. Besides that, the competent authority sets the period of validity of the authorization.

2.3. No operational declaration or authorization

If the operator has a light UAS operator certificate, there is no need for any other declaration or authorization.

In our next blog we will introduce you to the “certified” category of unmanned aircraft systems. Stay tuned!

You want to learn more about the drone regulations?

Follow our blog series and join our new drone event series!

https://www.linkedin.com/showcase/public-regulatory-law

<< Die Praxisgruppe Public & Regulatory Law berät und vertritt Sie nicht nur bei Fragen rund um das Thema Drohnen, sondern in allen Bereichen des öffentlichen Wirtschaftsrechts, insbesondere in den Bereichen Vergaberecht, Umweltrecht, Wasserrecht, Energierecht, Planungsrecht, Eisenbahnrecht und Life Science Bereich. >>

Authors: Dr. Stefanie Werinos-Sydow; Mag. Sandra Kasper; Mag. Theresa Karall