Tearing up the rule book

We found out on the 11th of November that the DfT has made a decision to ignore the EASA Open Category C marking system.  The current expectation is that they will issue an amendment to the Implementing Regulations before the end of December with the changes coming into force on 1st January 2023.

In many ways, this is unfortunate as it is a system which was about to bloom with DJI’s November release of the Mavic 3 Classic.  This drone was predicted (not as far as the name but in terms of a Mavic 3 variant being the first true C1 launch) in the blog A Guide to NOT Buying the DJI Mini 3 Pro – Eyeup Aerial Solutions.  It is therefore unfortunate that the DfT/CAA have waited until a drone has come onto the market that can be legally used in the A1 sub-category.

However, the announcement does provide the UK with an opportunity to change its approach to the regulation of Open Category drones.  This blog is not intended as another prediction, but it is Eyeup’s idea of the direction some of those decisions may take us and, most importantly, why.

Note that the DfT doesn’t have to take until December 2025 to come up with a new set of rules.  They can do it as soon as they are able…I’m just here to try to help the debate and move things along.

Let’s get Specific

It also refuses to confine itself to the Open Category.  There are some important elements to the current C class model that lend themselves to use by professionals under an Operational Authorisation in the Specific Category.  The CAA has the ability to change what is allowed under the Specific category using a system of pre-determined risk assessments.  These proposals seek to open up some of the advantages of the previous Open category regulations to Operational Authorisation holders, whilst retaining the oversight that the CAA has always required of professional operators.

I make no apology that the changes outlined below may seem to favour “commercial” operators.  That’s where I come from and is the sector I’m primarily interested in.  I leave it to the hobby sector to understand the regulations and come up with their own reasoned ideas.  Let’s take this opportunity to have a debate and show the world that UK users are a responsible community.

You will find more of this debate going on over at the Geeksvana YouTube channel as the CAA and DfT hopefully enter a period of debate and consultation on how the new rules should be shaped.

Show us the money

Let’s get this one out of the way.  I believe there needs to be a re-think around the concept of the basis of a flight.  The removal of flying as a commercial activity from the “Risk Register” has, in many people’s eyes, been a retrograde step.

Yes, it “opens the market” through de-regulation, but at the same time it opens the door to reduced quality of output through the availability and use of small-sensor drones in the hands of novices out to earn pocket money.  While this is great for those earning small sums for lower-end jobs, it also starts to nibble at income of professional pilots at the lower end of the market.  There is nothing wrong with fair competition, but in this case the market all barriers to entry have been completely removed at a level which used to help sustain new entrants to the market and help them develop their skills.  The market for serious entrants who have invested in training and equipment looks like a broken ladder, with the lower rungs (low-end jobs), broken or removed.  This is not sustainable.

The UK unmanned aircraft industry is far from mature and there are few openings for new pilots to join established companies and get themselves mentored over a training period.  They generally fight their way up through the market from easier, “low-end” jobs of relatively low complexity and gradually learn their trade.   And the barriers weren’t purely financial.  A practical flight test, necessary to gain the old NQE recommendation (equivalent of a GVC), meant that the remote pilot required a modicum of flying ability.  Annual renewal of their permission meant required at least a basic level of commitment to knowing about regulatory changes.

When this requirement for a “commercial licence” existed the CAA used to insist that it was from the point of view of safety.  “If you are flying for a client”, they would patiently explain, “then there are additional pressures to perform and capture the data in situations where perhaps conditions are less than ideal.  This can lead to human factor errors and an “incident”.  Professional operators know only too well that this can be a very real risk whether on set or on a construction site.

Then it was decided that “commercial” differentiation would not be recognised within the regulation and it was amazing how contacts at the CAA did a U-turn that made Liz Truss look like she was stuck on rails!  Suddenly, these commercial drivers were no longer a risk factor at all.  Everything is now purely about the weight of the drone and where it was being flown. Whilst the CAA will agree that human factors are the major driver behind most aviation incidents, apparently the whole “client pressure” risk has entirely disappeared.  Who’d have thought?

My belief (and that of many others), is that the commercial differentiation needs to return.  There are few areas of transport that do not require some form of licencing to earn money, and it is strange that drones are singled out in this regard, given an identified level of additional flight risk.

Drone Rules: REQUIREMENTS FOR FLYING IN THE OPEN CATEGORY

WARNING: THE FOLLOWING SHEET IS NOT LAW AND IS NOT THE CURRENT CAP2012-BASED DOCUMENT.  IT IS AN EYEUP AERIAL SOLUTIONS PROPOSED MODEL TO REPLACE THE CURRENT VERSION FROM 2026.

Categories, Sub-categories and Sub-sub-categories!

This proposal assumes that we will retain the concept of different categories of flight.  As it stands, the “Open” category is light touch from a regulatory point of view.  Buy a drone, register, get the appropriate competence (qualification) and go fly.  There is also a “Certified” category which will cover operations which are considered such high risk that very special controls are required, such as air worthiness tests on the unmanned aircraft.  Think heavyweight BVLOS delivery services or air taxis and you’ll get the idea.

In between these two is the “Specific” category.  This covers operations that are unable to follow all the rules of the Open category.  Heavier sub-25kg drones in congested areas or dropping of articles would be a couple of examples.

The major regulatory difference between the Open and Specific categories is that the CAA maintains oversight of the Specific category operations.  The Operators in this category have to operate against a “specific” set of rules written into an Operations Manual and this manual is submitted each year for review by the regulator.  It isn’t easy and many operators in this space feel that the oversight is onerous for a reducing benefit.  Why is the benefit reducing?  Well, now an open category flyer can come and sweep up some of the lower value bread and butter jobs with few of the regulatory overheads born by the Specific category operators.  We have to ask if this is fair to those who have invested heavily in training, qualification and technology.

If you’ve clicked on the Eyeup version of CAP2012 above, you will notice that the Specific Category has sneaked its way into what used to be an Open category only crib sheet.  This is because if we see risk as a spectrum, then we need to reflect the blending of the Open category into the Specific category.  Apart from anything else, it indicates that there is a level above the Open category and the competence level required to operate there.

Let’s dig into the Open sub-categories

A1 Sub-Category

A1 is a confusing sub-category from day one.  Why?  Because under the EASA regs it is actually two sub-categories in one, with different flight rules.  It includes “flying over” uninvolved people and “no intentional flight over” uninvolved people.  This is overly complex, easy to misunderstand and therefore, not as safe as it could be.

Flight “over people”

I am a fan of the sub-250g “fly over people” sub-sub-category.  I believe that for anybody wanting to fly for sport or recreation can get all they need from a drone of this weight.  The sensors are getting larger and the capabilities in this class will continue to improve, particularly as the huge US market has a “no registration” benefit attached to these tiny machines.  Because of the weight of these drones, the risk is inherently low.  Furthermore, with appropriate training (let’s call it the A1CofC), I see no reason why this “flight over people” couldn’t be extended to the higher ”transitional” weight of 500g.

Why is this?  I’m afraid I’m going to diverge…

“Intentional Overflight”

The term “intentional overflight” is essentially meaningless and I believe would be unenforceable except in some very rare circumstances.  The reason is that if a drone is moving and is at any meaningful height then the laws of physics mean that even in the event of total failure, it will never hit an item directly below it.  Momentum will continue to carry it forward and it will land a distance away from whatever was below it when the failure occurred.  Although you overflew a person, they were safe.

On the other hand, you may be flying on a route that is perfectly legal, but towards an uninvolved person (or the person may appear from a doorway for instance in front of the flight path of the drone).  If the drone fails now, its momentum will carry it into the person.  There was no overflight, no intention of overflight but somebody had a drone hit them.

These two examples make it clear to me that in the incredibly rare case of a mid-air drone failure, the concept of intentional overflight is not useful.  If the DfT wants to mitigate against the risks of hitting uninvolved people, then they have one way to do it and that is to keep drones away from areas where there are people.  They have chosen not to do this so should really accept the physical reality of the consequences of that decision.

Flight close to people

A1 Sub-Category
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