Article 16 - Why the Rules Changed

Why did the rules for model flying have to change? This thorny subject is discussed by Cliff Whittaker, who was an advisor to the BMFA during their negotiations with the CAA.

A lot of information has been published to explain how to go model flying under the new rules, but not much has been said about why the rules had to change. This article is intended to remedy that. I worked for the CAA from 1995 to 2015 and I was involved when the need for new rules for unmanned aircraft was identified and in the early stages of their development.

It all began about 20 years ago. In April 2001, a military Global Hawk reconnaissance aircraft completed the first fully automated flight across the Pacific by an unmanned aircraft – a flight lasting 22 hours. That flight demonstrated that the technology was mature enough for unmanned aircraft to perform many manned aircraft missions but, crucially, without the risk of loss or capture of aircrew. At that time other unmanned aircraft, such as the American Predator and Israeli Hermes 450, were already in service with their home forces. These unmanned aircraft operations attracted the attention of many armed forces, including those of the UK. As a policy manager at the CAA at that time, I was contacted by representatives of the MoD. They said they were interested in acquiring unmanned aircraft (typically of 450kg mass or greater) and that they would want to fly training missions throughout the UK, as the forces routinely do with manned aircraft. They wanted to know if I thought there would be any issues with that? Well, yes, just a few!

globalhawkshutterstock

Global Hawk UAV. Photo: Paul Drabot / Shutterstock.com

I also started to get enquiries from the producers of unmanned aircraft about flying their products in the UK, not just with the military, but with civilian operators too. Obviously, having spent vast sums developing the technology these companies wanted to get the maximum possible return on their investments. My fellow policy makers in other countries were getting similar requests. Clearly, we needed some rules and preferably a co-ordinated approach between countries. We started holding regular international conferences attended by regulators, aircraft manufacturers and potential operators. The conversations at that time were mostly about unmanned replacements for existing manned aircraft - anything from microlight sized surveillance aircraft to unmanned cargo carrying airliners. These discussions, over a number of years, laid the groundwork for the rule-making programme recently completed by the European Aviation Safety Agency (EASA).

The Rise of Small Quadcopters
Around 2004 the first small quadcopters appeared at the trade shows. Initially they were very expensive but over a period of a several years they evolved into an affordable consumer product and so began to proliferate. Widespread use of these small aircraft had not been foreseen by the regulators. The creators of EASA, which was formed in 2002, had deliberately written into the European legislation that all unmanned aircraft under 150kg would remain under national regulation. Amongst other things, that neatly avoided EASA becoming responsible for all of the existing model aircraft in the EU and aeromodelling remained under the national rules of each country. This meant that when quadcopters appeared each national authority had to decide what to do in its own country – but obviously the national authorities did keep in touch with each other to share information and ideas.

ruleschange2

Widespread use of small quadcopters had not been foreseen by the regulators.

Why do anything about small quadcopters? Well, as the numbers grew it became apparent that they were being operated differently from 'traditional' model aircraft and in ways that caused safety concerns, including flying in crowded streets and over, or very close to, members of the public and their property. This was because most quadcopters were being flown with the intention of taking pictures or video. That naturally led to their being flown close to whatever was to be photographed, which would often be people, buildings or vehicles. In contrast, 'traditional' modellers get their enjoyment from watching their aircraft fly. They generally keep as far away from third parties as they can, which is one reason why aeromodelling has such a good safety record.

Small Aircraft
In the Air Navigation Order (the legislation enacting the majority of the rules for UK aviation) aeromodelling was facilitated by defining 'Small Aircraft' (aircraft under 20kg plus fuel) and then disapplying from Small Aircraft most of the rules that apply to manned aircraft. In 2008/9 the CAA's answer to the perceived safety threat of quadcopters was to further define a 'Small Surveillance Aircraft' as a Small Aircraft equipped for surveillance or data acquisition, and to impose minimum separation distances from third parties and property for those aircraft. The intent was to address the emerging safety threat from quadcopters whilst having minimal impact on traditional model flying.

That change to the Air Navigation Order was made in 2009 and enabled the CAA and the Police to take action against anyone caught flying a camera equipped unmanned aircraft too close to third parties. This proved to be sufficient for several years until, from about 2015 onwards, there was a rapid rise in Airprox reports (reported potential risk of collision) between airliners and 'drones'.

By about 2010 the rapid increase in the numbers of multi-rotors led many EU countries to argue for the scope of EASA's responsibilities to be changed to include unmanned aircraft under 150kg, thereby enabling the creation of common rules for these lighter aircraft to be included in EASA's ongoing rulemaking programme for unmanned aircraft. This was subsequently agreed by all Member States, including the UK, which was still in the EU at that time.

That work has now come to fruition. EASA has developed and published a comprehensive set of rules for the design, manufacture and operation of all unmanned aircraft in the EU, large and small. These rules came into force in the EU at the end of 2020 and, at the same time, responsibility for the standards applicable to unmanned aircraft under 150kg was transferred from the national aviation authorities to EASA. While the UK has now left the EU, the government has replicated European aviation rules, including those for unmanned aircraft, in UK legislation. The key difference is that the controlling authority in the UK's version is the CAA, not EASA.

In the recent past the regulation of unmanned aircraft in the UK went through some turbulent times. The political response to the media-led frenzy over the perceived drone threat to airliners and the incident at Gatwick was to go for early introduction of some of the measures that the UK expected would be in the European rules - such as operator registration. This rush to act and so to be seen to be 'doing something about drones' led to some errors and then corrections to our interpretations of the rules that had unexpected repercussions. This caused more than a little confusion, particularly for the model flying associations, who, on several occasions, were not given any advance notice of the rule changes. Hopefully, with the publication and adoption of the European rules we are now in calmer waters.

Different Rules?
A constant issue for the rulemakers throughout the past 15 years has been whether to have different rules for 'drones' and for 'model aircraft'. And, if so, how to implement that difference in legislation? The problem has always been one of definition. Day to day we use the terms 'drone' and 'model aircraft' with little confusion but writing mutually exclusive definitions to the rigour required for legal interpretation has proved to be unachievable. That is why, in 2009, the CAA's solution was 'Small Aircraft' and 'Small Surveillance Aircraft' and not 'Model Aircraft' and 'Drone'. It is also why you will not find the word 'drone' in any of the aviation legislation, in either the EU or the UK. As far as the law is concerned model aircraft and drones are all 'unmanned aircraft' or 'Unmanned Aircraft Systems' (UAS).

ruleschange3

You will not find the word 'drone' in any of the aviation legislation. As far as the law is concerned model aircraft and drones are all 'unmanned aircraft'.

Thanks to the skilful engagement by Europe's model flying associations with the EASA rulemaking process, led by the BMFA's Dave Phipps as President of the European Model Flyers Union, EASA did agree to make special provision for model flying under the new rules. That decision was by no means a certainty only a few years ago. EASA's solution to discriminating between model aircraft and other unmanned aircraft is to enable authorities to define different operating rules (with conditions) for the members of established national model flying associations. The legal provision to do this happens to be the 16th clause in the regulation and so is referred to as Article 16 – hence 'Article 16 Authorisation'.

Here is the text of Article 16:

Article 16

UAS operations in the framework of model aircraft clubs and associations

1. Upon request by a model aircraft club or association, the competent authority may issue an authorisation for UAS operations in the framework of model aircraft clubs and associations.

2. The authorisation referred to in paragraph 1 shall be issued in accordance with any of the following: (a) relevant national rules; (b) established procedures, organisational structure and management system of the model aircraft club or association, ensuring that:

i. remote pilots operating in the framework of model aircraft clubs or associations are informed of the conditions and limitations defined in the authorisation issued by the competent authority;

ii. remote pilots operating in the framework of model aircraft clubs or associations are assisted in achieving the minimum competency required to operate the UAS safely and in accordance with the conditions and limitations defined in the authorisation;

iii. the model aircraft club or association takes appropriate action when informed that a remote pilot operating in the framework of model aircraft clubs or associations does not comply with the conditions and limitations defined in the authorisation, and, if necessary, inform the competent authority; iv. the model aircraft club or association provides, upon request from the competent authority, documentation required for oversight and monitoring purposes.

3. The authorisation referred to in paragraph 1 shall specify the conditions under which operations in the framework of the model aircraft clubs or associations may be conducted and shall be limited to the territory of the Member State in which it is issued.

4. Member States may enable model aircraft clubs and associations to register their members into the registration systems established in accordance with Article 14 on their behalf. If this is not the case, the members of model aircraft clubs and associations shall register themselves in accordance with Article 14.

Following several months of negotiations between the model associations and the CAA, in 2020 the 'Article 16 Authorisation' was issued to the UK associations in time for the changeover to the new rules. Note that paragraph 4 of Article 16 prohibits waiving the requirement to register.

I am aware that some modellers believe that this has just been a plot by the Campaign Against Aviation (CAA) to victimise model flyers and to open a new income stream through charges for registration. As someone who was closely involved in the process for the CAA from 2000-2010, and for the BMFA since 2017, I can tell you that it isn't, and it never was the intention. The creation and implementation of the new rules was driven by pressure on governments and national aviation authorities from companies that produce unmanned aircraft and their potential customers to permit their widespread use and was only very recently driven by political/media/public safety concerns about 'drones'.

Adding to the regulation of model flying was never an objective for the regulators. But creating a regulatory framework to facilitate the safe operation of all unmanned aircraft, whatever their size and for any purpose, without impacting significantly on model flying was a major challenge. In my view the Article 16 Authorisation is the best solution we could have hoped for.

The views expressed in this article are those of the author alone and are not to be construed as representing, or being stated on behalf of, any organisation or any other person.

X