Introduction
The Drone Federation of India (“DFI”) organised a webinar on 12 June, 2020 to discuss the effects of the draft ‘Unmanned Aircraft System Rules, 2020’ (“Rules”) which the Ministry of Civil Aviation (“MoCA”) had released on 4 June, 2020. The panel consisted of our managing partner, Mr. Anirudh Rastogi, Mr. Neel Mehta, Mr. Rahul Jain, Group Captain R.K. Narang (Retd.) and Mr. Vignesh Santhanam.
The objective of the webinar was to discuss the impact of the Rules on the drone industry in India and compare them with the Civil Aviation Requirements (“CAR”) on Remotely Piloted Aircraft Systems (“RPAS”) issued by the Directorate General of Civil Aviation (“DGCA”) in 2018. Each speaker presented their views on the Rules and the recommendations on how they could be made better.
In this post, we discuss key issues brought up by the speakers and the recommendations which emerged from the discussion.
- Anirudh Rastogi [Founder, Ikigai Law]
- The Rules provide an enabling framework for the operation of unmanned aircrafts in India. Details on specific aspects of operations are likely to be brought in subsequent CARs issued by the DGCA. The Rules framework will facilitate a clearer demarcation between CARs for the Unmanned Aviation (“UA”) industry and the manned aviation industry.
- The existing CAR has limited powers for enforcement. It makes a reference to the Indian Penal Code, 1860 (“IPC”) for penalties, and therefore only a limited set of offences are specified. While issuing CARs, the DGCA is restricted from carving out new offences with respect to drone operations. One of the fundamental reasons behind the Central Government issuing the Rules is to confer enforcement powers on the DGCA and empower the DGCA to detain aircrafts in case of contravention of the Rules. Such power was lacking under the CAR.
- The existing CAR would be cease to be operational as soon as the Rules are notified. As and when new CARs are issued by the DGCA under these Rules, they will be open to consultation as the Rules envisage that every new CAR must undergo a mandatory 30-day consultation period.
- Once finalised by the Ministry, the Rules will be tabled before the Parliament. Typically, the Parliament does not debate rules in depth. The government usually takes three to six months to finalise rules after receiving stakeholder coments.
| Relevant provision in the Rules | Issue | Recommendation |
| Rule 6: Authorisation framework on the Digital Sky Platform (“DSP”). | DSP not being operational leads to a standstill of operations. | A physical paper-based alternate procedure with strict timelines to avoid delays. |
| Rule 8(3): If considered necessary, the DGCA may obtain clearance from the security angle of the applicant. | The decision of issuance of a security clearance and obtaining it vests with the DGCA. However, some forms prescribed under the Rules require details of security clearance. This is contradictory because the details of the clearance cannot be provided unless the DGCA has issued it. | There is a need for more clarity on issuance of security clearance. |
| Rules 19 & 52: Authorisation and insurance requirements. | Mandatory insurance and authorisation requirements for Nano drones are unnecessary. | Relaxations on the mandatory insurance and authorization requirements for nano drones. |
| NA- Savings and repeals clause | Absence of a savings clause. Typically, in many statutes including the parent Aircraft Act, 1934 and the CAR, there exists a savings clause protecting the actions taken by the DGCA in good faith. | A lot of discretionary power vests with the DGCA under the Rules hence there is a requirement for a savings clause to protect actions taken in good faith by the DGCA. |
2. Neel Mehta [Director and Co-founder, Asteria Airspace]
- The Rules will supersede the CAR. The Rules provide a framework and do not specify all details regarding the regulation of UA. The details are expected to be specified by CARs that will be introduced subsequently.
- The Rules introduce new terms: Autonomous UAS, Drone Port, Drone Corridor and UTM. It is expected that CARs will be introduced specifying details on the functioning of these aspects.
- Provisions such as requiring clearance from Bureau of Civil Aviation Security (“BCAS”) and Ministry of Home Affairs to obtain operator permit have been done away with in the Rules, thus reducing some execution hurdles that previously existed in the CAR.
| Relevant provision in the Rules | Issue | Recommendations |
| Rule 4(i): Nano UA that exceed maximum speed in level flight to 15 meters/second or maximum attainable height limited to 15 meters and range limited to 100 meters. | Increased complication because of classification of UA based on operation. | Removal of this provision since classification of UA must be kept simple and in accordance with the weight of the UA. |
| Rule 8: To obtain an authorisation number to act as an Authorised UAS Importer / Manufacturer, / Trader / Owneror Operator. Rule 9: New authorisation required from the DGCA in case of change of credentials. | Overlap in the number of authorisations required to be obtained. No time period specified within which authorisation must be granted. | Authorisations to be obtained must be reduced, made uniform and have time-bound clearance. An Authorised Owner should not have to obtain authorisation again to transfer or sell the UA. |
| Rules 12(2)(a) & 14: Authorisation required for import and manufacture of a UAS or any part or component. | Approval required for import and manufacture of every part or component of UAS is unnecessary. India has not attained that stage where all components of the UAS are locally available. The country’s drone industry is heavily dependent on imports of various functional parts of the UA that are not locally procurable from the rest of the world. No clarity of testing standards mentioned to determine if it is a compliant UA. | Approval required for import of UAS or a part or component should be limited to cases in which the entire UAS is imported or major components are imported, but not to individual components. Components used in UAS may also be used in other industries, hence, authorisation requirements should be limited to cases in which UAS is manufactured as a whole. Clear testing standards must be laid down to determine if a UA is a compliant UA. It is recommended that such actions must be taken until India’s drone industry has advanced, stable and components of UAS are locally available. |
| Rule 15: Certificate of Manufacture to be obtained from DGCA. | No time frame mentioned for grant of such certificate. | A time bound system should be set up to obtain such certificate. |
| Rules 20 & 21: Only Authorised UAS Traders / Owners shall buy or sell or lease / own a UAS. | Rule 20 permits only Authorised UAS Traders to buy/ sell/ lease a UAS. Whereas, Rules 25 and 26 also permit Authorised UAS importers / manufacturers to sell or lease a UAS to an Authorised UAS Trader / Owner / Operator. Hence, there is a clear contradiction between the two Rules. | Rule 20 should be removed. Concept of an Authorised UAS owner should be removed. |
| Rule 51: Fees to be payable for certification, authorisation, license or permit. Rule 59: Power to inspect the UAS, UAS manufacturing, storage, maintenance facility, UTM facility or any other related facility for the purpose of granting an authorization, a certificate or a license. | No dedicated cell to facilitate UA operations. Currently, the personnel involved in operation of UA are also involved in the regulation of the manned aircraft industry, hence prioritising the latter. Bureaucratic provisions such as the power to inspect are used as a device for harassment. | Fees collected by the DGCA must be used to set up a specialised UAS cell in the DGCA that consists of personnel to facilitate the UA industry. Restrict powers of inspection to instances where such inspection is necessary. |
| Schedule II- Section A, (2) & (5): Requirements for specific equipment in UA: (a) UA flying above 400 feet to have SSR transporter/ADS-B OUT equipment; (b) Detect and avoid capability; (c) Emergency recovery system to ensure protection from damage and public injury. | Requirement in accordance with global standards. Research has shown that the ADS-B OUT standard can flood the frequency, as the number of transponders may overwhelm manned aircrafts. ‘Detect and avoid’ feature is unnecessary if the drone is operating in visual line of sight. There are no existing standards for this feature. All UAs don’t operate above crowds of people. Requiring every UA to have an emergency recovery system is unnecessary. There are no existing standards for this feature. | Until there is an established global standard, the ‘detect and avoid’ requirement should be removed. This requirement should be restricted to special operations such as drones operating over crowds. |
| NA | Research and development (“R&D”) is essential to the functioning of the drone industry. Compliance requirements are difficult to follow in the R&D stage. There is ambiguity with regard to the compliance procedure that is to be followed when the UA is still in the development stage. | Include provisions regarding R&D and relax requirements of authorisation when a UA is used for R&D purposes. Provide a timeline within which a UAS used for R&D purposes should be developed and meet compliance requirements. |
3. Rahul Jain [Founder and Managing Director, Matrix Geo]
- The drone industry is divided into the following segments which comprise the following percentages of the market: (i) Geo spatial and mapping (50-60%); (ii)surveillance / inspection / monitoring (10-15%); (iii) commercial cinematography (10%); (iv) individual photography (10%); (v) disaster management (5%); (vi) and delivery (2% – still evolving).
| Relevant provision in the Rules | Issue | Recommendations |
| Rules 6, 30 & 45: To obtain (a) authorisation from DGCA by importer, manufacturer, trader, owner or operator; (b) permission to fly a UA; (c) authorisation or license to establish drone port. | Multiple approvals to be obtained from various authorities / persons. | Single window approval should be provided for. |
| Rule 19: The draft Rules provide for the same registration process of Unique Identification Number (“UIN”) for all UAS irrespective of weight category. | Nano category drones are burdened with the obligation of obtaining a UIN even though the primary purpose of Nano drones is limited to recreational use. | Remove the UIN requirement for Nano category UA. |
| Rule 20: No person other than an authorised UAS Trader shall engage in buying or selling or leasing of a UAS or a part or a component thereof in India. | Indian drones are comparatively costly and have only a preliminary NPNT clearance. A subsequent license is required to be obtained in order to sell the UA. | This process is cumbersome and needs to be simplified. |
| Rule 30: To obtain permission on DSP for flight of a UA – under the NPNT policy. | It is impractical that permission needs to be acquired for each flight. This provision fails to consider flights in areas lacking connectivity and thus, unable to obtain required permission. | Requirement for permission for each flight should be restricted. Exemption should be provided for flights that take place in areas lacking connectivity. |
| Rule 32: Only a Licensed Remote Pilot shall operate a UAS in India except the Nano and Micro classes of UA. | Adequate systems to obtain a drone pilot license is not provided. No existence of training institutions with the power to grant drone pilot licenses increasing difficulty to obtain a drone pilot license. | Provide an adequate system to obtain a drone pilot license. |
| Rule 35: No imagery to be captured from a UA in flight of areas specified in Schedule VIII. | A No Objection Certificate (“NOC”) must be obtained from the MoD for data acquisition. This is in contradiction to Rule 35 that permits photography from UA without the NOC. | Provide clarification regarding the NOC to be obtained from the MoD. |
| Rule 51 & Schedule XI: The fee for authorisation, certification, UIN, license or permit. | Imposition of fee will increase cost of operations. Keeping in mind that this is a developing industry and facing competition, fees should be reduced. | Reduction of fee cost. |
| Rule 63: Cognizable and non bailable offences. | The classification of offences leads to legal prosecutions. There is skepticism with regard to the extensive power of the DGCA to prosecute an individual. | Provide clarity regarding legal prosecution required. |
| NA: Data acquisition | Data acquisition not addressed. | Clarity should be provided regarding the processing and managing of data acquired through usage of drones- hardware and software to process data. Privacy concerns regarding data collected (of individuals) should be factored in- such as to ensure that the data is not used for profiling. |
| Schedule I: Requirements for obtaining Authorisation as importer, manufacturer, trader, owner or operator. | Clearance from several departments such as Ministry of Home Affairs, Ministry of Broadcasting, Ministry of Defence (“MoD”), MoCA and DGCA is cumbersome and time consuming. | Provide a single window system. |
| Schedule II (Section A)(viii): SSR transponder or ADS-B OUT equipment is required to obtain a Certificate of Manufacture if intended to operate beyond 400 feet/120 metre above ground level. | No mention of the altitude for drone operations. However, they state that the transponder shall not go beyond 400 ft. The burden is on the manufacturer to ensure compliance with this provision. There is ambiguity on the altitude for flight of UA. | Clarify the altitude permissible for flight of UA. |
| Schedule V (3): Mandatory compliance of theNPNT requirement for all existing imported UAS prior to their operation. | Non-operational nature of DSP questions the relevance of NPNT. Need for NPNT in case of imported goods is ambiguous. The Rules fail to specify the manner in which NPNT will be applicable to a drone of a different specification or type than provided for in the rules. | Provide specifications of NPNT in case the UA is imported or developed for a specific purpose. |
4. R.K. Narang [Former Senior Fellow, Centre for Air Power Studies]
- The Rules do not cover the BCAS and MoD clearances as operations are not covered in detail in the Rules, and they might be addressed in CAR.
- The Rules give the impression that they are both applicable to civil and military. It is recommended to rename them as ‘Civil UAS Rules, 2020’.
| Relevant provision in the Rules | Issue | Recommendations |
| Rule 2: Definitions and interpretations. | Definitions of some terms are not covered. |
Include
definitions of:
(a)Non-Segregated Airspace (where both manned and UAs can fly as
technology progresses); (b) UAS Swarms, Logistics Supply UAS and Passenger UAS; (c) UAS Testing Sites; (d) Airworthiness & Systems Standards; (e) UAS Testing; (f) Trials; (g) Research and Development; and (h) Standardisation (in a particular class, system, sub-system so that clearances can be faster). |
| Rules 3 & 4: Categorisations and classifications of UAS and UA as: UAS: (i) Remotely Piloted Aircraft System; (ii) Model RPAS and (iii) Autonomous UAS and UA: Nano[1], Micro, Small, Medium and Large. | Other categories of UAS are not included. UAS of airworthiness above 300 kgs is not included. | Include UAS Swarms and Passenger UAS under the categorisation category of RPAS. Include separate classification for UA above 300 kgs to follow the Aircraft Act, 1934. It is recommended to divide this category in two parts. The first part of Large UAS Type I- including greater than 150 kgs up to 300 kgs.The second part of Large UAS Type II- including greater than 300 kgs where the defence rules come into play. Part IV of the Rules specify that the provisions for authorisation of import, certificate of manufacture and maintenance of UAS does not apply to UAS of more than 300 kgs which makes it necessary to define a separate category of UAS. |
| Rules 3 & 4: Categorisations and classifications of UAS and UA. | Testing centers specific for UAS categorisations and UA classifications is not covered. | Add following categories of testing centres: Type I Testing Centres: Airspace in three dimensions (length, width and height) for aerial testing, fire fighting, charging/refueling and ground testing facilities.Type II Testing Centres: Airspace in three dimensions (length, width and height) for aerial testing, fire fighting, charging/refueling.Type III Testing Centres: Airspace in three dimensions (length, width and height) for aerial testing. |
| Rule 50 (1): Power to order detention of the person in-charge of the UAS. | Detaining all UAS includes all categories of UAS. | Clarify whether this provision covers detaining all categories of UAS or on a case by case basis. |
| Rule 56 (2): Power of DGCA to dispense with the requirements of holding consultations on CARs. | Allows the DGCA to dispense with the requirements of inviting objections and suggestions or reduce the period for submitting such objections and suggestions regarding issuance of CARS. | Remove such discretion from the hands of the DGCA to not place the draft on the website and reduce the time period for comments to less than 30 days. |
| Rule 63 (1): Cognizable and non-bailable offences. | Categorises offences as cognizable and non-bailable offences. | A clause by clause examination must be undertaken to determine whether an offence should be non-bailable and cognizable. |
| NA | Airworthiness standards are not covered. | To add the category of ‘Airworthiness & Systems Certification & Standardisation in Manufacturing of UAS’. Add details of who will formulate airworthiness standards, systems standards and what will be the standardisation in manufacturing. |
| NA | No separate category of R&D of UAS. | To add a new part to the Rules – Part X, ‘Research and Development of UAS’ with the following: R&D of UAS, UTMs, associated technologies and systems would be undertaken as per the policies and conditions laid down by the DGCA. Different industries and sectors may come up with new technologies regarding UAS that may require testing.Development and trials requiring operations testing beyond designated testing sites conducted after approval from the DGCA and as per specified conditions.Separate registration / mechanism for testing of R&D drones as they would need to be tested. It is questioned whether there can be an official online system in which the DGCA allows R&D in this sector/where one can inform them that they are doing R&D. |
| Schedule I: Requirements for obtaining Authorisation as importer, manufacturer, trader, owner or operator. | Process of obtaining security clearance for Form UA1. | Security clearance from the MHA may be obtained and granted through the DSP instead of applying for it independently. |
5. Vignesh Santhanam [Lead, Aerospace and Drones Team at World Economic Forum]
- Drones have several use-cases in various sectors, such as healthcare, agriculture, and more and solve specific issues that it might be facing.
- Drones have faced resistance from regulators due to safety and security concerns in the sky as well as on the ground. However, there is a need for evidence-based decision and policy-making. There is a need to build a case for safety and gather evidence, so as to be able to present the idea that drones will be able to solve problems before regulators.
- Case study: World Economic Forum (“WEF”) has been working closely on a project in Rwanda where drones are providing a solution to greater issues of maternal mortality due to hemorrhage and blood loss. Even after the availability of all facilities including doctors and a fair amount of investment in infrastructure, Rwanda faces high mortality rates because of cases of blood loss. The approach taken by WEF in Rwanda to use drones to solve this greater healthcare conundrum was successful. In terms of saving lives and reducing mortality, WEF through the usage of drones was able to unfold a story before the regulators in the state of Rwanda and finally were able to hammer a policy which suited the low activity in the region.
- WEF is aiming to work with North Indian States as well. It is currently looking at engagement with the state of Arunachal Pradesh. WEF is planning to bring the principles of work done in Rwanda to the State of Telangana. WEF is on a mission to understand areas where drones can solve issues regarding healthcare, medicines, vaccines and even improving the blood network in the area. WEF is working on developing a blueprint with the States, clinical representatives to make their plan as functional as possible.
| Relevant provision in the Rules | Issue | Recommendations |
| Rule 36: Prohibition on carriage of payload by a UA. | Prohibition of carrying payload is covered in the frequently asked questions (“FAQ”) about the CAR and not the CAR itself. The legally binding document is CAR and not the FAQ. | Include provisions on the discharge of payloads. Provide clarity whether payload can be carried by a UA but cannot discharge / drop it or; cannot discharge / drop it from a drone in motion. |
Conclusion
The Rules are a step in the right direction as they can give the industry much needed regulatory certainty. At the same time, these Rules are going to form the basis for progress in the industry and it is critical that any shortcomings are ironed out during the consultative process itself. The objective of the webinar was to get stakeholders in the drone industry to engage with the Rules and identify the challenges they may present the industry. The panelists identified several bottlenecks that could impede the growth of the industry. Some of the recommendations to mitigate the issues that emerged from the discussion were: the establishment of an alternative paper based procedure for authorisation until digital sky is fully operational, providing for a single window clearance mechanism simplify the authorisation process, incentivising research and development by relaxing compliance obligations at the development stage and incorporating evidence-based policy considerations in making drone ports, drone corridors and UTM systems a reality. For the Indian drone industry to truly take flight, it is imperative that the Rules provide the necessary lift. This is a critical moment for the industry and all stakeholders must come forward and submit their comments to the regulator. The deadlines to send in comments is till 3 July, 2020. Comments can be emailed to hbiswas.dgca@nic.in or sent by post to Director-General of Civil Aviation, Opposite Safdarjung Airport, New Delhi-110003.
This post was authored by Sanah Javed and Sanjana Saxena, final year students at Christ University and Jindal Global Law School respectively, during their externships at Ikigai Law, and Saumya Jaju, Associate, with inputs from Aman Taneja, Senior Associate, and Anirudh Rastogi, Founder and Managing Partner at Ikigai Law.”
For more on the topic, please reach out to us at contact@ikigailaw.com
[1] The explanation to Rule 4 mentions that a Nano class UA shall be regarded in the next higher category if it exceeds either of the following performance parameters: (i) maximum speed in level flight limited to 15 meters/second; (ii) maximum attainable height limited to 15 meters and range limited to 100 meter from the remote pilot.
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