This article is written by Gitika Jain pursuing BBA.LLB (Hons) from Amity University, Kolkata. This article deals exhaustively with the draft on UAS Rules 2020.
The ongoing pandemic Covid-19 has created a need for the use of Unmanned Aircraft Systems UAS/drones and have made the authorities realise that the current laws for civil operations of drones had some major points missing. Therefore a new draft, Unmanned Aircraft System Rules 2020, was introduced on 2nd June 2020 by the Indian Ministry of Civil Aviation. The Aircrafts Act 1934 has conferred the power to issue rules to the central government under Section 4, 5 and 8(2). The regulations passed by the director-general of civil aviation on December 1, 2018, will be superseded by the new draft UAS rules. Some of the important features of the draft UAS rules are discussed in this article.
The draft UAS rules will be applicable to all UAS registered in India even if they are being operated outside Indian territory unlike the previously existing guideline, the applicability of which is limited only to the Indian territory. Everyone seeking to own or possess, or seeking to engage in manufacturing, trading, leasing, operating, transferring, importing, or maintaining a UAS in India are required to comply with the provisions of this new draft.
Classification of UAS
The existing guidelines were limited only to RPAS (Remotely Piloted Aircraft Systems) but the draft UAS rules has following classifications:-
- RPAS – remotely piloted aircraft system (piloted from a remote pilot station)
- Model remotely piloted aircraft system (operated without payload and used for educational purpose only)
- Autonomous unmanned aircraft system (do not require pilot intervention in the management of the flight)
The categorisation of UAS is similar to that of existing guidelines with only one exception, that is, if the nano drone exceeds the stipulated performance parameter based on the maximum speed, height and range attainable then there can be an introduction of reclassification norm of Nano drones into micro drones. The exception might have an impact on the current micro drone system and may impose challenges on the manufacturers of drones. The existing guidelines which used certain conditions for drones have for now been exempted for the drones to follow. In order to restrict Nano drones to exceed the said speed and height limits, the manufacturers have to inbuilt geofence capabilities to restrict their operations.
The existing guidelines required only the UAS operators, manufacturers and importers to seek permission, licences and approvals but the Draft UAS rules now require every person who is associated with the drone ecosystem to register themselves in the capacity of unauthorised UAS importer, authorised UAS manufacturer, authorised UAS trader, authorised UAS owner, and authorised UAS operator and applied through digital sky platform meeting all the terms and conditions as prescribed in schedule I of the draft UAS rules. The eligibility criteria to obtain a licence under UAS rules are:
- the individual applying for the licence must be an Indian citizen and obtained the age of 18 years.
- the company or body corporate applying for the licence whose ownership vests with Indian nationals and is registered within India and whose chairman and at least two-thirds of its directors are the citizens of India.
- any form of association of persons, a body of individuals or local authority seeking for the licence may or may not be incorporated but the ownership of which must be with the Indian nationals.
Once an individual or a group becomes eligible as an authorised person they are required to submit an application as prescribed under Schedule I of the draft UAS rules after which it will be provided with Authorisation Unique Number (AUN) which has a validity of 5 years unless it is suspended, revoked or cancelled and can be renewed for another 5 years. There is no such timeline laid down in the draft UAS rules within which Directorate General of Civil Aviation (DGCA) would provide authorisation to the applicants. Thus, there remains an ambiguity with respect to the time required to be obtained for authorisation. There are few things that remain the same irrespective of the new draft UAS rules. For example, the restriction on the eligibility of foreign entities for their Indian subsidiaries is still the same that is not allowed to be registered as an unauthorised person. However, the restriction imposed on them can be considered as a drawback at a domestic level considering their capabilities in the foreign industry and the potential of technology collaborations. This step also restricts foreign players to invest in Indian UAS market.
Import of UAS
The procedure laid down under draft UAS rules regarding input is a multistep process where the importance of UAS is required to comply with certain rules that is to obtain a certificate of manufacture from DGCA via digital sky platform. DGCA after being satisfied recommended application for clearance to Director General of Foreign Trade (DGFT). No exemptions have been provided for nano category drones in draft UAS rules as that provided in the existing guidelines.
Certificate of manufacture
The new certification requirements have been proposed by draft UAS rules in the form of a certificate of manufacture along with the requirements specified in the draft UAS rule. The term manufacture has been defined as a person who manufactures and assembles the UAS or any part of it. The requirement to obtain the certificate of the manufacturer will be applicable only to the authorised UAS manufacturers or importers who are engaged in manufacturing or importing of UAS or elements of it. The draft UAS rules here are different from that of the existing guidelines where the manufacturer standards were only limited to the manufacturers and importers of assembled drones. Extending the requirement of certification to manufacturer and importers of different parts can have an adverse impact on the drone industry of India because:
- The domestic players basically depend on imported spare parts for manufacturing in India.
- Different certification may be required for manufacturing a drone or other parts related to it.
- The components used in manufacturing drones can have an alternative uses and hence it creates an ambiguous situation on the applicability of the new draft.
If an individual wants the certificate of manufactures DGCA has reserved the power to choose from the various testing laboratories and organisations to carry out the testing of drones. The term component has not been defined in the draft UAS rules. Components include both hardware and software elements of UAS. Since the foreign importers are at a greater hand than the Indian drone industry, the majority of the Indian UAS manufacturers rely on the foreign importers for their hardware or software components for manufacturing a UAS. This creates a burden for the domestic manufacturer to obtain a certificate of manufacture even in situations where only one or two parts are being imported from foreign and not the entire UAS. Since the procedure of obtaining a certificate for the domestic manufacturer is very long because they rely on the foreign importers for different parts of UAS, the draft rules are silent on any timeline for the grant of certificate of the manufacturer to the applicant. For issuing the certificate of manufacture there is another requirement to obtain Equipment Type Approval (ETA) from (WPC) Wireless Planning and Coordination wing of India’s department of telecommunication duty in order to operate drones in the areas where the licence is not required and test it out for that purpose. Another requirement for issuance of a certificate of manufacture is, it is also required for Nano category drones.
Maintenance of UAS
The proportion by draft UAS rules to prohibit the operation of any UAS, unless and until it is maintained by the draft UAS rules has been put forward. The term maintenance means the performance of the task that is required to determine the airworthiness of UAS which may also include any defect, rectification, embodiment, modification, repair test, overhaul, inspection or replacement at the time when the UAS is being tested.
A maintenance manual must be submitted to DGCA by every UAS manufacturers and importers in order to ensure that all requirements and procedures are being met on a compulsory basis. Submission of maintenance manual is an important part of every manufacturer or importer that is authorised UAS. The manufacturers and importers of UAS are also given permission to establish authorised maintenance centres as and when the same has been published by DGCA. The ownership of such maintenance centres or a question of fact because they are not required to be owned and controlled by the authorised person under the draft UAS rules.
Ownership sale and purchase of UAS
A mandatory UIN must be there with the UAS in order to get permission to be owned and operated in India. The draft UAS rules also provide that it is important for the authorised UAS manufacturers or authorised UAS importers to obtain the UIN and for each UAS before transferring it to the UAS trader or owner. The UIN must be affixed on the UAS in a visible manner. Unlike existing guidelines, the UIN will also be required for Nano category drones. Any sale, transfer or lease of UAS will have to seek permission from the authorised person as prescribed under draft UAS rules. In a case where the UAS is being sold, the authorised importer or manufacturer will have to seek permission from the trader or the owner in India. Therefore it can be concluded that UAS operators are not permitted to own a drone. When a fact is not clear whether the person can obtain different authorisations under the draft UAS rules, the ownership cannot be given to the UAS operator. A person who is authorised to sell or lease UAS to another authorised person has to seek permission from DGCA first.
The guidelines which have been prescribed in the draft UAS rules are mandatory to be followed for any authorised UAS manufacturers importer trader or owner. The draft has certain provisions that talk about penalties in cases where the contravention of such provisions have taken place. Those provisions have relied upon the provisions of Indian penal code 1860 and some relevant sections from Aircraft Act 1934 or Aircraft Rules 1937. In order to ensure that there are no situations of ambiguity, the draft UAS rules have made sure to include penalty provisions. They are:
- The offences which are punishable with imprisonment for a term not exceeding two years of fine that does not exceed one lakh rupees or with both.
- Offences which are punishable with imprisonment for a term not exceeding six months or with fine which does not exceed 50000 rupees or with both.
However, the accident-prone nature of the drone has also been included in the new draft and have been laid down now that it shall be a valid defence to any of the proceedings under the new draft if any contravention occurs because of the bad weather or any other reason due to which accident has occurred.
The introduction of the new draft UAS rules is no doubt one step forward of the existing guidelines. The various provisions included in the draft have some novel concepts that enhance the Indian drone ecosystem and it also has various regulatory aspects which are exempted under the existing guidelines. To achieve the objective of the new draft it is important that the steps included in the draft must be followed rigorously. Before the draft, UAS rules become a law it has to go through the test of public comments. The Ministry of Corporate Affairs has invited the various comments, suggestions and objections from the public on the new draft UAS rules till July 4th 2020. This gives the public an opportunity to raise their voice to the stakeholders to ensure transparency and the foreign players the easier manner to invest in it. The suggestions and comments to DGCA on the draft UAS rules proposed are taken into consideration and will be worked upon effectively to make a strong drone policy-related advocacy efforts.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: