POLICY

REGULATORY TRIBULATIONS OF DRONES
BY GP. CAPT. AK SACHDEV ( RETD.)

Human avarice endows commerce with powerful dynamics which often militate with societal and regulatory norms and constraints; the ongoing drone proliferation demonstrates this amply.

Technological advances in drones, and appreciation of their emerging commercial munificence, have led to a great deal of interest in their employment for business and commercial activities.

India’s resurgent economy, notwithstanding a temporary setback due to Corona virus, has seen an immense interest in drones; indeed, there is a mushrooming market for drones of all sizes and with variegated payloads and capabilities. The beginnings of this revolution of sorts was visible almost a decade ago and so were the associated risks and hazards, and we should have been ready to regulate its intricacies. However, for various reasons, our regulatory oversight of drones is rather unconvincing at the moment.

REGULATORY INFIRMITIES
Starting with innocuous remote controlled toy drones at the beginning of the decade gone by, the market was inundated with their presence in the market (and their size)growing at a disquieting pace. As the process of regulating their use was lagging pitiably, a blanket ban was put into place in 2014as an interim, short term measure with the laudable intent of simultaneously drawing up exhaustive regulations to control drone flights in Indian airspace. The intent, however, was not matched by the actions thereafter, and it took an inordinately long time for Director General Civil Aviation (DGCA) to promulgate Civil Aviation Requirement (CAR), Section 3 – Air Transport Series X, Part I Issue 1 on August 27, 2018.

The CAR uses the technical term Remotely Piloted Aircraft (RPAs)for drones and regulates their use in the Indian Airspace; itstipulates the process for obtaining Unique Identification Number (UIN), Unmanned Aircraft Operator Permit (UAOP), and other operational requirements including identification of civil drones and drone operators.The drone operators are required to register their drones on the online portal after which a drone Acknowledgement Number (DAN) and an Ownership Acknowledgement Number (OAN) is issued online which would help in validation of operations. However, this does not give drone operators to fly drones in India without permission. Only around 20,000 drones are registered with MoCA but the number of drones being flown without registration and without permission for various purposes is much larger due to the excessive delay in promulgating the CAR and the inability of the regulatory machinery to ensure the ban prevalent between 2014 and 2018.

The establishment of a Digital Sky platform was envisaged as a system to regulate drone flights but it was not ready at the time when the CAR was issued; its partial readiness was announced on 01 December 2018. Digital Sky concept is a massive framework which needs to be comprehensive, complex and data driven. Unfortunately, users and manufacturers alike remain largely unaware of its technical requirements. India has a unique No Permission – No Takeoff (NPNT) clause which means that a drone needs to be configured with a special software and/or hardware in such a manner that unless the regulatory permission is given through Digital Sky platform, a drone cannot fly.

In other words, until the NPNT is incorporated into its design, a drone manufacturer should be unable to sell drones in India.However, while the NPNT compliance has been granted only to 19 companies (details at https://digitalsky.dgca.gov.in/RpaTypeList), the drone market is inundated with non-NPNT compliant drones doing brisk business at attractive rates. The problem appears to be that while NPNT is a great idea, enforcing it has become a headache for the regulator as it is still struggling with implementing a system to keep a check on the hardware and software capabilities of drones as there are very few labs to ascertain these standards.

On June 2 this year, MoCA published a Gazette Notification with a draft “Unmanned Aircraft System (UAS) Rules 2020”; the draft introduced some changes from DGCA’s 2018 CAR mentioned earlier. The important changes are aimed at tweaking the five categories of drones, eligibility of persons authorised to manufacture, import, trade in, own or operate drones, Unique Authorisation Number (UAN) rules, change in UAN/UIN/UAOP/Pilot License fees, and the import of non-compliant drones into India. MoCA had given a month’s time for stakeholders and the general public to submit comments. Expectedly, there were many inputs, possibly the most significant being a 43 page document from the Drone Federation of India (DFI), a non-government, not-for-profit, industry led body promoting unmanned aviation industry in India. Federation of Indian Chambers of Commerce and Industry (FICCI) has recommended that the rules provide for setting up of a single window mechanism to obtain all clearances and approvals necessary for procuring and operating drones in the country. Hopefully, these inputs will be accommodated in the final Rules which are yet to be promulgated.

It is also hoped that the final Rules will address the restrictions on entities owned by foreign players or their controlled Indian subsidiaries, as they are not allowed to register as an Authorised Person under the Rules; this restriction is a dampener for foreign investors interested in investing in e-commerce companies that want to use drones.

CONCLUDING REMARKS
Different sources estimate the number of unregistered drones in Indian skies is to be between two to six lakhs and future projections predict a growth of around ten lakhs per year for the next five years or so. The numbers do not matter so much as the fact that the proliferation appears to be unbridled with the regulatory mechanism not yet in convincing control of the growth. It is not just the commercial impetus or the aviation enthusiasts who are responsible; some of the state governments (at least eleven) are known to have flouted DGCA regulations and employed drones for variegated purposes, sheltering behind the abnormal conditions imposed by the Corona pandemic.

The proliferation is certain to continue unabated even after the final Rules are promulgated as the DGCA is not geared up to exercise stringent control and oversight over drone use. Their small size renders it impossible to keep visual or radar surveillance in place to uncover transgressions of the CAR/Rules. Moreover, DGCA is short of personnel even for oversight of its other aviation responsibilities. In short, the Rules would be inadequate to ensure that only authorised, NPNT complaint drones get airborne after due clearance and unauthorised ones are denied use of Indian airspace. The only other alternative is to crack down on manufacture and import of drones, which again appears to be beyond the government’s current attention span.

Besides the problems posed by unbridled and irresponsible use of drones to public privacy and security, and the risks and hazards drones pose to non-drone civil and military aviation, there is also the spectre of an impending audit by International Civil Aviation Organisation (ICAO) in January 2021; if by then we do not have a convincing regulatory regime in place for drone operations, India may be vulnerable to another ignominious downgrade (as inflicted upon it in 2013).

(The author has more than four decades of aviation experience in the IAF and in civil aviation and was Chief Operations Officer of an airline.)