As promised, Transport Canada has taken the first step toward making beyond visual line of sight (BVLOS) drone operations a reality in Canada. On April 23, 2020, Transport Canada revealed a potential regulatory pathway in a Notice of Proposed Amendment for BVLOS operations and expanded and even more permissible visual line of sight operations (the NPA).
The drone or remotely piloted aircraft systems (RPAS) industry continues to grow in Canada and other countries and has significant economic potential. However, the industry has consistently reported that the regulations, or a lack thereof, are a barrier to economic growth in the Canadian drone sector. Regulations permitting BVLOS operations are a key step to commercialization and complex operations.
This article discusses the details of the consultation process for new aviation regulations and provides a summary of the proposed BVLOS framework and other changes to Canada’s drone laws in the NPA.
CARAC process
The Canadian Aviation Regulation Advisory Council (CARAC) is involved in “assessing and recommending potential regulatory changes through cooperative rulemaking activities” with the Canadian government and industry. Where aviation regulatory issues impacting safety are raised (either by government or by stakeholders), CARAC will conduct a “preliminary issue and consultation assessment”. Where regulatory changes are deemed appropriate, the regulatory proposal is issued by way of a notice of proposed amendment by Transport Canada and CARAC. Commentary and feedback are solicited from CARAC members, the public and the stakeholders on the proposed regulatory changes set out in the notice of proposed amendment.
In this case, the NPA set out a number of proposed changes to allow for lower risk BVLOS operations and to expand the permissible VLOS operations. While these proposed changes are not law, they are an important precursor to the possible future regulations. The comment period for the NPA ended June 22, 2020.
After the completion of a consultation period for the proposed regulatory changes, the next step in the Canadian government’s rulemaking process requires that a further version of the regulatory changes be published in the Canada Gazette. It appears that Transport Canada is targeting pre-publication date in Canada Gazette, Part I, in mid-2021, though no date has yet been finalized. The target publication date in Canada Gazette, Part II, will likely be around mid-2022, following which that final version of the regulations will become law.
Details of the proposed changes to VLOS and BVLOS regulatory framework in the NPA
Current regulations in Canada relate only to the use of lighter drones (those weighing less than 25 kg) conducted within the operator’s visual line of sight. Heavier drones may be operated with the special advanced permission of Transport Canada. The NPA proposes to expand the types of operations permissible without advanced permission from Transport Canada.
While the proposed amendments in the NPA are general, there are four notable developments beyond the existing permissible operations:
- permitting lower risk BVLOS flights without the need for a special flight operation certificate (SFOC);
- expanding permissible VLOS operations by allowing heavier drones (those weighing from 25kg-650kg);
- requiring declarations of airworthiness for drones; and
- changes to operational certificates and pilot certification.
The NPA does not address more complex and higher-risk BVLOS operations, such as regular door-to-door package delivery in population centers and the carriage of passengers by drone but will be part of future amendments that will take place later.
Overall, the regulatory environment will become more complex but also will unlock further commercial uses for drones.
1. Permitting lower-risk BVLOS operations:
Under the existing regulations, in order to operate a drone BVLOS, a pilot or organization must apply for an SFOC. The NPA proposes BVLOS operations based on weight and four types of operating locations: basic or isolated environment, near people, over people and in controlled airspace. Removing the need to obtain an SFOC for some BVLOS operations is a significant step forward.
The NPA includes a helpful chart for the requirements for lower-risk BVLOS operations (see NPA, page 8):
2. Expanding permissible VLOS operations:
Under the NPA, more VLOS operations will be permissible without the need to obtain an SFOC.
The requirement for an SFOC for VLOS operations for drones weighing between 25kg – 650kg will be removed and replaced with “Declaration” or “Declaration Plus” categories (discussed below), and for pilots, either an advance pilot certificate or an operational level rating (also discussed below) will be required.
As with the BVLOS operations, the NPA also includes another helpful chart to summarize the changes to permissible VLOS operations (see NPA, page 9):
3. Declarations of Airworthiness:
Manufacturers and operators alike should take note of the proposed levels of product airworthiness for drones before they will be permitted to fly on certain missions. Depending on the risk-level of the operation, different airworthiness requirements will apply:
- Low risk operations: no product engineering or airworthiness requirements. This is similar to basic operations under Part IX of the Canadian Aviation Regulations(CARs).
- Declaration: similar to advanced operations under the Part IX of the CARs, the manufacturer would be required to submit a safety assurance to Transport Canada in accordance with the existing and new requirements under Standard 922 to the CARs.
- Declaration Plus: this declaration is intended to act as a step between RPAS requiring a Declaration and RPAS that will eventually be subject to an accreditation process. Transport Canada anticipates that this can be fulfilled by submitting: (a) a declaration using specific industry consensus standard as a means-of-compliance; (b) a declaration with all supporting evidence of compliance; or (3) a declaration that is supported by testing and evaluation that has been supervised and/or endorsed by a third party.
- Full accreditation: the NPA did not provide details around what would be involved in the accreditation process but we expect that it will be an involved process for manufacturers of drones conducting higher-risk operations.
4. Operator certificates and pilot certification for operational level rating:
The VLOS regulations currently provide for two types of operator certifications: one for basic operations and one for advanced operations. The NPA proposes two new, additional certifications: (1) a RPAS Operator Certificate (ROC), similar to traditional aviation Air Operator Certificate but appropriately scaled for lower-risk BVLOS operations; and (2) a pilot certification known as a RPAS Operational Level Rating.
The introduction of a ROC would be intended to create a framework for an organization or an individual to have certain elements and processes to ensure that risks are being managed. Before receiving an ROC, operational requirements will need to be validated by an Organizational Proficiency Check (OPC). A third party who meets certain criteria and training, such as an Advanced Pilot Certificate with a Flight Review rating and has receiving training on performing an OPC as well as Specific Operational Risk Assessment (SORA) training would perform the OPC.
At this time, Transport Canada has not announced what will trigger the requirement for a ROC but consideration will be given to the weight of the drone, size of the organization, geographical location of the organization, the number of pilots, and the size of the drone fleet.
Transport Canada also noted that it was looking to introduce a graduated pilot certification process that builds off the existing regime under Part IX of the CARs in order to reflect that additional operator knowledge and skills are required to fly BVLOS, including a higher level of airspace knowledge, weather, human factors, risk management, radio theory and usage, command and control linkages, and navigation. To achieve an RPAS Operational Level Rating, pilots must have an Advanced Pilot Certificate, be at least 18 years old, complete ground school and flight review, and be mentally fit to operate the aircraft safely.
Other notable takeaways:
Other notable takeaways from the NPA include:
- Detect and avoid (DAA): Transport Canada anticipates that DAA will be required in all BVLOS operations except for those operating in air risk “Class A” (isolated areas without traditional aircraft).
- Remote identification: Remote ID is an important factor for remote-traffic management and airport security. Transport Canada is assessing requirements and operational needs but no further detail has been provided, including whether and when Canada may see regulations relating to remote ID of drones. The NPA acknowledges the FAA’s proposal published in December 2019. While Transport Canada requires drone operators to register their drones, they have not enacted regulations regarding remote ID, nor have they taken a position on remote ID generally. In March 2021, the FAA announced their final rules on remote ID will come into effect on April 21, 2021. It remains to be seen whether Transport Canada will follow suit and implement their own regulations regarding remote ID of drones.
- Mandatory Insurance: Transport Canada is also proposing to require liability insurance in some cases. The NPA did not provide further detail but mandatory insurance was a topic discussed at length the VLOS regulations were released in 2019 (which do not require operators to carry insurance). For a discussion of the VLOS regulations that came into force in June 2019, please click here.
Conclusion
The period for commenting closed on June 22, 2020. To date, a only few industry participants have publicly shared their comments including the Canadian Owners and Pilots Association, Ultralights Pilots Association of Canada, Experimental Aircraft Association and the Helicopter Association of Canada. Such comments expressed safety concerns and issues with the use of population density as the criteria of the air risk analysis.
Regulations for BVLOS will provide greater certainty for the industry and will pave the path for commercialization. We will continue to monitor the developments in this area, including when the BVLOS regulations are published in the Canada Gazette, Part I.
For more information about drone regulatory laws, please contact Kathryn McCulloch, Rachael Andrew or any other member of the Dentons’ Aviation team.
