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Classifying Unmanned Aircraft Systems Classifying Unmanned Aircraft Systems: Developing a Legal Framework for the Purposes of Airworthiness Certification Michael John Morgan Nas Bachelor of Laws This thesis is presented for the degree of Master of Laws of Murdoch University 2015 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS Abstract Recent years have witnessed a paradigm shift in aviation through the evolution of unmanned aircraft technologies. However, despite the apparent potential, the integration of commercial unmanned aircraft systems (‘UAS’) into the civil aviation system has not been realised. Faced with increasing pressure from stakeholders for access to airspace, aviation regulators have adopted a cautious stance while debate about appropriate airworthiness certification takes place. Traditionally, airworthiness certification has played a central role in determining the rights and requirements for airspace use, leading to an acceptably safe system. As UAS operations may disrupt the safety balance, developing an airworthiness certification regime for UAS is critical to achieving routine airspace access. The topic of UAS classification arises as part of the debate about certification, given the practical need to establish different requirements for different types of UAS. This thesis analyses the current approaches to UAS classification, which derive primarily from technical perspectives. The current approaches diverge in relation to the appropriate methods and objectives; specifically, there is no agreed way to design or evaluate a UAS classification scheme. It is apparent that a ‘framework of reference’ that can align objectives is vital to progress. The goal of this thesis is to propose such a framework. Despite being noted as a complex legal question since 2004, limited legal consideration has been given to UAS classification. This thesis argues that a legal perspective explains UAS classification as an exercise in lawmaking, notwithstanding the technical aspects. Adopting this perspective, the legal techniques used to control the quality of laws can be applied towards the design and evaluation of UAS classification schemes in order to generate a ‘framework of reference’. This framework serves as a platform for more focused debate about and the convergence of the multidisciplinary knowledge necessary to progress the regulatory agenda for UAS. 3 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS Contents ABSTRACT 3 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS: DEVELOPING A LEGAL FRAMEWORK FOR THE PURPOSES OF AIRWORTHINESS CERTIFICATION 10 PREAMBLE 10 I OVERVIEW 12 II UNMANNED AIRCRAFT TECHNOLOGY AND THE LAW 24 A Developments in UAS Technology 24 1 Defining Modern UAS Technology 26 2 Terminology and Typology 28 3 The Market for UAS Technologies 34 B Developments in UAS Regulation 37 1 Growth of Regulatory Agenda for UAS Globally 38 2 UAS Continue to be Regulated by Exemption 43 3 Developments towards a Comprehensive Regime for Mainstream UAS Operations 44 III UAS TECHNOLOGIES CONFRONT THE EXISTING SAFETY SYSTEM 49 A Existing System has Evolved Over Time to the Current Level of Safety 50 B Certification of Aircraft: A Fundamental Component of the Existing System 53 C Existing System is Acceptable to the Public and Flight Freedoms Granted 57 D Current Status of UAS Operations 60 1 ELOS and the Precautionary Principle 60 2 Market is Seen as Extremely Lucrative but ELOS Creates Uncertainty 61 3 Difficulties in Controlling UAS Usage 63 4 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS E Certification and Classification of UAS: Current Approaches 64 1 Lack of Airworthiness Certification Basis or Pathway 65 2 Lack of Knowledge regarding Assessment of Risk 69 3 Lack of Ability to Assess Market Impact 73 4 Lack of International Harmonisation 75 IV CLASSIFICATION AS A LOGICAL STARTING POINT IN CERTIFICATION 78 A The Nature of Classification 78 B Issues of Classification are Inherent in the Certification Challenges 81 C Difficulty in Addressing Regulation without Classification 83 D Current Approaches to Classification 84 1 Regulatory & Standards Setting Approaches to the Classification of UAS 85 2 Technical Approaches 97 3 Legal Approaches 108 V ASSESSMENT OF THE CURRENT APPROACHES TO UAS CLASSIFICATION 112 A The Importance of Classification to UAS Certification 112 B The Core Aspects of Classification: Purposes, Methods, Structures and Key Decisions 116 1 Purposes 117 2 Methods 119 3 Structures 120 4 Key Decisions 122 C Current Approaches have not Resulted in Consensus 126 1 Lack of Consensus as to the Purposes, Methods & Structures in Current Approaches 126 2 Lack of Consensus as to Key Elements 128 D The Need for a framework of reference for UAS Classification 138 1 No consensus as to the desiderata for UAS classification 139 2 Lack of Reference Point by which to Weigh and Evaluate Desiderata 141 5 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS 3 The Properties of Effective Regulation 143 VI UAS CLASSIFICATION FROM A LEGAL PERSPECTIVE 145 A UAS Classification in Context: A Multidisciplinary Issue 146 B Limited Consideration of Legal Context in Current Approaches to UAS Classification 147 1 Limited Substantive Consideration by Legal Sources 148 2 No Detailed Analysis of Classification from a Legal Perspective 149 C Legal Classifications are Unique 151 D Applying a Legal Perspective to the Current Approaches 154 VII DEVELOPING A FRAMEWORK OF REFERENCE FOR UAS CLASSIFICATION 159 A The Regulatory System 161 1 The Regulatory Regime 161 2 The Regulatory Process 162 B Guidance for Classifying UAS Obtained from Understanding Regulatory Nature 164 C Classification for the Purposes of a Certification Regime 166 D Guidance Obtained from the Regulatory Regime 168 E Guidance Obtained from the Regulatory Process 173 1 The Requirement to Make Rules 176 2 The Requirement that Rules be Workable 177 3 The Requirement to Publicise Rules or Make them Available 178 4 The Requirement for Some Stability in the Rules 178 5 The Requirement that Rules be Impartially Interpreted and Applied 179 F Applying the Legal Guidance 181 VIII CASE STUDY OF CLASSIFICATION FROM A LEGAL PERSPECTIVE – CASR PART 101 184 A CASR Part 101 Classification Scheme 185 B Purpose 185 C Method 188 6 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS D Structure 189 E The Key Decisions 191 1 Criteria 192 2 Class Boundaries 195 3 Class Designations 198 4 Applicable Rules 199 IX A WAY FORWARD – APPLYING A LEGAL PERSPECTIVE TO CLASSIFICATION 203 A Development of an Evaluative Tool for Classification 203 B General Conclusions and Future Directions for Study 207 X SUMMARY 212 APPENDIX 1: SELECTION OF CLASSIFICATION CRITERIA 219 A Mass / MTOM / MTOW 219 B Kinetic Energy 220 C Risk Metrics 221 D Airspace Categories 222 E Other Possibilities 222 APPENDIX 2: DEFINITION OF CLASS BOUNDARIES 224 A Adopting or Translating Boundaries from Manned Aviation Regulations 224 B Natural Tendency 225 C The Related Question: How Many Classes? 226 APPENDIX 3: GLOSSARY 228 APPENDIX 4: ACRONYMS 231 BIBLIOGRAPHY 233 7 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS A Articles / Books / Reports 233 B Cases 241 C Legislation, Regulatory Proposals and Related Materials 241 1 General Australian Legislation 241 2 Australian Aviation Legislation and Regulatory Materials 241 3 Canadian Aviation Legislation and Regulatory Materials 242 4 European Aviation Legislation and Regulatory Materials 242 5 United Kingdom Aviation Legislation and Regulatory Materials 243 6 United States Aviation Legislation and Regulatory Materials 243 7 International Regulatory Materials 244 D Treaties 244 E Other 244 TABLES 254 FIGURES 256 8 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS Acknowledgements I am grateful to Dr Reece Clothier currently of RMIT University, Melbourne, for his assistance and insights in relation to the technical aspects of UAS regulation during the earlier stages of this thesis. I am similarly grateful to my supervisors, Professor Jürgen Bröhmer and Dr Jo Goodie for helping me to visualise and reach the later stages of this thesis. To those of my family, friends, employers and colleagues who have endured the years in between, thank you for supplying the stable platform and the motivation I required to undertake this study. To Janelle, my words of thanks cannot repay the patience, kindness and care you have shown me throughout, nor the support you have freely given. 9 CLASSIFYING UNMANNED AIRCRAFT SYSTEMS Classifying Unmanned Aircraft Systems: Developing a Legal Framework for the Purposes of Airworthiness Certification Preamble In an article entitled ‘Golden Greats’ featured in the September 2013 issue of F1 Racing Magazine, which celebrated 50 years of the McLaren Formula 1 team, journalist Paul Fearnley considered which three F1 cars were the ‘best’ cars produced by the McLaren outfit in its history.1 It was a daunting task, as he explained: The 60 iterations of the 39 models produced by McLaren have scored more than 180 poles and recorded more than 150 fastest laps. They have created seven champions – Fittipaldi, Hunt, Lauda, Prost, Senna, Hakkinen and Hamilton, with 12 titles between them – and won eight constructors’ titles… This means there are plenty to choose from when it comes to picking a golden anniversary top three. That, of course, makes the process more difficult, not easier… And by what parameters are they to be judged? Objective statistics provide a framework of reference, but subjectivity is what colours the final decision…2 Many of the McLaren cars had claims to being the best, based on a variety of attributes, some of which were inherently subjective (for instance, ‘design breakthroughs’ or ‘aesthetic appeal’). Difficulties of this kind plague any assessment in which one is asked to select the ‘best’ option from a number of possibilities when there is no readily accepted means of doing so. Strange as it might seem, these are similar difficulties to those confronting aviation regulators as they tackle the task of regulating emerging technologies such as unmanned aircraft systems (‘UAS’).3 There are so many types of aircraft that no single rule can govern them all. The quest to find more tailored regulatory solutions has created a maelstrom of possibilities, each with their own strengths and weaknesses. These solutions 1 Fearnley, Paul, ‘Golden Greats’ F1 Racing (Middlesex), September 2013, 48.
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