The United States Is Not The Only Game In Town

As the Federal Aviation Administration moves forward with its promised rulemaking, let’s not lose sight of the fact that most of the world permits the use of UASs. In a series of continuing posts, we will focus on how you go about operating UASs outside the United States . . . the rules, the procedures, and applicable timelines.  Because of its proximity to the U.S. and the fact that there are so many moviemaking, pipeline, power lines, flare stacks, natural resources and other UAS uses present there, we start this series with Canada.

The Canadian Aviation Regulations (“CAR”) define “unmanned air vehicle” as “a power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board.”  CAR 101.01(1).  Transport Canada is responsible for the conduct of civil Unmanned Aerial Vehicles (UAVs).  It is Transport Canada policy that UAVs operating in Canada must meet “equivalent” levels of safety as manned aircraft.  See Transport Canada Staff Instruction (SI) No. 623-001, ¶ 4.3(1).  UAVs should generally be operated “in accordance with the rules governing the flight of manned aircraft and meet equipment requirements applicable to the class of airspace within which they intend to operate.”  Id.

Regulations governing UAVs are set forth in Division IV — Miscellaneous Special Flight Operations.  See CAR 603.65(d).  Under CAR 602.41, “[n]o person shall operate an unmanned air vehicle in flight except in accordance with a special flight operations certificate [SFOC] or an air operator certificate.”  See also CAR 603.66 (requiring that UAV flight operations be conducted in compliance with the provisions of an SFOC).[1] Standards for applications to operate UAVs are enumerated in 623.65(d).  The SFOC requirement is intended to ensure safety of the public and to protect other users of the airspace during operation of the UAV.

Before an SFOC will be granted, Transport Canada must be convinced that the applicant is sufficiently familiar with the applicable aviation regulations and is capable of conducting the proposed operation safely.  Once an applicant demonstrates the ability to conduct the flight operation in accordance with the Special Flight Operations Standards, “the Minister shall, on receipt of an application submitted in the form and manner required by the Special Flight Operations Standards, issue a special flight operations certificate.”  See CAR 603.67.

An application for an SFOC for the purpose of conducting the flight of a UAV must be received by the appropriate Regional Transport Canada General Aviation Office at least 20 working days prior to the date of the proposed operation, or by a date agreed upon between the applicant and Transport Canada.  Id. at 623.65(d)(2).  The regulations do not require the application to be fully processed by Transport Canada within 20 days, however.

Certificate holders are required to have adequate liability insurance covering risks of public liability, as a condition in the SFOC.[2] Depending on the operation and its location, other potential issues include (1) coordination of airspace requirements with the airspace service provider (i.e., NAV CANADA, DND or Serco); (2) frequency spectrum issues such as licensing of certain radio communication equipment or systems and/or assignment of radio frequencies if the frequencies being used are not licence exempt, such as 900MHz; and (3) radiotelephone certificates/radio licenses.  See SI No. 623-001, ¶¶ 4.8 -4.9.  There is currently no protected spectrum allocated for civil UAVs. See id. at ¶ 4.8 and accompanying Information Note.

SI No. 623-001 makes clear that at least initially, a certificate applicant can expect a SFOC to be issued on a mission-specific basis:

A Certificate applicant will not be granted a long-term authority (i.e., one year), and/or an authority that is not site specific, without a history of demonstrating that the operations have been conducted in a safe manner.  Once an initial application has been made and a Certificate has been issued, subsequent SFOC applications should be expedited.  For example, if the mission changes, but other parameters remain the same (same UAV system, same UAV pilot) then the focus in processing the next application will be placed on assessing the suitability of the area used for the operation.  Where the operating environment and the mission requirements change, the set of safety requirements that the Minister will impose will change accordingly.

SI No. 623-001, ¶5.1(2).  This suggests that once an initial SFOC is granted and the approved mission proceeds successfully, subsequent applications should proceed more quickly, and Transport Canada Civil Aviation will likely be more willing to grant certificates that provide for increased authority to carry out operations over longer periods of time.  See id.

[1] It is current Transport Canada policy that SFOCs, and not Air Operator Certificates, be issued to persons wishing to operate civil UAVs in Canada.  See SI No. 623-001 at ¶ 4.3(2).

[2] The liability insurance requirements referenced in SI No. 623-001, ¶4.6 indicate that, as a condition in the SFOC, applicants must subscribe to “adequate” liability insurance covering risks of public liability, as outlined in CAR 606.02 which, in turn, does not address the required insurance amount that would apply to most commercial small UAV operations.  Various Canadian UAV-related publications generally refer to a minimum of $100,000 in liability insurance for small commercial UAVs, but this requirement should be further clarified with the regional Transport Canada office early in the application process.

(Originally posted August 13, 2014)

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