28 October, 2017
It is no secret that unmanned aircraft systems (UAS), or drones, are becoming more popular in Hong Kong. It is estimated that there are now over 5,000 drones in Hong Kong[1], some of which are flown in a variety of commercial capacities such as aerial photography, surveying, mapping, and agricultural inspection. Their utility and ever-increasing sophistication (many drones are equipped with high resolution cameras, and high-end commercial drones can stay aloft for hours) have transformed them from novelties into important tools.
But the presence of more drones in Hong Kong’s skies raises obvious public safety and privacy concerns, prompting some members of the Hong Kong Legislative Council to call for greater regulation of drone usage and operation in Hong Kong[2]. In response, the Hong Kong Government (Government) recently undertook a review of Hong Kong laws and policies concerning drone usage and ownership.
Hong Kong’s existing rules governing recreational drone flights were essentially drafted in contemplation of model aircraft. Consider the Civil Aviation Department’s (CAD) guidelines on UAS flights, which restrict drone flights to daylight hours only, prohibit flights near airports or over congested areas, as well as flights more than 300 ft. above ground level[3]. While these guidelines may be deemed adequate to address current public safety risks, they have not been updated to account for the performance and technical capabilities of modern drones which can fly faster, farther, and longer than many model aircraft[4].
Hong Kong’s rules governing commercial drone flights are similarly outmoded. Right now, flying a drone for commercial purposes (or any drone weighing more than 7kg) requires the prior approval of the CAD. This involves a rather detailed application process[5] that does not accommodate the realities faced by many commercial drone operators. For instance, videographers often receive a work request only one or two weeks in advance and would risk losing such request if they go through the CAD’s time-consuming approval process. Unfortunately, this state of affairs has led some commercial drone operators to simply skip the CAD approval process altogether[6].
The Government has stated that since no standardized global rules yet exist to govern the manufacture, sale or operation of drones, they will examine the development of drone regulations in other jurisdictions before enacting any new laws[7]. Unfortunately this wait-and-see approach to legislating may leave Hong Kong at a disadvantage in the commercial realm. Policymakers in other parts of the world are competing to attract drone startups and other related businesses by developing a detailed regulatory framework for drones. They are driven by an awareness that clear, unambiguous rules governing drone flights can act as a bedrock for drone companies looking to test new technologies or launch new services. Consider the fact that Singapore already conducted the world’s first successful trial of mail delivery by drone[8], while an Australian startup claims to have made the first household delivery by drone[9].
Can the Government promote Hong Kong as an attractive destination for the drone industry while preserving public safety/privacy? If the experiences of Singapore, Australia, and many other places are any indication, there must be a way forward.
Specialised Regulation
Many jurisdictions are adopting more forward-looking policies towards drone operations that can facilitate the commercial development of the drone industry. Oftentimes such policies result in the implementation of more regulations, with specific rules governing different types of drones and their modes of operation.
Take for example Australia, which now exempts commercial operators of very small drones (weighing less than 2 kilograms) from certification. Recognizing that smaller and lighter drones pose a lower risk of injury or damage in the event of an impact or crash, Australian regulators wanted to make commercial flights of such drones easier. Now, a small drone operator looking to make a commercial flight only needs to notify the Civil Aviation Safety Authority at least five (5) days in advance of the proposed flight[10] (though the operator must of course abide by existing safety rules).
This commercially minded approach to regulation may be a reason why Australia has been a favoured testing location for Google’s X Laboratories and Amazon.
Meanwhile, in the United Kingdom an old airport in Aberporth, Wales is now used as a dedicated “drone cluster”.
Established to “facilitate and accelerate the growth of the Unmanned Aircraft Systems (UAS) industry”[11], the facility provides air traffic management and allows both military and civilian drones to fly unimpeded within defined airspace across a variety of terrain. The facility has attracted universities, defence contractors, and government agencies, who use it as a testing ground for new technologies.
At the moment Hong Kong has no laws that would exempt certain commercial drone operators from registration/certification, nor created any special zones for drone testing and operation. Although lawmakers may be wary of allowing drone flights in populated areas (tall buildings and crowds of people present obvious risks), Hong Kong’s hilly topography and varied terrain might pose a welcome technical challenge to software engineers and drone designers. The drone companies know that the long-term success of their industry means that one day, drones must be able to navigate tall buildings and crowded airspace without breaching no-fly zones or, should a drone fail, inflicting harm on persons or property below their flight paths.
In order to make Hong Kong a more attractive destination for the commercial drone industry then, perhaps a more forward thinking approach to regulation might help.
Experimental Rules
Many jurisdictions are looking to the US Federal Aviation Administration’s (FAA) Small Unmanned Aircraft Regulations (Part 107) in formulating their own rules governing commercial drone flights. The FAA rules allow drone operators with a remote-pilot certificate (obtained by passing a test costing US$150) to fly a drone for commercial purposes during daylight hours, within visual line of sight, in uncontrolled airspace, and without flying over people who are not involved in operating the drone. Later this year, it is expected that the FAA will propose new rules governing flights over people (i.e. flights in crowded areas) and remote identification of drones. Further down the road, the FAA will propose rules regarding night flying, operations over longer distances, and control of multiple drones by a single operator.
The FAA is well aware that such rules can drive the direction of the commercial drone industry. In fact drone companies operating in the US can already go beyond the Part 107 rules by obtaining a special waiver from the FAA, on the condition that they can show that their proposed operation can be conducted safely and meet some additional requirements. Such waivers impose additional safety requirements on drone operators; for example, obtaining a waiver for night flights requires mounting a light on the drone that is visible from three miles away, as well as providing night-flight training for the drone operator.
The FAA’s waiver system effectively allows for testing new regulations before they are formalised and promulgated. Hong Kong could devise a similar program that facilitates the testing and trial of new drone technologies, in particular the capability of effectively operating a drone beyond the line of visual sight (which is critical to the development of drone delivery). Given that other jurisdictions are already pressing ahead with such rules, Hong Kong policy makers should urgently realise that the potential economic gains to Hong Kong from cultivating a new industry does not necessarily mean sacrificing the safety and privacy concerns of the Hong Kong public.
[1] Hong Kong Business, July 2015
[2] Currently, drones under 7kg are exempt from registration with the Civil Aviation Department
[3] http://www.cad.gov.hk/english/model_aircraft.html
[4] Some of the fastest drones on the market, such as the Draco from UVify, can fly up to 100 mph.
[5] The process involves submission of an application form and supporting documents (intended flight path, operations manual, evidence of insurance, permission from land/property owner) to the Civil Aviation Department. The operator must also submit an Application for Permit for use of aircraft for the provision of air service – Unmanned Aircraft Systems (UAS)pursuant to Air Transport (Licensing of Air Services) Regulations (Cap. 448A) Regulation 22.
[6] See “Is Hong Kong a wild frontier for drones? Lack of rules prompts fears over privacy and safety”, South China Morning Post, 11 May 2015
[7] http://www.info.gov.hk/gia/general/201510/14/P201510130731.htm
[8] In September 2015, the Singapore Post successfully tested a mail run from mainland Singapore to Pulau Ubin using a drone.
[10] https://www.casa.gov.au/standard-page/commercial-unmanned-flight-remotely-piloted-aircraft-under-2kg
[11] http://www.wuase.com/airspace/
For further information, please contact:
Machiuanna Chu, Partner, Deacons
machiuanna.chu@deacons.com.hk
