15 June, 2017
The Civil Aviation Administration of China ("CAAC") issued the Real-name Registration of Civil Unmanned Aircraft Administrative Provisions (the "Real-name Registration Rules"), which took effect from May 16, 2017. The Real-name Registration Rules require owners and manufacturers of civilian-use unmanned aircraft systems ("UAS" or "Drones") to complete real-name registration procedures. For those who may not be familiar with the Chinese legal environment, and who may be asking why there is emphasis on "real names" registration, China has previously issued similar rules on opening bank accounts to tighten up account know-your-client procedures, as previously people opened accounts in fictional names or operated accounts registered in one member's name as a "family account" due to lax verification procedures. In short, you have to register as yourself and prove your identity.
The Real-name Registration Rules show all the characteristics of rules that were thrown together in something of a hurry, as a reaction to perceived threats from out of control and untraceable UAS owners in the aftermath of a series of serious incidents around airports in China around April of this year, such as the intrusion by a civilian-use UAS at Chengdu Shuangliu International Airport that posed a significant threat to aircraft and led to serious flight delays. China is not by any means alone in this regard, with, among others, the UK having recently reported a double drone "near-miss" case involving an Airbus A320 approaching Heathrow Airport in November 2016.1
Scope of registration requirement
Under the Real-name Registration Rules, all UAS with a maximum take-off weight of not less than 250g that are used in China, other than those operated by military, customs and police services (which are outside of the scope regulated by the Real-name Registration Rules) are required to be registered through the CAAC Civil Unmanned Aircraft Real-name Registration Information System (the "Real- name Registration System"). This became available from May 18, 2017 (https://uas.caac.gov.cn). The Real-name Registration Rules also specify that aviation models, unmanned free-floating balloons and tethered balloons are not considered as falling within the scope of civilian-use UAS.
The minimum weight standard for the implementation of real-name registration is similar to the minimum weight standards for registration requirements issued by the U.S. Federal Aviation Administration ("FAA") (for light UAS weighing from 250g to 25kg) and those currently proposed by the European Aviation Safety Agency ("EASA") (being for UAS weighing no less than 250g). We have set out a comparison of UAS registration requirements in China and in the U.S. in the Appendix.
Registration is not the owners' only obligation and more obligations are imposed
Starting from June 1, 2017, individuals and legal entities and other organisations established under Chinese laws that own civilian-use UAS must carry out real-names registration. For civilian-use UAS that were acquired before June 1, 2017, a grace period applies, with the deadline for completion being set at August 31, 2017.
To complete the registration, the UAS owner is required to apply to open an account on the Real-name Registration System and provide the following information:
- name (corporate name), mobile telephone number and email address of the owner
- model and serial number of the UAS
- purpose of use
- valid ID card number or passport number (in the case of an individual owner), or the unified social credit code or organizational institution bar code in the case of an entity owner
Completion of registration is not the only obligation that a civilian-use UAS owner needs to fulfil under the Real-name Registration Rules. After completion of such registration, the UAS owner must:
- print out the registration mark it received in the registered email account (containing a specific registration number and a QR code) (the "UAS Registration Mark") and paste it physically onto the UAS. The UAS owner must ensure that the UAS Registration Mark is always attached to the civilian-use UAS during flight, and that its markings are clear and legible
- update and cancel the previous registration upon the occurrence of a sale, transfer, destruction, loss or other loss-of-ownership event in relation to the UAS
This is quite an onerous set of obligations, covering the entire ownership and operating life cycle: it will be interesting to see to what extent people and entities in China comply in practice, as the very fact of compliance with these rules suggests a responsible, law-abiding owner who is "willing to be caught" if something goes wrong, whereas the issue with near misses really turns around irresponsible or unsupervised owners.
Obligations imposed not just on UAS owners, but also on UAS manufacturers
In addition to imposing obligations on UAS owners, the Real-name Registration Rules also specifically require civilian-use UAS manufacturers to register the information on their products on the Real-name Registration System, including:
- name, registered address and contact information of the manufacturer
- name and model of the product
- the empty weight and the maximum take-off weight
- product category
- name and mobile telephone number of civilian-use UAS purchasers
Civilian-use UAS manufacturers are also required to:
- remind purchasers and owners of civilian- use UAS about their registration obligations and the consequences of operating without registration on the outside packaging product and in the product instruction manual
- provide a self-adhesive sticker with products to be sold for owners of civilian-use UAS to print out the UAS Registration Mark
Civilian-use UAS manufacturers must comply with the above requirements immediately from May 16, 2017, the day the Real-name Registration Rules were promulgated and became effective, with no grace period (and apparently regardless of the fact that the Real-name Registration System was not even ready until May 18, 2017, and that manufacturers would have needed time to achieve compliance, including the preparation of the stickers for sale). It is not expressly stated whether foreign manufacturers who sell Drones into China or their importers are subject to the new rules for manufacturers, nor whether it applies to Drones manufactured overseas imported into China by individuals, but the scope of the test "used within China" seems broad enough to encompass the latter. Again this points to the lack of preparation and thinking through the issues when imposing the new rules.
It is also not entirely clear on the face of the rules what kind of civilian-use UAS purchaser (i.e., distributors and/or end users) needs to be registered by civilian-use UAS manufacturers. This exercise appears to involve disclosing potentially large quantities of personal data for individual purchasers for which consent from the individual would be needed. Therefore, there is a question mark how practically feasible it is to enforce such rules against civilian-use UAS manufacturers especially when the buyer has not registered with the manufacturer, or has registered but bought the Drone as a gift, so the actual owner/operator is not the buyer.
We simply observe here that these obligations on manufacturers do not appear to be replicated in other key jurisdictions.
Conclusions
The implementation of a real-name registration requirement is considered to be a major step towards increased and more comprehensive regulation of Drones in China. However, various gaps exist in the real-name registration requirements, suggesting further rule-making may be needed.
First of all, the Real-name Registration Rules do not specify penalties or other consequences for failure to comply with the real-name registration requirements. Based on media reports, CAAC is taking the lead on drafting more specific administrative rules concerning the operation of Drones, whereby specified punishments will be included for failure to conduct real-names registration.
Secondly, as the requirements for UAS real- name registration are essentially a response to frequently encountered irresponsible flight activities, there are still no specific liability and penalty provisions under the various UAS- related rules addressing unlawful flights by Drones. Although as a general principle, the PRC Tortious Liability Law and the PRC Civil Aviation Law would apply when it comes to damage caused by unlawful flights by UAS where normal civil aviation activities have been affected, we have seen cases where the public security bureau has imposed detention on operators of Drones based on a more general provision of "severely disturbing public order" under the current PRC Public Security Administrative Punishments Law (the "Punishments Law").
As an aside, we note that in January 2017 the Draft Revisions for Solicitation of Public Comments on the Punishments Law were issued, whereby it was proposed that flying a civilian-use Drone at low altitude in violation of provisions of the state would be punished by criminal detention of up to 15 days. Therefore it seems that the legislators do intend to impose penalties for unlawful flight activities by owners of civilian-use UAS, and it is only a matter of time before these are specifically included in the regulatory framework in this area.
The real question is: has China got the balance right in terms of individual freedoms to use Drones for leisure activities versus heavy- handed (over-) regulation. There is an argument that at the end of the day, individual freedoms have to be subordinated to the protection of society as a whole, and clearly protecting innocent civil aviation passengers and crew and people on the ground from a life-threatening incident should prevail over the freedom of any individual, especially when there should be a presumption of some level of recklessness on the part of the owner/operator by the mere fact of operating a Drone in the vicinity of an airport. The question is whether putting more resources into education and training for Drone owners (and parents of Drone owners) and technical blocking measures to be adopted by manufacturers which prevent Drones from overflying designated map coordinates (as are already in place in some other jurisdictions) would not produce a better outcome as compared to the somewhat draconian measures now being imposed, such as being detained in criminal detention for 15 days as now (or similar). Ultimately there are no inherently dangerous Drones, only dangerous or ignorant owners, so resources should be allocated to both those owners who have registered and to educating and de-risking the actions of those who in all likelihood have not and will not register.
Appendix
Comparison of Drone registration requirements in China and the US
Individual-level obligations
China: From June 1, 2017, drones that weigh 250g or more require real names registration online.
US: From August 2016, drones that weigh between 0.55 to 55lbs need to be registered through an online system;
Drones weighing 55lbs or more must be registered using the paper (N-number) registration process used for traditional manned aircraft.
Corporate-level obligations for manufacturers
China: From May 16, 2017 manufacturers must register themselves and disclose name and mobile telephone of drone purchasers
US: None, unless the manufacturer is also the operator (see individual level obligations above).
1 See BBC report dated April 28, 2017 at www.bbc.com/news/uk- 39747042.
