BILL ANALYSIS Ó
AB 2320
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Susan Talamantes Eggman, Chair
AB 2320
(Calderon and Low) - As Amended April 4, 2016
SUBJECT: Unmanned aircraft systems.
SUMMARY: Prohibits local governments from regulating unmanned
aircraft systems (UAS) and places a number of additional
restrictions on the use of UAS. Specifically, this bill:
1)States that, except as expressly authorized by statute, the
authority to regulate the ownership or operation of unmanned
aircraft is vested solely in the state.
2)Prohibits, except as expressly authorized by statute, a city,
a county, a city and county, or another local government
entity from doing either of the following:
a) Enacting an ordinance or resolution that regulates the
ownership or operation of unmanned aircraft; or,
b) Otherwise engaging in the regulation of the ownership or
operation of unmanned aircraft.
3)Defines, for purposes of the above provisions, "unmanned
aircraft" to mean an aircraft that is operated without the
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possibility of direct human intervention from within or on the
aircraft.
4)Makes it a misdemeanor, punishable by a fine of up to $1,000
and a year in county jail, as specified, to use a UAS to
intentionally and knowingly violate a protective order that
prohibits a person from coming within a specified distance of
another person, as specified.
5)Provides that if the violation of a protective order by a UAS
results in physical injury (or is a second violation within a
year), the violation is punishable by a fine of up to $2,000
and not less than 30 days (but no more than one year) in
county jail.
6)Prohibits a person who is required to register as a sex
offender from operating a UAS.
7)Makes it a misdemeanor to use a UAS to view the scene of an
emergency in a way that impedes police officers, firefighters,
emergency medical, or other emergency personnel, or military
personnel in the performance of their emergency duties.
8)Makes it a misdemeanor to use a UAS to stalk another person by
willfully, maliciously, and repeatedly following or willfully
and maliciously harassing another person and making a credible
threat with the intent to place that person in reasonable fear
for his or her safety, or the safety of his or her immediate
family, and makes it a felony to use a UAS to stalk someone
when there is a temporary restraining order in place.
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9)Makes it a felony to use a UAS to bring contraband into a jail
or state prison.
10)Defines "unmanned aircraft" and "unmanned aircraft system"
consistent with federal law.
11)States that it is the intent of the Legislature that a person
be prohibited from using UAS within 250 feet of a critical
infrastructure facility for the purpose of conducting
surveillance, gathering evidence or collecting information
about the facility, or photographically or electronically
recording data about critical infrastructure.
12)Defines "critical infrastructure" to mean an airport, an
electrical power generation system, a petroleum refinery, a
manufacturing facility that utilizes any combustible chemicals
either in storage or in the process of manufacturing, a
chemical or rubber manufacturing facility, or a petroleum or
chemical storage facility.
13)Makes various legislative findings and declarations regarding
the Federal Aviation Administration's (FAA) regulation of UAS,
the beneficial uses of UAS, and public concerns about the
privacy and public safety impacts of UAS, including this
statement:
"The FAA has warned that a 'patchwork quilt' of inconsistent
regulation raises substantial safety concerns, impedes
innovation, and makes it virtually impossible for end-users to
understand the rules for operating unmanned aircraft systems."
14)Makes various technical and clarifying changes.
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EXISTING LAW:
1)Vests the FAA with the authority to regulate airspace use,
management and efficiency, air traffic control, safety,
navigational facilities, and aircraft noise.
2)Requires, pursuant to the Aviation Administration
Modernization and Reform Act of 2012 (Act), the Secretary of
Transportation to develop a comprehensive plan to safely
accelerate the integration of civil UAS into the National Air
Space (NAS). The plan is required to provide for the safe
integration of civil UAS into the NAS as soon as practicable,
but not later than September 30, 2015.
3)Requires, under FAA rules, as of February 19, 2016, federal
registration of a UAS before first flight outdoors, for any
UAS weighing more than 0.55 pounds (250 grams) and less than
55 pounds (approx. 25 kilos), including payloads such as
on-board cameras, and requires UAS owners to be at least 13
years old to register and to provide name, home address, and
email address. Upon registration, UAS owners receive a
Certificate of Aircraft Registration/Proof of Ownership, along
with a unique identification number, which must be marked or
affixed to the UAS.
4)Allows, pursuant to Section 7 of Article XI of the California
Constitution, a county or city to make and enforce within its
limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws.
5)Makes it a misdemeanor to violate a protective order that
prohibits a person from coming within a specified distance of
another person. If the violation results in physical injury
(or is a second violation within a year), makes the violation
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punishable with a fine of up to $2,000 and not less than 30
days (but no more than one year) in county jail.
6)Under California's "Megan's Law," requires sex offenders to
register their current residence in a statewide public
registry of sex offenders.
7)Prohibits a person convicted of a felony from possessing a
firearm.
8)Makes it a misdemeanor to stop and view the scene of an
emergency in a way that impedes police officers, firefighters,
emergency medical, or other emergency personnel, or military
personnel in the performance of their emergency duties.
9)Makes it a misdemeanor to stalk another person by willfully,
maliciously, and repeatedly following or willfully and
maliciously harassing another person and making a credible
threat with the intent to place that person in reasonable fear
for his or her safety, or the safety of his or her immediate
family, and specifies that stalking someone when there is a
temporary restraining order in place carries a felony penalty.
10)Makes it a felony to bring contraband into a jail or state
prison.
FISCAL EFFECT: This bill is keyed fiscal.
COMMENTS:
1)Bill Summary. This analysis will focus primarily on Section 7
of this bill, which states that the authority to regulate the
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ownership or operation of unmanned aircraft is vested solely
in the state and prohibits a city, a county, a city and
county, or another local government entity from doing either
of the following:
a) Enacting an ordinance or resolution that regulates the
ownership or operation of unmanned aircraft; or,
b) Otherwise engaging in the regulation of the ownership or
operation of unmanned aircraft.
For a thorough discussion of the other provisions of this
bill, please refer to the April 12, 2016, analysis of this
bill by the Assembly Privacy and Consumer Protection
Committee.
This bill is sponsored by the authors.
2)Author's Statement. According to the author, "The FAA is in
the process of developing rules that are intended to safely
integrate small unmanned aircraft systems into the national
airspace system and that are expected to be released in 2016
or 2017. While the FAA is developing the small unmanned
aircraft system rules, California has a responsibility to
ensure the safety of our citizens and at the same time, help
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foster an industry that can provide a wide range of useful
applications."
3)Background. In 2012, Congress passed the Act, which required
the FAA to establish a framework for safely integrating
commercial UAS into the NAS no later than September 30, 2015,
and authorized the FAA to establish interim requirements for
the commercial operation of UAS. The FAA's Notice of Proposed
Rulemaking came out on February 15, 2015, with safety rules
for small UAS (under 55 pounds) conducting non-recreational or
non-hobby operations. The proposed rule defines permissible
hours of flight, line-of-sight observation, altitude, operator
certification, optional use of visual observers, aircraft
registration and marking, and operational limits. However,
these rules have not yet been finalized and several states and
local governments have considered and/or enacted their own
statutes or ordinances governing the use of UAS in their
jurisdictions.
In 2015, 45 states considered 168 bills meant to regulate use
of drones, according to the National Conference of State
Legislatures. So far, 26 states have moved to limit police
use of drones, bar drone surveillance over private property,
or impose other restrictions.
Several cities in California have enacted ordinances
regulating the operation of UAS in their jurisdictions,
including Berkeley, Los Angeles, Poway, San Francisco, Santa
Clara, and West Hollywood. The East Bay Regional Park
District also has a rule governing drone use, and the cities
of Oxnard and Hermosa Beach are developing ordinances.
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4)State and Local UAS Laws: Guidance From the FAA. The FAA
released a "State and Local Regulation of Unmanned Aircraft
Systems (UAS) Fact Sheet" on December 17, 2015, which states
(citations omitted and emphasis added):
"Consistent with its statutory authority, the FAA is requiring
Federal registration of UAS in order to operate a UAS?No state
or local UAS registration law may relieve a UAS owner or
operator from complying with the Federal UAS registration
requirements. Because Federal registration is the exclusive
means for registering UAS for purposes of operating an
aircraft in navigable airspace, no state or local government
may impose an additional registration requirement on the
operation of UAS in navigable airspace without first obtaining
FAA approval.
"Substantial air safety issues are raised when state or local
governments attempt to regulate the operation or flight of
aircraft. If one or two municipalities enacted ordinances
regulating UAS in the navigable airspace and a significant
number of municipalities followed suit, fractionalized control
of the navigable airspace could result. In turn, this
'patchwork quilt' of differing restrictions could severely
limit the flexibility of FAA in controlling the airspace and
flight patterns, and ensuring safety and an efficient air
traffic flow. A navigable airspace free from inconsistent
state and local restrictions is essential to the maintenance
of a safe and sound air transportation system."
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However, the fact sheet continues with, "Examples of State and
Local Laws for Which Consultation with the FAA is
Recommended," which lists the following:
a) Operational UAS restrictions on flight altitude, flight
paths; operational bans; any regulation of the navigable
airspace. For example - a city ordinance banning anyone
from operating UAS within the city limits, within the
airspace of the city, or within certain distances of
landmarks. Federal courts strictly scrutinize state and
local regulation of overflight.
b) Mandating equipment or training for UAS related to
aviation safety?would likely be preempted. Courts have
found that state regulation pertaining to mandatory
training and equipment requirements related to aviation
safety is not consistent with the federal regulatory
framework."
In addition, the fact sheet also provides "Examples of State
and Local Laws within State and Local Government Police
Power," stating that "laws traditionally related to state and
local police power - including land use, zoning, privacy,
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trespass, and law enforcement operations - generally are not
subject to federal regulation. Examples include:
a) Requiring police to obtain a warrant before using UAS
for surveillance;
b) Specifying that UAS may not be used for voyeurism;
c) Prohibiting the use of UAS to hunt or fish or interfere
with someone hunting or fishing; and,
d) Banning the weaponization of UAS."
5)State Preemption of Local Laws. This bill states that the
authority to regulate the ownership or operation of unmanned
aircraft is vested solely in the state and prohibits a city, a
county, a city and county, or another local government entity
from enacting an ordinance or resolution that regulates the
ownership or operation of unmanned aircraft or otherwise
engaging in the regulation of the ownership or operation of
unmanned aircraft.
The California Constitution allows a county or city to make
and enforce within its limits all local, police, sanitary, and
other ordinances and regulations not in conflict with general
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laws.
The legal test for determining if state law preempts local
regulation consists of deciding whether the regulation in
question is of statewide concern or a municipal affair. If a
regulation is a matter of statewide concern, then it is not a
municipal affair, and therefore the regulation is considered
to conflict with state law.
Determining "statewide concern" entails a three-prong test. A
local regulation is preempted if the court finds one of the
following: the ordinance duplicates state law; the ordinance
contradicts a state statute that expressly occupies the field;
or, the state occupies the legislative area by implication.
In addition, California courts have developed tests for
determining when local regulations are not preempted. One
approach is known as the balancing of state and local
interests. The balancing test requires the local regulation
be shown to reflect a strong local interest that will prevail
when balanced against a state regulation that it contradicts.
The FAA's guidance on state and local UAS laws explicitly
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notes that "laws traditionally related to state and local
police power - including land use, zoning, privacy, trespass,
and law enforcement operations - generally are not subject to
federal regulation." It appears that the federal government
does not contemplate federal or state preemption of local UAS
laws - on the contrary, it lists potential local laws that
would require consultation with the FAA and others that would
fall within local police powers and, therefore, could be
pursued without FAA consultation.
The state of California, while it has considered numerous
bills regulating the use of UAS, has enacted only one. Does
this mean the state fully occupies the field of UAS
regulation, or that it should? It does not appear that any of
the few ordinances that California cities have enacted to
regulate UAS duplicate state law or contradict a state statute
that expressly occupies the field, or that the state occupies
the legislative area by implication.
According to the April 12, 2016, analysis of this bill by the
Assembly Privacy and Consumer Protection Committee,
"California laws that regulate aircraft establish statewide
uniformity, but those laws also leave room for local
governments to pass certain local restrictions on airplanes.
Courts have affirmed the authority of municipalities to
exercise land-use control over the siting and development of
airports. In one recent case, Skyranch Pilots Ass'n v. County
of Sacramento (July 2, 2008), a California appeals court held
that a county's decision not to renew a conditional use permit
for a privately owned, public-use airport was not preempted by
the State Aeronautics Act.
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"Likewise, California's Vehicle Code sets a variety of
statewide standards, such as highway, residential and school
zone vehicle speed limits, but state law allows cities and
counties to set local vehicle restrictions, such as
prohibiting cars in downtown pedestrian zones, adding speed
bumps to bring car speeds below 25 miles per hour on certain
residential streets, and establishing park opening and closing
hours including parking restrictions in and around parks when
closed." (citation omitted)
6)The UAS Market. The Consumer Technology Association (CTA)
estimated about 700,000 drones would be sold in 2015, up from
430,000 drones sold in 2014. The FAA estimates that nearly
one million UAS were sold during the December 2015 holiday
season. CTA projects sales of consumer drones to grow 57% in
2016.
7)Pending Legislation. AB 1662 (Chau), pending in the Assembly
Appropriations Committee, requires UAS operators to remain at
the scene of an accident and provide their name and address
along with valid identification to the victim and the police.
AB 1680 (Rodriguez), pending in the Assembly Appropriations
Committee, makes it a misdemeanor to operate a UAS in a manner
that interferes with first responders.
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AB 2724 (Gatto), pending in the Assembly Privacy and Consumer
Protection Committee, requires UAS makers to include with the
UAS a copy of FAA safety regulations, and if the UAS is
required to be registered with the FAA, a notice of the
registration requirement. The bill also requires UAS with GPS
technology to be outfitted with a geo-fencing feature and
requires UAS owners to have adequate liability insurance.
SB 807 (Gaines), pending in the Senate Judiciary Committee,
grants civil immunity to public entities, public employees,
and unpaid volunteers, and private entities acting within the
scope of delegated authority, that damage a UAS in the course
of providing a variety of emergency services.
SB 808 (Gaines), pending in the Senate Public Safety
Committee, clarifies that using a UAS to enter the airspace
within which a person is prohibited from entering under a
protective order is a violation of the protective order.
SB 810 (Gaines), pending in the Senate Public Safety
Committee, establishes fines for UAS interference with
firefighting activities.
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SB 811 (Gaines), pending in the Senate Public Safety
Committee, makes it a felony to use UAS to deliver contraband
into a prison or county jail and creates a misdemeanor crime
for the use of UAS to fly over a prison or capture images of a
prison.
SB 868 (Jackson), pending in the Senate Transportation and
Housing Committee, proposes the State Remote Piloted Aircraft
Act containing numerous provisions regulating the use of UAS.
8)Previous Legislation. SB 168 (Gaines) of 2015 would have
increased fines for UAS interference with firefighting
activities and granted civil immunity to public entities,
public employees, and unpaid volunteers, and private entities
acting within the scope of delegated authority, that damage a
UAS in the course of providing a variety of emergency
services.
SB 168 was vetoed.
SB 170 (Gaines) of 2015 would have prohibited a person from
knowingly and intentionally operating an UAS over a state
prison or county jail. SB 170 was vetoed.
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SB 263 (Gaines) of 2015 would have clarified that using a UAS
to enter the airspace within which a person is prohibited from
entering under a given protective order is a violation of the
protective order. SB 263 was held in the Senate Public Safety
Committee.
SB 271 (Gaines) of 2015 would have prohibited the use of UAS
at or less than 350 feet above a public school campus or to
use a UAS to capture images of school campus during school
hours without the written permission of the school principal.
SB 271 was vetoed.
AB 856 (Calderon), Chapter 521, Statutes of 2015, expanded the
scope of the cause of action in existing law for physical
invasion of privacy by making a person liable for physical
invasion of privacy when the person knowingly enters "into the
airspace" above the land of another person without permission.
9)Committee Amendment. The Committee may wish to strike Section
7 of this bill to delete provisions establishing state
preemption of local authority to regulate UAS within their
jurisdictions.
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10)Arguments in Support. None on file.
11)Arguments in Opposition. The California Police Chiefs
Association and the League of California Cities, in
opposition, note, "The painfully slow evolution of federal
regulations with respect to unmanned aircraft systems for
recreational use, combined with the rise in irresponsible use
of this technology posing unreasonable dangers to first
responders and commercial aviation, and finally the most
recent and rather weak proposed federal rulemaking for
recreational drones which have yet to be formally adopted as
federal regulations, all argue against federal pre-emption of
either state or local regulation in this area?
"To add explicit pre-emption language at this stage indicates
a policy approach that places the interests of the unmanned
aircraft system industry above that of aviation safety, first
responders, commercial aviation and the public safety needs of
the general public. We have noted with alarm that the April
4th amendments contain absolutely no provisions strengthening
the ability of the state's various law enforcement agencies to
address the many near mid-air collisions between first
responders and drones, or the growing threat to commercial
aviation caused by drones repeatedly operating in the
federally restricted airspace within 5 miles of airports.
"In the absence of comprehensive state regulation that, at a
minimum, seeks to bring state law into conformity with the few
federal regulations that apply to recreational drones
indicates a premature attempt to shut down local regulation
without any meaningful assurance that state regulations will
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come about?Cities have a compelling interest in preserving
their ability under current law, as interpreted by the FAA, to
adopt regulations pertaining to the use of unmanned aircraft
systems in the areas of allowable land uses, zoning, privacy,
trespass and regulation of their own law enforcement
operations. We do not intend to cede this authority for
convenience of the industry."
12)Double-Referral. This bill was heard by the Privacy and
Consumer Protection Committee on April 12, 2016, where it
passed with a 6-3 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
California Police Chiefs Association
City of Sacramento
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City of Thousand Oaks
League of California Cities
Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958